Date: Tue, 6 Jan 1998 20:45:02 -0500 (EST)
From: Justin Schwartz <jschwart-AT-freenet.columbus.oh.us>
Subject: M-TH: The law and socialism



Unlike Boddhi I don't think the capitalist state can be bent into a
socialist plowshare, even though I agree with him that a socialist state
will have a lot of law that looks formally like the law of a capitalist
society. Whether the economy is planned or market, there will be a place for
promises that are enforceably in court, thus contract law; for
noncontractual duties violations of which individuals may seek remedy,
hence torts; some assignment of property rights, hence property law,
etc. (Though Anglo-American property law involves a lot of meieval
mysticism, especially about Land.) Many of the details of much of existing
law are pretty good in working out problems people will face in any
advanced industrial society 

That said, there's no reasonable prospect that socialism can be created by
electing socialist legislators and passing pro-worker laws, or merely by
doing that. The reason should be obvious. If the ruling class finds its
prerogatives seriously threatened, they will defend them with all the
means at their disposal. If they cannot rely on the law, they will go
outside it. The fate of Salvador Allende stands a asa  constant warning to
allmerely constitutional socialists. Nor should anyone think that one can
sort of sneak socialism by the ruling class without their noticing it.
They are extremely alert to the slightest limitation on the power.

All that said, Boddhi asks me what legal changes I might want to make in
our present law. Well, therea re two sorts of changes. One concerns
reforms in capitalism and the other fundamental changes that could only be
realized with the political defeat of the ruling class and the ascension
to class power of the working class.

As to reforms of the first sort, I suppose we can all formulate a lot of
pro-working class demands. A guaranteed annual income. In America,
natioanl health. Real protections for unions, inclusing an end to
permanent strike replacement and the right of unions to force bargaining
over management prerogatives, the allowance of seconfary boycotts and
picketing. A national just-cause standard for termination and an end to
employment at will. From Boddhi's and my market socialist perspective, I'd
add, encouragement for worker's self-manangement, cooperative ownership
and the like.

As to revolutionary changes of the second sort, one would require a
constitutional amendment analogous to the 13th amendment, this one
banning wage labor. One would need some legislation that determined the
status of appropriated productivea ssets and other laws buolding in
encouragment for self-management. Some sort of national bank and credit
system would have to be created to replace private capital markets. The
details of these things are exercises in model-building that I don't want
to get into here. I think that would esatblsih the basic legal framework
for socialism. But writing law, even constitutional law, is the last act
in the revolutionary play. First you have to win the fight.

--jks

On Tue, 6 Jan 1998, boddhisatva wrote:

> I think that the capitalist legal structures are important, even vital
> infrastructures for socialism.  I have hoped in the past that with the
> addition of some important modifications concerning the way property is
> protected and some new public credit institutions, the capitalist state
> could be bent into a socialist plowshare (the American one at least).  Of
> course that thinking is a bit self-consciously naive.  Without going into
> a detailed outline of your conception of the socialist state, what
> fundamental changes to our present structure do you imagine necessary to
> set capitalist law on the right road?  If you can, articulate them in
> terms of our present constitution, etc., and simply blame me if that makes
> you sound reformist. 
> 
> 
> 
> 
> 	peace
> 
> 
> 
> 
> 
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