1 Marx, 3 Capital 820 (London: Lawrence & Wishart, 1972).Google Scholar

2 Cited in Barry Smart, Foucault, Marxism and Critique 11 (London: Routledge & Kegan Paul, 1985). see also Habermas, Jurgen, Knowledge and Human Interests 45 (London: Heinemann, 1972).Google Scholar

3 Eagleton, Terry, Roland Barthes and After, in Lisa Appignanesi, ed., The Legacy of French Theory II (London: I.C.A., 1985).Google Scholar

4 There is a growing literature on the crisis of liberal legal thought. Some of the well-known material includes the following: Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 209, 216–17 (1979); Eugene Kamenka, Robert Brown, & Alice Ehr-Soon Tay, eds., Law and Society; The Crisis in Legal Ideals (London: Edward ARnold, 1978); Roberto M. Unger, Law in Modern Society: Towards a Criticism of Social Theory (New York: Free Press, 1976); id., The Critical Legal Studies Movement, 96 Harv. L. Rev. 563 (1983); N. E. Simmonds, The Decline of Juridical Reason (Manchester: Manchester University Press, 1984); David Sugarman, ed., Legality, Ideology and the State (London: Academic Press, 1983).Google Scholar

5 See, among others, Perry Anderson, Considerations on Western Marxism (London: New Left Books, 1976); id. Arguments Within English Marxism (London: Verso, 1980); E. P. Thompson, The Poverty of Theory and Other Essays (London: Merlin Press, 1978); Habermas, supra note 2; Goran Therborn, Science, Class and Society (London: New Left Books, 1976).Google Scholar

6 Ignatieff, Michael, The Needs of Strangers (London: Chatto & Windus, 1984), and Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984), have recently tried to articulate the feeling of malaise that these standard Marxist terms can be seen to represent. We return briefly to these ideas in the conclusion.Google Scholar

7 Michael Foucault has called the great civil jurists of the 18th century “universal” intellectuals and described them in the following terms: “The man of justice, the man of law, he who opposes to power, despotism, the abuses and arrogance of wealth, the universality of justice and the equity of an ideal law.” Foucault, Power, Truth, Strategy 43, ed. Morris & Patton (Sydney: Feral Publications, 1979).Google Scholar

8 It could be argued that recent works in legal theory critical of orthodox positivism may be seen in this light, e.g., Rawls, Dworkin, Fuller, Finnis.Google Scholar

9 Habermas, Jurgen, Theory and Practice 168–69 (London: Heinemann, 1979).Google Scholar

10 Marx summarized the stages as primitive communism, slavery, feudalism, capitalism, communism.Google Scholar

11 G. A. Cohen, Karl Marx's Theory of History: A Defense 206 (Oxford: Oxford University Press, 1978).Google Scholar

12 Ernesto Laclau & Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985).Google Scholar

13 Id. at 21.Google Scholar

14 Marx, Preface, A Contribution to the Critique of Political Economy 20–21 (London: Lawrence & Wishart, 1971).Google Scholar

15 Hall, Stuart, Rethinking the Base-and-Superstructure Metaphor, in Jon Bloomfield, ed., Class, Hegemony and Party 52 (London: Lawrence & Wishart, 1977).Google Scholar

16 We cannot go into detail here, but the work of Austin and Kelsen and the interest in social engineering of both Pound and the Legal Realists might be seen to fit this description.Google Scholar

17 Louis Althusser & Etienne Balibar, Reading Capital 186 (London: New Left Books, 1972).Google Scholar

18 Tushnet, Mark, Marxism and Law, in Bertell Oilman & Edward Vernoff, eds., 2 The Left Academy 157 (New York: Praeger, 1984).Google Scholar

19 Id. at 160.Google Scholar

20 Jameson, Frederick, The Political Unconscious 22 (Cambridge: Methuen, 1982).Google Scholar

21 Kennedy, supra note 4. see also Tushnet, Mark, The American Law of Slavery 1810–1860 (Princeton, N.J.: Princeton University Press, 1981).Google Scholar

22 Tushnet, supra note 18, at 162.Google Scholar

23 Jameson, supra note 20, at 39.Google Scholar

24 The most influential works of the school are Louis Althusser, For Marx (London: Allen Lane, 1965); id., Lenin and Philosophy and Other Essays (London: New Left Books, 1971), and id. & Balibar, supra note 17.Google Scholar

25 Marxist political theorists who have set themselves the task of rewriting Marxist political theory include Nicos Poluantzas, Political Power and Social Classes (London: New Left Books, 1973), and id. State, Power, Socialism (London: New Left Books, 1978); Ralph Miliband, Marxism and Politics (London: Oxford University Press, 1977); Bob Jessop, The Capitalist State (Oxford: Martin Robertson, 1982); Laclau & Mouffe, supra note 12; Anthony Cutler et al., Marx's Capital and Capitalism Today (London: Routledge & Kegan Paul, 1978).Google Scholar

26 Marx: Engels, Selected Correspondence 394–95 (Moscow: Progress Publishers, 1975).Google Scholar

27 Id. at 399.Google Scholar

28 Hunt, Alan, The Theory of Critical Legal Studies, 6 Oxford J. Legal Stud. 1, 30 (1986).Google Scholar

29 Id. at 10 & 38.Google Scholar

30 Id. at 37 & 40–41.Google Scholar

31 Tushnet, Is There a Marxist Theory of Law?in Marxism, Nomos XXVI at 184.Google Scholar

32 Collins, Hugh, Marxism and Law (Oxford: Clarendon Press, 1982). In this section unattributed page references are to this work.Google Scholar

33 5 S.C. 214 (1866), L.R., 2 A.C. 344 (1876).CrossRefGoogle Scholar

34 see also Hunt, Alan, Marxist Legal Theory and Legal Positivism, 46 Modern L. Rev. 236 (1983), for a similar criticism.Google Scholar

35 Foucault, M., The Order of Things: An Archeology of the Human Sciences 261–62 (New York: Vintage Books, 1973).Google Scholar

36 Buchanan, Allen E., Marx and Justice: The Radical Critique of Liberalism (London: Methuen, 1982). In this session unattributed page references are to this work. There is an interesting discussion of the relevance of a concept of rights within Marxist theory, which draws on Buchanan, in Alan Hunt, The Future of Rights and Justice, 9 Contemporary Crisis 309 (1985).Google Scholar

37 According to Norman Geras, The Controversy About Marx and Justice, 150 New Left Rev. 47 (1985), the overwhelming majority of participants in the debate write or hail from North America. Geras's article and Steven Lukes, Marxism and Morality (Oxford: Clarendon Press, 1985), constitute two important exceptions.Google Scholar

38 Thompson, supra note 5, at 363.Google Scholar

39 Marx & Engels, Manifesto of the Communist Party, in Karl Marx, Frederick Engels, 6 Collected Works 494–95, 504 (London: Lawrence & Wishart. 1976).Google Scholar

40 Lukes, supra note 37, raises this duality.Google Scholar

41 This part is not a fixed datum. The actual amount that employees receive depends on the stage of material development within capitalism and the level of consumption that the employees have come to expect at any particular time.Google Scholar

42 Marx, 1 Capital 301 (Harmondsworth: Penguin, 1976). In the 1887 English translation (see Lawrence & Wishart, London, 1970, at 194) the word “injustice” is translated as “injury.”Google Scholar

43 Marx, Critique of the Gotha Programme 18 (Moscow: Progress Publishers, 1971).Google Scholar

44 See, for example, at 51.Google Scholar

45 The “Gulag question” and the treatment of dissidents in Eastern Europe seem to lie just below the surface of the Marx and justice debate. See generally Lukes, supra note 37, at 100–138, and Buchanan, supra note 36, at 86–102.Google Scholar

46 Marx, supra note 43, at 18.Google Scholar

47 Geras, supra note 37.Google Scholar

48 Marx, supra note 43, at 18.Google Scholar

49 Geras, supra note 37, at 70, 71.Google Scholar

50 For example, Geras, supra note 37; G. A. Cohen, Freedom, Justice, and Capitalism, 126 New Left Rev. 3 (1981); and Z. I. Husami, Marx on Distributive Justice, Phil. & Pub. Aff., Fall 1978, at 27.Google Scholar

51 A. W. Wood, Marx on Right and Justice: A Reply to Husami, in M. Cohen et al., Marx, Justice and History 244 (Princeton, N.J.: Princeton University Press, 1979); and R. C. Tucker, The Marxian Revolutionary Idea (New York: W. W. Norton, 1969).Google Scholar

52 Buchanan, supra note 36, and Lukes, supra note 37.Google Scholar

53 Rawls, John, A Theory of Justice 3 (Oxford: Oxford University Press, 1971).Google Scholar

54 Rorty, Richard, Philosophy and the Mirror of Nature (Oxford: Basil Blackwell, 1980).Google Scholar

55 This gambit is informed by the philosophical strategies of deconstruction. The task of decon-struction is to undermine the claims to finality of meaning and epistemological determinacy of totalizing systems of thought. It uncovers self-created contradictions (aporias) that appear in the margins of texts proclaiming their own systematicity and uses them to show the possibilities of polysemy and openness. This is not the place to expand on the potential that opens up in legal theory and doctrinal analysis, but we hope to return to them elsewhere. For an introduction to deconstruction see Christopher Norris, Deconstruction, Theory and Practice (London: Methuen, 1982); Jacques Derrida, Of Grammatology (Baltimore: Johns Hopkins University Press, 1974), and Allan Hutchinson, Cultural Construction to Historical Deconstruction, 94 Yale L.J. 209 (1984).Google Scholar

56 Lukes, supra note 37, at 46.Google Scholar

57 Marx & Engels, The German Ideology, in Marx & Engels, 5 Collected Works, supra note 39, at 19, 37.Google Scholar

58 What follows has been influenced by J. W. Singer, supra note 6. However, much as we liked his essay we want to distance ourselves from Singer's acceptance of the philosophical position of Richard Rorty, supra note 54. Rorty's project helps undermine the certainties and resulting closure of meaning that characterize the Western philosophical tradition. On the other hand, his conclusion seems to assume that the only way to make sense of any “conversation” is to absorb the discursive practices of the society out of which this conversation comes. Consequently there is a tendency to accept and even celebrate the status quo as the only possible and desirable outcome. This leads ultimately to a closure of meaning in Rorty's own system. Cf. Christopher Norris, The Contest of Faculties: Philosophy and Theory After Deconstruction 162–6 4 (London: Methuen, 1985). see also Goodrich, Peter, Traditions of Interpretation and the Status of the Legal Text, 6 Legal Stud. 53 (1986), and id, Rhetoric as Jurisprudence, 4 Oxford J. Legal Stud. 88 (1984), who uses rhetorical techniques to try to show how the standard exegetical techniques of legal interpretation police the boundaries of authorized legal discourse and, in doing so, become directly an object of struggle.Google Scholar

59 The best-known and most comprehensive summaries of CLS scholarship are found in two special law review issues: 36 Stan L. Rev. (1984) and 62 Tex. L. Rev. (1984, No. 8). see also Kairys, David, ed., The Politics of Law: A Progressive Critique (New York: Pantheon, 1982).Google Scholar

60 Like the label Legal Realism, the CLS umbrella represents a wide variety of thought. See Note, Round and Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 Harv. L. Rev. 1669 (1982). The statement in the text should not be seen, therefore, as representing the “official” position of the CLS or even the majority of those who work from a critical perspective.CrossRefGoogle Scholar

61 see also Hunt, Alan, Marxism and the Analysis of Law, in Adam Podgorecki & C. J. Whelan, eds., Sociological Approaches to Law (London: Croom Helm 1981), and Mark Tushnet, Marxism as Metaphor, 68 Cornell L. Rev. 281, 290 (1983).Google Scholar