Leftists are not the biggest fans of law and the courts. Ask a socialist in the United States what they think of the Supreme Court, and you’re likely to get a middle finger or an essay-long speech about how the robed nine have retrenched the power of capital and backstopped oppression.
It should come as no surprise, then, that many socialists have dreamed of a world without a legal system. Belying their reputation as statists, Marx and Engels wrote of the “withering away” of the state. Since the state and statist law were “nothing more than the form of organisation which the bourgeois necessarily adopt both for internal and external purposes, for the mutual guarantee of their property and interests,” it would disappear with the advent of a classless society. “The state is not ‘abolished,’” Engels wrote at one point, “it withers away.”
How the state would “wither away,” however, and what would supplant it were never well defined — Engels hypothesized that “the government of persons [would be] replaced by the administration of things and the direction of the processes of production.” But what about the conflicts that, classless society or not, would endure and need to be adjudicated? Some Marxists insisted that under socialism a new type of person would emerge, liberated from the egoism of competitive capitalist society. No need for the law. Others argued that socialism would produce such a superabundance of goods that the material bases of crime would disappear along with the symptoms.
Actually-existing socialism never worked out that way. Scholars debate whether Soviet authoritarianism was defined by an excess of law or a lawless kleptocracy. But whatever its fundamental nature, the Soviet state certainly did not “wither” away and usher in a fraternal society where everyone hunted in the morning, fished in the afternoon, and philosophized after dinner.
Democratic socialists who came to power in the twentieth century tended to be more pragmatic, making no bones about the need for the state and law as they worked to democratize the economy and redistribute wealth. Still, they often struggled to justify a concept of socialist law that went beyond merely accepting its practical necessity.
So when Christine Sypnowich’s book The Concept of Socialist Law appeared in 1990, just as the Soviet Union was breaking up, it instantly filled a void. Sypnowich, a political philosopher now at Queens University in Canada, argued:
If the law none the less stands as a framework for mediating individual differences, or as a source of fragments of genuine justice…then socialists would do well to consider how to preserve and develop them in a post-capitalist society. ‘Existing socialism’ has demonstrated the impossibility of law ‘withering away’; conflict will outlive classes and disputes will continue to need regulation long after the demise of bourgeois market relations.
The Need for Socialist Law
If socialist law will “outlive the demise of bourgeois market relations,” what intellectual sources should it draw on? Sypnowich, then a junior scholar influenced by the liberal socialist philosopher C. B. Macpherson, borrowed heavily from the liberal tradition of analytical jurisprudence.
Analytical legal philosophy in the twentieth century was divided between “natural law” legal theorists and “legal positivists.” Natural law theorists claimed that there is a necessary connection between law and morality, such that any sufficiently “wicked” system of law ceases to be law. Think about the Nazi legal system: to the natural law theorist, fascist law was nothing but the brute imposition of terror without rules or consistency, lacking respect for basic legal principles like equality before the law or the presumption of innocence.
By contrast, legal positivists argued that there is no necessary connection between law and morality (the “separation” thesis). Even if the law might reflect the ethical views of legislators, the concept of law is sufficiently neutral to incorporate a wide array of normative positions, including many that a majority of people would find repellant. According to the legal positivist, both Iceland and apartheid South Africa had “legal systems” even if one is admirable and the other deplorable. Critics sometimes charge that legal positivism encourages blind obedience to the law — “just following orders!” — since adherents see no necessary connection between law and justice. But all sophisticated legal positivists insisted that the fact that a given legal system existed is no argument for obeying it, and that something can be at once lawful and unjust.
Sypnowich argues that socialists have unique things to say to both positivists and natural law theorists. Most socialists will sympathize with the positivist claim that law can embody many different moral systems without reflecting a “capital M” morality. This is in line with Marx’s historicism, which (crudely put) stressed that the legal “superstructure” and ideology of an era reflects the “base” of economic relations of production. Law in a slave society looks very from law in a capitalist society.
Still, Sypnowich points out that all but the most doggedly “scientific” socialists would admit that they don’t share the legal positivist’s commitment to a neutral description of the law, or for that matter the moral content embodied in a given legal system. Socialists are partisans in the struggle against state domination — historically for the working class, and today, for other dominated groups. Wherever the legal system enforces oppression, socialists will bound forward as vocal critics.
Yet it is not enough to critique: the burden is on socialists to conceive and construct a less domineering and more equal legal system than that which exists under capitalism, one that would adjudicate conflicts while conforming to socialist principles of justice.
Hayek, Marx, and Socialist Rights
Fortunately, Sypnowich doesn’t leave us empty-handed on these points. In one of the more creative sections of The Concept of Socialist Law, she combines the critical and constructive dimensions of her project through an examination of Friedirch Hayek’s legal theory. Hayek — the twentieth century’s most sophisticated liberal defender of capitalism — argued in his 1960 magnum opus The Constitution of Liberty that the rule of law is a “meta-legal” idea that evolved over time to secure the conditions for free liberal societies, organized by respect for the equal rights of individuals and, crucially, property rights. Hayek thought a state that failed to respect these classical liberal rights would invariably compromise the rule of law by privileging the interests of select groups over the rights of others.
Except, as Sypnowich writes, this is exactly what happens under capitalism. The formal legal equality that Hayek exalted quickly becomes inequitable and kleptocratic in practice. As court watchers like Adam Cohen, Irwin Chemerinsky, and Samuel Moyn have documented, the Supreme Court past and present has repeatedly issued rulings in favor of the rich and powerful: the 1857 Dred Scott decision upholding slavery; the 1905 Lochner case striking down shorter working hours; and the recent Dobbs decision rolling back reproductive rights are just the tip of a shameful history.
Or look outside the court: legal aid for poor and working-class people is so overstretched and underfunded that innocent people are encouraged to plead guilty rather than risk a loss at trial; working-class litigants are strongly disadvantaged when suing large corporations (including discriminatory employers), often forced to sign contracts that accede to forced arbitration favoring big-money interests. As a theorist, Sypnowich doesn’t offer many concrete solutions to this gulf between classical liberal rhetoric and practice. But she insists that a socialist legal system would ensure that “intrusions into the individual’s life conform to certain procedural rules” and “curb the use of public power for private ends.”
As her reference to protecting individuals from intrusion suggests, Sypnowich doesn’t want to throw out the entire liberal legal tradition — and nor, she argues provocatively, would Marx. Famously, Marx took a dim view of “human rights,” seeing them as codifying the ideological norms of bourgeois society and conceiving of humanity as a collection of atomized, status-hungry individuals requiring legal protections from one another. But Sypnowich echoes recent scholarship in noting that Marx saw liberal rights, for all their flaws, as a historic achievement that fostered new kinds of freedom unavailable under feudalism. For Marx, this was anything but abstract: dogged by state repression throughout his life, he knew firsthand the value of free expression and assembly.
Yet Sypnowich thinks that we need to acknowledge the Marxist point that rights are “not natural, pre-social rights because the human dignity they seek to protect develops in society and is thus susceptible to historical change.” In other words, individual rights are inherently social and are best secured within a society that is committed to prioritizing individual dignity and autonomy.
One of the most important rights that Sypnowich discusses is a “right to political expression”: under a democratic socialist system, “all points of view” would be “taken into account” rather than just that of the wealthy. This is an especially important point today, when affluence begets political influence while poverty is tantamount to being silenced. Reconceiving rights to political expression not just in terms of interests, but on the solidaristic basis of taking “all points of view” into account, helps connect these rights to notions of social freedom for all.
The payoff from Sypnowich’s reflections on rights is considerable, not least because it breaks down some conventional binaries. Sypnowich shows that since all rights are in fact social, the common distinction between “negative” and “positive” rights — negative rights are those individuals assert against the state to retain their autonomy, while positive rights require the state to take action to provision them — is in fact blurry at best. The liberal right to a fair trial is largely meaningless if the state doesn’t build a fair legal system and offer legal aid to poor litigants.
Once we recognize the blurriness of the negative/positive rights distinction, it opens the
door for socialists to argue that a better foundation for human rights is one that guarantees the things that social beings need to maximize their capacities and dignity. This leads to the further question of whether the average person leads a freer and more dignified life when the legal system militantly enforces an expansive right to property rather than, say, safe drinking water or housing. Not to mention whether any legal system that permits vast disparities in wealth and power can be said to show “equal respect” for everyone’s rights.
A More Just Legal System
Sypnowich’s book is by no means comprehensive, and there is a lot more to be said about what socialist law would look like in practice at the domestic and international level. Nonetheless, The Concept of Socialist Law deserves a second look as a hidden late twentieth-century gem, filled to the brim with provocations and perceptive inquiries.
Sypnowich goes beyond utopian hand-waving to think through the animating principles of a genuinely egalitarian justice system. Retaining the best of the liberal tradition (free speech, civil liberties, etc.), a socialist legal system would nevertheless shatter the resource imbalances of capitalism, no longer allowing the ideal of legal equality to crash against the reality of legal inequality. Likewise, the “every man an island” view of rights would give way to an understanding of rights as necessarily social. As Sypnowich puts it, “human rights therefore cannot be reduced to instruments for asserting individuality in the face of the incursion of social life, since social life constitutes the ground for the emergence of a person who can claim respect for his autonomy by means of rights.”
Socialists have good reason to reject an all-powerful state. But we can also acknowledge what Justice Robert Jackson evoked during the Nuremberg Trials: that to stay the hand of vengeance and submit our inevitable conflicts to the judgements of a just legal system would be a great tribute in power paid to reason.