Marxist analysis of law is perhaps one of the most fascinating and protean contributions to legal theory. The volatility of Marx’s analyses emerges from the fact that the wellspring of his theory of law is in historical materialism, a factor that makes it less of a legal theory amongst the mainstream discourses. This exclusion may be demonstrative of how a predominantly positivist, doctrinal legal discipline has been unwilling to treat political power and the role of capital in law. However, it should not blind us to what the Marxist analysis of law has excluded in its robotic labyrinth of base and superstructure, a few notable exceptions aside.
A useful critique of classical Marxist legal analysis was made earlier on by Kelsen in his pure theory of law, which contradicted Pashukanis’ assertion that the objective realities of law are ‘fantasies of jurists’. Kelsen’s general theory of law, which was agnostic to relations of production, fell in a spectrum between science of law and sociology of law. The advantage of Kelsen’s arguments, however, remains that his theory was a structured critique of positivist law and allowed for contemplations about subjective valuation, i.e. the role of agents, such as judges, and an acknowledgement of legal processes creating values—relational or otherwise.
Indigeneity, Settler Colonialism, and the Many Forms of Law
While Marx insists on the law being a part of superstructure created by material conditions of production, this reading erases the possibility that law itself is material and has a complicated relationship with its subjects, such as those governed by it and produced in the courts through various capacities. The expansion of settler colonial studies and the movement for decolonisation in academic and research spaces has alerted some academic disciplines to the vitality and necessity of the voices of indigenous peoples. Marx’s writings and Marxist legal theory need a ‘bringing up to speed’ to abandon the language of resource exploitation, which denies agency to the First Nations and recognising a ‘more-than-material’ relation that indigenous communities share with the factors of production.
John Bellamy Foster and others have passionately defended Marx’s writings from criticisms of being agnostic to the ‘indigenous turn’ in the critique of the interface between capitalism and colonialism. They contend that Marx’s understanding of settler societies, manifest in his hitherto understudied Ethnological Notebooks, further elaborates his insights into expropriation, enslavement, and dispossession that characterises colonial rule. Somewhat self-defeating arguments such as this are also mirrored in classical Marxist legal theory’s unwitting blindness to versatile cosmologies of indigenous legal engagement. Forcing the base/superstructure framework on indigenous legality obfuscates indigenous legal engagement with settler laws and institutions, as well as the contributions such encounters have made to jurisprudence.
Indigenous legal and environmental relationship rests within the framework of ‘a world of many worlds’. Both indigenous sovereignty and environmental justice are tied to the question of land, which is metonymous with the environment. Although extractive capitalism steals the land, dispossesses its people, and redirects the loot to the processes of commodity production, settler-colonialism intends to govern, and erase lives outside of capitalist production. Understanding this requires both theoretical and methodological innovation, which, in some ways, have been successfully achieved by scholars like Patrick Wolfe and Lorenzo Veracini. Veracini identifies the need for settler-colonialism to imagine beginning its operation in a vacuum while methodically eliminating the indigenous. He argues that unlike colonialism and imperialism’s relation to markets and labour, “…settler colonialism merely appropriates. It does not desire indigenous labour; it simply wishes indigenous people to vanish.” Under settler domination, notions of law or the rule of law remain alive even in the killing fields governed by a State that poisons aboriginal labourers after they serve the capitalist.
Negotiating Law and Courts: The Indigenous Way
Povinelli conceives of ‘late liberalism’ as a distinct periodization to analyse the legal and political structures of neoliberal settler colonies. She approaches the extractive and exploitative capital without perpetuating a hidebound historical materialist paradigm. Her Geontologies: A Requiem to Late Liberalism does the heavy lifting of understanding a non-western conception of law and its encounters with settler laws. Instances from Australia, where laws have been used to both respond to and spark social changes, illustrate how law is not singularly a weapon in the hands of the capitalists or the State to maintain the structures of capitalism. The First Nations of Australia continue to fight for their land and sovereignty while sustaining a striking distrust towards the settler State, its laws and legal institutions. In 1992, Mabo (No.2) v Queensland overturned the doctrine of terra nullius, leading to the enactment of the Native Title Act in 1993. The enactment of the legislation marks one of the landmark moments of indigenous engagement with the settler law. Courts have not only been the avenues to contest the rights and wrongs of administrative or executive actions but also a place to articulate many conceptions of justice, both measurable and incommensurable.
Northern Territory v Griffith and Others, in which the Australian High Court allowed an appeal from the Full Federal Court on compensation claims for extinguishment of the native title, provides a point of convergence for understanding the diversity in time, space, and form of law. The compensation claim by the aboriginal claimants was against the Northern Territory government, which had granted tenure and carried out public works in the town of Timber Creek, thereby extinguishing the native title and interests. The court upheld the claims for economic loss and termed the third category of claim as ‘spiritual loss’, recognising the special connection and relationship claimants share with the land and opening up new avenues of indigenous environmental justice discourse.
The courts creating categories of redressal where the law does not explicitly provide for one are an exercise in achieving justice that is counterintuitive to procedural and substantive constraints of the law. They testify to the mutability of law and to the possibility that at several junctures, law separates from the State and accompanies justice. The legal articulations of indigeneity aim at the latter, as witnessed in post-Mabo Native title struggles, or as seen in the contemporary movement for constitutionally enshrined indigenous voice in Australia. We need to distinguish between the settler colonial agenda and the outcomes of settler colonialism. The latter lends itself to alterations by many actors, including the indigenous communities. In Australia, this is evident in the struggle for land through law and for recognition through the Constitution. Indigenous communities demand the return of the land not as a factor of production but as a conduit for maintaining their identity.
Marx falters in terms of methods when understanding both law and the place of Indigenous peoples in the context of colonial, capitalist exploitation. It was not first of his omissions. As Silvia Federici points in understanding women’s labour and social reproduction:
“Why procreation should be a ‘fact of nature’ rather than a social, historically determined activity, invested by diverse interests & power relations, is a question Marx did not ask.”
Federici’s work does not declare Marx’s contributions to be wrong but clarifies that theory and critique cannot be complete unless the relevant questions on what voices belong in the analytical schemes are reconsidered. There were several more questions that Marx did not ask, which the movement for decolonisation has now brought forth. It does Marx an honour to look beyond capital and labour and recommence building the theory from where he left. As Federici argues, history of primitive accumulation cannot be fully comprehended until it is rewritten from the viewpoint of the colonised and the indigenous people.
Admittedly, both Marx and Kelsen lacked the hindsight of exceptional indigenous scholarship or insights of the decolonisation movements. We will have to search for a theorisation of law beyond its role as an appendage of bourgeois ideology to understand the law’s relationships with the First Nations meaningfully. Both the base and superstructure are going to be unhelpful allies in this process. For that matter, Pashukanis cites Engels on the usefulness of definitions: “It is also wrong to demand more from a definition than it can give; it is wrong to forget the inevitability of its insufficiency.” It is hard to imagine if either of them would have grave objections should we use the same argument about the Marxist legal theory.
I am grateful to Rob Hunter for his comments on the initial draft of this essay