Cardiff University

Socialism and the Rule of Law

Author(s): Laurence Lustgarten
Source: Journal of Law and Society, Vol. 15, No. 1, Law, Democracy & Social Justice
(Spring, 1988), pp. 25-41
Published by: Wiley on behalf of Cardiff University
Stable URL: http://www.jstor.org/stable/1410073
Accessed: 27-06-2016 08:52 UTC

REFERENCES
Linked references are available on JSTOR for this article:
http://www.jstor.org/stable/1410073?seq=1&cid=pdf-reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.

Cardiff University, Wiley are collaborating with JSTOR to digitize, preserve and extend access to
Journal of Law and Society

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
JOURNAL OF LAW AND SOCIETY

VOLUME 15, NUMBER 1, SPRING 1988

0263-323X $3.00

Socialism and the Rule of Law

LAURENCE LUSTGARTEN*

INTRODUCTION

The rule of law is considered by common consent to be a 'good thing'. It is one

of those essentially contested concepts every theorist, advocate, and political
protagonist wants to claim for her or his own. This is not surprising, for in
common political debate 'rule of law' is a shorthand expression of important
values concerning protection from tyranny and - what is less often emphasised
- equality.1 This equality has two dimensions - of state and citizen, and of
persons- with no special treatment accorded higher classes or status groups as
was the case in feudal society. The English law of persons which, as Maitland
put it, at one time comprised "nobles, clerics, monks, serfs, slaves, excom-
municates and outlaws"2 (not to mention children and women), came to know
virtually only the abstract individual as bearer of universal legal rights and
duties. This transformation was part of a broader social and ideological
movement, for the rule of law is the fundamental legal component of the
political philosophy of liberalism; and as with all liberal concepts, at one time
it had a sharp progressive cutting edge.
The difficulty is that formal equal treatment of those who are substantively
unequal perpetuates, and may indeed compound, substantive inequality. This
understanding might have been reached by classical philosophy; if justice
consists in treating equals equally and unequals unequally, as Aristotle said in
the Politics, then surely it is a logically inevitable conclusion that it is unjust to
treat unequals equally. But this leap requires a prior determination: that
inequalities of wealth, opportunities, and educational and occupational skills
are contingent and are matters of societal concern. For much of human
history those inequalities were regarded as inevitable, and indeed by some
people as reflecting inherent and ineradicable personal differences. Attempts
to interfere with them were seen charitably as fatuous or at worst as contrary
to divine or natural law. It is one of the central moral insights of socialism,
which has reoriented even the politics of its opponents, that such inequalities

*School of Law, University of Warwick, Coventry CV4 7AL, England.

This paper has been much improved by the comments of Tom Campbell, Paul Craig, and Stephen
Sedley Q.C.

25

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
are presumptively unacceptable and require principled justification. Inspired
originally by Marx, notably in his Critique of the Gotha Programme, this
realism about equality and inequality is the dynamic principle powering any
critique of liberalism. The question, as so often, is what constructively is to be
done with it? How can this insight be made the moving spirit of a socialist legal
order?
Before addressing this question directly, it is necessary to consider three
lines of thought, any of which if accepted would make the question redundant.
The first starts with the contention that substantive inequality is the product
of capitalist appropriation of workers' surplus value. When a socialist
government "expropriates the expropriators" and replaces private appropri-
ation with common ownership, the problem of inequality will disappear.
Hence, it is unnecessary and a diversion of energy to worry about inequality in
the legal sphere, which is merely a passive reflection of unequal relations of
production.
The fundamental error of this view is its one-dimensional conception of
inequality. In Weberian terms, all is class, and nothing is status or power.
Twentieth-century political experience and scholarship make this contention
unsustainable. As Berle and Means demonstrated years ago in relation to
corporations in the United States of America,3 ownership is not identical to
control of capitalist corporate enterprise, and there is no reason at all to
assume that socialist common ownership would be any different. Indeed, the
experience of eastern Europe gives us every reason to assume the reverse.
Quite apart from the continued existence of great inequalities of income,4 state
ownership has displaced the locus of inequality from property relations to
control functions, both at the workplace and in the polity.
The second and parallel argument emerges from the tradition of revolu-
tionary socialism.5 Put shortly, its ultimate goal is radical political trans-
formation leading to the withering away of the state. Law, too, will end up on
the same scrap heap. Hence it is not merely a waste of time, but positively
pernicious, to try to develop distinctively socialist legal norms, since law in any
form is fundamentally antithetical to the realisation of socialism.
This view is valuable for its emphasis on the development of a communally-
orientated society, in which people will spontaneously consider the common
good at least as important as their own personal interests. It is highly
undesirable, however, if it implies that a wide range of differentiation
of interests, tastes, and preferences among individuals has no place in
socialist society. Indeed, socialism should be seen as the culmination of
liberal individualism, in the sense that Jesus described his relationship
to the law of the Old Testament: "I come not to destroy, but to fulfil".
People whose human potential is stunted by the struggles to make ends meet
and for psychological survival, and whose dignity is degraded by material
competition and moral exaltation of possessions, will be freed to develop
their fullest capacities, quirks and all. Moreover, it is Utopian, in the
sense of unbelievable, to imagine that conflicts among individuals, dis-
obedience to important social norms approximating to at least part of what

26

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
we now call crime, and other forms of dispute, will simply vanish. Hence
we shall have a continuing need for administrative and adjudicative
structures, and with them law. Nineteenth-century socialism's embrace of the
Enlightenment's view of the "perfectibility of man" is, at best, implausible
romanticism.

Moreover, the revolutionary position leaves unaddressed the painful

problem of"the transition", the period in which a directive state apparatus is
working towards the transformation of society and of itself. Marx was honest
enough to describe it as a dictatorship. We have had seventy years' experience
of what this looks like, and even with full allowance being made for the
peculiarities of Russian culture and the imperatives of survival against
invasion and foreign hostility, it is a repellent prospect. If socialism can
only be reached by passing through such hellfire, simple humanitarianism
dictates a preference for capitalism with a human face. Moreover, and most
immediately relevant, there is no historical evidence to suggest that the
state apparatus will transform itself and loosen its grip on those it has
liberated from the degradation of submission to capital. Acton's dictum about
absolute power corrupting absolutely is a simple and eternal truth. Thus,
whilst it is necessary for a socialist state to seek determinedly to alter
the forms of production, the rewards of distribution, the inequalities of
power and status, and the ethos of selfishness of present society, to be
morally acceptable it must do so within limits placed upon the methods
it may use. For this, too, we shall need law.6 However, this conclusion
emphatically does not imply that legal institutions would serve precisely
the same functions and in the same manner as in liberal society. One would
expect, to take but two examples, that the relative importance of participative
political institutions compared with legal institutions would alter sharply,
as would the place of lay as distinct from professionally administered
justice. Moreover - a point pursued below - the normative hierarchy of
the rights protected by socialist legal standards would be significantly
different.
The third, so to speak pre-emptive, objection arises from the opposite
tradition of reformist socialism or social democracy, and is perhaps most
succinctly expressed in recent essays by Neil MacCormick.7 It is that
whilst redistributive governmental action is just and desirable, this can
and should be accomplished without infringing traditional "negative"
civil liberties which are of even greater importance and which can only
be safeguarded by the liberal ideal of uniform and impartial laws. I would
accept MacCormick's paramountcy of civil liberties - at any rate in states
with advanced economies and western political traditions - but reject the
corollaries, which are empirical rather than formally logical conclusions.
For one thing, it is unacceptable to ignore inequalities that manifest
themselves distinctively in the legal sphere, and it is naive to assume
that these will simply vanish (wither away?) when significant economic,
educational, and related equalisation has occurred. The implications of
the Black Report - documenting persisting class inequalities in health
27

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
after more than thirty years of often admirable efforts to improve care
available to the poor within the structure of the National Health Service -
make this very clear.8
Moreover, uniform and impartial laws often do not adequately protect vital
interests of poor and working-class people or others whose circumstances of
life make them specifically vulnerable to state power. This is partly because
they are uniform and impartial in name only, due to the implacable reality of
selective enforcement of virtually all laws, and partly because ostensibly
general rules can in reality define a 'target group' for particular favouritism or
unpleasantness. (Consider the denial of the right to enter Britian freely to
British nationals whose parents or grandparents were not born here: the law
does not say 'black', but means it.) It is also because traditional liberal civil
liberties, precious as they are, can be of radically unequal worth depending on
one's circumstances. This is a matter as much deserving of concern as any
other inequality.
Thus, in socialist society law would continue to fulfil a vital function. The
legal process would remain a distinct sphere of endeavour, though animated
by the same freedom-enhancing and egalitarian values to which the society
generally was devoted. Such a society therefore requires a conception of
legality or rule of law consonant with its values. Perhaps because of the
intersecting influence of the otherwise sharply different views I have criticised,
socialists otherwise in disagreement have been at one in ignoring the
problem.9 This is politically inept since allowing rule of law values to
remain the private preserve of right-wing philosophers is to give away a
vast moral territory. It is also intellectually and hence programmatically
crippling, and may account for the curious immunity from significant change
enjoyed by legal institutions under western socialist and social democratic
governments.
What follows is an exploratory attempt to formulate a socialist concept of
the rule of law, in conscious antithesis to the liberal notion most clearly
expressed by A.V. Dicey in 1885, which still retains an extraordinary
influence. Its distinctive focus is socialism's concern with equality; its
fundamental animating principle is that effective equality must be achieved in
the working of legal institutions. This requires that in its procedures,
doctrines, and institutional practices, the legal system takes adequate
account of the realities of unequal political and economic power, and gives
greater protection to the weak and less to the strong. The specifics of
the argument, though not necessarily the general principles, assume a society
only recently embarked upon an attempt to create democratic socialist
institutions and thus retaining many characteristics of a liberal order. Readers
and this writer can count ourselves lucky if we live to see this society progress
beyond that stage; and it seems pointless to try to devise a concept for an
'advanced' socialist society - a purely imaginary construct which would,
moreover, have to function under material conditions quite impossible to
foresee.

28

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
 LIBERALISM AND THE RULE OF LAW

By 'liberalism' I mean those political theories which take as their paramount

concern individual liberty of the negative, non-interference sort and insist
upon limited government both as a value in itself and a safeguard of that
liberty.10 As a corollary, such theories also favour strong protection for
private property and non-interference with the market economy. Not all
liberal writers subscribe to these tenets in full-blooded form; liberalism, like
socialism, is a broad church and in the writings of some liberal theorists the
line between their views and those of some socialists becomes very thin
indeed.1 However, in legal writing the classical liberal position has been
strongly dominant.
As Roberto Unger notes, the pre-eminent characteristic of the liberal state is
the existence of a legal order.12 One may also add that law and market
economics are the primary modes through which liberalism intellectually and
ideologically constitutes itself. Yet perhaps one can envisage a dialectic
whereby socialist law emerges from that of liberalism, incorporating also
certain features of pre-liberal law, which would, however, serve very different
purposes. The emphasis upon equality as the defining element of socialist
legality is all the more appropriate because liberalism, far from denigrating
equality, also claims to place a high value upon it. This adherence is expressed
most eloquently in political manifestoes such as the American Declaration of
Independence, but it also occupies a central place in Dicey's exposition of the
rule of law.
Two major elements in Dicey's formulation have close analogues in other
liberal polities that do not share England's distinctive legal and intellectual
traditions. The first is that:

?. no one is punishable or can be lawfully made to suffer in body or goods except for a
distinct breach of law established before the ordinary courts of the land. In this sense the
rule of law is contrasted with every system of government based on the exercise by persons
in authority of wide, arbitrary or discretionary powers of constraint.1"

In an important coda, Dicey insisted that "wherever there is discretion there is

room for arbitrariness".14 Secondly, the rule of law means the "equal
subjugation of all classes to one law administered by the ordinary courts". 5
There is a close and important connection between the two elements.16 The
latter ensures that the same legal principles, precedents, and rules apply to
everyone; no one enjoys a distinct status or legal categorisation making them
subject to separate laws. The repugnant feature of discretion is that the wider
its formulation, the more likely that different results or applications of rules
will occur in apparently or 'objectively' similar cases. Hence like treatment of
like cases - the Aristotelian concept of justice which is the unspoken
philosophical underpinning of Dicey's structure - will be violated. Many
critiques of contemporary institutions, written by people far removed from
Dicey in their politics and social outlook, are essentially applications of these
principles to new contexts. The critique of welfare administration is a prime
example."17

29

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
 Thus, commitment to equality does not begin with socialism. Liberalism
derives much of its moral force from a parallel attachment. What is in issue is
the concrete meaning to be given to that ideal. The liberal conception is
satisfied when the law embodies no formal classifications, prohibitions, or
restrictions based upon personal status. Discrimination grounded explicitly
on race or sex is as offensive to a liberal as to a socialist, and an old-fashioned
Whig would be equally trenchant in opposing attempts by governments to
place themselves above the law, for example by sheltering behind smoke-
screens such as 'national security' or what used to be called Crown privilege.
The divide - vast and unbridgeable - comes when the socialist insists that the
social reality hidden under formal equality be exposed to the light.
Dicey expressed the rule of law as a universal principle, but in reality it gave
free play to arbitrariness unless private property interests were at stake. One
telling instance is Dicey's own acerbic (and empirically unimpeachable)
description of the meaning of freedom of speech in English law:

Freedom of discussion is in England little else than the right to write or say anything which
a jury, consisting of twelve shopkeepers, think it expedient should be said or written.'s

Yet even this formulation stands as a monument to lawyerly precision when

compared with something that found no place in Dicey's pages. For over two
centuries the paupers of England had been subject to an authoritarian control
by justices of the peace and parish overseers more oppressive than the
continental despotisms English liberals claimed to despise. It was not simply
that those in receipt of state benefit could, at various times and places in the
history of Poor Law administration, be deprived of their right to vote, or
required to enter the workhouse and endure separation from their families.
Oppressive and degrading as these conditions were, they did not of themselves
violate the rule of law in Dicey's sense, for they were openly and precisely
enunciated consequences or conditions of receipt of benefit. But the
classification of applicants for relief as able-bodied or incapable of work, the
treatment of those within the workhouse, the allocation of children to
apprenticeships indistinguishable from bondage, and the complete denial of
benefit on the grounds of lack of local connection, were all carried out by
administrators subject to no rule-based restrictions whatever, and from whose
decisions there was little effective appeal.19 The one significant exception
nicely proves the rule: the Act of Settlement of 1662 produced a surprisingly
large body of litigation, not involving paupers left destitute for want of
assistance, but between parishes - which footed the bill - disputing
responsibility for them. That Dicey could remain so serenely blind to the
history of millions of his own nationality is less a fault of intelligence or
intellectual honesty than a revelation of the constrictive power of his political
ideology.20
Conversely, some of the so-called landmarks of English liberty turn out on
closer inspection to be instances of protection of property interests. The right
to vote - or more exactly, to have one's vote counted - vindicated by the House
of Lords in the famous Aylesbury Election case - was in law a right of
30

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
property.21 It was a franchise - rather like the right to open another
McDonald's on the High Street - derived from possession of freehold
property of specified value which varied widely from place to place. No one
had a right to vote based on membership in a polity or on the concept of the
right to participate in decisions that could rule one's life; indeed, before World
War I Britain still had the smallest electorate of any purportedly democratic
state in the world, bar Hungary.22 Similarly, Entick v Carrington23 - the case
of the general warrants - continues to have much to say to us today about liberty,
particularly in its trenchant rejection of "state necessity" as legal justification for
coercion of political opponents. It was, however, a case of trespass based
squarely on what Lord Camden C.J. termed "invasion of private property".
Hence the mind-numbing literalness with which Sir Robert Megarry V.C. could
later reject the claim that telephone tapping was illegal in English law: since the
speaker does not own the instrument, the wires, or the electricity, "all that is
done is done within the Post Office's own domain".24 In reality, liberalism has
given us the rule of law for the propertied, and discretion for the poor.25
What lessons may be learned from this history? Perhaps the first is that a
socialist conception of the rule of law must be firmly grounded in an equality
of right. This would be independent of a person's material circumstances and
role in the marketplace. The rights thus created would be literally human rights
- that is, grounded in the value of human persons as such. Many of the specific
rights entailed are already found in documents such as the American Bill of
Rights and succeeding amendments, the European Convention, and the
Canadian Charter of Human Rights. As such they are part of the legacy of
liberalism that socialism ought gratefully to accept. They are not, however,
sufficient. There are other rights or interests, of particular importance to those
who are most vulnerable politically and economically, which must be
encompassed within socialist legal values. Moreover, many liberal rights may
be of unequal worth because of inequality of material circumstances.
Inevitably, these points will recur throughout this essay.
It follows that a minimum or core element of a socialist rule of law includes
entrenched legal rights. What has made this idea particularly unpalatable to
socialists in England and Wales has been a little local difficulty - the peculiar
history and structure of the legal profession here, which guarantees the
dominance of a conservative and Conservative outlook among lawyers which
is quite inimical to the values which a socialist legal system would embody. It is
unwise to minimise the practical difficulties involved, but ultimately they are
institutional. Very little thought has been given to these institutional
questions: radical alteration both of the legal profession and judicial structure
has never been a serious item on the socialist agenda, and needs to find a place
near the top of it very soon. It may, for example, be necessary to create a
special Constitutional Court, ousting the jurisdiction of the High Court; and
the primary criterion for selecting its members at the start, at least, would be
their commitment to the socialist concept of the rule of law. (Few current
members of the judiciary need apply.) But provided the rights protected are
those which embody socialist values, the socialist objection in principle to
31

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
judicially-protected rights superior to ordinary legislation is misconceived.
Reliance on democratic politics to protect legitimate interests is indeed
preferable. But since those at risk are least able to defend themselves through
the political process, and protection of the interests affected is essential to their
ability to enjoy full membership in society, the safeguards must be more secure
than those provided by shifting and occasionally panic-prone political
majorities. What socialists are right to object to is an entrenched Bill of Rights
enacted as an alternative to the political changes necessary to establish
genuine participatory democracy, and handed over for interpretation to the
judiciary as presently constituted.
One specifically socialist characteristic of such a legal charter should be its
substantially wider application. The liberal documents are all restricted to
what the European Convention calls "public authority" and what is known in
constitutional law in the United States of America as the doctrine of "state
action". Although the Canadian Charter contains no such explicit limitation,
it was predictable that the Supreme Court would construe it as applying only
to actions of government.26 Yet since the purpose of providing legal
protection for human rights is to give them a security they would not otherwise
enjoy, the source of any infringement of these rights is irrelevant, just as the
enjoyment of one's property in a liberal legal order is protected from nuisance
whether public or private. Hence the entrenched rights should be as firmly
secured against infringement by private capital in its multifarious legal
manifestations as against infringement by government action.
A second important lesson to be learnt is that "non-human interests"
should not be accorded equivalent value in the legal system with those of
women and men. Interests of capital, primarily in the legal form of the limited
company as a corporate person, have enjoyed the same protections of public
law and criminal process as human beings. The equation in this of artificial
with natural persons is at the root of many of the practical difficulties, delays,
and entanglements of regulation and other forms of control of commercial
enterprises. There may be good utilitarian reasons for special treatment of
particular activities, but this should be carefully tailored to extend only to
what is necessary to achieve the specific benefit sought. Thus, the grant of
limited liability or tax concessions to encourage risk-taking or investment in a
particular area does not require that business enterprises be clothed with the
attributes of human personality and accorded the respect due to individuals.
The legal structure should recognise that large aggregations of capital are
centres of power readily open to abuse, and are appropriations of the common
wealth that exist on the sufferance of the community only for the purpose of
bringing it benefit not otherwise obtainable. One need hardly say that it would
be morally obnoxious to view individuals in this way. Hence, powers to
require public access to documents concerning the operations of businesses, or
to conduct searches for material relating to illegality that cannot be specified
or even clearly identified in advance because of the greater organisational
capacity for concealment and subterfuge, should be readily accepted in
relation to organisations whilst being firmly rejected where individuals are

32

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
involved. In this respect the extraordinary powers given revenue officials by
the last Labour government to combat tax fraud furnish an exemplary model
for future regulation, and not something to be applied as a matter of
distasteful constitutional duty - the approach of the House of Lords in the
Rossminster case.27
It must be emphasised that the approach taken here is not based on an
animosity to profit-seeking activity or private enterprise as such. The same
principles should apply to whatever state-owned companies existed. The
overriding concerns are the potential for abuse of power and the insistence
that the needs of society at large remain the ultimate touchstone; the public/
private distinction is irrelevant.

THE SOCIALIST ADVANCE UPON LIBERALISM

The law of feudal society recognised and enforced ascriptive differences of

status. One of the great contributions of liberalism to human freedom was its
rejection of ascription; and with minor exceptions the law of liberal society
granted all individuals the formal equality which in reality proves so
chimerical. Perhaps, however, the classic dialectic - thesis, antithesis, synthesis
- can suggest a more satisfactory outcome. Rejection of legally enshrined
hierarchical subordination, or of involuntary membership in an 'estate' or
association, does not require that law should turn a blind eye to reality. Special
legal solicitude for those who are politically weak and materially deprived
does not mean recreating status distinctions. The difference is that the latter
involves the imposition of characteristics or categories upon individuals given
no choice in the matter, whereas the former recognises circumstances or
interests. Unlike ascriptive categories, these change, and the same individual
may well move from requiring special protection to no longer needing it,
perhaps several times if life's fortunes swing sharply.28 Indeed, a person may
simultaneously receive such protection for certain interests whilst enjoying
less solicitude for others. Both paternalism and social ossification are thereby
avoided.
The idea that different interests require different levels of procedural
protection, or that the same interest may receive variable protection
depending upon particular circumstances, is already familiar in public law.
The law of standing prescribes that anyone challenging illegal administrative
action who lacks a "sufficient interest" in the matter will not be permitted
access to the courts. Natural justice is notoriously variable, both in content
(whether a particular procedure, such as producing a written decision, must be
followed), and in the occasions for its invocation (the complainant must have
at least a "legitimate expectation" of what she or he has been denied). Interests
that are normally to be protected may be 'trumped' by other considerations
deemed more important, such as national security. A socialist rule of law
should accept this "method of variability", but turn its application on its head,
for at present it generally produces statist and authoritarian results being used

33

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
to restrict the rights of trade unions, prisoners, homeless people, radical aliens,
and the like.29
The correct approach should be almost the reverse. People who are
particularly vulnerable because they are unable to exercise the same degree of
political power as the average citizen - either because they are denied the vote
(as in the case of most prisoners, prospective immigrants, and aliens) or
because their economic weakness and social isolation render them relatively
incapable of self-protection - ought to receive greater legal protection, not
less. The same is true where a person has a particularly grave interest at stake,
gravity being a combination of seriousness to her or him (for example, relating
to employment, income, housing, presence in the country, prolonged
confinement) with laik of alternative (paradigm cases include those of people
in receipt of state benefits, immigrants, and anyone caught in the toils of the
criminal justice system).
This approach may recall the practice in the United States of America, in
cases construing the equal protection clause of the Fourteenth Amendment, of
identifying "suspect qualifications" which are presumptively invalid when
employed in legislation. Race is the pre-eminent example, and there has been
enormous controversy over whether sex should be treated in the same way.
But the jurisprudence of the United States of America has a very different
focus. Its concern is with members of oppressed ascriptive groups. This is
wholly understandable in light of the role of slavery in American history, but
in the absence of that history is undesirable for many reasons. Those relating
to status have already been discussed. More generally, when one takes as the
test group membership, rather than the particular interest affected, trouble-
some questions of justice are immediately raised. Do all members of the group
deserve the same protections? It is never entirely clear who is covered: is
membership a matter of subjective attachment or external labelling? Are some
groups so large that they become amorphous, and can either be said not to be
genuinely "groups" at all, or to be composed of people whose commonality of
interests and experience is relatively narrow? (These problems are particularly
pertinent to women.) Questions such as these have underlain the most potent
objections to the practice in the United States of America of reverse
discrimination, and can be avoided by something conspicuously lacking in
American political culture: a socialist perspective which focuses upon
substantive inequalities of wealth and power.30
Precisely what these greater protections would mean in practice is
something that socialist jurists would, it is hoped, develop imaginatively over
the years. I want only to suggest one or two examples for the purpose of
showing that all this theoretical argument might actually produce some
improvement in people's experience with the law. Those offered are quite
deliberately of relatively narrow compass because it is in the steady
aggregation of scores of changes in apparently technical and procedural
arcana that the structure of the legal system fundamentally alters.
The first example concerns maxim "ignorance of the law is no excuse". This
may be an unavoidable necessity in relation to criminal law, but is otherwise

34

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
either a penalty imposed on the uneducated and unassertive or a convenient
way of drumming up business for the legal profession. It should give way to
the principle that whoever makes rules affecting the interests of persons
unable to find or afford knowledgeable advisors has the onus of ensuring that
information about eligibility, time limits, procedures, and so forth is dis-
seminated in a manner likely to reach those affected; that the times at which
people can encounter the organisational machinery are reasonable and the
places where they can do so are reasonably accessible; and that those dealing
with the persons affected will provide adequate and courteous assistance.
Failure to satisfy such criteria would invalidate any limits on entitlement or
other advantage sought.
The previous example is based on the factual inability of many people to
find their way through the morass of legal rules and procedures. The second
relates to protection of particularly important interests. Where anyone is in
employment, receiving benefits which form a significant part of her or his
livelihood, using fuel or other services essential to a life of minimum comfort,
or enjoying conditional liberty (for example, release on licence), she or he may
not be deprived of these goods without a high degree of procedural protection.
This would include, at a minimum, adequate notice, a full hearing with skilled
assistance, and/or representation provided at a cost related to income where
the complexity or technicality of the issues require it, fully set out reasons, and
right of appeal to an independent body - all to take place before the loss is
imposed. Further, the hearing body would combine judicial and arbitral
functions - in an attempt to infuse equity into law - which would enquire into
such matters as alternative sanctions, conditional or deferred penalties,
compromise settlements, and the like.
Three further aspects of this example of socialist legality are worth noting.
First, these principles should apply equally to private and state power.
Employers, insurance companies, utility companies (I assume there is no dog-
matic socialist commitment to public ownership of any particular industry), and
similar power wielders must be as severely restrained as public bodies, for they
have equal capacity to inflict serious damage on people. Secondly, although I
have illustrated the point with instances of people already enjoying some good
and then faced with its loss, the principle ought to apply with appropriate
modifications to those seeking it as well. I use the term "appropriate
modifications" because whilst, for example, it would be an excessive burden to
require an employer to fill every post by means of an appointments board-type
procedure, it is reasonable to require that an employer explain to rejected
candidates what the criteria of hiring were and why the successful candidate
most satisfactorily fulfilled them. The values of procedural fairness and non-
discrimination outweigh those of convenience and (limited) cost.
Finally, the shield of this principle should not protect against formal rules or
criteria alone. Socialist law needs to develop a concept of "functional
equivalence", which judges the effects of various practices and pressures that
may be informal and unwritten but no less effective for that. Consider, for
example, the remarkable innovation in abuse control procedures in social
35

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
security administration in the 1980s. Those suspected of claiming benefit in
violation of various rules are not prosecuted. A criminal trial - an expensive
process in which the prosecution would have the tiresome task of proving
illegality and the defendant would be entitled to representation - is considered
not to be 'cost effective'. Instead, claimants 'suspected' (basis unspecified) of
abuse are called in for special interviews in conditions of imposed solitude (no
friend or representative permitted). In essence, they are harassed with
allegations and threats, and made generally to feel dirty and small. Some cool
customers quietly 'tough it out', some 'fiddlers' own up, but many nervous and
confused people avoid the interview by ceasing to claim. This, of course, is the
point of the exercise.3' Socialist legal principle would require that the
interview be treated as the equivalent of a termination hearing, and hence
propriety and relevance limits on the manner and content of the questioning,
availability of advice and representation, and similar protections would be
required. The broader principle is that whereas law in a liberal conceptual
framework tends to be limited in its reach to formal rules and decisions,32
socialist law would be infused by the realities of power and would apply
equally to equivalent non-formal pressures on the vital interests of the
relatively powerless.

SOME FURTHER IMPLICATIONS

In a recent valuable discussion of the subject, Jeffrey Jowell has emphasised

that the rule of law is not solely a judicially (and hence externally) imposed
principle - a restraint upon officials - but a "principle of institutional
morality".3 This is an extremely important point, for it brings to centre stage
the dynamic and positive qualities of the concept. Thus understood, it
contains the potential for development as a norm of conduct, which can raise
the standards of concern accorded those subject to decisions of the powerful.
Here again one can only glimpse the outlines of such future development, but,
to take one particularly sensitive example, the passive character of welfare
bureaucracies might well be altered and replaced by an affirmative duty to
seek out the potentially eligible and assist them to realise their due.a4 In so far
as wielders of power become imbued with rule of law values, democratic
socialism can capture what is attractive in the otherwise authoritarian practice
of the jurisprudence of communist states, in which rights are regarded as

"public
can helpstandards for desirable
to break down goals and behaviour".,s
the much-debated As such,
antithesis between socialists
positive and
negative liberty.36
Secondly, socialist administrators, lawyers, and scholars should take as
their highest priority the creation of increasingly sophisticated or novel
versions of what Harlow and Rawlings call "green light" theories of
administrative law."7 Once the rule of law comes to be seen as an essential
element and not an obstruction of the working of democratic institutions, the
way opens to developing standards and practices to make them more effective.

36

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
 One example may suggest some of the possibilities. Over the years Terence
Daintith has increased our understanding of the way government has come to
use what he terms dominium powers - informal tactics and the inducements of
carrot and stick to achieve desired policies, rather than resort to formal law-
making. By no means a Diceyan obscurantist opposed to innovatory
techniques, he is nonetheless apprehensive about "the risk of impairment of
values which our constitutional law and practice ought to protect".38 Yet the
techniques he emphasises - bargaining with affected groups and the use of
government economic power - are, at least in part, a response to what Jowell
identifies as "the limits of rules". The need for "flexibility and responsiveness"
if regulation is to be effective has long been recognised, as have the undesirable
results produced by excessive legalism. Hence, when enforcement authorities
ponder whether to invoke the law, their decisions will take significant account
of the wider social implications of that choice.39
However, this approach to law enforcement has one outstandingly
undesirable aspect: its contribution to inequality. Unlike industrial polluters
or those factory owners who operate unsafe machinery, poor people have
nothing to throw onto the scales when the cost-benefit weighing exercise is
conducted. The full rigour of the law thus falls upon them. Their only
negotiating counter is the threat of collective violence, not easily mobilised
and hence not highly credible, and in any case not something in principle the
'good society' should honour or encourage.
Given that the utilitarian calculus is inescapable and central to the
process of enforcement, socialist administrative law needs to develop a
praxis that both legitimates the techniques of dominium and fashions
new ones to meet changing circumstances. Here again, the overriding
consideration is the realities of inequality. Where the organisations to be
regulated are economically or politically potent, dominium techniques
may be appropriately used without restraint. In such instances speed is
often critical, and economic or other changes - which may originate far
across the world - necessitate governmental capacity for sudden changes of
tack which traditional legal processes are not well adapted to accomplish.
Moreover, administrative techniques which involve a combination of
economic pressure with leading-by-example are likely to be far more
effective in achieving governmental policies designed to assist the dis-
advantaged."4 So long as those affected are relatively powerful, they
have the ability through access to Whitehall, Westminster, and the media to
make their opposition heard and political weight felt. Conversely, when
regulation is aimed at the politically weak, the greater is the need to observe
Diceyan restrictions on administrative action, and to use inducements rather
than threats to achieve compliance. Thus, applied in this way, "our
constitutional law and practice" would indeed be protecting the values it
ought to protect.
Thirdly, this article has concentrated on public law, but the application of
socialist rule of law principles would also bring major changes in criminal law
and the institutions of criminal justice. Good socialist critiques of present
37

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
practices in Britain have been written in recent years,41 but underlying legal
and philosophical principles have not usually been addressed.42 The issues
would richly repay comprehensive discussion. Since that is impossible here,
only very brief and general comments will be offered.
First, the substantive law should cease to criminalise activities which
represent the use of the only public resources available to the disadvantaged.
People who lack adequate private facilities for socialising rightly make
use of the streets, as people who lack effective access to institutions of
political power use the streets for demonstrations. Vagrancy laws, which
make homelessness a crime, are only the most notorious example of the
treatment of poverty as an offence. But whilst these laws have been largely
discredited, a large body of criminal law continues to curb activities
that do harm only to a pursed-lip notion of propriety. Public spaces should
be treated as public resources, and only violence or impending violence
should be regarded as a general reason for restricting access to them. Not
only does this imply a strong right to congregate in public places and to
demonstrate, but it also requires redefinition of the very notion of public
'order' or tranquility so that a far greater degree of street activity is
accepted.
Secondly, the policies, priorities, and allocation of resources of law
enforcement bodies should much more closely reflect the needs of weak
groups which are victims of crime. The greater priority some police forces have
given to combatting racist attacks and rape in recent years are important
examples. Others might be the prevention of landlord harassment and more
rigorous enforcement of industrial safety laws. Conversely, what have been
called "crimes of the powerful"43 should also receive higher enforcement
priority and more severe sanctions, even if there is no strongly articulated
popular demand for such responses. People often cannot unravel the long and
complex causal chains between the act (or omission) and the injury it
produces, but such crimes are particularly morally offensive because they

involve abu.se of economic or political power. More generally, the enforce-

ment institutions should alter their practices to purge them of systematic bias.
The greater propensity of the police to prosecute rather than caution working-
class and black youths is one prime instance.44
Thirdly, sentencing practices have produced a prison population of minor
offenders who are drawn overwhelmingly from the working class and
unemployed. This is the result of many factors, including a complex
interaction of systemic bias in the criminal justice system with factual class
differences in the types of offences committed. But the sentencing system
makes its own unhelpful contribution. Sanctions need to be far more carefully
tailored to the economic circumstances of offenders than they are at present;
the so-called 'day fine' system used in several continental countries provides
one example of this being done. Even more valuable would be a far greater and
more imaginative use of reparation and community service sanctions, which
would deprive poor offenders of leisure - the one good they do possess in
some abundance - as well as encouraging their greater attachment to and
38

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
responsibility for their neighbours and neighbourhoods. Socialist values do
not dictate any specific answer to the eternal philosophical debates about
punishment and the purposes of criminal justice. But they do command that
substantive law and institutional practice reflect and implement the societal
dedication to genuine equality.

NOTES AND REFERENCES

1 There is another version, expounded by Joseph Raz, which he describes as a more "formal"
conception of the rule of law. It exalts the capability of law to "guide the behaviour of its
subjects" and is "not to be confused with democracy, justice, equality (before the law or
otherwise) human rights of any kind, respect for persons or for the dignity of man". (See
"The Rule of Law and Its Virtues" (1977) 93 Law Q. Rev. pp. 195, 196, 198.) Whatever its
virtues, which Raz devotes much of his article to expounding, this is not the rule of law of
popular usage.
2 F. W. Maitland, "Moral Personality and Legal Personality" in Collected Papers (1911; ed.
H. A. L. Fisher) Vol. III, p. 315.
3 A. Berle and G. Means, The Modern Corporation and Private Property (1932) passim.
4 D. Lane, The End oflnequality? (1971). One commentator even claimed that in the 1960s the
Soviet Union had a greater degree of inequality of incomes than Britain: P. Wiles,
Distribution of Income: East and West (1974).
5 I have adopted Tom Campbell's description of the two traditions of socialism in The Left
and Rights (1983) ch. 1.
6 By a very different route, Steven Lukes in Marxism and Morality (1985) pp. 60-6 seems to
have reached a similar conclusion. His discussion of the moral basis of socialism emphasises
the continuing need for rights in order to create "a form of social life in which social relations
flourish free of arbitrary political power".
7 N. MacCormick, Legal Right and Social Democracy (1982) chs. I and 3.
8 This report, by a D.H.S.S. Working Group on Inequalities in Health chaired by Sir Douglas
Black, was virtually buried by an embarrassed government. However, Peter Townsend
rescued it from oblivion and arranged for publication by Penguin: P. Townsend and N.
Davidson (eds.), Inequalities in Health - the Black Report (1982).
9 One exception to this generalisation was the Soviet legal theorist Evgeny Pashukanis, who
argued in Law and Marxism (1924) that a wholly different form of law would develop in
communist society, in the form of "socio-technic norms" which would no longer be
concerned with private rights but with the good ordering of society in response to social
needs. As Bob Fine points out, his uncritical view of bureaucracy and insensitivity to
democratic concerns made his theory an only too adaptable servant of tyranny. For
discussion and critique, see E. Kamenka and A. Tay, "Beyond the French Revolution:
Communist Socialism and the Concept of Law" (1971) 21 University of Toronto Law J.
p. 109, at pp. 132-6; R. Cotterrell, "Commodity Form and Legal Form: Pashukanis'
Outline of a Materialist Theory of Law" (1979)6 Ideology and Consciousness p. 111; B. Fine,
Democracy and the Rule of Law (1984) pp. 155-69.
10 This definition is intended as an empirical generalisation descriptive of what have been
regarded as theories of liberalism in the history of European politics and political thought.
However, some writers, notably Ronald Dworkin, use the term in a very different way. In
his essay "Liberalism" in A Matter ofPrinciple (1985) pp. 181 - 204, he defines it in terms of
a theory of equality which "supposes that political decisions must be, so far as is possible,
independent of any particular conception of the good life . . ." (pp. 191-2). This
"constitutive morality" is counterposed to something he calls "Conservatism"; Dworkin
barely mentions socialism, though odd remarks suggest he identifies it with a command
economy and Marxist theory. This association is historically understandable, but ignores
the extended debates among socialist writers over at least the past decade. Where it leaves

39

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
 the European social democratic parties, and perhaps even the Italian communists, is
unclear.
Because Dworkin's definitional axis cuts across the ways in which various European
theoretical and political positions have traditionally been demarcated, his notion of
liberalism does not fit readily into any of them, although it is plainly incompatible with
Burkeian Conservatism. Certainly much of what he says about equality would be congenial
to many democratic socialists.
11 A good example is Amy Gutmann, whose Liberal Equality (1980) takes a position in many
respects identical to that of reformist socialism. Indeed, as she candidly admits in her
Introduction (pp. 2-3), her adherence to the vocabulary of liberalism is partly a tactical
manoeuvre: since the dominant Anglo-American tradition is liberal rather than socialist,
egalitarian arguments stand a better chance of gaining acceptance if couched in liberal
rather than socialist terms.
12 R. Unger, Law in Modern Society (1976) pp. 54, 66ff., 176ff.
13 A. Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959) p. 188.
14 id.
15 id., p. 193.
16 Dicey included a third element - that constitutional principles emerge from "judicial
decisions determining the rights of private persons in particular cases before the courts" (id.,
p. 195). However, this is a peculiarity of the English, a product of seventeenth-century
political struggles, unlike the other two which are found in all liberal legal orders.
17 For example, N. Lewis, "Supplementary Benefit Appeal Tribunals" (1973) Public Law
p. 257; R. Lister, Justice for the Claimant? (1974).
18 op. cit., n. 13, p. 246.
19 On this history, see R. Cranston, Legal Foundations of the Welfare State (1985) pp. 13-43,
and more generally D. Fraser, The Evolution of the British Welfare State (3rd ed. 1984) ch. 2.
20 It has been suggested to me that in later editions of his work, and in Law and Opinion (1905),
Dicey was increasingly critical of welfare legislation as a violation of the rule of law. Quite
so; but what he meant by "collectivist" legislation were laws setting minimum physical
standards for housing, regulating safety of working conditions and the like. Such legislation
restricted the ability of those who owned property to manage it as they chose, because of the
evil effects that freedom had on those subject to it. The Poor Law regulated the lives of
recipients directly, as a particularly harsh form of social control. The contrast between
Dicey's strictures against collectivism and his silence on the Poor Law through eight editions
spanning thirty years is so dramatic as to exclude the possibility of inadvertence.
21 Ashby v White (1703)2 Ld. Raym. 938, (1704) 3 Ld. Raym. 320.
22 Mathew et al., "The Franchise Factor in the Rise of the Labour Party" (1976) 91 English
History Rev. p. 723 at pp. 723-4.
23 (1976) 19 St. Tr. 1030.
24 Malone v Metropolitan Police Commissioner [1979] Ch. 344, 369.
25 I am not claiming that there is a necessary connection, in the sense of formal logic, between
the existence of a property interest and its recognition as a right in liberal jurisprudence. I do
claim, however, that this has been the case historically, and that that fact tells us something
very important about the nature and limits of liberalism. Certainly, notable writers such as
Dworkin and Rawls would claim that their liberalism protects much more than property
interests, but one is struck by how little influence their theories have had on actual judicial
decisions. For example, many people hoped that the American Supreme Court's decision in
Goldberg v Kelly, 397 U.S. 254 (1970), requiring that recipients of the equivalent of
supplementary benefit receive a hearing with considerable due process protections before
their benefits could be withdrawn, heralded the development of a "New Property"
jurisprudence for the welfare state. In fact the case has consistently been restricted and
distinguished almost to extinction, notably in Mathews v Eldridge, 424 U.S. 319 (1976),
holding that recipients of the equivalent of unemployment benefit and state pensions do not
enjoy the same due process rights. The fact that Goldberg has become a unique case seems to
me very revealing about the character of liberalism.

40

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms
26 Retail Union Local 580 v Dolphin Delivery Ltd., (1987) 33 D.L.R. (4th) 175.
27 R. v I.R.C., ex p. Rossminster Ltd. [1980] A.C. 952. There will, admittedly, be difficult
questions at the margin, of the sort that attempted application of any abstract standard
invariably produces. Some few individuals may be so wealthy that in terms of power they
may be indistinguishable from companies. Others may combine their commercial and
personal lives, for example by working from home (cf. the case of Mr Malone, above, n. 24)
so that questions about the boundaries of privacy will arise. For the present it is sufficient to
acknowledge the difficulties.
28 Some people will fall permanently into a category, defined not by social ascription but by
biological or physical traits. The mentally handicapped and the severely physically disabled
are prominent examples; both require various forms of assistance on grounds of need and
human compassion. Many of those affected will be permanently in this condition, but that is
different from a status, which is a purely social construct.
29 As illustrated by O'Reilly v Mackman [1983] 2 A.C. 237; Cocks v Thanet D.C. [1983] 2 A.C.
286; C.C.S.U. v Ministerfor the Civil Service [1985] A.C. 374; and R. v Home Secretary, exp.
Hosenball [1977] 1 W.L.R. 766.
30 For an attempt to look at discrimination issues in this way, see L. Lustgarten, Legal Control
of Racial Discrimination (1980) pp. 14-24, 31-7.
31 More precisely, since the primary purpose of the exercise is to cut expenditure by reducing
the number of claimants, it is irrelevant to the officials involved whether the reduction
results from the withdrawal of legitimate or fraudulent claimants. For documentation of the
shift from a law enforcement to an administrative approach to controlling unlawful claims,
see N.A.C.R.O. Working Party, Enforcement of the Law Relating to Social Security (1986).
32 This is something of an over-simplification, and there is a long and potentially fascinating
article to be written about the tensions between what may be called formalism and realism in
legal doctrine. For the present I would merely say that I believe the statement in the text is
defensible, especially in relation to adjudication and scholarship in Britain.
33 J. Jowell, "The Rule of Law Today" in The Changing Constitution (1985; eds. J. Jowell and
D. Oliver) p. 19.
34 See further R. Cranston, op. cit., n. 19, pp. 209 - 31; Leibfried, "Public Assistance in the
F.R.G.: 'Take-up' of Benefits and the Structure of Welfare Bureaucracy" in Welfare Law
and Policy (1979; eds. M. Partington and J. Jowell) pp. 169-94.
35 R. Markovits, "Socialist v Bourgeois Rights - An East-West German Comparison" (1978)
45 University of Chicago Law Rev. p. 612 at p. 615.
36 Outlined in the classic article by Sir Isaiah Berlin, "Two Concepts of Liberty" reprinted in
A. Quinton (ed.), Political Philosophy (1967) ch. 8.
37 C. Harlow and R. Rawlings, Law and Administration (1984) chs. 1 and 2.
38 T. Daintith, "The Executive Power Today: Bargaining and Economic Control" in Jowell
and Oliver, op. cit., n. 33, p. 197.
39 J. Jowell, op. cit., n. 33, pp. 10-13.
40 See further L. Lustgarten, "Racial Inequality and the Limits of Law" (1986) 49 Modern Law
Rev. p. 68.
41 For example, see J. Lea and J. Young, What is to be Done about Law and Order? (1984); I.
Taylor, Law and Order: Arguments for Socialism (1982); R. Kinsey et al., Losing the Battle
Against Crime (1986).
42 An exception to this general neglect is T. Jefferson and R. Grimshaw, Controlling the
Constable (1984) pp. 158-68. Although their attempt to develop a socialist concept of justice
as applied to police work is analytically flawed, their effort commands attention and
deserves respect.
43 F. Pearce, Crimes of the Powerful (1976).
44 S.F. Landau, "Juveniles and the Police" (1981) 21 Brit. J. Criminology p. 27; also
S.F. Landau and G, Nathan, "Selecting Delinquents for Cautioning in the London
Metropolitan Area" (1983) 23 Brit. J. Criminology p. 128.

41

This content downloaded from 129.219.247.33 on Mon, 27 Jun 2016 08:52:25 UTC
All use subject to http://about.jstor.org/terms