My book The Concept of Socialist Law challenges the view that an ideal socialist society would have no need of law.footnote1 While thinkers on the Left advocate socialism in the name of justice, they have traditionally dismissed those legal institutions which have provided some measure of justice in liberal capitalist societies. This dismissal has its origins in the classical Marxist thesis that law is a capitalist apparatus necessary only to mediate conflicts between egoistic market actors or antagonistic social classes. I argue that the contempt for law in socialist theory has made for a contemptible form of socialist legality in practice, and that any worthwhile socialism will need legal institutions to adjudicate disputes between socialist citizens and between citizen and community. The book aims to establish a socialist jurisprudence which addresses such questions as the identity of law, the relation between freedom and impartiality, the nature and origin of human rights, and the impact of civil liberties on community. These questions are the focus of lively debates in liberal legal philosophy, debates which, I argue, can make a significant contribution to a concept of socialist law.
A socialist legal theory is particularly relevant today for two reasons. First, liberal theories of justice are increasingly the target of a number of non-socialist critiques, from feminists to Foucault. Cultural feminists, figures in the Critical Legal Studies movement, communitarians and poststructuralists share a view of liberal legal ideals of impartiality and individual rights as the palliatives of domination and anomie. If it can be established that law has an important place within the socialist project, then the traditional polarization between radical critique and liberal legality must be reconsidered. Second, and more important, the collapse of Communism in Eastern Europe underscores the need for a socialist jurisprudence. If we can explain the legal nihilism of Marxist theory, we may better understand the legal terror of Stalinist practice, and how this legacy has contributed to the current cynicism of Eastern Europeans about the socialist ideal. The rejuvenation of both the theory and practice of Marxism thus depends, I believe, on a revised socialist legality, which joins socialist values of equality and community with liberal values of impartiality and individual freedom.
I cannot help but find Alan Hunt’s review, ‘A Socialist Interest in Law’,footnote2 congenial because he agrees with so many of my views. He endorses my theses that law would be needed to mediate conflict even where class divisions and market egoism have been eliminated, and
I will address the muddle about functionalism first. Hunt initially accuses me of adopting a functionalist analysis which is out of keeping with Marxist method; he later claims that I do not intend to endorse a functionalist approach; and he then goes on to say that I am not alone in being guilty of functionalism—Marx and Engels were too. This obfuscating discussion cries out for clarification, so let me set the record straight. I argue that the rejection of law in the classical Marxist tradition stems from a view of law as fulfilling certain functions specific to capitalism: law mediates disputes between bourgeois egoists, provides an ideology of impartiality and freedom which masks domination, and maintains the rule of the dominant class. In order to refute what I call ‘the withering away thesis’, I maintain that a socialist society might also require the fulfilment of certain functions such as resolving disputes between individuals’ differences, best carried out by law. But this strategy offers a limited basis for endorsing socialist legality, and the focus of the book is thus to make a case for law’s contribution, not simply to the smooth functioning of socialism, but to the promotion of socialist ideals. I argue that law enables the contribution of diverse voices to democratic debate, the protection of individual autonomy, and the impartial and fair regulation of an egalitarian economy.
Hunt’s hostility to functionalism is in fact rather puzzling, since his own reasons for a socialist ‘interest’ in law seem largely utilitarian: socialist legal institutions are a means of coordinating the complex social arrangements of a redistributive, democratic system. Thus, if either of us is a functionalist, it is Hunt and not I. While Hunt sees law as a contribution to a ‘defensible’ socialism, there is no talk of the intrinsic value of ideals like justice, freedom, equality or community for which socialism and its system of law would be the means.
A more interesting (though no more clear) feature of Hunt’s challenge to my argument lies in the question of method. An important aspect of my approach is to assess critically how the liberal tradition, from Hume onwards, may contribute to a socialist jurisprudence. Thus the book builds on, besides Marxist and other critical political theories, legal
First, it seems that Hunt is unhappy with what he considers abstract philosophizing ‘dislocated’ from historical context. I agree that debate about ideas in isolation from the societies in which they develop would offer a poor prospect for a socialist legal theory. Thus my book explores how the Soviet Union put the idea of the withering away of law into practice in, for example, state policy about the future of law under socialism, institutions such as the Comrades’ Courts, and political campaigns such as Stalin’s purges and the attack on ‘parasites’ by Khrushchev and Brezhnev. I also examine how law under capitalism facilitates the development of socialist law: how on the one hand, the ideal of impartiality is hampered by the inequalities of the market, and how on the other the model of law as an instrument of market relations has evolved to make room for the administration of social-welfare policies. However, I do not think the argument for socialist legality can restrict itself to the sociology of law. Philosophy is crucial, first because legal reality has gone hand in hand with theoretical debate. This is true of liberal capitalist legal orders, but it is especially obvious in the history of Marxist practice, where the hegemony of a certain concept of law is central in explaining how socialist legality developed. Furthermore, the dialectic of theory and practice underscores the need for philosophy not just in our historical excavations. Now, more than ever, the Left needs to ask itself what is so good about socialism. This is a philosophical question, and it requires philosophical debate about values and ideals in its answer.