Process
Status Items Output None Questions None Claims None Highlights Done See section below
Highlights
id583717465
what about the conflicts that, classless society or not, would endure and need to be adjudicated? Some Marxists insisted that under socialism a new type of person would emerge, liberated from the egoism of competitive capitalist society. No need for the law. Others argued that socialism would produce such a superabundance of goods that the material bases of crime would disappear along with the symptoms.
✏️ A very idealistic and fuzzy approach to assuming that crimes and any need for a legal system would vanish and be unnecessary. How do you deal with adjudication and legal issues in a socialist society? 🔗 View Highlight
id583717594
If the law none the less stands as a framework for mediating individual differences, or as a source of fragments of genuine justice…then socialists would do well to consider how to preserve and develop them in a post-capitalist society. ‘Existing socialism’ has demonstrated the impossibility of law ‘withering away’; conflict will outlive classes and disputes will continue to need regulation long after the demise of bourgeois market relations.
✏️ Quote by Christine Sypnowich (political philosopher) 🔗 View Highlight
id583718577
legal philosophy in the twentieth century was divided between “natural law” legal theorists and “legal positivists.”
✏️ Just a quick lesson on these theories. Natural Law legal theorists believe that law and morality are tied together. So a fascist law in a Nazi legal system shouldn’t be considered a law, because it’s basically just terror and doesn’t respect basic principles of equality before the law, and presumption of innocence. Legal Positivists see law as separate from morality. You can have a legal system under a slave state, an apartheid state, or a capitalist one. The morality doesn’t matter.. they’re all laws. The law’s existence isn’t an argument for obeying it though. 🔗 View Highlight
id583718382
the burden is on socialists to conceive and construct a less domineering and more equal legal system than that which exists under capitalism, one that would adjudicate conflicts while conforming to socialist principles of justice.
id583720204
we need to acknowledge the Marxist point that rights are “not natural, pre-social rights because the human dignity they seek to protect develops in society and is thus susceptible to historical change.” In other words, individual rights are inherently social and are best secured within a society that is committed to prioritizing individual dignity and autonomy.
id583720234
since all rights are in fact social, the common distinction between “negative” and “positive” rights — negative rights are those individuals assert against the state to retain their autonomy, while positive rights require the state to take action to provision them — is in fact blurry at best. The liberal right to a fair trial is largely meaningless if the state doesn’t build a fair legal system and offer legal aid to poor litigants.
id583720294
Once we recognize the blurriness of the negative/positive rights distinction, it opens the door for socialists to argue that a better foundation for human rights is one that guarantees the things that social beings need to maximize their capacities and dignity. This leads to the further question of whether the average person leads a freer and more dignified life when the legal system militantly enforces an expansive right to property rather than, say, safe drinking water or housing. Not to mention whether any legal system that permits vast disparities in wealth and power can be said to show “equal respect” for everyone’s rights.
id583720721
Retaining the best of the liberal tradition (free speech, civil liberties, etc.), a socialist legal system would nevertheless shatter the resource imbalances of capitalism, no longer allowing the ideal of legal equality to crash against the reality of legal inequality.
id583720740
Likewise, the “every man an island” view of rights would give way to an understanding of rights as necessarily social. As Sypnowich puts it, “human rights therefore cannot be reduced to instruments for asserting individuality in the face of the incursion of social life, since social life constitutes the ground for the emergence of a person who can claim respect for his autonomy by means of rights.”