The Concept of Socialist Law 0198252463

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THE CONCEPT OF SOCIALIST LAW

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THE CONCEPT OF

SOCIALIST LAW Christine Sypnowich

CLARENDON PRESS • OXFORD 1990

i Oxford University Press, Walton Street, Oxford OX2 6DP Oxford New York Toronto Delhi Bomba)' Calcutta Madras Karachi Relating Jaya Singapore Hong Kong Tokyo Nairobi Dar es Salaam Cape Town k Melbourne Auckland | and associated companies in I Berlin Ibadan Oxford is a trade mark of Oxford University Press

Published in lhe United Stales by Oxford University Press, New York © Christine Syftnondcli rggo

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without lhe prior permission of Oxford University Press British Library Cataloguing in Publication Data Sypnowich, Christine The concept ofsocialist law. 1. Law. Socialist theories I. Title 340'.! ISBN 0-19-825246-3 Library of Congress Cataloging in Publication Data Sypuowich, Christine. 'Hie concept ofsocialist law / Christine Sypnowich. Revision of the author's thesis, Oxford University, 1987. Bibliography: p. Includes index. 1. Law and socialism. I. Title. K3S7.S88 1990 3-/o'.,l5—dc20 89-15985 ISBN 0-19-825246-3

Typeset by Hope Services, Abingdon Printed in Great Britain by Biddles Ltd, Guildford and King's Lynn

For My Parents

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Preface It belongs to man to judge the law at the risk of being judged by it. Maurice Mcrlcau-Ponty1

This book aims to refute the idea advanced by socialists, and particularly Marxists, that an ideal socialist society would have no need of law. The rejection of law is symptomatic of a larger failing in Left­ wing thought: the neglect of the entire realm of politics, culture, and law, the ‘superstructure’, which according to orthodox Marxist theory is determined by the more fundamental realm of the economy. While Marxism has made an important contribution to the critique of capitalist economic relations, its political significance has been crippled by an inability to consider seriously the fate of the superstructure once capitalist relations arc swept away. The principal manifestation of what one writer calls this ‘deepening crisis in Marxist theory’2 is that the Left can say very little about the ways in which an ideal socialist society would be governed. While Marx repeatedly affirmed that ‘men need and always have needed each other’, he seldom examined how this need was to be met in a freely chosen political framework; state and law arc said to simply ‘wither away’ upon the full flowering of socialist society. This has proved to be an inadequate response to the problem of the nature of a socialist polity. As I intend to demonstrate, Marx’s project of emancipating man from capitalist property relations requires, not the dissolution of the legal and political spheres, but their reconstitution, however radical. Some clarification of terms is necessary. I use the word ‘socialist’ without defining it in any precise way. By socialism I mean a society where private property in the form of capital has been eliminated and replaced by common ownership of the means of production, thereby permitting a large measure of equality and fraternity in social relations. A more detailed definition would prejudge my analysis which, by 1 Humanism and Terror^ trans. John O’Neill (Boston, 1969). 2 Andrew Eraser, ‘The Legal Theory We Need Now’, Socialist Review, 40-1 (JulyOct. 1978), 147.

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setting out why a socialist society would need legal institutions, seeks to enrich our understanding of socialism itself. To this extent I am in keeping with the spirit of Marxist theory, which considers the business of drafting blueprints for the future a futile task. Marxists hold, no doubt accurately, that the nature of any society cannot help but be determined by its participants in light of the circumstances in which the society emerges. Nevertheless, I do not think this permits socialists to abdicate all responsibility for discussing the nature of the socialist polity. The reluctance of socialist theorists to commit themselves to what Marx derided as ‘recipes for the cookshops of the future” also militates against an attempt to provide a detailed description of a socialist legal system. I have therefore avoided many practical questions. The work is silent on a number of questions: what the nature of a socialist constitution would be, e.g. whether it would be written or unwritten; whether legal decisions would be made on the basis of precedent; what function, if any, higher courts would have; and whether a socialist judiciary would be empowered, like, say, the American Supreme Court, to override legislative decisions. And while some of my arguments may betray a preference for adversarial systems of justice, I do not rule out the possibility that a socialist system of law could adopt an inquisitorial approach. This study seeks only to establish the possibility of a socialist concept of law, not to give a full and definitive exposition of a socialist legal system, code of law, or bill of rights. Similarly, in my use of examples from Soviet legal history, 1 do not seek to supply a comprehensive survey of Soviet legal institutions, or even of Soviet legal theory. Nor do I refer to Soviet cases because I see them as necessarily paradigmatic of the practice of socialist or Marxist theory. Rather, I have selectively chosen some theory and evidence from the ‘existing socialist society’ of the Soviet Union to show how Marxist theory, whether out of optimism, pragmatism, incompleteness, or opportunism, can lend itself to certain interpretations and practices. The term ‘Marxist’ is no more straightforward than ‘socialist’. While it is used to refer to the principles and theories set out by Karl Marx, just what these amount to has notoriously been the subject of both theoretical controversy and political conflict. Marxism has wide meaning: it refers to a conception of socialism, as well as to a view 1 ‘Afterword to the German edition of Capital', MESW 2: 96.

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about how socialism comes about, that is, through the immanent collapse of capitalism and the rise of the working class. Marxism also involves a theory of man and society, and the term Marxist describes an approach to the study of social life found in fields ranging from literature to anthropology. I begin my study by using the word Marxist to refer to an ‘orthodox’ set of beliefs, in particular what I call the ‘withering away thesis’. However, I argue that Marxism should be regarded, not as a biblical canon, but as a dynamic approach to political and social questions, and that it is possible to give up some of its purportedly orthodox tenets without giving up what is essential to that approach. My purpose is to break down the Marxist’s resistance to the concept of socialist law by showing that law is compatible with certain socialist ideas and, indeed, that Marxist theory can inform the analysis of legal theory. In the process, I hope that what constitutes as ‘Marxism’ develops and expands. I would emphasize that while my argument focuses on legal concepts, the study is intended to be an exercise in political theory. In arguing that law is an essential part of the study of politics, I do not pretend to explain the nature of law or legal theory perse. My strategy is to examine the concepts and theories of ‘mainstream’ liberal juris­ prudence to see whether they can be adapted by Marxist theories of socialism, whether they should be, and how. It may be argued that because the institution of law pre-dated liberalism, an attempt to defeat the idea that there would be no law under socialism need not address liberal theory at all. To some extent, however, I accept Marx’s argument that legal concepts reached the apex of their development with the emergence of doctrines of the rights of man in ‘bourgeois’ societies. And I believe that the wealth of theory on justice and rights which has appeared since the time of Marx justifies a focus on a liberal perspective. Furthermore, influenced by the rise of socialist and social welfare ideas in this century, contemporary liberal theory is now a particularly rich source for fruitful analysis of the problem of socialist law. I thus adopt C. B. Macpherson’s strategy of‘retrieval’, trying to do for law what he has done for democracy, that is to extract the valuable moral and political insights of liberal theory in order to reconstitute them in a socialist framework.4 4 Indeed, Leo Panitch argues that, in light of Marxism’s deficiencies, Macpherson’s message must be that it is arguable that only liberal democratic theory ‘can truly address the question of the individual and the state in a classless society’, ’Liberal Democracy and Socialist Democracy: the Antinomies of C. B. Macpherson’, in Ralph Miliband and

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This book is a revised version of my D.Phil. dissertation, presented at Balliol College, Oxford, in 1987. My doctoral research was supported by a Commonwealth Scholarship, for which I am very grateful. I am also grateful to several people for their comments on different drafts of the work, before and after its submission. I am very' grateful to my parents, to whom this book is dedicated, for the encouragement they have given me throughout my career. My father, Peter Sypnowich, generously edited the entire manuscript with a sharp and sympathetic eye. Five others stand out as deserving of special thanks. My thesis supervisor, Steven Lukes, provided me with both encouragement and critical advice throughout its preparation. Joseph Raz, who kindly undertook my supervision for a summer and a term, introduced me to the rigours of analytical philosophy, and subjected my work to valuable, ruthless criticism. I am especially indebted to David Bakhurst, who read all of the dissertation, in many versions, and was a constant source of original ideas, incisive criticism, and boundless support. For constructive advice on how to improve the dissertation, I am very' grateful to my examiners, Raymond Plant and David Miller; particularly the latter, who was good enough to provide me with very useful, detailed remarks on the whole text. 1 would also like to thank Richard Bauman, G. A. Cohen, Denis Galligan, Adam Swift, and Wendy Wanklyn for their very' helpful advice on previous drafts of various chapters. Finally, I thank Richard Hart and Anna Stewart Cox of Oxford University Press for cheerfully and efficiently managing the book’s publication.

c. s. John Saville (cds.), The Socialist Register 1981 (London, 1981), 163. Roberto Unger also explores the idea that socialist egalitarianism and liberal individualism can be married in a ‘superliberalism’, in his essay ‘Critical Legal Theory Studies Movement’, Harvard Law Review, 96/3 (Jan. 1983).

Acknowledgements Parts of the book are revised versions of published articles. I wish to thank the following for allowing me to reprint them: Studies in Soviet Thought for Chapter I, which appeared as ‘The “Withering Away” of Law’ in 33/4 (1987), 305-32. © 1987 by D. Reidcl Company. Reprinted by permission of Kluwer Academic Publishers. Oxford Journal of Legal Studies for Chapter 5, which appeared as ‘Law as a Vehicle of Altruism’ in 5/2 (1985), 276-84. Reprinted by permission of Oxford University Press. Praxis International, for Chapter 6, which appeared as ‘Consent, SelfGovernment and Obligation’ in 6/3 (1986), 256-76. Reprinted by permission of Basil Blackwell Limited.

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Contents

NOTE ON CITATIONS OF MARX AND ENGELS

1. The ‘Withering Away’ ofLaw

Law and Egoism Socialism and Egoism Law and Ideology Socialism and Ideology' Law and Class Rule Socialism and Class Rule Conclusion 2. Justice and the Sources of Socialist Law

The Natural Law Position The Legal Positivist Critique Socialist Positivism Hard Cases and the Morality ofLaw Praxis and the Identification ofLaw The Justice ofLaw The Show Trials The Comrades’ Courts The Parasite Laws Conclusion

3. Freedom and the Rule ofLaw Capitalist Freedom and the Rule ofLaw Capitalist Domination and the Rule ofLaw The Rule ofLaw and Freedom under Socialism The Rule ofLaw under Capitalism: Three Cases The Biases of thcjudiciary Access to Legal Representation

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3 5 8 12

16 19 23 28

29 33 34 37 4i 44 46 50 53 55 59 61 65 69 74 74 76

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The Enforcement Agenda Conclusion: Liberty and the Rule of Law

4. Human Rights and Political Reform The Concept of Human Rights Human Rights in Marxist Theory’ and Practice The Positivist Critique Natural Rights and Social Justice Natural versus Human Rights What Human Rights do we have? Conclusion

5. Altruism and Rights under Socialist Circumstances ofjustice

The Circumstances ofjustice Legal Rights in a Golden Age Law as a Vehicle of Altruism Altruism and Self-Interest Rights as Trumps Conclusion 6. Self-Government and the Obligation to Obey Socialist Law

Obligation derived from Consent The Participatory Alternative A Critique of the Participatory Alternative The Case of the Dissenting Minority The Role of Extenuating Circumstances The Problem of the Non-Participants Conclusion

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84 85 87 92 96 99 109 112

114 114 118 121

125 128 131

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i35 139 i43 i44 148 150 151

7. Conclusion

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Bibliography

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Index

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NOTE ON CITATIONS OF MARX AND ENGELS

Quotations from and references to the writings of Marx and Engels arc taken from Selected Works (3 vols., Progress: Moscow, 1970) wherever possible. Since Collected Works (31 out of 50 vols. published to date, Lawrence and Wishart: London, 1975- ) are not widely available, reference has been made to them only where an item does not also appear in Selected Works. Separate bibliographical information will be given for those writings which cannot be found in cither collection.

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The ‘Withering Away’ of Law Is a socialist jurisprudence possible? Many thinkers on the Left, especially Marxists, would answer no. Left-wing thought has long been committed to the view that law will ‘wither away’ under socialism, that political and legal institutions will cease to exist with the emergence and development of socialist society. This thesis was developed by Marx and Engels, and has been upheld by Western and Soviet thinkers in the Marxist tradition. Its legacy has been that thinkers on the Left tend to limit their interests to the role of law in reinforcing capitalist exploitation, or, less typically, its potential for yielding short-term gains for the exploited. Thus Marxists have been unable to make any further contributions to legal theory. They do not consider the role law might play in a post-capitalist society, and a socialist jurisprudence is virtually non-existent. This chapter examines the withering away thesis in order to understand the nature of the obstacles to a socialist contribution to legal theory. Perhaps the most perspicuous statement of the withering away thesis is that made by Engels: State interference in social relations becomes, in one domain after another, superfluous, and then dies out of itself; the government of persons is replaced by the administration of things, and by the conduct of processes of production. The state is not ‘abolished’. It dies out.'

This suggests that the way the legal and political institutions of capitalism meet their end is to be distinguished from the actual overthrow of capitalist relations of production. While capitalist economic structures will be removed by either violent revolution or deliberate public policy, the state and its laws will disappear of themselves once the conditions for their existence have been removed. This is because law and state arc ‘superstructural’ phenomena. For 1 Soaalisnitdjlopian and Scientific, MESH'y 147, his emphasis.

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classical Marxism, they arc in some sense determined by the economic structure of society, ‘the real foundation’. Upon the destruction of this economic foundation, the superstructure, without itself being directly attacked, ceases to exist.2 State and law wither away because they cannot be sustained by the new social context; like the dinosaur, they become extinct? The precise nature of this extinction is a matter for some debate. Does the emergence of socialism mean that law and state are without utility, and hence, while theoretically conceivable, become archaic in a practical sense? Or is the existence of legal and political institutions under socialism a matter of logical impossibility, so that it no longer makes sense to use the very vocabulary of politics or law to describe socialist society? On the former view, for the withering away thesis to hold, it is enough that criminal behaviour is rare; on the latter view, the manifestation of what under capitalism one would call a crime must, under socialism, be viewed as an entirely different phenomenon. To answer these questions one must first grasp the functions that the Marxist tradition attributes to law in capitalist society. It may be objected that before turning to the Marxist treatment of law, we must first answer the more fundamental question of what law is. Of course, law can be uncontrovcrsially described as a set of authoritative rules which regulate social relationships, but any more precise definition risks forestalling important debate. Thus my strategy is to examine the definitions of law offered by Marxism before turning to the problem of how law might be conceived more generally. The various Marxist perspectives on the function of law can be grouped into three, as follows. 1. Law is an expression of egoism, a means of reconciling antagonistic, alienated, and self-interested wills; 2. Law is a source of ideological mystification, offering formal, equal rights to liberty and security, thereby clouding substantive inequalities in social and economic relations; 3. Law is a means of consolidating the interests of the ruling class, the capitalists, against the interests of the proletariat. 1 Karl Marx, ‘Preface to/I Contribution Io the Critique ofPolitical Econom]'\ A1ESIP i: 5°3' Shlomo Avineri, however, goes so far as to interpret Marx as saying that capitalist economic structures themselves would simply wither away, suggesting that the arrival of socialism would be a much less revolutionary event than is commonly supposed. See Avineri, Social and Political Thought of Karl Marx (Cambridge, 1972).

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These conceptions all overlap, of course, but analytical distinctions can be made between them which have differing implications for the withering away thesis, and the arguments offered within them have differing consequences for law in post-capitalist society.

Law and Egoism We find Marx’s definition of law as the reflection of the distorted, self­ directed interests of capitalist man in the ‘Critique of Hegel’s Philosophy ofRight' and ‘On the Jewish Question’. For Marx, law arose with the division of human society into the spheres of state and civil society, and served to maintain the demarcation between these two spheres. Marx maintains that this division is peculiar to capitalist society, a result of the political revolution that accompanied the emergence of capitalist relations of production. With this, the traditional relationship between public and private was reversed, so that civil society prevailed over the state, the bourgeois over the citizen. Marx adopts the dichotomy between state and civil society' from Hegel’s Philosophy of Right. For Hegel, civil society is the world of private contracts, market transactions, and property. Its moving force is self-interest. The political state mediates the divisiveness of the private realm as the embodiment of community, public duty, and collective will. For Marx, however, the law of the state mediates the private sphere not as the ethical expression of the collective will but as the arbiter of private disputes. In setting the terms for the conflict of private interests it reinforces and protects them. In ‘On the Jewish Question’, Marx develops the distinction between state and civil society in terms of man’s dual identity as citizen and bourgeois. The formation of a political state enables the ‘reduction of man, on the one hand, to a member of civil society, to an egoistic, independent individual, and, on the other hand, to a citoyen, a juridical person’.4 Law distinguishes between the rights of citizens and the rights of man, but for Marx, the latter arc no more than ‘the rights of a member of civil society, i.c. the rights of egoistic man, of man separated from other men and from the community’.5 Thus, the so-called natural rights to equality, liberty, and security' that arc enumerated in the French and American constitutions have value only for the egoistic individual endemic to capitalist property relations, an individual who is ‘withdrawn into himself, into the 4 ‘On the Jewish Question’, d/A'C/C 3: 168.

■' Ibid. 162.

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The ‘Withering Away' of Law

confines of his private interests and private caprice’. Under capitalism, community and citizenship are not genuine expressions of man’s social being, but are instead contrived and formalistic. The citizen is the servant of egoistic man; as it is ‘not man as citoyen, but man as bourgeois who is considered to be the essential and true man’.'1 This treatment of law as egoism was developed into a systematic jurisprudence by the Soviet legal theorist Evgeny Pashukanis. In his study of the ‘legal superstructure’, Pashukanis seeks to rectify what Engels identified as Marxism’s neglect of ‘the formal side—the ways and means by which these [ideological] notions . . . come about’, the result, perhaps, of an excessive emphasis on the economic basis.7 Pashukanis is concerned not just with how the content of particular statutes reflect particular economic circumstances, but with the manner in which economic relations are embedded in the very concept or ideal of law. To this end, in his Commodity Theory of Law, Pashukanis employs Marxist economic theory to explain the develop­ ment of legal notions. Citing Marx’s analysis of the commodity in Capital, he maintains that as the product of labour becomes a commodity and a bearer of value, so man acquires the capacity to be a legal subject and a bearer of rights. 'i

If economically an object dominates man, since as a commodity it embodies in itself a social relationship not under the authority of man, then man legally dominates the object because as its possessor and owner he himself becomes merely the embodiment of the abstract, the impersonal subject of rights, the pure product of social relationships. Expressing this in die words of Marx, we say: ‘in order that these objects may relate to one another as commodities, their guardians must relate to one another, as persons whose will reside in those objects; and must behave in such a way that each does not appropriate tire commodity of the other, and part with his own, except by means of an act done by mutual consent. They must, therefore, mutually recognise in each other the rights of private proprietors.”

The legal subject is an abstract commodity owner ‘elevated to the heavens’.'' The relationship between the parties in a contract '■ ‘On the Jewish Question’, M/:Clf 3: 164. ’ ‘Letter to Mehring’, 14 July 1893, MESH7 3: 495-6. " Selected U'rilinp on Marxism and Lam, cd. and introd. P. Beimc and R. Sharlet, (London, 1970), 76-7. The quotation from Marx is cited as Capital, i (New York, 1967), 84. It is interesting to note that Pashukanis uses the conceptual apparatus of Capital, a work of the later Marx, to flesh out the analysis of law we located in Marx’s earlier works. ’ Pashukanis, Selected If'rilinps, 81.

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constitutes the model for all other social relationships under capitalism, so that the values of the market permeate all dimensions of human existence. Even man’s ethical life under capitalism is shaped by the norms of exchange (rather than the reverse). For Pashukanis, Marx’s position in ‘On the Jewish Question’ reveals three fundamental notions at the heart of law under capitalism: egoism, autonomy, and equality.

The party to the exchange must be an egoist, i.e., guided by naked economic calculation, otherwise the value relationship cannot appear as a socially necessary relationship. The exchanging party' must be the bearer of a right, i.e. have the possibility of making an autonomous decision, for his will must ‘be embedded in objects.’ Finally, the exchanging party must embody the basic principle of the equality of all human personalities, because in exchange all types of labour are equalised and arc reduced to abstract human labour."1 It is only those whose primary' concern is egoistic self-interest, defined as distinct from and in opposition to the interests of other individuals and the state, who arc equipped to bargain in the market and in the law court. Autonomy too is a condition for the operation of bourgeois legal institutions: all have rights to liberty in order to assert their interests in property in competition with other private interests, but free from the interference of any public authority. Equality is intrinsic to legal and economic procedures because they rest on the assumptions that there is no interest greater than that of the private individual, and that, being abstractions, these private interests must be treated as equal in value.

Socialism and Egoism If the source of law is the egoistic interests of market men, what is the . fate of law under socialism? For Marx, the political emancipation of capitalism, which divides men into public and private persons, is to be followed by a human emancipation which obliterates distinctions between private and public, thus precipitating the demise of the laws that maintained them. The human personality' will be transformed and united; no longer will citizenship be secondary and instrumental to the private interests of individuals. Instead, private interests, if they exist at all, will become in some strong sense inseparable from the interests of Ibid. 102. See also Issac Balbus, ‘Commodity Form and Legal Form: An Essay on the “Relative Autonomy" of the Law’, Law and Smiely (Winter 1977). lor a recent analysis of law along the lines of Pashukanis’s Commodity Theory.

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the communit)'. And once ‘the real, individual man has absorbed into himself the abstract citizen’," political authority and legal right will cease to be necessary. Although state power and legal institutions are temporarily appropriated by the proletariat in the building of socialism, both will die out when the material conditions of abundance and the corresponding human relations of solidarity render the socialist project complete. The end of bourgeois law must necessarily mean the end of law in general; there can be no proletarian law just as there can be no proletarian capital.12 The governing of people will be supplanted by the administration of things; relations among individuals need be ordered by no more than technical rules. Under communism, Lenin says: people will gradually become accustomed to observing the elemental rules of social intercourse ... they will become accustomed to observing them without force, without compulsion, without subordination, without the specific apparatus for compulsion which is called the state." Thus we see that in so far as men lose their character as egoistic monads and owners of commodities, law is denied the kind of human subject which requires legal regulation. As rights reflect and are instrumental to the economic relationships of bourgeois society, a society which is emancipated from the distortions imposed by the market will not need law. But is this to say that heretofore ‘illegal’ activity is merely unlikely under socialism, or in a stronger sense, theoretically inconceivable? Pashukanis claims the latter: law can have no existence under socialism for reasons of logical consistency. Its sole point of reference is market society; take away the market and law becomes inconceivable. Pashukanis’s argument has been summarized thus:

If law has its real origin in commodity exchange, and if socialism is seen as the abolition of commodity exchange and the construction of production for use, then proletarian or socialist law was a conceptual, and therefore a practical, absurdity.14

This strong view is evident in Pashukanis’s resistance to understanding post-1917 law in Russia as genuinely socialist. For him, the system of law operating under the New Economic Policy, a development plan " Marx, ‘On the Jewish Question’, MECW 3: 168. 12 Pashukanis, Selected Writings, 46-7. " Stale anil Revolution, Selected Works, ii (2 vois., London, 1953), 292, see also 204-6, 261-3. 14 Pashukanis, Selected Writings, 12-13, introd, by Beime and Sharlct, my emphasis.

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based on capitalistic forms of economic enterprise, could be considered only as ‘mere bourgeois law’. Indeed, it has been documented that the general feeling among the Bolsheviks at the time was that the NEP was a ‘temporary, necessary and regulated retreat’ from the principles of socialism, and would soon give way to a fully socialist community devoid of law. Law was being used to pave the way to its own elimination.15 The orthodox Marxist’s rejection of the possibility of socialist law rests on two assumptions: first, that there would be material abundance under socialism, so legal rules regulating scarce resources would be superfluous; and second, that socialism accordingly would be devoid of interpersonal conflict, so there would be no need for the mediating role performed by legal institutions. But both of these assumptions arc problematic. First of all, since Marx the Left has become increasingly aware that the question of who owns the means of production docs not automatically settle the question of whether man’s exploitation of his natural environment will jeopardize the supply of resources for present and future generations.''’ In any case, that socialism could result in a great abundance of goods remains to be proved. Furthermore, even if the elimination of scarcity were possible, it is not at all clear that conflict would thereby disappear. Without calling into question their society’s egalitarian and fraternal premisses, members of an ideal socialist community could, for example, disagree about the best way to mobilize and distribute resources. If such nonegoistic differences between individuals are possible, then it may be that conflict would outlive capitalism, and law could continue to be necessary to mediate socially useful conflicts between individuals and groups. The withering away thesis deems interpersonal disputes a contingent aspect of social life; like illiteracy or 'bad manners’, conflict is a result of ignorance or insensitivity. Once fully educated to live by socialist norms of behaviour, man would live in harmony with his fellows, co­ operating in collective projects almost instinctively, without external 15 Ibid. 12-14, inlrod. by Beirne and Sharlct; R. Conquest, Justice and the Legal System in the USSR (London, 1968}, 15. In Settling Disputes in Soviet Sadely: The Formative Years ofLegal Institutions (New York, i960), John 1 lazard notes the complexity ol juridical institutions in these years; see ch. 13. 16 This doubt about the abundance assumption also challenges the Marxist optimism about the ethical neutrality ol capitalist forces of production; some critics complain that Marx paid loo little attention to the possibility that industrialization itself is morally problematic, as a source of both workers' alienation and environmental havoc.

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regulation.1’ Hence, according to Marx’s appraisal of man’s potential perfectability, upon the complete destruction of capitalism, even those rare incidents of antisocial behaviour (which a society with a legal system would term unlawful) would be instances of deviance qualitatively different from crime, and would require other, non-legal forms of social control. The theory of law expounded here explains the relationship between law and society in terms that define each side of the relationship as shaped, in a fundamental sense, by the economic relations of capitalism. The human activities that require legal regulation arc essentially the manifestation of a certain configuration of economic relationships; there is no sense in which law punishes or controls antisocial behaviour which does not ultimately stem from the ethos of the market. But not only is the society which requires law intrinsically capitalist, so too is the legal form itself. In Marx’s discussion of rights and Pashukanis’s Commodity Theory, the very form of law, not just the content of particular statutes, is considered the reflection of bourgeois economic relations. Because the egoism of man is derived from the capitalist market, and because this egoism is the foundation of law, the question of the withering away of law cannot be merely a matter of predicting that, given transformed economic circumstances, legal regulation will be unlikely. Rather, the withering away of law must refer to a situation where these new circumstances arc such as to deny a conceptual basis for any legal structure, whatever its content. Against all this, it can be stated that if law is capable of resolving conflicts between parties who are not egoists, and if such conflicts are possible in a socialist society, then even the conception of law as a vehicle for mediating individual differences would suggest that it is theoretically conceivable that legal institutions have a role in a socialist society.

Law and Ideology

The second interpretation of the role of law under-capitalism, also prominent in the writings of Marx and Pashukanis, is the conception of law as a set of rules which, in their claim to devolve upon society a measure of formal impartiality, equality, and freedom, serve to mystify the substantive unfairness, inequality, and alienation inherent in capitalist economic relations. Marx and Pashukanis refer to this 17 Allen E. Buchanan, Alan- aud Justice: The Radical Critique of Liberalism (London, 1982), 33-

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‘ideological’ aspect of law in their discussion of the way in which law reflects the egoistic relations of the market, but this docs not mean it cannot be analysed separately. While both perspectives analyse law as a reflection of economic relations, the conception of law as ideological defines law as a means of masking and legitimating these relations, a function which is not essential to the view of law as the embodiment of egoism. More important, the ideology' perspective opens up the possi­ bility that the moral claims of law can have some substantive reality. Marx writes that the political emancipation wrought by bourgeois legal institutions ended the dominance of religion in the ideological sphere. Religion offered illusory happiness, moral sanction and justification; but the political emancipation which ushers in capitalism and dethrones religion does not obviate the condition which requires illusions. For Marx, law enters as a new source of illusion, performing an ideological function. Ideology presents a bogus but persuasive claim to truth, so that even the learned ‘take every epoch at its word and believe everything it says and imagines about itself is 11110’.'“ As ideology, law has the power to set the terms for the economic forces it serves, so that the bourgeoisie finds itself, as Maureen Cain and Alan Hunt put it, ‘constrained by its own rules of legality, its own ideology’.1'1 In his discussion of the state as a parasitic body, Marx notes that in order to sustain their ideological functions, political and legal institutions must acquire some autonomy from the dominant economic forces; as a consequence, the state becomes a source of general domination. The legal system and bureaucratic machinery of the parasitic state stifle the liberty of both bourgeoisie and proletariat: ‘every common interest was straightaway severed from society, counterposed to it as a higher, general interest, snatched from the activity of society’s members themselves. . .’.20 As an alienated social power, as ideology, law and state come to dominate their creator.21 Ideology falsifies reality, but it also reflects and regulates it.22 Pashukanis argues that, despite its mystified form, social reality exists ls Gentian Ideology, MESW i: 50. 19 Marx and Engels on Law (London, 1979), 217. 20 ‘Eighteenth Brumaire of Louis Bonaparte’,/W/iSTL 1. 477. 21 Robert C. 'fucker, Marxian Revolutionary Idea (London, 1969), 56; Richard I lunt, Political Ideas ofMarx and Engels., ii Classical Marxism 1850-1895 (Pittsburgh, 1974), 234“6‘

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22 Joe McCamey, however, argues that the Marxist concept of ideology must be distinguished from Marx’s critique of German ideology Thus ideology perse need not be illusory nor even serve to stabilize the status quo; Marxism can be considered an ideology. See McCamey, Real World ofIdeology (Sussex, 1980).

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The ‘WitheringAway' of Lan>

in law.25 He contends that this mystification develops into legal fetishism, the political counterpart to the commodity fetishism of the economic sphere, wherein man ascribes to his creations a power over and above his own agency.2' Legal institutions are endowed with an independent, eternal authority, which stands above human powers, so that instead of the law conforming to our needs, we conform to the law. Hence even in its illusory aspect, as ideology, law has an efficacy beyond simple mystification. Attributing efficacy to ideology in no way conflicts with any sensible orthodox reading of law as part of a superstructure, which is determined in a fundamental sense by productive relations, which in turn is the consequence of productive forces. G. A. Cohen insists, however efficacious the capitalist legal system, it is only a legal aspect of, and consequently secondary to, those facts: it is determined, not determining. At the same time, however, if the legal system is functional to the economy this is more than a manifestation of economic priority; it is also evidence of the efficacy of the superstructure. Engels writes: ‘while the material mode of existence is the priniunt agens this does not preclude the ideological spheres from reacting upon it in their turn, though with a secondary effect’.25 If the superstructure is to be functional to the base, we must attribute to it enough power to ensure the stability of the base’s economic relations.26 Antonio Gramsci’s theory of hegemony gives a clear sense of the agency of law as a part of the ideological superstructure which is necessary to the life of its economic foundation. Law performs an educative role: If every State tends to create and maintain a certain type of civilisation and of citizen (and hence of collective life and individual relations) and to eliminate certain customs and attitudes and to disseminate others, then the Law will be the instrument for this purpose.2’

" Selected Wrilinps, 54-5. » Ibid. 79. 25 ‘Letter to C. Schmidt’, 5 Aug. 1890, MESW y, 483-4. 26 G. A. Cohen, Karl Marx's Theory ofHistory: A Defence (New York, 1978), 226-34. Likewise, in his essay ‘Legality and Illegality’ in Hisloiy ami Class Consciousness, trans. Rodney Livingstone (London, 1971), Georg Lukacs states, ‘ideology is . . . not merely the consequence of the economic structure of society but also the precondition for its smooth functioning’, 261. Among the most deterministic of Marxists, even Louis Althusser notes that law both ‘represents imaginary relationships', and ‘inscribes ideas’ in the 'actions of material practice’. ‘Ideology and Ideological State Apparatuses’, in l-eiiiii anil Philosophy and Other Essays (I.ondon, 1971). 153-8. ‘Slate and Civil Society’, in Selections front the Prison Notebooks, ed. and trans. Q. Hoarc and G. Nowell Smith (New York, 1971), 246.

The ‘WitheringAway' of Law

11

For Gramsci, law is ideological in so far as it claims to be willing and able to act affirmatively on behalf of society as a whole.28 Is law’s claim borne out by reality? E. P. Thompson has argued that in order to succeed as ideology, the claims of legal institutions must be capable of being realized; if liberty and justice arc perceived as merely empty promises made by the law, then no ideological function is served. Likewise, Engels states: In a modern state, law must not only correspond to the general economic condition and be its expression, but must also be an internally coherent expression which does not, owing to inner contradictions, reduce itself to nought. And in order to achieve this, the faithful reflection of economic conditions suffers increasingly. All the more so the more rarely it happens that a code of law is the blunt, unmitigated, unadulterated expression of the domination of a class—this in itself would offend the ‘conception of right’.2'1

The analysis of law as ideological thus moves from a thesis on the mystifying role of legal relations, to an understanding that law is efficacious as well as illusory, and finally to the view that law’s ideological function requires that the ideals promised by legal institutions figure as something of real value. E. P. Thompson goes so far as to say that instrinsic to the ideological force of law is its capacity to impose inhibitions on economic power:

The rhetoric and rules of a society arc something a great deal more than sham. In the same moment they may modify, in profound ways, the behaviour of the powerful, and mystify' the powerless. They may disguise the true realities of power, but, at the same time, they may curb that power and check its intrusions. And it is often from within that very rhetoric that a radical critique of the practice of society is developed . . Both the illusory and genuine components of law derive from law’s function of stabilizing the economic basis. Hence, paradoxically, one of the important ways in which law buttresses the power of the state is in the setting of limits to this power. Thus according to the view of law as ideology, in order for law to conceal the power relations of the “ Edward Greer, ‘Antonio Gramsci and “Legal I legemony" ’ in David Kains (cd.). Politic! of Law: A Prottressn-e Critique (New York, 1982), 306. 2‘‘ ‘Letter to C. Schmidt’, 27 Oct. 1890, All-iSH' 3: 492. ” U'liigs anil Haulers: The Ongins oj the Iliad- Act (New York, 1975), 264-5. Nicos Poulantzas endorses Thompson’s argument when he writes in Stale, Power, Socialism (London, 1980) that law ‘does not only deceive and conceal ... it organises and sanctions real rights of the dominated classes’, and has "inscribed within it the material concessions imposed on the dominant classes by popular struggle’, 84.

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The 'Withering Away ’ ofLaw

economic basis, it must offer juridical guarantees which are capable of being realized.

Socialism and Ideology If the ideological function of law requires that liberal legal institutions have discernible positive effects, could one go further and consider legality a feature of the human emancipation promised by socialism? Though Marx contends in ‘On the Jewish Question’ that rights to liberty and security arc merely the instruments for bourgeois egoists, when Marx develops the view of law as ideology he is less willing to dismiss legal rights, for instance, as merely ‘bourgeois’. In ‘The Eighteenth Brumairc of Louis Bonaparte’, he suggests that the weapons the bourgeoisie forged against feudalism could be turned against itself; ‘so-called bourgeois liberties’ could, under certain circumstances, become ‘socialistic’.11 This suggests a stronger view still, that legal notions have positive value not just in bringing about socialism, but in the fabric of socialist life itself. To suggest that the Marxist analysis of law as a source of ideology is perfectly consistent with the idea of socialist law is more than wishful thinking. If ideology is understood, as Daniel Bell would have it, as any system of beliefs that call for radical social change, or, even less specifically, as any action-oriented system of political beliefs, then a socialist appropriation of legal notions would seem quite possible.12 Bell is no Marxist, of course. Some Marxists, however, offer an interpretation similar to Bell’s. Their argument refers to the idea that law serves class rule, not as a direct instrument, but indirectly, as ideology. One study depicts ideology as, not a form of illusion, but simply ‘thought which serves class interests’. Lenin writes that socialism is ‘the ideology of the class struggle of the proletariat’.11 A (proletarian) socialist ideology therefore seems plausible in light of the 11 MESW i: 435. Contemporary exponents of the ideological view also consider legality to be important for the proletariat in the class struggle as an instrument for social change. See Colin Sumner, ‘Rule of Law and Civil Rights in Contemporary Marxist Theory’, Kapilalislale, 9 (1981). “ Although, postulating a satisfaction with the ‘middle way’, Bell predicts the extinction of ideology: sec End of Ideology (Glencoe, III., i960). Martin Seliger’s definition of ideology as an action-oriented set of beliefs, also within the liberal tradition, does not have any such controversial implications: see Ideology and Politics (London, 1976). Not suiprisingly, in Marxist Conception of Ideology: A Critical Essay (Cambridge, >977)< Seliger is critical of the Marxist view of ideology as a set of intrinsically falsifying ideas. " Quoted in ibid. 126.

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Marxist understanding of the proletariat as a universal class, the first class to promote the interest of society as a whole. ” In the hands of the proletariat, therefore, legal ideology might be transformed and its class nature overcome. In the Soviet Union, it is this less pejorative concept of ideology that has gained ground, so that Soviet thinkers today refer to Marxist-Leninist ‘ideology’ as a vehicle for consolidating society. As a kind of ideology, therefore, socialist law is conceivable.'5 Despite all this, if Marxism is committed to a view of ideology as part of the superstructure which stabilizes the capitalist order by means of illusions, then ideology must stand only as a form of domination. This Marxist analysis has a ‘critical edge’ which is lacking in the rival arguments.”' It argues that ideology legitimates reality by camouflaging its most brutal features. ‘If in all ideology men and their circumstances appear upside-down as in a camera obscura, this phenomenon arises just as much from their historical life-process as the inversion of objects on the retina docs from their physical life­ process.”7 In any case, even if one accepts a wider definition of ideology, ideology as it manifests itself as law is considered a form of illusion in Marxist writings. Moreover, domination is intrinsic to it; by disguising and containing class conflict, law furthers the interests of the dominating class in maintaining the capitalist system of production. Socialism is premissed on the elimination of all classes. Hence, a social form which owes its existence to the class divisions endemic to capitalism cannot persist beyond the life of capitalism itself. According to the Marxist canon, the proletariat mobilizes ideological forms in the process of abolishing class society, but thereafter they have no purpose:

.. . every class which is struggling for master}', even when its domination, as is the case with the proletariat, postulates the abolition of the old form of society­ in its entirety and of domination itself, must first conquer for itself political power in order to represent its interest in turn as the general interest. . Ideology is precisely this vehicle for domination which conceals its purpose in order to fulfil it, so that the interest of the dominating appears as the interest of all. Thus Pashukanis writes that ‘the expose 34 McCamey, Real World of Ideology, 126-7. 35 Sec Gustav Wetter, Soviet Ideology Today (London, 1966). 36 See John B. Thompson, ‘Ideology and the Critique of Domination’, Canadian Journal of Political and Social Theory, 7/1-2 (1983), 170. 37 German Ideology, MESIV 1: 25. Ibid. 35.

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of the roots of an ideology is a true sign of its imminent end’. ''’ One of Pashukanis’s contemporaries, the Soviet legal theorist M. Reisner, remarks that socialists must not forget that law is an ideological form, and as such it is not just the technical expression of given relationships, but a refraction of reality. Ideological thinking must be replaced by social structures which are wholly rational and express reality with precision.™ The socialist vision of community free of illusion requires conscious, collective control over the institutions of social life. Socialism must restructure the relations of production in such a way as to prevent social institutions from being created and determined by economic forces over which the community has no control. Marx and Engels aver:

Communism differs from all previous movements in that it overturns the basis of earlier relations of production and intercourse, and for the first time consciously treats all natural premises as the creatures of hitherto existing men, strips them of their natural character and subjugates them to the power of the united individuals.41 The argument that law as ideology is part of a realm of ideas determined by prevailing market forces is ultimately an argument for the impossibility of law if economic forces are collectively controlled. In a socialist society, according to this view, legality could not arise. Nevertheless, Marx docs not maintain that all phenomena which emerge with capitalist economic relations will be rejected by a socialist revolution. Capitalist technology, for example, is considered an outstanding accomplishment, which can transcend its historical epoch. Marx and Engels exclaim in The Communist Manifesto’. The bourgeoisie, during its rule of scarce one hundred years, has created more massive and colossal productive forces than have all preceding generations together. Subjection of Nature’s forces to man, machinery, application of chemistry' to industry' and agriculture, steam-navigation, railways, electric telegraphs, clearing of whole continents for cultivation, canalisation of rivers, whole populations conjured out of the ground—what earlier century' had even •” Selected IVriliiigs, 49. *' ‘Theory of Petrazhitshkii’, in John 1 Iazard (cd.), Soviet Legal Philosophy (Cam­ bridge, Mass., 1951). Cf. Althusser’s claim that ideology has an illusory aspect, but that ‘as a system of mass representations’, ideology is ‘indispensable to any society'’: see ‘Marxism and Humanism’, For Marx, trans. B. R. Brewster (London, 1969), 235. 41 German Ideology, MESH' r. 68. Althusser’s contention that as illusion, ideology will persist in Communist society, thus looks rather suspect.

The 'Withering Away’ of Law

15

a presentiment that such productive forces slumbered in the lap of social labour?42 The proletariat, having been rescued by the bourgeoisie from the ‘idiocy of rural life’, will wield the weapons forged by the bourgeoisie in order to destroy bourgeois society. And, upon the socialist revolution, these productive forces will not be dismantled but harnessed, so that accumulated labour may be used as ‘a means to widen, to enrich, to promote the existence of the labourer’.4’ It thus seems available to Marxism to consider appropriating other institutions of capitalism for the socialist project. I have noted that some views of ‘law as ideology’ do grant legal institutions power over the economic substratum. Law affords even the dominated some tangible benefits under capitalism, and thus may be capable of being detached from its context of capitalist domination. Stripped of its ideological (mystifying) role, law could then offer rational procedures for ordering interpersonal relations under socialism.44 If the technology of the bourgeois can be put to positive use in an emancipated society, why not the law of the bourgeois? It may be objected that the viability of a socialist appropriation of legal institutions requires more argument than this. While Marx considers how capitalist technology is to be retained and extended in post-capitalist society, his silence on the mechanisms for doing likewise with law suggests that the onus of proof is on those who would consider legality an analogous case. In its ideological function, law is only necessary where social and economic relations arc in need of disguise and mitigation; a socialist society would thus have no need for the ‘compensating’ role, however effective, played by law. The analysis of law as ideology is thus inconclusive as to the validity of the thesis of the withering away of law. On the one hand, law’s mystifying role and its connection with capitalist relations of class domination renders law theoretically inconceivable under socialism. On the other hand, the ideology view reveals positive aspects of law, suggesting that legal institutions could, like capitalist technology, have a role to play in post-capitalist society. In the face of the unconvincing assumption that a socialist community would be free of the circum­ stances that give rise to the need for law, there may yet be room for a 42 M/tSII'r. 113. 41 Ibid. 121. 44 Or, on McCamey’s view of ideology as simply the representation ot class interests, a socialist legal ideology could express proletarian interests.

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The Withering Away’ of Law

socialist jurisprudence which would repudiate the withering away thesis.

Law and Class Rule Legal ideology provides an embellished story about the possibility of equity and fairness under capitalism by mitigating the ‘harsher effects of class structures’.45 The third conception of law, as an instrument of class rule, finds that behind the ideology of law there lurks naked power. Thus, while the view of law as ideology considers tltc mystifying role performed by law to be functional to class domination, the definition of law as class rule stresses that the dominant class uses law to rule directly: When the chips arc down, the essential function of the legal system is revealed as itself: the reproduction of class power.41'

On this view, legal discourse is:

a powerful ideology which is directed against the awareness of the presence of class rule." or: the emblem of the universal pretensions of the ruling class, and an abstracted expression of the concrete interests of that class and its allies.4"

Both analyses of law as the reflection of egoism and ideology grasp the complexity of law, in terms of its formal significance, the relevance of its individualist basis, and the necessity of its relative autonomy from capitalist economic forces. An analysis of law as an instrument of the dominant class, however, is less subtle theoretically; at issue is not the nature of the legal form, but how the substantive content of law secures the political rule of the bourgeoisie. Marx’s view that law embodies the interests of individual bourgeois commodity exchangers is extended in this approach, so that it is the bourgeois as a member of a hegemonic class whose interests are represented by law. The thought of Marx and Engels gives evidence of a shift in emphasis: in the early writings, an interest in the legal form and the very possibility of legal discourse; in later works, a concern

45 Colin Sumner, Reading Ideologies: An Investigation into the Marxist Theory ofIdeology and Law (London, 1979), 274-5. “ Ibid. 270. 47 Hugh Collins, Marxism and Law (Oxford, 1982), 141. w Sumner, Reading Ideologies, 277.

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17

with the content of law and the class interests that lie at the heart of particular pieces of legislation. It is the latter concern which gives rise to the argument that in nineteenth-century England, such statutes as the poor laws, factory legislation, and the corn laws were used to consolidate the power of the capitalist class, albeit disguised as an ideological expression of society’s ‘communal interests and needs’. Marx writes of the Factory Act of 1867:

what strikes us ... is on the one hand, the necessity imposed on the parliament of the ruling classes, of adopting in principle measures so extraordinary, and on so great a scale, against the excesses of capitalistic exploitation; and on the other hand, the hesitation, the repugnance, and the bad faith, with which it lent itself to the task of carrying out those measures in practice.”

At his most polemical, Marx proclaims that law is but ‘the will of your [the bourgeois] class made into a law for all’.50 Eternal right is no more than bourgeois justice, equality only bourgeois equality, the right to property merely the bourgeois right to capital. Legality provides the bourgeoisie with a means of securing its class interests, first by setting out rights to property and exchange, and second, by constraining the proletariat’s sphere of movement in order to maintain its role as a source of labour. The depiction of law and state as instruments of the ruling class is particularly characteristic of Lenin’s State and Revolution. With Engels as his authority, Lenin argues that the state is the product of the irreconcilability of class antagonisms. Contemporary theorists such as Mandel and Colletti affirm the Leninist theory of the state; law emanates from a ‘bourgeois state’ and is the instrument of bourgeois interests.5' Ralph Miliband, diough critical of the undemocratic strain in Lenin’s writings, also argues that law and state are instruments of the bourgeoisie, as evident in the class make-up of state actors.52 After Lenin’s death, theorists in the Moscow academies rejected Pashukanis’s Commodity Theory of Law in favour of a class interpretation. The Soviet Procurator General in the Stalin period, A. Y. Vyshinsky, dismissed the Commodity Theory, for a view of 49 Capital, i (3 vols, London, 1954), 49450 Manifesto of the Communist Party, MESW 1: 123. See also Lukacs, ‘Legality and Illegality’, 264-5. M Lucio Colletti, ‘Power and Democracy in Socialist Society’, in Leninism or Stalinism? Two Essays (Lahore, 1972), Ernest Mandel, On Bureaucrat?: /I Marxist Analysis (London, 1973). 52 ‘State and Revolution’, in Paul Sweezy and 1 larry MagdolT (eds.), Lenin Today (New York, 1970).

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The Withering Away ’ ofLaw

law as ‘an expression of the will of classes dominant in society’.53 According to two other theorists of the time, S. A. Golunskii and M. S. Strogovich, law dictates the will of the dominant class to the subordinate classes in order to hold them obedient.5'1 Another contemporary of Pashukanis, P. Yudin, described law as the result of class contradictions, and thus an instrument for ‘holding the oppressed classes within the bounds of “order” created by the dominant class’.55 Another of Pashukanis’s critics, the Bolshevist jurist P. Stuchka, stressed the need for proletarian law in the period of the transition to socialism, ‘in the service of furthering the socialist offensive and socialist construction’. For Stuchka, Pashukanis’s Commodity Theory suffered from a ‘one-sidedness insofar as it reduced all law to only the market, to only exchange as the instrumcntalisation of the relations of commodity producers—which means law in general is peculiar to bourgeois society’.56 Aware that he faced a political and theoretical environment radically different from the decade before when he wrote The General Theory of Law and Marxism, Evgeny Pashukanis revised his Commodity Theory. In his Doctrine of State and Law, he identified relationships of production, as well as those of commodity exchange, as the basis for law under capitalism. Law is redefined as 'the form of regulation and consolidation ofproduction relationships and also other social relationships of class society'.51 The state deploys law, not as a vehicle for the exchange of commodities by private owners, but as an instrument for satisfying the economic needs of the dominant class as a whole. Pashukanis’s revisions brought his theory in line with the work of his colleagues in the academic institutes of Moscow. It was not enough. In 1937 he was named an enemy of the people and disappeared. His writings were banned, his disciples dismissed and arrested. Today, sadly, Pashukanis is most remembered in Soviet circles for the most heavily reformulated versions of his doctrine.

” ‘Fundamental Tasks of the Science of Soviet Law’, in Hazard (ed.), Soviet Legal Philosophy, See also Vyshinsky, Lain of the Soviet State, cd- John Hazard, trans. Hugh Babb (New York, 1954). w ‘Theory- of the State and Law’ in Hazard (cd.), Soviet Legal Philosophy, 366. ” ‘Socialism and Law’, in Hazard (cd.), Soviet Legal Philosophy, 281. * Quoted in Pashukanis, Selected Writings, 22, introd, by Beirne and Sharlct. 57 Ibid. 287, author’s emphasis.

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Socialism and Class Rule

What is it about the definition of law as class rule that rendered it attractive to Soviet legal theory after the New Economic Policy? The answer is that if law is viewed as a means of organizing productive relationships in the interests of the dominant class, then it could be instrumental for the dictatorship of the proletariat in the transition to socialism. Pashukanis himself came to confirm the need for socialist law in a statement which is obviously the result of political pressures: Bourgeois legality is directed, naturally, at the defence of the basic conditions of the capitalist mode of production . . . socialist (revolutionary1) legality expresses the will of the last of the exploited classes, which has taken power— the power of the proletariat.5*

It might seem that the most compelling reason for a socialist legality was the practical urgency of finding a system of justice to administer the mandate of economic development. Paradoxically, the view of law as a mechanism for the maintenance of class rule is the only conception that is rehabilitated in socialist legal theory in the Soviet Union. I will argue that it is precisely the repressive element of law which was attractive to the Stalinist state, as a club with which to beat down counter-revolutionary classes, justified by the assumption that such measures are only temporary. However, because the idea of socialist law was devised as an expedient for the state, those ‘ideological’ aspects of legality which offered the individual some measure of security and liberty could be conveniently disregarded.5'1 It should be noted that Marx himself invoked the concept of proletarian dictatorship only rarely, and his usage is ambiguous. He s* Ibid. 314. 59 Although, at least in the field of law, Pashukanis remained a liberalizing influence in these years; just as in 1918 he had successfully sought the adoption of a resolution protecting the independence of the judiciary in the General Assembly of Judges (Hazard, Settling Disputes, 18), so too, according to Leonard Schapiro, in the summer of 1936 Pashukanis was the ‘guiding spirit of a group of lawyers working on the reform of Soviet criminal law in a more humane and liberal direction’. Indeed, Schapiro contends that this political activity, not his heretical views, led to his elimination: Russian Studies, ed. Ellen Dahrendorf (London, 1986), 298. Pashukanis’s role in 1930s debates about the ‘Bolshevizing of philosophy’ appear not to have been so progressive however: see ‘O Raznoglaciya na filosofskom frontc’ (‘On a disagreement on the Philosophical Front’], Yeslrik konimiinisticheskoi akadentii \Bidlelin of the Coininunist Academy] (Moscow, 1930) and, for a discussion of the significance of these debates, David Bakhurst, ‘Deborinism versus Mechanism: A Clash of Two Logics in Early Soviet Philosophy’, Slavonic and East European Review, 63/3 (July, 1985).

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The Withering/iwy’’ of Law

leaned toward the specific notion of defence of the socialist revolution’s gains in the face of vestiges of opposition, rather than the broader, undeveloped idea of the entire transition period between capitalism and socialism.'1" As for Lenin, although the concept of a working-class dictatorship was of paradigmatic significance for him, he cautiously argued that, as a vehicle for coercion and violence, the state would have only a revolutionary, transient role to play in cementing the victory of the worker’s revolution.61 But Stalin revised this doctrine to facilitate the increasingly authoritarian nature of the Soviet revolutionary project, pointing to the threat of counter-revolution both within and without the Soviet Union. He wrote: Engels in his/lnti-Diihring said that after the victory of the socialist revolution, the state is bound to wither away. On these grounds, after the victory of the socialist revolution in our country, textualists and Talmudists in our Party began demanding that the Party should take steps to ensure the speedy withering away of our state, to disband state organs, to give up a standing army. However, the study of the world situation of our time led Soviet Marxists to the conclusion that in the conditions of capitalist encirclement, when the socialist revolution has been victorious only in one country, and capitalism reigns in all other countries, the land of the victorious revolution should not weaken, but in every way strengthen its state, state organs, intelligence organs and army, if that land docs not want to be crushed by tire capitalist encirclement.'11

The systematic use of political and legal resources no longer figured as a short-term measure of revolutionary society, but as an established feature of the socialist phase in the development of Soviet Communism. The rehabilitation of the superstructure reflected the fact that in Harold Berman’s words, ‘without a legal system and a legal order— without Law with a capital L—the Stalinist regime could neither control the social relations of the people, nor keep the economy going, nor command the political forces of the country as a whole’.6' The view that law was unambiguously an instrument of class rule and that coercion was necessary to sustain it, and that law would dis“ In Civil War in France, MESW 2: 219-23, Marx credits the Paris Commune of 1870 with ‘breaking modern state power*, and it is this short-lived revolutionary government which is often taken as Marx’s model for the dictatorship of the proletariat; this is certainly how it is interpreted by Engels in his introd., MESW 2: 189. 61 David Lovell, From Marx to Lenin: An Evaluation ofMarx's Responsibility for Soviet Authoritarianism (Cambridge, 1984), 59-61; Lenin, Stale and Revolution, 289-92. 62 ‘ I o Comrade A, Kholopov*, Pravda, 2 Aug. 1950, repr. in Stalin, Marxism and the Problems ofLinguistic (Peking, 1972), 48. M Justice in the USSR (Cambridge, Mass., 1963), 64. ■

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only upon the full flowering of socialist society, justified an epoch of legalized repression under Stalin. Political terror was institutionalized and made routine in the name of legality as class hegemony. Soviet legal academics confirmed the legitimacy of this course. Stuchka argued that the proletarian-class state, like the bourgeois one, needs the coercive support of law, an clement of constraint and persuasion in the transition period which is of a ‘frankly class character’.'’4 Vyshinsky, outdistancing his rivals and predecessors, constructed a theoretical apologia for Stalin’s legal manipulation of legal institutions in which Soviet law was not just proletarian but socialist in form and content.'’5 The definition of law as a form of class rule is radically distinct from the two other definitions discussed here in that it provided a theoretical basis for socialist law. Paradoxically, the result of the admission of legal institutions into the socialist enterprise was pernicious, even reactionary, in so far as it interpreted law in bourgeois society in the worst possible light and then mobilized it for purported socialist purposes. Justified by the long-term objective of a socialist utopia, capitalist legal forms were adapted to intensify their coercive potential. The admission of the possibility of socialist law did not repudiate the withering away orthodoxy. Soviet writers of the Stalin period insisted that once the building of socialism was complete, law would no longer be necessary. Vyshinksy stated that ‘when Communism triumphs throughout the world, we shall consign [law and state) to the museum of antiquities, together with the axe of the stone age and the distaff’."’ In the post-Stalin period, jurists and statesmen have echoed the view that law would eventually be inconceivable. After Nikita Khrushchev’s 1961 proclamation, which stressed the need for informal social organizations, the idea that law and state arc being gradually replaced by people’s self-government has recurred. Although state control of political and legal philosophy in the Soviet Union is not nearly as severe as it was under Stalin, it has remained the case that a great deal of Soviet writing on state and law has been devoted to explaining and justifying shifts in state policy.1’7 Under Khrushchev, the term ‘socialist legality’ resurfaced to describe the w ‘Revolutionary Part Played by Law and the State*, in I lazard (cd.), Soviet Legal Philosophy, 67. 65 Law of Ihe Soviet Stale, 58. 66 ‘Fundamental Tasks of the Science of Soviet Law’, 332. 67 See James P. Scanlon, Marxism in the USSR: zf Critical Survey of Contemporary Soviet Thought (Ithaca and London, 1985), ch. 6; Michael Urban, Ideology of Administration: American and Soviet Cases (Albany, 1982), 114-15.

!

I

22

The ‘Withering Away’ ofLaw

then existing system of law, in contrast with the extra-legal excesses of the Stalin era. Law was considered an ethical force, an instrument for the creation of the material and moral prerequisites of Communism. With this incursion, the withering away thesis would seem to have run amok. For legal scholars continued to hold that once Soviet society had developed the capacity to administer itself, law would no longer be necessary: the legal nature of administration and all institutions for mediating interpersonal relationships would disappear.68 The Brezhnev era introduced another innovation to the Marxist theory of state and law. Instead of a dictatorship of the proletariat, or a state of workers and peasants, the Soviet state was decreed an ‘all­ people’s state’. Like Brezhnev’s idea of ‘developed socialism’ of the early 1970s, the people’s state was considered a higher, socialist phase before the emergence of Communism.6’ The will of the people’s state was termed the people’s law, and sanctified in the 1977 Constitution:70 Having fulfilled the tasks of the dictatorship of the proletariat, the Soviet state has become an all-people’s state ... a socialist all-people’s state which expresses the will and interests of the workers, peasants and intelligentsia, the working people of all the nations and nationalities of the country.71

Like the idea of developed socialism, the introduction of the all­ people’s state precipitated a barrage of academic material describing and analysing the concept, not as a policy but as a reality. That Marx and Engels had derided the very idea of a free or people’s state as a contradiction in terms, given the inherent class character of all states, did not seem to be a problem. ‘People’ turned out to refer not to the Soviet population but to those with the goals and interests of Communism at heart.72 Indeed, not only did Soviet writers posit such wt S. A. Golunskii, ‘Creative Revolutionary Role of Socialist Law in the Period of the Comprehensive Building of Communism’, Soviet Law and Gavenimenl, 1/1 (Summer 1962). >3-I9w See Fyodor Burlatsky, Modem Stale and Politics, (Moscow 1978), 100-29; Nikolai Iribadjakov, A Developed Socialist Society (Sofia, 1976), 45-53. 70 Scanlon, Marxism tn the USSR, 240-1. Interestingly, in 1966, Laszlo Rcvesz wrote that the concept was of‘meagre practical significance’, noting that the idea that Soviet law expresses the will of the people had appeared sporadically since 1936. See Revesz, ‘Open Questions in Contemporary Soviet Philosophy of Law and State’, Studies in Soviet Thought, 6 (Sept. 1966), 215. 71 Cited in Aryeh Unger, Constitutional Development in the USSR (London, 1984), 233-477 Scanlon,Marxism in the USSR, 215. Although some uncase with this doctrinal twist is evident in V. Chklikvadzc’s contradictory remarks that Soviet law is both the law of the people as a whole and retains its class character as the law of the proletariat. See his Stale, Democracy and Legality in the USSR: Lenin’s Ideas Today (Moscow, 1972).

The Withering Away' of Law

23

terms as ‘developed socialism’ and ‘the people’s state’ as both consistent with the doctrine of withering away and representative of Soviet reality, some lauded the people’s state as surpassing political and legal achievements in the West. It was argued that as the best protector of human rights and liberties, the Soviet state offers greater and more extensive juridical protection to the individual.73 In the words of the Belgrade Praxis Group, ‘what began as a Marxist critique of bourgeois law ended up as a conservative justification of political Caesarism’.74 There is a sense in which the definition of law as an instrument of the ruling class marks a reversal of what could be called the ‘legal nihilism’ of the egoism and ideology interpretations, while remaining the most anti-legal. For in admitting of the temporary utility of legal institutions for socialist society, it also narrows the scope of law. Law must disappear in a future ideal society if in the interim only the most oppressive features of capitalist legality are recognized. Law seeks only to manage class conflict; it does not offer an ideological dimension of formal security and liberty for individuals, nor, as Pashukanis first affirmed, does it constitute a formal system mediating the interests of individuals as exchangers of commodities. The class­ rule perspective defines law as devoid of any genuinely liberal aspects, thus justifying the omission of these aspects in the legal system of the dictatorship of the proletariat. John Hazard recalls that, in the 1930s, at the Moscow Institute of Soviet Law:

law, concerning die rights of the individual, was relegated to a few hours at the end of the course in economic-administrative law and given apologetically as an unwelcome necessity for a few years due to the fact that capitalist relationships and bourgeois psychology' had not yet been wholly eliminated.”

Conclusion

The three conceptions of law in the Marxist tradition, despite their differences, all share a commitment to the doctrine of the withering away of law and state: the source of law lies in relationships of conflict, 73 Sec B. Fyodorov, Theory of Politics and Lenin's Legacy (Moscow, 1970); Valentin Patyulin, ‘Socialist Conception of Human Rights’, in Human Rights in Socialist Society (Moscow, 1981). 74 Mihailo Markovic et al. (Belgrade Praxis Group), ‘Meaning of the Struggle for Civil and Human Rights’, Telos, 35 (Spring 1978), 189. 73 ‘1 louseclcaning in Soviet 1 .aw’, American Quarterly on the Soviet Union, 1/1 (1938), 15, quoted in Pashukanis, Selected ll'ritings, 30, introd, by Beirnc and Sharlet. It is perhaps a significant sign of progress that in these days of glasnost in the Soviet Union, the notion that law and state will ‘wither away’ is conspicuous by its absence in Gorbachev’s speeches.

;i

24

i

The ‘Withering Away ’ of Law

domination, and alienation intrinsic to capitalism, and under perfect socialist conditions, law would be inconceivable. According to the first view, these relationships can be located within the capitalist class itself, in the interaction of commodity exchangers. The second view considers these relationships the basis for law’s ideological function of legitimating the capitalist mode of production. The third view identifies the distorted relationships between classes as the conditions of capitalism which require legal institutions; law is a means for class rule. In all three conceptions, a phenomenon which would have been described in legal terms under capitalism, must, upon the withering away of law, be understood as something qualitatively different. There arc two arguments to be made against these conceptions. The first argument, a modest one, made from an immanent or internal perspective, is that even if one accepts that law will eventually disappear under socialism, it remains that law will have a role to play in the transitional period before post-capitalist society reaches its fullest development. Evidence of this was found in the experiences of the Soviet Union, in which the idea of law as class rule justified the deployment of law to cement the proletarian revolution. One may go further, however, and find a moral danger in the withering away thesis. Despite its avowal that socialist law is for a time necessary, the argument that law embodies the rule of the dominant class contributes to the idea of the definitional extinction of law. Just as, upon the disappearance of law, crime-like things are no longer matters for legal mediation, so too are legal concepts applied to procedures which, even according to the ideology' and egoist views, may lack the minimum moral content to be considered law. In the Stalinist period, extra-legal repression and political coercion were defined as law. Similarly, the supposed end of law may enable hitherto legal claims and institutions to be reconceivcd and thus manipulated in the aid of political concerns. For example, ‘re-education’, which centres on eliminating the supposed criminal tendencies inherent in the personalities of the convicted, replaces punishment, as antisocial behaviour is treated as ‘mental deviance’ by psychologists. There is a great deal to be said for legal institutions such as individual rights and the rule of law, which handle social conflict in a public forum, in full view of the citizenry, rather than in the unseen world of hospitals and asylums. Yet most Marxist critiques of Soviet authoritarianism consider the lack of individual liberties in that system as a consequence of the

The Withering Away' of Law

25

Soviet revolution’s departure from the doctrine of the withering away of law and state. David McLellan, for example, points to the uniqueness of Russian conditions and the authoritarian tendencies of Lenin, in order to explain why the state, instead of eliminating its presuppositions, transformed itself from the rule of the majority class to rule by a Party elite.7'’ Hal Draper and Richard Hunt argue that the idea of the dictatorship of the proletariat was reinterpreted and took on a much more important role in Soviet Marxism, in order to justify ‘totalitarian democracy’, as opposed to the more authentic democratic vision of Marx and Engels. Both maintain that in the place of a stateless ideal of socialism, there grew a vanguard doctrine of the state as the organ of the majority, in so far as it speaks for proletarian interests, without a democratic procedure to ascertain how the working classes themselves perceive their interests. Marx’s vision of a deprofessionalized socialism is abandoned, since the state persists as both a self-serving hierarchy and a vehicle of coercion.77 Elsewhere it has been argued that Soviet­ style authoritarianism could have been avoided if the true meaning of the dictatorship of the proletariat as a withering power was preserved. Only then could socialist society realize the Marxist aspiration of human emancipation, in which there is liberty without law and democracy without political structures.7" Affirming Marx’s equation of law and state with domination and the division of society into classes, a recent study poses the rhetorical question: ‘If certain types of opposition are not explicidy protected, and if the dictatorship of the proletariat increasingly takes on the character of an armed camp, obsessed by real and imaginary enemies of its own making, will the state ever “wither away”?’’’'

To sum up. The doctrine of the withering away is not an abandoned ideal, but a continuing theoretical standpoint in the history of‘existing socialism’ which, reducing law to a vehicle of domination, has been unable to inhibit repressive developments in Soviet legal history'. 76 ‘Marx, Engels and Lenin on Party and State’, in Leslie Holmes (cd.), Hilhering /imay of the Stale? Party and Shite under Communism (London, 1981), 25-9. 77 Hal Draper, ‘Marx and the Dictatorship of the Proletariat’, in M, Rubel (ed.), Etudes de Marxologie, 6 (1982), 5-74; Hunt, Political Ideas ofMarx and Engels, ii, 363-7. 7K Kazem Radjavi, La diclalure du proletariat el deperissemenl de Petal de .ILirv a Lenin, doct. thesis (Geneva; pub. Paris, 1975), 254-9. More Leninist approaches also consider Soviet authoritarianism a consequence of the non-fullilment ol the withering away thesis: see Mandel, On Bureaucracy, Colletti, ‘Power and Democracy’, Miliband, 'State and Revolution’. 77 Lovell, From Marx to Lenin, 87.

26

The Withering Array ’ of Lan>

Indeed, the idea that law is an instrument for class rule has sometimes been used, doubtless contrary to the original Marxist vision, to justify authoritarian brands of socialism. In seeking to understand the disappointing record of Marx’s emancipatory project in Eastern Europe, Marxists should be concerned with the adequacy of an ideal socialist society that promises liberty and democracy with neither the legal nor political mechanisms which, in bourgeois society, have been their minimal guarantee. The two other definitions of law, as a mediator of egoism, and as an ideological representation of capitalist society, provide a framework for a socialist jurisprudence that does not forsake all liberal values. The view of law as a social structure which regulates bourgeois egoism grasps the interpersonal conflict that underlies law, though it denies the possibility of conflict which is not the result of selfishness. A socialist jurisprudence must demonstrate the possibility that interpersonal conflict may arise in a socialist society which is not connected with egoism and class divisions. The view that law is a form of ideology also reveals the positive components of legal institutions. 1 have noted E. P. Thompson’s claim that ‘if the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony’.80 A socialist jurisprudence must begin with an understanding of the ambivalence of legal ideology, which, in its very role as a legitimating force, offers moral values. The withering away argument does not explain why, if law must have a moral value to be functional to class society, this moral value cannot avail itself to a classless society. If Marxism envisions a socialist future which exploits capitalist technology, arguing that the technological resources of capitalism will be more fully developed under socialism, perhaps Marxism should likewise embrace law as an emancipatory feature of capitalism that would continue to exist, albeit in altered form. One can accept the view that the abstract and formal liberties offered by law leave unchallenged the exploitation and domination intrinsic to the capitalist system, or even worse, that in providing such liberties law legitimates and thereby serves the injustice of the economic order. But if the law none the less stands as a framework for mediating individual differences, or as a source of fragments of genuine justice, as the egoist and ideology views between them w Whigs and Hunters, 263.

I The 'WitheringArray' of Law

27

concede, then socialists would do well to consider how to preserve and develop them in post-capitalist society. ‘Existing socialism’ has demonstrated the impossibility of law ‘withering away’; conflict will outlive classes and disputes will continue to need regulation long after the demise of bourgeois market relationships. In the absence of legality, it is a repressive extra-legalism that will regulate socialist society, either nakedly, or masquerading as law. It remains to determine how the legal, as opposed to the extra-legal or pseudo-legal, is to be defined. i

-!

2

Justice and the Sources of Socialist Law

Suppose that law docs not ‘wither away’ in a socialist or Communist utopia. Instead, legal institutions of some sort continue to mediate social relations in the absence of either bourgeois egoism or class conflict. A challenge to the withering away thesis throws into relief the nature of a valid legal system; it raises the question of how law is to be defined. If we arc to countenance law under socialism, we must know what kind of practices count as legal practices. Wc need to develop a theory' of how we arc to identify law. Such a theory would have to determine the weight that should be assigned to the institutional foundation of societal rules, and the moral value of the rules themselves, in ascertaining what is to count as law. The question of what makes a certain system of rules or practices a legal system is the problem of the source of law. Although this problem has relevance beyond the confines of mainstream legal theory, the Marxist pre­ occupation with the withering away of law has prevented left-wing social theory from tackling it: for most Marxists, it remains, in effect, a non-issue. Thus it is not Marxism but liberal legal theory, and, in particular, analytical jurisprudence, that offers the best place to begin an analysis of the sources of law. And there one finds a philosophical deadlock between natural lawyers, who consider the validity of law to be a moral question, and legal positivists, who remove questions of morality from the sources of law. There is some analogous discussion on the Left, but it is the liberal debate that has the most to contribute to a socialist theory of the sources of law. After an examination of this debate, the socialist will be able to assess the extent to which existing socialist practices can properly be considered within the institution of law. The age-old question of whether inequitable law is really law can then be posed in a new light.

Justice and the Sources of Socialist Lan>

29

The Natural Law Position If the moral defects of a legal system are such as to undermine that system’s claim to being law, docs this mean law and morality are one and the same? Some natural lawyers would draw this conclusion. The natural lawyer’s position has been described as, quite simply, the view that ‘to know what is legally binding one has to find out what is morally binding’.1 This is so because, as Franz Neumann puts it, there exists a set of ‘natural’ laws which have validity ‘even when the positive law of the state ignores its postulates’.2 While legal rules may be the product of legislation, precedent, or custom, the natural lawyer believes that such requirements arc not legally binding unless they fulfil certain moral criteria. Promulgation by government or application by the judiciary may be necessary conditions for the validity of law, but they arc not sufficient conditions. The moral authority of natural law has been thought to have a variety of origins: human nature, ‘the moral law’, and God arc some examples. A well-argued natural law theory which has theological foundations has recently been expounded by John Finnis. Following Aquinas, Finnis holds that natural law is the participation of God’s law in human beings.1 He considers the validity of positive law to emanate from its ‘rational connection with natural law’, a connection that normally obtains when the law is created by legally recognized procedures, and when the law is just both in its content and in the circumstances to which it may apply. Finnis resists the idea that natural law is simply a litmus paper for determining valid law, however. He suggests his notion of natural law is that of a ‘focal meaning’, a paradigmatic case, or a Weberian ideal type, to which law aspires.4 Yet even on this more minimal conception, law by definition must at least strive toward the realization of moral truth. Finnis is not concerned merely with sharpening people’s moral sensibilities when they interact with the law, but with expounding a theory of the relevance of morality in understanding ndiat the lan> is. He argues that whether a rule is ‘fully

I

I

1 Joseph Raz, ‘Professor Dworkin’s Theory of Rights’, Political Studies, 26/1 (1978), 136. 1 Democratic and /lulhorilarian Stale (New York, 1964), 26. 3 Natural Lain and Natural Rights (Oxford. 1980). 398. ‘ Ibid. 18. To that extent the legal positivist 11. I.. A. I lart considers F'innis’s position as ‘complementary' to’, rather than ‘a rival of’, positivist legal theory, see 1 lart, ‘Introduction’, in Essays in Jurisprudence and Philosophy (Oxford, 1983), to.

11

Justice and the Sources of Socialist Lam

30

instantiated as law’ depends on, among other things, the extent to which it embodies ‘principles of practical reasonableness’, of‘good and proper order among men and in individual conduct’, and the ‘common good’.’ Thus it would seem that, on Finnis’s conception of natural law, whether a social rule is law depends both on institutional sources and the extent to which the rule is morally binding. Ronald Dworkin distinguishes his legal philosophy from ‘natural theories’ that consider the basis of law to lie in an objective moral reality which is discoverable in the way one discovers the laws of physics. Dworkin offers instead what he calls a ‘constructive’ doctrine, in which legal practitioners take precedents in the law as specifications for a moral principle they must construct.6 It is unclear whether this doctrine qualifies Dworkin as a natural lawyer. The legal positivist Joseph Raz thinks it does, given Dworkin’s contention that rules arc law not in virtue of their legislative or judicial practice, but in so far as they are morally binding.’ Yet Finnis considers moral objectivism to be the essence of natural law, and he dissociates himself from Dworkin’s position, asserting that ‘a theory so relative to the moral opinions and practices of a given community is not a general theory such as theories of natural law may be’.8 Dworkin’s views on civil disobedience do seem to affirm the traditional natural law thesis that failure to conform to a moral standard renders a rule invalid as law. Dworkin maintains that the citizen’s decision to disobey the decisions of a court or legislature rests on an assessment of the decision not merely as morally abhorrent but as, on that basis, not properly law: the citizen ‘proceeds on his own considered and reasonable view of what the law requires’.9 Moreover, Dworkin’s idea that law should be considered akin to the rules devised by a Herculean judge of great moral wisdom, who seeks to build principles that fit the ways of life of his society, indicates that the source of law lies in some transcendent morality. There is certainly a natural law flavour to his proposition that in order to be valid as law social rules must embody ‘right answers’. More recently, Dworkin has stated that laws can be identified with ‘the assumption that they were all created by a single author—the community personified—and express a coherent conception of justice and fairness’. The single author can be represented by Hercules, who * '• 7 *

Natural Law, 18, 153-60. Taking Rights Seriously (Cambridge, Mass., 1978), 160-1. ‘Professor Dworkin’s '1’heory’, 136. Natural Law, 21. 9 Taking Rights Seriously, 214.

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Justice and the Sources of Socialist Law

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understands law as ‘integrity’, a coherent, structured whole, ‘the idea of law worked pure’."1 The appeal of the natural law theory lies in its insistence that positive law must have a moral dimension. Natural lawyers are prepared to get their hands dirty and plumb the murky yet important problem of whether a morally defective system of rules is law. Natural philosophies of law can pronounce on an inequitable social order in terms of its significance for legal validity. Some laws would turn out not to be ‘real laws’ after all, according to the moral criteria of the ‘common good’ posited by Finnis or the ‘justice and fairness’ of Dworkin. Yet the natural law position may be problematic for many Marxists, even assuming that they have abandoned the thesis that law is functional only in societies of private property. The Marxist’s difficulty can be traced to the status of the morality to which the law must refer. What exactly arc the ‘natural laws’ or ‘right answers’ from which positive law derives its validity? The problem is not just that natural lawyers do not all ask this question in the same way. We would expect natural law to be difficult to apprehend and its proponents to be divided about its nature, but this does not render it less valid as a criterion for determining the existence of law. What may trouble the Marxist is the natural lawyer’s attempt to offer a moral standard that transcends the different moral situations which may arise in a society, not to mention those posed by different cultures and historical epochs. While Finnis locates the identity of law in a community’s well-being, this is an ideal which he claims cannot be ‘relative to the moral opinions and practices of a given community’." And while Dworkin argues that the ‘right answers’ which law must instantiate arc not discovered but ‘constructed’ out of the ways of life of a society, there also seems to be a transcendent aspect to his theory, in so far as he claims that the Herculean judge formulates legal principles of justice and fairness as though they emerged from a ‘single author’ or ‘the community personified’. For Marx and Engels, however,

The social structure and the State arc continually evolving out of the life­ process of definite individuals, but of individuals, not as they may appear in their own or other people’s imagination, but as they really are, i.c., as they operate, produce materially, and hence as they work under definite material 10 Law's Empire (London, 1986), 225, 400.

11 Natural Lan\ 21.

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Justice and the Sources of Socialist Lan>

limits . . . the production of ideas, of conceptions, of consciousness, is at first directly interwoven with the material activity and the material intercourse of men, the language of real life.. .. The same applies to mental production as expressed in the language of politics, laws, morality, religion, metaphysics, etc., of a people.'2 Hence, most Marxists would share Tom Campbell’s worry that *. . . the idea of a detailed, substantive body of “laws” manifest to human reason, either intuitively or by deduction from self-evident facts about human nature, is incompatible with characteristic socialist accounts of the emergence and function of moral rules in pre-socialist societies’.'-’ Moreover, the Marxist will be deeply suspicious of the idea of positive law being derived from a ‘natural’ morality, since he would argue that moral standards are also the product of certain social practices.14 Under capitalism, the bourgeoisie is said to erect a so-called ‘natural law’ of private property to suit the relations of production in which that class enjoys pride of place. Marx and Engels speak of the ‘selfish misconception’ of any ruling class that their particular social forms are ‘eternal laws of nature and reason’. Law and morality are simply ‘so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests’.15 Even the Marxist who affirms the existence of a socialist morality would probably argue that it is the historically specific practices of people in society which give rise to morality in the first place. On this account, it is both alienating and senseless to posit a moral standard that is external to these practices as do Finnis, and perhaps Dworkin, with his concept of the Herculean judge. So perhaps the natural law theory is not able to provide the socialist with adequate criteria for the identification of law. We must look elsewhere for an alternative or complement to the natural law position in order to reach a fuller understanding of the sources of law. We thus turn to the arguments of positivist legal theory, as formulated by two of its contemporary exponents, H. L. A. Hart and Joseph Raz. 12 German Ideology, MESW i: 24-5. 11 The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights (London, 1983). 23u Sec Steven Lukes, Marxism and Morality (Oxford, 1985), and David Bakhurst, ‘Marxism and Ethical Particularism: A Response to Steven Lukes’s Marxism and Morality', Praxis International, 5/2 (July 1985), for discussions of the possibility of a Marxist moral theory. 15 Manifesto ofthe Community Parly, MESW 1: 118, 123. But Michael Jaworskyj gives an account in ‘Soviet Critique of the “Bourgeois” Philosophy of Law’, Osteuropa Rccht, 6 (i960), 18, of the disparate views Soviet jurists took of the idea of natural law, from ‘progressive’, (as found in Rousseau), to ‘reactionary’, (as expounded by Aquinas).

2

Justice and the Sources of Socialist Law

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The Legal Positivist Critique Legal positivists argue that the source of law lies not in morality but in ‘social facts’. For H. L. A. Hart, these facts are certain rules internal to a positive system of law which specify what counts as law in that system. The source of law is derived from ‘primary rules of obligation’, coupled with ‘secondary rules of recognition’, so that the capacity of the law to impose obligations is buttressed by a set of validity­ conferring rules by which can be recognized the unique identifying mark or criterion of that system’s law. The rules of recognition of a legal system offer a test, such as enactment by Parliament, judicial precedent, or a written constitution, which a rule must pass to be valid as law.16 Joseph Raz advances a ‘sources thesis’ in which the existence of law is fully determined by ‘social sources’, without any reference to moral issues. Sources are such things as acts of Parliament and legal precedents, but also ‘interpretive materials’, by which Raz presumably means particular legal maxims like the duty to honour a contract. Any law has its source in ‘a whole range of facts of a variety of kinds’. The identification of law nevertheless remains a matter of ‘social fact’ alone, and must make no reference to moral argument.” Neither Hart nor Raz considers it part of his argument that moral issues and standards have no application in analysing the law. Hart contends that while the merits of a law do not play any part in determining its validity, conventional morality and moral criticism have an ‘indisputable’ effect on the development of law. In considering particular laws which ‘were morally iniquitous but were enacted in proper form, clear in meaning and satisfied all the acknowledged criteria of validity of a system ... we should say, “this is law”; but it is too iniquitous to be obeyed’.'" Raz similarly concedes that judges use moral arguments when creating the law, but when applying the law, which is by definition source-based, technical legal skills, not moral acumen, arc all that is necessary. ‘If a legal question is not answered by standards deriving from legal sources, then it lacks a legal answer—the law on the question is unsettled.’''’ Thus Neumann’s claim, that legal positivism exterminates ‘all attempts to measure the system of positive law on some normative standard’, docs not do justice to all positivist Concept of Late (Oxford, 1972), 84-98. 17 Authority ofLaw (Oxford, 1979), 46-8, 53. Concept ofLam, 181, 203. ” Authority ofLaw, 49-50.

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Justice and the Sources of Socialist Law

doctrines.20 Normative standards can be invoked to create or assess law, though not to determine whether or not it is law. The test of a rule’s identity as law is a formal or technical test; the rule may offend against a society’s own morality, or against ‘objective’ morality, and yet still be valid law.21 Legal positivism can be characterized as a view of law as a closed system without gaps, which ascribes the judge no tasks but cognitive ones in the mechanical application of a determinate system of rules.22 While moral phenomena feature in the process of making and criticizing law, the identification of law does not have recourse to moral considerations: what is law is a matter of ‘institutional fact’.

Socialist Positivism The legal positivist emphasis on particular societies’ institutions of legality seems to satisfy the Marxist’s insistence1 that, contrary to the natural law thesis, moral rightness cannot be ahistorical. The positivist considers law a human institution, its existence settled by appeal, not to moral notions external to human history, but to the rules established by social practice; the Marxist view is that morality itself can be properly understood only as a historical and social product, which emerges and functions within specific practices and policies. In Raz’s theory one finds the same stress on social institutions: legal rules arc ‘posited, made law by the activities of human beings’. Similarly, Hart points to the social practices ‘which underlie legislative authority’.2-’ For positivist and Marxist alike, it is the concrete, social activity of human beings that determines the existence of law. Further, positivism’s focus on social institutions might be thought to lend itself to a communal, perhaps even democratic, conception of law as the product of collective decision-making which would be central to any socialist theory of law. Raz claims for his theory that law is understood ‘as the outcome of deliberate human decision as to what society should be like’.2’ Legal rules both emerge from and regulate the practices of people in society. One socialist puts it in a similar way: ‘The sociality that receives expression in law . . . constitutes itself in experience only insofar as empirical individuals recognize and i

T

w 11 u “ ”

Democratic and Authoritarian Stale, 69. Concept of Lam, 205. Democratic and Authoritarian Slate, 36-7. Authority of Lam, 38; Concept of Lam, 57. Authority of Lam, 86.

Justice and the Sources of Socialist Law

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incorporate legal obligations into their own life-activity and self­ identity.’25 It is not surprising, then, that a ‘positivistic socialist analysis’ has recently been urged as the starting-point for socialist theories of law.26 There is a precedent for this marriage of positivist method and socialist ideals. Probably the most systematic theory of socialist law is that expounded by a thinker from the Austro-Marxist school, Karl Renner, whose writings provide a useful contrast with the legal nihilism of Bolshevik jurists like Evgeny Pashukanis. While Pashukanis held that law is intrinsically a reflection of commodity relations, Renner developed a positivist approach that dissociated legal ‘facts’ from the normative functions to which they are put, and thus permitted the deployment of law for non-capitalist purposes. Just as positivists like Hart and Raz separate the criteria for identifying law from the moral dimension of law’s development, Renner argues that law has a twofold nature: the legal rule itself and the normative function it fulfils in a particular society.2’ For Renner, the enactments of a state cannot keep pace with changes in society because these enactments are cast within a rigid form, the legal rule, which is no match for the dynamic economic and social relations that the rule seeks to regulate. Renner cites as an example the transformation in the function of the legal right to property, as feudal economic relationships were replaced by capitalist ones:

In the eyes of the law, the property-subject is related to the object only, controlling matter alone. But what is control of property in law, becomes in fact man’s control of human beings, of the wage-labourers, as soon as property has developed into capital. The individual called owner sets the tasks to others, he makes them subject to his commands . . . Thus the emergence of property in capital converts the right of ownership into a right to issue commands over others, thereby creating a right to regulate power and labour, a title to surplus value, and ultimately, a propcrtyless class. ‘Law’s social function is determined by the hard facts below the plane of law’, but the legal rule is itself resistant to the change wrought by economic forces.2" 25 Andrew Eraser, ‘The Legal Theory We Need Now’, Socialist Review, 40-1 (JulyOct. 1978), 153. Eraser, however, is very critical of legal positivism. 2,1 Campbell, The Left and Rights, 25. 27 Institutions ofPrivate Law and their Social Functions, ed. and introd. O. Kahn 1'reund, trans. Agnes Schwarzschild (London, 1976), 52-3. 17 Ibid. 106.

36

Justice and the Sources of Socialist Lam

For all its similarities, Renner’s position differs from that of legal positivists like Hart and Raz. Whereas the latter arc concerned with separating legal facts from moral values, Renner separates the objective legal rule from a normative sphere that is primarily economic and social in nature. Furthermore, not all positivists would agree with Renner’s insistence that changes in the normative function of law do not influence the legal facts themselves. Nevertheless, Renner’s idea that the existence of law is determined without reference to normative criteria is an essential positivist thesis. Renner’s extreme positivist formulation of the sources of law gives legal institutions an open-endedness which makes possible socialist law. The legal norm is an ‘empty frame’, a ‘vessel without content’, which can be extracted from one social order to be deployed in another. For Renner, it is not the legal form of contract but its use in capitalist property relations that renders it an instrument of exploitation. Thus he concludes that the form of law need not be abandoned, nor even radically transformed, in the transition from capitalist to socialist society. It is enough that relations of power are democratically restructured, so that a socialist community makes law in a context of freedom, in full consciousness and without pressure from particular economic interests.2'' While we may welcome Renner’s theory as a Marxist analysis which finds superstructural phenomena to have some independence from economic relations, we might be suspicious of the implication that law is a neutral mechanism that can be cut loose from the relations of private property and placed at the disposal of any society.™ Renner’s position invited Pashukanis to produce the well-known objection that legal relations arc embedded in the relations of the market, so that the very form of law reflects capitalist political and economic forces.3' But while Renner did not recognize that the form of bourgeois law could be problematic, Pashukanis’s concern with the legal form resulted in a refusal to take the idea of socialist law seriously; we may conclude that there is much of value in Renner’s theory which Pashukanis leaves unhurt. Against both theorists, it should be possible to affirm that a ** Institutions of Private Lam and their Social Functions, if], 294-5. w Sec Paul I Unit, On Lam and Ideology (London, 1979), 122-6; Richard Kinsey, ‘Karl Renner on Socialist Legality’, in D. Sugarman (cd.), Legality, Ideology and the Slate (London, 1983), 22-4. “ Evgeny Pashukanis, Selected Writings on Marxism and Lam, cd. and introd. P. Beirne and R. Sharlet (London, 1970), 43, 58.

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socialist society would retrieve capitalist legal institutions in a way which could not leave the old legal forms intact, revising them in die light of the new socialist economic forces.

Hard Cases and the Morality of Law While legal positivism is attractive because it locates the sources of law in social practice, Marxists may find it difficult to embrace the doctrine whole-heartedly. Their resistance cannot simply be attributed to a dogmatic revulsion to ‘bourgeois’ social science, premissed on some facile depiction of positivism as an apology for the status quo.12 On the contrary, the socialist may welcome legal positivism because it provides an opportunity to indict societal rules which arc both iniquitous and valid as law, thus implying a more far-reaching attack on the gov­ ernmental institutions that arc their source. None the less, one may feel uncomfortable with the positivist’s complete separation of the identification of law from any normative order. Though Marxist theory, like positivism, emphasizes social practices, for many Marxists, these practices feature as the basis for the normative and moral pheno­ mena that pervade social life. Thus the proper response to natural law philosophy should be not to cut morality out of the identification of law but to conceptualize morality on a different basis.” It has been noted that the legal positivist stresses that moral con­ siderations enter into the process of making law but bars them from the conditions for law’s existence, and the tension between these two thoughts is perhaps the source of the weakness of positivist argument. Just what are the positivist’s ideas on the relevance of morality for legal institutions? Raz maintains that his object is to formulate a positivist theory that ‘need not conflict with the natural lawyer’s view concerning the semantic analysis of normative terms and the relation between law and morality’. The sources thesis does not require that people’s moral views be disregarded; while a test for the identity of law must be 'capable of being described in value-neutral terms, this docs not mean •*2 Although this is suggested by 1 .eft-wing critics of positivism such as Neumann, Democratic and Authoritarian Stale, 69; D. F. B. Tucker, Marxism and Individualism (Oxford, 1980), 227-9; M. J. Detmold, Unity oj Lair and Morality: A Refutation oj Legal Positivism (London, 1984), 21. Sec also Andrzej Walicki, Legal Philosophies uj Russian Liberalism (Oxford, 1987), 4-5 and passim, “ Indeed, it has been argued that, in contrast to the original normative framework of Marx and Pashukanis, positivism dominated Soviet legal culture in the 1930s precisely because a conception of law devoid of moral criteria was functional for the authoritarian regime. See Wojciech Sadurski, ‘Marxism and Legal Positivism', in D.J. Galligan (cd.). Essays in Legal Theory (Carlton, 1984).

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that no value or deontic conclusions are entailed by it’. Nor must legal positivism be predicated on an antirealist view of ethics. Raz can agree with Dworkin that there are ‘right answers’ to which the law should aspire to be good law, but he would argue that a law that did not provide these answers would be no less valid than one that did. The claim that what is law and what is not is purely a matter of social fact still leaves it an open question whether or not those social facts by which we identify the law or determine its existence do or do not endow it with moral merit.34

Raz suggests that every legal system which is effective may realize certain moral precepts. Hart too argues that his position can incorporate the idea of a necessary connection between law and morality if it simply means that the stability of legal systems depends in part upon law’s correspondence with ethical values.35 Nevertheless, both theorists affirm that when judge or legal theorist identify law they prescind from any debate about the morality of law’s sources, thus making the moral issues more perspicuous. Civil disobedience, for example, becomes a clear-cut case of violating what is legally required in favour of what is morally required. For Raz and Hart, here lies the appeal of positivism: the principled individual is liberated from any suggestion that moral legitimacy is built into the legality of a law.3'1 ‘If the law is to be identified by social tests, then trying to identify it without clearly separating social facts from evaluative considerations is misleading and downright wrong.’37 Legal positivism seems to give a boost to the socialist’s critique of capitalist legal systems. But there are serious objections to be made against the legal positivist position. The Marxist who seeks to develop a theory of socialist law may be unhappy with the idea that the connection between a set of legal institutions and the requirements of morality is a purely contingent matter. After all, his very motivation for considering the role law might play in a socialist society would spring from the conviction that law by definition embodies a minimum of justice. This thought underlies E. P. Thompson’s appeal to the Left to take law seriously. Faced with ‘a bad law’, he insists, ‘We feel contempt not because we are contemptuous of the notion of a just and equitable 34 Authority ofLam, 38-41. )s Concept of Lam, 199-200. 34 Ibid. 205. The positivist position would thus also seem to free the radical from any obligation to obey the law. I address the problem of obligation in a socialist democracy in Ch. 6. 37 Authority ofLam, 42.

Justice and the Sources ofSocialist Law

39

law but because this notion has been betrayed by its own professors.’-"1 It may be suspected that the view that the identification of law merely requires the mechanical application of a given set of formal rules recapitulates the very withering away thesis that has long prevented fruitful analysis of socialist law. Without any minimum moral content, socialist law starts to look suspiciously like the ‘administration of things’ Engels envisaged would feature in a socialist society without law. The positivist analysis may appear appropriate for a legal system that already embodies a minimum of procedural justice, wherein law is regular, calculable, and consistent. But what of the tyrannical legal system? There the sources of law, or the rules of recognition, may be followed in so far as there are precedents and traditions for its more sinister institutions. Many legal systems provide for the prosecution of people who have not committed a specified criminal act, or the imposi­ tion of punishment which is out of proportion with the committed crime. These laws arc source-based in that sense. But the source is so unjust as to suggest that it is not an adequate source after all. It is not simply that the content of such law is morally unsatisfactory; the immor­ ality of its procedural source bears on its validity as law. Thus the critic of‘bourgeois law’ may have to concede that its merely procedural rules of recognition do have a moral aspect that differentiates it from the rampantly unjust legal systems of other societies. The legal positivist is in fact forced to admit the intrusion of moral considerations in the determination of legal decisions when the law, identified without recourse to moral criteria, is uncertain. This may prove to be the Achilles heel of the positivist position. Hart suggests that the rules of recognition can be indeterminate in some situations, so that the judicial official may have to draw on non-legal resources in the face of the absence of any clear legal criterion of validity. In these situations the rule has an ‘open texture’, a gap, a ‘penumbra of doubt’ which interfaces with the core of certainty.1'’ Hart states that in penumbral questions, intelligent decisions will be made ‘in light of aims, purposes and policies, though not anything we call moral principles’. This seems an odd distinction, since moral reasoning is usually considered relevant to determine good ‘aims, purposes and policies’, and one would therefore expect moral principles to play a role in the resolution of many penumbral cases. Indeed, at one point in his argument Hart tacitly concedes that morality plays a role in w Whigs and Hunters: The Origins ofthe Black Act (New York, 1975), 268. 39 Concept ofLanu 119-32.

40

Justice and the Sources of Socialist Law

the resolution of penumbral cases; he remarks that in blurring the question of what the law is and what morality requires it to be, the natural lawyer risks reducing all legal issues to ‘those of the penumbra’.™ Raz is more explicit, and asserts that ‘non-source’, moral criteria do help to determine unsettled questions. ‘If a legal question is not answered by standards deriving from legal sources then it lacks a legal answer . . . decisions in such cases rely at least partly on moral and other extra-legal considerations.’41 Thus on the legal positivist view, it is only when a legal answer docs not present itself that morality has a role to play. In a sense, the invocation of morality is an indication that we are no longer engaged in the identification of law; there is no law to be identified, so morality steps into the void. But is it really a void? Docs the hard case require a ‘leap in the dark’, a radically different set of criteria for its resolution? The legal positivist claims that the judge, by using morality to guide his decision, is not basing it on sources, but on legal materials. What makes his decision law is simply the fact that he made it; after a nonlegal, because normative, process of developing the law, legality is invested in the resolution of hard cases simply by the authority of the judge. But it seems counter-intuitive to hold that the morality the judge draws upon is irrelevant to the question of whether his decision is valid. We ask ourselves whether the decision is ‘proper’ or ‘fitting’, and these are moral notions. If the decision in the hard case is morally abhorrent, this would shake our confidence that it is valid as law. Moreover, this raises the question as to whether the relevance of moral issues is confined only to hard cases. The positivist’s concession to morality in hard cases cannot be prevented from infecting other cases as well. A shifting of gears from fact-finding, where law is to be identified, to morality-creating, where the law is silent, does not seem to be faithful to the nature of our legal practices. A difficult mathema­ tics problem, for example, is no less mathematics than a simple one. And where the legal issue is difficult to resolve, the judge still identifies law; he does not do something else. Hart himself seems to recognize this; the view that judges simply make up the law in hard cases, he says, obscures ‘the essential continuity between the clear cases of the rule’s application and the penumbral decisions’.42 The difficult case involves more complex, subdc, and controversial legal concepts (such as ‘natural 10 ‘Positivism and the Separation of Law and Morals’, in Essays in Jurisprudence and Philosophy (Oxford, 1983), 71-2. 41 Authority ofLaw, 50. « ‘Positivism’, 69.

Justice and the Sources of Socialist Law

41

justice’ or equity), but it would be no more evaluative and normative than the straightforward one. We could suggest that legal practices come within a single order of activity, so that the difference between these cases is a matter of the extent to which the moral criteria employed is contentious, not whether it is in play at all. Dworkin points out that interpretation is equally at work in easy cases, but the answers to the questions it poses are sufficiently obvious that we arc not aware of its influence.4-’ If, as Dworkin argues, law is ‘relcndessly interpretive’, the view that either law is applied, or one’s commitments and values arc substituted for the law, seems to misconceive the nature of legal reasoning.44 We may conclude that positivist legal theory gives an inadequate account of the sources of law. It fails to consider that the tyrannical system may not be law precisely because its procedures lack the moral dimension intrinsic to the procedural sources of valid law. And the legal positivist fails to persuade us that the presence of moral evaluation in the assessment of the hard case has no relevance for the certain one. Praxis and the Identification of Law It remains to be seen whether the Marxist conceptual framework can make sense of the idea that the norm permeates law without losing the positivist’s insight that human institutions are essential to law’s creation. Marx’s concept of objectification, though vague and obscure, may lend itself to such an analysis. Indeed, Karl Klarc argues that this concept is ‘a metaphysical category' expansive enough to encompass all forms of social practices, including legal practice’/5 Objectification is a social practice, or to use Marx’s term, praxis, in which man 'imposes his personality’ on nature. When the individual transforms natural materials into an object for his use, he objectifies himself, in the sense that his needs, ideas, purposes, and aims arc given a physical existence in the world of things. Human beings thus write significance into 43 Law's Empire, 354. 44 It is interesting that it is only in the English language that legal rules have only one name, law, which means a positive enactment, stripped of any moral force. I he German word recht, the French word droit, and the Italian dirritto all refer to the law, as a moral entity, in which fundamental ethical principles are inscribed, as well as the sense of law as a positive, binding rule. Sec II. L. A. Hart, ‘Are there any Natural Rights?', in J. Waldron, (cd.), Theories ofRights (Oxford, 1984), 79. 45 ‘Law-making as Praxis’, Telos, 40 (Summer 1979), 131.

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Justice and the Sources of Socialist Lam

nature when they labour and create things from it. Take an artefact, c.g. a salt-cellar. It can be analysed in purely physical terms: it is made of glass and aluminium, perhaps. But that is not to tell the whole story. For the cellar is also an artefact, made for use. It has been designed to fulfil a function for human beings. As such, it objectifies human capacities and wants. Law, too, could be seen as a product of human objectification which bears the stamp of human needs and aims. Of course, law is at a greater level of complexity than a salt-ccllar; it is the system of social rules which, among other things, regulates the production and distribution of commodities, of which our salt-cellar is one example. Nevertheless, a particular law is perhaps akin to a particular artefact, in the sense that both function as tools which arc created by normative social practices, and which in turn are employed to fulfil certain functions in these practices. It may be that the role law is to play in human society is a constituent of its identity, which encompasses normative conditions much like those which go into the criteria for an object’s being a salt-cellar.4'’ This may look rather abstract and far-removed. All that has been shown is that if objectification is a valid way of understanding the production of commodities, and if the commodity and law can on that basis be identified as sharing a common status as tools, then the identification of law may be bound up with normative considerations derived from law’s function in human society. It has not been demonstrated that the normative considerations that go into identifying law are moral ones. After all, salt-cellars do not have any moral significance! But the idea of the design of a commodity may offer a parallel with the idea of the morality of law. Design is a complex notion: a well-designed salt-cellar both pleases the eye and works well. Indeed, the concept of good design suggests that the criteria with which we assess a salt-ccllar, utility and aesthetic appeal, are not unrelated, that there is a sense in which the aesthetic form of the object should enable it to perform its function well, and that in turn, a functional object can be, in virtue of its functional design, a beautiful thing. Contemporary artefacts like a Swiss army knife or an espresso coffee-maker arc considered beautiful in that sense. Their beauty is due in part to the fact that they have not been overlaid with decorative detail for its own sake. They could be contrasted with Victorian * Lon Fuller makes this connection between law’s function and the morality of law: See Fuller, ‘Positivism and Fidelity to Law—A Reply to Professor Hart’, Harvard Law Review, 71 (1968).

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artefacts which arc characterized by intrusive and abundant ornament, and therefore strike some people as disfunctional and hence ugly. Perhaps this aesthetic aspect of the commodity’s function as a social tool offers a way into conceiving the moral aspect of the legal tool. The morality of law is bound up with its ability to function as a welldesigned social rule. The law as norm includes moral values, just as the commodity as norm includes aesthetic ones.47 Orthodox Marxists may dismiss this moral aspect of law as mere ideology, a pretension that disguises law’s class interests. But we have seen that E. P. Thompson has argued that legal ideology will be effective only if it succeeds in delivering on its moral claims; the mystification of class power may require that class power is modified or even curbed. As ideology, law must offer a minimum of justice.48 Moreover, conceiving law as a form of objectification has the advantage of enabling the Marxist to embrace law as a form of creative, social activity without giving up his criticial perspective. He can say of unjust law that it fails to embody human purposes and moral ideals because it issues from a process of objectification which is alienated. Alienation refers to a situation in which objectification is distorted: where our productive activity is directed by others, our creations exchanged for others’ use, and where, as a consequence, we can have no sense of ourselves and others as moral beings. When we arc alienated, we do not consider our praxis as a form of objectification; our products do not seem to bear our personalities. We take the world as ready-made, as a world of facts, not values, with an inexorable logic from which we cannot escape. As a result we worship objects, and we devalue our relations with people. Marx argues that under capitalism the man-made products of social life take on an independent existence and confront man as an objective reality to which he must conform. Human institutions acquire ‘the stability of natural, self-understood forms of social life’, so that ‘man seeks to decipher, not their historical character, for in his eyes they are immutable, but their meaning’. While we create cultural forms like law so that they may have a real authority over us, to impute these forms with an objective existence which surpasses human agency is fetishism, endowing things with life, 47 Dworkin’s idea of law as integrity, wherein the judge must adjudicate according to a conception of law as ‘a coherent and structured whole’, may be one way of understanding the normativity of ‘good design’ in legal institutions. 48 Whigs and Hunters, 258-9.

I I

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Justice and the Sources of Socialist Law

and reification, reducing the creative social life of human beings to the interaction of objects.'1’' The idea of alienation as distorted objectification allows the Marxist to distance himself from legal practices so that he can criticize those societies where legal relations are dominated, and yet not dismiss the practice of making law altogether. Following Renner, the Marxist can then cut existing, unjust law loose from its alienated social relations, to be refashioned in a society in which objectification is undistorted. The distinction can perhaps also illuminate the preoccupations of legal theory. There is a sense in which the alienation of some legal practices is manifest in legal theory itself, which either posits an ethical basis for law transcending social practices, as does the natural lawyer, or, in the legal positivist case, excludes moral considerations from the identification of the practices that make law. Renner’s positivist formulation rejects the fetishism of morality that characterizes the natural law analysis, but it fetishizes the legal form itself in so far as he divorces it from the human and evaluative conditions that created it. A positivist socialism that ‘conceives the law as only a formal structure of rules’ thus seems an inadequate description of the process of identifying law.50 Once we understand the potentially fetishistic understanding of morality in natural law, morality can be retrieved and understood as inherent in the institutional facts of law, rather than dismissed, as the positivist seeks to do, as a supra-lcgal realm separate from these facts. It would then be possible to affirm the optimism of Renner that law need not be ‘bourgeois’ and at the same time insist that legal forms cannot be identified without reference to the moral purposes and aims they are expected to fulfil.

The Justice of Law i

Can the idea that the definition of law presupposes moral criteria be given more content? It may be feared that a concept of law as intrinsically moral threatens to exclude any rule that docs not suit the particular moral sentiments of whoever is attempting to identify law. On this basis, for some critics of socialism, socialist law by definition would not fulfil the existence conditions of law, while for some socialists, any legal order founded on private property is not really law. ” Klare, ‘Law-making as Praxis’, 131—2; Marx, Capital, vol. i, pt. I, ch. 1, (3 vols., London, 1954); George Lukacs, ‘Reification and the Consciousness of the Proletariat’, in Ilislmy anil Class Cnnsciuiisness, trans. Rodney Livingstone (London, 1971), 83-1 to. As Fraser concludes in ‘The Legal Theory We Need Now', 152.

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Justice and the Sources of Socialist Lam

45

Perhaps we should heed Hart’s warning that to contend that all that is immoral is not law ‘will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another’.51 Yet moral rightness is a reference point for legal activity; communities seek to create good laws and apply them well, and we evaluate our own and other communities’ laws using moral judgments. As Andrew Fraser affirms, ‘society is a moral reality and law an expression of a developing moral consciousness.’52 What is needed, then, is a set of moral standards which are neither completely relative, nor so demanding that any rule that appears unjust is not law. What is it that we admire in what we would call a good legal system? We may admire the content of its laws, in the sense that we approve of the policies these laws advance. But we also invoke more general criteria for a good legal system, criteria that would apply even to those laws whose policies we disapprove of. Such standards involve legal procedure or structure, the extent to which law conforms to the formal standards of the rule oflam. For example, law must be framed in such a way that citizens can plan their lives with some certainty that the law’s incursion into these plans will be consistent and intelligible. If a rule is constructed in such a way as to make it difficult for people to act in accordance with its commands, then it is unfair in a sense that makes it self-defeating as law. The rule of law requires that law be general, a universally valid rule of behaviour which applies to all members of a society, so that all individuals can expect consistent treatment from the law. If the law directs itself at a target group, for example, women or minorities in ‘affirmative action’ programmes, it must give reasons founded on justice for doing so, ensuring that this incursion of particularity’ is within specified parameters and does not undermine the legal system’s conformity to the principle of generality in any other respect. Intrinsic to the principle of generality is that while law must be observed by the sovereign to function as law, it is not equivalent to the sovereign’s will. Law must meet certain procedural standards, the most important being that its application be independent front the legislative arm of the state; the judge cannot be the mere executor of the particular, and perhaps retroactive and arbitrary, whims of the sovereign." Law must

!

51 ‘Positivism’, 77. 32 ‘The Legal Theory We Need Now’, 164. 53 Democratic and Authoritarian Slate, 28-30.

i]

f

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Justice and the Sources ofSocialist Law

be prospective, known, certain, clear, and consistent in order that it may provide the citizen with a rational and reliable set of rules. All these arc moral criteria. At this point we should put theory aside for the moment to examine a set of purportedly legal practices where the guarantees of the rule of law are lacking. The following three cases taken from Soviet legal history—the show trials, the Comrades’ Courts, and the parasite laws—have all been called, at one time or another, examples of bad law. The question before us now is whether they are bad in a way so as to not be law at all. Of interest, then, is not just the kinds of policies which they embraced (although one may find these morally objection­ able) but their procedures, which were such as to offend what many people have taken to be the essence of law. By analysing in what sense these cases failed to meet the moral standards we apply in assessing legal institutions, we may come closer to answering the question of how injustice in a set of social rules invalidates their claim to being law.54

The Show Trials

1

The notorious trials that accompanied the purges of the 1930s, in which Stalin’s political opponents were convicted on charges of counter-revolutionary terrorism, conspiracy, and treason, provide a most disturbing example of the consequences of attaching no moral significance to the rules of law. These trials had many of tire trappings of what observers, in and out of the Soviet Union, presumed to be valid legal procedures: detailed questioning of the defendants, guilt determined by confessions, invocation and adherence to rules of procedure in court, and an emphasis on the opportunity for the accused to make a plea of defence. And yet the trials of Zinoviev, Kamenev, Bukharin, and a host of other prominent and lesser-known ‘Old Bolsheviks’, are now recognized as what the Soviet historian Roy Medvedev calls ‘probably the most terrible page in Russian history’.55 It turned out that the trials were fakes, and what made the realization that people had been executed without being proven guilty especially horrific was the method by which this was accomplished: apparently 54 The following analysis could be seen as engaged in a similar enterprise as the ‘is Nazi law really law’ debate. Sec Fuller, ‘Positivism and Fidelity to Law’, and, for a recent, radical analysis which links procedural guarantees with democratic government, Timothy 0’1 lagan, End ofLaw? (Oxford, 1984), 116—69. 55 Let History Judge (Manchester, 1976), ch. 8.

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valid legal institutions had been used to achieve undeniably unjust ends. The pretence in these proceedings has earned them the name ‘show trials’. Robert Tucker defines the show trial:

Here the court proceedings become literally a dramatic performance in which not only the judge and the prosecutor but also the defendant or defendants play prearranged parts as actors do on the stage. The crux of the show trial is the confession. The defendant plays the leading part by confessing in vivid detail to heinous crimes allegedly committed by himself and others as part of a great conspiracy.’''

The show trials got under way as early as 1928, with the ‘Shakhty Affair’. The accused in this case were engineers working in the coal industry who were charged with ‘wrecking’, intentionally trying to subvert production. The charges were false, and without genuine evidence, confessions were needed. Confessions were extracted by means of the ‘conveyor’ system of torture, which consisted in continual interrogation for days on end. The use of confession, and even to some extent this particular method of obtaining it, gave the illusion of legitimacy. After all, while it amounted to unfair pressure after a certain period, the conveyor had the advantage that it could not be condemned outright in principle.5' On the face of it, the trials of the Shakhty engineers seemed to conform to commonly accepted notions of procedural rules. They would serve as the model for Stalin’s show trials thereafter. Whatever ends the show trials were intended to serve, be it to blame Stalin’s failings on selected scapegoats, eliminate his opponents, or stifle opposition within the population,58 the very use of the show trials indicates that, as Harold Berman says, ‘Stalin did not want the Russian people to merely obey, he wanted them also to believe in the rightness of the order which had been established’.5'' Therefore Stalin and his procurator Andrei Vyshinksy put aside the much more efficient method of simply executing or deporting suspects and turned to ‘an extraordinary, contorted legalism’.'’0 For example, Nadezhda Mandelstam, the widow of the Russian poet Osip Mandelstam, recalls 56 The Great Purge Trial (New York, 1965), ix, introd, by Tucker. 57 Robert Conquest, The Great Terror: Stalin’s Purges of the Thirties (London, 1973), 197w Tucker and Cohen (cds.), The Great Purge Trial, introd, by I ucker; Stephen 1’. Cohen, Bukharin and the Bolshevik Revolution (London, 1974), 373-4•w Justice in the l/SSR (Cambridge, Mass., 1963), 57. *° Conquest, The Great Terror, 207-10.

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Justice and the Sources of Socialist Lain

that arrests always took place in front of a specially designated pair of ‘witnesses’: Who knows by what charter we are granted the right to be arrested and searched in the presence of members of the public, so that no arrest should take place without due process of law, and it could never be said that anyone had just disappeared at dead of night without benefit of warrant or witnesses? This is the tribute we pay to the legal concepts of a bygone age.''1 The most famous of the show trials is that of Bukharin in March 1938. Soviet authorities have now cleared Bukharin’s name and reinstated him in the Communist Party. But even if Bukharin had not eventually been rehabilitated, his defence would stand as a signal of the pseudo-legal aspects of the show trial. Bukharin was not physically tortured, but the investigators threatened to kill his wife and new-born son unless he confessed.'’2 Faced with the need to protect his family, Bukharin opted for a testimony which would ensure their safety and at the same time, give his inevitable death some meaning. As he said in court, ‘if you must die, what arc you dying for?'’3 Thus Bukharin appeared in court, unharmed, seeming to freely confess and show repentance for monstrous (to the point of being preposterous) crimes, while denying many details.

... I plead guilty to what directly follows from this, the sum total of crimes committed by this counter-revolutionary organisation, irrespective of whether or not I knew of, whether or not 1 took a direct part, in any particular act." Bukharin took great pains to indicate the inconsistencies of the accusations made against him, though he punctuated his remarks with some version of the increasingly nonsensical refrain: ‘but I am connected with the “bloc of Rights and Trotskyites”, and it is quite natural that I politically answer absolutely for everything’.'’5 Robert Conquest asks why, if Bukharin had tried to overthrow Stalin’s regime, he did not try to defend his actions.'1'’ Unless the mere act of confessing, regardless of the content of the confession itself, or the lack of other evidence, is taken as adequate proof of guilt, Bukharin’s confession did not offer a clear-cut case against him. Bukharin himself M Hope Against Hope (London, 1971), 7. “ Roy Medvedev, Lei History Jtutge, 187. " Tucker and Cohen (cds.). The Great Purge Trial, 666. w Ibid. 328. w Ibid. 664. Sec Cohen, Bukharin, 377-9, and George Katkov, Trial of Bukharin, (London, 1969), 181-93, f°r different assessments of Bukharin’s strategy. Conquest, The Great Terror, 178-9.

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said in an aside during his trial that the use of confession was 'a medieval principle of jurisprudence’.''’ Bukharin was offered defence counsel in the trial, but he refused it, either because the ‘script’ required it, or because he reasoned that in this context, such a legal guarantee would have hindered his case, functioning only as propaganda; at best, its effect on his trial would be illusory, at worst, counter-productive. There were times when the charade seemed most obvious, when Vyshinksy took the role of prompter, as well as fellow actor. For example: VYSHINSKY And what transpired? BUKHARIN: What transpired was quite different. Vyshinsky: What transpired was the complete victory of socialism. Bukharin The complete victory of socialism. Vyshinsky: And the complete collapse of your prognosis. bukharin: And the complete collapse of our prognosis. . .“ At other points, Vyshinsky seemed the model of legal decorum, as he used legal procedure to ‘save the script’:

I think that Comrade the President should explain to Bukharin that the right of the Prosecutor to put questions is based on law. I therefore ask that . . . [Bukharin’s request to give an analysis of the ideological stand of the ‘bloc of Rights and Trotskyites’) should be denied, as provided in the Code of Criminal Procedure.'1'' Commentators have argued that Bukharin attempted to turn his trial into a counter-trial of the Stalinist regime, so that while Vyshinsky attempted to show that all of Bukharin’s political acts were really crimes, Bukharin maintained that all his alleged crimes were really political acts.’" In so doing, one could say, Bukharin put on trial Stalinist pseudo-legality. In retrospect, Stalin’s use of legal procedures to criminalize political opposition succeeded in indicting, not Bukharin, but the procedures themselves. Nevertheless, the almost perfect legal artifice of the trial, its insistence on procedure and adherence to rules, was successful in persuading observers that the trial was fair and Bukharin guilty. If Bukharin had a strategy' it proved too subtle for his audience; the trial was convincing and his name was blackened, within and without the Soviet Union. But this was not because it was thought that the validity 67 Tucker and Cohen (eds.), The Great Purge Trial., 667. “ Ibid. 340. w Ibid. 327-8. 7,1 Ibid, xlviii, introd, by Tucker.

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of Soviet law was not a moral question. On the contrary, it was because the trial indicated that legality had been observed that people assumed its verdict to be right and just. Beatrice and Sidney Webb were so satisfied by the proceedings that they commended the use of confession over the methods of the ‘highly artificial legal system’ of Britain.71 Another Western observer, who would have lacked the ideological motivation of the Webbs, was an English barrister who was so convinced that Bukharin was in league with German Nazis that he held the show trials up as a warning about the capacity of fascists to infiltrate democratic societies in the West.72 Among the many lessons offered by Stalin’s show trials is that the rule of law requires that conformity to procedure go beyond the ritualistic observance of rules. A ‘show trial’ is not, after all, a ‘real’ trial. The trial of Bukharin feigned legality, but its manipulation of procedure was eventually deemed incapable of earning it the title of law. The initial success and later failure of the trial of Bukharin in giving legitimacy to Stalin’s regime reflected different judgements about the justice of the trial, but with reference to the same criterion: whether the use of confession was an adequate procedure for determining guilt. In 1938 the world was deceived. When the trial’s pretence was uncovered and de-Stalinization began, the same idea that the rule of law has a moral dimension, which Stalin had so skilfully exploited, brought the question of the requirements of ‘socialist legality’ back to the fore. The Comrades ’ Courts

A central objective of the Khrushchev regime was that Soviet ‘socialist legality’ be restored by strengthening judicial rules of procedure. At the same time Khrushchev argued that the process of de-Stalinization involved preparing for the ‘withering away’ of state and law and their replacement by grass-roots decision-making. The prominence of the Comrades’ Courts in this period should be understood in light of both of these concerns. Comrades’ Courts arc a network of lay tribunals which try petty offences in places of work and residence. As social agencies distinct from state judicial organs, these courts aim to dispense a form of popular justice free from procedural constraints. Comrades’ Courts have been in existence since 1917, when they were instituted largely in 71 Soviet Cotninnnisnt: /I Nen* Civilisation (3rd edn., London, 1944), 924-5. 72 Dudley Collard, Soviet Justice and the Trial of Radek and Others (London, 1937).

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order to relieve the congested People’s Courts." Under Stalin, however, popular and judicial interest in the Comrades’ Courts waned. Many minor offences were criminalized, and the tide of state terror under Stalin left little room for grass-roots organs of justice." It thus made sense for Khrushchev, in his speech to the 21st Party Congress, to call for the resurrection of the Comrades’ Courts as a vehicle for the democratization of Soviet society. A typical Comrades’ Court will serve several hundred people in a particular area. Its personnel arc not professionals but neighbours and fellow-workers elected by their peers in an open ballot. Proceedings are informal: sessions arc held in a meeting room, there arc no lawyers, attendance is open to all, participation from the floor is welcome, and judicial terminology is avoided." Under Khrushchev the courts’ jurisdiction included cases of labour discipline, small thefts, slander, speculation, drunkenness, and civil suits, as well as more nebulous offences such as hooliganism and infractions of ‘the rules of socialist community life’. As persuasive rather than coercive agencies, the courts arc said not to punish; but they do have the power to extract public apologies and small fines, and order evictions from places of residence or demotions at work, which in the Soviet Union are considered very severe punishment. Since 1977 there have been substantial improvements in the juridical standards of the Comrades’ Courts. The rule that permitted courts to consider ‘other anti-social acts not entailing criminal liability’ has been eliminated, members of the court are encouraged to undertake courses in legal procedure, and defendants arc now permitted to ask the court to reconsider decisions which have been shown to be dubious in light of the facts of the case or the relevant legislation.7'1 But while the courts have been put under more vigilant control by judicial professionals, there is still room for the local branch of the Party to exploit their informality in order to exert influence on 74 Peter Solomon, ‘Criminalisation and Dc-Criminalisation in Soviet Criminal Policy 1917-41’, in F. J. M. Feldbrugge and William B. Simons (eds.), Perspectives on Soviet Law in the 1980s (The I lague, 1982). 74 Albert Bolter, ‘Comrades’ Courts’, in F. J. M. Feldbrugge (ed.), EniyclopaeJia oj Soviet Law, i (Leiden, 1973). 74 Harold Berman and James Spindler, ‘Soviet Comrades’ Courts’, ll'ashington Law Review, 38/4 (Winter 1963), 843; Aryeh Unger, Constitutional Development in the USSR (London, 1984), 130; Kazimcrz Grzbowski, Soviet Legal Institutions: Doctrines and Social Functions (Ann Arbor, 1962), 241-58. 7(1 Frits Gorle, ‘Latest Developments in the Area of Comradely Justice’, in Feldbrugge and Simons (eds.), Perspectives on Soviet Law for the 1980s, 171-9.

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their composition and proceedings.77 And there is still an absence of such legal safeguards as the right to counsel, presumption of innocence, precise definitions of offences, and standards of evidence and materiality. The scope for appeal and review remains limited, and the fact that members of the courts may still be lacking professional qualifications increases die chances that procedures will be disregarded.78 While the Comrades’ Courts arc not at the mercy of centralized control and do not involve violence or secrecy, there may be a sense in which their function bears some resemblance to the purposes of Stalin’s much more sinister courts during the purges. The central task of the Comrades’ Courts is not so much to determine guilt or innocence but to provide a moral education to the offenders and their communities. They have thus been perceived as the seed of the non-lcgal, ‘spontaneous’, social forms of persuasion that would replace coercive rules in a future Communist society, as predicted by Lenin.7'1 It is not clear whether the Comrades’ Courts arc capable of fulfilling this democratizing purpose. On the one hand, contrary to the doctrine of ‘withering away’, the Comrades’ Courts did not originate as spontan­ eous social organizations, but were imposed from above. It has been suggested that the courts’ personnel exploit the carte blanche available to them, often being overbearing and abusive."" Moreover, it may well be that the Comrades’ Courts’ powers to scrutinize people’s personal lives suggests, not that the law is withering away, but that the scope of social regulation has been widened to include the non-criminal."1 On the other hand, the proceedings of the Comrades’ Courts have sometimes met with cynicism and ridicule from the citizens they are supposed to educate."2 ‘Withering’ may well be taking place in so far as the Courts are ineffective. In one case, for example: ‘The gang went through the motions of repentance, through mocking grins, but not before bringing the audience again and again to laughter at the expense of their slow-witted questioner. . .’. Perhaps citizens resent the intrusion of the law into their private affairs under the guise of ” Robert Sharlct, ‘Communist Pam and the Administration ofjustice in the USSR’, in D. B. Barry ct al. (cds.), Soviet Law after Stalin (Germantown, Md., 1979), 353; Berman and Spindler, ‘Soviet Comrades’ Courts’, 845. 78 Berman and Spindler, ‘Soviet Comrades’ Courts’, 903. ” E. L. Johnson, Introduction to the Soviet Legal System (London, 1969), 157-9. w Robert Conquest, Justice and the Legal System in the USSR (London, 1968), 118-19. 81 O. S. lofie, Soviet Lam and Soviet Reality (Dordrecht, 1985), 188, Grzybowski, Soviet Legal Institutions, 257-8. 82 Bermao and Spindler, ‘Soviet Comrades’ Courts’, 847.

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‘grass-roots justice’. It is thus not surprising that the ‘lesson’ of a court session deteriorates into boisterous entertainment, or a repudiation of the authority of, as the mother of one defendant put it, ‘the big-deal Comradely Courts’.85 A trial could destroy a career or be treated as a joke; in either case citizens arc unable to identify with the Comrades’ Courts. The post-1977 reforms have been taken to indicate that the courts are no longer the agencies of popular, grass-roots justice but arc properly parts of the Soviet legal system.84 The assumption that the Comrades’ Courts have been assimilated into the sphere of legality may endanger the integrity of the concept of law, however. While the courts have been put under more vigilant control by judicial officials, there is still considerable room for arbitrariness in their proceedings. The very fact that the courts appear to be objective and carry on their activities much like the official judicial agencies of the Soviet system could blur the boundary between legal and social institutions. Citizens and judiciary alike may be persuaded to treat the Comrades’ Courts as the embodiment of proper legal methods, without grasping their pro­ cedural failings.85 While it is tempting to call the post-1977 Comrades’ Courts ‘institutions of law’, doing so may risk diluting the meaning we attach to the word ‘legal’. The Parasite Laws

Another manifestation of Khrushchev’s attempt to reform legal institu­ tions to foster socialist morality was the parasite laws which were introduced between 1957 and 1961. These edicts, part of Khrushchev’s campaign against idlers, were outside the criminal code, and thus defined a ‘non-crimc’. They applied to the ‘able-bodied adult w’ho refuses to engage in socially useful w'ork and indulges in an anti-social parasitic existence’.8'’ Like state campaigns since (e.g. Brezhnev’s campaign against hooliganism), the main object of the antiparasitc drive was to raise public concern over the issue rather than to apprehend offenders. Campaigns have often meant that the jobs of judicial officials depended on filling ‘delivery' quotas’; in such a ” George r'cifcr,/ Studies iu Philosophy, Politics, Economics and the History ofIdeas (London, 1978), 42-52; Road lo Serfdom, 57-9; Hayek on Liberty, 36-56. IK Road to Serfdom, 57-9.

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prospcctivcncss, and clarity in the law, its discretionary powers arc limited. The individual is then free to organize productive activity on the basis of his own decisions. The focus of the rule of law on procedural rather than substantive justice keeps state interference to a minimum, and, in keeping with the fragmented nature of human knowledge, thereby enables individuals to make the private economic decisions that arc the mainstay of capitalist efficiency. Hayek considers procedural justice to be an important bulwark against the encroachments of the interventionist state. It is generally held that intrinsic to the rule of law is the idea that, where citizens live under a system of social rules, the opportunity to take responsibility for one’s actions is a prerequisite for liberty. In order for a person to enjoy freedom under the law, he must be capable of choosing actions in knowledge of their consequences, which requires being able to ascertain what the law demands. The rule of law restricts how the authorities may reach a decision and what they may authorize; Lockc’s call for a ‘standing rule to live by’ gives expression to the idea that personal autonomy needs a stable legal order protected from the caprice of political rulers and judicial officials.'1' On Hayek’s inter­ pretation, this means that legislation can do no more than provide a formal framework for private initiatives. Only then can the law attain the level of predictability and stability necessary for individual liberty. The rule of law is thus most vulnerable where the welfare or socialist state attempts to ‘engulf the private sphere’.2" For Hayek, then, the rule of law and the market arc mutually supporting; just as the rule of law is the legal framework for the market, so too is the market the economic framework for the rule of law. Each helps the other fulfil its technical and moral functions. Hayek’s concern that the growing role of government in the post­ war economy threatened to destroy the rule of law has been echoed by a number of jurists. It is claimed that as government involves itself in social and economic management, it comes to rely on particular measures to discriminate between individuals and groups.21 That is, in its quest for just outcomes, the administrative justice of the welfare state sometimes disregards procedural rules. Indeed, without endorsing Hayek’s libertarian conclusions, Roscoe Pound warns that the planned ” Lucas, Principles ofPolitics, 107. 20 Road to Serfdom, 56-9; Constitution of Liberty (London, i960), 214-16, 11 T. R. S. Allan, ‘Legislative Supremacy and the Rule of I-aw: Democracy and Constitutionalism’, Cambridge Lam Journal, 44/1 (Mar. 1985), 113-14.

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state which overrules formalist legal principles could come to thrive on administrative discretion and become ‘totalitarian’.22 Hayek associates the rule of law with freedom. What docs he mean by ‘freedom’? Freedom is ‘the state in which a man is not subject to coercion by the arbitrary will of another or others’.21 His conception of freedom is ip the tradition of ‘negative’ liberty identified and championed by Isaiah Berlin. Admittedly, even Berlin’s negative con­ ception is broader than that advocated by Hayek; for Berlin, negative liberty is the absence of, not just arbitrary coercion, but all physical interferences or constraints on an individual’s actions. Yet in a Hayckian spirit, Berlin contrasts negative freedom approvingly with a ‘positive’ conception of freedom. Positive freedom is the ‘higher’ freedom the individual possesses as a self-determining being, that is, one who has developed his capacities and powers and has thus, in some sense, realized his ‘real’ self. For Berlin and other proponents of the ‘negative’ concept, the idea of positive liberty, which can cement the individual to some supra-individual entity such as ‘Reason’, class, or nation as the necessary condition for this self-determination, is both politically and metaphysically dubious.24 Furthermore, the pursuit of the positive conception of liberty poses a direct threat to the true, negative conception, that is, what is for Hayek the freedom from arbitrary coercion which is protected by the market and the rule of law. Hayek’s argument about the relation between the rule of law and the market may well hinge on this definition of freedom. If this is so, in order to demonstrate that the rule of law is in fact compatible with a socialist economy, we may also have to challenge Hayek’s negative view of freedom. Procedural justice, which Hayek associates with freedom, may require social justice to ensure that powerful economic interests do not subvert fair procedures. Further, it may be that the maximization of freedom requires attention to the distribution of resources, such as property, which enlarge people’s opportunities. If so, freedom involves more than the removal of arbitrary coercion. A more sustained socialist rebuttal to Hayek’s views, however, must be postponed, first, because we need to examine how socialists make similar arguments about the rule of law’s affinity with capitalism and “ ‘Rule of Law and the Modern Social Welfare State’, Vanderbilt Law Review, y/t ('953); 29-34’’ Constitution of Liberty, 11. i4 ‘ I’wo Concepts of I Jberty’, in Four Essays on Liberty (Oxford, 1982).

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second, because at the same time the socialist position offers resources for a critique of Hayek.

Capitalist Domination and the Rule of Law

Up to a point, the Left-wing critique of the rule of law offers a mirror image of Hayek’s position: again we encounter the view that the rule of law supports the economic and political relations of market society, and that this role is incompatible with socialist ideals. But while the Left agrees with Hayek on the nature of the technical aspect of this role, accepting that the rule of law ensures the smooth running of the capitalist economy, it takes issue with Hayek’s understanding of the normative aspect of the rule of law. In this respect socialists argue that the rule of law provides, not valuable moral ideals, but a political and moral justification for the market and all its inequalities. The Left-wing perspective affirms Hayek’s thesis that the rule of law’s technical function lies in its guarantee of a stable, ruled framework for capitalist economic relations. In particular, Franz Neumann, for example, endorses the idea that an economy based on private contracts requires that the law does not intervene in particular cases except in the mere application of general rules, leaving little to the discretion of the judge.25 As Duncan Kennedy puts it, once the market actor contends only with ruled circumstances, he can plan with the rules in mind and thereby control the part that the rules play.2'1 And, assured that his need for calculability and reliability in the economy will be met, the capitalist is then free to maximize profit. Like Hayek, socialists thus also associate the rule of law with the entrepreneurial ideal of self-reliant individuals who are unfettered by social directives and prohibitions.27 Again, procedural guarantees afford free rein for the maximization of self-interest; thereby protecting the capitalist’s pursuit of profit from the communal concerns of equality or social justice. Individuals who enjoy Hayckian freedom are depicted as having ‘total arbitrary discretion ... to pursue their ends . . . w’ithout regard to the impact of their actions on others’.21* The Left thus concurs that freedom is maximized in a private 25 Democratic andcluthorilarian Stale (New York, 1964), 168; ‘Governance of the Rule of Law*, Ph.D. thesis (London 1936), 295-6. 2h ‘Legal Formality’, Journal ofLegal Studies, 2/1 (1973), 371-40. 27 Kennedy, ‘Form and Substance in Private Law Adjudication’, Harvard Law Review, 89 (1976), 1713-15. w Ibid. 1768.

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enterprise economy guided by the rule of law, although this freedom is considered a historically limited, ‘negative’, kind: Freedom of the commodity market, freedom of the labour market, free entrance into the entrepreneurial class, freedom of contract, and rationality of the judicial responses in disputed issues—these arc the essential characteristics of an economic system which requires and desires the production for profit, and ever renewed profit, in a continuous, rational, capitalistic enterprise?''

■

More significantly, this position holds that the rule of law performs a normative, specifically political function on behalf of capitalism. Neumann points to how the rule of law had an explicitly political function when the franchise was tied to property' in early capitalist society. The bourgeoisie, as the class which elected the lawmakers and determined what laws were made, were prepared to accept procedural constraints for the sake of circumscribing the parameters within which appointed officials could interpret the law. The idea of the judge restricted by the rule of law had considerable political appeal: it meant that the ‘social class which is the object of intervention will itself determine the context of those interferences’.’" Since then, of course, the franchise has been extended to all social classes in liberal capitalist societies, and it is not clear how the rule of law can continue to play this explicit political role. Marxists have taken a number of different tacks, from sociological studies of class to structuralist theories of the relation between state and economy, to prove that the bourgeoisie continues to function as the ‘ruling class’ in the political sphere. But our analysis of the withering away thesis suggested that no general abstract argument can show with sufficient plausibility that capitalist political power hamstrings the judiciary to the extent that law serves only to directly further the interests of the capitalist class. However, I will later examine three specific arguments which provide some tentative support to the view that economic inequality thwarts the impartiality of the law. The argument that the rule of law implicitly serves the political interests of capital is more plausible for its greater subtlety. According to this critique, the rule of law provides the capitalist class with a moral justification for its privileged position. That is, it is ideological. Through its preoccupation with the formal conditions for making and applying rules, it distracts attention from the power relations instantiated in the content of the rules in a process where judges apply rules by reference ” Neumann, Democratic and Authoritarian Slate, 168.

111 Ibid.

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to the facts alone, eschewing all value judgments." But, for the Left, the idea that legality can be kept separate from all power relationships is a myth, since in reality, the judicial process is inescapably normative and political, influenced by the biases and commitments of both the administrators and subjects of the law.'2 Neutrality in the application of the law is impossible, and legal formalism masks this inescapable fact. Particularly important for the socialist is the way this ideological myth of neutrality undermines attempts to use the law to pursue substantive justice. The ideology of the rule of law suggests that the only significant factor in determining the scope of freedom is the arbitrary power of government. But, the socialist charges, this obscures the more fundamental question of whether man has access to the resources which determine his capacity to set goals and realize them, without which he cannot make use of this (‘negative’) freedom under the rule of law." Because procedural justice is unable to consider the social conditions that determine the efficacy of formal freedoms, it has the ideological effect of implying that those obstacles to individual liberty fit for political remedy arc simply matters of legal procedure." Furthermore, in its exclusion of substantive issues in the name of ‘freedom under the rule of law’, or ‘procedural justice’, legal formalism emerges as an effective rationale for curtailing the ability of the legal system to bring about redistributions of wealth. Marxists therefore maintain that ‘it is the principle of the rule of law itself which is the chief obstacle in the development of class consciousness’.'5 ” Morton J. Horwitz, Transformation of /Inuriean Law (Cambridge, Mass., 1977), 254-8. 12 This claim has been extended by legal realists to mean that the law is whatever the judge chooses it to be. Certainly critical legal theorists like Duncan Kennedy, have been influenced by the realist school’s argument that supposedly objective concepts like precedent simply mask the subjective views of judicial officials. For a powerful formulation of the realist argument, see Felix Cohen, ’Transcendental Nonsense and the Functional Approach', Columbia Law Review, 35 (1935), 818-21- The critical legal theorist Mark Tushnct explores the idea that bourgeois society both demands and prevents the realization of the rule of law in ‘Darkness on the Edge of Town:’ 'Hie Contributions of John I lart Ely to Constitutional Theory’, Yale LawJournal, 89/6 (May, 1980), and ‘Truth, Justice and the American Way:’ An Interpretation of Public Law Scholarship in the Seventies’, Texas Law Review, 57/8 (Nov. 1979). ■" Kennedy, ‘Legal Formality’, 371-4. " Thus Marx’s complaint that in the face of differences between individuals and their situations, the ‘equal treatment’ afforded by legal institutions transforms the right to equality into a right to inequality, Critique ofthe Gotha Programme, MESH'3: 18-19. ■" Hugh Collins, Marxism and Law (Oxford, 1982), 139.

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The socialist critique concludes that a society concerned with substantive justice must jettison the formal standards of the rule of law. In an echo of Hayek, the Left considers changes that have occurred in capitalist law with the rise of the Welfare State to be, as Andrew Fraser puts it, ‘a revolution in the conception of legality’. As ‘posdibcral society’ attempts to deal with concentrated power in the private domain (which indeed was the result of the unimpeded operation of merely formal rules), adjudication shifts its emphasis.1'’ Adjudication must now take into account how to achieve the purposes of legal rules, thereby overturning the rule of law’s prohibition against policy-oriented reasoning." One study of the English legal system claims that as the Welfare State expanded, ‘government came to prefer flexible policy­ conscious administrative tribunals to the more cumbrous and formalistic courts of law’, to resolve the ‘new and vital issues’ thrown up by redistributive social policy.111 As a corollary, one may speculate that as the Welfare State comes under attack, capitalist democracies could witness a strengthening of the principles of the rule of law. But so far, as previously suggested, it appears that the Right is using the idea of the rule of law to consolidate, not the idea of liberty', but the citizen’s duty to respect law and order and submit to the coercive will of the state.1'' Indeed, socialists point to the New Right’s authoritarian concerns with ‘law and order’ as further evidence of the inadequacy of the role of law for a socialist politics concerned with social and economic justice.1" If the rule of law is in conflict with the policy objectives of social welfare, then it is certainly incommensurable with socialism. While socialists may concede that legal right in bourgeois form is better than *■ Andrew Eraser, ‘The Legal Theory We Need Now*, Socialist Review. 40-1 (JulyOct 1978), 175-6, 194. i; Roberto Mangabcira Unger, Law in Modem Society (New York, 1976), 194—200, Michael Adler and Stewart Asquith, ‘Discretion and Power’, in id. (cds.). Discretion and Welfare (London, 1981), 21. w Brian Abel-Smith and Robert Stevens, ‘Lawyers and the Courts’, in Vilhelm Aubert (cd.), Sociology of Lain (I larmondsworth, 1973), 280-1. This theme recurs in Ruth Lcvitas (cd.), Ideology of the New Right (Cambridge, 1986). *’ Some critics of E. P. Thompson, who themselves note the perversion of the rule of law concept by contemporary conservatives, seem to have this rather odd, ‘corrupted’ interpretation in mind, see Sol Picciotto, ‘Theory of the State, Class Struggle and the Rule of I .aw’, in Bob Pine el al. (cds.), Capitalism and the Rule ofLaw (I .ondon, 1979), 164-6; Bob Pine, Democracy and the Rule of Law. 179-89; Steve Redhead, ‘Marxist Theory, the Rule of Law and Socialism’, in P. Beirne and R. Quinney (cds.), Marxism and Law (New York, 1982), 329-36.

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no right at all, they ultimately aver that the formalist model is an ‘empty vessel’ which has nothing to offer the socialist project beyond, at the most, strategic utility.41 Hence, it is not surprising that even when the Left countenances the possibility of a socialist legal system, it is with the proviso that procedural justice be abandoned. The idea that the rule of law could facilitate substantive justice is liable to be denigrated by socialists as ‘legalistic’. ‘Legalism’ has been defined as a conception of moral conduct as simply a matter of rule-following.42 The Left tends to be critical of procedural justice for involving an alienating attitude of ‘rule-worship’ or ‘fetishization of procedures’ which takes conformity to societal rules as an end in itself. They argue that, even if the rule of law is extricated from capitalist relations of production, focusing on adherence to its formal rules can impair the community’s ability' to reach just outcomes.4-' Under socialism, the delusion of procedural justice must give way to the reality of substantive justice. The aim of a socialist jurisprudence, according to Karl Klare, is to discover the appropriate, non-legalist form for the resolution of disputes:

We need not be blind to the retrogressive character of the institutional and cultural practice embodied in the ‘rule of law ideal’, i.e. liberal legalism. We must not confuse the concept of law with the historically specific form that lawassumed with the rise of capitalism.41

The Rule of Law and Freedom under Socialism Although we may concede that an ‘undiscriminating pursuit of the principle of legality’ would be ‘inconsistent with Marxism’,45 what about its ‘discriminating’ pursuit? Formal justice may not be the sufficient or even the most important criterion for the justice of law, but that docs not mean it has no significance.4'1 E. P. Thompson’s argument about the ideology of law is worth recalling. For Thompson, if the rule of law is to have an ideological function at all, it must further values which arc capable of being realized, in however partial or fragmented a form. If procedural justice were a complete sham, no 41 Picciotto, ‘Theory of the State’, 166-72, Colin Sumner, ‘Rule of Law and Civil Rights in Contemporary Marxist Theory’, Kapilalislale, 9 (1981). 42 Karl Klare, ‘Law-making as Praxis’, Telus, 40 (Summer 1979), 134; Judith Shklar, Legalism (Cambridge, Mass. 1964), 1. 41 Tom Campbell, The Left anil Rights: A Conceptual Analysis 0/ the Idea uj Socialist Rights (London, 1983), 36. 44 ‘Law-making as Praxis’, 134. * Campbell, The Left and Rights, 41. 45 Collins, Marxism and Lain, 144-6.

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ideological purpose would be served. As Roberto Unger puts it, concrete manifestations of the ideals of the rule of law ‘may be precarious and limited but they arc also real’.47 In light of the tyranny of legal practices that flout procedural justice, attempts by cither the Right or the Left to reduce the rule of law to the will of the capitalist state seem a distortion of the concept’s true meaning. "While it would be a mistake to believe that any legal principle could succeed in making the law completely predictable, the rule of law is able to enforce a degree of regularity in the legal process. Indeed, it is because the identification and application of law to particular cases does require value-judgments and policy decisions, that we need procedural justice to prevent the normative process of adjudication from becoming wholly discretionary or arbitrary. The rule of law is to be valued, not as a litmus test which offers automatic answers to legal problems, but as a set of attitudes and assumptions which guides the judge in the elaborate task of interpretation.411 For example, the notion that similar cases be treated similarly, intrinsic to procedural justice, forces judges to justify the distinctions they must make between persons by reference to relevant rules and principles.4'’ The rule of law therefore serves not only those who are subject to the law, but those who make and apply it: just as the law’s subjects need the protection of limits and definitions, so too do the law’s authorities need guidance in adjudication.5" A legal system so structured has intrinsic moral value. While it may help to obscure the domination of a particular class, or render the economic system more calculable, it also guarantees a minimum of liberty. To be effective, the law must be predictable and consistent, so that people can plan on the basis of their knowledge of the law. Arbitrariness in the law makes it impossible to determine what the law expects of us; unpredictable law thus constricts liberty. By ensuring that intrusions into the individual’s life conform to certain procedural rules, the rule of law guarantees a minimum of individual liberty. The rule of law is able to curb the use of public power for private ends;51 tyranny in a procedurally just legal system is not thereby impossible, but the rule of law goes some distance towards protecting the integrity 47 Law in Modem Society, 56-7. Sec also the sections ‘Law and Ideology’, and ‘Socialism and Ideology’, above in Ch. i. w Allan, ‘Legislative Supremacy’, 142-3. 49 Rawls, Theory ofJustice, 237. 50 Lucas, Principles ofPolitics, 107. ” Raz, Authority ofLam, 218-20.

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of a private sphere, into which the common will cannot intrude.52 Once the rule of law asserts procedural limits to the will of the democratic state, the judgments of the majority are less likely to degenerate into ‘mob justice’. A. V. Dicey’s constitutional theory offers the insight that, if the principles of parliamentary sovereignty and procedural justice are both protected, civil society can prevent the manipulation of power which threatens individual liberty.5-’ Moreover, in requiring that the law apply with equal weight to all, and thereby preventing it from being used by the strong to oppress the weak, the rule of law safeguards, not just liberty, but equality of liberty. This equal protection of individual liberty may only be formal and negative, but there are dangerous consequences in discarding it. While formal equality is not a sufficient condition for substantive justice, it is a necessary one. This moral core of die rule of law thus ‘transcends,’ as Neumann says, ‘both the economic and political contexts within which it operates’.5’ If die rule of law safeguards some important values, and if it need not be accompanied by a legalistic approach to morality, then, contrary to Hayek, redistributive social policy may not be incompatible with the rule of law. This possibility emerges in the argument of defenders of social welfare policy, that no amount of allegiance to procedural justice will be able to eliminate discretion and choice in the everyday administration of the law. The idea of the rule of law supposes that it is the law, and not men, that governs, but it is none the less always the case that men are both the object and officers of legal regulation. It is tempting to oppose the impartial procedures of lawcourts and judges to the individualized justice meted out by administrative tribunals and welfare workers; but just as social policy looks to legal rules for certainty and stability, traditional adjudication employs discretion to ensure flexibility and equity. Hence, while the rule of law promotes impartiality, to claim that it thus renders adjudication neutral and objective is to distort the nature of the law in any system.55 In seeking a 52 Karl Renner. ‘Democracy and rhe Council System’, in 'I'. Bottomore and P. Goode (eds.), Auslm-Marxism (Ox ford, 1978). 194-9; 'd., bisliliilioiis of Private I.am amt their Social Punctions, ed. and introd. O. Kahn I'reund, trans. Agnes Schwarzchild (I.ondon, 1976), 296. 52 Inlroclitclioii Io the Simfy ofthe Lam of the Consliliilioii (I.ondon, 1964), 406. 21 Democratic amiAuthoritarian Stale, 170; id., 'Governance of the Rule of I .aw’, 56-8. “ 1 larry- Jones, 'Rule of Law and the Welfare State’, Cohnnbia Lam Reviem 58/143 (1958), 146-52; see also Zenon Bankowski and David Nelken, ’Discretion as a Social Problem’, in Adler and Asquith (eds.) Discretion ami Welfare, 265.

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fair resolution of a legal problem, every judge must take into account particular circumstances and individual needs: ‘For once it is admitted that “equal” application is subject to concrete situations such as infancy or lunacy, how can the line be so drawn as to exclude references to concrete economic situations?’51’ Unfettered discretion can doubtless lead to arbitrariness, but discretion could never be wholly replaced by a mechanical adherence to rules. Regularity must be balanced with equity; a just legal system will seek, not to eliminate discretion, but to regulate and control it, within the framework of the rule of law.5’ Thus the rule of law cannot be bound by the ideals of the laissez-faire epoch in which it developed; as Harry Jones puts it, Hayek is ‘trying to add immutable content to a formal juristic concept’.5" As previously argued, justice as regularity recommends itself to a socialist legal theory precisely because of its capacity to adapt to a variety of legal practices. Contrary to Hayek, it would seem that a model of society as incapable of collective knowledge would lack the information necessary for the realization, if not articulation, of any common purposes and goals, including that commitment to procedural justice represented by the rule of law. That the rule of law and its formal freedoms are not incompatible with socialism becomes evident when one examines some of the preconditions for the effective operation of socialist institutions. To ensure that the agreements of a planned economy are drafted and maintained with a maximum of effectiveness, they would need the protection of a consistent, predictable legal framework. Clearly worded, certain, prospective, and general legal enactments are essential to efficiency. If production standards and the repercussions for failing to meet them are not made clear, then production will suffer. Procedural regularity is also important in a socialist economy for fairness and liberty in the sense that everyone who works deserves, indeed requires, some freedom of action. The individual producer and the enterprise as a whole must be aware not only of what distinguishes negligence from sabotage, or when petty theft becomes large-scale 56 Julius Stone, Province and Function ofLaw (Sydney, 1950), 262-3. ” This argument is made by Kenneth Culp Davis in Discretionary Justice (Urbana, 1971), and more recently D. J. Galligan, in Discretionary Powers: A Legal Study oj Official Discretion (Oxford, 1986), 205. w ‘Rule of Law’, 150. This argument is also advanced in Stone, Province and Function of Law, 724-5; W. Friedmann, Law in a Changing Society (London, 1959), 503; W. Burnett 1 larvcy, ‘Rule of Law in I listorical Perspective’, Michigan Law Review, 59 (1961), 493-

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embezzlement. Instead of being forced to act in a vacuum, ignorant of the consequences of their actions or even of what actions arc expected of them, economic actors need procedurally just rules, setting out the standards which the economic unit must fulfil, if they are to be encouraged to try new methods or test new products. Without rules, producers will either cautiously set their targets too low or falsify the inadequate results that can come from taking risks; socialist enterprises will be plagued by mistrust and cowardice as w'ell as inefficiency, poor workmanship, or underproduction. Contrary to Hayek, the viability of social knowledge actually depends on the rule of law, since without the guarantees of procedural justice, collective enterprises and their members will be deterred from communicating, let alone co­ operating, with each other. In his theory of ‘rule of law socialism’, the Russian legal theorist Sergius Hessen thus recommends procedural guarantees as the means by which a democratic socialist society can, with the utmost fairness, both ‘bridle’ the economy and preserve its spontaneity and autonomy.59 A socialist society structured by the rule of law will be more likely to promote open government, or, as it is topically referred to, glasnost. The Polish economist Wlodzimicrz Brus laments that in existing socialist societies ‘experience taught that, from a personal point of view, toeing the Party line yielded benefits—while criticism brought personal troubles—regardless of the real social results’.'’" Conformism is often the result of an atmosphere of fear, where the consequences of protest arc shrouded in mystery, capable of taking the form of arbitrary and severe punishment. ‘Self-criticism’, public admission of guilt for antisocial behaviour, is much more likely if the repercussions arc clearly spelled out. One must know under what circumstances selfcriticism will be interpreted as confession, absolution, or self­ incrimination, in order to be open about one’s mistakes. If the rules which bind individuals as producers, residents, and citizens fulfil procedural guarantees, they will provide an ordered context which discourages corruption, cover-ups, and subterfuge. Not only docs procedural justice enable citizens and officials to adopt a critical approach to their own and society’s misdemeanours, it also encourages w Discussed in Walicki, Lcf/d Philosophies of Russian Liberalism, 436. See also N. I.uhmann, Sociological Theory of Law (London, 1985), for a discussion of how law provides a stable setting for action in egalitarian societies. Brus thus emphasizes the importance of the unbiased How of information in a socialist economy: Economics and Polina ofSocialism (London, 1973), 106-7.

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criticism of the law itself. A free press, which can foster reappraisals of socialist practices and offer ways of developing improvements, depends on a legal system characterized by clarity and consistency. Organs of public information must be able to produce criticism of violations of the law, or of the law itself, in the knowledge of what counts as ‘constructive’ or ‘unconstructivc’ criticism. Far from being inconsistent with procedural justice, it would seem that the specifically socialist concern for efficient planning and its corollary, an open political climate, actually requires the framework of the rule of law. The Rule of Law under Capitalism: Three Cases

Having argued that socialism needs the rule of law, it remains to challenge Hayek’s view that the freedom protected by the rule of law can only be obtained in a market society. I will now investigate the possibility that the rule of law needs socialism. It is a paradox that socialists themselves suggest this. They insist on the irreconcilability of procedural and substantive justice when they criticize capitalist legal systems for the distortions imposed by class and economic inequality; however, they imply that procedural guarantees, far from being antithetical to, actually require a more egalitarian society, perhaps even socialism.'1' I single out three examples. In his famous study of the British judiciary, J. A. G. Griffith argues that the incgalitarian nature of British society is reflected in the conservative biases of British judges. For Carlin and Howard, in the United States, and Bankowski and Mungham in Britain, economic stratification has an adverse effect on access to the law. Finally, in Policing the Crisis, Stuart Hall, Chas Critchcr, Tony Jefferson, John Clarke, and Brian Roberts argue that the agenda for law enforcement is shaped by the political conditions of capitalist society. The implication of this body of literature is that it is capitalism, not socialism, that impedes the fulfilment of procedural justice.

The Biases of the Judiciary It is not a controversial claim that in societies where educational opportunities arc conditioned by wealth and family background, the legal profession inevitably tends to recruit among the middle and While not linking the rule of law with socialism per se, I. I larden and N. Lewis emphasize the need for ‘supportive institutional conditions’ of accountability and openness in all areas of public and private power for the rule of law to function effectively: see Noble Lie: The British Constititulion and the Rule ofLaw (I .ondon, 1986).

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upper classes. In The Politics oftheJudiciary,]. F. G. Griffith notes that most senior judges in Britain still come from public schools, and Glendon Schubert, in his The Political Role ofthe Courts, contends that the justices of the American Supreme Court are drawn ‘primarily from the professional upper middle classes’.62 The class make-up of the courts does not, of course, automatically indicate bias or prejudice. But Griffith maintains that, given that the rule of law cannot banish moral judgment and evaluation from judicial decisions, significant effects arise from the fact that judges are ‘liable to be swayed by emotional prejudices’. Where those who make judicial decisions come from certain classes, the legal system may not suffer from contingent displays of bias, but it does suffer from certain discernible trends in judicial outcomes which compromise the rule of law.6-’ Schubert similarly concludes that the rationality of judicial decision-making consists ‘primarily of the psychological rationality of consistency in the structuring of attitudes in the minds of individual judges, rather than the logical rationality of consistency in the structuring of the rationalizations of their written opinions’.64 Griffith’s account indicates that the behaviour of the judiciary in Britain is especially predictable. Senior judges ‘have by their education and training and the pursuit of their profession, acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represent the public interest’. Citing the protection of existing private property arrangements as one of the constituents of this ‘public interest’, Griffith confirms the view that British judges seek to protect the status quo.65 One of the cases with which Griffith attempts to validate this claim is the ‘Fare’s Fair’ controversy, in which the Greater London Council sought to reduce fares charged by the London Transport Executive, meeting the cost by increasing supplementary rates. After a complicated series of developments, the Divisional Court ultimately managed to salvage the GLC’s position. When the case was brought before the House of Lords, however, the Law Lords emphasized ‘the fiduciary duty’ of the Council to its ratepayers, holding that the interests of the users of public transport had been unduly preferred. Griffith points out that the Lordships’ argument 62 Politics of the Judiciary (Glasgow, 1985), 15-33; Glendon Schubert, ‘Judicial Policy-Making', in Aubert (cd.), Sociology of Law, 216. “ Politics ofthe Judiciary, 185. w ‘Judicial Policy-Making’, 223. 65 Polina of the Judiciary, 198-9; see also Brian Abel-Smith and Robert Stevens, ‘Lawyers and the Courts’, in Aubert (ed.), Sociology ofLaw, 283-8.

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could ‘logically be applied whenever public authorities spend the ratepayers’ (or the taxpayers’) money to further some statutory purpose’. Given that elected public authorities are the representatives of the public interest, in the absence of contrary statutes, it is their function to make decisions about such expenditures; if the electors disapprove of the GLC’s policies, it is for them to take action at the next election. Griffith concludes that the Law Lords’ attempt to measure the decisions of elected officials with the criteria of policy put the stability of the law at risk, crossing the threshold from discretion to political bias, and thereby undermined the principles of the rule of law."' It may be suggested that in a society where class divisions arc eliminated, the rule of law can still be hampered by the political and moral biases of judges. But we may extrapolate from Griffith’s study that in a democratic and egalitarian socialist society, the biases of judges would no longer be tied to particular, dominant economic interests. And, we can add a dteoretical consideration to this conclusion: that is, in a system such as Hayek’s, the rule of law is tied to an ideological image of the ‘essence of the law’ as neutral that camouflages judges’ political biases. But where bias is admitted as inevitable, it is unable to retreat behind a fortress of ideology. Bias in a socialist legal system is thus more likely to nakedly manifest itself, so that vigilant defenders of the rule of law can better ensure it poses only an infrequent and minor threat to procedural regularity. Access to Legal Representation

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Procedural fairness requires that the law accord everyone equal treatment; one should not be able to ‘buy justice’. The Left argues, however, that class divisions and inequality can affect access to the law. The studies of Carlin and Howard and Bankowski and Mungham seek to show that even in societies with well-developed systems of legal aid, social class can affect the quality of representation. Both studies "* Polina of the Judicial?, 142-9. David Miller has pointed out to me, however, that the argument cuts both ways; an interventionist conservative judiciary, on Griffith’s argument, will produce perfectly consistent (i.e. conservative) judgments. But if consistency was that easily satisfied, the show trials discussed in the previous chapter, or any other manipulation of legal procedures by political interests, if a predictable occurrence, would count as fulfilling the requirements of the rule of law. Consistency in the sense ol procedural justice is only achieved if adjudication is made on the basis of legal, as opposed to political, materials, and if the boundaries between the judicial and other (legislative, executive) branches of the state arc respected.

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contend that those eligible for legal aid profit least from society’s legal resources, since the lower classes make much less use of lawyers than the upper classes. For example, Carlin and Howard maintain that in the United States ‘about two-thirds of lower-class families have never employed a lawyer, compared with about one-third of upperclass families’/'7 The authors provide several reasons for this. Firstly, Carlin and Howard contend that the poor do not perceive their difficulties as legal ones, perhaps accepting social workers’ arguments that they have ‘problems’ rather than ‘grievances’, which arc better resolved through other channels.6l‘ Both sources also suggest that poor people feel estranged from the legal system, largely because lawyers generally come from a higher social class, move in different social circles and, it is argued, tend to treat the poor with condescension and avoid their cases as stigmatizing and lacking in prestige.6'1 Further, it is argued that even if legal representation is secured, it is often of low quality. According to these studies, in both Britain and the United States legal aid lawyers tend to ‘need the work’: they arc often of lower status and with fewer qualifications than other lawyers.7" It is further maintained that even those lawyers who take on legal aid cases with considerable expertise and noble intentions can find that institutional constraints impede their work. Progressive lawyers complain that the legal system offers incentives and imposes retributions to discourage jury trials and not-guilty pleas.71 The ‘emasculating realities of class’ tend to mean that the lower-class defendant, poorly educated, lacking confidence and economic clout, is less able to challenge these institutional pressures.72 67 ‘Legal Representation and Class Justice’, in Aubert (ed.), Sociology of Law, 341. The obvious rejoinder to this statistic is, of course, that the poor do not have assets which require legal protection. But, in the lace of another plausible stereotype, that is that crime tends to be committed by the underprivileged, this consideration may not be sufficient to account for the imbalance. ** Ibid.; the radical ‘legal nihilists’ Zenon Bankowski and Geoff Mungham themselves take this tack in Images of Law (London, 1976), 74. Carlin and Howard maintain that it is both unimaginative and paternalistic to deny legal status to the problems of the poor. ,n Bankowski and Mungham, Images of Law, 84-5; Carlin and I loward, ‘I .egal Representation’, 343-50. 70 Bankowski and Mungham, Images of Law, 63-4. Carlin and I loward even argue that these lawyers arc therefore most likely to take advantage of their clients, e.g. by abusing confidential information! ‘Legal Representation’, 338-9. 71 David Rudovsky, ‘The Criminal Justice System and the Role ol the Police’, in David Kairys (ed.). Politics of Law: .'I Progressive Critique (New York, 1982), 243. 72 Bankowski and Mungham, Images of Law, 95-100.

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Summing up, lawyers on the Left in Britain and the United States maintain that even with well-developed systems of legal aid, legal services in capitalist societies tend to benefit the rich more than the poor. The implication of this argument is that where wealth is unequally distributed, the principles of generality, impartiality, and openness arc systematically compromised when applied to the resources of the law. If the realization of procedural justice requires that all citizens are equally equipped to enjoy their rights to participate in and make effective use of their society’s legal order, then, as Carlin and Howard conclude, capitalism would seem to make a poor context for achieving procedural justice, whatever its record on substantive justice.” The Enforcement Agenda Any society’ will have its own particular definition of what counts as a crime, depending on the culture and traditions of that society. What in one society is regarded with indifference, or at most frowned upon, is in another illegal and severely punished. But the principles of justice as regularity require that prevailing cultural attitudes do not influence the judicial process to the extent that justice becomes an uncertain, volatile affair. In this respect some writers on the Left have pointed to the capacity of dominant economic interests to inject a degree of arbitrariness into Western legal systems in the form of setting the agenda for law enforcement. It has been argued that while laws proscribing theft, assault, and homicide arc vigorously enforced against individuals, they arc seldom applied to analogous corporate conduct. For example, David Rudovsky notes that in the United States prosecutions, let alone convictions, arc still infrequent where a firm’s negligence in complying with health and safety regulations results in the injury or death of employees or consumers. Rudovsky concludes from this that the priorities of capitalist society can infect the operations of the legal system.74 The study, Policing the Crisis, points to a more specific example of the distortions property relations can impose on the agenda for law ‘Legal Representation’, 332-3. 74 ‘Criminal Justice System’, 243. This is related to the problem of unequal access to legal representation; e.g. in the recent ‘Opren* case, were it not for a ‘fairy godparent’ w ho had undertaken to finance the legal action, alleged victims of an anti-arthritis drug would have had to abandon their claims for compensation because, being ineligible for legal aid, they would have incurred ruinous costs if their claims failed, James Erlichman, ‘bain god-parent to fund Opren appeal’ the Guardian, 23 June 1987.

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enforcement: the wave of panic that surrounded ‘mugging’ in the early 1970s in Britain. In 1972 the vicious murder of an elderly man by black youths attempting to rob him precipitated massive press coverage about the rise of increasingly violent crimes and the ineffective ‘soft policy of the courts’. The authors argue that the judiciary responded with drastic measures:

Almost without exception, young people charged with robberies involving some degree of force . . . were given ‘deterrent’ sentences. Three years’ imprisonment became the ‘norm’, even for teenage offenders. Traditional treatment centres for young offenders (i.c. Borstals and detention centres) were bypassed. The justifications for these severe sentences—and many judges admitted that they were unprecedented—were commonly made in the name of ‘the public interest’, or the need to ‘keep our streets safe’, or, more simply, to ‘deter’. Rehabilitation was a secondary consideration to the need to preserve public safety. In short, the judiciary declared ‘war’ on the muggers.” This analysis of a ‘moral panic’ about mugging suggests an analogy with the antiparasitc drive in the Soviet Union under Khrushchev; both arc examples of ‘campaigns against crime’ in which procedural morality was sacrificed for the sake of some social goal. In the Soviet case, arbitrary and unfair measures were used to enforce the socialist maxim that citizens have a duty to contribute to society’s wealth. But later reforms to the parasite laws made it possible to pursue its directives within the confines of procedural regularity'. It is thus important to consider how the irregularities of the British example are linked with the conditions of capitalist society. Stuart Hall and his collaborators claim that the war against mugging responded to an imaginary problem. They cite statistics for 1965-72 which suggest that the rate of incidents of violent crimes was lower than that of other crimes and lower than the rate for violent crimes in the preceding ten years. Furthermore, they contend that accusations about the leniency of the courts were without foundation; if anything, sentences were becoming more severe and without the anticipated effect of deterring crime.76 Policing the Crisis offers a Marxist explanation for the scare about mugging, locating its roots in the world recession of the 1970s, the consequent breakdown in the post-war consensus between capital and labour, and the rise of social protest. It is suggested that the rule of law ” Stuart Mall el at., Policing die Crisis: Mugging, die Stale, and I.air and Order (1 .ontlon, 1978), 7. ”* Ibid. 12-13.

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emerged in this context as a demand for the ‘application of coercion in social relations’, rather than a check on coercion by means of the due process of law.77 The sweep of this analysis is rather broad, and its conclusions are doubtless problematic. However, there may be some plausibility in the view that the combination of an economic crisis and acute social conflict in the inner cities was responsible for heightened fears about security of property', which in turn threatened the usual channels of due process. Further, it may be that a society without private property' and class divisions would not be susceptible to this sort of threat to the procedural morality of the law.

Conclusion: Liberty and the Rule of Law The three examples above give support to the view that capitalism poses a threat to the rule of law. Admittedly, this view rests on some controversial claims: that the judiciary is characterized by systematic prejudice, that legal aid is intrinsically ineffective, and that capitalist crises skew the agenda for law enforcement. But for socialists it may be that the provocative nature of these arguments is what makes them persuasive; it seems telling that, out of the radical’s scepticism about the value of procedural justice, there emerges an assessment of capitalist legal institutions which finds them defective because they do not conform to procedural standards! Against the arguments of Hayek’s critics, if not Hayek himself, it may be that far from being its natural partner the market is ultimately a hindrance to Ute rule of law. This suggests that social ownership of the means of production could provide a more favourable context for procedural justice. What would be the fate of freedom in the socialist society structured by the rule of law? Wc saw that Hayek recommends the rule of law as a means of protecting liberty, understood as freedom from interference. He so values this ‘negative freedom’ that he interprets other political ideals, such as justice, as requiring the reduction of social intervention in individuals’ lives." Berlin, on the other hand, insists that the concept of freedom should be understood as quite separate from other political values. Following Berlin’s account, just as the concept of ‘positive’ liberty, in its emphasis on rationality and community, should be criticized for expanding the concept of freedom to include every' social good, so Hayek too should be faulted for squeezing every social good into his especially ‘negative’ conception of freedom. The 77 Picciotto, ‘Theory of the State’, 164-5. n Conslilulion ofLiberty, 99.

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problem of what kind of freedom the rule of law protects, and the relation between this freedom and other values such as equality and justice in a socialist legal theory, therefore emerges as our final concern. It may be possible to conceive of the conditions of freedom in a broader sense, taking into account the resources which make freedom efficacious, without resorting to the paternalistic political measures that Berlin fears can inhibit individual agency. Marx’s claim that man is an animal who can only individualize himself within society, for example, does not necessarily imply a paternalistic or authoritarian politics.7'' Certainly the austere version of negative liberty developed by Hayek, which makes no mention of opportunities or powers, seems no less dubious than Berlin’s positive target. Perhaps socialists should not give up on Berlin’s idea of negative liberty, properly understood as freedom from constraints, while understanding that the positive liber­ tarians’ concern for freedom as the opportunity for self-determination can contribute to the removal of constraints on human liberty. It remains to be seen, however, how these hitherto conflicting insights can both be constituents of a socialist account of freedom. One approach immediately presents itself. Instead of a concept of freedom as requiring no more than the absence of constraint imposed by one individual on another, liberty under the law could be understood to be affected by the less tangible cultural contraints posed by economic inequality. When an individual is said to be free under the law, he is considered unencumbered in the exercise of his abilities, opportunities, and powers. Whether or not he is capable of exercising these faculties, however, will depend on social conditions; effective freedom from constraints may require that society intervene to ensure that all can make use of their negative freedom. William Connolly contends: ‘A concept of freedom that takes account only of the agent’s actual and potential wants while ignoring the alternative routes by which such wants might be formed is unlikely to foster serious reflection about ... the ideal of an autonomous person.”1" In our alterna­ tive conception, substantive justice and equality contribute to, rather than compete with, people’s freedom. An obvious example is the way ” ‘Introduction*, Grundnsse^ trans. Martin Nicolaus (I lamiondsworth, 1973), 84. *’ Terms of Political Discourse (Oxford, 1983), 151; see also Joel Feinberg, Social Philosophy (Engclwood Cliffs, NJ, 1973), 13-15; Charles Taylor, ‘What’s Wrong with Negative Liberty*, in Alan Ryan (ed.), The Idea uf Freedom: Essays in Honour oj Isaiah Berlin (Oxford, 1979).

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in which the institution of private property inevitably denies those who do not own property the freedom to dispose or make use of it. And, being unable to enjoy the liberty to dispose of property in turn tends to curtail one’s capacity to enjoy the freedom promised by procedural justice. In particular, lack of income contributes to lack of education, culture, or status, which can rob us of the capacity to behave as juridical subjects. This is so whether or not this deprivation is the result of a deliberate act, and whether or not people are conscious of their deprivation. Hence, a socialist concept of law should embrace the negative conception of freedom as the absence of constraints, while underlining the multifarious forms constraints may take. Thus the principled response to Hayek’s interpretation of the rule of law is not to devalue (negative) freedom at the purchase of other ‘more important’ goods such as equality or justice or a ‘higher’ (positive) frcedom.'1, Rather, these values should be seen as mutually supporting; the inequality and injustice endemic to capitalist society, for example, should be criticized for, among other things, posing constraints to people’s freedom. In a capitalist market society, some people’s negative freedom is aggrandized at the expense of others. The above cases of judicial bias, unequal access to legal counsel, and skewed agendas for law enforcement all illustrate how market inequality can put the weak at a disadvantage in their dealings with the law. Raymond Plant argues that ‘it is because we value liberty for all that we are concerned to secure equality in the worth of liberty’.112 It is inherent in the notion of procedural justice that the value of the liberty protected by the rule of law depends on it being equally enjoyed by all. It would be perverse to link procedural regularity with a freedom that was unevenly guaranteed. Moreover, inequality affects the rule of law by introducing a degree of arbitrariness into the legal system’s operations which undermines the freedom of all. According to our three cases, inequality can confer privileges and engender uncertainty which will impinge on the day-today operation of the law. The result is irregularity; the law becomes more partial and unpredictable, thus putting the liberty of all who arc subject to the law at risk. Rousseau’s argument that the generality of law is the corollary of a society guided by an egalitarian ‘general will’ seems pertinent here."' “ G. A. Cohen, ‘Freedom, Justice and Capitalism’, Nem I.eft Review, 126 (Mar.-Apr. 1981). 7-11; C. B. Macpherson, Dentnaatic Theory, Essays in Retrieval (Oxford, 1977), 95->>9w Equality, Markets and lite Slate: Fabian Tract qgq (London, 1984), 7. w So argues Neumann in ’Governance of the Rule of Law’, 250-5.

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This line of analysis has prompted some to suggest that there is no difference between procedural and substantive justice, that the rule of law can function, for example, ‘to establish social, economic, educational and cultural conditions under which the individual’s legitimate aspirations and dignity may be realised’.1" But such an all-embracing conception of the rule of law may not serve any useful purpose. Indeed procedural justice stands to lose if it is simply lumped with criteria about the content of law. Joseph Raz argues that ‘we have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that the good should triumph’.'15 It is misleading to transform the rule of law into those laws promoting social justice, just as it is to equate it with Hayek’s model of the unregulated market. Properly understood as a set of procedural conditions for the enactment and application of law, the rule of law furnishes important moral values which are compatible with socialist concerns. Procedural and substantive justice arc not synonymous, nor are freedom and equality, but they are all mutually supporting. And it is the socialist commitment to substantive justice and equality which yields a society hospitable to, and needful of, the negative freedom provided by the rule of law. To achieve substantive justice, however, we must look at other aspects of a socialist legal system—among them, the idea of human rights. M Report of the 1959 International Congress of Jurists, quoted in Raz, Authority of Law, 210-11. Similarly, Dworkin converts the rule of law into an argument for pre­ political rights: see ‘Political Judges and the Rule of Law’, 1978 Maccabaean Lecture in Jurisprudence, Proceedings of the British Academy, 64 (London, 1978). 145 Authority ofLaw, 211.

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4 Human Rights and Political Reform At the heart of the problem of a socialist jurisprudence is the matter of rights. For many liberals, a legal system without rights could not properly be called a system of law. In Ronald Dworkin’s words, ‘If the government does not take rights seriously, then it does not take law seriously cither’.' On the other hand, for many Marxists, a socialist legal system that included rights could not properly be called socialist.2 It is the idea of individuals having rights against each other that many Marxists hold to be the most objectionable aspect of law. The fact that existing socialist societies of Eastern Europe simultaneously codify and abrogate fundamental rights may bear witness to both the ideological force of the Western idea of human rights, and their apparent incompatibility with the collectivist principles of socialism. Simply stated, human rights conceive the individual as possessing certain attributes, in virtue ofbeing human, which arc the basis for a set of moral claims that political societies have an obligation to honour. The idea of human rights seems to exemplify the conflictual and individualistic view of human nature that underlies the Marxist analysis of law as a reflection of egoism. More important, perhaps, it would seem to conflict with the Marxist view that the nature both of the individual and of morality arc shaped by the prevailing social conditions. Although the Marxist case against law can be taken, ipso facto, to include a case against rights, there is reason for a Marxist to be 1 Taking Rights Seriously (Cambridge, Mass., 1978), 205. 2 The socialist antipathy towards rights is recognized and applauded in Paul I lirst, On Law and Ideology (London, >979), 162-3, and Ruth Anna Putnam, ‘Rights of Persons and the 1 liberal Tradition’, in Ted 1 londerich (cd.), Social Ends and Political Means (London, 1976). It is recognized and criticized in Steven Lukes, ‘Can a Marxist Believe in I luman Rights?’, Praxis IntemaiionaL 1/4 (1982); id., Marxism and Morality chs. 1-3; Alice Ehr-Soon Tay, ‘Marxism, Socialism and I luman Rights’, in Eugene Kamenka and Alice Ehr-Soon Tay (eds.), Human Rights (London, 1978); Leszek Kolakowski, ‘Marxism and Human Rights’, Daedalus (Autumn 1983).

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suspicious of rights independent of his general hostility to law. But perhaps human rights can be understood in a way that makes them capable of promoting socialist goals. For this, the socialist legal theorist would first have to ascertain the extent to which the notion of rights can be revised to meet Marxist objections without forgoing the essence of what it is to have a right. That is to say, we need an alternative conception of ‘natural’ or ‘human’ rights.

The Concept of Human Rights What is a right? Briefly, a right may be best understood as the basis for a claim that an individual’s interest be recognized or protected. A right is sufficient ground for holding another—be it an individual, corporation, or society—to a duty. Several important distinctions are to be made under the category of rights. One is that between positive and negative rights. A positive right, such as the right to health care, imposes a duty to take action on behalf of the right-bearer. A negative right imposes a duty to refrain from taking action, as in the case of the right to property. Another important distinction, which cuts across the dichotomy between positive and negative rights, is that between moral and legal rights. We may use the idea of a moral right to refer to the obligation of one person to do or not do something on behalf of another; for example, I may invoke such a right in the case of a neighbour who disturbs me. A legal right refers to a right that is recognized by law, such as the rights to own property' or receive health care. A human right could be described as a moral right with legal aspirations. It is a moral right in the sense that it expresses a moral requirement which may or may not be embodied in law. But human rights have legal pretensions: they address moral issues of political significance and their advocates seek the recognition of human rights in the laws of society. Hence, it may be that observance of some human rights is an existence condition for law; in other words, these rights arc among the norms a rule must recognize if it is to count as law. As human rights are generally understood, however, their most arresting feature is that they arc a set of political ideals which seek to invalidate systems of law that lack them, and whether or not they actually succeed in doing so docs not bear on their existence. These rights are called human rights because they refer to the rights an individual has because he is a human being. What is it about being human that qualifies us for human rights? Human beings, like all creatures, have a basic need to live, and thus require the means of life

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such as food and shelter. But theorists of human rights tend to be concerned with those attributes which distinguish us from animals. The Marxist Ernst Bloch refers to the ‘upright carriage’ as a metaphor for being human which is the ineluctable core of human rights.3 Thus the specifically human capacities to reason or to love, or the human needs for companionship and autonomy, arc often cited as the basis of human rights? It is because of these attributes that man is a subject, an agent, a moral being to be valued, worthy of respect and concern. Not surprisingly, therefore, a Kantian conception of ethics is often the foundation of human rights: human rights seek to ensure that man is treated as an end, and not as a means. Human rights are sometimes considered a species of‘natural rights’. There are three ways in which the ‘naturalness’ of human rights can be understood. First, the attributes that give rise to human rights are often taken to constitute ‘human nature’. They are attributes that are considered ‘natural’ to man, in the sense that they obtain regardless of the society in which he lives. For example, Alan Gewirth considers human rights to be ‘natural’ because they protect the ‘necessary goods of action’ and thus pertain to individuals’ nature as ‘actual or prospective agents’.5 Second, human rights protect man’s purportedly natural needs; the idea of a ‘state of nature’, prior to society, is used to illustrate the idea that man possesses certain natural, i.e. prc-social, rights. Third, talk of natural rights, like that of natural law, is used to refer to features of an objective moral order, derived perhaps from reason or God. This conception will be less significant for our analysis.6 Common to all theories of human or natural rights is the view that because they precede social organization, society has a duty' to protect people’s human rights. It follows that the idea of natural or human rights has historically been used as a standard with which to assess social institutions. In the American and French revolutions, for example, human rights were set out as a basis for government. According to thinkers such as Locke and Paine, a state was legitimate so long as it guaranteed man’s natural ’ Natural Law and Human Dignity, trans. Dennis J. Schmidt (Cambridge, Mass., 1986), 185. ‘ Jacques Maritain, Rights of Man and Natural Law (London, T945), 37-8; Alan Gewirth, Human Rights: Essay's on Justification and Applications (Chicago, 1982), 5. s Ibid. 7. ‘ But in Natural Right and History (Chicago, 1953), Leo Strauss rejects individualistic theories for a ‘Socratic* concept of natural rights as a set of eternal principles which determine man’s place in a teleological moral order.

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rights to freedom, equality, and property. The Declaration of the French Constituent Assembly distinguished between the rights of man, which were natural, and the rights of the citizen, which were embodied in law and convention; the former were assigned paramount importance. According to the French revolutionaries, the rights of man were ‘natural and imprcscriptable rights’. For the American con­ stitutionalists, they were ‘inalienable rights’ derived from ‘self-evident truths’.7 Human rights may not have the efficacy of legal institutions, but as moral axioms derived from the nature of man or an objective moral order, they are deemed more fundamental than any other precepts recognized by positive law.

Human Rights in Marxist Theory and Practice Marx did not devote any of his works wholly to the question of the value of individual rights in capitalist or post-capitalist society. From his scattered declarations on the subject, however, one can discern the shape of the Marxist argument against the idea that there exist human rights which it is the task of a just society to protect. The most vehement attack on human rights in Marx’s writings is to be found in The Critique of the Gotha Programme, in which he criticizes the draft manifesto of a faction of the German Social Democratic Movement. There he ridicules the call for fair distribution and the ‘bourgeois’ notion of equal rights that it implies. It is a mistake, Marx argues, to focus on distribution independently of the relations of production that are its source. Socialism will not be achieved, he maintains, by levelling incomes. I have dealt more at length with the ‘undiminished proceeds of labour,’ on the one hand, and with ‘equal right’, and ‘fair distribution’, on the other, in order to show what a crime it is to attempt, on the one hand, to force on our Party again, as dogmas, ideas which in a certain period had some meaning but have now become obsolete verbal rubbish, while again perverting, on the other, the realistic outlook, which it cost so much effort to instill into the Party but which has now taken root in it, by means of ideological nonsense about right and other trash so common among the democrats and French socialists."

It may be suggested that Marx objected to talk of rights for strategic reasons rather than for reasons of principle; that is, rights are to be eschewed because they arc a poor instrument for achieving socialist ’ Margaret MacDonald, ‘Natural Rights’, in J. Waldron (cd.), Theories oj Rights (Oxford, 1984), 26-7. " Critique of the Gotha Programme, A'fESIP 3*. 19.

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objectives, even though these objectives might be the very things rights arc designed to protect. It is possible that in The Critique of the Gotha Programme, for example, Marx was condemning not rights per se but the tendency of some revolutionaries to fiddle with capitalist distribution arrangements instead of overthrowing capitalist relations of production. This interpretation finds additional support in Marx’s critical writings on Hegel’s Philosophy of Right, where he points out that so-called universal rights function to confirm the hegemony of the bourgeoisie: ‘only in the name of the general rights of society can a particular class lay claim to general domination’? If rights arc the paramount means by which the bourgeoisie legitimizes the capitalist order, then it may be dangerous to attempt to appropriate them for socialist ends. Socialist movements that talk of rights risk ‘perverting’ the ‘realistic outlook’ of the class struggle. In their essay on juridical socialism Engels and Kautsky similarly warn of the dangers of the proletariat being seduced by the oudook of human rights. They argue that while socialists might hope that rights can be used to undermine the power of the very class, the bourgeoisie, which has been the traditional champion of rights, socialism will be achieved not by making legalistic demands but by concentrating on the underlying forces of social development.'" It is my view, however, that these tactical arguments arc of a piece with a more wholesale rejection of human rights in Marx’s writings. Indeed, Marx and Engels made their views on rights quite clear:

as far as law is concerned, wc with many others have stressed the opposition of communism to lan>, both political and private, as also in its most general form as the rights of man." Hence, it would seem that Marxists consider human rights as not simply an unsatisfactory strategy for social change but intrinsically incompatible with socialist ideals.12 This is consistent with Marx’s hostility to natural law cited earlier. Marx rejects the idea of ‘eternal and immutable right’, arguing that supposed ‘natural’ rights must be understood within a particular historical context: ‘right can never be higher than the economic structure of society and its cultural development conditioned thereby’.” Rights arc therefore incapable of '' ‘Introduction to A Contribution to the Critique of Hegel's Philosophy of Loro', MECU'y. 184. ‘Juridical Socialism’, introd. Piers Beimc, Politics amt Society, 7/2 (1977), 219. " Gentian Ideology, MECIP 5: 209. 11 Lukes, ‘Can a Marxist Believe in I lumen Rights?’, id., Marxism ami Morality', ch. 4. " Critique ofthe Gotha Programme, MESW y 19.

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offering a universal moral standard by which to measure different societies, or even to measure different people. This is because, on Marx’s argument, the differences between individuals and their situations means that treating people in accordance with abstract, equal rights will simply intensify inequalities. Furthermore, the idea of prc-social human rights docs not sit well with Marx’s contention, following Hegel, that the individual’s needs, wants, and even his very personality arc the product of interaction with other individuals in a community, that ‘the essence of man is the ensemble of social relations’. This view of‘the social genesis of the self’14 is incompatible with the idea that people possess fundamental rights anterior to social relations. The idea of human or natural rights seems to smuggle in a legal subject prior to and independent of the social process of legal definition.1' Accordingly, Marx dismisses the proclamation of natural rights as an ideological exercise which falsely imputes the particular values of a particular society with eternal significance and worth. For Marx, the rights of man propounded by the French and American revolutions arc in fact ‘simply the rights of a member of civil society*. Moreover, as we saw in our discussion of the withering away thesis, Marx contends that in bourgeois society these rights arc ideological, and therefore do not protect what they claim to: it is not an eternal humanity' but its very antithesis, private property, which is the basis for individual rights.1,1 The capitalist looks to rights to protect the freedom to appropriate and exchange property, to enforce inequality of wealth and power, and to contain the consequences of the distrust and suspicion among people that is endemic to a capitalist system of production and exchange. For the Marxist, in such a society of unfreedom, inequality and social antagonism, the rights to liberte, egalite, and fratemite ring hollow.1’ Such rights cannot accomplish human emancipation because they arc the creations of a society concerned only with political emancipation, upon which capitalist ownership depends. Only when the purported ‘human’ rights to individual freedom and private property arc over•• David Bakhurst, ‘Marxism and Ethical Particularism: A Response to Steven Lukcs’s Marxism and Morality’, Praxis International, 5/2 (July 1985), 216-18. “ Hirst, On Lam amt Ideology, 162-3; Tay, ‘Marxism, Socialism and I luman Rights’, ■04-7. lfc Tom Campbell, The Left amt Rights: A Conceptual Analysis of the Idea of Socialist Rights (London, 1983), 26. 17 G. A. Cohen made this point in a lecture in his series, ‘Socialism: Utopian and Scientific’, given at Oxford University, 15 Oct. 1985.

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thrown by the human emancipation of socialism 'can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banner: From each according to his ability, to each according to his needs!’"1 How have human rights fared under existing Marxist regimes? Significantly, unlike the regimes of the far Right, which have disposed of the very concept of human rights, socialist constitutions in Eastern Europe do inscribe certain rights and liberties. The tone for socialist declarations of rights, however, was set in 1918, when Lenin wrote the ‘Declaration of the Rights of the Toiling and Exploited Peoples’. It has been argued that this document was a declaration of policy, enumerating the socialist rights of the working classes, as well as their obligation to defend the republic. David Lane maintains:

In contrast ... to Western states where rights are expressed as inalienable attributes to individuals, and are claims which the state cannot (or cannot lightly) override, human rights in the Soviet Union have been bound up with what the state can (or should) do to liberate the working class.1’ What might be called ‘economic’ or ‘welfare’ rights such as the rights to work, to vocational training, to equal payment for work of equal value, to leisure and rest, to old-age security, to housing, to education, and to health facilities are still given pride of place in the Soviet constitution. In principle, these rights are of great worth, and offer a model for social welfare policy in the capitalist societies.2" More problematic are those political and civil rights which empower individuals to resist or criticize the collective ethos of a socialist society. Soviet jurists do speak of economic, political, and civil guarantees, but in that order. While the Soviet Constitution sets out such political rights as freedom of conscience and expression, their validity is undermined by the express qualification at the beginning of the declaration that the protection of all rights is subject to conformity’ with the interests of Soviet society and the state. The Soviets seem to concur with John Stuart Mill’s unfortunate remark about the right to equal treatment, that people have rights unless social expediency

'• Marx, Critique of the Gotha Programme, MESIV 3: 19. 19 ‘Human Rights under State Socialism’, Political Sliaties, 32 (1984), 357. “ Although many would say that not even these rights couid be said to be absolutely guaranteed in the USSR.

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requires otherwise!21 The ‘most fundamental guarantee of the fundamental rights of citizens is Soviet power itself’ is the explanation often offered by legal commentators.22 It is assumed that legal and political rights and liberties are the mere consequence of the material guarantees that are said to be inherent in the socialist regime. In his study of Soviet constitutions, Aryeh Unger contends that the Soviet conception of rights is constrained by two propositions:

that the interests of the individual are subordinate to those of society and in particular to the collective enterprise of building socialism . . . and that the rights of the individual are inseparably linked to his duties.2' On the basis of the first proposition, petitions for rights against the state are perceived to be a threat to the very project of building socialism. If the exercise of a constitutionally defined freedom conflicts with the interests of the state, the freedom is overruled. For example, freedom of expression is severely constrained by state policy on the copying of printed matter: there are no publicly available photocopying facilities or home computers, and complex and cumbersome rules regulate the use of those few printing presses that are available to ordinary citizens.21 The second proposition, that the Soviet citizen must deserve the rights that the state chooses to afford him, means of course that the state is the final arbiter of whether a right is deserved or whether it interferes with social objectives. The concept of rights as protecting certain kinds of individual activity against the opposition of powerful political and social interests therefore appears to be meaningless. The Belgrade Praxis Group goes so far as to say that human rights have been so belittled in the ‘absolutist’ socialist state that: What remains of the constitutional freedoms of conscience, thought, education and organisation is mere caricature. Citizens arc free to think but they must prove that their thinking is ‘constructive’. They are free to elect representatives who have previously been chosen by the Party. They arc also free to join all

21 ‘All persons arc deemed to have a right to equality of treatment, except where some recognised social expediency requires the reverse’: Utililariunism, in Utilitarianism, On Libert)', Essay on Bentham, ed. and introd. Mary Warnock (Glasgow, 1962), 320. 22 Cited in Aryeh Unger, Constitutional Development tn the USSR (London, 1984), 274; see also John Hazard, Managing Change tn the USS/i (Cambridge, 1983), 128-32. 22 Unger, Constitutional Development, 274. 21 F. J. M. Fcldbrugge, ‘Law and Political Dissent in the Soviet Union’, in Harold Herman (ed.), Contemporary Soviet Lan>: Essays tn llonourofjoltn .V. Hazard ( The I lague, ■974), 59-

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those organisations and societies which undergo strict and permanent Party control. ‘Real’ education has been subordinated to the pragmatism of daily politics and the imperatives of a thorough-going pseudo-revolutionary indoctrination. . . . Even the most naive citizens . . . know they could be held responsible for a crime ‘against the people and the state’ or end up in a psychiatric hospital if they took the Constitution seriously and behaved ‘constitutionally.’25 In light of both Marxist theory and socialist practice, then, it would seem that human rights arc incompatible with socialism. Indeed, the human rights record of Eastern European societies seems to confirm the Marxist theorist’s charge that these rights are merely empty rhetoric which has no real efficacy. (One might wryly comment that if the rights in the Soviet constitution have any status, it must be as natural rights which are not guaranteed by positive law.) Offering neither a tool for the movement towards socialism nor a goal upon its attainment, it appears that it is indeed true that ‘a Marxist cannot believe in human rights’. The Positivist Critique

The idea that man possesses pre-politieal rights has its share of detractors who are not Marxists. In fact, some of the most lively debates on the issue have taken place within the liberal tradition, between natural rights theorists and legal positivists. It will be useful to examine some non-Marxist arguments against the idea that man pos­ sesses pre-politieal rights, for they may shed light on the strengths and weaknesses of the Marxist position. Legal positivists object to the idea of human or natural rights for the same reasons that they object to the idea of natural law, that established legal institutions alone can properly be given the titles of ‘law’ or ‘rights’. Perhaps the most famous statement against natural rights is that made by Jeremy Bentham:

Rights is the child of law; from real law come real rights; but from imaginary laws, from ‘law of nature’ come imaginary rights . . . Natural rights is simple nonsense; natural and imprcscriptable rights . . . theoretical nonsense, nonsense upon stilts.2" Mihailo Markovic el al. (Belgrade Praxis Group), ‘Meaning of the Struggle for Civil and Human Rights’, Telos, 35 (Spring 1978), 189-90. 26 Anarchical Fallacies, in Works ofJeremy Bentham, ii, 11 vols, (Edinburgh, 1838-43), 501.

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Bentham considers the idea of rights which are not inscribed in law to be as sclf-contradictory as ‘cold heat’. While the existence of a legal right can be determined by reference to a legal statute or court of law, there is no rational resolution or objective decision-making procedure available to settle the question of whether man has a non-lcgal right. For the positivist, rights must have the status of ascertainable facts; natural rights arc thus, quite simply, nonentities.27 On this view, we may criticize a system of positive law for not including an individual right, but that does not give us grounds for asserting the existence of an equivalent human right.2" H. L. A. Hart contends that: ‘Government among men exists not because men have rights prior to government which government is to preserve, but because without government and law men have no rights and can have none.’2'7 Furthermore, Bentham warns, if we were to actually take natural rights seriously, they could have anarchical implications. Lacking a source in law, natural rights inhibit a government’s pursuit of the general welfare which utilitarians urge as the basis for political and moral decisions. Any established law or policy for the common good could be overruled by the individual who sanctifies his opposition with the title of‘inalienable rights’. It may be thought that these difficulties could be averted by allowing general exceptions, such as when the common good or the general will dictates a check on individuals’ assertion of their human rights. But Bentham contends that if exceptions of this nature were admitted, natural rights would become nugatory and meaningless. "1 It is striking how this line of argument seems to anticipate the dynamics of state policy and human rights in many contemporary authoritarian regimes. What Hart refers to as the duality of ‘cynical lip service’ and ‘cynical disregard’ paid to the principles of the United Nations Charter of Human Rights would have come as no surprise to Bentham." The question of the coherence and function of rights which owe their origin to principles outside society’ continues to dog theories of 27 II. L. A. Hart, ‘Utilitarianism and Natural Rights’, in Essays in Junspmdaia and Philosophy (Oxford, 1983), 185. w This follows from Raz’s general argument about the sourees of law which we saw in Ch. 2, and also from his comment that while legal rights to political participation may provide a reason for investing people with a legal right to free information, they cannot be used to establish that people already have such a right: ‘On the Nature of Rights’, Mind, 93 (>984) w ’Utilitarianism and Natural Rights', 182. Ibid. 186. " Ibid. 196.

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human rights. Contemporary positivists ask: What kind of rights are unwritten, need never have been enacted, and can be unobserved without penalty?'2 Even those hostile to the impersonal morality of utilitarianism have recently added their voice to the critique of human rights. ‘Communitarians’ such as Alasdair MacIntyre argue that individuals’ assertion of their ‘human rights’ rests on a false conception of the autonomous moral agent, liberated from any allegiance to the moral authority of communal institutions. There are echoes of Benthamite scepticism in MacIntyre’s assertion that the belief in human rights is irrational, ‘one with belief in witches and unicorns’." Communitarians and utilitarians thus form an unholy alliance in their analogous claims that the common good should have priority over socalled ‘natural’ rights. These non-Marxist criticisms seem to give substantial credence to the Marxist’s misgivings about the existence of rights prior to society. The Left-wing argument that human rights merely disguise bourgeois interests is buttressed by the Benthamite argument that human rights arc simply a nonsense individuals use to legitimize their opposition to policies concerned with the common good. Positivists, communitarians, and socialists thus find common cause in their conviction that rights can be understood only as legally recognized institutions, or at the very least, socially observed customs. If allowed to enter our vocabulary at all, natural or human rights are said to be tolerable only as a ‘shorthand way of making assertions about what rights persons ought to have’.'4 The vagueness of natural rights may seem a further and especially fatal weakness in the concept. Some critics take the fact that there are many different conceptions as evidence that these rights do not exist. The idea of natural rights is itself comparatively recent, not to be found in the writings of the Greek philosophers or in oriental thought. It may be argued that if natural rights existed in ancient societies, no one seemed to know about them.'5 Nor did their first appearance settle the matter of the status of natural rights. According to Roman law, natural rights were an ideal fixed by nature to be discovered and applied by men. Human law’s authority did not depend on its replication of natural law, but human lawmakers were to approximate '2 “ M “

=

MacDonald, ‘Natural Rights’, 22. After I'irtue: A Study in Moral Theory (London, 1982), 67. Campbell, The Left and Rights, 24-6. MacIntyre, After Virtue, 66-7; Hart, ‘Utilitarianism and Natural Rights’, 172-3.

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the ideal as much as possible.'6 In contrast, early Christian thought devolved natural rights and natural law with a theological basis as the participation of God’s law in man. Whether or not an enacted law which failed to honour these rights was still binding was a matter of some dispute.” Natural rights were radically transformed by eighteenth­ century contract theory. While the Christian doctrines conceived of natural rights as directed towards the common good, the architects of the ‘bourgeois’ revolutions depicted natural rights individualistically, as guarantees of the citizen’s property and liberty against intrusions by the state. Contemporary natural law theories reflect many of these different strands. John Finnis’s doctrine gives them a communal focus: ‘we should not say that human rights, or their exercise, are subject to the common good; for the maintenance of human rights is a fundamental conception of the common good’. ’8 Social welfare was the emphasis of human rights in international relations after the Second World War. The United Nations Charter set out rights not only to property and freedom of speech, but to a minimal standard of living, health, and education as constituents of ‘an existence worthy of human dignity’.” Contemporary liberals, however, uphold a Lockcan interpretation of human rights as offering the individual a sphere of immunity from policy aimed at the general welfare. Robert Nozick, for example, argues that taxation violates people’s human rights to property. Ronald Dworkin, in contrast, still maintains that people’s human rights arc abridged if they are not treated with equal concern and respect in the distribution of goods and opportunities.10 For the critic of natural rights, human rights are no more than rhetoric with which people express their various and contrasting subjective moral preferences. The diversity of human rights cannot be explained away with the rationale that people misperccivc the true nature of rights. It is the fact that natural rights arc fictitious that accounts for the ‘relativity’ of our understanding of rights to social circumstances. 36 MacDonald, ‘Natural Rights’, 24. 37 Cf. Aquinas’s more flexible approach with that of Augustine; see John Finnis, Natural Law and Natural Rights (Oxford, 1980), 363. “ Ibid. 218. 37 Cited in Ian Brownlie (cd.), Basic Documents on Human Rights (Oxford, 1981), 25. w Dworkin, Taking Rights Seriously, 273; Nozick, Anarchy, Stale and Utopia (Oxford, 1984), 262. See also II. L. A. Hart, ‘Between Utility and Rights', in Essays in Jurisprudence, 208-10.

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Natural Rights and Social Justice

Docs the theory of natural rights have any defence against these compelling criticisms? It could be argued that it is entirely believable that our various conceptions of human rights originate in a misperception of their objective reality. After all, given that human rights refer to fundamental moral values, we would expect people to attempt to exploit them to give legitimacy to their particular interests or prejudices. Things which matter so much to us cannot help but offer opportunities for us to deceive ourselves about their true nature. Thus, the correct recognition of human rights may depend on a certain level of development in social relations, but this docs not mean that their actual existence is determined by people’s recognition of them, any more than the roundness of the earth depends on people’s consensus on the issue. So, while the diversity of accounts may leave us uncertain about the status and content of human rights, it is not sufficient to deny their existence. Perhaps the best argument that can be made for subscribing to human rights is to refer to the many moral attractions that account for the enduring appeal of the idea of such rights. First, the theory of natural rights harmonizes with our view that the identification of law must refer to moral issues. The idea that man possesses certain fundamental rights prior to society such as the right to freedom from arbitrary arrest or to legal counsel, is consistent with the procedural morality which makes up the existence conditions for valid law. Indeed, it may be more than consistent; perhaps natural rights are what is required to give more content to the notion that law has a moral dimension: a prerequisite for legal validity may be the extent to which the social rule respects, for example, the human dignity of the juridical subject. 1 think there lurks a potent political ideal in the possibility that the validity of positive law is in some sense a moral question, that societies are obliged in their legal institutions to ensure the enforce­ ment of certain rights which enable man to be an autonomous being. But the most important benefit, perhaps, of conceiving man as the bearer of natural rights is that it provides a standard with which to critically appraise those legally valid but morally wrong acts of a political regime. Human rights embody the ideals of a public morality; to violate a human right is not simply to do wrong, but to commit an injustice. These rights prohibit the community from treating human beings in certain ways; they involve accepting constraints upon the

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pursuit of social goals.41 The individual may thus invoke his human rights both to accomplish socialist objectives and to check the excesses that may result from their unqualified pursuit. This is because doctrines of human rights forcefully express the individual’s concerns at precisely those times when the individual and the community are at odds. They are a vehicle in which the citizen may ‘articulate his obscure but firmly held conviction that he is not a mere pawn in any political game, nor the property of any government or ruler, but the living and protesting individual for whose sake all political games arc played and all governments instituted’.42 Hence, a socialist theory of law that dispenses with the idea of human rights may rob itself of an instrument with which to vigilantly scrutinize the political decisions of any society. Tom Campbell may be right that ‘rejecting the moral interpretation of rights certainly enables us to speak of rights in a purely descriptive manner and hence to ask what it is to have a right and whether there would be rights in socialist society, without immediately entering the realm of moral debate.4' But it is unclear, in light of the normative nature of the identification of law and the moral value accruing to the individual who can win recognition of his rights, what a question about human rights removed from ‘moral debate’ could be. And in any case, such a question would not seem to be in keeping with a socialist outlook. The socialist’s rejection of capitalism and his preference for a society of social ownership of the means of production is premissed on just such ‘moral debates’ which often tacitly involve some notion of human rights.44 For despite the existence of an antirights orientation in theories of socialism, the Left has long looked to human rights in its struggles for social justice. In liberal capitalist countries, socialists call for the protection of human rights in defending the interests of striking workers, victims of racism, or social welfare recipients. And the language of human rights is used by the Left in revolutionary situations. In their efforts to overthrow repressive regimes in Chile or South Africa, resistance movements appeal to the moral standard furnished by human rights. Although Marx was highly critical of the doctrine of the rights of man, it would be a mistake to attribute to him a complete rejection of the political emancipation wrought by capitalism. Even in ‘On the Jewish Question’, where we sec some of Marx’s harshest words against 41 Lukes, ‘Can a Marxist Believe in Human Rights?’, 336-7. 42 MacDonald, ‘Natural Rights’, 21. 4’ The Left and Rights* 25-6. 44 As Campbell himself admits: ibid. 26.

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rights, the bourgeois revolution is welcomed for setting free ‘the political spirit which had been, as it were, split up, partitioned and dispersed in the various blind alleys of feudal society’. Marx therefore applauded capitalism’s break with the tyrannical bonds of tradition and custom which characterized primitive societies. To the extent that rights were the instruments of this political revolution, they liberated man, ‘broke up civil society into its simple component parts; on the one hand, the individuals, on the other hand the material and spiritual elements constituting the content of the life and social position of these individuals’.''5 While it is true that Marx rejected the ‘bourgeois’ concept of the rights of man for unleashing egoism and reducing human relations to those of the cash nexus, he also admired some of the values they sought to protect, that is, the dignity and autonomy of the individual. To that extent Marx believed that the rights of man helped create the pre-conditions for socialism.46 Nevertheless, Marx may have made the mistake of assuming that these rights could only figure as guarantees appropriate for capitalist relations of production; Claude Lefort contends that it is because Marx was seduced by the ‘bourgeois ideology of the rights of man’ that he could not conceive of the socialist potential of these rights.47 Other commentators defend Marxism on this score, asserting that although Marx and Marxists fail to acknowledge it, their political convictions can be expressed in terms of natural rights. G. A. Cohen, for example, maintains that: The language of natural... rights is the language of justice, and whoever takes justice seriously must accept that there arc natural rights ... justice occupies a central place in revolutionary Marxist belief. Its presence is betrayed by particular judgements Marxists make, and by the strength of feeling with which they make them. Revolutionary Marxist belief often misdescribes itself, out of lack of clear awareness of its own nature . . . Marxists, whatever, they may say about themselves, do have strong beliefs about justice.4" 45 ‘On the Jewish Question’, MECIV 3: 166. 46 Richard E. Flathman, Practice ofRights (Cambridge, 1976), 193-7; Tay, ‘Marxism, Socialism and Human Rights’, 108. 47 ‘Politics and Human Rights’ in Political Forms of Modem Society: Bureaucracy, Democracy, Totalitarianism, ed. and introd. John B. Thompson (Cambridge, 1986), 248-52. 44 ‘Freedom, Justice and Capitalism’, Nem Left Ret'iem, 126 (Mar./Apr. 1981), 12. There is considerable debate on the issue of whether Marx criticized capitalism with the criterion of justice, and if so, how justice should be understood. Without engaging in that debate, implicit in my argument here is the assumption that Marx did indeed find capitalism to be unjust. But see also Lukes, Marxism and Morality, ch. 4; in ‘Controversy about Marx and Justice’, Nene Left Revienr, 150 (Mar./Apr. 1985), Norman Geras analyses the different perspectives in this debate.

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If human rights served to combat feudalism, perhaps socialists today could appeal to some ethical core of the concept to combat the return of the tyranny of the collective in the form of an authoritarian socialism. This is suggested even by those who have suffered from the hypocrisy of socialist regimes which embrace the rhetoric but disregard the guarantees of human rights. Despite their hostility to the manipulation of human rights in existing socialist societies, the Belgrade Praxis Group remained convinced that

The basic civil rights and liberties arc the great achievements of past democratic revolutions. They are necessary—though not sufficient—conditions of a free human life in any society. A critique of these rights which rejects or disparages them as merely ‘formal’, ‘abstract’, or ‘bourgeois’, is not only devoid of historical sense, but, in the context of societies which have not only not overcome this ‘bourgeois’ level but have not even approached it, also expresses an aggressive obscurantism." Eastern European socialists live under regimes that one would expect to breed cynicism about human rights, and if they can uphold both a belief in the validity of Marxist theory and a demand for the recognition of individual liberties by means of rights, there may still be hope for a theory of human rights consistent with socialism. Natural versus Human Rights

We have seen that the language of human rights can be employed to express moral ideals congruent with the spirit of socialism. Is there anything irredeemably incompatible about human rights and socialist theory? There docs remain the argument, derived from Marx himself, that human rights rest on a false claim to being ‘natural’, immutable entities. In response, it can be said that human rights need not rest on this claim, but can be conceived differently. In the analysis that follows I will try to show that human rights arc essentially social, historically conditioned phenomena. If this is so, we may be able to regard the diversity of views about the content of human rights as an advantage, not a problem. Once we accept that human rights arc capable of changing with historical developments we can dispose of the charge that these rights arc fit only for capitalist society. A socialist theory of human rights must therefore drive a wedge between natural rights and human rights. *' Markovic d til., ‘Meaning of the Struggle for Civil and I Ionian Rights’, 186.

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There is one obvious sense in which human rights do not enjoy a natural or pre-social status. Rights of any kind, like moral principles, do not have efficacy, or even relevance, until the appearance of social and political forms of existence. We do not need our ‘natural’ rights until we find that our needs and goals are potentially at odds with those of others. We only have reason to invoke human rights in society because it is only in society' that these rights can be infringed or protected. One writer notes that even the most minimal procedural rights ‘presuppose modem legal systems and the institutional safeguards they provide’.5" The problem with this argument is that it is perfectly consistent with the idea that human rights exist prior to society. Although the circumstances in which we recognize rights arc historically conditioned, we have not shown that the rights we recognize do not exist prior to society. This sense in which rights arc socially conditioned is thus too modest for our purposes: it docs not threaten the pre-social status of natural rights in terms of their origins. It remains to be shown that human rights arc somehow constituted in history, in society. One way of approaching this task is to ask what it is that human rights protect. Human rights are called ‘fundamental’ because they are said to nurture or preserve something basic about human existence, something that cannot be eliminated without destroying an essential feature of being human. Human dignity is what is at stake when our human rights arc infringed or neglected. It is difficult to provide an immutable definition of human dignity that is not vacuous. What we can say is that by protecting human dignity, human rights seek to prevent affronts to our self-respect, our sense of importance as human beings. It is for this reason that Leszek Kolakowski holds that human rights exist ‘because of the inherent dignity of being human and make up part of the natural order, rather than being established by decree or positive law.”1 Similarly, Bloch’s notion of the ‘upright carriage’ involves the idea that being human requires recognition, in some sense, of our stature as creatures with rational plans of life and moral commitments and attachments. These attributes can be said to be the ineluctable core of being human, a human nature, perhaps, which distinguishes us from other animals; but specifically what plans, commitments, and attachments go into the dignity' of being human cannot be stated in the abstract, for the question of what counts as James W. Nickel, ‘Arc I luman Rights Utopian?', Philosophy amt PublicAffairs, 11/3 (1982), 25a. 51 ‘Marxism and I luman Rights’, 83.

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human dignity varies from epoch to epoch and from society to society. This is not to reinvoke a variant on the modest argument about the historicity of human rights, i.e. that what varies over time is merely our perceptions of human dignity. We have here a stronger claim, that what it is to actually live a life of dignity undergoes a process of evolution. While human dignity seems a constant value, what gives human beings dignity will be constituted by social and historical factors. It may be thought that human dignity must be constant because the nature of man is constant. It is true that we say that what gives a life dignity is the fulfilment of those things that arc essential or ‘natural’ to human life. Thus in the 1844 Manuscripts Marx develops the idea of man’s ‘species-being’ as a kind of human essence, wherein man distinguishes himself from animals by' labouring on nature, to reproduce, not only his material existence, but his personality. The animal is immediately identical with its life-activity. It docs not distinguish itself from it. It is its life-activity. Man makes his life-activity itself the object of his will and of his consciousness ... It is just because of this that he is a species being. Or it is only because he is a species being that he is a Conscious Being, i.e., that his own life is an object for him.52

The idea of species-being provides Marx with a moral standpoint from which to criticize the alienation of labour under capitalism as the cause of the labourer’s ‘loss of self’, or, we might say, the violation of his essential nature. But species-being differs from the traditional idea of human nature as a set of eternal human characteristics isolated from man’s social environment. If there is a Marxist concept of human nature, it would consist of a historically conditioned set of capacities.51 Man will always have certain needs, be they the physical or animal needs to the means of life, or the more specifically human or intellectual needs which concern Marx in his elaboration of species­ being. But we cannot specify their needs further without reference to historical circumstances. To ground human rights in a Marxist conception of human nature would depend on an understanding of human dignity as subject to constant evolution and development. Property is a good example of the way in which historical change conditions human needs and the rights these needs require. How

52 ‘Economic and Philosophical Manuscripts’, Al/iCII'j: 276. “ See Norman Geras, Atari' and tlamau Nature: Refutation «/ a /.egertd (London, 1983).

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property is defined is itself subject to historical forces: traditional societies, whether tribal or feudal, consider property to be land that belongs to the community in some sense, so that the right to property is a trust that carries certain obligations. Liberal market societies, in contrast, define property as capital which belongs to private individuals. A right to property will thus mean different things in different societies. Whether property, however defined, is a constituent of human dignity, also varies from society' to society. A right to property presupposes a series of social conventions which render the privatization of resources a seemingly ‘natural’ thing to do.54 It thus makes sense to speak of a human right to property only in certain kinds of societies. Even the most basic of human rights, the right to life, is conditioned by social factors. In some societies, it is not any life, but a noble life that matters, and a noble life may require certain kinds of death. Indeed, death gives a life dignity in some cultures. Kamikaze attacks by Japanese pilots, the pursuit of a ‘noble death’ by ancient Greek warriors, the suicide missions of contemporary Muslims—all indicate that the right to life does not have an immutable value for all societies. Bloch affirms that the intention of advocates of human rights has remained invariant, for all have sought to defend human dignity, but the question of how human dignity should be realized has been subject to historical change.55 This position injects a certain historical relativism into our judgments about cases in which rights have been infringed. Actions that constitute a violation of human rights in one society will not have this significance in another. For example, the American and French revolutionaries conceived of the rights of man in the specific historical circumstance of a struggle against political tyranny.5'’ In turn, the “ Hillel Steiner, ‘Natural Right to the Means of Production’, Philosophical Quarterly, 27/106(19771,43. “ Natural Law and Human Dignity, 185. Harold Laski illustrates this point rather dramatically: ’. . . an anthropologist who studied the hahits say, of a society' in Western civilization, would frequently find that many of the “rights” we regard as “sacred” arc no more rational than the taboos regarded with religious veneration by a savage tribe at a fairly primitive stage of social development’. For Laski, rather than- a set of immutable principles, human rights must be adaptable enough to serve as ’a criterion of the actual practices of existing political countries’: ‘Towards a Universal Declaration of 1 iuman Rights’, in UNESCO (cd.), Hitman Rights: Commons amt Interpretalions (London, 1949), 84. ”’ Indeed, taking as his premiss the idea that the ‘natural’ foundation of rights lies in society, Jurgen Habermas analyses the differences between the American and French constructions of natural rights, and argues that the specificity of the French political

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constitutions they introduced gave rise to new struggles, new definitions of human rights. Bloch argues that the ‘spirit of 1789’ germinated ideas which ‘led beyond those of the whole former condition of the world’, to a new social interpretation of the human right to freedom as a basis for criticizing private property.” Thus in 1796 Gracchus Babcuf and the Conspiration des Egaux borrowed the French revolutionaries’ language of rights to call for the protection of man’s ‘natural’ right to a fair share of the fruits of social production.58 The French socialist Jean Jaures argues that the Declaration of the Rights of Man provided a basis for socialist campaigns to expand the content of legal rights. Socialists should not break with the human rights tradition, Jaures contends, but conquer it, as a precious historical inheritance with which to achieve socialist emancipation.59 If human rights are subject to historical change, then it would seem possible for socialist doctrines of human rights to emerge from the ‘bourgeois’ doctrines of the past. It is not the case, however, that whatever the members of some society think befitting to human dignity should automatically be protected and preserved in that society. We do not always know what a life fitting for human beings consists of. Although judgments about the maintenance and preservation of human dignity must be made against the background of the political and moral conceptions of those whose humanity is at issue, such conceptions arc not sufficient to determine what is a dignified life. A historicizcd conception of human rights is not the same as a relativist one. I think that this accords with our intuitions about the status of what we call ‘crimes against humanity’. For example, we speak of the Nazis’ murder of the Jews as perhaps the most wholesale violation of human rights known to us, because genocide, the killing of a people on the basis of their ethnic identity is to deny their dignity as persons, creatures with goals and attachments tradition resulted in a declaration which tempered the American doctrine’s emphasis on self-interest with the concept of virtue. ‘Natural Law and Revolution’, in Theory and Practice, trans. John Vicrtel (London, 1974), 98-106. 57 On Kart Marx (New York, 1971), 47-53. “ Gracchus Babcuf, Defense of Gracchus Babcuf, ed. and trans. John Antony Scott (New York, 1967). 59 ‘From the Rights of Man to Socialism’, in Irving Howe (cd.). Essential Works oj Socialism (New York, 1970), 104, Galvano della Volpe also calls for a ‘socialist renewal’ of the ‘bourgeois juridical legacy’, which marries civil, political liberties from traditional liberal doctrines with the egalitarian, social liberties emphasized by communitarian and socialist political theories, in ‘More on Socialist Legality’, in Rmisseun and Marx, trans, and introd. John Fraser (London, 1978), 109-21.

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and a consequent right to life. This right was assumed to be an established pillar of Western European culture, which is one of the reasons why the Holocaust stands as such a horrific event in human history. On the other hand, the barbaric behaviour of the Vikings has less significance, not because it was less evil, but because the victims did not have human rights; they were human beings, of course, but they and their persecutors lacked the social practices upon which the possession and recognition of these rights depend (which may explain why we consider the atrocities committed by moderns such as the Nazis to be a different order from those committed by such ‘primitive’ people as the Vikings). As Bloch might have put it, human beings’ ‘carriage’ was less ‘upright’ at the time of the Vikings. Thus it is not merely that certain cultural traditions must be in place in order for human rights to be efficacious, but that the very genesis and coherence of these rights depends on the development of a cultural discourse that invests people with human dignity and therefore fundamental rights. The historical framework of human rights does not apply to moral condemnation in general. While we cannot condemn the actions of the Vikings in the language of rights, we can criticize them in other ways; we can lament their cruelty, or their primitive conception of how human beings ought to live. And the historical relativism of human rights has limitations. While it docs not make sense to use current conceptions of human rights to castigate the atrocities of the Vikings, it does make sense to consider contemporary practices in Iran, for example, as violating human rights. In Iran, modern channels of communication disperse information about alternative ways of life; domestic and international political organizations press for political change; and indeed, far from being unaware of the vocabulary of human rights, Islamic traditionalists define their beliefs in terms of the exclusion of‘western’ ways of life. The openness of our world means that contemporary conceptions of dignity—be they in capitalist America, social democratic Sweden, Communist Russia, or Islamic Iran—arc components (perhaps warring components) in a single unity, a unity in diversity. These different conceptions of how to live may even be said to be in open, conscious competition; for example, the extreme traditionalism of Ayatollah Khomcni articulates a reaction to the westernized Shah before him. The relativist considerations set out above need not undermine the realist presuppositions about human dignity which shape our present conceptions of how we ought to live. We tend to think that at any point

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in history there is a single answer to the question to what is the best way of life. History seems to be a succession of different conceptions of what counts as a life befitting a human being, each better than the last. It may be wrong, nevertheless, to assume that we arc always approaching a progressively better conception of human dignity; the reversal in human progress marked by the experience of fascism alone should call into question such teleological conceptions of history. While we can submit previous ages to rational criticism, it would be wrong to think as some theories of ‘natural’ rights do, that our developing conceptions of dignity will result in a uniquely correct solution which exists beyond time. Despite the fact that the search for ‘the dignified life’ is conducted with realist assumptions, it is necessarily an open-ended, never-ending search. Once we are empowered with one way of life which befits our ‘upright carriage’ we are able to imagine ways in which we can improve it. The more we can realize our potential by means of the recognition of our human rights, the more our potential grows (as docs our catalogue of unrealized human rights). The progress achieved by human rights is constandy pointing to new ways of progressing. To situate human rights in society, then, docs not involve reducing diem to whatever rights a society happens to recognize and protect.1'" Indeed, the absence of official recognition of what we consider essential to human dignity contributes to the formation of human rights. Human rights arc constructed in a process of insurgencc, so that we come to understand them in the changing social context of new political projects. Human rights often emerge from the margins of society, as the product of persecution and the protest it generates. We create a human right to freedom in the face of a system of slavery; a right to vote when women or the propertylcss arc denied political power; a right to freedom of expression when dissent is repressed. Human rights respond to the idea that a definition of reality cannot be exhausted by reference to the present. They are rights that are constructed in a process of striving towards the ‘what has not yet become’, which has, in some sense, a truth surpassing the truth that exists.’’1 Thus Hegel’s claim that the actual is rational is given a radical While he portrays human rights as an ‘irreversible acquisition of political thought’, Lefort, however, seems to take the view that this extreme relativist position would be the only alternative to the traditional (and for him, proper) conception of natural rights as originating prior to society: ‘Politics and 1 luman Rights’, 253, 258. Bloch, Natural Law ami Human Dignity, 172.

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interpretation: rather than established practices having some automatic moral rightness, the morally right, whether practised or not, is deemed a part of reality. We have thus shown that human rights arc historical, social products, not natural rights, unless we mean by ‘natural’ that they protect human dignity, but since human dignity is itself specified by historical change, there is no way of stating a right to human dignity which is not so vague as to be vacuous. Three other considerations support this conclusion: first, the social constitution of the individual who acquires the status of a bearer of rights; second, the communal context of moral reasoning, without which wc would be unable to recognize the compulsion of rights; and third, the importance of the concept of citizenship for our understanding of human rights. First, the idea that human rights arc social products is buttressed by considerations about the sociality of the creature who possesses rights. Charles Taylor points out that to assert a right is to acknowledge membership in a collectivity, not in the modest sense that individuals can claim rights only in society, but rather, that man is constituted as a bearer of rights by his participation in a human community. The idea that the bearer of rights himself possesses a social nature thus sheds light on the question of what it is to be a human subject. It suggests that society engenders, not only the capacity of man to have rights, but his capacity to be a man. The communitarian and Marxist traditions take this view, arguing that society makes possible the emergence of a creature who is capable of reason, action, or love, and it is only after this social process that wc can refer to an ‘individual’ who is capable of possessing the human rights which accord him dignity. As Taylor says ‘[T]hcrc is an absurdity in placing this subject in a state of nature where he could never attain this identity and hence never create by contract a society which respects it’."2 On this view, society' humanizes man by giving him a moral existence, so that he becomes, as Rousseau puts it, ‘instead of a stupid and unimaginative animal, an intelligent being and a man’.'’3 Second, society also makes it possible for individuals to recognize the moral compulsion of rights. Why should one care about people’s 62 ‘Atomism’, in Alkis Kontos (cd.), Essays in Honour of C. B. Macpherson: Powers, Possessions and Freedoms (Toronto, 1979), 60. Social Contract, in Social Contract and Discourses, trans, and introd. G. D. H. Cole (London, 1973), 178; Franz Neumann, Democratic and Authoritarian Slate (New York, >94), 73-

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human rights? There must be some moral basis for people to understand the ‘self-contradiction’ involved in flouting the rights of others while valuing what these rights protect in one’s own ease/’4 The moral basis is society. This is not to retrieve the practical consideration that only in a social context does the infringement of rights arise. Rather, we are concerned with a conceptual issue about how our awareness of membership in a social group makes it possible for us to identify with the welfare of others, to empathize with their suffering and happiness. It is in society that we come to understand that we arc all, as human subjects, members of a collectivity, each deserving equal concern and respect. Society thus makes it possible for individuals not only to formulate an understanding of themselves as beings with claims to human rights, but to be capable of respecting these rights. The political underpinnings of human rights offer a third way in which man emerges as a bearer of rights in society. Human rights seek to prevent affronts to the dignity of a specific kind of person; one who is an equal participant in political life. This was implied in our original definition of human rights as moral rights with political aspirations. If we are to use human rights to assess a political community, the members of that community must be capable of acquiring the dignity of citizenship. The bearers of human rights must consider themselves members of a polity, be it a village, nation, or international order, to which they can contribute and from which they can benefit.1’5 In other words, our possession of human rights depends on our capacity to be political agents which, in turn, depends on our capacity to have public tics with one another, as peers, fellows, comrades, or brethren.1’'’ The idea of citizenship as a political relationship of mutual obligation between individuals and collectivities is thus both the precondition and object of human rights. Human rights arc not only conditioned by history; they are a historical achievement, made possible by political conquest. To sum up. Human rights are not natural, pre-social rights because the human dignity they seek to protect develops in society and is thus susceptible to historical change. We discovered three additional reasons why the idea of human rights as prc-social entities must be w Gewirth, Human Rights, 45-51. 65 Hence we say that the rights of starving Ethopians arc infringed because we consider them the unjustly treated, but in principle equal, members of a global political community which has failed to fulfil its obligations to them. 66 Gewirth, Human Rights, 51-5; Joel Feinberg, Social Philosophy (Engelwood Clift's, NJ, ’973), 92-4‘

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rejected. First, the bearer of human rights is himself a social product, constituted by communal relationships. Second, the moral force of human rights, as opposed to their mere legislative efficacy, depends on the moral awareness that comes from living in society. Third, human rights depend on certain political considerations about citizenship, on the reciprocal relation between individual and collective which comes from man’s capacity to be a member of a political community. Human rights therefore cannot be reduced to instruments for asserting individuality in the face of the incursion of social life, since social life constitutes the ground for the emergence of a person who can claim respect for his autonomy by means of rights. If the idea that human rights existed prior to society and transcend historical change is false, why do we insist on thinking of them as ‘natural rights? Dubbing human rights ‘natural’ is a strategy. We con­ sider the realization of all our human rights to be the mark of a yct-tobc, just society, but in a hermeneutical twist, we justify them with the myth that they arc antecedent to any social form of life. How else could it look to us, if we hold dear rights which our society docs not recognize? Human rights figure as an instrument for the social activities of critical analysis and moral debate. But when our society does not honour these rights, we postulate them as the attributes of a fictional, pre-political past despite the reality that political society is the condition, not only for the realization of these rights, but for their very conception. This point is illustrated by Rousseau’s strategic use of the concept of ‘natural’. Rousseau was highly critical of the mystique surrounding the concept of nature, pointing out that politicians and philosophers attributed to man ‘a natural propensity to servitude because the slaves within their observation arc seen to bear the yoke with patience’, or used the idea of natural rights to convert ‘clever usurpation into inalterable right’.'17 None the less, he exploited the idea that civilized man had betrayed the precepts of the peaceful, independent, and abundant existence he once had in a state of nature in order to articulate his hope that man and society could become other than how he found them. And followers of Rousseau took up his idea that the earth originally' belonged to all in common to demonstrate that a primitive form of communism was the only ‘natural’ society organized for the common good.''" But, as Rousseau recognized, the ills of civil 67 Discourse on the Origin ofInequalityt in Social Contract and Discourses, 92, 89. '* 1 ierbert Marcuse, ‘Thoughts on the Defense of Gracchus Babeuf’, in Babeuf, Defense of Gracchus Babeuf too.

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society are to be cured, not by returning to this fictional state of nature, which is, after all, a pre-human state, but by social change. Similarly, we may conclude that the rhetoric of nature, valuable though it is, cannot alter the fact that our human rights arc of social origin.

What Human Rights do we have? Understanding human rights as the historical product of man’s social existence affects how wc understand the content of these rights. We saw how scepticism about the existence of human rights often results from the fact that there are so many competing views about what it is that human rights protect.'’'’ For socialists it is because human rights arc taken to centre on a right to private property that they seem inappropriate as socialist ideals. But if human rights develop in response to the development of our understanding of human dignity, a specifically socialist set of human rights is possible. At the same time, however, it wrnuld be out of keeping with this historical emphasis to set out in any detail the content of future socialist human rights. As Rosa Luxemburg averred: ‘Far from being a sum of ready-made prescriptions which only have to be applied, the practical realization of socialism as an economic, social and juridical system is something which lies completely hidden in the mists of the future.’7" None the less, the fact that human rights arc shaped by social forces docs have implications for the content of our human rights under socialism. The kinds of human rights valued by socialists reflect a socialist conception of human dignity. In this conception, human dignity requires a minimum of material well-being: an individual who lives a degraded physical existence, who has no access to the means of life let alone those cultural resources that enrich it, cannot be said to live a life of dignity.7' Not that socialists consider economic resources the only components of human dignity; they also argue that the individual has dignity only when he is self-determining, when he has realized his potential as a creative and social being, thereby achieving, as Marx puts it, ‘all-round development’. The eradication of capitalism would thus be the premiss for any socialist conception of human rights, since from a socialist perspective the individual who depends on the democratic Steiner makes this point in ‘Natural Right to the Means of Production’, 41. 711 Rosa I .uxemhurg, Russian Rn'ululimi in Russian RiToluliml and /.aiimsm or Marxism?, introd. 1). B. Wolfe (Ann Arhor, 1961), 62. 71 D. D. Raphael, ‘I luman Rights, Old and New’, in id., (cd.), Polilicat Theory amt ihe Rights ofMan (London, 1967), 62-3.

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will of the community rather than blind economic forces is not a party to the humiliating relationships that arc an affront to his dignity.72 Marx objected to capitalism not just because of the economic inequality it created but also because the capital-labour relationship subjects some individuals to the will of others. We are in a position to achieve a socialist level of dignity, however, only if we arc nurtured and educated. Paradoxically, we must demand of our society that it intervene in our lives in order for us to acquire freedom, to recognize rights which in some sense, as Rousseau controversially put it, ‘force us to be free’. The idea that freedom involves the opportunity to develop one’s capacities would thus be essential to a socialist understanding of the human right to a dignified existence.” An extensive set of human rights would be needed to protect this conception of dignity, including, not only civil liberties such as the right of assembly and freedom of speech, but also welfare goods such as work, education, and adequate income. In fact, with the birth of the Welfare State after the Second World War, western societies moved towards this expanded conception of human rights. T. 11. Marshall argues that the notion of citizenship has been progressively enriched, so that while in the nineteenth century political rights to participation in government were added to the classical liberal doctrines of civil rights, the twentieth century witnessed the conquest of social rights that called for the ‘reduction of risk and security’, and ‘an equalisation between the more and less fortunate at all levels’.74 As already noted, this shift in our understanding of the scope of the rights of man was reflected in the 1948 United Nations Charter, which expounded human rights to economic and social welfare as essential to human dignity.” Social welfare rights, however, arc logically different from civil and political rights. To use the distinction set out at the beginning of this 71 This is the view of the Russian ‘rule of law socialist’, Sergius I lessen; see Andrzej Walicki, Legal Philosophies of Russian Liberalism (Oxford, 1987), 436. 77 See Walicki’s discussion of I lesson’s doctrine of positive freedom, in ibid. 426; I lessen, ‘Rights of Man in Liberalism, Socialism and Communism’, in UNESCO (ed.) Human Rights, 128-42. Here Hessen seems to harbour the naive hope that Stalin’s proclamation of human rights in the 1937 Soviet Constitution could be taken at face value. Walicki explains I lesson’s position in Legal Philosophies, 447-50. 77 Sociology at the Crossroads (London, 1963), 165. 77 Some have argued that these rights should be considered a species of property rights. See Charles Reich, ‘New Property’, Yale Lam Journal, 73 (1964); C. 11. Macpherson, ‘I Ionian Rights as Property Rights’, in Rise ami Fall ofEconomicJustice amt Other Essays (Oxford, 1985).

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discussion, the latter arc negative rights, rights against the state or to a ‘preventive say’ in state policy, whereas rights to economic or social goods arc positive rights, claims to benefits that the state should provide.7'1 Some have cited this distinction to prevent incorporating positive rights into the conception of human rights. Maurice Cranston argues that economic and social rights depend on the resources of society and arc therefore not of universal or paramount importance. Cranston warns that widening the conception of human rights in this way may push 'all talk of human rights out of the clear realm of the morally compelling into the twilight of utopian aspirations’.77 But a minimal conception of human rights does not sit well with any understanding of human rights as historically conditioned. If human rights arc shaped by social factors, there can be no ultimate, timeless ‘core’ of negative human rights, to which positive rights stand as dispensable extras. Furthermore, we saw that human rights do not merely change with historical developments, they progress and expand. As societies discover new technologies and new supplies of resources, they become better able to support the demands for new rights. Historical progress means not only that we arc better able to imagine new rights, such as a right to health, but that we can actually resource the protection of these rights. The two developments condition each other. Furthermore, positive rights to welfare follow quite logically from an understanding of human rights as the products of social existence. If we accept that human rights emerge in society, and not in a state of nature, as claimed by liberal rights theorists such as Locke and Nozick,7" then the idea of the human personality thriving in ‘negative’ conditions, without interference, must be rejected. Once we abandon ‘atomistic’ conceptions of the person, we arc forced to include in the catalogue rights which require that the community actively participates in the development of the person, by providing, for example, education or health care. In Andrzej Walicki’s words, the socialist idea of fraternity replaces:

the mechanistic, Newtonian interpretation of the unity of society as primarily a market, bound by tics of competition ... (i.e. by tics negative in their essence), C. B. Macpherson, ‘Problems of I Ionian Rights in the I.ate '1 wentieth Century’, in Economic Justice, 25. 77 ‘Human Rights, Real and Supposed’, in Raphael (ed.), Political Theory, 50. 7" While critical of the particular rights espoused by Locke and Nozick, Lefort and Steiner both aspire to a concept of human rights which has the natural premisses ol traditional liberal doctrines. See Lefort, ‘Politics and Human Rights’, 256-8; Steiner, ‘Natural Right to the Means of Production’, 41.

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with an ideal of organic social unit}', based upon positive social tics of mutual aid and cooperation, thus providing theoretical justification for welfare policies which supported compulsory education, full employment and different kinds of social insurance,n

Conclusion

The solidarity of socialism . . . signifies that the ‘human’ in ‘human rights’ no longer represents the egoistic individual, but the socialistic individual who, according to Marx’s prophecy, has transformed his forces propres into a social and political force. Ernst Bloch”" Wc have seen that a socialist framework requires that we understand both the status and content of human rights differently from the traditional, ‘natural’ conception. In response to the criticism made by positivists and Marxists that rights are a nonsensical idea because they cannot pre-date society, I have argued that human rights arc a social product, requiring society not only for their practical utility but for their very constitution and development. Human rights arc therefore not natural rights; they seek to protect human dignity, a concept which, while seemingly constant and eternal (thus ‘natural’), changes in its meaning from one society to the next. Because human rights arc historically conditioned, they arc capable of expansion and enrichment as human beings in societies imagine new ways of living and acquire the resources to translate these imaginings into practical accomplish­ ments. As a historical achievement, human rights should be rehabilitated and appropriated by socialists, not as legitimating rhetoric, but as a set of political guarantees, of which positive rights to welfare are but the latest example of the potentially ever richer definition of human dignity. Human rights have limitations. As moral rights whose existence does not depend on a society’s legal institutions, there is a sense in which human rights of all kinds figure only as ‘utopian aspirations’, dependent on a society’s political commitments, legal institutions, and economic and social resources for their realization. Important though it is, human dignity is not the only value a society must consider. Like other societies, socialism would have to weigh up the claims of human rights with such claims as those of efficiency, democratic principle, or the general welfare. Furthermore, conflicts between the rights /.984). 97-io>44 Franz Neumann, Democratic andA uthoritarian State (New York, 1964), 174-5. The fragility of the individual’s freedom in liberal societies was underlined in October 1970, when in response to the terrorist activities of the Front de Liberation du Quebec, and for the first time during peace, the Canadian government invoked the War Measures Act, with the result that many fundamental rights and liberties were overridden. 45 ‘Rights as Trumps’, in Waldron (cd.), Theories of Rights, 153.

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seek to trump other considerations and do not always succeed in doing so. Neumann also holds that:

Legally, civil liberties establish a presumption in favour of the rights of the individual and against the coercive power of the state. They arc no more than presumptions because there is not, and obviously, cannot be, a political system which recognises the individual’s sphere of freedom absolutely and uncon­ ditionally. Thus the state may intervene with the individual’s liberty—but first it must prove that it may do so.4'1 The idea of legal rights as trumps against public power requires that interference with civil liberties must be justified. In an ideal socialism, the legal rights of self-interested individuals would prevent collective goals from being the sufficient justification for denying or constraining the realization of individual concerns.47 This may not satisfy those who understand rights to be literally ‘trumps’ which the individual can always play to protect his liberty from communal interferences. But the compromise I offer here is strikingly more libertarian than the concep­ tion of rights as instruments of social regulation found in Campbell’s theory. For Campbell, rights function only to promote societal aims— precisely what Dworkin points out are the greatest threat to rights. To conceive of rights as simply the means of facilitating the realization of collective goals is no solution to the conflict between individual and community. Campbell’s strategy abandons the role of rights in protecting individual interests against the community by simply ignoring the possibility that the two can diverge. There thus seems little point in using the term ‘rights’ at all; rather, what is intended is a legal instru­ ment for socialization.

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Conclusion The foregoing has rejected the argument, common to a strain both in the liberal tradition and on the Left, that legal rights arise where we find flawed human beings in straitened circumstances. The concept of the circumstances of justice poses a false opposition between a defective, egoistic man and an ideal, altruistic one. Tom Campbell’s theory of rights appropriate for obliging altruists in a society without conflict reproduces the misconceptions of this polarity. Even if we accept the possibility of a wholly altruistic society, disputes would arise 46 Democratic arui Authoritarian Stale, 163. 47 This is how Dworkin conceives rights in Taking Rights Seriously (Cambridge, Mass., 1978), xi.

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over different interpretations of what altruism requires. To call for the elimination of difference is to eradicate the philosophical foundation for democratic politics—that decisions in the public space require the articulation of diverse views. Law would be vital in the democratic socialist republic as an arena for the expression and resolution of individual differences. I have argued that, in any case, a flourishing altruistic society requires disputes in order to arbitrate not only selfless conceptions of the good but the self-interests which are the prerequisite of selflessness. Moreover, self-interest should be regarded as not only the pre-condition for altruism, but a positive good in itself. Self-interest, understood in Rousseau’s sense of ‘amour de soi’, as opposed to the self-absorption of ‘amour propre’, would be an intrinsically valuable part of man’s makeup under socialism just as much as sociability and an interest in his fellows. It is dangerous to assume that individuals would lack self-oriented concerns that could conflict with those of others. The struggle for emancipation in the relations among people in work and politics must accept, indeed laud, the opposition between private wills and between private and public, and their mediation by legal rights, as a fundamental principle of democratic discourse. Rights arc not a panacea for all social ills. No theory of rights can provide automatic answers to the tension between community and individual; to conclude that rights arc important for socialism does not commit us to the view that rights are the only relevant features of a socialist political morality. Rights should not be allowed to reduce socialism to a litigious creed of claim-asserting and rule-following. But if a socialist society seeks to grant the individual a sphere of freedom to develop his capacities and further his goals, alone or in concert with others, then that society will need to provide its citizens with legal rights.

6 Self-Government and the Obligation to Obey Socialist Law Would citizens have a moral obligation to obey the law in a socialist society? This chapter raises the age-old problem of obligation to the state, but in a radical framework, on the assumption that all citizens fully participate in the making of law, and all citizens enjoy maximum economic and social equality. If the citizen has a moral obligation to obey the law under a model of democratic socialism,' radical theory will succeed where liberal theory fails. Many different kinds of obligations can be incurred to obey the law. My focus is on what I shall call an ‘intrinsic’ obligation to obey the law. An intrinsic obligation to obey the law is an obligation to obey because it is the law. This obligation holds regardless of other extrinsic obligations I may have to obey the law which result from, say, a prior moral commitment, a promise to a friend to do what the law requires, or a legal obligation in virtue of a contractual relationship with another party. Thus, in the absence of an intrinsic obligation to obey the law because it is the law, we could still find ourselves feeling extrinsical!)’ obligated to obey the law, not because it is the law, but because its prescriptions are in accordance with our moral obligations (e.g. not to kill). If there is any such intrinsic obligation, it would resemble a child’s obligation to obey his parents, which holds in virtue oi the fact that they are his parents, and docs not derive from the nature of their particular requests and the situations to which it applies. It would be a mistake, however, to conclude from this that an intrinsic obligation is somehow undcrivcd. Rather, this obligation derives front the nature of the law itself (hence the title of an ‘intrinsic’ obligation). It is thought to hold because the law meets certain standards; i.e. that it is enacted by a government of the right sort, one that has legitimacy as the 1 Not to be confused with what is known in the USSR as ‘socialist democracy*.

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authoritative basis for law-making. For liberal political theory, the legitimacy of government is typically a function of the participation of citizens in the political process. This participation is defined minimally, however, as merely a matter of citizens consenting to government. Carole Pateman’s writings on participatory democracy provide an alternative to the liberal consent model. Arguments for participatory democracy call into question the legitimacy of the liberal democratic state and thereby the obligation to obey its laws, claiming that only a political system in which citizens participate in the formulation of political decisions has the legitimacy required for an intrinsic obligation of obedience.2 The radical challenge, none the less, is made on the basis of the familiar liberal premiss that citizens’ political involvement is the foundation of the legitimacy of the state and thereby the basis of an obligation of obedience. My argument is that no system is legitimate enough in that sense to generate an intrinsic obligation to obey the law? It is not my object to assess the validity of the general claims of the participatory model, whether citizens’ lives will be enriched, or decisions made more just; rather, I will focus on the issue of whether the proposed expansion of citizens’ involvement in political life provides a special case for an obligation to obey the law.4 1 will examine how the claims of a socialist community affect the problem of obligation first, by analysing the shortcomings of consent theories of obligation developed by liberal writers; second, by setting out the argument of the socialist alternative, as an heir to the political tradition of classical Greece, and as it is developed in the thought of Rousseau, Pateman, and Marxist writers; and third, by examining the difficulties that undermine the theory of obligation in a socialist participatory democracy.

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1 Participation and Democratic Theory (Cambridge, 1970); (cad.), Problem of Political Obligation (Chichester, 1979); (cad.), ‘Justifying Political Obligation*, in A. Kontos (cd.), Essays in Honour of C. B. Macpherson: Poolers, Possessions and Freedom. 3 Literature on the subject of obligation contrasts two versions of how one might understand an intrinsic obligation: first, as an absolute obligation, which defeats any other, conflicting obligations; and second, as a prima-facic obligation, which, while always in force, can be defeated by other, stronger obligations under certain circumstances. As I lack confidence that this contrast can be properly made, I shall shelve it—for the moment. 4 Perhaps the most eloquent case for a fuller political life is that made by Hannah Arendt in Human Condition (Chicago, 1958), where she argues that action in the public space is man’s highest activity, and warns that one-man rule ‘is always tantamount to abolition of the public realm itself’, 220-1. Sec also C. B. Macpherson, Life and Tinies of Liberal Democracy (Oxford, 1977).

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Obligation derived from Consent

The argument for deriving political obligation from participation in law-making can be found in consent theories of obligation from Hobbes onwards. Social contract theories of the seventeenth and eighteenth centuries attempted to found obligation on consent to the principle of government, rather than consent to a particular government. For Hobbes, the nature of the particular government was not at issue: any political state was better than none, faced with the alternative, the brutal state of nature. Given the desirability of maintaining any political regime, citizens enter into contracts to alienate their powers to the state, thereby obligating themselves to obey state laws.5 Locke, however, claimed that consent was to be given more discriminatingly, to those governments which would promise to protect citizens’ lives, liberty, and property. If the state failed to meet these obligations, citizens would be justified in abdicating theirs, and could legitimately disobey state laws.'1 The project of circumscribing the basis for political authority has been taken up by modern liberal political theorists. John Plamcnatz, for example, conceives obligation as the result of the majority’s consent to a particular government, not government in principle, as Hobbes would have it, nor even a type of government such as the Lockcan one. Plamcnatz’s consent theory holds that in giving consent to a political authority, the citizen accepts an obligation to abide by the authority’s laws and decisions. In selecting our government we take responsibility, not for another’s actions, but for enabling others, as our representatives, to act in a certain way. We voluntarily decide to empower certain people by granting them political authority, and we arc answerable for this decision.’ This theory presents obvious difficulties. The act of solemn commitment to government required by the consent-giving contract is in most liberal democratic societies a rare event indeed. As often as not, many do not vote at all, and of those who do, particularly in ' Leviathan, ed. C. B. Macpherson (Harmondsworth, 1968). In ch. 18, Hobbes writes: ‘the state of man can never be without some incommodin’ or other . . . the greatest, that in any form of government can possibly happen to the people in general, is scarce sensible in respect of the miseries, and horrible calamines, that accompany a civil war, or that dissolute condition of mastcrless men, without subjection to laws, and a coercive power to tic their hands from rapine and revenge. . • ‘Second Treatise’, Two Treatises ofGovernment, ed. Peter larslett (Cambridge, 1967). ’ Consent, Freedom and Political Obligation (Oxiord, 1968), 16.

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multiparty states, many vote for unsuccessful candidates. Ronald Reagan, for example, who was thought to have been elected president by an overwhelming majority, was elected by a minority of the eligible voters. If consent is the prerequisite for obligation, Pateman argues, then either few citizens can be said to have obligations, or the relevance of consent seems suspect and one wonders why it was invoked in the first place.8 If obligations arise out of ‘voluntary commitments created by an expressed intention to be bound’, then the theory of consent is an inadequate basis for obligation.’ One solution is to interpret the political rights of citizenship, such as the right to vote, as a form of consent. Peter Singer states that: In voting, one’s voluntary behaviour leads others to the reasonable belief that one consents to the majority decision-procedure. After the event one cannot say that one never consented—or to be strictly accurate, even if one says that one never consented, one is still obliged as if one had consented."’ This view also appears in Plamenatz’s theory, in a postscript, where he redefines consent as something given in virtue of voting in general: if there is an established process of election, anyone who takes part in the process consents to the authority of whoever is elected to the office.11 This answer seems to give consent a meaning different from its usual sense so that obligation is derived not from consent but from something else, from the mere activity of giving or witholding it. But one could say, for example, that voting against the Conservative Government in Britain is precisely an act of not giving consent to it. The dogma that consent is implicit in voting serves to encourage abstention as a stronger form of political opposition than voting against a candidate. And, as Joseph Raz notes, one can be against democracy and still decide to vote in elections.12 Plamenatz also maintains that one has an obligation to obey the law in a democratic polity because representative governments are easily changed, ‘so that those who dislike their policies have better reason for hoping that they can cause them to be reversed’.No doubt the consideration that I may be able to change the law may render obedience less onerous; no law need be in force indefinitely. However, g Political Obligation, 82. ’ Joseph Raz, Authority of Law (Oxford, 1979), 239. See also Michael Walzer, Obligations: Essays on Disobedience, War and Citizenship (Cambridge, Mass,, J197°). 77?), Q8—’14; Pateman, Political Obligation, 88-9. 10 Democracy and Disobedience (Oxford, 1973), 52. 11 Consent, 170. 12 Authority ofLaw, 241. 12 Consent, 150.

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this argument buttresses a concept of obligation based on an expectation that consent will eventually be granted, not consent itself. It is a weak claim. One may have little reason to believe that the candidates one supports will ever attain power, and in any case it is still open for one to say that he has no intrinsic obligation to obey the law until a government which has his consent is elected. The consent model produces another argument to salvage its position, that is, that consent is given so long as one docs not emigrate. But to contend that ‘tacit’ consent has been given because one remains in the community, although one has opposed the election of the government, seems underhanded. First, it seems inappropriate to base the weighty matter of political obligation on what Michael Walzer calls the ‘non-act of not-lcaving’.H Moreover, there are obvious political, economic, and personal constraints on emigration. Political refugees are not welcome in many countries, if indeed anyone who leaves his homeland because he opposes the government there is entitled to that status. The potential ‘refugee’ may also believe that there are no other countries worthy of his consent. As Hume maintains: We may well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, die moment he leaves her.15 In addition, it is possible that the individual may consider his attachment to his community too profound to leave."' So paltry is the foundation of consent in social contract theory that obligation dwindles from a commitment arising out of a political choice to an inescapable consequence of one’s existence in a community. The liberal model offers another argument, which finds its most influential expression in John Rawls’s A Theory ofJustice', that citizens are obligated to obey the law because they derive benefits from the state. Rawls argues that obeying the law is simply a matter of doing one’s ‘fair share’ if one gains from the co-operative labour of others.1’ H. L. A. Hart also contends that once the individual opts into a social w Obligations, 18. 15 ‘Of the Original Contract’, Essays Moral, Political and Literary (Oxford, 1963), 462. 16 Of course, the view that man is intrinsically a member of a political community, first propounded by Plato and Aristotle, has been invoked to justify’ obligation, rather than repudiate it, particularly by advocates of democratic participation. 1 will return to this argument later in the chapter. I lere, however, this insight undermines the idea that obligation is the consequence of the option of emigration. 17 Theory ofJustice, 376.

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structure he has an obligation to obey its laws, which if broken, endangers the conditions of social existence and cooperation from which he profits."1 Although he rejected the idea of a ‘social compact’, Hume also claimed, of course, that citizens were obligated to obey the law ‘because society could not otherwise subsist’.'1' One could argue, however, that social benefits might also be generated by disobeying a law; there is no necessary connection between obedience and social benefits.2" In any case, like the citizen’s membership in a particular community, deriving benefits is not something over which the individual has much control. A genuine obligation, however, must be actively undertaken. Furthermore, the fact that I benefit from obedience does not appear to be grounds for an intrinsic obligation to obey. Rather, the law is an instrument, and I have reasons, not an intrinsic obligation, to make use of it. A stronger critique of the social contract would argue that even if obtained, the individual’s consent in the liberal democratic state is a sham, given the usual low level of political awareness and involvement. Because the weak, the poor, and the unorganized arc politically inarticulate, bereft of political opinion, and hence alienated from the public domain, they cannot be said to have given their consent, even if they helped vote in a government.2' Marxists distinguish between the individual's real interests and his apparent interests. Imbalances in economic and social power set limits, whether objective or subjective, not only to people’s political power, but to their political vision.22 On this critique, the liberal political order necessarily lacks the consent of many of its weakest members; for even if this consent were given, the ” Concept of Law (Oxford, 1972), 168); Neil MacCormick, 11. L. A. Hart (London, 1981), 170.

19 ‘Of the Original Contract’, 468. 20 Richard Wasserstrom, ‘Obligation to Obey the Law’, in R. S. Summers (ed.), Essays in Legal Philosophy (Oxford, 1968), 300-1. 21 Peter Bachrach, ‘Interest, Participation and Democratic Theory’, in J. R, Pennock and J. W. Chapman (eds.), NomosXVI: Participation in Politics (New York, 1975), 39-4522 This idea leads some social theorists to suggest there exists a ‘hidden dimension of power’. Sec P. Bachrach and M. Baratz, Power and Poverty: Theory and Practice (Oxford, 1970), and Steven Lukes, Power: A Radical View (London, 1974). For more explicitly Marxist discussions, sec. G. A. Cohen, ‘The Structure of Proletarian Unfreedom’, Philosophy and Public Affairs, 12/1 (Winter 1983), and Issac Balbus, ‘The Concept of Interest in Pluralist and Marxian Analysis’, Politics and Society (Summer 1971). In contrast to the idea of a freely choosing self which is the foundation for liberal consent theories, Michael Sandel e.g. advances a view of a socially constituted self in which ‘I am situated from the start, embedded in a history which locates me among others, and implicates my good in the good of the communities whose stories I share’: Sandel (ed. and introd.), Liberalism and its Critics (Oxford, 1984), 9, introd.

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real, if unexpressed interests of these members would still remain unrepresented. In Their Morals and Ours, Trotsky sneers at the vacuity of norms obligatory upon all in a society of class divisions, where the solidarity of class is more categoric than membership in the body politic.23 While the socialist may concede that the liberal state extends benefits, their value will be open to the question: benefits compared to what?23

The Participatory Alternative Plato’s dialogue, The Crito, offers a case for obligation based on the special relationship between citizen and community peculiar to the Greek polis. While Socrates is often cited to support liberal democratic theories of obligation, his position relics on a political structure that contrasts sharply with most modern states. Political decisions in the polis arc reached in a small, intimate forum where all citizens can actively participate, suggesting a model for the contemporary idea of participatory democracy. It is appropriate, then, to begin an analysis of the radical case for obligation with an examination of Socrates’s argument for political obligation in The Crito. Socrates is convicted of ‘corrupting the youth’ and is sentenced to death, having rejected an alternative sentence of banishment. His friend Crito urges him to escape, but without success. Socrates notes the important role the laws have played in his political and moral development. They nurtured and educated him. He was able to affect the development of the law, both in the polis and in his trial. Socrates tells his friend that the relationship of citizen to countiy is such that his country is ‘more honourable, venerable and sacred, more highly prized by Gods and men . . . than mother and father’. Law and polis ‘cannot long survive if judgments passed have no force and arc set aside by private persons’. He concludes that he ‘must do what one’s city and country enjoins, or persuade it in such manner as justice allows’.25 The position of Socrates in The Crito is given a theoretical elaboration in the political thought of Aristotle. For Aristotle, the polis is the highest association, that exists for the sake of the moral and u Their Morals and Ours (New York, 1969), 16-18. u Pateman, Political Obligation, 121-7. 25 Crito, trans. I lenry Car}’ (The Pleiad: Paris, 1926). It is here that the argument for obligation based on the opportunity to emigrate is first invoked. N. /\. Greenberg maintains that it is hard to believe, however, that Socrates would have stayed in a state that he knew would come to condemn him to death. See ‘Socrates’s Choice in The Crilo\ Harvard Studies in Classical Philology (Cambridge, Mass., 1965), 65-6.

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political development of its members. Man by nature is a member of a polis-, the thought of exiling oneself from one’s community, the option which justifies obedience to law for some liberal writers, is inconceivable: He who is without a polis, by reason of his own nature and not of some accident, is cither a poor sort of being, or a being higher than man; he is like the man of whom Homer wrote in denunciation: ‘clanlcss and lawless and hcarthless is he’.26

For Aristotle, the political association which best realizes its function is one in which all citizens share in political power, ruling and being ruled in turn. Aristotle’s idea that individual fulfilment is to be found in participation in a political community has enjoyed much currency on the Left. Many socialists have extracted from the polis model the notion that the individual’s will can be subsumed under that of the collective. While Trotsky rejected the idea that individuals are obligated to the capitalist state, he affirmed the proletarian’s duty to the Communist Party as the weapon of the revolutionary reconstruction of society: There can be no contradiction between personal morality and the interest of the Party, since the Party embodies in [the proletarian’s] consciousness the very highest tasks and aims of mankind.2’

To some extent this claim reapplies the criterion for obligation advanced by liberal theorists: the quality of a regime determines whether one has an obligation to obey its laws. Because the socialist regime best promotes the interests of its members, it is worthy of support and obedience. But revolutionary Marxists are not merely claiming that the Party is obeyed because socialism is the best provider of‘collective goods’.28 Nor does Socrates see the citizen’s obligation as the consequence of an instrumental or consequentialist calculation. Socialism, like the morality of the polis, represents a unity between collective and individual wherein the interests of each are inseparable. In the socialist argument this conception of obligation is derived from the nature of the emancipatory project, which resembles Socrates’ understanding of the classical Greek polis, as requiring total commitment •I ‘X

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26 Politics, trans. E. Barker (Oxford, 1948), s. 1253. 27 Their Morals and Ours, 33-4. u Nanncrl O. Henry, ‘Political Obligation and Collective Goods’, in J. R. Pennock and J. W. Chapman (cds.), Nomos XII: Political and Legal Obligation (New York, 1970), 289.

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to an enterprise which subsumes and supersedes all individual interests. Sartre provides an interesting analysis of the dynamics of the group whose solidarity is propelled by a commitment to a historical mission of liberation. He notes the tenuous nature of this commitment once the event or situation that spurred the initial revolutionary action has passed. The group threatens to disintegrate unless the common object, collective praxis, is rcactualized. Hence members of the group must obligate themselves to obey the collective will: an oath of ‘mediated reciprocity’ secures the future of the community through mutual abdication of individual liberty. Being in the group becomes an exigency wherein each relies on all the others. The pledge, originally made to combat the group’s fears of disintegration, installs another fear in its place, fear of the repercussions of failing to fulfil one’s obligation as a member of the group.2’ Hannah Arendt describes the dynamic of the group upon dissolution of its initial impetus in different, although similar, terms: What keeps people together after the fleeting moment of action has passed (what we today call ‘organization’) and what, at the same time, they keep through remaining together is power. And whoever, for whatever reasons, isolates himself and does not partake in such being together, forfeits power and becomes impotent, no matter how great his strength and how valid his reasons.’"

According to the collectivist ethos, the purpose of a radical demo­ cratic structure is not to formulate decisions based on an aggregate of freely committed, disparate individual goals, but to actualize the com­ munity’s general will. In Marxist theory, the fundamental unity between the interests of the individual proletarian and the proletariat as a class has, perhaps ironically, justified aberrations from the participatory model, in the form of democratic centralism. After all, if the interests of the individual and the group arc inseparable, it docs not much matter who articulates these interests. Lenin argued that the socialist revolution was to be led by a ‘vanguard’ of leaders. And he contended that upon the completion of the socialist project of transformation, a democratic state would not be necessary because the people, rid of the atomistic and conflictual impulses of capitalism, would automatically N Critique of Dialectical Reason, trans. Alan Sheridan-Smith and Jonathan Rec (London, 1976), 346-437. •w Hainan Condition, 201.

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conform to the rules of social life.31 On this view, participatory demo­ cracy, if relevant at all, is merely the vehicle for the inherently legitimate, indivisible class-consciousness of the working class, rather than the basis for the legitimacy of that class’s policies. None the less, some thinkers on the Left have taken issue with Lenin’s programme, arguing that the task of identifying the collective will is not always straightforward. What if I do not feel at one with the group? It may happen that some cannot grasp their so-called ‘real’ interests, unable to perceive how the collective will is intrinsically in harmony with their individual wills, or that they dispute tire leadership’s conception of what this will is. Factions, fragmentation, and conflict may arise in the collectivist unity. At the very least, the goals and policies of the community will not always be self-evident to all its members. Rousseau’s model of participatory democracy is thus recommended as the most reliable (and hence fair) political constitution for ascertaining in what collective will our individual wills would consist. As Rousseau admits, such a forum may only yield the will of all—rather than what is necessarily the interest of the community— but that risk would seem to be unavoidable; participatory democracy is thus conceived as the best political structure available for the community to approximate, if not discover, its general will. Thus in Rousseau’s theory, the Aristotelian ideal is protected by means of a democratic social contract wherein collective participation establishes obligation. ‘What more certain foundation can obligation among men have than the free agreement of he who obligates himself.’32 Civic virtue, Pateman explains, wherein each considers his interests only as a member of the political association, flourishes in a community where all participate fully in political life, creating and assuming obligations directly. Obedience to the general will is hence obligatory and uncontroversial, since it is no more than obedience to a self-prescribed law, which is the foundation for liberty. In Rousseau’s social contract:

the undertakings which bind us to the social body arc obligatory only because they are mutual; and their nature is such that in fulfilling them we cannot work for others without working for ourselves." 31 IVhat is Io be Doitel, Selected Works, i (2 vols, London, 1953), and Slate and Revolution, Selected Works, ii. 33 Quoted in Pateman, Political Obligation, 149, from the 6th ‘Lcttrc de la Montagne*, Gsinres Completes, iii. 806-7. 33 Social Contract, in Social Contract and Discourses, trans. G. D. M. Cole (London, 1973), 186.

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Contemporary proponents of the participatory model claim, then, that a state which takes into account the views of all is more likely to make just decisions, and therefore deserves our allegiance and has a valid claim to our obedience.’4 The Aristotelian polis and the Rousscauian social contract stand as models for a socialist politics whereby man emancipates himself through self-government. The participatory democrat would contribute this thesis to debates about socialist legality: if there is to be socialist law, it must be created in a decision-making process that involves all citizens.” And, Pateman holds, it is the fact that each citizen contributes to the making of law that renders intrinsic obligation possible in a socialist community.'6 Cornelius Castoradis’s vision of socialism is apropos here:

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The collectivity will give itself rules, knowing that it gives them to itself, that they arc or will always become inadequate, that it can change them. . ."

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For Walzcr, only a pluralist citizenship, which expands the sphere of political involvement, can generate real obligation and an authentic patriotism.'" If obligations require explicit commitment, to a known object by active subjects, then a process in which, as another advocate of participatory democracy, Peter Bachrach, describes it, ‘persons formulate, discuss and decide public issues that arc important to them and directly affect their lives’’'' will be the foundation for an intrinsic obligation to obey the law. Thus Pateman concludes that ‘it is only within a participatory or self-managing form of democracy that a justified political obligation can exist’.4" . A Critique of the Participatory Alternative

The participatory model claims to resolve the difficulties that impeded the liberal democratic theory of obligation. However, I will argue that despite its apparent virtues, this model docs not carry' an intrinsic obligation to obey the law. Three problems will be analysed: first, whether a dissenting minority has an intrinsic obligation to obey the ■“ 1 lenry, ‘Political Obligation and Collective Goods’, 289. 35 D. G. Galligan argues that widening citizen participation in the legal process would help prevent discretionary decisions Irom deteriorating into arbitrariness. See Galligan, Discretionary Powers: A Legal Simfy of Official Discretion (Oxford, 1986), 333-44. 34 Political Obligation, 174. 37 ‘Socialism and /Xutonomous Society’, trans. David J. Parent, Tetos, 43 (Spring, 1980), 105. Obligations, 226-7. 39 ‘Interest, Participation and Democratic Theory’, 41. 41 ‘Justifying Political Obligation’, 63.

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law; second, the role of extenuating circumstances in the application of this obligation; and third, the problem of the non-participants. The Case of the Dissenting Minority

Even where law is made in a democratic process involving all citizens, some laws may not have unanimous support. Unless we arc to argue that a dissenting minority is obligated on the basis of its mere participation, which would be no less than reintroducing a version of the consent argument that obligation results from voting, the dissenting minority cannot have an intrinsic obligation to obey the law, according to the conception of obligation as a self-assumed commit­ ment. The meetings of the Soviet Bolshevik Party’s Central Committee in 1917-18 provide an interesting historical case for considering the significance of dissent for obligation.41 In the wake of the Russian Revolution, members viewed their participation in this body as a matter of such moral urgency that the thought of withdrawing from it may have seemed as inconceivable as the idea of emigration for the citizen in the classical Greek polis. The events of this period in Soviet history can thus be taken to exemplify the concept of the Sartrcan oath as a voluntary commitment, before obligation to the Party came to justify unquestioning obedience, backed up by political terror. One of the first disputes within the Central Committee arose over the October 1917 decision to begin an armed insurrection while Russia was at war. Zinoviev and Kamenev, among others, pointing to technological backwardness and lack of resources, opposed the plan. Lenin responded with a polemic on ‘strike-breaking’, arguing that the dissenting minority had an obligation to comply with decisions made by the centre.42 In another controversy the following month, Zinoviev and Kamenev objected to the Central Committee decision not to share political power with representatives from the other Soviet parties. In a public statement they criticized attempts to ‘defend a purely Bolshevik government at whatever cost’, and, unable to implicate themselves in ‘this fatal policy’, they resigned their posts as members of the Central Committee while remaining in the ranks of the Party. Zinoviev and Kamenev argued that, rather than obligated to comply with the decision, they were obligated to disobey: ‘our step was dictated by a 41 See James Bunyan and II. II. Fisher (cds.), Bolshevik Revolution (Stanford, 1934), and Ann Bone (trans.), Bolsheviks and the October Revolution (London, 1974), for compilations of party documents from this period. 42 Cited in Bone (trans.), Bolsheviks^ 88-117.

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consciousness of our duty and responsibility to the socialist proletariat’. A group of People’s Commissars followed suit, resigning their posts in protest to a policy which, they predicted, would mean ‘the retention of a purely Bolshevik government by means of political terror’.4-’ The position of Zinoviev and Kamenev exemplify what might be called a challenge, not to the principle of obedience to the general will, but to the authenticity of the general will then in place.44 Either the general will did not depend on democratic principles after all, or disagreement in the process of forming this will could cast doubt on its generality. The Central Committee issued an ultimatum that the opposition submit to Committee decisions, and promote its policy in all public speeches, or withdraw from all public Party activity and resign all responsible posts.45 Some ‘deserters and strikebreakers’, as Lenin called them, held their ground. In a statement to the Central Committee Kamenev complained that the conditions offered by Lenin represented ‘an unprecedented demand to speak against our convictions’.46 What obligation does one have to a law, judgment, or policy that one believes to be unjust? Pateman contends that her position allows for dissenting minorities and exempts them from obligation. Indeed, she contends that ‘social contract’ is an unfit description of her participatory structure, since dissent and disobedience are ‘implied by the practice of self-assumed obligation’. Contracts refer to exchanges of obedience for protection, whereas the relationship among citizens which obtains in the democratic system she expounds is one of a voluntary agreement into which individuals enter in order to express and maintain their substantive freedom and equality. According to Pateman, requiring consent can only lead to the degeneration of the political association.47 But contracts do not always refer to exchanges of obedience for protection, as Rousseau’s social contract demonstrates. In his philosophy, there is no brutal state of nature which propels men to enter contracts with each other or with government; instead, obligation issues from a contract of equals who, imbued with a spirit of civic virtue, pledge to renounce their individual differences in order to create a moral and political order which claims general obedience. Pateman is trying to have her cake and eat it, if she wants to hold both that an obligation to obey the law is only possible in a society where all participate to the 43 Ibid. 141-2. 45 Cited in Bone (trans.), Bolslterils, 143. 47 Political Obligation, 169.

43 Walzcr, Obligations, 3-7. Cited tn ibid. 148.

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fullest extent in the creation of the law, and that such an obligation is purely voluntary.4" One wonders why the participatory model is relevant at all; for while the consent theorists tried to justify obligation with too slender a conception of the political, Pateman expands the political only to justify an obligation to obey the law which, it turns out, is not obligatory. So long as obligation is derived from democratic participation, some kind of social contract must be established in which a mutual agreement is made to regard collective decisions as binding. If obedience to law is simply a matter of individual conscience, then the notion of intrinsic obligation, and not just the social contract, should be abandoned. Of course, in asserting the absence of an intrinsic obligation to obey the law I am not suggesting that one who disobeys collective decisions for reasons of individual conscience should not suffer the consequences. Pateman, however, introduces a further epicycle into her theory, and argues that those who oppose the majority decision are not only exempted from the obligation of obedience but have a right to disobedience. Without engaging in a debate about whether rights to disobedience are justified, suffice it to say that a right to disobedience is logically unnecessary in the absence of an opposing obligation. Moreover, merely positing a right to disobedience does not solve the problem of obligation, since it is unclear how such a right meshes with the duty of obedience; if it simply defeats it, then the status of an intrinsic obligation is tenuous indeed.4'1 However, a radical democratic community which docs not claim that its citizens have an intrinsic obligation to obey the law is better able to foster a liberal and lenient attitude to disobedience, to concern itself with the justice of the law in question and the reasons and circumstances which led to violation, rather than reduce these moral questions simply to matters of legality or illegality. Moreover, put in perspective, dissent in the participatory polity would figure as little threat to the regime as a whole, given the widespread involvement and general commitment of citizens to the political process. Zinoviev and *• See Pateman’s critique of anarchism: ibid. 135-42. w Franz Neumann, Democratic and Authoritarian Stale (New York, 1964), 158-9, and Hugo Bedau, ‘On Civil Disobedience’, Journal ofPhilosophy, 58 (1961), 663, discuss the futility of finding a principle which would identify the sufficient and necessary conditions for disobedience; a related argument about why a right to disobedience is unworkable is developed in Neumann, Democratic and Authoritarian Stale, 149-59, and Raz, Authority ofLam, 262-75.

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Kamenev, for example, opposed the decisions of the Central Committee from a standpoint of solidarity with its wider aims. It may be argued that the socialist can appeal to a consideration quite separate from questions of participation to ground an intrinsic obligation. This consideration issues from the familiar idea that, whether or not they consent, citizens of a socialist society are members of a co-operative community which provides for the welfare of any individual. On this view, individual citizens must do their part to contribute to the collective well-being and thus have an intrinsic obligation to obey the law. This argument retrieves the liberal ‘fair play’ or ‘benefits’ idea which I conceded may give rise to an extrinsic obligation. But it cannot support an intrinsic obligation. An intrinsic obligation, it will be recalled, is an obligation to obey the law because it is the law. The lawfulness of a rule is significant, not because of some legalistic attitude to morality, but because of law’s source. In the participatory model, participation is advanced as both a means for, and a measure of, the justice and solidarity of law to which the individual has an intrinsic obligation. In other words, because all can participate in such decisions, a democratic socialist society is worthy of the name and thus intrinsically deserving of obedience. The fair play or solidarity argument for intrinsic obligation must therefore resort to an argument about participation in a democracy, and as such, it, too, cannot survive the problem of the dissenting minority. None the less, one who opposes a law may still be reluctant to disobey it because of his membership in the collectivist polity. Without finding himself intrinsically obligated to obey, he may perceive disobedience as harmful for the order of the community and consider this a reason for obedience, or indeed the basis for a particular, extrinsic obligation. Membership in a socialist community could then draw on liberal ‘fair play’ or ‘benefits’ arguments, to give rise to an obligation, though not an intrinsic one. For example, in the issue of the other parties’ involvement in the Bolshevik government, Zinoviev eventually decided to withdraw his statement and resignation, to prevent a split in the Party, especially in the light of the war situation.50 And in the controversial decision of the Central Committee to make peace with the Germans, while Bukharin and others made a statement to express their disagreement with what they perceived as the Party’s abandonment of the international proletariat, others of similar mind 5(1 Cited in Bone (trans.), Bols/ui-iri, 150.

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decided not to associate themselves with the statement, convinced of the need for solidarity during the crisis.51 Similarly, Socrates submitted to his sentence because he thought an escape might weaken the legal and political order of the polis. This is not to say that he therefore had an intrinsic obligation to obey the law; he could very well have decided that disobedience would not endanger the social order, or that endangering that social order was a good thing. To argue, as Socrates docs, that all acts of disobedience will have pernicious consequences for the community overlooks the fact that most violations of the law are undetected or minor, or that carefully considered, disobeying an unjust law can set a good example, by encouraging disobedience only when it is justified.52 Furthermore, morally justified obedience can benefit the community, as a form of social criticism which demonstrates the gap between justice and legality.5-' So while political membership may constitute an extrinsic basis for obligation, it cannot generate an obligation to obey the law because it is the law. The Role of Extenuating Circumstances

Even if a law is made with the unanimous support of a politically active citizenry, occasions for disobedience could arise. It may happen that an individual decides that in a certain instance he is compelled to disobey the law which he before supported, indeed advocated. There may be a tension between the aim of a law as a principle and its consequence when applied in a concrete situation, so that the values represented by the general rule may indeed be best served by disobeying the law in question. Alternatively, the aim of the law itself may conflict with another moral requirement. The tension between law as a principle and as an applied rule is a reflection of the more general problem of invoking moral absolutes which purport to transcend history. Marxists tend to be wary of the idea of eternally valid moral principles, arguing that the morality’ of an action is determined by particular, historically situated circumstances.54 While I have argued that morality is built into 51 Cited in Bone (trans.), Bolsheviks, 215-17. 52 Raz, Authority of Lam, 238. A. D. Woozlcy makes this point in his critique of Socrates’s case for obligation in Law and Obedience: The Arguments of Plato's Crito (London, 1979). Howard Zinn, Disobedience and Democracy (New York, 1968), Wasserstrom, ‘Obligation to Obey the Law’, 300-1. M David Bakhurst argues that this consideration can be the basis for a viable Marxist moral theory in ‘Marxism and Ethical Particularism: A Response to Steven Lukes’s .Marxism and Morality', Praxis International, (July 1985).

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the definition of law, this is not to say that the legal and the moral cannot diverge in particular situations, when the wrongful application of a just law leads to injustice. The case of Socrates illustrates this problem. He submitted to a sentence which, were he proved guilty, would have met standards of justice, but in this case the result was injustice, since he was wrongly convicted.55 It may be suggested that while this position defeats the idea of an intrinsic obligation to obey the law which is absolute and without exception, it allows for a prima-facie obligation of obedience. When one has a prima-facie obligation to obey the law one has an obligation to obey the law which is capable of being overridden by other significant factors. Thus obligated, unless one has a moral reason not to obey the law stronger than the reason to obey it, then one is obligated to obey the law. W. D. Ross’s account of the prima facie still prevails in moral philosophy:

I suggest ‘prima facie duty’ or ‘conditional duty’ as a brief way of referring to the characteristic ... which an act has, in virtue of being of a certain kind ... of being an act which would be a duty' proper if it were not at the same time of another kind which is morally significant."’ Jonathan Dancy has argued that it is trivial because inevitable that a morally significant factor would decide the issue if it were the only one that mattered. But the whole point of the prima-facie argument is to explain and resolve conflict between obligations where no factor is ‘the only one that matters’. Since it is never the case that there is only one such factor, the notion of the prima facie represents a futile attempt to insulate moral decision-making from ‘the interfering effects of different contexts’. It is not self-evident that a property which would decide the issue were it the only one that mattered will be the only one which I should care about at all (i.c. is prima-facie relevant) when it is not the only one.5’ I think the problem of extenuating circumstances is not resolved by a prima-facic obligation. The prima-facie position implies a ‘first glance obligation’ to obey the law which always holds. That is, one always has, " Walzcr discusses the idea of an obligation to disobey the law in Obligations 3-7, and Woozley analyses this idea in the context of The Crito in Lain and Obedience, 37-40. The Right and the Good (Oxford, 1930), 19. The idea of a prima-facie obligation is applied to obedience to law in M. B. E. Smith, ‘Is There a Prima Facie Obligation to Obey the Law?’, Yale LainJournal, 82 (1973), and Wasserstrom, 'Obligation to Obey the Law*. 57 ‘Ethical Particularism and Morally Relevant Properties',.I find, 92 (1983), 539-41.

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at first glance, an obligation to obey the law in virtue of law’s legality although it may be overruled by reasons for disobedience. The difficulty with this view emerges in cases where the law’s status as law may be cause for disobedience. There may be occasions when, rather than having an obligation to obey the law because it is the law which is outweighed by other considerations, it is by virtue of a rule being law that one has reason to disobey it. It is possible to imagine certain kinds of actions which a community may seek to promote that would be made the worse for being law: support for national service, or religious education, for example, may depend on them being optional rather than legally required. In such cases, someone who is in favour of the policy may decide to disobey the law which renders the policy binding because he finds the policy an unsuitable subject for legal enactment. One disobeys ‘not because what the law requires was objectionable, but because it was objectionable that the law should require that’.51* Not only do we find a policy made worse for being law, we find the institution of law made the worse for being implemented in these situations. A law’s status as law cannot give rise to an intrinsic obligation of obedience, be it absolute or prima-facie. The Problem of the Non-Partidpants Possibly the most serious objection to the idea of intrinsic obligation in a participatory democracy comes from the non-participants, or perhaps, on behalf of them. It has been assumed that the law, if not reflecting the views of all, is created in a political process which involves all members of the community. But suppose not all citizens voluntarily contribute to the making of political decisions. Although one may envision a future, ideal community in which political participation is much broader and more extensive, degrees of participation arc still likely; civic virtue will be more or less developed in each individual. Some may agree with Oscar Wilde’s criticism of socialism that it would ‘take too many evenings’.5'1 Civic virtue may flourish, but it is not inconceivable that there will be some who are content to leave political decision-making to their more activist fellows, some, if not most, of the time. Walzcr predicts that: ‘The apathetic, the occasional enthusiasts, the part-time workers; all of them will be ruled by full-timers, militants and professionals.’''" The participatory model must also take into account the limits imposed on republican virtue by M Woozley, Law and Obedience, 39-40. 59 Quoted in Obligations, 218.

«' Ibid. 237.

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the inevitable pluralism of commitments. However, non-participants are not necessarily without opinions. As active Leftists will confirm, no one is more opinionated than the ‘armchair Marxist’. It may happen that those who were absent from a political debate are in vehement disagreement with the outcome. Do they have an obligation to comply none the less? The activist may want to hold that, since there arc no obstacles to participation, those who do not arc remiss, and have an obligation to obey the law nevertheless. But those who do not participate in the face of opportunities to do so cannot be said to participate any more than the apathetic in the liberal consent model. After all, theoretically, political activity is open to all in a liberal democracy too. A participatory democracy will be the poorer for requiring of its citizens that they participate with the justification that political participation takes priority over everything else. Nor should the participatory democracy hold people to obligations made by others. If obligations are to be selfassumed, they cannot be based on the presence of a mere opportunity to participate. And, if those who do not participate do not have an intrinsic obligation to obey the law, then an intrinsic obligation doc? not exist. There seems little point in asserting an obligation to obey th< law which applies only to those who make legislation whether in : liberal or radical democracy.

Conclusion I have argued that there would be no intrinsic obligation to obey the law under socialism because the extent of an individual’s participation does not justify obedience any more than other criteria for the justice of the legal system. Of course, participation may render the law more just, or the legal system as a whole more precious. But these factors can be assessed separately when deciding whether to obey, without a general obligation of obedience. Some members of the Left may find this conclusion disappointing: the Marxist canon is revised to allow for socialist law, only to create a legal system to which one has no intrinsic obligation of obedience. Socialists arc wrong, however, to see obligation as an ideal which a utopian society' should be able to require. The concept of an intrinsic obligation to obey the law betrays a simplistic and potentially dangerous view of morality and politics. In these concluding remarks I will note some of the features of this view. First, an intrinsic obligation to obey the law can imply that the legal and the moral arc synonymous, not in the sense that morality is a

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condition for legal validity, but rather in the corrupted, authoritarian understanding in which law, whatever its content, is assigned an automatic moral legitimacy. Of course it is implicit in some arguments for participatory democracy that the laws of such a society will inevitably be just and good. Rousseau contends that ‘the general will is always upright and always tends to the public advantage’.'’1 But this claim has been made on behalf of liberal legal systems: Lon Fuller, for example, argues that a liberal legal order has an implicit morality, and that the obligation to obey the law is thus an obligation to do what morality requires.'’2 In his critique of natural law Hart contends that the sense that:

there is something outside of the official system, by reference to which in the last resort the individual must solve his problems of obedience, is surely more likely to be kept alive among those who are accustomed to thinking that rules of law may be iniquitous, than among those who think that nothing iniquitous can anywhere have the status of law."3 But one docs not have to deny that a rule meet certain moral requirements before it can be a law to take issue with the claim that what is illegal must be immoral/’3 One of the principal tenets of Soviet ‘socialist legality’ is that citizens have a moral responsibility to obey the socialist state, given the assumption that the law is always worthy of obedience. This argument was particularly powerful under Stalin, when all sources of social criticism were eliminated with the rationale that the Party can never be mistaken in its historical mission of emancipation. And the doctrine continues to have repressive con­ sequences, evident in the disappointing human rights records of Eastern Europe. It is perhaps ironic that the anti-authoritarian vision of politics which is participatory democracy might have authoritarian implications for the individual’s moral conscience/’5 The argument for obligation, by concentrating on the rightness of obedience to law rather 61 Social Contract, 184. 62 ‘Positivism and Fidelity to Law—A Reply to Professor Hart’, Harvard Law Review, 71 (1968), 644-8. Concept ofLaw, 206; Neil MacCormick, Legal Right and Social Democracy (Oxford, 1982), 54w Wasserstrom, ‘Obligation to Obey the Law*, 281. 65 As we have seen, this view also recurs in the writings of the Western Left; not only Pateman, but Tom Campbell, despite his positivist assumptions, claims that citizens would automatically obey the laws of his model socialist society. Interestingly, Alfred Meyer suggests in ‘Political Change through Civil Disobedience in the USSR and Eastern Europe’, in Pennock and Chapman (cds.), Nonios XVI, that the scope and efficacy of disobedience in Eastern Europe is greater than commonly supposed.

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than the question of the rightness of the law itself, will stunt the development of the individual’s political and moral wisdom which is central to the participatory vision.'’1’ Second, an intrinsic obligation to obey the law threatens to undermine the very foundation of the participatory political structure which is supposedly its source. The dilemma between conscience and social order no theory can solve/’7 But an instrinsic obligation to obey the law makes criticism and moral assessment of a legal system difficult, controversy and open political discussion constrained. Hannah Arendt points out that the public realm docs not simply unify individuals’ private wills:

as the common world, [it] gathers us together and yet prevents our falling over each other, so to speak. What makes mass society so difficult to bear is not the number of people involved, or at least not primarily, but the fact that the world between them has lost its power to gather them together, to relate and to separate thcm.“ There is an ironic sense in which the proposition that citizens have an intrinsic obligation to obey the law is weaker, rather than stronger, in the context of a participatory politics. Where political participation is a social norm and voting itself a duty, political participation is a less plausible ground for obligation, if obligations arc to be freely undertaken. This consideration also raises the possibility that political involvement is not, after all, always an inherently positive activity, that it perhaps does not have a necessary, universal, moral value which applies in all circumstances. There are situations in which not participating is a courageous political act, and the alternative, for example, voting in an Eastern European election, as one Pole dryly noted, is an act of supreme indifference/’'' Voting can be an expression of powerlessness, moral weakness, or a lack of civic courage. Where all are expected to participate, and where the entrenched powers of the political system render participation inefficacious, or indeed, farcical, “ Wasserstrom, ‘Obligation to Obe)' the Law’, 303-4; Smith, ‘Is there a Prima I'acie Obligation’, 105-6. Raz maintains that moral complacency is often the concomitant of respect for law in Authority ofLmft, 260-1. 67 Neumann, Democratic mid Aul/ioritariml Stale, 159. M Human Condition, 52-3. 69 Steven Lukes is the source for this anecdote. The Belgrade Praxis Group (Mihailo Markovic et al.) also observe that the monopolization of power by a single political party means that ‘elections no longer express the people’s will but the people’s lox alts ; voting is no longer a right but an obligation’: ‘Meaning of the Struggle for Civil and Human Rights’, Trios, 35 (Spring 1978), 182.

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not participating represents a strong political statement. Hence, in this case, not only is the concept of political participation unable to justify an intrinsic obligation to obey the law, the concept itself is inadequate. An intrinsic obligation to obey the law gives law an authority that it does not deserve, and the individual conscience a role of subservience to it. Indeed, authority has been analysed as precisely the quality of a person or institution which takes its commands to be ‘exclusionary’ reasons for action. Law’s claim to authority rests on its claim to provide a sufficient reason for doing a required action, one that dictates that reason for nonconformity be disregarded.™ The problem of the non­ participants is a profound reminder of the possibility that any political order, no matter how noble its intentions, can become alienated from its citizenry. Political actors need critics, and the political order must be responsive to the moral qualms and dilemmas revealed by criticism.” In order to avoid a socialism governed by Party officials, removed from the needs and interests of the community, a socialist legal theory must reject the notion of an intrinsic obligation to obey the law, while affirming the importance of democratic participation. Rosa Luxemburg warns: Without general elections, without freedom of press and assembly, without a free struggle of opinion, life dies out in every public institution, becomes a mere semblance of life, in which only the bureaucracy remains the active element. Public life gradually falls asleep, a few dozen party leaders of inexhaustible energy and boundless experience direct and rule ... an elite of the working class is invited from time to time to meetings, where they are to applaud die speeches of leaders, and approve proposed resolutions unanimously—at bottom, then, a clique affair—-a dictatorship, to be sure, not the dictatorship of the proletariat however, but only the dictatorship of a handful of politicians. . .” 70 Raz, Authority ofLaw, 3-33. 71 Walzcr, Obligations, 235-8. n Russian Revolution, 71-2.

7 Conclusion This book has argued that socialist political theory must not forsake law. It has shown that law is not an unavoidable evil, designed to secure order in societies flawed by egoism and inequality, but an enriching feature of any society, especially the ideal community to which socialism aspires. Even where there is shared ownership of social resources, pervasive equality, and a thriving democratic culture, there remains a place for law. I do not mean that law is simply a desirable extra in such a society, the moral ‘icing’ on the practical ‘cake’ of socialism. Law is not merely congenial to socialism. It is an essential pre-condition of its attainment. Whether or not a socialist society is stable and effective will depend on the stability and effectiveness of its legal institutions. Hence, although socialism is inspired by the prospect of an ideal society, the question of law under socialism must be raised not merely in Panglossian discussions of ideal worlds. If socialism needs law for its very operability, the legal theory it can endorse and the legal institutions it must establish arc questions bearing on the ‘nuts and bolts’ of socialism. Just as Alec Nove has recently outlined the economic structures he takes to be essential to any ‘feasible’ socialism, so I have argued that any workable socialism must commit itself to certain legal structures.1 And like Nove I have argued that some concepts and institutions characteristic of liberal theory, and ostensibly of liberal practices, would be essential constituents of any socialist society. Socialist theory must retrieve some of the legal ideals of liberal 1 Alec Nove, Economics ofFeasible Socialism (London, 1983), and Wlodzimierz Brus, ‘Socialism—Feasible and Viable?’, New Left Review, 153 (Scpt/Oct. 1985). Brus distinguishes between ‘feasible’, which he thinks means merely possible, and is thus applicable to contemporary existing socialist societies, and the more ambitious criterion of‘viable’, which requires that socialist institutions ‘work’, and yield ‘acceptable results’, 5*-9-

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philosophies: suitably understood, individual rights and the rule of law, for example, would be central features of a socialist system of law. In this conclusion I explore the significance of the thesis that an ideal and operable socialism needs law. What kind of socialism are we committed to, if we believe that a socialist society will have a legal order of the kind described, one that embodies the rule of law and defends individual rights? It is tempting to answer this question with a detailed picture of such a society and its legal institutions. I have noted, however, that the Marxist tradition is rightly wary of offering blueprints for a socialist society. In the first place, the nature of such a society would be determined by the circumstances in which it was built.2 Second, socialism, whatever else it is, means a society determined by the aspirations of its members, and not by the putatively objective prescriptions of its philosopher-kings.-' None the less to say nothing about the form of socialist society would be as unscientific and as politically dangerous as the most lyrical utopian predictions. I shall therefore attempt, not to sketch a picture of socialism in general, but to postulate the kind of socialism required to support the legal structures it needs. In this, I shall be concerned with the minimum constraints the legal order I envision places on the structure of socialist society. My method will be to summarize and review the arguments of previous chapters to tease out the prerequisites a socialist society must satisfy for such a socialist legal system.

We began by discussing the thesis that stands as the greatest obstacle to a socialist theory of law. This is the classical Marxist position that law is destined to ‘wither away’ once capitalist economic relations are destroyed and replaced by socialist forms of organization. This thesis was found to be premissed on three interpretations of the role law plays in capitalist society: first, that law is a vehicle for the egoistic relations of individual capitalists, second, that law is a form of 2 Sec the preface. •’ Charles Taylor emphasizes that the nature of a socialist society* must by definition be determined by its members in liege! (Cambridge, 1979), 558, although he criticizes Marxism for its refusal to reveal anything of what social and political relations under socialism would look like. My analysis of the concept of socialist law has sought to open up some of these questions about the needs and aims of a future socialism without lapsing into presumptuous utopian speculation. The tension between popular sovereignty and the philosopher’s pursuit of truth is explored by Michael Walzer in his ‘Philosophy and Democracy’, Political Theory, 9/3 (August 1981); he concludes that the philosopher has no special authority in a democracy.

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mystifying ideology, and third, that law is an instrument of class rule. On all three conceptions, law would be both practically unnecessary and theoretically inconceivable in a fully developed socialist society. I noted that, paradoxically, the conception that sees law in the worst possible light, as a weapon wielded by one class to dominate other classes, is the one that was used to justify legal institutions in the Soviet Union. And, careful analysis of the other two conceptions reveals that neither conclusively demonstrates the impossibility of law under socialism. Indeed, both can be shown to be compatible with the idea that legal institutions could play a positive, moral role in a socialist society. The idea that law mediates individual interests, inherent in the egoism view, or that law must serve some moral function in order to succeed as a source of legitimization, as E. P. Thompson construes the idea of law as ideology, suggests that law need not ‘wither away’ after all. Thus, against the withering away thesis, both the theory and practice of Marxist legal nihilism indicate that a fully developed socialist society could support and perhaps would even need legal institutions. This assault on the withering away thesis has important consequences for the Marxist theory of the state. The idea that law withers away is, of course, part of a wider rejection of the political. Classical Marxism holds that upon the full development of socialist economic and social relations, the state, and indeed politics in general, will wither away; law, as an expression of the will of the state, will die with it. To believe that law must have a place in a socialist society, then, is to reopen the question of the role of the state in such a society, and suggest at least a prima-facic case for the idea of a socialist state that enacts and upholds law. I shall assume (indeed, I have assumed) that there will be a political apparatus for public decision-making of some kind in a socialist society, first, because many of the reasons that tell against the withering away of law tell equally against the withering away of the state; and second, because the kinds of liberal legal institutions a socialist society must retrieve are difficult to imagine without a state. Here, therefore, 1 will consider the nature of a socialist state only in light of the requirements placed on it by the concept of socialist law. If law is not to wither away in a socialist society, it then becomes necessary to consider what makes a social institution a legal one. I have argued that the rule of law would be central to a socialist concept of law, both as a defining characteristic of valid legal institutions and as a framework for the procedural justice without which substantive justice

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cannot help but be impaired. The rule of law was found to consist in a set of procedural conditions to which law must conform in order for it to function as a set of social rules which can effectively guide people’s behaviour. Some of its principal features arc predictability, certainty, generality, and openness; law that fails to exhibit these features fails as law, that is, as a code of behaviour to which citizens can consciously and willingly conform and therefore take into account when planning their actions. In arguing that the rule of law should be an essential aspect of socialist legal theory, I have suggested it can forge a rapprochement between the natural law and legal positivist views, each of which affords valuable, though partial, insights. A valid socialist theory of the ‘sources of law’ thus gives the rule of law pride of place, as a moral criterion which finds law’s source in particular, historical conditions. Such a conception meets Marxist objections to the immutability of the morality with which natural lawyers define law, while avoiding the legal positivist argument that law can be defined, without moral evaluation, as whatever a society’s institutions dictate it to be. The procedural requirements of the rule of law are not merely technical, but moral; they constitute a ‘procedural morality’. A societal regulation that fails to meet the rule of law is thus not only technically deficient but unfair. Three examples from Soviet legal practices were taken to illustrate this argument: the show trials, the Comrades’ Courts, and the parasite laws. In each case the practice failed to live up to the morality of procedural regularity inherent in the rule of law, and was thus morally defective in a way that suggested that it was not valid as law. Threats to the rule of law arc not peculiar to ‘existing socialist societies’. Class divisions and economic inequality can undermine the guarantees of due process. Unequal access to legal representation, conservative biases in the judiciary, and a distorted agenda for law enforcement all accompany capitalist relations of production. Hence, contrary' to the views of Hayek and his critics, the rule of law may not simply be the handmaiden of the capitalist market. That is, a democratic and egalitarian socialist society would not only be compatible with the rule of law; it may well furnish the most agreeable context for a legal system so structured. What constraints does the rule of law place on the form that socialist society can take? A general but none the less very real threat to procedural regularity is posed by corruption. It is clear that, however

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rosy our vision of socialism, we cannot ignore the possible presence of people with reasons to undermine the impartiality of the law, be they self-seeking bureaucrats, political demagogues, or the representatives of flagging economic enterprises. It is therefore an obvious truth that a socialist society that values the rule of law must ensure that those who make and administer the law do not fall prey to the influence of such parties. However, the corruption of judges by those who seek to subvert the pursuit of justice for private ends is by no means the most serious threat to the rule of law under socialism. In the Bukharin show trial, we examined a case in which direct political interference in the judicial process in the name of the public interest had a devastating effect on procedural regularity. To safeguard against such political intrusions on the activities of the courts, it seems inevitable that our socialist society must establish an independent judiciary, that is, a judiciary separate from the legislative and executive arms of the state. The independence of the judiciary is not merely an institutional matter. It is essential to the rule of law that the judiciary is also intellectually independent. That is to say, it is crucial that whatever their institutional status, judges do not identify with the interests of the state or ‘the people’ to such an extent that they reduce the just outcome of a dispute to the one that best coincides with those interests. If the principle of judicial independence is to be respected, a socialist society cannot allow its concern for the common good to dictate the process of adjudication, whether the good is understood as democratic participation, communal solidarity, economic efficiency, or social welfare. This is no small problem. To achieve the socialization of the economy it would be necessary to devolve upon the state the responsibility for developing economic strategies which will further publicly defined, social objectives. Socialist economic planning thus carries with it the danger of a powerful coincidence of interests between the political and economic spheres which can put pressure on the judiciary to bend the letter of the law to suit the needs of public policy? It may be thought that one solution to this problem would be to disperse and democratize state power. Expanding citizen participation in public decision-making through a decentralized network of councils and committees could prevent a monolithic coalition of interests from ‘ In ‘Why Democracy?’, trans. G. Alkalay, Trios, 36 (Summer 1978), the Italian socialist Nobcrto Bobbio argues that if a collectivized economy means a statized economy, abuses of power may be easier in socialist societies than in capitalist societies.

i6o

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using an abstract conception of the common good to strait-jacket the operations of judicial officials.5 A thriving democratic politics would seem to present less opportunity for the state to abuse its power and manipulate the judiciary. Grass-roots democracy is only a partial solution, however. If judges were simply to follow the dictates of popular sovereignty, they would be conforming to the rule of law no more than if they decided cases according to a paternalistic or authoritarian conception of the common good. The rule of law requires that judges be motivated in their judgments by reasons derived from the law alone and not from any other source, be it the public interest or the will of the majority, except in so far as the law leaves it open to exercise their discretion in the light of such considera­ tions. A judiciary' is truly independent only if it is able to make judgments in this way. Is it possible to introduce some measure of democracy into the selection of judges without compromising their independence? My premiss is that a socialist legal system would further the socialist goal of extending democracy by ensuring that all may participate in the lawmaking process. Some may want to' extend this idea through popular election of judges. To ensure that the judiciary is socially representative, say, a socialist society' may decide to select judges in a way that allows for the contributions of people from different regional, social, or economic groups. I do not think that this would constitute an attack on the principle of judicial independence: after all, any legal system is a branch of a state, and at some level, judges would be selected and supported by the state, even in the most assiduously procedural of legal systems. What the idea of an independent judiciary does require, however, is that the state’s legislature and executive refrain from exercising influence on the judicial process itself. Democratic structures may choose judges, but they must not be permitted to exert pressure on judges once they are chosen. Again we see how procedural regularity does not eliminate democracy but safeguards it. The tension between popular sovereignty and juridical procedure has a long history, going back to the uneasy coexistence of the concepts of parliamentary supremacy and the rule of law in English constitu­ tionalism. But we have seen that the rule of law can actually confirm the power of the political sovereign in its very role of defining the limits of legislative power. Procedural arrangements like an independent ’ Brus, Economies and Politics of Socialism (London, 1973), 66, 97. Bobbio also recommends this solution in ‘Why Democracy?’.

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judiciary give content to the notion of the sovereignty of democratic government by stipulating how its will should be expressed. In contributing to the fixity of the law, an independent judiciary contributes to the authority of the lawmakers. Another issue that follows from a commitment to the rule of law is the role of lawyers. Would there be a legal profession under socialism? Here the requirements of the rule of law seem double-edged: procedural regularity requires, on the one hand, strict adherence to formal standards of adjudication, and, on the other, sufficient informality for the law to be open and knowable. The experience of the Comrades’ Courts in the Soviet Union, where informal, grass-roots justice wreaked havoc on juridical standards of due process, indicates that a legal profession, like codes of procedure, would be needed in a socialist legal system. On the other hand, some socialists claim that the rituals of formal justice in capitalist societies render the law impenetrable for the ordinary citizen; in the language of one critique, the law seems ‘an awesome and expensive machine invented and maintained by lawyers’.6 Accordingly, some socialists call for a system of law that dispenses popular, informal justice without the assistance of professionals. It is argued that such a system would have none of the problems of unequal access which even well-developed systems of legal aid are unable to surmount. But, in light of our findings about the value of procedural morality, such views seem to be at best naive. Law without lawyers would be a poor sort of law, in danger of losing the due process, regularity, and rulcdness essential to legal justice. For one thing, abolishing legal professionals would not necessarily result in equal access to the law. Quite the contrary, there would inevitably be great diversity in the resources and talents among the parties who seek remedy from the law, and a legal system where each fends for himself could aggravate the effects of these disparities. Without lawyers, those unfamiliar with tribunal procedures would come to the hearing inarticulate and flustered, while those putting the opposite case may have the confidence that comes with familiarity, or advice from others with experience and expertise.7 Even if there are no official legal representatives, it is conceivable that those parties with considerable contact with the law, such as large economic 6 LAG, Law Without Lawyers (London, June 1978), 36. 7 LAG notes that this disparity is a feature of the informal justice of administrative tribunals, where lay representation is often the norm. See LAG, Representation Before Tribunals (London, July 1980), 2.

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enterprises, would finance de facto legal experts, thus accruing a considerable advantage in contests against self-representing parties. Better, in that case, that all have access to the services of experts. Nevertheless, a socialist legal system could benefit from lay representation. There is certainly some truth in the idea that self-help can give the citizen a stake in the legal process, so that he may better value its strengths and criticize its shortcomings." A workable socialist society should combine, then, professional legal representation with more informal arrangements. In such a system, disputing parties might be encouraged to rely on self-representation, or representation by a friend or relative, in cases where the issues are not too complex and the stakes not too high.9 None the less, in many cases the procedural guarantee of professional representation is a logical response to egalitarian concerns about access to legal resources. Equality before the law is best served not by eliminating lawyers’ services but by ensuring that they are open and available to all. I conclude therefore that the rule of law would require that socialism support an independent judiciary and an apparatus for professional legal representation. Extending democratic participation to the judicial system is not inconsistent with these measures, indeed in some respects it is their natural complement. Popular sovereignty, however, is no substitute for procedural guarantees, and a fair socialist legal system must ensure that the pursuit of the common good through collective control of state institutions does not interfere with the requirements of justice. To turn to human rights. I have interpreted them in a way that eschews their traditional claim to being natural rights. In response to Marxist and utilitarian scepticism about the status of natural rights which are said to exist prior to society, indeed prior to man’s social condition itself, I have argued that human rights should instead be understood as human rights which do not pre-date, but originate in historical, communal practices. This is because as human rights they correspond to the nature of the human being, who is formed, ‘made human’, by social relations. Human rights are an achievement of civilization rather than metaphysical entities which transcend the norms of civilized life. ** LAG, Law Without Lawyers, 36. ’ Ibid. 38; LAG, Services: A New Stan (London, July 1980); Michael Zander, ‘Alternatives to Lawyers’, in Legal Services for the Community (London, 1978).

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Such a conception enables us to incorporate specifically socialist rights into the human rights tradition. If‘natural’ man is not an isolated monad, but a member of society, and his ‘natural’ rights the properties of social beings, then positive rights to society’s resources must be quintessentially human. So-called ‘welfare’, ‘economic’, or ‘social’ rights to food and shelter, education and work, can be posited alongside traditional rights such as the right to life and freedom of conscience. The method and ideals of socialist theory promise to clarify and fortify the conceptual basis of human rights. And so understood, human rights would be a source of strength for a socialist concept of law. In looking at legal rights, as opposed to moral or human rights, I have turned from our collectivist focus to make a case for retaining a strong sense of the individualism of rights. Here I have rejected the idea, developed by Tom Campbell, that legal rights under socialism would be needed only to set out the clear-cut duties of altruists. First, because altruists may disagree about the nature of their duties, rights would serve to mediate disagreements, not merely catalogue altruistic obligations. Second, altruism is parasitic on self-interest and differences between self-interests, both of which arc appropriate objects for regulation by rights. As we have seen, individual self-interest makes moral actions, such as altruistic ones, both technically and conceptually possible. Although rights would defend individuals’ self-interest, this self­ interest should not be considered akin to the bare-faced egoism which is the target of Marxist attacks on ‘bourgeois’ rights. Some self­ oriented interests have value in themselves: for example, the interest I may have in developing my skills as a political theorist, or cooking from a difficult recipe. The idea that the cultivation of such interests has moral worth issues from C. B. Macpherson’s concept of‘developmental’ liberalism, which, like Marx’s concept of a man as a creative, social being, portrays the individual agent as a developer of his capacities. The Marxist idea that conflict is peculiar to societies of bourgeois egoism or class divisions, like the traditional liberal idea that rights emerge only in the flawed conditions of the ‘circumstances of justice’, fails to sec the positive contribution that conflict can make to a society’s moral and political life. There is another, less incidental sense in which self-interest would shape the contours of socialist politics. That is, whether or not we approve of the kinds of self-interest an individual happens to have, the very relation between the individual and his interests has moral

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significance. Bernard Williams’s notion of integrity is relevant here. In his famous critique of utilitarianism, Williams underlines the importance of the agent acting from his convictions rather than from externally imposed standards of aggregate utility. On Williams’s argument, any moral theory that compels the individual agent to disregard his projects in order to produce the best societal result overall constitutes an attack on individual integrity. As Samuel Scheffler puts it, such moral theories require: the agent to pursue his projects, commitments, and personal relationships whenever and to the extent that doing so would have the best overall outcome impersonally judged, and to neglect or abandon them whenever and to the extent that that would have the best possible outcome impersonally judged.10 The agent thus becomes only a channel for the input of the aggregate aims of society and the output of their maximum satisfaction; the distinctiveness of his own aims, and his commitment to them, are disregarded. Moral theories of this kind undermine the integrity of the individual because they can ‘alienate him from his actions and the source of his action in his own convictions’." On these grounds, Campbell’s view that socialist rights would direct individuals to altruistic duties poses a threat to individual integrity. A view of socialism that understands the individual to have no interests that conflict with those of others, and no interests other than socially defined altruistic ones, fails to understand the nature of individual commitments. Instead of serving as, in Williams’s phrase, a ‘janitor of any system of values’,12 the individual with commitments involves himself in actions that emanate from projects and attitudes which he considers intrinsic to his self-identity. A theory of socialist rights that seeks to arbitrate the disparate interests of individuals is thus better able to respect individual integrity than a theory of rights for selfeffacing altruists. While the argument for integrity imposes limits on collectivist policies, it is by no means incompatible with socialist principles. First, in light of the well-known Marxist charge that capitalism alienates the worker’s individuality by obfuscating the relation between him and his creative powers, a socialist society would be expected to respect the 10 ‘Project and Its Motivation’, in Rejection of Consequentionalism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (Oxford, 1982), 9. 11 Bernard Williams, ‘Critique of Utilitarianism’, in J. J. C. Smart and Bernard Williams, Utilitarianism For and Against (Cambridge, 1973), 116-17. ,z Ibid. 118.

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convictions with which an individual acquires his sense of a life worth living. Second, the protection of individual integrity, say by means of rights, does not preclude bonds of fraternity or solidarity in a socialist society. As the genuine expression of individuals’ personal convictions, such bonds are more likely to endure. Indeed, on some theories of morality, morally right acts must issue from personal convictions, so that externally imposed altruism is a contradiction in terms. Hence, a socialist society would seem to be dependent on the commitment of its members not simply for its stability or effectiveness, but for some measure of its moral worth. Third, the formulation of socialist public policy stands to benefit from the commitment of the individual to his interests. This is because a lively political sphere, in which diverse views can be aired, is more likely to be sustained where individual rights are protected. As we have seen, the possibility of discovering the appropriate altruistic course of action depends on democratic debate in which the individual can contribute from a position of commitment to his point of view. Such a debate will foster good decisions which best achieve the altruistic and self-interested concerns of the par­ ticipants. It transpires that giving individuals rights against each other and against the community at large supports many values associated with socialist politics. None the less, rights also establish limits to this politics. While the rule of law sets out procedural boundaries to the intervention of law in an individual’s life, rights seek to specify the content. Together, procedural regularity and individual rights define a private sphere which the state must on the one hand sustain, and on the other, let alone. For example, the right to freedom of conscience requires that the state both regulate the private sphere, and limit its intrusions. A socialist society with legal rights, understood as protecting individual interests, would thus need a political state, but one of specified, limited scope. I return, therefore, to the question of the state in a socialist society governed by law. What implications do our legal concepts developed in this study have for the role of the state? Hegel’s philosophy is instructive here, since it conceives a social order that maintains both a sphere for private activity and a sphere for a communal morality. I have examined Hegel’s proposition that civil society is the realm where individuals, under the aegis of legal rights and juridical guarantees, have the freedom to pursue their interests. But civil society is not simply a realm of atomistic activity; men form social bonds, albeit

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instrumentally, to engage in work, production, exchange, and con­ sumption. In recognizing ‘personal individuality and its particular interest’, the private sphere prepares the individual for life as a member of the public.1-’ For Hegel, the political sphere, or the state, is where the individual forges communal bonds, not as instruments to self-interested ends, but as the expression of a public ethical life which transcends the particular concerns of his life as a private individual. Nevertheless, without this private life, the state as an ethical sphere would not be possible, first because in the absence of a contrast with civil society the public would degenerate into an unmediated and oppressive totality, and second, because the sphere of voluntary associations and familial relations of affection prepares the individual for attachment to a larger, higher community'. Thus Hegel’s dichotomy of state and civil society, as Salvador Giner says, is able to ‘overcome certain aspects of liberal individualism without falling prey to anti­ individualism’.14 It accordingly offers a possible framework for a socialist legal system which seeks to protect both individual liberty and social justice. Marx took over Hegel’s distinction between private and public, civil society and state, but he rejected the possibility that the divisions of civil society could be offset by the integrating structures of political community. The state, he argued, could be no more than the tool of particular interests masquerading as the general will.15 The task of socialism was thus to restore commonality to civil society, to eliminate the division between public and private life by depoliticizing the public and thereby unifying the divisions of the private. Some Marxists have interpreted this to mean that the private sphere will be absorbed by the public; politics will cease to exist because the interests of individuals will be unified with collective interests."' The experiences of Eastern 13 Philosophy of Right, trans. T. M. Knox (Oxford, 1978), s. 260. See also Shlomo Avineri, Hegel’s Theory ofIlteModeni Stale (Cambridge, 1972), 167-71; Raymond Plant, ‘Hegel and Political Economy—IP, New Left Review, 104 (July/Aug. 1977), 109. 14 ‘Withering Away of Civil Society?’, Praxis International 5/3 (Oct. 1985), 249. Sec also Jean Cohen, Class and Civil Society (Oxford, 1983), 20-6. 15 Ibid.; Lcszek Kolakowski, ‘The Myth of Human Self-Identity: Unity of Civil and Political Society in Socialist Thought’, in L. Kolakowski and S. Hampshire (cds.), The Socialist Idea: A Reappraisal (London, 1974), 19-20. “ John Maguire, for example, claims that while government, which can be broadly defined as the institutions necessary for running ‘the general affairs of any collectivity’, would be compatible with socialism, politics responds to a gulf between individual and collective interests which would not exist in a socialist (classless) society. Marx’s Theory of Politics (Cambridge, 1978), 222-30.

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Europe suggest an attempt to put this interpretation into practice: there, Leszek Kolakowski charges, socialism has meant the ‘growth of a bureaucracy which paralyses civil society and leads to the anonymity of public life’.17 Of course, Marx did not envision socialism as bereft of both an authentic community and a sphere of individuality. Having eliminated state and law, however, Marx denied his model of socialism the traditional means of preserving some minimum of solidarity on the one hand, and privacy on the other. In this context, the Hegelian framework offers a promising start for theorizing about socialist politics in the light of our considerations for individual rights. Indeed, democratic socialists in Eastern Europe have simultaneously directed their protest towards reviving a democratic public sphere and reconstituting the rights and liberties of the private domain. They are two mutually supporting aspects of a single project."1 Such a project introduces a challenge to both Marxist and classical liberal theories of politics. For, although Marx dismissed such ‘bourgeois’ concepts as the social contract or rights to property, he accepted the premiss which often underlies them, that law and state can be no more than an instrument for maximizing the utilities of atomistic individuals. Furthermore, existing socialist societies have maintained the state not in order to realize the liberty and community which Hegel advocated. They have done so, as Sergius Hessen observes, to promote the ‘cult of unbounded industrial productivity’, inherited from the classical liberal, or ‘possessive individualist’, tradition.1’ It may seem that if we can formulate a socialist political theory in which individual rights, the rule of law and democratic political structures are added to an egalitarian economic organization, the result would be no less than utopia. Indeed, to combine the instruments for protecting individual liberties and pursuing communal politics would seem to portend the realization of the classical socialist aspiration of a 17 ‘Myth of I luman Self-Identity’, 29-31. Andrew Arato, ‘Civil Society against the State: Poland 1980-1’; Telos, 47 (Spring 1981). Sec also Jacek Kuron and Karol Modzclewski, 1965 Open Letter to the Party (1965), repr. as Solidamosc: The Missing Link} introd. Colin Barker (London, 1982). 19 This indictment of Soviet Communism, made by Sergius Hessen, is noted in Andrzej Walicki, Legal Philosophies of Russian Liberalism (Oxford, 1987), 425. See also Andrew Eraser, ‘The Legal Theory We Need Now’, Socialist Review, 40-1 (July-Oct. 1978), 160-2. Mihaly Vajda also notes that the ‘instrumental character of political power in bourgeois society’ contributed to the Marxist view that political power was no more than the superstructure of production, so that ‘one only has to abolish private property in order to deprive political power of its footing’: chapter 4 ot Slate and Socialism (London, 1981), 65.

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unity between private and public interests. But I must repudiate any such view and argue that even in the most democratic and egalitarian of societies the individual can find himself at odds with its legal institutions. Even under socialism there can be no ‘intrinsic’ obligation to obey the law, that is an obligation to obey the law because it is the law. This remains true even if we suppose that the socialist polity would maximize political involvement so that the citizen directly contributes to the legislative process, and thereby closely identifies with resulting law. Three considerations defeat the idea of intrinsic obligation: dissenting minorities, extenuating circumstances, and non-participation. Like traditional social contract models which seek to found obligation on systems of representation, the participatory model founders in all three situations. Because it is impossible to achieve total identification or agreement with the law, and because the impact of the law changes with its application in diverse situations, there can be no intrinsic obligation of obedience. Endowing a socialist society with institutions of law thus docs not promise to remove all or even most social problems; indeed, it may be that legal institutions make our awareness of social problems all the more acute. While the law will seek to articulate and resolve individual differences, it will not always succeed in doing so. As a body of general rules, law cannot always adequately serve the demands of particular situations. And inherent in any resolution are certain trade-offs, the costs of which the individual may personally find insupportable. For example, while I have argued that substantive justice is buttressed by the requirements of procedural justice, there may be situations in which the latter is purchased at the expense of the former: respect for due process may result in wrongs being unremedied or guilty persons going unpunished. And while individual rights offer a concrete instrument for achieving substantive justice, they too have their limitations. Individual rights can hamstring a society’s collectivist objectives. Accordingly, individual rights can lose out against these objectives. No rights can be absolute, and a society that values rights must, case by case, make difficult choices about whether and which rights have priority. To sum up, our understanding of the nature of socialism cannot help but be affected by the legal concepts in this study. Such concepts as the sources of law, procedural justice and rights specify certain constraints for a viable socialist society. There remains considerable scope for choice within these limits, however, and I have not attempted

Conclusion

16g

to give any firm answers as to what choices a socialist society should make. The legal concepts advanced here should be of concern not merely to dedicated socialists. I hope that even those who are not sympathetic to a socialist perspective, or who have no interest in the problem of the shape of a future, radical society, will have developed a better understanding of socialist theory, what positions it must occupy and what orthodox theses it need no longer endorse. Furthermore, the argument that the concept of law is of vital importance for a socialist political theory has implications for political and legal questions outside socialism. Hence, this book is not a socialist manifesto: its arguments can shed light on non-socialist debates in jurisprudence and political theory. Even my rejection of the withering away thesis, a central tenet of Marxism, can inform issues outside the purview of socialist politics. First, by analysing issues in ‘mainstream’ liberal legal philosophy to see how they might be resolved in a socialist framework, I have indicated that not just the framework but the issues can benefit. On the one hand, socialist political theory benefits from liberal insights about the function of law, such as the idea that individual interests should be protected by rights, and the belief that the rule of law can foster both liberty and equality. At the same time, the analysis of such issues was informed by socialist political ideas. These ideas helped to tell us that historically conditioned morality underlies the sources of law, and that human rights arc the product of social practice. Second, I hope to have demonstrated that discussions traditionally thought to be the province of jurisprudence arc in fact essential to resolving questions that have long preoccupied political thought. For example, perhaps the most central question for political theory' is how it is possible to reconcile collectivist concerns such as equality, solidarity, and efficiency with individualistic demands like privacy, liberty, and human dignity. Law does not give any automatic answers to this question, but legal institutions can at least articulate and go some distance towards mediating the disparate concerns of private individuals and social collectivities. Finally, our analysis can assist the study of politics by pointing out and remedying some misconceptions that plague, not just socialist thought, but political theory in general. In particular, the idea of the ‘circumstances of justice’ and the instrumentalist conception of the

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state both reduce the political and legal structures of society to mere devices for the compelling but morally impoverished objective of gratifying physical needs and appetites. This is a perspective which perhaps dates back to the social contract theory of Hobbes, in which the Leviathan monopolizes political power so that individuals can better get on with their private concerns (e.g. pursuing a ‘commodious’ living), and it reappears in contemporary arguments for minimal states, as in the neoconservativc philosophy of Robert Nozick. Although they eschew the atomistic conception of man that underlies such theories, existing socialist states, with their five-year plans, anticorruption and efficiency drives, also seem to be in the grip of this obsession with material welfare, forgetting that ethical part of Marx’s message which emphasized individual self-realization and the bonds of community.20 I do not want to belittle these concerns for productivity and the satisfaction of material needs; lofty questions of human dignity are doubtless premissed on the availability of such essentials as food and shelter.21 And I hope to have demonstrated that legal institutions would be obvious instruments for providing fair resolutions to the problem of satisfying physical needs—there cannot be, as Jurgen Habermas affirms, law or state ‘relieved of the administrative processing of social problems’.22 None the less, I hope to have indicated that law and politics cannot be reduced to this merely instrumental role. In a socialist society, legal institutions should be expected, not just to organize the production and distribution of goods, but to contribute to a vital and meaningful political morality.23 To conclude. Law is essential to socialism, not in order to abolish 20 Theorists such as Hannah Arendt, Sheldon Wolin, and Agnes Heller lament the decline of political life in Western societies; there are even intimations in their work that attempts to politicize hitherto private (economic) life, be it in the form of workplace democracy or corporatism, are somehow responsible. See Arendt, Human Condition (Chicago, 1958), 31, Wolin, Politics and Vision (Boston, i960), 429-34, Heller, ‘Past, Present and Future of Democracy’, Social Research, 45/4 (Winter 1978). 21 Thus Anatole France’s famous remark that ‘the law in its majestic impartiality forbids rich and poor alike to sleep under bridges, to beg in the streets and steal bread’, cited in Colin Sumner, Reading Ideologies: An Investigation into the Marxist Theory of Ideology and Law (London, 1979), 266. 22 So he accused Arendt of seeking in ‘Hannah Arendt’s Communications Concept of Power’, Social Research, 44/1 (Spring 1977), 15. u Or ‘public life’, as John Keane puts it, which on the one hand accepts that ‘political and administrative power will always be to some extent alienated, and that even democratic socialist systems are therefore in need of safeguards against the abuse of that power,’ and on the other, ‘presupposes the emancipatory political goal of subjects’ living together and reaching agreement through reciprocal understanding . . .*, Public Life and Late Capitalism: Towards a Socialist Theory ofDemocracy (Cambridge, 1984), 256 and 159.

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social problems for all time but to permit their resolution by a socialist citizenry who subject their world to constant review with the aim of ever-possible improvement. Only if a socialist political theory incor­ porates the concept of law can it balance its egalitarian and communitarian ideals with the liberal value of individual autonomy. It may still be possible to envision a socialist society where law has ‘withered away’, but I hope to have at least cast doubt on whether such a society is worth striving for.

■

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Index Alienation 43-4 Altruism capitalism, and 127-8 disputes over 132, 163 law as vehicle of 121—5 moral infallibility, and 122-3 rights, and 114, 121-32, 163 self-interest, and 125-8, 132, 163-5 American revolution 3, 89,95, 102-3 Aquinas, St Thomas 29 Arendt, Hannah 141,153 Aristotle 139-40 Autonomy 5, 129, 171

Babeuf, Gracchus 103 Bachrach, Peter 143 Bankowski, Zenon 74, 76 Belgrade Praxis Group 23,91, 99 Bell, Daniel 12 Bentham, Jeremy 92—3 Berlin, Isaiah 64, 80 Berman, Harold 20, 47 Bloch, Ernst 86, 100,103-4 Brezhnev, Leonid 22 Brus, Wlodzimierz 73 Cain, Maureen 9 Campbell, Tom 32,97, 118-28,131, i63-4 Canadian Charter of Rights and Freedoms 130 Capitalism, alienated law under 43-4 altruism under 127-8 class conflict under 13, 16-18 egoism under 3-5,65-9 enforcement of law under 78-80 freedom under 61-5, 81-2 judiciary, bias of 74-6 ideology under 8-12 legal representation, access to 76-8 political and human emancipation from 5 rule of law, and 61-9,74-80

socialism, institutions used for 15 technology 14 Carlin, Jerome 74,76-7 Castoradis, Cornelius 143 Chalidze, Valery 55 Civil society 3,89, 129, 165-7 Clarke, John 74 Class conflict law, and 16-18, 20-1 rule of law, and 74-8 socialism, and 19, 23 Cohen, G. A. 10,98 Colletti, Lucio 17 Commodity Thcoiy of Law 4,8,17-18,35 Communism altruism, and 127 Marxist view of 117 Soviet 20-3 Communitarianism 94, 106, 116 Comrades’ Courts 50-3,55,158 Connolly, William 81 Conquest, Robert 48,57 Cranston, Maurice 111 Critcher, Chas 74 Critique ofthe Gotha Programme 87-8

Dancy, Jonathan 149 Democracy participatory 134,139~54» > 59-62 positivism, and 34 representative 135-9 rights, and 123, 165 Developed socialism 22-3 Developmental liberalism 127,163 Dicey, A. V. 71 Draper, I lai 25 Due process, see Rule of law Dworkin, Ronald 30-2,38,41,56,84, 95. 130-1 Egoism, capitalist market, derived from 8 law, and 3-5

192

Index

Egoism (coni.): rights, and 121, 163 socialism, and 5-8 Engels, Friedrich 1,11, 14, 16-17, 25, 31-2,88 Equality bourgeois legal subject, of rule of law, and 76-83,158 Feinberg, Joel 128 Finnis, John 29-32,95 Fraser, Andrew 45 Freedom capitalist, and rule of law 61-5 efficacy of, 81 positive and negative 64,80-3 private enterprise economy, in 65-6 rights, and 129 rule of law, and 69-74 scope, determining 67 French revolution 3,89,95, 102-3 Fuller, Lon 56

Gewirth, Alan 86,129 Giner, Salvador 166 Golunskii, S. A. 18 Gramsci, Antonio 10-11 Green, T. I L 127 Griffiths,]. A .G. 74-6 Habermas, Jurgen 170 Hall, Stuart 74, 79 Hart, H. L. A. 32-6,38-9, 45,93,115, 137, 152 Hayek, F. A. 61-5,72-4,80-3, 158 Hazard, John 23 Hegel, G. W. F. 3, 88, 105,165-6 Hegemony, theory of 10, 26 Hessen, Sergius 73, 167 Hobbes, Thomas 135,170 Howard, Jan 74,76-7 Human rights, see also Natural rights, Rights absolutist society, in 91 concept of 85-7 diversity' of 95 feudalism, use to combat 99 fundamental nature of 87, 100 historical context, in 103-4 human attributes and 85-6 human dignity-, protecting 100-5, I07> 109-10, 128 idea of 84

kinds of 109-12 life, to 102 limitation of 112-13 Marxist regime, under 90 Marxist theory and practice, in 87-92 meaning 85 moral compulsion of 106-7 moral right, as 85, 96 natural law, view of 95 natural rights, against 94-109 natural rights, as 86, 94, 108, 162 political underpinnings 107 positivist critique 92-5 progress achieved by 105 property, to 102 protection given by too Roman law, in 94 social context, in 105 social justice, and 96-9 social product, as 106-8,112 socialism, compatibility with 88-92, 99 society, needed in too United Nations doctrines 93, 95, no vagueness of 94 Hume, David 114-15,117, 137-8 Hunt, Alan 9 Hunt, Richard 25 Ideology efficacy of 10 law, and 8-12, 26, 69, 156-7 Marxist-Leninist 13 reality, and 9-10 religion, and 9 socialism, and 12-16 Jaures,Jean 103 Jefferson, Tony 74 Jones, Harry 72 Judiciary viii, 159, 162 Justice circumstances of 114-17, 127, 131-2, 169-70 Marxist view of 116 procedural 63-4, 69-70,73,83, see also Rule of Law rules of 115 substantive 68, 83 Kamenev 144-7 Kautsky, Karl 88 Kennedy, Duncan 65 Klare, Karl 41,69

ii hui_l

Index Kolakowski, Leszek 100,167 Kruschchev, Nikita 21, 50-1, 53-5, 70

Lane, David 90 Law altruism, as vehicle of 121 -5 bourgeois, end of 6 class rule, and 16-18, 20-1 economic power, inhibiting 11 educative role 10 egoism, and 3—5 ethical force, as 22 identifying 28, 41-4 ideology, and 8-12, 26 justice of 44-55 Marxist treatment of 2-3,23,44, and passim meaning 2, 18, 26 morality of 44 natural, see Natural law objectification, product of 42-3 obligation to obey, see Obligation to obey law procedural morality 56 retroactive 60 rule of, see Rule of law socialism, and 2,7, 15, 155 socialist, see Socialist law society, and 8, 35 source of 23-4, 28, 33,39, 157-8 unjust, removing 44 validity of 28, 57 withering away of, see Withering away thesis Lawyers 161-2 Lefort, Claude 98 Legal formalism 67 Legal positivism appeal of 38 characterization 34 false law, view of 55—6 hard cases, and 39-41 human rights, view of 92-5 judge, decisions of 40 Marxists, acceptance by 34-7 moral considerations intruding into 39-40* 55-8 morality, removal from law 28,37-8 objections to 36-41 rule of law, and 55-8 rules of obligation and recognition 33 social facts, law derived from 33 socialist, acceptance by 37

193

sources theory 33-4,55-8 status quo, and 32,38 validity of law 33-4 Legal subject, man as 4-5 Legalism 69,118

Lenin, V. 1.12,16, 20,52,90,141-2,145 Locke, John 63,86,111,135 Luxemburg, Rosa 109,154

MacIntyre, Alasdair 94 Macpherson, C. B. 127, 163 Mandel, Ernest 117 Mandelstam, Nadezhda 47 Marshall, T. H. no Marx, Karl viii-ix, 1,3-5,8-9, 12,14, 16-17,19, 25,31-2,41,81,87-9, 97-8, 101, 117-18,166-7, J7° McLellan, David 25 Miliband, Ralph 17 Mill, John Stuart 90,127 Morality absolutes, and 148 law, and 28, 37-40, 44 procedural 56-7,60 rights 85 Mungham, Geoff 74,76 Nagel, Thomas 124 Natural law appeal of theory 31,158 Christian conception 29-30,95 civil disobedience, and 30 constructive doctrine 30 Dworkin’s commitment to 30-1 Finnis’s theory of 29-31 Marxism, and 31 morality, and 29-31, 44 rights, view of 95 validity' of law, and 28-9, 152 Natural rights, see also Human rights, Rights anarchical implications 93 Bentham’s critique 01'92-3 God, and 86, 95 human rights, against 99-109 human rights as species of 86, 162 legal positivist view of 92-5 Marxist view of 87-92 moral implications 96 natural law theories 95 reason, and 86 social justice, and 96-9 vagueness of 94

194

Index

Neumann, Franz 29,33, 65-6,71,130-1 New Economic Policy 6,19 Nove, Alec 155 Nozick, Robert 95,111,170 Objectification alienation, as 43-4 concept of 41-2 law as product of 42-3 Obligation to obey law consent, derived from 135-9 Obligation to obey law democracy, in 135-9 dissenting minority, case of 144-8 extenuating circumstances, role of 148-50 extrinsic 133,147 intrinsic 133,146, 151-4, 168 kinds of 133 non-participants, problem of 150-1 participatory’ democracy, and 134, 139-51, 168 social contract, role of 142, 145 tacit consent, by 137 voluntary 145-6 On theJewish Question 3,5,12,97

5 'i

Paine, Thomas 86 Parasite laws 53-5,158 Pashukanias, Evgeny 4-6, 8-9, 13, 17-19, 23.35-6 Pateman, Carole 134, 142,145-6 Philosophy ofRight 3, 88 Plamanatz,John 135-6 Plant, Raymond 82 Plato 139 Policing the Crisis 74,78-9 Possessive individualism 167 Pound, Roscoe 63 Praxis 41 Procedural justice, ^Justice, procedural, Rule of lawProperty’ freedom, and 81-2 meaning 102 right to 101-2, 167 Rationality, Hayek’s model of 62 procedural 61 Rawls, John 115,122, 127,137 Raz, Joseph 30, 32-8, 83, 120, 136 Reisner, M. 14

Religion and ideology 9 Renner, Karl 35-6, 44 Rights, see also Human rights, Natural

rights administrative tools, as 121 altruistic, theory of 121-5 bourgeois notion of 87 conflict of interest, resolving 128-9 economic 90,111 -13, 163 human, see Human rights Hume’s analysis of 116 importance of 84 individual 118-21, 128-32 integrity, and 163—5 interest and contract theories 119 legal, value of 118-20, 163 Marxist view of 84-5 meaning 85 moral and legal 85 natural, see Natural rights negative 85, 111-13 politics, limits on 165 positive 85,111-13 property, to 101-2 self-interest, defence of 125-6 social 111—13, 163 socialist theory of 128-32, 163-5 Soviet conception of 91 suspension of 130 trumps, as 128-31 welfare, to 90, 110-13,163 work, to 119 Roberts, Brian 74 Ross, W. D. 149 Rousseau, Jean-Jacques 60, 82, 106, 108, no, 132,142, 145, 152 Rudovsky, David 78 Rule of law, see also Justice, procedural authoritarianism, and 59, 68 capital, domination, and 65-9 capitalism, under 74-80 capitalist freedom, and 61-5 capitalist ideology, as 61 Comrades’ Courts, in 52-3, 158 definition 45-6, 59-61 democracy, and 159-62 enforcement of law, and 78-80 freedom, and 63-64, 70-1,80-4 freedom under socialism, and 69-74 government, role of 63 ideological function 69 inequality, effect of 82 judiciary, bias of 74-6, 158-60

Index lawyers, role of 161-2 legal framework, as 62-3 legal positivism, and 55-8 legal representation, access to 76-8, 158, 161-2 liberty, and, see freedom, and neolibcral view 59, 61 neutrality of decisions 60 New Right, and 59, 61 parasite laws, and 54-5, 158 planned economy, and 72-4 political function 66 political interference, preventing 60 procedural morality, as 60, 158 procedural justice, and 59, 63 procedural rationality 59, 61 regularity, enforcing 70-2 show trials, in 46, 158 social knowledge, viability of 73 social welfare, and 68,72 socialist jurisprudence, in 59, 158 socialist society, in 80 Soviet Union, in 46-55, 59 standards of 45, 60 substance of law, affecting 56-8, 83 substantive justice, and 68, 168 technical function of 65 use of term 59 values, safeguarding 70-1 Sartre, Jean-Paul 141 Scheffler, Samuel 164 Scarcity 17, 114-17 Schubert, Glendon, 75 Selfishness, see also Egoism altruism, and 125-8 meaning 126 Show trials Bukharin, of 48-50, 55, 158-9 definition 47 falsity of 46 Shakhty Affair 47 Singer, Peter 136 Smith, Adam 115 Socialism

blueprints forvii-viii, 109, 156 capitalist institutions, using 15 class rule, and 19-23 class system, abolition 13 constructivist rationalism, fallacy of 62 definition vii-viii economic planning 159 egoism, and 5-8

195

ideology, and 12-16 importance of law 155 interpersonal disputes in 7 law and state, effect on 2,7 liberalism, and, ix, 28,84,95, 111, 114-17,120, 127,130-2, 134-9. 147,151,163, 169 minimum legal constraints on 156 nature of, understanding 168 rights, view of 84,128-32 Socialist jurisprudence 26, 28,34-7, 169 Socialist law administration, as 6,39 need for 19, 21, 165 obligation to obey, see Obligation to obey law possibility of, admitting 21 theoretical basis for 21 Socialist legality 21-2,50,152 Socialist positivism 34-7 Society individuals in 165-6 state and civil distinguished 3 Socrates 139-40, 148-9 Stalin, Joseph 20,47,51 State, role of 1-3, 22-5,129,133-54, 157,165-7 State and Revolution 17 Strogovich, M.S. 18 Stuchka, P. 18, 21 Superstructure, vii, 1-2, 10,36 Taylor, Charles 106 Thompson, E. P. 11, 26,38,43,61,69, 157 Trotsky, Leon 139-40 Tucker, Robert 47 Unger, Aryeh 91 Unger, Roberto 70

Vyshinsky, A. V. 17, 21,47,49 Walicki, Andrzej 111 Walzer, Michael 137,143, 150 Webb, Beatrice and Sidney 50 Wilde, Oscar 150 Williams, Bernard 124, 164 Withering away thesis ix, 1,7-8, 16, 24-8,52,55,66,89, 156-7. 169, 171

Yudin, P. 18

Zinoviev 144-7