The Morrow of the Revolution, Commonweal, 28th May 1887, p. 173.
Republished in The Ethics of Socialism, pp. 84–89.
Transcribed by Ted Crawford.
Marked up by Einde O’Callaghan for the Marxists’ Internet Archive.
WE SOCIALISTS are often asked the question, what would you do if you found yourselves with power in your hands tomorrow? This question is not an unreasonable one, and I think it is one that Socialists should discuss before the day finds them unprepared. In Paris eighteen years ago the problem had to be faced in a practical manner, but the leaders of Paris were then unhappily in utter confusion as to its solution. It is true they performed the ordinary executive functions of an administration admirably; and it is sufficient to point to their example to confute those who affect to laugh at the notion of men unacquainted with official red-tape being put into responsible positions. But when it came to the question of any new departure to be made the council-room of the Commune was the battle-ground of rival propositions. Now it seems to me that it is not unprofitable for Socialists to enter upon the discussion of such points as these at once, and as far as may be to “thrash them out,” before rather than after they are called upon to act.
The usual reply to the question referred to in opening is that we intend to nationalise or communise the means of production and distribution. This is undoubtedly strictly and literally correct, but from the questioner’s point of view it may possibly be regarded as what a celebrated character would have called an “evasive answer.” If further elucidation is required we proceed to explain that we mean to take over the big industries, railways, factories, banks – all, in short, that are sufficiently concentrated to admit of being worked by the State – and to proceed by the erection of communal or municipal workshops and stores on a large scale to undermine by competition the individualist-capitalist production and distribution. So far so good. But all this takes time to work itself out. “While the grass grows,” etc., says Hamlet. An objection maybe raised, therefore, that in a period of revolution it would be necessary to tale certain immediate steps of an ad interim character to satisfy legitimate popular demands and to forestall the panem et circenses schemes of reactionary demagogues – Tory and Liberal “democrats,” to wit. In other words, it may be insisted that the purely economic action of the organised Socialist administration must be supplemented by legislative and juridical action for the former to have the chance of taking effect. That this is the case I am myself convinced. What action, then, would be the right one to be taken in addition to the orthodox economic readjustment above referred to, and which would of course be the mainspring of the great social reconstruction? In this instance, as in many others, I find the traditional three courses present themselves; with this difference, that here, as I take it, not one only, but all would have to be followed, since they are all more or less interconnected. To be brief, the first is the reduction of the working-day to eight hours or less; the second, the all-important correlative of this action (without which I fear the limitation of hours would be merely illusory), viz., the enactment of a law of maximum and minimum; and the third, the abrogation of “civil” law, especially that largest department of it which is concerned with the enforcement of contract and the recovery of debt. As to the first of these provisions, it is unnecessary to say much, the reduction of the working-day having become a plank in the working-class platform throughout the world. But the second and third may need a word of explanation. By a law of maximum and minimum, then, we mean the fixation of a maximum or compulsory price for all the necessary articles of daily consumption – ordinary food, clothing, firing, etc. – and a minimum or lowest wage for the day’s work in every industry, or at least in all the more important industries. This, it seems, is a necessary concomitant of a reduction of the working-day, otherwise the price of necessaries must tend to rise in proportion to the increased cost of production, or wages to fall, or perhaps both. Of the abolition of civil law I have elsewhere spoken, showing this law to be indeed the logical result of an individualist society and the indispensable corollary of such a society, but to have no reason of being in one based on collective possession of the means of production and distribution. The grounds of this are obvious. In an individualist society, where every man is fighting for his own hand in the mélée of competition, he requires as the first condition that the laws of the war should be observed – that is, that plunder and murder should follow the prescribed rules, since if they are departed from his position as a combatant is prejudiced. In fact, without the enforcement of such rules the fight itself would be impossible, so that they are vital even to the very existence of competition or the commercial system.
On the other hand, under a Collectivist régime they are neither necessary for the system nor for the individual. The latter has his livelihood already assured by the constitution of society in return for his contribution to the labour of society. Hence, he is not dependent for his subsistence upon any contract or agreement he may choose to make with other individuals. Any such agreement must therefore become a purely subsidiary and private matter, with which he has no right to expect Society to concern itself. Socialism implying that contract has ceased to be the corner-stone of economic conditions and social relations, it would be but natural that a revolutionary government should proclaim that fact in abolishing its legal sanctions. But there are additional reasons, and those of expediency, why this should be an immediate measure: (1) The abolition of enforcement of contract (including recovery of debt) would instantly put a stop to an enormous mass of swindling now carried on under the eyes of the law; (2) would effectually preclude the possibility of even temporary competition with the government or municipal industries; and (3) would as effectually prevent any evasion of the law of maximum and minimum. In fact, the abolition of the courts taking cognisance of contract (including the recovery of debt) would of itself so dislocate the whole commercial system, as to render its resuscitation during any period of temporary reaction well-nigh impossible.
These three provisions, I take it, ought to be the immediate issue of the attainment of power by a Socialist government. For the rest it might be further asked by one desirous for light, what attitude would a Socialist administration adopt towards the existing criminal law? To this also, so far as I am personally concerned, I am prepared with an answer. The customary laws of Anglo-Saxon tribal society, which form the basis of the so-called common law of England, as they became inappropriate to the new conditions, have been gradually superseded by legislation or by statutes, and these form the main body of our modern criminal law. Westminster has dictated statutes which have taken the place of the local “common law.” This is necessarily the case as primitive society merges into civilisation. Civilised law, which is based en the independence of the individual and on the personal possession and control of property, is necessarily opposed to “customary law,” which presupposes the dependence of the individual on a group and the collective ownership of property by that group. The latter (viz., customary law) will stretch and may be modified, it is true (as evidenced by the English “common law”), up to a certain point in accordance with the changed conditions; but beyond this it has to he supplemented, and is finally superseded by legislative enactments or statutes. Now, as Socialists, we believe that civilisation is destined to pass into a new and higher communism, just as tribal communism has passed into civilisation, and that therewith the whole of modern civilisation will become obsolete. But, meanwhile, and until the economic change has worked itself out in ethical change, it is clear that a criminal law must exist. The only question is whether its basis shall be a mass of anomalous statutes and precedents or a logical system. In the one case the sweeping changes which it would be necessary for a Socialist government to make world be complicated and hampered in a thousand ways. In the other they could be effected with ease. Now the most perfectly logical and connected system of jurisprudence is admitted by all students of law to be the Roman or civil law, and in modern times the system founded upon it prevalent over a part of the Continent, and known as the “Code Napoleon.”
My answer, then, to those who would ask the proper course for a revolutionary government to take in the matter of jurisprudence, is that in my view such a government should, in countries where the “Code Napoleon” does not obtain, immediately suspend the existing criminal law and replace it by this code, at the same time appointing a committee of urgency to expurgate and amend it in accordance with the new Socialist conceptions. Such expurgation, it is possible, might leave little of the original in the end, but that original would have acted as a working basis and so served its purpose. The crucial distinction, it must never be forgotten in all these matters, between the old Society and the new, is that the one is based on the absolute sacredness of personal property, the other recognises the welfare of the community alone as the one absolutely sacred claim, all other claims having validity only in so far as they are derived from this one.
Last updated on 3 May 2020