Challenging the Rule of Law Universalism: Why Marxist Legal Thought Still Matters

Abstract

The primary aim of this article is to present the rule of law universalism as a relevant theoretical and socio-political issue that critical legal thought needs to contend with. In order to do so, this issue is described through a Marxist theoretical framework, which aids in identifying the consequences of this universalism. Furthermore, the Marxist theoretical framework is suggested as a countermeasure that allows for going beyond it. The rule of law universalism is analysed as a process connected to establishing hegemony and status quo that affects both the way the law is thought of and practiced. The post-communist context serves in fleshing out some of these consequences. Although the transition is not the main subject of inquiry, it is a starting point to a set of philosophical questions directed towards the rule of law universalism, mainly regarding historical embeddedness and socio-political dependency of the rule of law. The transitional context illustrates the tension between the rule of law treated as a generalized blueprint and the reality it is introduced to. The method of approach to this tension argued for in this paper is Marxian theorization of concept as an interplay between concrete and abstract that underlies historical materialism. This movement within concept is juxtaposed to the universalism. The philosophical investigations are followed by findings from Marxist legal theory that pinpoint the importance of concrete interventions into the legal theory that abate its ever-growing abstractness. In particular, the import of knowledges and practices divorced from the capitalist system is brought into focus. The paper concludes with a brief assessment of the possibility of overturning the rule of law universalism and a discussion on the emancipatory potential of law.