On 11/6/06, David B. Shemano <[EMAIL PROTECTED]> wrote:
I think you are unnecessarily confusing issues. For instance, you may be right that the Supreme Court justices may decide a case based upon prevailing political conditions, but that is a different point than if you want to discuss how a political order should deal with dissent, the case law is an excellent place to start. Furthermore, you are confusing the decisions of the executive and legislative branches (it is a good idea to imprison members of the Communist Party) and the judicial branch (can the government imprison members of the Communist Party if the Constitution provides that Congress shall make no law respecting the freedom of speech and assembly). The case law reflects abstract principles and concrete application that are the product of 200 years of dialectical argument. You can learn a lot from the case law even if you disagree about specific decisions.
It is certainly possible that socialists can learn much from the case law in the USA. But socialists first need to figure out what our philosophy of justice in particular and political philosophy in general is. Marxists, beginning with Marx himself, have developed some cogent critical analyses of how criminal justice works under this or that capitalist state. But, imho, Marxists have not developed even a rudimentary idea of what system of justice is in keeping with a society in transition from capitalism to a mode of production for human needs and desires. Marxism, like religion untamed by the separation of church and state, is an illiberal philosophy. But the dominant conception of justice -- including a notion of civil liberties -- under modernity has been a liberal one, developed in the process of commoners' struggles to limit the power of the sovereign (in the transition from feudalism to capitalism in Europe and the transition from a colony to a nation-state in America) and the process of developing means to safeguard the rights and liberties of a minority (originally only a minority who are in possession of means of production, later expanded to other kinds of minority, such as racial, sexual, and other minorities) by limiting the domination of the proletarian majority. That Marxists have not openly embraced political liberalism and its system of justice in particular and government in general (independent judiciary, checks and balances, etc.) is therefore understandable. But we have not developed any coherent alternative to it, even after many decades of experience of socialist states and their problems. All most of us have done is to implicitly adopt political liberalism while making excuses for actually existing socialist states not practicing it or blaming leaders as if the problem were merely a matter of good or bad leadership. That's not a convincing act, even to me, let alone to those who are not interested in Marxism. -- Yoshie <http://montages.blogspot.com/> <http://mrzine.org> <http://monthlyreview.org/>
