The changing face of law : a marxist perspective

Abstract

I remember our lecturer of philosophy of law telling us in our first year, that " ... law goes no further than the word itself." Thus having been imbued with Kelsenian positivism, we constantly find ourselves between harsh social reality and legal codifications which have remained unaffected by social change. This means that, by adhering to the positivist school of thought, the most human of natural sciences is ethically stripped of its human content. This is what one may call the cult of "the pure theory of Law" so vehemently denounced by the German philosopher G. Radbruch after the Second World War. Positivism acquires particular importance when coupled with the other belief that "ubi societas ibi ius". This may be termed as the philosophy of "essentiality", in that we are made to believe that the existence of a normative order is a "sine qua non" for the preservation of an ordered society. However, we tend to confound the word "society" with the other word "state". What we must understand is that the present form of the law emerged with the creation of the modern state. If we regard the state "as old as man himself", society is older still and the present form of law was not a natural consequence of society but a political appendage to state mechanism. Indeed one may affirm that the present systems of law are relatively recent phenomena in the history of political thought. The logical outcome has been that, in the mind of students, law has become synonymous with the state. Law, instead of being viewed as the product of a living society, is still conisdered to be the will of the state ("quod principis plaquit legem habeat vigorem").