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Socialist Legality: Problems of Power; The Latter Days of Philosophy

Socialist Legality Problems of Power
In the workgroup on ‘Beyond Formal Justice’ – which met
as a subcommittee of the recent conference of the International Sociological Association held in Antwerp – a
remarkably diverse and captivating series of papers was
presented, detailing and critically appraising the developments and difficulties of actually existing legal systems
within socialist and post-revolutionary societies – specifically Comrade Courts in Bulgaria (Stafka Naoumova) and
socialist legality in Mozambique (Albie Sachs) – and also,
and perhaps of more immediate applicability, the presentation of a series of primarily descriptive studies of
‘alternative’ or informal sub-systems of quasi-legal or in
some sense coercive patterns of order maintenance within
predominantly capitalistic economic and legal systems. The
latter set of papers covered informal courts and ‘law enforcement’ in the townships of South Africa and their relation to the political struggle against apartheid (Sandra
Burman); village courts in Papua New Guinea (Abdul
Paliwala); community justice within the various cooperative and communal movements in contemporary Britain
(Stuart Henry); as well as the legal regulation of sterilisation (Elizabeth Kingdom); a case study of the Planning
Appeals Commission in N. Ireland (Brian Thompson); and
finally, a paper on positivist conceptions of ‘Rights’ (Paul

The work departed from the longstanding tradition of
theoretical evasion of the substantive problems of the administration, exercise, and justification of post-revolutionary legality (in the sense of coercion) and similarly the
concrete problems of order maintenance and political
regulation of relations of social reproduction within noncapitalist nation states. The importance of critically questioning the all too easily received notions of ‘popular
justice’ and of spontaneous and informal forms of dispute
settlement is that of concretising (one is tempted to say
secularizing), and so departing from, maximalist theories
of revolutionary change, theories which have all too often
postulated a dichotomy between municipal legal systems,
viewed as the wholly negative product of capitalist modes
of production, and some version of a communist society of
voluntary or spontaneous self-regulation, free of law.

If the maximalist theory of the withering away of legal
control needs to be rethought, it is precisely because
radical legal theory cannot predict – let alone answer – the
problems of the socio-historical inheritance of postrevolutionary societies. As the paper on Mozambique forcefully aJlQ li!ummatmglY illustrated, the understandably highly popular decision to close the Law Faculty at the national university has to be comprehended and explained in relation to the concurrent introduction (temporary) by the same
administration, of whipping as the appropriate punishment
for black marketing offences in a context of scarcity.


The papers which dealt with Comrade Courts in
Bulgaria and with informal justice within British cooperatives and communes, could, surprisingly enough, be
interpreted as raising virtually identical issues. The context
of the critical legal studies movement is a distinct one. It
is nonetheless possible to perceive comparable antitheses
between: (0 a centralized and highly formalized state legal
apparatus and coincident system of abstract and
hierarchically organised norms of domination, and (H) the
concurrent growth of alternative informal modes of
semi-autonomous mechanisms of self-regulation, community
justice and socialist legality generally, within and despite
the larger legal superstructure.

The practical value and political significance of the
empirical work being undertaken into the concept of socialist legality is that of substantiating and co-ordinating practical knowledge of the significance of informal structures
and practices. There is ample evidence of an increasing
tendency to ignore, contradict, or compete with, the
archaic and declining normative procedural discourse of the
legal system itself. It is increasingly the form of law which
is challenged, both at the level of multinational and national corporate exchange, and equally, though distinctively, at
the level of the various organisations of semi-autonomous
counter cultures. To study socialist legality as a question
of immediate significance is therefore to endorse unequivocally the rejection of the formalist conceptions of the
autonomy of legal systems.

The work-group was convened by Brian Hipkin of City
Polytechnic. The papers (except Paliwala’s) are drafts of
the chapters of Towards Socialist Legality, ed. B. Hipkin,
forthcoming from Academic Press.

Chris Rojek
Editorial note
The following piece is extracted from a longer article
Julius T omin sent to The Guardian in response to their
ser ies on philosophy earlier this year. Julius T omin is a
Czech philosopher now living in exile in Oxford. The
Guardian did not publish anything by him. We think his
practical experience of doing philosophy under difficult
conditions is of interest to our readers.

The Latter Days of
The Guardian of Saturday January 7, 1984 announced
Martin Walker’s three-part investigation into ‘What’s gone
wrong with philosophy in Britain?’. The announcement
hinted at the evil: ‘The Oxbridge power has excluded
Marxist and Freudian taints of American and Continental
thinkers.’ But the series proved more ambitious. Walker
arrived at nothing less than foreshadowing the latter days
of philosophy: ‘In the greatest intellectual adventure that


man has undertaken, the exploration of the very essence of
mind and the capacity to think, there is not a philosopher
in sight. Perhaps they missed their chance, perhaps they
organized their faculties in the wrong fashion, or perhaps
, it always had to be this way, and the pursuit of the mind
will always remain beyond the reach of philosophy.’

On what grounds has Walker abrogated a future for
philosophy? He defined ‘philosophy’s unique strength’ as
that of having ‘the longest institutional memory of any of
– the academic disciplines, back to the ancient Greeks •••
back to Buddha too. Nothing is forgotten; all ideas remain
for potential recycling.’ Thus the end of philosophy is in
sight: ‘We might just be living in the last generation when
this holds true. In Japan, in America, and in research centers in Europe, there is feverish activity under way to
build something called the fifth generation computer, a
machine that can think.’ (The Guardian, Wednesday January
11, 1984).

How is the machine able to think to deprive philosophy
of its standing? Walker found philosophy’s strength in its
long institutional memory. Does he suggest feeding all the
contents of philosophy books into the fifth generation

At this point I feel like apologizing to a Czech police
officer. In 1957 I was imprisoned for refusing to undergo
military service. My father was questioned. Asked what
was his education, my father said that he studied philosophy. The fifties in Czechoslovakia were marked by hard
dogmatism, the dogma about the end of philosophy was sacrosanct. Bits of propaganda must have penetrated the memory structures of the interrogator’s mind. ‘I know what
philosophy is,’ he exclaimed. ‘It is a book this thick.’ As he
indicated the thickness of the book with his fingers, my
father envisaged him rampaging through the public libraries
in search of forbidden books.

What was there in Walker that reminded me of the
story? His defining the strength of philosophy by the longest institutional memory. In saying so, he must mean philosophy in books and libraries. He cannot mean philosophy as
a living human activity. If we understand philosophy as
always anchored in human lives, and do not mistake it for
sediments of philosophic activity, the very notion that it
could ever be surpassed by computers is absurd.

Walker points out the evil and proposes remedies. The
evil lies in Oxford’s preoccupation with classical philosophy. It could have been exposed earlier but for the
Prague interlude: ‘Oxford dons could counter any suggestion that they and their classics are out of touch by referring to a brave and thrilling experience that many of them
have recently enjoyed. It began when Julius Tomin ••• asked
for moral and intellectual support… It is cruel, but illuminating, to point to the contrast between Oxford’s Czech
experience and the effect of Vietnam upon American philosophy. Simply, Vietnam thrust moral, ethical and political
issues to the forefront of American intellectual life’ (The
Guardian, Tuesday January 19, 1984). Walker implies that
the Prague involvement of Oxford philosophers did not
raise moral and political issues concerning intellectual life
in Great Britain or in Czechoslovakia.

There was a moment when Czechs compared their experience to that of Vietnam. Within hours of the Russian
invasion of August 21, 1968 Prague walls were covered
with inscriptions: ‘USA in Vietnam – USSR in Czechoslovakia’. It did not occur to me that the experience of
Oxford philosophers in Prague could be compared with the
effect of Vietnam on American philosophers. I leave the
claim that the contrast ‘is cruel but illuminating’ hanging
in the air w i thou t discussing it any fur ther •
Walker writes, quoting Gellner: ‘The Czechs were
polite, but they really did not want to hear any of the
Marxist-inclined people like Steven Lukes because they had
enough of Marxism, and they did want to hear right-wing
people like Roger Scruton not because they were any good,
but simply because they were conservative and this was

It is true that my students felt disappointed with a
lecture on Marxism from a philosopher of whom a lot was
expected. The blame lies entirely with me. Charles Taylor
visited my seminar the day my wife returned from hospital
blue all over her face – the consequences of an assault and
miscarried attempt at abduction; Zdena Tomin was at the
time the only spokesperson of Charter 77 left at large, the
other spokespersons were imprisoned. From the night of
the assault 1 hardly had time to sleep properly. 1 was in the
Zoo serving my night-watchman’s duty when our neighbour
called: Zdena was assaulted when entering the house; fortunately the masked man was driven away by a group of
people returning from the cinema; Zdena was taken to hospital. 1 left the Zoo, visited my wife in the hospital, got all
the information she could give me, returned to the Zoo and
wrote an open letter to the president of the republic. As 1
left the Zoo at dawn 1 distributed the letter – copies made
with the sole help of carbon paper; any other type of multiplication, if available, would have meant imprisonment.

With every further copy delivered to the next Charter 77
signatory 1 felt that our chances of surviving the incident
were growing. My sold means of transport were my feet
and public transport (my driving licence was confiscated
right after 1 signed Charter 77, and anyway, we had to sell
our car a long time before that). Later in the day 1 visited
the hospital. The chief sister told me that my wife was in
a coma; the chief doctor forbade any visits. 1 told her she
had bad luck, as 1 had talked to my wife shortly after the
assault, in the hospital. I gave the sister and the chief doctor an hour to think better: ‘I go to the Central Committee
of the Communist Party to inform them of the case. When 1
come back 1 want to talk with my wife.’ 1 returned to the
hospital from the Central Committee and talked to my
wife. My wife complained of terrible headaches. She was
not helped by having to assist suffering patients in an
overcrowded room during the night, the sisters did not
care. The next day I learned from an inept interrogator
that an ambush had been prepared for me as well. I escaped it by leaving the Zoo for the hospital. The interrogator tried to find out how it happened that the action in
the Zoo failed. The oncoming night a completely drunk deputy director of the Zoo visited me in the Porter’s Lodge; ‘I
was told you were kidnapped the other night. So I called
the police.’ 1 spent another night writing an open letter,
this time to the minister of internal affairs. The new information about the case had to be made public. Once
again 1 had no sleep after my night service. After distributing the letter 1 began to translate it into English. At
that point I was visited by German students. They wanted
me to give them a lecture on ethics. 1 agreed if they would
have my letter translated into German and published. They
took me for lunch to Vikarka at Prague castle, the students
had reserved there the big hall of the restaurant. We were
about to leave – as many students as my flat would take
planned to go with me – when torrents of rain started to
pour down. 1 asked the waiter whether we could stay, me
giving the students a talk in the hall. The Germans paid
well; the waiter welcomed our prolonged stay. And so I
gave my lecture on ethics at the Prague Castle ‘under the
nose’ of the president and his guard. That evening Charles
Taylor came to lecture to my seminar. He offered me five
topics from which I could choose. I rejoiced when 1 saw
Marxism on the list: ‘A lecture on Marxism I could interpret even on my death bed.’ The result was far from glamorous. That evening 1 realized that we could not afford any
more weak performances. The next day as we were heading
for an abandoned quarry deep in the Karlstein woods – the
place of our picnic and of Charles Taylor’s next lecture – I
told Charles Taylor: ‘You gave us a standard university
lecture. That is not enough for us. We put our lives at
stake for the sake of free philosophic thought. We do not
pay you a penny and yet we ask from you your best.’

Taylor’s remaining talks to my students were the best.

Those were the days when 1 felt that there were philosophers in the West on whose moral and intellectual sup-



port we could rely in working for a more open society in
our country.

Steven Lukes visited my seminar a few months later.

He did not lecture on Marxism to my students. His
Marxism-lecture was for a circle of philosophers whose
careers were was interrupted by the purges following the
Russian invasion of 1968 or after they signed the Charter;
77 document. I was invited to the circle as an interpreter.

Lukes talked about the incompatibility of Marxism and
Ethics – the theme of his forthcoming book.

The incompatibility of Marxism and Ethics dominated
Marxist thought in our country in the fifties, but the sixties were marked by growing interest in ethics among
Marxist thinkers. The attempts to integrate ethics into
Marxist thought were brought to an abrupt end with the
Russian invasion. None of this was reflected in Steven
Lukes’s lecture. He seemed to expect appreciation for his
discovery that Marxism and Ethics were incompatible. But
the audience perceived his talk like lecturing to farmers
that cows give milk. In spite of many misunderstandings
that surfaced in the following discussion, I welcomed the
event. In the purges of 1970 philosophers turned into antiMarxists as they lost their Communist Party Membership
Cards. In the atmosphere of the following years it was virtually impossible to discuss Marxism. Such a gap in reflectivi ty should be overcome, if only for the sake of intellectual and moral integrity. Scholars from the West might
provide an invaluable impulse. But they must try and reflect on what happened to Marxism and Marxists in our
country: ‘I hope I do not ask for anything alien to theoretical enquiry of Marxism; the experience of our country lies
in the heart of the historical heritage of Marxism.’

If Oxford philosophers chose the easier way and began
sending to Prague right-wing people regardless of their
capacity to do philosophy, and if it all ended ‘like an Iris
Murdoch novel’, I still do not see how it all is linked with
classical philosophy in Oxford. But I fully agree with
Walker that Oxford-Prague experience offers material for
reflection. In the absence of any open discussion on the
subject I may venture to point out at this stage:

1. There are no easy ways for philosophy. If philosophers choose to follow easy ways for the sake of ‘thril-

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ling experience’, sooner or later it proves fatal for authentic interests of philosophy.

2. Philosophy essentially requires openness, especially
in Eastern Europe with its sickening secret-police-Iaden
atmosphere of secretiveness. What positive values can philosophers from the West bring if they renounce openness? It
is a sick philosophy that deems itself worthy of hiding.

What philosophy can give, if true to itself, is the capacity
to think free, to talk free and to act free vis-a-vis the
totalitarian tendencies and structures.

For three years now I have shared the lot of unemployed
British philosophers. I wonder when we will begin to organise to help each other in our pur sui t of philosophy. Philosophy is a life-task; who ever really tasted it cannot give
it up – or resume it – according to the dictat of the
‘market’. If the universities begin to produce graduates who
would insist on doing philosophy even if unemployed, philosophy will start to pay its due to problems of the present
world. Socratic insistence on free time for philosophy
became embedded in our life where we are, for the most
part, the least aware of it. Socratic concept of free time schole in Greek – gave the name to our schools; intellectual activity requires free time for its unfolding. Facing the
Athenian jury, Socrates raised the claim to have schole institutionally guaranteed for the life of philoso~The
modern concept of redundancy deprives people of human
dignity. It is in the power of philosophy to restore the
sense of dignity and direction to free time. Philosophy can
transform unemployment into tie of free intellectual effort
for all those who can pursue it.

And so I confront my colleagues in Oxford with the
request of three hours in a fortnight jointly devoted to
Plato and Aristotle; three hours during which an
unemployed philosopher might participate in intellectual
exchange with his more fortunate colleagues.

fortunate? As long as they do not find time and capacity
for such an activity, I would not call them more fortunate.

Julius Tominc

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