What the judiciary can learn from Karl Marx

Karl Marx was born in Trier in 1818 — two hundred years ago. His importance spills over. Now it is reported that the UK Financial Times, Economist and New York Times declare his relevance, even stating he was right. He also figured in the Supreme Court (EMS Namboodiripad case (1970) where Hidayatullah had to decide whether politician EMS was guilty of contempt for alleging class bias to the judiciary.

JAG Griffiths had made a similar comment on the English judiciary in a book in 1970 that was hailed as a controversial classic. No question of it being contempt was raised. Shiv Shankar escaped EMS’s fate on the same fate by pleading he was wrongly quoted.

Bourgeois laws

In the Namboodiripad case, the Court was hell-bent on proving that EMS, as well as Krishna Menon who argued the case, were wrong about their Marxism, provoked because Menon “sneered that many people learn about communism through Middleton Murray”.

To disprove this Hidayatullah went all over the place suggesting that Marx was not alone in rooting for the underdog because so did Auguste Comte, Fenerbach and Hegel! This was as shocking as his summary of Das Kapital in one paragraph, the Communist Manifesto in the next paragraph and Lenin in the next few paragraphs.

Hidayatullah concluded that even though laws were class biased, there was “no castigation of the judiciary as being dishonestly ranged against the people... and judges do not consciously take a view against the conscience or their oaths.” But surely they have a bourgeois conscience upholding bourgeois laws dictated by capitalist need.

Of course, studies of the Black Act by EP Thompson show judges with some sensitivity giving the law a double edge. Don’t marginalise judges but don’t go overboard. But that is beside the point. Hidayatullah found EMS “lowering the prestige of judges and courts in the eyes of the people.” But wait, the sentence was reduced to 50 because Hidayatullah exposed EMS’s error about the true teachings of Marx and Engels.

This is hardly justice to Marx’s contribution, which is so mechanically presented by a hastily put together research. Marx made us rethink history, economics, the situation of the working class and the class divide, capitalism and continuing action to achieve a fairer political and legal system to achieve substantial equality to correct the asymmetries of power.

The history of the second half of the 19th century and 20th century show these struggles not just in Russia but elsewhere, albeit not necessarily armed struggle. Indeed Marx had written to Kugelman in 1870 that Holland and England could be achieved through the system and a different kind of struggle.

The economic theory of Marshal and followers looked at things differently addressing capitalist and market concerns as opposed to structural oppression and injustice. Engels in his famous letter to Bloch (September 21, 1890) totally refuted the "mechanistic" theory of history attributed to Marx and Engels.

New Imperialism

The fact that communist countries went astray does not obliterate Marxist analysis in the sense that, sub silentio, we are all Marxists today. Today, colonial imperialism has been replaced by dominant imperialism, through a “free” market that will give justice on its own terms.

Finance capital and the new imperialism has to be understood with more data being available than before. What shouldn’t happen is to brand Marxist theory as tyrannous because state socialism in particular forms lost their way. But Marxist analysis of present-day capitalism is more necessary today than ever before.

There is a vast difference between explanation and understanding, characterised by the terms erlaken and verstehen. Our contemporary world has to face the division between rich and powerful nations, of endemic levels of poverty within nations, of the marginalisation of welfare, of monopoly capital in its new-imperial form.

We are almost faced with situations that seem impassable, of living in an interpreted world where the struggle over meaning is controlled and clouded. If the worse has happened, the worst is yet to come. A group of judges after the Emergency led by Krishna Iyer had a far greater grasp on the ground realities than the ones before them and those that followed. Justice as a bourgeois contribution is not easy to prise open.

Lessons to learn

For those who see the bearded Marx as the perpetually angry revolutionary are not wrong. Mary Gabriel’s Love and Capital (2011) shows the softer side to him. He hears children and looks out of the window. He thinks they might be his grandchildren but they are not.

His daughters imbibed the revolution as indeed many of us who have accepted that struggle must continue for a fairer and just world. For that, Marx belongs to his age and to ours if we are less churlish about him than our Supreme Court. He was born two centuries ago and threatens to survive more than a bit longer.

As lawyers and jurists, we need a more sophisticated approach to law both as oppression and a possible deliverance. But its purposes are ill-served by waiting for a revolution to happen or going wrong. Law has become an arena of struggle to mitigate losses and turn things around.

If Namboodiripad was guilty, so am I for calling judges “typical metropolitan Indians, technically unpredictable and suffering from an over-sensitive opinion of their lonely and unparalleled position.” This was in 1976. I really think all judges need to take lessons in Marxism to test what they don’t know but should.

(Courtesy of Mail Today)

By: RAJEEV DHAVAN