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Eric Engle First Published ~ 2010 All rights reserved with the Publisher, including the right to translate or reproduce this book or parts there of except for brief quotations in critical articles or reviews. Published by SERIALS PUBLICATIONS 4830/ 24, Prahlad Street, Ansari Road Darya Ganj, New Delhi-110002 (India) Phone : 23245225 Fax : 91-11-23272135 E-mail: serials @satyam netinCONTENTS Foreword Rousseau, Precursor of Marx? Karl Marx’s Roots in John Locke Human Rights According to Marxism Socialist Legatism in the USSR Law and Literature in Emile Mackinnon and Marx Left Legal TheoryGoogleFOREWORD ‘This work prevents a broad overview of Marx's theory on the state and the influences Marxist theory has had on legal thought. Marxism was the largest and most far reaching attempt at fundamental systemic reform the world has ever seen, governing at one point at least one quarter of the entire planet. I started my studies of Marxism from the perspective of the cold war: all I knew about Marxism was that it was a global ideology locked in a death struggle with the United States, As I grew older I became more critical and able to assess both Marxism and Capitalism on their own terms, Here I Present a theoretical overview of the Marxist view of law and the state to show that Marxism was a critique from within liberal Western values, a deviation within an historical movement. In practice the Marxist idea of a proletarian dictatorship degenerated into dysfunction and capitalist restoration implemented by the communist party itself. The USS. did not win the cold war. Rather, the USSR lost. Soviet (mis)management was driven by fear, leading to silence, blame shifting, denial of responsibility, lack of initiative, and no reward, only punishment for those who dared to try to innovate. The involuted, defensive and paranoiac Soviet system which brought literacy to Russia and doubled its life expectancy collapsed - resulting in a drop in the average Russian life expectaney. What are we to make of the aftermath? How much of the hopes Marxism offered were lies or unrealistic or attainable? Soviet and Chinese communism alike eliminated illiteracy, elevated the status of women, ended famine and provided8 ‘Marxism, Liberalism, and Feminism basic medical care to hundreds of millions of people who would otherwise never have gotten it, How could systems which start out so successfully, working truly revolutionary social changes, so quickly grind to a halt and degenerate back into capitalism? Liberal theory argues that dictatorships inevitably degenerate into corruption and that the transition between one dictator and another is always dangerous and unstable. The Soviet experience confirms that view. Instead of creating a proletarian dictatorship, Marxism should have sought to struggle through liberalism and pluralism. Self-limiting temporary dictatorships and stable ways of transferring power probably could not have been implemented in the Soviet systems. ‘This work examines the Marxist theory of law and the state as a legal and historical phenomenon, When scholars situate Marxism correctly in its relation to the liberal theories which engendered it and examine the historical experiences of Marxism we can draw both positive and negative inspiration from the Soviet experiences and lessons for contemporary law reform. We can look at the Soviet histories for examples of both “what went wrong” and “what went right” and why. The Soviet legal system was a variant of, and not a major break from, civilianist legal systems just as Marxism itself represented not a break in Western theories of epistemology and state but rather a dialectical synthesis of prior thought by scholars well anchored in the western tradition. That is why the process of legal reform in Eastern Europe — a key aspect capitalist restoration — has gone so smoothly. From the Marxist perspective it may indicate that not enough conscious effort was made at developing Soviet Socialist legal concepts. This work sketches out the position that the Soviet system essentially mirrored the U.S. system with parallel institutions but a different set of justifications. The U.S. and U.S.S.R. were structural similar federal states, victims of fascist surprise attacks, However, they operated under differing teleologies, consequent to a different choice of the principle for the society’s distributive principle: equality for the East, liberty for the West.Foreword 9 There are plenty of productive paths for future research into Soviet/ Socialist legal history and I try here to indicate them. A more controversial and more important position I argue for is that it is wrong to equate the Soviet Socialist legal system with National Socialism. That is another reason why Soviet law and legal theory needs researched — to prevent the whitewashing of brutal failed errors in the past, to stop resurgent fascism. Of course, had national socialism not unleashed a global war it would hold a much better place in history. But then, war was built into the N.S. vision of states locked in zero sum competition for trade and territory. The pre-war German economic miracle that some do not see today but which was only too evident in the 1930s was largely the result of the secret fascist rearmament program. Prior to the war at least, it seemed the fascists had good ideas. Historical perspective is the ability to step out of ones current era and see the world through the eyes of another one, not in hindsight, nor even in foresight, but to be present, mentally, in the past. Seeing that the utopian visions of fascism and communism alike collapsed, one catastrophically, the other gracefully, it is understandable that the post-modernists are distrustful of utopian universal narratives, However, when one looks to the suffering of the Third World and sees life expectancies in the 40s and death from starvation and preventable disease then one is compelled to re-examine these differing social systems from a legal perspective in order to understand the possibilities and limits of fundamental reform. Because both Soviet Russia and Maoist China achieved significant gains in literacy and life expectancy as well as in nutrition and gender equality as compared with Tsarist Russia and War-lord China then that too explains why looking at Soviet law is important: it presents an alternative theory of development which merits consideration, The issue is, how to obtain the rapid progress in literacy, sex equality, nutrition, health care which the authoritarian system obtained without the formation of a totalitarian permanent dictatorship of a self serving elite? This work consists of a theoretical portion, a historical portion and a speculative portion, The theoretical portion0 ‘Marxism, Liberalism, and Feminism compares Marx’s theories with the liberal theories which engendered Marxism, First, a comparison of Marx and Rousseau and then a comparison of Marx and Locke. That section is intended to show that Marxist theory represents a dialectical synthesis of earlier Western scholarly thought Marxism is firmly anchored in the West. Every major Marxist idea can in fact be traced to at least one canonical liberal scholar. The practical portion presents: (1). The concept of Socialist Legality, the Soviet homologue to the idea of the rule of law state. 2) The Marxist Critique of Human Rights ‘This is a legal history of the Soviet legal system intended to show the internal thinking within Marxism about law in practice. It shows that the USSR developed parallel concepts to those in the West but guided by a different teleology ~ distributive justice directed toward equality in society, and not toward liberty and individualism. This too is dialectics, for of course at times the idea of freedom appears in Soviet thought, as a counterpoint to equality, But it is a situation of feedback between two opposing principles dominated by equality. The exact opposite is true in the West. There, the dominant value is liberty, though at times equality, usually procedural equality, appears as a determined concern in mutual feedback with liberty ‘The final three chapters are speculative. They center on an exposure of Rousseau's views on women, a comparison of the post-Marxist feminist Mackinnon and Marx, and a theoretical overview of Marxist influences in left legal theory. This section details the relationship between Marxism and feminism. 1 argue that Marxism diverged most clearly from Rousseau on Women’s rights, ultimately creating a structure of thought known as “feminism unmodified”. Unmodified feminism is nothing other than feminism, separated from the other sciences, at least temporarily, in order to obtain a clear perspective. I argue that feminism unmodified is a permutation of Marxism, in which basic Marxist concepts reappear but transformed and reiterated from the perspective of women and directed toward