Of course it bothers me. That's why I tried to think it through. But like Dennis said there were courts before and courts after. So best to take that into account. Also, I was thinking of Allende and Chavez and how to alter a society with a minimum of destruction and repression.
I've tried to think though why the Russians and Chinese turned into such repressive regimes. One of the deeper problems with revolutions is how they are fought and won. If for example you follow the Russian and Chinese examples, you see a top down hierarchy of military power which gets transferred into the revolutionary government. Or alternately, a disciplined hierarchical party takes power. I conclude wars, especially civil wars are very likely to result in oppressive outcomes.
Cuba is a better example, although not without its flaws. The difference was the Cubans didn't have to fight a prolonged civil war. Their main enemy was the US imperialism and foreign capital. So there is an historical concept at work. It seems to be that the more fighting and blood getting into power, the more militaristic and or authoritarian the resulting regime.
So, the whole idea of legal revision, obviously cutting vast swaths of law out of the books, is based on the above idea that more violent methods result in worse outcome. South Africa is another example here in the terms of truth and reconciliation commissions. I am sure these were flawed in actual practice, but the basic idea seems sound. I suspect some historical back and forth between the US and the SA movements is where the concept of reparation and reconciliation came from. This apparently minor example seems to me to be a much larger victory than it might seem. Why didn't the new government put the old white bastards in prison? Because Tutu and others realized doing that perpetuated the cycle of oppression and kept the recriminations going, when they had to be stopped. I think something new was added to the histories of liberation struggles.
``But the law is not neutral. The form of the civil and criminal codes you want to change came out specific state-capitalist situations..''
Of course. Think about property law and how much socialism you can get going just by working on that one area. And, I am also thinking about how much stress, violence, and ultimately crimes are generated by the whole state capitalist apparatus which lives on class war and artificial scarcities. In effect the systems of discipline and punish create most of its criminals.
``Is it really impossible to conceive of how to address socially damaging behaviors without a set of preformed institutions to enforce them?''
No. It's not impossible at all. But we need to get from here to there and overhauling the legal system is a central means. The another is to stop putting people into institutional systems who don't belong there. For example, if you look at the FDA, you find a long list of controlled substances. If you get rid of the controlled substance list, you immediately abolish most of the war on drugs, including many of the people in jail on drug charges.
Some other areas to look at are family law, juvenile justice, and social welfare. These are the institutional systems that generate as well as punish socially damaging behaviors. It is not coincidence that Angela Davis for example, concentrates a lot of theoretical as well as practical work in exactly these institutions and their frames. Public education is another of these.
I worked in the health care end of these social systems and got to see how they created the problems, that is socially construct what they were apparently supposed to fix. It is a strange dynamic that follows something similar to the concept of private property creates crimes against property.
Anyway, the main point is to think through how things work, and how to change them. I don't have a grand plan. But do have some working principles. To pick a bad example, let's take the Obama administration's invitation to a `stake holders' meeting at the WH prior to starting legislation. Just the phrase stake holder was enough to set me off. Who is a stake holder? Well that turns out to be the insurance companies, including the companies that actually administer Medicare payments, some legislative leadership and various executive branch agencies leads. These are the stake holders. Where are the people's voice?
Who wasn't invited? Well, the actual service providers, doctors, nurses, allied professionals, and beneficiaries organizations like patient advocacy groups. The service provider and beneficiary sector were excluded by design. Why? Because they are the ones pushing for single payer. Why single payer? Because that was the group consensus policy that rose from those most adversely effected by the current system.
So that design was exactly opposite the principle to include those people most impacted by social policy. You can see the same oppositional features at work in almost every sphere of social-economic policy. These agencies and their regulations, and policies are the concrete mechanisms of oppression but also potential liberation. The basic idea is to put la gente in charge. The question is which people. The answer is a combination of those most effected plus those most knowledgeable. Out of that pool, there are people who know a lot about what's wrong with the systems and how to change them or get rid of a system altogether and build a new system.
There's a lot of theoretical stuff going on here. Systemic oppression creates a social knowledge that is critical, useful, practicable in creating social change. It's embedded in what people say and think about their condition. Part of the work of liberation movements is to get that knowledge and develop it into, or articulate it into policies. I've seen this work, but I can't quite name it or explain it. It's actually captured in strange sounding slogans, like All Power to the Soviets. You can call it democracy at work, but that is way too sloppy. What happens is people arrive at policies in an organic way from within their struggles against existing policies (laws, institutions, etc). That happens best when there are few if any fixed `leaders.' Instead of leaders, what I want to see is the development of groups and group consensus. I certainly don't want to see party authority take over. But I haven't figure that part out... I've figured out some though. The problem with party authority is, it is ideological and abstract theory based---it doesn't have the `real' authority of practice. It tends to substitute theory rather than what I would call practical and organic knowledge of struggle and liberation.
Getting back to that other level. These groups form a system of social cohesion built up from working knowledge and hence power. So, in the theory level, developing this system and pulling in the relevant histories, that's how I see a constructive form of `revolution' rather than what we have seen in the past which has often been a destructive process.
We hear talk about the fog of war. There is a fog of struggle that coheres and shapes emerge. It is a vastly creative process that produces both monsters and utopias. There is an intuitive culling of the practiced sensibility in all this.
CG