Was O.J. Simpson guilty? No. Did he get away with murder? That’s a different question. Having gone through the “due process of law” O.J. was cleared. Many US women’s groups doubted the fairness of the verdict. Closer to home, how many times have we heard the cry “No justice, no peace” from black communities protesting against police violence?
In these examples, people are appealing to a sense of justice or “fairness” against the law, to a “natural law” that is thought to be higher than the man-made laws of judges and parliament.
as an idea, natural law dates back to St. Thomas Aquinas, a theologian and philosopher of the middle ages. He argued that such law derived from God and its content was revealed to certain earthly representatives.
Later philosophers, such as John Locke, replaced God with the idea that pure reason could identify a concept of justice and a set of moral principles by which to judge all human behaviour across the ages.
Marxists reject this unhistorical approach. Rather, we recognise that ideas of justice and law have changed over time with the development of class society.
In early forms of class society (slave society, feudalism) laws were rarely more than the codification of established traditions, which reflected the dominant patterns of power and wealth. They made no attempt to conceal their bias, but openly enshrined the authority of the ruling class and demanded the unquestioning submission of the lower orders.
Under capitalism, there is still deep seated bias; judges and law makers overwhelmingly come from the public schools; they are born into the ruling class and share its prejudices and values when drawing up or enforcing the law.
As a result, there are often outrageous examples of vindictiveness and bias against the working class and oppressed.
But that does not get to the heart of the matter. It is not difficult to find examples in which the law has recognised workers’ rights against an employer. Trade union officials often win individual cases at industrial tribunals. This leads many to a reformist conclusion; change the people who administer justice and things will work out fine.
But the problem has deeper roots than that. Under capitalism, something of a transformation occurred to notions of law and justice which partly explains the respect many working class people have for the law as a system supposedly above, and separate from, classes. As Engels once noted, under capitalism:
“… it rarely happens that a code of law is a blunt, unmitigated, unadulterated expression of the domination of a class – this in itself would offend the “conception of right.”
Engels has in mind here that in most capitalist societies, unlike feudalism or slavery, all people, of whatever class, are formally equal before the law and have the same rights as citizens.
While this is not the whole story, nor is it just a myth or a simple charade. The idea of such equal rights stems from the fact that we live in a society dominated by generalised commodity production – a system where everyone produces for exchange (see “C is for Capitalism”).
Even workers have to sell the only thing they have – their labour power. The most basic branches of law contract and property developed originally to regulate the behaviour of commodity owners. Contracts had to be entered into freely and the rights of both sides had to be protected by an outside force – the state.
All perfectly logical.
Except that society is not simply a collection of isolated individuals, each producing on their own and exchanging products in the market place. In reality, individuals are themselves part of social classes.
The working class sells its ability to work to a class of capitalists and, once the latter have bought it, they want to use it as they see fit, without interference.
So, throughout the eighteenth and nineteenth centuries, the courts and parliament banned trade unions and enforced the bosses’ right to exploit their property (labour power) any way they saw fit. When workers resisted, they did so in the name of enforcing their rights – the right in contract law to negotiate the best terms and conditions possible for selling their labour power.
How to solve the competing claims? By struggle. As Marx said, “when right meets right, might decides.”
Struggle constantly shapes and reshapes the balance of forces in society between the classes, and laws reflect this balance. That is why laws on trade unions, the right to strike and so on, have shifted back and forth over the centuries.
When the bosses are strong, the law outlaws strikes and unions altogether as an abuse of bosses’ property enjoyment. When the working class is strong, it forces the ruling class to accept fairly wide-ranging “rights” of workers to organise and act for themselves and their class brothers and sisters.
Thus up to 1980, British unions had immunity from claims for civil damages. But, so long as we live under capitalism, all law will reflect property rights and be biased against the working class. Even with the right to strike for better wages or working conditions, the worker is still exploited and the bosses have the right to use labour power as they see fit.
Once we grasp the origin and nature of law in capitalist society, we can see that workers and oppressed are not wrong to appeal to a sense of justice against this law – class justice against class law.
Law under a capitalist state, even “fairly” applied, must reflect the power of the exploiting class because it reflects their social power. Or, as the poet William Blake once put it; “one law for both the lion and the ox is oppression.”
All actions which strengthen the collectivity and consciousness of the working class and the oppressed in their fight to overthrow exploitation and oppression are just, even if illegal. All laws which criminalise the poor, uphold tyranny in the name of impartiality and punish resistance, are unjust.