The momentous events that have taken place in the Communist world since 1989 have underlined, even though it may prove to have been too late, the necessity for socialists to take law seriously. I understand the slogan ‘taking law seriously’ to embrace the following ideas: one, contrary to the thesis that law and state will wither away in the transition to communism, law will play a part in any form of defensible socialist society; two, constitutions are important in providing some degree of protection to the democratic arrangements of public life; three, civil liberties, human rights and the rule of law (legal mechanisms and devices developed within capitalist societies) are essential preconditions for a defensible socialism. The roots of socialist antipathy to law lie deep in its history; theoretically Marx himself evinced a marked hostility to ‘bourgeois law’,footnote1 and politically a regard for law and legality has been treated as signifying the wrong side of the revolution–reform opposition. In Britain, Edward Thompson struck the most important blow for a socialist interest in law with his ‘scandalous’ eulogy to the rule of law as a universal human good.footnote2 Since that moment a developing trend on the Left has argued in favour of some version of the ‘taking law seriously’ position.footnote3 It would be wrong, however, to suggest there had been a debate; rather there persists an implicit opposition, or resistance, concerned to protect Marxist or revolutionary standards, which regards taking law seriously as either reactionary or revisionist—or both.
The appearance of a new and substantial contribution by Christine Sypnowich to the case for socialists taking law seriously affords an
The originality of Sypnowich’s approach lies in her starting point: the question ‘Is a socialist jurisprudence possible?’ The book elaborates an affirmative answer to that question. Marxist discussion of law has, in the main, ignored the tradition of jurisprudence and set out in quite different directions. Sypnowich’s work takes the opposite tack; she locates the possibility of a ‘socialist law’ in the concerns that have motivated English jurisprudence.footnote5 The title of her study discloses its roots in Oxford analytical jurisprudence, whose major achievement has been H.L.A. Hart’s The Concept of Law.footnote6 Accordingly she begins with the quest for such a concept;footnote7 this requires an account of how we ‘identify law’ (p. 28).
The advantage of this strategy is its location of the project of constructing a socialist jurisprudence in close relation with the traditions of liberal jurisprudence, thereby facilitating direct comparisons. Yet this approach also has its drawbacks, which distance it from the traditions of Marxist theory and lead to the blurring of certain issues. The most obvious of these is a tendency to treat jurisprudence as the pursuit of ‘age-old questions’ (p. 28).footnote8 This produces an overview of the province of legal theory as an ongoing engagement between legal positivism and natural law. The positivists treat valid law as all those rules that have been validly promulgated (for example, by legislative enactment or judicial pronouncement); they insist on sustaining a distinction between fact and value such that the moral worth of a valid law is simply a different question from its validity. On the other side are the natural lawyers who insist that formal validity is not a sufficient condition, and that for law to be legitimate or binding it must fulfil certain minimum moral criteria. As the history of these disputes has unwound there has emerged a complex set of debates as to whether individual authors are to be located in one camp or the
There may be little to gain by insisting that all positions in legal theory must be classifiable along this fault-line between natural law and positivism; these latter should instead be understood as alternative paradigms which, rather than being right or wrong, simply generate different theoretical problematics. Oddly, it is far from clear that this paradigm choice has much to do with the issue of ‘identifying law’. Indeed I want to suggest that the identification of law is not in fact the problem, even for the two sides; at issue, rather, are certain important questions of political theory and ethics concerning when laws are binding. It makes little difference to such arguments if a law is law-but-not-binding-law (positivism) or not-law-because-not-binding (natural law). The issue of identification may be pertinent when dealing with marginal cases—for example, whether we should speak of the rules of disciplinary procedures as law or as administrative regulations; but it is not clear that any contribution is made to the examination of disciplinary process or administration by simply classifying these as ‘law’ or ‘non-law’. Only if one adopts some prior commitment to the view that law is or should be autonomous, is one led to set up sharp classificatory boundaries between law and non-law. The better view is that the conception of law which any theory adopts should be determined by the questions that theory addresses.