LAW, DEMOCRACY, AND SOCIAL JUSTICE (Cotterrell & Bercusson)
Background: 1988, both authors are British
Purpose: study on the relationship between socialism and law
Socialism was in decline
- Mood in Britain and some other western societies is inhospitable to serious
consideration of ‘socialist ideals’
- "social justice" is a naive concept whose time has passed
- The appeal of democracy, with its implications of active participation in
the collective life of a community, may have given place to a purely
atomistic pursuit of self-interest
Scholar’s role
- Refuse 'common-sense' assumptions of the time as a primary foundation
of intellectual work
- Analyze those assumptions
- Look for intellectual alternatives through a systematic reexamination of
new and old conventions
- Law as tool to reexamine socialist ideals
 Since law is rarely examined in a way that deliberately holds most
political orthodoxies at arm's length and tries to see beyond the
"method of detail" to broader and unfashionable theories
PROBLEM: Process of translating socialist ideals into institutional forms has often
led to consequences inconsistent with what the ideals promised
Socialist ideals remain a collection of many elements of what might be
called the collective social conscience; , these ideals are often accepted by
many who would not call themselves "socialists"
- The difficulty is finding means of translating these ideals into institutions,
policies, and strategies which both realizes its ideals and does not
produce adverse social or economic consequences
OBJECTIVE: Link socialist ideals with legal analysis
- Law defines and protects institutions, turns established policies into stable
structures of guiding principle, implements strategies through creation of
rules and regulations
- Socialist ideals need to be confronted with practical questions about
legal and constitutional structures.
- Objective is to answer these questions through looking for the means by
which some timelessly valid aspirations of socialist philosophy can be
realied through specific legal forms and institutions in the varied
conditions of contemporary western societies.
What are the aspirations of socialism?
- No wholly consistent view of socialism is necessarily shared by all.
- Lustgarten: the rule of law is an "essentially contested concept", so too is
"socialism"
- The linked themes of social justice and democracy run as a primary
unifying thread through the tradition of socialist thought.
 Theme of social justice in relation to the regulatory problems it
poses: what regulatory forms are available, feasible, and
appropriate for economic and other planning, and organization
generally, to serve the interest of sharing the benefits of life
among all citizens?
 Theme of democracy in relation to regulatory problems it poses:
what forms of regulation and institutional forms are available,
feasible, and appropriate to secure as fully as possible the
capacity of each citizen to act autonomously to the same extent
as - and together with - all other citizens in determining the
conditions which shape her or his life?
- EQUALITY: links these themes of social justice and democracy
 There is an assertion of the right of all citizens to share in society's
benefits and to participate in collective life.
 Democratization and social justice can be considered in relation to
political institutions, economic enterprises, domestic
relationships, community organization, etc.
- Authors of the book reject the fatalism and fearfulness that make these
important moral and political issues absent from influential currents of
contemporary opinion.
Some agreements (by contributors of the book) as to the issues posed
- Planning and administration is important in securing social justice
 Prosser and Cotterrell: collective participation of citizens in new
forms is vital to legitimize the processes and aid their efficiency.
 There is a need to bring processes of decision-making closer to
citizens
 Hirst: plurality of associations, rather than an omniscient state,
should be the provider of benefits and the locus of participation.
 Kingdom: cohabitation agreements is also a plea for self-
determination and pluralism in social arrangements.
 Cotterrell: seeks a variety of state and community levels of
regulation and participation.
 Prosser: emphasizes the importance of participation as a means of
ensuring that information informs planning.
- Need to re-examine the vague but powerful doctrine of the rule of law.
 McBarnet: Lawyers invoking the rule of law is, in certain respects,
a powerful device for defeating egalitarian regulatory strategies.
 (examined the role of lawyers in facilitating tax avoidance and
other legal devices to aid the economically strong)
- Themes of the increased power of the state over the individual citizen
and the ambiguous meaning of "liberty" in contemporary corp. society
 Picciotto: the relationship between the internationalization of
capital and its interaction with international regulation shows the
half-hearted character of state action to regulate monopoly
power and the international power of capital.
 Bercusson: explores the crucial questions of power relationships
within the business enterprise, noting the way that these
relationships have determined choices of available sources of
regulation and dominant views of the enterprise
 There is an intimate relationship between economic power and
the nature of existing regulatory forms

LAWYERS: What lawyers can do and are doing to move society and its regulation a
little nearer to fulfilment of socialist aspirations
- McBarnet: lawyers in the fields of tax avoidance and landlord and tenant
regulation as powerful defenders of capital.
- Scheingold: "radical lawyers", by contrast, are embattled and limited in
what they can achieve in using law to fight for social justice.
- May be a weapon of the weak against the strong going against
McBarnet’s image of legal practitioners as "conceptive ideologists", as the
handsomely rewarded 'hired gun' of the propertied.

Strong emphasis on economic arenas of regulation. (refers to the book itself)

- Unless an economic structure appropriate for a democratic society
devoted to social justice can be established, gains in the creation of fairer
social conditions can be easily swept away as seen in the dismantling of
the welfare state of Britain
- Social ideals of community, solidarity, pluralism, and freedom must be
reinforced with serious analysis of appropriate regulatory structures of
the economy.
- International financial and commercial uncertainties, together with the
exclusion of large parts of the population of countries such as Britain from
any role in the productive activities of economic life, and the apparent
inability of the present economic order to provide even basic welfare for
many citizens, show the necessity for this analysis.