It is a basic shibboleth of Marxist thought that the law is structurally biased in the interests of capital over labour. Whether this is expressed through the language of base and superstructure, form determination or internal relations, an account of law as ultimately serving the interests of the ruling classes of specific social formations constitutes one of historical materialism’s distinct contributions to legal analysis. However, all too often this role of law has been asserted rather than demonstrated. Marx and Engels’ formulation of the state as the ‘executive committee’ of the bourgeoisie, whilst central to an historical materialist analysis, nevertheless risks occluding the complexities of the legal form and the deeply contradictory way it is pressed into the service of both capital and labour. I have often regarded law as something of a ‘black box’ for much progressive political economic work; whilst a broad observation of law’s functionality for capital is made, the actual internal processes by which the law exercises this function, and the role of the judiciary in executing it, are often out of view.
