A Marxist Theory Of Natural Law

This article reinterprets the Marxist general theory of law. I argue that a plausible,coherent,and adequate theory of law must carve a niche for itself in the wide ambit of the natural law tradition. Hence I have called the theory"Legal naturalism".Legal naturalism shares some of the formal elements of theories within the natural law tradition.First,it posits a duality of legal existence : natural law and positive law.Second,it holds that positive law is an emanation from the precepts of natural law and that natural law is superior to positive law. Natural law provides criteria of identity, justification,and evaluation for positive law. Finally, it establishes a link between the natural law that ought to be and the positive law that is,such that positive law strives to realize in concreto natural law. All natural law theories share these three attributes. But legal naturalism(the Marxist theory of natural law)differs from other theories within the tradition. Unlike the others,it locates natural law in the social formation or mode of production ,broadly conceived.On this view,the positive law of any particular society is reflective of deep structures. These deeper structures are not solely economic. They are legal,but naturally legal. They are constituted by those legal relations which are essential and necessary to the social formation in which they occur,such that if that social formation were to lack them it would be not what it is but something else .They are the legal relations the lack of which will make us conclude that a given social formation lacks a constituent element. In this case,law,a given natural law ,is constitutive of and at the same time reflects a given structure of rights presupposed by the relevant social formation. When we say that the positive law of a specific society is the juridical expression of deep structures, we meen that it is an expression of the constitutive natural law of the mode of production concerned.I have called this theory "legal naturalism"because 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. It is similar to other natural law theory to the extent that it appropriates law from the nature of something. This natural law is objiective,independent,and historical. Marxist theory of natural law is not just good in theory,it is employable in practice.