Legal Naturalism: A Marxist Theory of Law.
Does Marxism contain a naturalist theory of law? What is surprising about an affirmative answer to this question is that Marxism is typically portrayed as evincing a hostile or merely instrumentalist attitude toward law. Under this portrayal, law is merely the ruling class's control over the workers. Of course, law should be used for whatever it's worth to undermine class rule. But it is neither something that is necessarily just, nor to which we owe allegiance. For Marxists this presents a dilemma. Marxism will either result in defeatism, unable to seek the law's assistance in redressing injustice, or, if the law can be used for such a purpose, Marxists must be wrong in denying the possibility of justice within capitalism. On the horns of this dilemma, a Marxist's jurisprudential hopes are limited to a positivist conception of law, where law is merely the result of the authoritative social processes for generating legitimate social rules deemed sufficient by the ruling class. The problem here is that a good lawyer must "maintain some faith in the meliorative possibilities within the system, a faith that drives all good advocacy" (p. 4). But a good Marxist must deny law's role in solving social problems (p. 4). No wonder Marxism has not occupied an important place in contemporary legal theory. By contrast, natural law considers law to be real and treats the proper conception of law as necessarily just and worthy of allegiance. Thus understood, Marxism and natural law represent incompatible alternatives concerning law's significance. No Marxist, naturalistic conception of law is possible.
Olufemi Taiwo rejects this conclusion together with the particular conceptions of Marxism and naturalism upon which it depends. According to Taiwo, "legal naturalism", simultaneously a naturalist and Marxist conception of law, maintains that "the law that is expressed in the positive legal system of a society is a constitutive part of the nature of the mode of production" (p. 2). A "mode of production" includes all those deep social and material properties "of the way in which production is carried out" (p. 55, emphasis in the original omitted). Taiwo's first task is to explain how legal naturalism is possible. Taiwo then attempts to show the dynamic relationship between natural and positive law, especially how natural law becomes positive law. When Marxism is viewed as the positivization of natural law or the social mode of production of a particular society, it represents a legitimate conception of law and enables it to be part of the subject matter of the philosophy of law along with other legitimate conceptions. It is this positivization of natural law which is responsible for the autonomy and authority of the law, the fact that the law is independent of and superior to private interests at least to some degree. This provides a place for revolutionary Marxist practice even within non-Marxist legal systems (p. 124). For Taiwo "[o]ne consequence of taking seriously the autonomy of law and the multiplex character of the capitalist social formation is that there may be more room for Marxist legal practice under capitalism" than is usually believed (p. 140). Natural law does change, according to Taiwo, and it is conceivable that the withering away of law might be desirable because "those activities which define what we value most in our humanity--social harmony, good neighborliness, loving and being loved--the law is completely excluded or, at best, plays a negative role ... Law is always a second-best option" (p. 182-3, emphasis in original). Of the many important issues that Taiwo tackles, I would like to comment in this brief review on his central claim, namely, that Marxism contains a naturalistic conception of law.
Marx's conception is naturalistic, according to Taiwo, because it locates the source of law in the nature of something, in this case, in the nature of a social system. Legal naturalism derives from a proper interpretation of Marx's conception of law. Taiwo traces the development of Marx's theory of law from legal rationalism--and reason's attempt to be free--to social naturalism, including the transition from idealism to materialism. Marx's transition from legal rationalism to legal naturalism involves a shift in thinking away from the view that law must reflect reason to the conviction that law must emanate from people's lives and social circumstances. Reason assumes a subsidiary role in legal naturalism judged "by how well it embodies the stage of development reached by civil society" (p. 32). According to Taiwo, "[l]egal naturalism is the view that the basic law of a given epoch or social formation is that law which is an essential aspect of the mode of production" (p. 32). Taiwo argues that this conception of law is both Marxist and naturalistic. He does not claim that Marx would have written this conception of law or even that Marx would explicitly embrace it. Rather, Taiwo's contention is that his interpretation of Marx's conception of law potentially makes better sense of legal phenomena than alternative interpretations.
Taiwo's claim that Marx's theory of law "must carve a place for itself in the wide ambit of the natural tradition" is strange because naturalism is often portrayed as a conservative or reactionary doctrine tied to property rights and market capitalism (p. 34). It is also strange because Marxism is typically understood as relativizing or historicizing law to a particular historical epoch and a particular type of economic structure. But natural law appears to require a transcendental or at least transnational conception of law applying everywhere and every when. How can we locate Marxism, an historicist and radical conception, in a conception of law that is conservative, universalistic, and objectivist?
Taiwo is not unaware of this problem. Natural law, according to his conception, contains three essential features: (1) the duality of positive and natural law, (2) a hierarchy between the facticity of the positive law and the normative desirability of natural law, and (3) a bridge over the gulf between positive and natural law (pp. 1, 37-8). This is a tendentious conception of natural law because it ignores naturalism's traditional metaphysical and epistemological dimensions. Immutability and divinity, on Taiwo's view, are dispensable. Natural law can survive without them. If natural law is immutable it must be so only because a natural conception is general and therefore applies differently to different situations. If immutable at all, it is only immutable concerning the general status of a law, not in its applications. The trouble with this conception is that it blunts the force of appealing to natural law in the context of persuasion and justification. Natural law may be mutable over a long temporal or spatial spectrum, but not in different places at the same time or different times in the same place. If it were so changeable, it would be indistinguishable from positivist conceptions of law.
Even if Taiwo is right that natural law is mutable, it doesn't follow that it can change during the same era in societies having different modes of production. Taiwo's argument here begs the question concerning the correct conception of natural law. Moreover, even if Taiwo can state this claim in a nonquestion begging fashion, and even if he can show that some law is relative to a society's mode of production, it does not follow that all law is so relative. Perhaps rights concerning economic relations are naturalistic and relative to the mode of production. But are murder, fraud, mayhem and so forth? Isn't the naturalist likely to say that laws against these crimes apply in every society irrespective of its particular mode of production? Of course, what counts as "murder" might vary, but certainly some moral and legal imperatives exist irrespective of the particular mode of production. At least, that is what one would expect the naturalist to say.
Taiwo maintains that to understand a nation's mode of production is to understand its natural law (p. 68). But this is question begging in the extreme. First, even granting for the moment that every mode of production can be univocally characterized in terms of its essential nature, why call this "natural law"? What issues does calling it "natural law" illuminate? What problems does it solve? Second, given the existence of hybrid societies, what is or is not definitely within the mode of production is often indeterminate. Thus, in such circumstances knowing the "natural law" of a particular mode of production tells us little about how conflicts within the society should be solved. Does it make any sense to talk about the natural law of a mixed economy?
The basic problem with Taiwo's thesis is his insistence on the importance on giving Marxist law a naturalist foundation, yet his conception of natural law is weak, like many other naturalistic conceptions that are watered-down to the extent that one wonders why calling it natural law is significant at all. For example, Taiwo contends that "we can speak of natural law without positing an eternal law valid for all times and places" (p. 62). Of course, without further explanation his argument appears circular. What warrants our reinterpreting "natural law" in what appears to be nothing less than a positivist direction? If positivist law includes certain explicit and implicit conventions of one's society, then Taiwo's contention that natural "law is a product of social differentiation occasioned by increasing sophistication of the division of labor" (p. 62) appears unargued for throughout the book. Law might be such a product, but why call it natural law. Taiwo is certainly right that natural law need not be defined as "eternal," whatever that means anyway. Yet, nevertheless, Taiwo's conception of natural law as evolving and transient is extremely questionable. For one thing, it fails to provide the basic element that makes natural law both attractive to some and anathema to others, namely, that natural law consists of those legal imperatives deriving from human nature or the nature of things that would be true in all human societies. This is a far cry from eternity, yet much stronger than Taiwo's conception. Taiwo's conception is that naturalism may be used to describe law because law reflects the essential features of something's nature. But this trivializes the notion of natural law. For argument's sake let us concede that chairs have essences as do societies, mobs, cults, religions and so forth. Despite this "essentialism", referring to a natural law of chairs, or societies, or mobs, or cults, or anti-naturalists renders the concept of natural law relatively indistinguishable from other conceptions of law. Positivists can believe in natural law in this sense without altering the essentials of their theory. Of course, Taiwo might rightly reject this implicit dichotomy between mutually exclusive conceptions of law, one based only on explicit social conventions, the other on human nature or the nature of things. Taiwo's point can be understood as suggesting that a third possibility exists, namely, that different social systems have different essential elements. I am sympathetic to and intrigued by this possibility. Unfortunately, Taiwo never spells it out sufficiently for its intelligibility to be assessed. To do this he must show how this middle-road conception of natural law differs from the traditional conception as well as from positivism. In my view, he has not done so.
Taiwo never explains adequately why a Marxist lawyer cannot take law seriously within a positivist conception of law. The complexities he claims to exist in the "natural law" of a society can all be replicated within a sufficiently complex positivist system. Taiwo's conception of positivism might entail strict positivism where every law arises self-consciously through the authoritative social processes. But certainly there are less rigid conceptions of positivism. Further, why can't a Marxist lawyer take positivist law seriously when the legal system reflects Marxist or socialist law? Finally, one wonders at Taiwo's priorities. He needs to explain at the outset why demonstrating the compatibility of Marxism and natural law is desirable and important in the present intellectual and political circumstances. Had he done so, the purpose of this interesting book might have been clearer.
ROBERT JUSTIN LIPKIN Widener University School of Law 4601 Concord Pike Wilmington, DE 19803 USA