The Concept of Socialist Law

212 Pages·1990·7.856 MB·English

by  Christine Sypnowich

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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
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British Library Cataloguing in Publication Data
Sypnowich, Christine
The concept of socialist law.
1. Law. Socialist theories
I. Title
340'.!
ISBN 0-19-825246-3
Library of Congress Cataloging in Publication Data
Sypuowich, Christine.
'Hie concept of socialist 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
i
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 (July-
Oct. 1978), 147.
viii Preface
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.
Preface ix
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