Working on the sequel

It is fair to recognize the difficulty and the immensity of the tasks of the revolution that wants to create and maintain a classless society. It can begin easily enough wherever autonomous proletarian assemblies, not recognizing any authority outside themselves or the property of anyone whatsoever, placing their will above all laws and specializations, abolish the separation of individual, the commodity economy and the State. But it will only triumph by imposing itself universally, without leaving a patch of territory to any form of alienated society that still exists. There we will see again an Athens or a Florence that reaches to all the corners of the world, a city from which no one will be rejected and which, having brought down all of its enemies, will at last be able to surrender itself joyously to the true divisions and never-ending confrontations of historical life.

A question about law and communism. (This will be a fairly specialised post, I’ll warn you now.)

The other day I was reading Donald Black’s 1983 paper “Crime as Social Control”. It’s a terrific piece of work, a real complement to the unpacking job done ten or twenty years earlier by writers on the sociology of deviance. Black argues that much of what we see as crime can be understood, ethnographically, as informal means of regulating deviance: many victims of theft, assault and even murder are being punished, in the eyes of the offender, for offences not controlled by the criminal justice system. This doesn’t mean that we should endorse these forms of wild regulation as just; they are quite likely to be unjust in both procedural and distributive (outcome) terms. But to conceive of them as forms of regulation (or ‘social control’ in Black’s preferred terminology) does at least make them more comprehensible – not to mention opening up some interesting questions about legitimate and illegitimate forms of regulation.

So I was nodding along pretty enthusiastically to Black’s paper, but then I was brought up short.

A great deal of the conduct labelled and processed as crime in modern societies resembles the modes of conflict management – described above – that are found in traditional societies which have little or no law (in the sense of governmental social control)

Hold on: “law (in the sense of governmental social control)“? Can that possibly be right?

That’s not the question, although it’s related. The question is: in formal terms, how would communism change the law? Obviously the law would no longer have any call to do certain things; property law would be out of the window for a start, and I imagine that most of the criminal justice system would wither and die in very short order. And no, to the extent that the law represents governmental social control, well, there’d be none of that, for obvious reasons.

But does that dispose of the law? I’m not at all sure that it does.

From this equality of ability ariseth equality of hope in the attaining of our ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their end (which is principally their own conservation, and sometimes their delectation only) endeavour to destroy or subdue one another. And from hence it comes to pass that where an invader hath no more to fear than another man’s single power, if one plant, sow, build, or possess a convenient seat, others may probably be expected to come prepared with forces united to dispossess and deprive him, not only of the fruit of his labour, but also of his life or liberty. And the invader again is in the like danger of another.

I’m not bringing in Hobbes as a knockdown argument against communism – that would just be a more sophisticated version of “but people aren’t like that“, the eternal stupid Tory argument against teenage utopianism (not that I’m still bitter or anything). I do think it’s possible to envisage a world in which nobody spent their time endeavouring to destroy or subdue one another. But what I think Hobbes does put his finger on, almost in passing, is scarcity: even if nobody owns anything, there will still be a book you’re reading that I want to read, an artwork I’ve been given that you would have liked on your wall. Most of the time we’ll be able to sort everything out amicably – probably through some of those interminable meetings that communism is going to be so good for – but at some point there will be differences of perspective that can’t be resolved; at some point there will be conflict.

And what do you want to deal with conflict? What you want, it seems to me, is a book that reminds us how we deal with certain kinds of conflict, and somebody who’s good at reading that kind of book. Obviously it can all be opened up – the role of book-reader can rotate, or be open to whoever wants it, or be open to recall; the book can be updated, if we can agree on an update (and if we can agree on the conditions under which an update is applied, and for that matter on the conditions under which a discussion like this can be halted before we end up in a game of Nomic). Perhaps you don’t even need a reader. But you’ve still got a book that embodies elements of the experience of a community, in the form of statements that the community now defers to. You’ve still got law.

If I try to imagine a community without law, in this strong sense, I can only imagine a community without a past: a community whose life was made up as it went along. It sounds like a nice place to visit, but could you really live there?


  1. Posted 29 February 2008 at 02:52 | Permalink | Reply

    Funny, I’ve never really thought too deeply about the higher stages of communism. We shall have to wait and see… My guess is that personal property will remain. (You’re not taking my books Phil!)

    As for law, the primitive communist societies we can examine have customs, protocols for dispute resolution. A form of law in that rules exist between individuals.

    Think of it in terms of class – under capitalism, there are laws favouring capitalists and inhibiting the collective action of workers who create the wealth appropriated by capitalists. Under socialism, this kind of theft is illegal and laws favour workers over expropriated capitalists – it is not possible for them to seek redress because private ownership of the means of production is no longer a legal concept.

    As for the inequalities existing under capitalism and persisting under socialism, these must have “withered away”, along with the state as an instrument of class rule, by the time we can say communism has been reached. This epoch does not mark the end of law, but rather the reality of “equality before the law”.

    Whatcha think?

  2. Jussi Jalonen
    Posted 29 February 2008 at 11:53 | Permalink | Reply

    At the first glance, Phil, the model society with law that you just postulated would seem to include exactly that, “governmental social control”.

    Even a unanimous vox populi of the community is still just one form of government, implying by definition and by necessity a strict social [self-]control from the community.

    Same goes for this supposed relying on a Codex of Ultimate Wisdom as the guideline of the community. Especially if it can be “updated if we can agree on an update”. What’s this, not only have you proposed the continuation of law, but also _legislating_?

    And it gets even better. “Agreement on the conditions under which an update is applied, and for that matter on the conditions under which a discussion like this can be halted”. Ah, a _legislative procedure_!

    Basically, you’re back to what we’ve seen already. You’ve still got law, yes. And in the model that you proposed, you’ve still got government, you’ve still got social control, and you’ve still got governmental social control.

    Of course, this doesn’t seem like a bad deal; after all, it’s a time-tested model. So, I take it that it’s exactly how you’d prefer it to be?


    J. J.

  3. Posted 29 February 2008 at 20:54 | Permalink | Reply

    Jussi – you’re closer to my starting-point than you probably realise. (Although I’m still not convinced that the kind of society I’m envisaging would have anything we’d recognise as government or control…)

    Charlie – yes, that sounds about right. Obviously in practical terms it’s a wait-and-see question, but I think the ways we imagine utopia have some interesting implications for present-day politics. Thinking of law as constitutive of human society – in a way that policing, for example, isn’t – would among other things have the significant corollary of changing the way I feel about teaching in a Law School… (Not that I feel particularly negative about it as things stand.)

    Anyone else want to come in? Chris, are you out there? I thought this entire post was Rob-bait, but maybe I’ll have to ping him.

  4. Posted 1 March 2008 at 02:23 | Permalink | Reply

    Indeed the entire post is Rob-bait, but I have been annoyingly busy this week. My first point to note is that I’m interested to see you have a positive opinion of Black. A lot of the stuff I’ve read from the 70s and 80s really seems to be opposed to Black’s sociological project. In terms of the substantive issues that this post raises, well, I agree with you on one level, but disagree with you on another.

    I certainly agree that a communist society would need a way of resolving conflict, coordinating interests etc., so we do need some form of ‘social regulation’. My question is whether we would call this ‘law’. In a way this is a bit of a dry, abstract question – if something gets called ‘law’ by its practioners/adherents etc. who are we to judge it. But I do think it is important for us to understand the degree to which communist social regulation would share in the characteristics we think of as ‘law’ today.

    So, some scattered thoughts on this question. Firstly, I would imagine there would be much less need for conflict resolution, insofar as scarcity would not be so much of a problem. To take your example of a book, I would hope that electronic paper etc. would be more readily available, as would the internet (I am a bit of a progressivist technophile I’m afraid).

    Secondly, I tend to think that law is a specific form of social control, one in which the control is rooted in the regulation of the claims of abstract, formally equal subjects, who are regulated by equally abstract rules. So, I think that the system you describe isn’t a legal one, or – to put it more accurately – it doesn’t capture the specific ‘legality’ of the law as we know it today. Now this is something which I think we might argue you about – particularly as you come at law from a more sociological angle than me – and this argument could be quite fruitful. So when Charlie says:

    As for law, the primitive communist societies we can examine have customs, protocols for dispute resolution. A form of law in that rules exist between individuals.

    I disagree with him quite strongly. I don’t think it is useful to characterise ‘rules exist[ing] between individuals’ as law, precisely because there are plently of instances in which rules can exist where we probably wouldn’t characterise these rules as ‘law’.

    Thirdly, I would stress that the democratisation of ‘the law’ as you describe it, combined with (presumably) its simplification seriously differentiates this conception from that law which came before it. Personally, I also think communist ‘law’ would be a lot more contextual and flexible then you grant it. So to take the book example it might try to locate your dispute in the wider community, look and see if there is any underlying dispute between the two of you etc. – this is a big difference from how ‘legal systems’ work today (the model I am thinking of is that of the Cuban popular tribunals).

    Hmmm. I’m aware that this all sounds a little lame, so I think I’ll return with something a little more sensible sounding when I’m a bit less tired.

  5. Posted 1 March 2008 at 10:58 | Permalink | Reply

    Rob – thanks for that; proper comment later. For now, I think ‘secondly’ is the really interesting bit; dig there.

    Black’s still going, and I’ve seen some later stuff by him which I dissent from quite fundamentally; I’m thinking of his model of a ‘pure sociology’, which I think is almost as dodgy as it sounds. But I thought “Crime and Social Control” was just wonderful, this definitional point about law aside. It probably helps that I’ve been reading interviews with gang members, who are generally quite big on c. as s. c.

  6. Posted 2 March 2008 at 00:43 | Permalink | Reply

    As I was saying… I think the point about scarcity is a bit weak – I trust Hobbes on this one more than Iain M. Banks. And besides, what if three of us are working on a project and one of us bails out unexpectedly – or, conversely, two of us want to get rid of the third, who doesn’t want to go? The lived time of a specific person will always be a scarce good.

    Not too sure about the third point, either. I don’t know about the democratisation of ‘the law’… combined with (presumably) its simplification – one thing that’s struck me since I’ve started reading legislation is that it is simple, in the sense that all the definitions, qualifications and stipulations are there in front of you. I suspect that democratisation and simplification cut against each other, anyway – how can you keep the law simple without insulating it from change? The ‘contextual and flexible’ part is a bit more interesting, and perhaps starts to overlap with the second point about abstract individuals as the bearers of legal rights. But I’m wary of the popular tribunals we’ve seen, either in Cuba or here (there have been some interesting experiments in this area, and I think this is one part of the ‘Respect agenda’ which will continue under Brown). In both cases the question for me is how the powers of the tribunal are bounded; in both cases they clearly exist within an overarching system of state social control, to which any refractory offender can be referred. What’s actually happening if (as in a case I was reading about) someone breaks a window in a pub, gets brought before a citizens’ jury, apologises and agrees to collect glasses in that pub for a month – given that, if they refused to do so, they could end up on an ASBO or a conditional caution, and if they breached the terms of those they could end up in prison? It seems more like extending the regulatory function of the criminal justice system downwards than any kind of alternative to it – which obviously makes me wonder how prefigurative this kind of model can really be.

    But I’m really intrigued by your second point. “I tend to think that law is a specific form of social control, one in which the control is rooted in the regulation of the claims of abstract, formally equal subjects, who are regulated by equally abstract rules.” I suppose the question then is, why would this type of regulation be inappropriate in a communist society?

  7. andyinswindon
    Posted 5 March 2008 at 00:56 | Permalink | Reply

    In any event, much of law is surely not “law (in the sense of governmental social control)“? anyway?

    Areas such as Tort and Contract and family law are more about providing an enforceable framework for dispute resolution seperate from the ares of “government social control”

    you might argue that contract law has more direct impact on how we live our lives than the criminal law. And even in a non commercial context where people are only morally accountable for their actions or their promises, then justice requires that there should be some consistency, and therefore issues of precedence, custom and culture arise independently – which would be law.

    For me the much more interesting question is how a communist society deals with diversity, can sub-cultures generate and enforce their own laws – how would religious minorities be allowed to coexist; or national minoritoes who choose to self-identify around different cultural norms.

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