Umut Özsu (Carleton University) has published Marx, Marxism, and the Critique of Law, 88 Law and Contemporary Problems 27 (2026). Here is the abstract:
This article attempts to clarify some of the sources and stakes of Marxist legal theory today. It proceeds in several stages. In Part II, I provide a brief overview of Marx’s own engagement with questions of law, rights, and the state in the first volume of Capital, the only volume he completed and saw to publication. Formally educated in law, Marx’s abiding interest in legal ideologies, instruments, and institutions is palpable throughout his writings, both published and unpublished. I focus on three portions of the first volume of Capital that are especially important from the perspective of legal and socio-legal theory: the opening chapters, which discuss commodities, labor, money, and value; chapters ten and fifteen, which concern class struggles around the length and intensity of the working day; and chapters twenty-six through thirty-three, which relate to the origins and presuppositions of capitalist production in and beyond Europe. Capital, I suggest, is under-appreciated for its attentiveness to law’s role in capitalist social relations.
In Part III, I show that the complex handling of law in Capital is in keeping with Marx’s life-long concern with questions of law, legality, and legal ideology, evidenced as early as his political essays, philosophical studies, and journalistic interventions in the early to mid-1840s. Taking up the work of Evgeny Pashukanis and Nicos Poulantzas, I argue that different forms of Marxist legal theory may be generated on the basis of different readings of Capital and Marx’s other writings, particularly as they engage questions of law, the political power and juridical authority of the state, and social struggles waged at least partly in the language of rights.
In Part IV, I concretize the implications of Marx’s nuanced understanding of law by considering the degree to which it can be said to possess “constitutive power”. Using Katharina Pistor’s influential recent study of private law as an illustration of how law’s ability to shape social relations may be exaggerated, I demonstrate that Marx and Engels understood acutely how juridico-political developments both foster and fetter the socio-economic dynamics that drive capital accumulation. Typically misread as dismissive of all things “superstructural”, Marx and Engels were keenly aware of law’s ability to feed back into the constitution of the “base”, even as they consistently maintained the latter’s primacy.
In Part V, I conclude the article with some brief remarks about Marx’s views on the transition to full communism, a condition that he and Engels thought would be realized through a succession of social transformations so sweeping as to usher in the decisive dissolution of the state and its laws. While Marx refrained from offering detailed blueprints for post-capitalist social relations, he repeatedly invoked the need for a full-scale “expropriation of the expropriators” that would result in the creation of a workers’ state capable of eliminating capitalist private property and instituting common possession of means of production, thereby laying the groundwork for a classless society in which law and the state would eventually become substantively superfluous. If legal scholars are serious about understanding the character and composition of capitalist law, not to speak of its supersession, these and other arguments in Marx’s complex and multi-vocal corpus remain as vital as ever—not because they are canonical or possessed of scriptural authority, but because the spirit of angry critique that animates them encourages direct confrontation with law’s inherence in capitalism’s social ontology.
Jeremy Kessler responds in Does Law Constitute Society?, 88 Law and Contemporary Problems 57 (2026); an earlier version of Kessler’s essay was previously featured on Legal Theory Blog.
Highly recommended!
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Lawrence Solum