The Concept of Socialist Law

This book seeks to remedy the contempt for law prominent in socialist writings. While political thinkers on the left are indisputably concerned with justice, they dismiss those legal institutions which, in liberal capitalist societies, have ensured some minimum measure of justice in citizens' lives. Marxists in particular have tended to reduce law to a capitalist apparatus necessary to mediate conflict between egoistic wills or social classes. The book argues against this doctrine by showing that however ideal a society socialists envisage, legal institutions would be necessary to fairly adjudicate conflict between private and public interests. Each chapter takes up an issue in liberal jurisprudence to see how it would fare in a socialist theory which takes a constructive approach to law. The rule of law, natural and legal rights, obligations, and the sources of law are among the subjects covered. The book concludes that a socialist concept of law would enrich, not only debates about the nature of socialism, but also debates about community and justice which preoccupy `mainstream' political theory and jurisprudence.

Part 1 The "withering away" of law and egoism; socialism and egoism; law and ideology; socialism and ideology; law and class rule; socialism and class rule. Part 2 Justice and the sources of socialist law: the natural law position; the legal positivist critique; socialist positivism; hard cases and the morality of law; praxis and the identification of law; the justice of law - the show trials, the comrades' courts, the parasite laws. Part 3 Freedom and the rule of law: capitalist freedom and the rule of law; capitalist domination and the rule of law; the rule of law and freedom under socialism; the rule of law under capitalism - three cases - the biases of the judiciary, access to legal representation, the enforcement agenda. Part 4 Human rights and political reform: the concepts of human rights; human rights in Marxist theory and practice; the positivist critique; natural rights and social justice; natural rights versus human rights; what human rights do we have? Part 5 Altruism and rights under socialist circumstances of justice: the circumstances of justice; legal rights in a Golden Age; law as a vehicle of altruism; altruism and self-interest; rights as trumps. Part 6 Self-government and the obligation to obey socialist law: obligation derived from consent; the radical alternative; a critique of the radical, participatory alternative - the case of the dissenting minority, the role of extenuating circumstances, the problem of the non-participants.