liberal democracy/Socialist law

Greg Schofield g_schofield at dingoblue.net.au
Fri Mar 8 16:27:14 PST 2002


Justin, you probably don't want my oar in as well, as I generally agree with Charles on this point. I however, want to pour some oil on these troubled waters rather then splash them about.

Charle's point turns on the difference between communism and socialism, but in fairness to you (and ignoring much of previous debate which I only followed in part) you do not speak of communism but socialism and so some of what Charles has to say is misdirected.

Now given that you are talking about socialist law and society, and as I have an interest in repressive measures in such societies, I would like to disagree with several of your formulations.

Your definition of socialist law: "First of all, to maintain the social order and the mode of production my establishing and enforcing socialist property relations, protecting oublic ownership of productive assets, democratic control of investment, worker control of production, and prohibiting wage labor. Beyond that, the usual, establishing rights and responsibilities compatible with socialism, resolving disputes, providing a vehicle for marriage, contracts, and other things people want or needto make society run. Also controlling crime."

An honest definition which followed: "Yes. A liberal democratic one in the sense specified."

And finally on the role of force: "It would have a monopoly on the use of force within its territorial jurisdiction, yes. One hopes that, being liberal democratic, it would not _be_ a repressive apparatus, jsut have one that it couldcall on if needed to arrest criminals and enforce judgments in the last resort."

My disagreement may be a surprise to you as I have no major disagreements with what you have said in general, rather I disagree on some of the assumptions on which it rests (which may not be a very big thing anyhow).

First your distinction on law (passing over the prohibition on wage labour which seems a bit of a long bow to draw), its recognition of socialist property relations etc, all seem to piont to the need for new laws replacing old bourgeois laws. In effect (and I may be reading far to much inton what you have said) I beleive this is a misunderstanding of the nature of law.

Law regulates class societies (capitalism and socialism are both class societies both require law), it does so by striking a social balance, a measure which works for the dominant party but makes the position of the other party more workable. After all pure capitalist motives need no laws (however good the effect of law might be on its development), law is something of a compromise for all concerned (that is living law).

It is this aspect of compromise whhich is most imporant and what I want to target.

New laws made simply to impose the will of an emerging power (the working class under socialism) may be no more than decrees, that is something which is used once (thus barely qualifying as a law). Trouble is that romantically the left loves decrees and usually at this point all thinking stops.

Law, socialist law, has to strike a balance, if it does not it does not function. Law itself may seem to change conditions but in effect this is an allusion, as the law strikes some compromise and the wieght of force moves - law itself is passive until called into action.

Far from protecting socialised production, or even democratic control (bound to be very fluid in times of great change) most of law should remain basically the same. Law cannot empower anyone to do anything, it may recognise a power and strike a balance for its use and use force to impose this balance but that is it.

We can all think of laws which need to be changed, unfair laws, in effect laws which for historical reasons no longer strike a balance but are just dressing up for other forces at work. Ok even the bourgoeis will change laws which no longer function even when clinging onto the privildeges such by-passed laws seem to confer.

Now look at the body of functioning law, that is law which does function by striking a balance of soughts. Of course the balance is always in favour of the powerful, but the form of law since the middle ages does not begin with privilidge but with equality. The form of law is in general still useful when the class forces change.

Code law, as well as English legislated law, usually on paper (like most treaties) is equitable and functional. IT is the influiences on its interpretation which make most of the difference.

For instance the laws on fraud. Noweher in the world are companies and their agaents given excemption from this, but effectively they have it. Individuals who do what many major companies do would be in gaol for fraud (think of the banks). Is there anything wrong with law on fraud? What needs to change?

Everything needs to change but not the law on fraud, Change conditions and tomorrow we could have the richest individuals and most secure managers before the bench and away serving long sentences. I don't want new socialist law, the old laws still function (well most of them), what has to change is THE REPRESSIVE APPARATUS of which law is a part.

Sorry Justin, I have taken a long time to come to this point. Class rule is all about repression, whether by the bourgeoisie or the proletariate. In this I always favour legal repression, I do not trust the state with arbitary powers as the state tends to have its own interests. Law stands as class compromises, and to this extent the state becomes one of the parties, representing a class of its own (however firmly embraced by the ruling class most of the time).

Legal repression, or arbitary state repression, these are practically the only choices, very few will select the second.

Greg

--- Message Received --- From: "Justin Schwartz" <jkschw at hotmail.com> To: lbo-talk at lists.panix.com Date: Fri, 08 Mar 2002 04:36:45 +0000 Subject: Re: liberal democracy/Socialist law


>
>Justin: A socialist law would have different
>purposes.
>
>^^^^^
>
>CB: What purposes would a socialist law have ?

First of all, to maintain the social order and the mode of production my establishing and enforcing socialist property relations, protecting oublic ownership of productive assets, democratic control of investment, worker control of production, and prohibiting wage labor. Beyond that, the usual, establishing rights and responsibilities compatible with socialism, resolving disputes, providing a vehicle for marriage, contracts, and other things people want or needto make society run. Also controlling crime.


>Would socialist law be part of a socialist state ?

Yes. A liberal democratic one in the sense specified.


>Would the socialist state be a repressive apparatus ( i.e. have guns)
>

It would have a monopoly on the use of force within its territorial jurisdiction, yes. One hopes that, being liberal democratic, it would not _be_ a repressive apparatus, jsut have one that it couldcall on if needed to arrest criminals and enforce judgments in the last resort.

jks

Greg Schofield Perth Australia g_schofield at dingoblue.net.au _______________________________________________ _______________________________________________

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