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It Started As A Comment: Why I Am Not a Marxist

But it's too long. I'll put it here, a response to Patrick O'Donnell on why I am not Marxist:

Wow, thanks Patrick! I love your bibliographies.

To be fair and not snide, my critique of the Marxist critique of relative autonomy of law was in the spirit of Critical Race Theory's critique of Critical Legal Studies' trashing of legal rules. I think the law is important for conferring rights, and I think it can and does invert hierarchies and the interests of the elite ruling class, particularly with the concept of the rule of law,and specific laws such as those conferring civil rights and those governing the workplace. I am pro legal rules and enforcement when it can and does work to achieve such ends. In fact, I would argue for the expansion fo such legal rules to cover more classes and confer more rights and benefits, and more rigorous enforcement. This is why I am pro regulating the workplace and why many libertarians, who love me nonetheless, call me a commie in an affectionate and facetious manner.

I wouldn't throw the baby out with the bathwater, and nor do I think I am merely blinded by false consciousness for thinking so. Indeed, while such laws may indeed just be legitimating exercises by the power elites to maintain the status quo of oppression (throwing a bone to the masses), where would the masses be without them anyway?

The true test is not whether we are better off without the laws and with a revolution leading to a proletariat-governed system or anarchy, but whether such laws do what good they seek to achieve, if they do so effectively, and what could be done to make them better and what would lead to a more just society.

Do I think more just societies (social and economic justice) can happen without regulation? I am skeptical of human nature and not so laissez faire as some people I love. Do I think legal regulation is always the answer? No, not really, which is why I think I am growing less liberal with age, or maybe I'm just a capitalist pig. Do I think that the mere existence of legal regulations is enough? Definitely not. Law on the books and law in action has a huge gap in between them, and I would be all for changing laws and policies (but entire systems?) when they simply do not work to decrease the great disparities in social and economic status among groups. However, I am obviously working within the mostly free market capitalist, legal rule-bound American system and the existing laws that I have to work with. I cannot conceive of how to work in any other way. It is like asking me to imagine what America would be like if we listened to Jefferson and had a constitution that had to be amended every few years, or if we didn't have a constitutional republic at all. I have no idea. I can't even think in such terms. I am kind of limited in that way.

In the end, I have no idea how to make a more just society, but that's part of my work! Or so I hope.

Full post as published by Law and Letters on January 31, 2008 (boomark / email).