London School of Economics

Review
Author(s): Roger Scruton
Review by: Roger Scruton
Source: The British Journal of Sociology, Vol. 39, No. 4 (Dec., 1988), pp. 625-628
Published by: Wiley on behalf of The London School of Economics and Political Science
Stable URL: http://www.jstor.org/stable/590507
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 BOOK REVIEWS
Law, Socialism and Democracy Paul
Q. Hirst Allen and Unwin 1986 167pp.
£15.00 £6.95 (paper)
Law, Socialism and Democracy argues for a
credible democratic socialism at a time
when Western electorates are increasingly
suspicious of socialism. Hirst's principle
contention - interestingly argued and
undoubtedly true- is that socialism can
avoid tyranny and win popular confidence
not by destroying law, nor by causing it
to 'wither away', but by making utmost
use of it. Socialism requires more law,
not less. For without law it is impossible
to co-ordinate in a peaceful way the
large-scale changes necessary to socialist
organisation, or to induce the citizens to
consent to them.
Hirst's theory is presented as a soci-
ology of law; nevertheless, despite exten-
sive example, his arguments are more a
priori than empirical, and the result reads
like a work of political philosophy. His
main problems are therefore conceptual,
involving the definition of socialism, and
the definition of law. His short definition
of socialism is 'the concern for equality
and the provision of resources and ser-
vices on the basis of need'. His long
definition consists in a defence of icor-
poratism', in which groups are organised
according to egalitarian principles of
power-sharing, and given 'direct cor-
poratist representation' in the political
system. In elaborating this theory, Hirst's
. .
wrltlng zecomes extremely inspissated,
and, while the proposed form of govern-
ment bears a passing resemblance to
Mussolini's system for ruling the Italians,
it is hard to see what it would amount to
in the context of modern Britain. (It is
Britain which is throughout on Hirst's
mind, just as it is in the British tradition
of guild socialism, and G. D. H. Cole's
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the author.
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defence of it, which leads him in this
continental direction.)
Hirst is half-aware that his short
definition of socialism invokes the 'spectre'
which has haunted the electorates of
Europe. For who does the providing, and
who assesses the need? He is also half-
aware that 'democratic capitalism' has a
far better record at providing for material
needs than current forms of socialism -
despite the fact (Hayekians would say
because of the fact) that nobody is charged
with 'providing' and nobody defines the
'need'. Much of Hirst's discussion con-
sists, therefore, in an attempt to come
to terms with the arguments against
centralized planning, and in favour
of market distribution. If the result is
obscure, this is partly because of two
disabilities on the author's part which I
can only describe as emotional.
The first consists in Hirst's refusal to
engage with the 'Right', even when it has
offered a canonical expression of the
argument that concerns him. (There is
one exception to this: a brave and
laudatory discussion of Carl Schmitt.
But it is the exception that proves the
rule, Schmitt being no more averse to
socialist ways of thinking than the
National Socialists with whom he was for
a while identified . ) The problems of
distribution are therefore discussed en-
tirely as though they had been discovered
by market socialists. The fact that market
socialism was an attempt to answer
Mises and Hayek, and the fact that
Oskar Lange's defence of it has been
subsequently refused from the 'Right'
(by Hayek and Buchanan among others)
are not mentioned.
The second disability lies in Hirst's
caricature of mankind. Hirst is honestly
concerned by the criminal record of
socialist states, and sincerely committed
626
to the view that socialism must benegit the
individual, and not merely control him.
Before embarking on the easy part of the
socialist programme, therefore- the re-
organization of society - he must describe
the difficult part: the human needs that
must be provided for. Now there are
many such needs- companionship, love,
religion, morality and a sense of the
sacred - in addition to freedom, food and
exercise. But so remorselessly materialistic
is Hirst's view that he overlooks all such
features of man's social life, or else
displaces them in favour of a supposed
need for 'politicization'. It is very difFlcult
to recognize ill his abstract vision any-
thing remotely like a human countenance:
he often speaks of human society in the
language appropriate to the breeding of
horses. If socialism in fact treats people
more or less like horses, it is hardly
surprising, given such a theoretical
starting point. The fact is, however, that
people are fulfilled not through the
provision of fodder, still less through
politicization, but through friendship,
love, family, learning and worship. If
'democratic capitalism' is to be criticized,
it is precisely because it makes such a
poor job of providing for those needs
(though not so bad a job as socialism,
which has frequently set itself resolutely
against them).
On the subject of law Hirst is constantly
interesting. He shows conclusively that
'forms of legal regulation cannot be
dispensed with under socialist forms of
government' (at least if socialism is to
command the consent of those whom it
organizes). Law, he suggests, involves an
apparatus of legislation, the enunciation
of rules made and enforced by that
apparatus, and a machinery or adjudi-
cation.
In addition, there must be a legal
definition of the status of those subject to
the law, and a claim ofjurisdiction. Hirst
recognizes the vital importance of legal
personality (including corporate person-
ality) in determining the sphere of law. A
legal system already constitutes a form of
social ordering, and without it that ordering
law would be defective. Hirst does not
notice that existing socialist legal systems
are defective in precisely this respect. In
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Book reviews
'actually existing' socialism the status of
litigants is undefined over large areas of
common mischief, (nuisance, for example,
and pollution) and the principle collective
agents- the Communist Party and the
Secret Police- have only defective per-
sonality and can never be brought as
such before the law. Since between them
those agents control all others, and since
they are the major sources of social
conflict, this makes nonsense of Hirst's
claim that states like the USSR have a
kind of 'rule of law'. (On the subject of
sovereignty, however, Hirst is very ob-
scure: he both accepts the necessity for a
unified command structure, and yet re-
pudiates the normal name for that structure
- 'sovereignty' - as the tainted child of
bourgeois parents.)
Apart from a passing and dismissive
remark, Hirst does not discuss the
'separation of powers'. This is a pity,
since it causes him to ignore judicial
independence, the absence of which
marks a further defect in the law of
'socialist' states. Without j udicial in-
dependence, law is a source of conflicts,
and not a means of resolving them. It is
through a study of judicial independence
that one comes to appreciate, both the
proximity of legal to moral ways of
thinking, and also the force of such
arguments as those adduced by Dworkin,
in his discussion of'hard cases' in the
common law.
Despite being fairly dismissive of
'bourgeois' jurisprudence, Hirst feels
called upon to criticize Dworkin (upon
whom he also bestows a few compliments)
on the ground that rights cannot be
taken so seriously as all that. This criticisrn
is neither an answer to Dworkin (who is
concerned to distinguish the j udicial
determination of a right from a decision
of policy), nor a refutation of the liberal
view that rights are a cornerstone of law.
Hirst shows only that rights can conflict
- something which no liberal should
deny. It is because of such conflict that
j udicial reasoning in hard cases must
range beyond the explicit provisions of
the established law.
Hirst's criticism of the language of
rights forms part of a wider attack on
bourgeois individualism, and on the
Book reviews
conception of !aw which has historically
associated Wit}l it. I do not think that this
attack succeeds. At best it provides an
argument against 'natural' rights. It
certainly does not show that positive
rights should not be construed as the
liberal construes them - namely, as
barriers to outside interference in the life
of the individual. The great tradition of
'bourgeois' philosophy has made a re-
sounding case for the distinction between
private and public, and for the 'individual
sovereignty' necessary to a free private
life. Take away rights, and you take
away the threshold, beyond which the
State must not venture. It is the absence
of this threshold, and the consequent
inability to 'close a door', which makes
life in Eastern Europe so anxious and
humiliating.
It seems to me that, for all his com-
mendable suspicion of iactually existing
socialism', Hirst is in fact too lenient in
his consideration of the USSR and its
'allies'. He denies that these states are
'totalitarian', on the spurious ground
that they are, like the rest of the world,
governed by an apparatus in which a
plurality of elites contend for power. If
there is a use for the word 'totalitarian' it
is not so as to describe the concentration of
power, but so as to denote the tendency
towards the total control of civil society
by the state. Full totalitarianism (as in
Vietnam and Romania) betokens total
control; partial totalitarianism (as in
Poland) occurs when spheres of free
association are still rescued from the
State (in this case by the Church),
even if they are not adequately protected
by laws of incorporation . I t is surely
quite reasonable to describe states in
which all associations must be registered
with and guided by the ruling Party, in
which corporate property amounts at
best to a feudal tenure without right or
subinfoedation, and in which members
can be introduced into and expelled from
every association at the behest of the
same ruling power, as totalitarian. Nor is
this monstrous attack on association an
accidental by-product of the socialist
attempt to take control of society, and to
turn it in a new direction.
Hirst also overlooks other defects in
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627
actual 'socialist legality', besides the two
already mentioned. First, whole areas of
civil law, wiped out by the Bolshevik
Revolution, have never been properly
restored: crucial areas of contract law,
for example, of tort and the law of
associations, did not survive the judicial
chaos of Lenin's years. Since those
branches of law regulate the most funda-
mental and frequent conflicts, their
absence shows socialist legality to be
deficient precisely in the sphere where
law is most required. Secondly, laws
defining political and 'social' offences are
worded so vaguely as to be without
predictable applications. Such statutes
can therefore be used (and are used) to
entrap anyone at any time, and give a
mask of legality to what are in effect
arbitrary exercises of sovereign power.
Thirdly, and relatedly, case law is defec-
tive, and no authoritative record is kept.
Hence no terms gain in precision from
their repeated application, and the
mechanism whereby law is rendered
knowable and predictable is absent.
Moreover, attempts to keep a precise
record - as was done by VONS in
Czechoslovakia- lead to penalties under
the very statutes whose meaning stands
to be defined. In such circumstances the
law may have the form of a rule; but it is
not a rule, since it forbids and recom-
mends nothing. In my view, those three
defects, together with the two already
mentioned, are so enormous as to warrant
the conclusion that communist law is not
law at all, but only a Potemkin version,
designed as a screen for arbitrary force.
Such considerations are pertinent to
Hirst's argument, since he is concerned
to devise a socialist legality which does
not lead to the appalling results that
have been everywhere observed under
Leninist rule. His many sophisticated
asides show him to be an able critic of
Marxism, and a sincere advocate of
human kindness. It is therefore imperative
that he confront the reality of actually
existing socialism. While I look forward
with dread to Hirst's socialism, it seems
to me that all of us - even those whom he
chillingly describes as 'the Conservative
enemy' - have an interest in ensuring
that our next dose of socialism is imposed
628
by people with respect for law. For then
we shall still possess the means to regain
our freedom.
Roger Scruton
Department of Philosophy
Birkbeck College
The Worker's Movement Alain Touraine
Michel Wieviorka and Franfois Dubet Cam-
bridge University Press/Maison des
Sciences de l'Homme: Cambridge 1987
322pp. £35
Deriving from the application of the
method of sociological intervention, The
Worker's Movement attempts to account for
worker's consciousness through the de-
tailed examination of its manifestations
among French rank and file workers in
the steel, petrochemical, railroad and
computer sectors. The book, structured
around four general themes - what is the
labor movement, class consciousness,
the new working classes and from the
labor movement to union policies - does
not limit itself to showing the results of
the intervention but also presents the
results of sociological research on this
subject.
The analysis starts by considering that
the history of the labor movement in-
volves a transition from a communitarian
context a (situation within which workers
can rebel or negotiate) to a voluntary
context (a consciousness where workers
define a conflictive relationship with
opponents defined as adversaries). During
this process, non-negotiable elements are
identified in a field where two adversaries
oppose each other on the basis of a
common challenge: industrialization and
accumulation of capital. Workers and
capitalists confront each other to define
the course that industrialization may
take, which both consider as an objective
to pursue. As both become aware of this
conflict, which is also a class conflict,
worker consciousness appears, closely
related to the professional autonomy of
skilled workers. From the definition of
this central aspect of the labor movement,
the authors consider its constituent ele-
ments.
Thus, the worker's consciousness is
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Book reviews
made up of the pride in being a producer
and of the economism of being a proletarian,
worried by the need to better his living
conditions. From the tension between
these two aspects it is possible to observe
the strength of labor action, which is not
only identified with the struggle for
better salaries or for the achievement of
economic rationality but also with the
struggle for the definition of general
conditions of society. Worker's con-
sciousness does not separate bread and
butter demands from the questioning of
the relations of production. It is the
tension between producer and proletarian
which gives rise to the labor movement,
distinct from trade union action.
The first two parts of the book deal
with these themes and define the elements
that will comprise the framework pro-
posed to the members of the groups to
whom sociological intervention will be
applied. It is precisely here, in the
interaction between sociologists and
actors, that the interest of the method
resides. Sociologists can try to find the
purpose of the action of the actors
studied on the basis of the elaboration
that they have developed and proposed
to the actors as 'hypotheses' for the
explanation of their acts. Sociologists
must structure a series of hypotheses that
can be recognized by the actors as the
interpretation of the purpose of the labor
movement. In this case, the set of hypo-
theses focuses on the crisis of the central
place of the worker's consciousness within
the labor movement. The authors pro-
pose that an explanatory factor of that
crisis is its division between those that
search for a professional status and those
that see themselves as marginal and
excluded from professional work. Thus,
the worker's consciousness evolves from
a situation where both elements were
united to a situation where they become
separated and tend to become united
once again. This scheme was proposed to
each one of the groups included in the
study. It was found that steel workers
accept the existence of the elements
and the way in which they interact;
workers in the petrochemical industry
manifest themselves in favor of going
beyond strictly labor objectives and show