Popular Justice and The Rule of Law -- 1

Justin Schwartz jschwart at freenet.columbus.oh.us
Sat Feb 24 21:28:49 MST 1996

On Sat, 24 Feb 1996, Hugh Rodwell wrote:

> The rule of law you objectify here is merely class rule constrained by the
> balance of forces in society.

There's some truth to this, but the statement is oversimplified in two
ways (at least). First, there's Leo point, that many rules of law, and the
idea of rule of law itself, are the results and embodiments are the
results and embodiments of popular victories. Law is not simply imposed by
the bourgeoisie. A case (literally) in point: in Webster, a recent U.S.
S. Ct. decision that upheld parental notification requirements for minor's
abortions, the majoririty opinion said that Roe v. Wade, the opinion
giving a constitutional right to abotions, is now too deeply settled in
popular expectations to be uprooted. The court inimated that it was afraid
of the massive reaction (and delegitimation of the Court itself) if it
reversed Roe.

Second, there's more to the law than the resulkt of the parallegram of
forces. Judges do not merely find the result they want and come up with
some rationale for it. They are in fact constrained by other expectations
about the law created by precedent, by their own interpretative canons,
and by considerations internal to the law itself. This is what the rule of
law means, in part, that even in bourgeois society we are governed by law
and not by arbitary will. (A considerable advance over the alternative!)

So the law is not merely class rule constraint by the balance of forces.
It represents a class compromise constrained in part by the law itself.

I might add a third point. Many of the rules of law, especially the common
law (judge-made law in Anglo-American countries, for you all in civil law
countries), is amtter of dealing with problems taht would arise in
virtually any social context. Just as the administrative part of the
bourgeois state has a lot of compenents that are pretty class neutral (the
post office, for instance), so the law spends a lot of its time
adjudicating disputes that would come up in any context with rules that
don't particularly involve veiled or other class oppression. A socialistr
society could doa  lot worse than to take the common law as a starting
point for its legal system.

> So reformulate. The bourgeois rule of law is a legalized form of injustice,

Depends. Insofar as it's merely bourgeois, arguably. But it's not merely
bourgeois. Insofar as it's the rule of law, not so. That's something we
should want to keep. Insoifar as the bourgepis context of the law
contravenes the rule of law (which it does to a great extent), that's a
criticism of bourgeois society--but not of the rule of law.

> even though it's better than fascism or other forms of
> counter-revolutionary terror.

God bless!

 It's only kept to a pitiful semblance of
> 'equity' by the social power of the working class,

And other subordinate groups. In America, probably mainly other
subordinate groups (alas). The organized workink class does a pretty poor
job here of keeping the law in line.

 which would be better
> employed getting rid of the bourgeois state that maintains and promotes
> exploitation and oppression.

Well, I too would like to see the workjer rise and smash the state. Just
now, though, I'd settle for them rising and getting a
no-permanant-strike-replacement rule written into the labor law.

> As justice, it's crap.

That's further than I would go. It's crappy justice, but it's justice of a
sort. Again, consider the alternative.


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