The University of Texas at Austin

Law in Popular Culture collection

ALSA Forum
Volume 4, Number 3 (1981)
reprinted by permission Legal Studies Forum

THE CONCEPT OF IDEOLOGY AND ITS
APPLICABILITY TO LAW AND LITERATURE STUDIES

HAROLD SURETSKY*

Introduction

     Writings dealing with the relation of law to literature date back
to antiquity.1  The openness and seriousness which Plato and
Cicero brought to the topic, however, are notably lacking from
most of the considerable literature on the subject which has
grown up over the past century. Much of this work appears in the interstices of the
journals of legal associations, generally providing a brief reflective apologia for
belles lettres between lengthier articles on new developments in torts, contracts and
real estate law.
     Written from the point of view of professionals secure within the apparently
everlasting framework of bourgeois society, those pieces present a more or less cul-
inary perspective: literature seen as a seasoning or subtle spice for the lawyer's
professional cuisine. It is only recently, in what Professor J. Allen Smith of  Rutgers
Law School-Newark, has aptly termed a "renaissance in law and literature,"2
that a view of literature as a source of truth which can help to analyze and criticize
the law itself and to define its societal roles more clearly has been prominently
represented.
    As David Papke has pointed out in "Law and Literature: A Comment and Biblio-
graphy.  Secondary Works,"3 one of the major contemporary approaches to the use 
of literature in legal studies has been influenced by the work of Max Horkheimer and 
Theodor Adorno, theoreticians associated with the Institute for Social Research (the 
so-called Frankfurt School).4 From the perspective of this approach, literature, by
heightening the contrast between social demands and the "interior life" of man,5
reveals the illusionary and ideological character of the false consciousness which

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sees the law and legal systems and institutions as neutral or altruistic. However,
to designate this approach Marxian may be mistaken since Marx himself appears to
absorb literature as well as law under the rubric of ideology. Marx developed his
concept of ideology in his early writings, and it might be helpful to turn to these
writings to see how this concept might, or might not, provide a consistent theoretical
framework for a more current Marxian-oriented approach to the study of law 
and literature.

Marx's Concept of Ideology

     In the framework of Marx's thought, the concept of ideology is the central
category for relating expressions of human consciousness to the economic basis of
social life which is said to condition them. Marx developed this concept most prom-
inently in the German Ideology, a posthumously published early work written as a
polemic directed at some of the Idealist conceptions of the Young Hegelian move-
ment which flourished in Germany in the early nineteenth century. The concept, as 
expressed in this early work, appears to be used in a very broad sense to indicate
simply "the life process of . . . individuals, . . . as they may appear in their own
or other people's imagination, - - . what men say, imagine, conceive . . . men as
narrated, thought of, imagine, conceived, . . ."6 Marx sometimes seems to use the
concept of ideology to imply false consciousness, sometimes not. Nonetheless, he is
consistent in emphasizing the dependency of the ideational superstructure upon the
economic base:
Life is not determined by consciousness, but consciousness by life.
In the first method of approach the starting point is consciousness
taken as the living individual; in the second method, which conforms
to real life, it is the real living individuals themselves, and con-
sciousness is considered solely as their consciousness.7
     The critical thrust of Marx's concept of ideology consists in the exposure of
bourgeois ideas as a distorted expression of distorted and inhuman social relations.
But this critical thrust does not exhaust the concept.

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     In light of Marx's historical dialectical methods, the life-consciousness
relationship is not strictly one-sided, causal and mechanical. Nowhere does Marx
state or imply that consciousness or ideology has no effect on history, simply that
it has no history of its own.
The phantoms formed in the human brain are also, necessarily, sublimates
of their material life-process, which is empirically verifiable and bound
to material premises. Morality, religion, metaphysics, all the rest of
ideology and their corresponding forms of consciousness, thus no longer
retain the semblance of independence. They have no history, no develop-
ment; but men, developing their material production and their material
intercourse, alter, along witli this their real existence, their thinking
and the products of their thinking.8
     Ideological forms express and are subject to contradictions of social processes.
The concept of social and economic contradiction, according to which a social and
economic system must, for the sake of its own prospering and development, nurture
those very forces which bear the seeds of its destruction is basic to Marx's thought.
In relation to the social processes set in motion by internal contradictory forces,
ideological expressions can serve progressive and regressive ends. Within them
truth and falsehood are mediated. Moreover, ideology, as a necessary social pro-
duct and as an expression of distorted social relations, seems to presuppose a norm-
ative idea of justice or right against which existing social conditions are measured.
It implies the notion that these conditions are at the very least problematic and
present themselves to the consciousness of individuals as standing in need of
justification. Thus the relationship between social reality and ideology is itself
by no means static and without contradiction.

Ideology and Literature

     In his student years Marx wrote poems and even a novel and a play, but as an
adult he subordinated literary interests to history, politics and economics. He
produced no major treatment of a novel or a writer and certainly no extended work
in literary theory. As a result, scholars and teachers anxious to articulate a
Marxian theory of literature must extrapolate from the brief comments on literature
distributed throughout Marx's works and also proceed from general Marxian pre-.
mises.

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In the context of this endeavor Marx's concept of ideology is of crucial im-
portance.9
     Given the tendency of vulgar Marxian critics to equate literature with ideology
and to treat writers as mere prisoners of false consciousness, it is important to
underscore Marx's unwillingness to do either. Marx conceived of literature as an
ideological expression of social relations and as a source of truth, and if anything,
his Enlightenment conditioning prompted an emphasis on the latter. According to
Marx the social contradictions which inform a given literary work may be so
mediated within the work as to provide true and penetrating insights into human
life. Whatever ideological preconceptions the writer entertains, the writer may
present subjective aspects of life, distort facts or achieve sensual forms in ways
which reveal human realities hidden behind ideological expressions. Indeed,
Marx found this to be the case even in the work of writers who were consciously
motivated by conservative or reactionary ideas.10
     One may further clarify Marx's view of ideology and truth coexisting in a
literary work by referring to his more explicit comments on religion. Like
literature, religion was for Marx an area of consciousness within ideology; as
such, religion is capable of distorting:
Man is the human world, the state, society. This state, this society,
produce religion which is an inverted world consciousness, because they
are an inverted world.11
However, religious consciousness may also have another, more truthful aspect.
Religious suffering is at the same time an expression of real suffering
and a pro test against real suffering. Religion is the sigh of the
oppressed creature, the sentiment of a heartless world, and the soul of
soulless conditions.12
The Hungarian critic Georg Lukacs and British academic Raymond Williams are
perhaps the most faithful twentieth century elaborators of Marx's understanding of
ideology and literature, although Lukacs and Williams have hardly won the full.
endorsement of other Marxian scholars. French Marxian theoreticians Louis
Althusser and Peter Macherey, to name only two, have also attempted to elaborate

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the relationship of ideology and literature. While Marx's basic position is clear,
many important secondary questions regarding ideology and literature remain to be
debated.13

Ideology and Law

     Marx attacks the concept of law as a structure standing above society, as an
independent force with a history of its own, a concept paralleled in literary
studies by the New Criticism's views of literature and literary texts. He finds
in legal ideology the same difficulty as in other areas of ideology: the ideol-
ogists, consigned by the prevalent division of labor in a given social structure to
develop their expertise in a certain branch of ideology, develop, along with this,
the illusion that the subject which they study determines social life as a whole.
Thus jurists tend to believe that the law and the state determine the life of
society as a whole, and indeed their own daily activity leads them to this belief.
In the Marxian view, however, it is social life, particularly its economic aspects,
that determines the nature of law and the state in a given society.
    The illusion of contracts as the subject of free wills of individuals abstracted
from their social status is seen as one of the chief props of bourgeois ideology,
dating from a very early time.14 It is this very abstractness of bourgeois legal
ideology which makes it possible for its ideas to be formulated in general terms,
as applying to all citizens equally.
     The generalizing expression of class rule typical of bourgeois societies serves
to generate support for a society governed by legal principles which ostensibly
give equal protection to all. These principles acquire great and widely accepted
moral power. The promise of equality, which intially served to enlist the support
of the lower classes for the bourgeois revolution against the feudal order, is
betrayed, however. In reality, the effects of bourgeois law on people of differing
social classes are vastly different. The consciousness of this difference can be
a weapon at times in the ideological arsenal of workers' resistance and revolution

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against the bourgeois state. It assumes powerful form in the prose of Anatole
France:
The majestic equality of the laws . . . forbids rich and poor alike
to sleep under the bridges, to beg in the streets, and to steal their
bread. This equality is one of the beriefits of the Revolution. 'Why,
that revolution was effected by madmen and idiots for the benefit of
those who had acquired the wealth of the crown. It resulted in the
enrichment of cunning peasants and money-lending bourgeois. In the
name of equality it founded the empire of wealth.14
     There is another factor which furthers the use of bourgeois ideology in the
expression of the rights of nonbourgeois groups: time. The legal ideology of a
ruling class is the heritage of past social conditions and struggles. It does not
change as rapidly as do social conditions. This "lag" sometimes leads to conditions
where a potentially rising class uses the ruling ideology against a ruling class
which believes it can no longer live up to even a pretense of its own ideology.
The earlier ideas of a ruling class may thus become part of the struggle of an
insurgent class to force the ruling class to live up to the tenets of its own ideo-
logy.16
     In sum, it appears that bourgeois legal ideology can be used as an ideal by
insurgent groups, a true picture, not of what exists, but of what ought to be
striven for. Like literature, law can be viewed as an ideological vehicle both of
distortion and truth.

Conclusion: The Significance of the Marxian Concept
of Ideology for Law and Literature Studies

     I have attempted to argue that the Marxian concept of ideology is not limited
in meaning by the idea of false consciousness. Even when "ideology" is used to
embrace both law and literature as socially-conditioned expressions of conscious-
ness, it does not invalidate a concept of literature as a source of truth for law. Indeed,
it can provide a viable theoretical framework for such a view. I should like now
to show how this can be done in terms of several major perspectives which have 
appeared in the current renaissance of law and literature studies.
     (1) Law and literature as forms of written and spoken expression and objects

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  of textual interpretation.
     In an article entitled "Reading Law and Reading Literature,"17 Professor
Kenneth S. Abraham of the University of Maryland Law School discusses similar-
ities and differences in legal and literary interpretation through a description of a
joint seminar in law and English. He sees the question of meaning as a central
problem in textual interpretation, legal or literary, and describes some uses and
limitations of some of the major literary theories of meaning. The "notion that
meaning adheres in the words of a text alone" is dismissed as naive and untenable,
and thus the need for principles of interpretation which look for guidance beyond
the language of the text becomes clear. In this regard, the Marxian concept
of ideology provides a framework for exposing the falseness of interpreting any
text, legal, literary, or otherwise, independently of its social origins and
implications. Both legal and literary texts can he seen as ideological expressions
of social conditions, distorted by these conditions and at the same time having the
potential to expose these conditions as themselves distorted, from the point of
view of human ideals not limited by the ruling ideological conceptions.
      (2) Law and literature as value-laden ideal constructs whose relations
cannot be understood in terms of the value-neutral orientation of positivist thought.
     Professor J. Allen Smith of Rutgers Law School-Newark, a pioneer in the current
renaissance of law and literature studies, sees the overcoming of the positivist
assumptions prevalent in Anglo-American thought as a crucial step in developing
a cohesive theory of law and literature.18 Positivism separates values, which are
perceived as subjective, from truth, which is seen as a matter of objective facts.
Therefore, it cannot see literature (a social medium through which value-laden
individual subjectivity is given form and expression) as a source of truth for law
(a social institution which limits subjectivity by fixing objective rights and
responsibilities). Within the framework of the Marxian concept of ideology,
however, a given society and its institutions can only be viewed from a perspective
of values which are both social products and points of orientation from which

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societies can be judged. This concept thus provides at least a perspective for
understanding the relevance of literature as a source of truth for law.
     (3) Literature as a liberator of sentiment and knowledge, capable of broad-
ening the consciousness involved in formal legal decision-making.
     Professor John Bonsignore of the University of Massachusetts at Amherst19
and Professor Elliott M. Abramson of Willamette University20 see literature and
the humanities as liberators of sentiment and knowlege, concerned with justice,
social problems, and political conflict. Their approach seems cogent since liter-
ature, as an ideological vehicle of subjective experience, is not obligated to
attempt to resolve the contradictions of a given social order, only to express them
in aesthetic form. This form provides a certain liberty to be truthful which is
not always available to other ideological forms. The broadening of consciousness
which may result can unlock feelings and shock the reader into an awareness of
closeness with characters portrayed as having such experiences and with hitherto
repressed aspects of the reader's own self. The concept of ideology is thus con-
sistent with the view of literature as a liberator of sentiment and knowledge,
dealing with events, experiences, and issues which in some cases become the sub-
jects of legal decisions, and perhaps broadening the consciousness of people who
may be involved in the fashioning of those decisions.
     (4) Literature as negation, as demystifier of social institutions, and of
"what is" generally, pointing toward visions of a better life and toward possib-
ilities not present, in opposition to the conservative judicial concept of
stare decisis, binding present and future decisions by those of the past.
     This point of view is particularly prominent in the works of Herbert Marcuse,
and it is supported by Professor Abramson and Professor Judith Koffler of Pace
University School of Law.22 According to Marx, the dominant ideas in a given
social order are the ideas of the ruling classes. These ideas characterize the
prevailing ideology, as Marx defines it, and they tend to view existing social
relations as in some sense permanent, ignoring, minimizing, or distorting the

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 significance of those social forces and classes which cannot develop fully within
the confines of these relations. They are not, however, the only ideas. The
broadening of sympathy and consciousness through literature mentioned above can
expose the contradictions between existing social relations and human needs and
powers which demand new relations. Accordingly, in contrast to the legal principle
of stare decisis which attempts to fit social realities into legal forms, lit-
erature, even as a branch of ideology, can point to the need to remold existing
social forms in accordinace with human realities.

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ENDNOTES

* Acquisitions Librarian, Rutgers School of Law

1. See Plato, The Dialogues of Plato, 4th ed., Vol IV, The Laws, trans. Jowett
(Oxford, 1968), pp. 225-226, 385,; and Cicero, Murder Trials, trans. Grant
(Harmondsworth, 1975), pp. 53, 63-64. For an overview of more recent writings,
see David Papke, "Law and Literature: A Comment and Bibliography of Secondary
Works," 73 Law Library Journal 421 (1980); and Harold Suretsky, "Search for a
Theory: An Annotated Bibliography of Writings on the Relation of Law to
Literature and the Humanities," 32 Rutgers Law Review 727 (1979).

2. J. Allen Smith, "The Coming Renaissance in Law and Literature," 7 Maryland
 Law Forum 84, 84 (1977), reprinted in 30 Journal of Legal Education13,
 13 (1979).

3. Papke, pp. 423-24.

4. Adorno and Horkheimer are not the only associates of the Frankfurt School
to have an effect on law and literature studies, It is Herbert Marcuse who, more
than any other former member of the Institute, has spread the influence of its
basic outlook in the United States. And this influence, as well as that of
another associate of the Institute, Berkeley sociologist and historian of
literature Leo Lowenthal, is strongly marked in current law and literature
studies. The Institute for Social Research, a landmark of Weimar culture,
was founded in 1923, and for the majority of its most productive and most
influential years (with the exception of exile in Paris, Geneva, and Now York
during the National Socialist regime) it was located in Frankfurt, Germany.
Funded by a well-to-do emigre Jew named Hermann Weil, it provided an oppor-
tunity for scholars to pursue a critical, Marxian-oriented approach to social
analysis which would have been impossible elsewhere in Germany, or perhaps
in the world. Its approach to society and to Marx's own work is based on a
considerable respect for the metaphysical background of German Idealist
thought; and orthodox Marxists, as well as many not-so-orthodox Marxists,
would probably consider the work of the Frankfurt School to be outside the
framework of Marxism. See Martin Jay, The Dialectical Imagination (Boston, 
1973)

5. For an elucidation of this idea, see Leo Lowenthal, Literature, Popular 
Culture, and Society (Englewood Cliffs, 1961).

6. Karl Marx and Frederick Engels, The German Ideology, ed. C. J. Arthur
(New York, 1970), pp. 46-47. This is not the only possible definition of 
ideology that can be culled from Marx's writings. It is, however, probably 
the broadest, and thus suits the purposes of our argument; namely, that 
Marx' concept of ideology can provide a framework for a view of 
literature as a source of truth for law. It should be borne in mind, as a 
caveat, when attempting to define Marxian concepts. that Marx conceives 
of society "relationally," not in terms of mutually exclusive factors, but in 
terms of relations, so that any particular factor is only partially manifested 
from any given point of view. "In the study of economic categories, as in 
the case of every historical and social science. it must be borne in mind 
that as in reality so in our mind the subject, in this case modern bourgeois 
society, is given and that the categories are therefore but forms of 
expression, manifestations of existence, and frequently but one-sided
aspects of this subject, this definite society." Karl Marx, A Contribution
to the Critique of Political Economy, trans. Stone (Chicago, 1904), p. 302.
"Thus 'ideology', for example, refers at times to all ideas, sometimes to
normative and other ideas which are considered unscientific, and sometimes to
such ideas only in so far as they serve the interests of a class." Bertell
Ollmann, Alienation: Marx's Conception of Man in Capitalist Society (Cam-
bridge England, 1971), p. 6. Ollmann's book is an excellent introduction to Marx's
relational view of seeing and presenting social reality.

7. Marx and Engels, The German Ideology, p. 47.

8. Ibid., p. 47.

9. For a thorough discussion of Marx's writings on art and literature see Maynard
Solomon, Marxism and Art (New York, 1974), pp, 3-21.

10. S. S. Prawer, Karl Marx and World Literature (Oxford, 1976). p. 98,

11. Karl Marx, Early Writings, ed. Bottomore (New York, 1964), p. 43.

12. Ibid., pp. 43-44.

13. For a summary of Althusser and Macherey's thoughts on ideology and 
literature see Terry Eagleton, Marxism and Literary Criticism (Berkeley, 1976), 
pp 16-19.

14. Marx and Engels, The German Ideology, p. 81~

15. Anatole France, The Red Lily (New York, n.d.), p. 80.

16. See Michael Tigar and Madeleine R. Levy, Law and the Rise of Capitalism
(New York, 1977), especially pp. 288-89; see also Arthur Kinoy, "The Role of the
Radical Lawyer and Teacher of Law," in Law Against the People, ed. Lefcourt
(New York, 1971), p. 283.

17. ALSA Newsletter, Nov. 1976, p. 31.

18. 9 University of Hartford Studies in Literature 213 (1977).

19. ALSA Newletter, Jan. 1976, p. 11.
 

20. 30 Journal of Legal Education 27 (1979).

21. ALSA Forum, May 1978, p. 5

22. See for example, the following remarks from Marcuse's last published 
work on aesthetics: "A work of art can be called revolutionary if, by virtue of
the aesthetic transformation, it represents, in the exemplary fate of indivi-
duals, the prevailing unfreedom and the rebelling forces, thus breaking through
the mystified (and petrified) social reality, and opening the horizon of
change (liberation)." "In this sense, every authentic work of art would be
revolutionary, i.e., subversive of perception and understanding, an indictment
of the established reality, the appearance of the image of liberation."
Herbert Marcuse, The Aesthetic Dimension: Toward a Critique of Marxist
Aesthetics (Boston, 1978), p. xi. 

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