Sunday 12 October 2008

Socialism and the Law

Recently Jim did a tally of the socialist books that had the biggest impact on him, sparking off a short meme followed on several other blogs. I was too busy to join in the fun at the time, but, if you would be so kind to indulge me, there's one book (among others) that has left a lasting impression on my appreciation of socialist politics, and that is Ralph Miliband's Socialism for a Sceptical Age. I don't think its publication received much comment at the time, probably because academic leftism was plumbing the depths of postmodern nihilism, neoliberalism was hegemonic and socialist ideas were in retreat. But now capitalism is convulsed by its most severe crisis in almost 80 years and its favoured ruling ideology lies in tatters, there's no better time for socialists to set out our stall. And, in my opinion, Miliband's book can help us do just that.

Its also worth noting Marx and Engels avoided speculating about the course future socialist societies could take, with good reason. Both grew up in a political context dominated by the schemes and blueprints of utopian socialists. Unlike the utopians, Marx and Engels argued socialism is a real movement in capitalist society, which is negatively realised in increased corporate and state planning (which the system as a whole is dependent on), and the consciousness of world wide labour movements today. We cannot predict in detail the conditions under which socialism becomes victorious nor the specific problems it has to overcome. But this doesn't mean revolutionary socialists should avoid thinking beyond sloganeering and 'building the party'.

There are three key chapters in Miliband's book dealing with socialist democracy, politics and economics and he teases out a series of general problems and contradictions the building socialist societies are likely to encounter, despite the different contexts and political traditions that vary from country to country. These for Miliband are the relationship between law and democratisation, the tension between the need for strong governance, democracy and constitutional checks and balances, where public (socialised) property ends and private property begins, and problems of bureaucratic organisation. In this short piece I'll take a quick look at some general issues regarding socialism and the law, and leave other matters for future posts.

As a classless society will not be ushered in over night, a variety of contradictions and conflicts will remain when power has been won by our class. Law in some form will be needed for all kinds of reasons - to institutionalise and legitimise the new constitutional set up for one, specifying the remits of democratically constituted bodies, individual and collective rights, definitions of socialised property, etc. This is in addition to the more 'mundane' functions it performs in the present day regarding crime, redress, adjudication of disputes and remedies. Miliband suggests this will require we retain a feature of capitalist jurisprudence - an independent judiciary.

However, though this will be superficial in form (we cannot say whether wigs will be retained) it will be very different in content. For starters it must be *democratically* expunged of the reactionary politics and prejudices the judiciary have accumulated over the decades. It must go from being a bastion of the old order to the legal guarantor of the new, while nevertheless preserving its independence. No doubt this will be difficult, but it is an important principle to retain. One danger a fledgling socialist society could face is the arbitrary exercise of power. If a government is to be more democratic and accountable than anything capitalism can devise, the power of judicial review can be built into this accountability process. In other words, instead of acting as a break on democratic aspirations it can act to enhance them.

But how to ensure an independent judiciary do not over reach themselves and become an organised political opposition? There are a number of lessons from the US experience with elected judges that may be useful. For example, fixed term elections and/or the banning of the judiciary from political activity might be considered. Also as the law is revised to reflect the passing away of class society, its arcane and overly complex character could be simplified, making it more accessible to the lay person. Making everyone a legal professional so there are no legal professionals may be a long way off, but it is a first step on that road, and it opens judicial decisions to wider scrutiny.

There are other ways of administering the law that could bypass the need for a judiciary. For example, it is possible there may be a rotation of magistrates in the same way juries are randomly selected from the population for minor cases, and an expansion of the remit of juries and maybe an increase in grand juries. Whatever the case, the building of socialism will be a time of legal experimentation and innovation likely to draw millions into determining the rules of their self-governance, a process so far unparalleled in history.

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