The injustice of these practices may prompt the conclusion that law had indeed ‘withered away’ in the Soviet Union, though not in the sense forecast by Marx and Engels. (55)
The Left is re-awakening. Alternating and sometimes dueling rhetorics both obscure and evince something like an identity crisis. Who are we, exactly? What makes Left-politics, Left-politics? Whatever else the ‘Left’ might mean, the only node of relatively uncontested agreement seems to be on who are not.
A few points seem clear: neither the riskless ‘militancy’ of lifestyle politics, nor the crankiness of elderly Leninists have succeeded in stemming the decades-long decay of the welfare-state, unions, etc. Why?
If we set aside Left-liberal contributions, the Left today has largely constituted itself by posing a peculiar, contentious, and unstable rapprochement between Nietzsche and Marx. While the ‘Marxism/postmodernism’ debate is no doubt tedious, it is interesting what partisans have in common. For all their antipathies, the feisty Germans coincide on at least one central point: the fundamental nullity of law and morality. What binds the Left together is the rejection of a series of abstractions: we are against “capitalism,” against “governmentality,” against “the state,” and against a variety of other names alleged to capture the contours of a purely negative and inscrutable whole.
Enter Christine Sypnowich, and her Concept of Socialist Law (Oxford University Press, 1990). Published just as socialism passed into history, Sypnowich performs a serious attempt to construct a socialist theory of law. Yet her work seems especially relevant to our time. We have to move beyond incessant bitching to win over the masses. A reconstructed socialist movement will require an intellectually and practically serious alternative. However, one might ultimately asses her proposal, Sypnowich’s work is worth renewed attention for this reason.
Capital is an inherently relational and international phenomenon, and only multi-lateral global governance can tame the beast. If this is true, serious socialist struggle cannot avoid the theory and justification of the democratic state, of republican institutions, and of the normative bases for local and international self-governance — especially its legal dimensions. Sypnowich invites us to think the law in the context of socialist commitment, and in such a way that fully reckons with past mistakes.
Your book was published on March 22, 1990, four months after the fall of the Berlin Wall and just ahead of the collapse of the Soviet Union. You are perhaps the most tragic living example of scholarly misfortune I’m aware of. History seemed to remove the conditions for a wide reception and discussion of your book. Did you participate in the joy felt for and with the citizens of the socialist block? As a then young scholar, how did all of this make you feel?
The significance of the collapse of the Soviet Union for Western Leftists is complex. Whilst few would defend the authoritarian and repressive regime of the Soviet state, the USSR played an important, symbolic role as an alternative to Western capitalism. And in the 1980s, with the coming to power of the democratic reformer, Mikhail Gorbachev, who was nonetheless an established and high-profile Soviet Communist, there was real hope that a democratic socialism might be in the making in Russia. So I don’t believe that ‘joy’ quite captures the feelings of Leftists when the Soviet Union toppled for good. The egalitarian philosopher and analytical Marxist, Jerry Cohen, put it well in an essay he wrote back then:
It is true that I was heavily critical of the Soviet Union, but the angry little boy who pummels his father’s chest will not be glad if the old man collapses. As long as the Soviet Union seemed safe, it felt safe for me to be anti-Soviet. Now that it begins, disobligingly, to crumble, I feel impotently protective toward it.
So there was a real sense of loss among democratic socialists in the West when the Soviet Union came apart. Many Russians have turned out to be not so joyful either. The fall of the USSR has not brought prosperity or freedom to most people. Indeed, the fate of the former Soviet Union, as it faces the plunder and privatization of its community resources by the powerful, has revived the socialist ideal as a moral compass for many Russians who actually express nostalgia for the Soviet era. I think a feeling of betrayal among Russians, who feel they were sold a false bill of goods with the fall of Communism, goes a long way to accounting for Putin’s popularity, however perverse that might seem. Of course, it is one thing to believe in the socialist ideal, quite another to yearn for an authoritarian egalitarianism rationalized by an aggressive form of nationalism – but I think Russians have a genuine sense of regret that is easily manipulated by the current regime, and which people in the West have difficulty making sense of.
As for whether my book’s publication was a tragic example of scholarly misfortune, I didn’t see it that way, to be honest. After all, the idea of legality was still misunderstood and underappreciated in Left-wing circles after the fall of Soviet Communism. I didn’t think that ideas like the rule of law and individual rights were going to suddenly emerge out of the ashes of the Soviet state. Indeed, such ideas continue to elude the countries of the former Soviet bloc, where the idea of procedural constraints, rights for accused persons, clarity and openness in the law, still struggle to get a foothold. One of the cardinal principles of legality is the idea of procedural constraints, that law should be open, public, non-retroactive, clear, etc. On this view, however laudable your ends – just, egalitarian, radical – they cannot be pursued by any means.
The principle of legality can render your ability to achieve various social goals cumbersome or difficult, or thwart them all together, and that is proper and fair. That is a lesson from which impatient social reformers, be they in Russia, South Africa, Cuba or Canada, can learn. Indeed, talking to friends in Russia, progressive socialists who are sophisticated people in many ways, I was struck by how they didn’t ‘get’ proceduralism. They continued to talk about how one should use various nefarious means to get things done – and of course, in the new Russia, it’s reasonable to suppose that that’s the only way one can get things done! Given all this, making a case for law within a context of utopian ideals and progressive politics remains important. I think American triumphalism about the collapse of communism has only obscured the difficult task of building a democratic society founded on the rule of law and individual rights. That task remains pressing.
Why did you write CSL?
The Concept of Socialist Law began as a doctoral dissertation at Oxford. I chose the topic because I felt that the Left had too easily dismissed law as a pernicious feature of capitalist economic systems, something that would not be necessary in an ideal society devoid of private property, and the selfish and anti-social attitudes that property generates. I thought this view was both naïve and dangerous, and that even an ideal society, such as a socialist utopia, would need law. I also thought that socialist ideas could contribute to our understanding of law – e.g. Marxist ideas about normativity as a social practice; the role of law to achieve economic equality and community, whilst respecting individual liberty; the importance of proceduralism in the pursuit of social change.
The topic was perfect to pursue in Oxford. There I found a tradition of liberal jurisprudence, with highly influential liberal legal theorists like Ronald Dworkin and Joseph Raz on the scene. (Although no longer active, the famous legal positivist, Herbert Hart, was still alive in Oxford when I was there – he could be seen on his bicycle, cycling among the ‘dreaming spires,’ with his walking stick across the handlebars!) In Oxford I immersed myself in Anglo-American analytical jurisprudence, and came to have a huge respect for it as a rigorous, stimulating and illuminating approach to the study of ideas about the law. It’s an area of inquiry I continue to pursue in research and teaching.
Oxford University was also a stimulating place at the time for other reasons. I learned a lot from discussions with my contemporaries there, many of whom forged their socialist politics in Britain, though there were others from around the world. A group of us formed the Oxford Socialist Discussion Group, which later put on a conference and edited a book about the British New Left. And we were all abuzz about the possibility of rethinking socialist ideas in a more democratic and liberal direction. Ideas like market socialism, civil society, rights and law, were all being discussed with a real sense of excitement and urgency. Britain at the time, with Thatcher in power and the miners’ strike raging, was undergoing a lot of soul-searching about the future of the Left. And the rise of Gorbachev in Russia suggested that what was called ‘socialism with a human face’ might in fact be possible. So it was a good time to be thinking about socialist law.