Socialist Legal Theory

I've never seen this mentioned here in my short time on this board. I'm no expert, and I don't know about the law in any countries outside of the US, but the legal system here is probably the biggeststronghold of liberalism. It's full of faggots who love procedures and leak precum every time someone says πŸ‡¬πŸ‡§πŸ‡¬πŸ‡§πŸ‡¬πŸ‡§reasonableπŸ‡¬πŸ‡§πŸ‡¬πŸ‡§πŸ‡¬πŸ‡§
I imagine in Canada and western Europe it's not a lot better. It seems like this is a huge barrier to socialism. It's clear that socialism would at least be incompatible with US law.
Obviously the more intelligent among you realize that we won't immediately transition to a society where we don't need a legal system. How do you create a "socialist" system of laws? How do you apply it in a country where famous legal figures are known for applying B A S I C E C O N O M I C S to law?
Books on how MLs have structured their legal theory in the past would be cool too.

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The punishments for everything is probably very similar. Socialism will just take money out of the equation, as well as corruption and bureaucracy. Finance is where things would drastically change.

A drastic change in finance will drastically change how the law must function. How should people compensate each other for negligence claims? I might no longer need to pay for a new house if someone negligently burns mine to the ground, but I still might want some form of compensation that they won't give me without coercion. When should manufacturers pay users of their products for injuries caused by defects? We answer that question now essentially by an extension of bourgeois economics.

Even if we keep the punishments the same for crimes, will we use the same reasoning to determine when people are guilty? The ghost of 500 year old Anglo haunts criminal law analysis. It relies on viewing people in the abstract to such an extent that you have to beat a lot of it just to make it seems fair within contemporary liberalism. It should be scrapped.

Who will argue in courts and how? Lawyers and judges, who will have to be retrained or replaced to be useful assuming we don't scrap the idea of lawyers and/or judges entirely, rely heavily on cases to support their reasoning. Has there been a legal system in the past that is similar enough to a proposed socialist legal system to have useful cases?

This is also assuming that there are lawyers and judges clamoring to support a socialist legal system. There aren't. They love liberalism.

These are just a few of the problems I can think of. Some of them have simple solutions, but they seem worth considering.

I'm in first year law school right now and I've met more leftists than I did in my undergrad. There's a good amount of people who identify as socialist but they are very much anti-communist, have swallowed liberal critiques of the USSR, and have mainstream views on foreign policy. Most also reject planning or mass expropriation so I don't really know in what manner they are calling themselves socialist, but people are generally open to leftist views.

Property law definitely drives home some pretty pro-capitalist viewpoints ("private property is the engine of prosperity and guarantee of individuality") though I was actually pleasantly surprised how much private property was acknowledged to be a social construct which depends on the state for its maintenance.

One thing I will say is that every thing in law school is geared towards increasing your respect for the system. You are taught to view the bourgeois electoral system and judiciary as sacrosanct and there is a lot of circle-jerking about their necessity for societal stability and prosperity. I've noticed myself becoming less and less anti-system throughout the course of the school year and have even started drifting towards a more "democratic socialist" ie mean using the currently existing state machinery for anti-capitalist purposes inb4 1 million dogmatic faggots tell me to read State and Revolution. I feel some of this is just based off getting older and recognizing that there is zero revolutionary potential in the west.

There is also the added factor that in my country law school is essentially a ticket to getting a well paying job so that obviously colour's people views (including my own).

I've been toying with some ideas around enshrining positive rights (housing, healthcare, food etc.) in the constitution and then using the judiciary as the guardian to prevent backslip on social-democratic reforms. Ultimately though this seems kind of pointless as if you have the political power to change your countries constitution you might as well just go all the way and break the ruling classes power in one stroke.

Actually read state and revolution

"The General Theory of Law and Marxism" is a book that should be exactly what you want. By the soviet legal scholar Evgeny Pashukanis.
Here, the book on a particularly weird format:
Not sure on where to go from here, I know there are more than just a couple of brazilians lawyers and academics using marx and marxism as their main theory. Marcelo Gomes Franco Grillo and Alysson Leandro Mascaro are two names that come to mind.

Absolutely nothing has made me give up on democratic socialism more than going to law school. The aversion to helping people unrelated to you has probably been enshrined in American and English common law for centuries. I'm not holding my breath waiting for long-term social democratic reforms.

This is great, thanks!

I have, I just don't really think its as relevant today as people think it is. I understand how capitalists are able to manipulate parliamentary electoral systems, but I just don't really buy the idea that this makes them entirely irredeemable and necessitates smashing them. I also view the prospect of doing this as completely unrealistic in the advance capitalist countries. Electoral politics are the path to socialism in first world countries.

I still think that there will be some kind of rupture which will likely result from a bourgeois counter-attack, but this will place us in a position where we can portray ourselves as the defenders of democracy. Basically I want to do what Allende did, but better prepare for the counter-attack and defeat it when it comes.

I think Communists are way to dogmatically attached to leninist principles in general. We should view lenin's analyis of the state as reflecting the character of particular state's at a particular moment in history, not as some immutable truth. This article sums up my thoughts on State and Revolution well:

Forgot article,

The law is part of the superstructure. If changes to the material base of society are carried out by social movements, trade unionists, or socialists seizing state power changes to the legal system will follow. The idea that common law is based on precedent, is pure bourgeois ideology meant to make people venerate and respect the law. The law reflects the balance of social forces within society.

The common law has changed in the past in reaction to social movements. Think about how much minimum wage, child labour, or overtime laws violate the dogmatic adherence to freedom of contract found in classical contract theory. Legal scholars claim the change resulted from new theories and creative interpretations of precedent but in reality there hands were pushed by working class institutions. The labour movement and social-democratic politicians caused those changes to the common law and we can cause similar ones by altering the balance of class forces within society.

OK, so you ALSO need to read Left Wing Communism and Infantile Disorder. Lenin was absolutely emphatic that socialists needed to participate in reactionary parliaments.

So you are implying the Dictatorship of the Proletariat will follow the word of law. It won't. Guns will rule for a short peroid of time, after which we will write our own laws, just as the founding fathers of the US constitution did. Its a pretty simple recipe for creating a new society and new legal system.
At this point the amount of law necessary to govern some pretty mundane aspect of our lives is incredible. We have laws which regulate the laws which regulate the laws by which we give up some of paycheck by law. Its insane. Nevertheless these laws are framed by the current system, that is, captialism and the liberal system that allows it to exist. Most of these systems will become obsolete if capitalism is directly opposed by force.

Even just transitioning from punitive to restorative justice would be hard for most people given how much kool aid the west has drunk on the subject. But as for punishment, the socialist answer would almost certainly involve labor as public service. That kind of thinking would make it easier to transition toward the idea of having criminals make up for whatever they did. Right now people are still very big on "lock 'em up and throw away the key" so that's not an easy change to make. There's a sort of social darwinist outlook embedded in law where if you fuck up (and technicalities are sometimes as bad as malicious intent) you "lose" and need to be punished. The whole concept of western law is rooted in Christian morality, which would also have to be challenged. This kind of stuff can take generations.

Isn't it rooted in the roman law more than any sort of Christianity? Last I remember reading about it the christian aspects of it were more secondary while the aspects that came from the romans were more central to how the west sees the subject and its social relations.
I'm not a lawfag, just picking up from what I've read.

She's mine

His "principle" is pragmatism. Something that all Communists should be in any circumstance. The article claims State and Revolution doesn't adhere as strictly as possible to Marx and Engels, but then who is to say that people like Luxemburg, Althusser, and many other Marxist theorists are now uncredible because of their different insights? There is a difference between a vulgar interpretation and a visionary rethinking. Lenin broke against the traditional communist praxis and intellectual current by doing what he did in Russia and it is at his level of analysis that many of his admirers hope to achieve.

A socialist society can only have code law, common law is inherently reactionary and unscientific. There is nothing wrong with the corpus iuris civilis per se, it's transhistorical and is the basis for all the best law codes in Europe. Just restrict rights in rem to personal property and outlaw wage labor. Done.

The Roman Empire and Christianity are intertwined. I'm not an expert either, but I'm sure there's significant influence there. My larger point is that our ideas of law and order are based on entrenched cultural beliefs that people strongly identify with and believe in, so that's not easy to up and change.

The Pandects are all coming from the pre-Christian period. It's true that the corpus iuris civilis was composed under Justinian, but the source material is much older.

You are correct insofar that the middle ages had the ius commune, a mixture of Glossaries commenting on Roman Law, Canon Law and customary law. Christianity did have a influence there. ius commune was replaced with attempts in the enlightenment to create some sort of empirical natural law, which was somewhat of a lackluster. In the 19th century, the Pandects were rediscovered and modernized and today we have a revised version of the codex iuris civilis with some injections from the historical school.
Mores and customs are part of the culture, but law is often too complex to be understood by laymen, therefore not really part of our cultural identity.

I'm agreeing with the tone of the article that socialist law didn't exist - and I'm totally fine with that. Commonly owned means of production do not require to reinvent the wheel, in legal terms. The overhanging apple tree dropping fruits into the neighbour's garden still evolves arround the same fundamental property issues.

Interesting post!
Surely aspects of the legal system are part of the culture. Americans love to say "we're a nation of laws" and talk about "rights" and some parts of legal procedure. Media surrounding the legal system is very popular and ingrains certain views into the culture.

If I wanted to read Marx and Engel, I would read Marx and Engels. I must admit this is a pretty hilarious take from an admitted socdem. Socdem politics are absolutely pants on head retarded and you shouldn't be one. There have been ZERO revolutionary production changes through democracy, and any attempts have failed.
Also, stop Reddit spacing, I swear this please is 60% Reddit or right now.

I think this is one of the biggest difference between common law and civil law (Roman Law), it's engraving in culture. Common law is designed through jurisdiction which reflects customary and cultural development, while Roman Law is a detached, almost cold underlying force that has been developed independently of cultural mannerisms, mostly.

Like, a case of actio de in rem verso (enrichment without cause) would be solved 2017 in similar ways as it would be in the early Byzantine Empire. However, I don't think anybody would want to apply Alfred the Great's Doom book in modern times. That is of course a bit of an exaggeration since, especially due to the invasion of the Normans, common law does have some Roman influences, but they are quite mutilated, as the system is based arround case development and not abstract dogmatic. Civil Law has the claim to be universal, and has done a good job in doing so, it can solve credit card fraud with the same old principles with a few addendums.

Who is she?

qt antifa


There's a difference between the conception and application of laws (lets call it the legal framework) and the actual legislation itself. In America, the latter will obviously protect private property above everything, and overall favor Porky. The legal framework, however, ought to be largely possible to be adopted in other countries, and ditto about other countries' here.

Strangely enough, the problem with the USSR's legal system wasn't the legislation, but the framework. The laws by themselves would make you think a communist utopia was right around the corner. Even during the depths of Stalin's anti-religion bouts of persecution or during the purges, the constitution said every Soviet citizen has full freedom of religion, expression, assembly etc. In effect, many rights were dead letter, and application of specific laws depended a lot on external factors, such as some higher authority breathing down the neck of a judge, or the local head of the party making false political accusations because you took apples from a tree you didn't know was in his front yard. In simple words, there was little to no rule of law and due process. Yes, I know the law in a pro-Porky cpuntry is a mess even in the most developed countries, but they're positively utopian compared to countries with weak rule of law. No doubt someone will claim that rule of law and due process are bourgeois spooks or some shit, but fuck that. Those concepts are fundamental to any civilized country.

As to why they were so lacking in the USSR, it goes back to Lenin's desperate and ruthless measures to get the country through civil war, and Stalin nabbing it and cranking it to 11. Revolution and war are the exact situations where rule of law and due process die the fastest, so it was inevitable that Lenin's rule would be less than democratic, but the real issue is that Stalin had no qualms about keeping those exception measures and enshrining then as both State and communist dogma. And perhaps even worse, he dressed that wolf in a sheep's clothing, maintaining legal tropes (like the enlightened constitution) and intellectual backing (Marxism-Leninism was largely his doing). So here we had a country that proclaimed constantly to be the most free on Earth, despite the extremely arbitrary action of the authorities. This duality is part of what inspired Orwell's doublethink.

I think the perfect demonstration of this was the article 6 of the 3rd Soviet constitution. The previous pages had been enumerating all the beautiful freedoms and rights of every Soviet citizen, then article 6 makes them largely moot. It was essentially equivalent to that clause in every EULA you ever saw that says "PorkyCorp reserves itself the right to apply or ignore those rules as it sees fit". Honestly, this was an improvement, because at least they were making explicit what used to be purely informal and unspoken.


Altho Stalin's opportunism is a fundamental part of the unreliability of the Soviet system, part of it might have been rather accidental products of their time and place. Firstly, the way Lenin hastily cobbled together a government structure, he just plain didn't include the concept of separation of the 3 branches. Most glaringly, the judicial system was subordinated to the Supreme Soviet, the putative highest legislative body. And I need barely mention what a Byzantine mess was the rest of the party-State. Secondly, as part of their interpretation of socialist doctrine and/or necessity of the moment, they instituted a legal dogma that placed the workers' State as the source of rights and freedoms, thus some excuse or other for protecting the revolution, however vague, had priority over the accused's civil rights. By contrast, the American legal dogma is that the State should protect the citizenry's rights and freedoms from both private and public threats, including from the State itself, which actually is possible if there's separation of powers and healthy checks and balances. In other words, the accused's rights are supposed to have priority over not only State interests, but over finding out the truth, for example.

Now there's a couple of quotes that I've never been able to source again that I read a while ago. One was in the porkiest weekly magazine here, which said that an early Soviet judge put into words the communist legality: socialism isn't the triumph of socialist laws over bourgeois laws, but rather, it's the triumph of socialism over laws. I place very little trust in that magazine, but to be honest, it does sound like the sort of thing Lenin would write in a memo and would seem sensible in context but sounds evil if read isolated. The second quote is I think from Moshe Lewin's (highly recommended historian, by the way) The Soviet Century. He spoke of a latter Soviet judge who pefectly summarized not just the Stalinist approach to the law but to everything: "It's always someone's fault". You tell me that isn't a fucking perfect authoritarian slogan.

Lastly, China Mieville's PhD thesis happens to be a proposal for international law based on th works of a Marxist Soviet jurist. I haven't read it tho. You can probably find it on Libgen.

what does this word salad even say, aside from 'State and Rev is only applicable to the particular historical context' (for which no evidence or basic reasoning is given in the passage)?