Civil Law under Socialism, Commonweal, (2,540 words) 24th July 1886, pp.132-133.
Reprinted in E. Belfort Bax, Religion of Socialism, pp.146-153.
Transcribed by Ted Crawford
Marked up by Einde O’Callaghan for the Marxists’ Internet Archive.
IT is a common thing for persons to incorporate with their conceptions of a Socialistic state of society elements drawn from the present one, and then to complain of the incongruity of the result. Few persons dream, for instance, that the present elaborate and complex judicial system, or something like it, will not obtain then as much as now. Hence the “difficulties” of so many worthy people.
“Law” is commonly divided into the familiar categories of civil law and criminal law, though legal pedantry could doubtless confound the distinction. By civil law we understand, in accordance with current usage, law concerned with disputes between individuals involving acts which are non-criminal or of which the criminal law takes no cognisance, including all law relating to contract, or the obtaining of damages for injuries, not punishable as criminal offences. It is this department of law upon which we wish to say a few words.
Now we contend that from the moment the State acquires a definite social end – the moment, that is, the machinery of government is taken possession of by, in the name, and for the sake of, the working classes, with a view to the abolition of classes – the whole department of law will become an anachronism which it will be incumbent upon the executive, whatever form it may take, to immediately sweep away. A very little reflection will suffice to show (as the phrase goes) that the civil law referred to is an entirely class-institution, designed (1) in the interest of that class within a class so powerful throughout all periods of civilisation – viz., the legal class, and (2) of the privileged and possessing classes generally. The first point is a trite observation to every one. We all know that “going to law” profits the lawyers more than the litigants on either side. The second point is scarcely less clear. The wealthy litigant is the only person for whom law is even available, for the most part, and certainly the only person for whom it can ever be profitable. The fear of litigation is a weapon society places in the hands of the rich man to coerce the poor man, irrespective of the merits of the case, by dangling ruin before him. If we examine any ground of civil action, we shall find it almost always turns directly or indirectly on a question of property – that is, on what individual shall possess certain wealth – the chances being invariably on the side of the wealthy litigant.
But it may be said, cannot civil law be divested of its class character, and thus serve an intermediary purpose at least in the initial stage of Socialism, when current conditions are still surviving, by constituting the judge, advocate, etc., a mere public servant or functionary, remunerated no more highly than the scavenger? Could not civil “justice” thus be made readily available for all? Perhaps it might, we reply, but it would be anti-Socialistic all the same. Civil law, like all special products of civilisation, is essentially individualistic. It is concerned with the relations of two propertied individuals, one with the other, and as such cannot concern a society established even incompletely on a Socialistic basis. What recks such a society or its administrators of the private quarrels of individuals? Wilful violence done to any member of society, whatever shape it takes, is a matter which affects society as a whole – an offence against society and hence criminal in kind, whatever its degree. But the more or less obscure question as to who is in the right in a personal quarrel cannot possibly concern society as a whole. Two would-be parties in a civil action, were they to attempt to inflict their squabble upon a community even so much as on the way towards being socialised would surely deserve to be treated in the spirit in which the housewife possessed of a slop-pail is wont to treat two domestic cats that plead their causes plaintively upon the roofs at midnight. At present, of course, in a state busied in individual exploitation and scramble for possession, it matters not that an elaborate machinery is maintained, involving numbers of persons being kept from productive labour – in other words involving a waste of social power – for the sake of deciding quarrels; indeed, this machinery is an essential element in such a systems of society. For is not, the economic corner-stone of this society, contract, and do not the bulk of civil actions hinge on questions of contract? When contract is part of the economic constitution of society it is evident its legal system must take cognisance of contract; for the observance of contract then affects its existence vitally. But when contract between individuals is no longer part of the economic constitution of things such “contract” ceases to have any social importance as to its performance or non-performance. “Contract” will then be understood to be a purely private agreement. The community does not ask Peter to trust Paul; he does it on his own responsibility, and he has no right to come, whining to the delegated authorities of the community for redress if Paul proves untrustworthy, or to expect the community to waste resources in keeping up machinery for the purpose of deciding disputes between them, with the chances, after all is done and under the most favourable circumstances, of as frequently arriving at a wrong as at a right decision. The principle once established that contract rests solely upon Honour; that another agreement, tacit or avowed, verbal or written, that I choose to enter into with another man, has no law to back it – must inevitably have a moral effect in the long-run of the most beneficial kind. Civil action concerned with contract being thus entirely anti-Socialistic in principle, its abolition ought, we insist, to be one of the first measures of that people’s state whose final aim is to supersede the state itself by the Society.
To turn now to the case of civil action which does not refer to “contract,’’ and which probably to many people nursed under current prejudices will seem of vital importance to maintain the action for libel or slander, to wit. This “action” is supposed necessary to the vindication of personal character against attack. In the first place, the law relating to libel is double-barrelled, so to speak: it is criminal as well as civil. But in referring to it I may as well say at once that I have included both aspects of it. The ambiguous nature of its rationale is pretty clearly indicated by the doubt hanging over it as to whether it is directed against false imputations or any imputations whatever, true or false. The law, a far as we understand, technically covers both; but the principle of farthing damages and no costs conveniently obviates the constant display of the fulness of its absurdity.
No greater or more unwarrantable restriction on freedom of speech or writing is, to our thinking, conceivable than this law of libel and slander. We beg the reader to put aside his prejudices for a moment, and tell us whether it does not bear the most unmistakable impress of a corrupt society which it is possible to have. The law of libel, look at it what way one will, seems to be expressly designed to protect the acute rogue from the most legitimate consequences of his roguery. Vindicating character, forsooth, in proceedings for libel! Bah! Mr. Belt vindicated his character in this manner, got swinging damages, and a few months afterwards a jury convicted him of a more heinous offence than that originally alleged against him. Every man of the world knows that the successful issue of an action or a prosecution for libel does not mean the clearing of the plaintiff or prosecutor’s character morally. More often than not it merely means that he is a clever rascal rather than a stupid one, or that he has got a clever counsel to represent him. The real raison d’etre of the law of libel in our hypocritical, hollow class-society is, as already hinted, written on its face: it is a stockade to protect rogues, and behind which every dirty scoundrel can sneak. The “privileged” classes know that their characters in many cases “will not bear investigation,” to use the familiar phrase – “shady” transactions in business with neighbours’ pockets; “shady” transactions out of business with neighbours’ wives. What man of social position – above all, what self-made man – does not owe his position, at some point or other of his career, to something that, were it exposed to the light. of day, would constitute a libel for which, in the chicanery of law, he could obtain a verdict with heavy damages against the exposer? This explains the cold shiver with which the proposal to abolish all legal “protection of character” (sic!) is greeted by the average sensible man of business. His way of looking at things naturally extends itself to people who have no personal motives to influence them: the tendrils of a sentiment having their root in class corruption ramify far and wide. What every Socialist ought to stand by is perfect freedom of speech and writing so far as personal character is concerned. The Socialist is the last person who ought to form harsh judgements of, or hardly deal with, individuals for their failings but he ought nevertheless to insist that every man has a right – the advisability or charity of doing so resting with himself – that he has a right, we say, to make known his opinion concerning any other man, be it good or bad, just or unjust, in any way he pleases. We all know that our present class-society – with its commercial and its social rottenness – could not stand for a month the wholesome douche which would result from the withdrawal of the legal protection behind which successful rascaldom skulks, at the first scent of danger discharging its “solicitor’s letter” threatening “proceedings.”
I have been accused in some quarters of intolerance, because, forsooth, I think that children and ignorant and weak-minded persons (so long as such exist) ought to be protected by society from the ravings of a certain class of dogmatic theologians, even if necessary to the placing of such theologians under physical restraint. Probably the same persons who profess such unbounded Laissez faire on current lines, and whose Whig ideas of “toleration” are so shocked at, the bare notion of any repression of opinion or free speech, even when it means the terrorising or susceptible imaginations to the point of insanity, would evince at the notion of the right of free speech being extended to the opinion that they are morally undesirable persons. The bourgeois Radical finds his free-expression-of-opinion principles begin to fit him rather tight here. He finds it is surely most unjust that such an abominable lie should be circulated about him with impunity, when no one that knows him can have the slightest suspicion but that he is a most desirable person – especially morally. Free speech, my friend! Your adversary merely expresses an opinion concerning your actions or your motives. It is open to you to say he is wrong, and to show reason for believing that not you but he is the undesirable person for that matter. What more do you want? Is it “the part” of a magnanimous mind secure in a sense of its own rectitude to wish to persecute the misguided wretch who presumes to express an opinion derogatory therefrom? Of course, given a law of libel we are well aware an individual may find himself handicapped in not availing himself of it, since in the event of a direct attack on his character, if he does not “clear” (?) himself, public opinion will allow the case against him to go by default; but this is no argument for the maintenance of the system. What I contend for is the right of every man to impeach my character, if he cares to, to the top of his bent, provided I have the same right as regards his. The abolition of legal restraints in free criticism of character, it is true, might lead at the outset to a prolific crop of mere malicious slanders. Like a new toy such criticism might at first be a constant recreation with some people. But it is easy to see that this would cure itself in a very short time. Assuming, as will probably be urged, that every man having a grudge against another would instantly proceed to circulate the statement that he had robbed his aged father, and that his untiring attentions at the bedside of his sick wife were to be explained by the fact that he was engaged in administering digitalis in small doses, or that his solicitude for his niece’s welfare masked incestuous relations, how long would it be before every sane person had ceased to heed any allegation made respecting another without corroborative evidence? Things having reached this stage how much longer would it be before the fashion of making false allegations had died out? Even now, who heeds the whispered insinuations made at election times about the character of rival candidates; or the many suspicions places in which Mr. Gladstone or any other public man is said to have been seen. The very fact of the existence of a law against slander keeps the practice of slander alive by giving evil insinuation a sting much to the detriment of the man against whom they are groundless. The slanderer can always plead the terror of the law in excuse for not giving definite shape to his dark hints. He “could an’ if he would” dilate upon certain things he knows, but prudence compels him to be silent as to any specific charge.
The argument is commonly used, that were “legal redress” for libel and slander removed, physical force would be employed and breaches of the peace ensue. We hardly think the really calumniated would so conspicuously put themselves in the wrong. The employment of physical force against the “allegator” is often strong presumptive evidence of the truth of the allegation. An assault is no answer to a charge –
Und könnt’ ich sie zusammen schmeissen
Any scoundrel can commit an assault or get one committed for him, and the legitimate inference is that the intention of committing the assault was only the last resort of an ignoble mind unable to rebut the charge. In any case, personal violence is a criminal offence, to be dealt with as such. The baselessness in reason and inutility in practice, so far as honest men are concerned, of laws against libel is so plain, in short, that they may be taken as the most crucial illustration of the truth with which we started, that they exist, like all civil law, firstly, for the sake of the legal class; and secondly, for the benefit of the many doubtful personages that throng the commercial, political, and “society” worlds, but whom it is not convenient to have exposed. They are emphatically class laws.
1. “And if I could beat them up, I still couldn’t call them liars.
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