This post will be one in a series I am planning to write about how socialist1 and ultimately communist2 ideas could provide answers to basic concepts in society; in other words this week, I will talk about what in practice would the rule of law look like in a socialist society. I will use concepts I come across in my study Criminology and Psychology and connect them to a socialist viewpoint and compare it to the current situation in the world.
What is the rule of law?
To start unpacking this question I will start with explaining what the rule of law is. The rule of law is the principle that society should be governed by predictable laws that are enforced fairly and that nobody is above the law (Bloom, 2019, p.1). A socialist society is based on a democratically planned economy characterised by public ownership of the means of production. A short explanation of what this means in practical terms you can read in this article by Hannah Sell, General Secretary of the Socialist Party of England and Wales.
At the moment, under a capitalist for profit system the rule of law is everything but equally applied to all. The most powerful in society which often are also the richest are the people defining the law, executing it and also occupy the seats in the judiciary. Legal philosopher Lon Fuller thought of 8 principles which can test ‘the inner morality of the law’ as he put it (Fuller, 1969) as cited in the Open University (2019, p. 5-6). These 8 principles are:
- There must be laws – if there are no laws society could not be governed.
- People need to understand what the laws are.
- When laws are made, they should only apply from the time they are made, not retrospectively.
- In order to meet the demands of the law, it must be clear what a person can or cannot do.
- The set of laws must be internally consistent – for example a person should not simultaneously be forbidden from earning money and be required to pay a fine.
- It has to be possible for a person to obey the law.
- The law must not change too much.
- Laws must be implemented as they are written (there must be ‘due process’) – there must be an impartial process to determine guilt and what has to happen as a result according to the law.
These principles can also test a system to see if it is governed by the rule of law. That being said, it is in many states the case that the law is unjust and even a whole system of laws are unjust, like in the case of ‘apartheid’ in South Africa (Bloom, 2019, p. 17). It can be argued that the rule of law can never be just in a capitalist system which is run in the interest of a few by exploiting the many. In a socialist society the situation would be very different. Socialism is based on equality and to develop society for everyone to be the best of their ability. There would be no profit to be made, production would be to meet the need of society and to the best quality possible. Every aspect of life would be approached to reach the best possible result for everyone.
Social murder – social injustice
Friedrich Engels (1845) wrote in his first book ‘The condition of the working class in England’ about the concept of social murder, which he argued is the result of the conditions in which people are forced to live resulting in inevitable premature death – social murder by the state. If you think about this in relation to the rule of law, a similar situation can be noted. If the power to occupy the seats of the 3 branches of law – legislative (people writing the law), executive (people executing the law), and judicial (people deciding upon disagreements in the law) lie largely by a small, rich and powerful group in society, it is not very likely the law will be just and equally applied to all. So to convert it to Engels example, the working class are forced to live in conditions which disadvantage them to have the law applied fairly, simply because the poorest, least powerful don’t usually occupy seats in those 3 branches of the law. And additionally, this also means that the most powerful in society often don’t get prosecuted, or held to account by the law, and even get away with murder. Actually, it is likely that those with the power to create the law, will do so in their own interest.
Working class rule
In a socialist society I can imagine that everything, including the rule of law are subjected to the scrutiny of the people, and that the people will collectively debate them and vote for or against them. The working class will rule and every position of power is subjected to immediate recall and mandatory reselection on the basis of collective democratic debate, amendments and discussion. Every workplace and community will have committees in which everyone can take part, and who will elect representatives who will go to regional and national congresses where decisions will be made through democratic votes. The representatives will vote according to what their committee has democratically decided on. So law will be made this way, and the three pillars of the rule of law, legislative, executive and judicial will be organised like this too. Judges will be replaced by justice committees, lawyers will be replaced by advocacy committees and their members will be democratically elected on expertise and experience by the community and be subjected to immediate recall and mandatory reselection.
Criminal law has long been used by the state to control its population, especially its poorest and most disadvantaged citizens argues Hall (et al., 1978) as cited in the Open University (2019, p. 134). But when the state is run by the working class and society is no longer dominated by a capitalist, for profit economy but run in the interest and to the benefit of the people according to their needs, every aspect of life will change, including the rule of law. People will no longer have to compete for the necessities of life or for work. People will only be required to work 3 or 4 days a week and have more time for family, hobbies and study. More emphasis will lie on enhancing everybody’s life and immediately living standards will be raised. And as lots of research shows, poverty and inequality are the main drivers of crime. As Messner and Rosenfeld (2013: 4) observe, ‘Whether we look at official statistics on arrest and incarceration, self-report studies of criminal offending, or surveys of crime victims, the same pattern emerges: lower socioeconomic status is associated with greater involvement with the criminal justice system, higher rates of criminal offending, and higher rates of various forms of victimization as cited in Newburn (2016).
In the process of realising a socialist society the biggest threats are posed by corruption and counter revolutionary elements in the first phases of the socialist revolution. ‘Although the [German] workers cannot come to power and achieve the realization of their class interests without passing through a protracted revolutionary development.. Their battle-cry must be: The Permanent Revolution‘ (Marx, K. and Engels, F., 1840) as cited in Blain (2006). This concept of permanent revolution is key, as people need constant education on how to maintain a successful society in the interests of the working class, and a socialist revolution can only be successful if it is international.
Yes, it certainly is hard work, and no easy shortcuts can be made to achieve it. Human beings always try to take the way of least resistance, hence why first all other options need to be tried and tested out, before the road to socialism will be taken.
Bloom, T. (2019) ‘Contesting the rule of law’, in Bloom et al. Introduction to Criminology 1, Milton Keynes, The Open University, pp. 1-127.
Engels, F. (1845) The Condition of the Working Class in England, Oxford, Oxford University Press (this edition 2009).
Hall, S., Critcher, C., Jefferson, T., Clark, J., and Roberts, B. (1978) Policing the Crisis, London, Macmillan.
Newburn, T. (2016) ‘Social Disadvantage, Crime and Punishment’ [Online] Available at: https://eprints.lse.ac.uk/68133/1/Newburn_Social%20Disadvantage%20and%20Crime.pdf (Accessed 21/01/2021).
Blain, A. (2006) ‘Address of the Central Committee to the Communist League’ [Online] Available at: https://www.marxists.org/archive/marx/works/1847/communist-league/1850-ad1.htm (Accessed 21/01/2021).
1 Socialism is the pre-stage of communism which can be achieved using the Transitional Program (Trotsky L., 1938) after the taking of power and control over the means of production by the working class through revolution. It is not possible to achieve socialism in one single state, so in its core it is internationalist. When I write about socialism/communism I refer to the ideas of Marx K. (1818), Engels F. (1820), Trotsky L. (1879), and Lenin V. (1870).
2 Communism is the ultimate dictatorship of the working class in which a democratically planned economy based on the public ownership of the means of production is established and the highest form of living standards for its people is achieved. Communism is only achievable after a socialist state is established and is at its core internationalist.