This leads me to what could be characterized as "the other side of" what is meant by "Democracy: Can't We Do Better Than That?" Let me get into this by returning again to the question of "form" (that is, formal principles and structures) as a secondary but not unimportant aspect in relation to content. As has been stressed, there is a dialectical relation between content and form: there is no content that does not also include form, and no form that does not also include content, and it's impossible to have content that does not find expression in particular forms, even if the forms are secondary and relative.
One dimension of this is the rights of the people under the dictatorship of the proletariat, including such things as "due process," in relation to relying on the masses as the fundamental factor in carrying forward the revolution. As our Party Programme* says, in speaking of the future socialist society: "While there will be a constitution embodying these principles [such as the right of the masses to rule and transform society, destroying the old and creating the new institutions and structures], merely this will not be enough. Under the overall leadership of the Party, the conscious activism of the masses must be aroused and their vigilance heightened to involve them in all aspects of political life and rely on them to politically supervise the organs of power and the leadership within them." (p. 50) And then the Programme goes on to speak to how these principles will apply to all institutions; and an example I want to cite in particular here involves the courts and legal procedures. The Party Programme says this: "If workers are selected as judges in the courts, for example, but the courts have the same rules and procedures as before, then these worker-judges will quickly turn into oppressors of the people and the courts will yet again serve as instruments of bourgeois dictatorship over the masses." (p. 48)
Let's examine this—the general principles being articulated here in the Programme and the way in which the relation between content and form is dealt with. Let's look at this in terms of the contradictory aspects and the necessary synthesis in this.
It is true that, if workers are just selected as judges, but the courts and procedures are the same as before, then this will quickly turn into a bourgeois institution and the judges will turn into all-too-familiar oppressors of the people in the legal arena. That's true and important, but the larger problem that I am trying to speak to here is how do we correctly handle the contradiction between institutionalizing certain principles and certain relations in terms of, let's say, the legal arena—involving the rights of the people and certain procedures which institutionalize those rights, a certain form of due process, wherein people cannot be punished, cannot have their freedom taken away, or other sanctions against them, in an arbitrary way and simply at the whim of this or that particular leader or official—but, at the same time, fundamental reliance is placed on the masses of people and not on formal institutions or procedures.
Of course, the misconception spread by the bourgeoisie and its slander of how we have dealt with this contradiction historically—how the proletariat in power and its vanguard have dealt with this in the experience of socialist society—is either that a few officials do exercise tyranny over all of society, and/or that they mobilize mindless mobs to terrorize individuals and deprive them of their rights without any due process. This is, of course, the way they characterized (or caricatured and misrepresented) the Cultural Revolution, as a combination of tyrannical rule and rivalry between competing elites within the party, and the efforts of particularly Mao, but also others, to mobilize mobs of people to be the enforcers of their individual whims and wills. This is obvious slander, and we know what the truth is and what the Cultural Revolution represented. But this still doesn't fully deal with—it doesn't remove the need to continue to grapple with—the contradiction between, on the one hand, a certain institutionalization of rules and procedures—including, in the legal sphere, an expression of due process—and, on the other hand, the mobilization of the masses and the conscious activism of the masses as the decisive thing.
Now, we have seen many examples in the bourgeois legal arena in recent times where, among other things, it's clear that the actual purpose and result of the bourgeois legal procedure, with its advocacy and adversarial principles, is not that the truth is either sought after or arrived at through this procedure. This process is a way, an arena, in which competing and adversarial interests battle it out, but most essentially and fundamentally it is part of the exercise of dictatorship by the ruling class. Now, in transforming society, it is going to be necessary to have laws and courts and legal systems under socialism. This gets back to my point earlier of disagreeing with Lenin about how dictatorship is rule unrestricted by and without any expression in laws.** It is going to be necessary to have laws, once the new society is consolidated; throughout the socialist transition period, it is going to be necessary to have laws and institutions, including in the legal arena.
But we don't want the kind of legal procedures where, on the one hand, the rights of people are trampled on in an arbitrary way, and the will of officials is directly or indirectly—either openly or by subterfuge—enforced over other people. Or where the masses of people are involved, but they are involved in a form of bourgeois politics where they are mobilized on the basis not of their highest interests, not of the class interests of the proletariat, but in accordance with the needs and interests of bourgeois cliques.
There is, in fact, a very difficult contradiction here. In socialist society so far, and above all in China when it was socialist, with Mao's leadership, there has been much positive experience, and we can and should learn from that. I'm not suggesting we're starting from scratch, from zero. But I think we need to pay continuing attention to summing up historical experience and developing things further in this sphere also—the legal sphere, or more broadly the sphere of relations between the people and the government. They had some very positive experience In China, particularly through the Cultural Revolution, where they would involve the masses of people in resolving legal disputes, or in resolving criminal cases. They combined a certain institutionalization of laws and legal procedures with actually mobilizing the community and the masses of people to help sort out right from wrong and truth from falsehood.
The point I'm getting at is the need to continually strive for the highest synthesis of involving and fundamentally relying on the masses as the main thing, but also finding the ways that the principles of socialism find expression in the legal arena, so that the masses of people are not subjected to or made the objects of bourgeois manipulation and bourgeois factionalism, for example. Are not reduced to the pawns of competing bourgeois interests or subjected to the tyranny of officials adopting a bourgeois approach—of people in authority taking the capitalist road, as Mao formulated it.
An important aspect of what I'm getting at here is that (as Mao pointed out in "On The Correct Handling of Contradictions Among the People") in socialist society there are still contradictions between the government and the people. This was a new breakthrough when Mao pointed this out in this concentrated way. There has been a certain tendency—and I would say for some time it was probably the prevailing tendency—in the ICM, to think that there was no such contradiction between the government and the people in socialist society.
As we know, socialist society is not only marked by, but as Mao said it is driven by contradiction between different classes and between different social forces. One important aspect of this is the contradiction between the people and the government. And this will find expression in the legal arena as well as elsewhere. It's going to be necessary to pay attention to fighting at each point—it's not a once- and-for-all thing—to forging and reforging the correct synthesis of having legal principles and procedures which actually deal with the fact that there are these social contradictions—and in particular there is the contradiction between the people and the government—on the one hand, and on the other hand that fundamentally the masses are and have to be relied on as the masters of socialist society and have to be involved in resolving these various contradictions, even those which have to be taken up through the legal arena.
Let's get right down to the practical expression of this. Here you are having a trial—you are going to have things on which people are going to be tried in socialist society, both political crimes and "common" crimes. This has been the experience of every socialist society. How do you get at the truth? You don't want the bourgeois legal procedure, which doesn't aim for and doesn't achieve the truth. On the other hand, you don't want a situation —to invoke the bourgeois caricature and slander—where you have masses standing up in the middle of the process and giving vent to and expressing subjective passions or narrow interests. Which can happen, not only in bourgeois society but in socialist society. It happened in the Cultural Revolution, and this had to be "sorted out" through the course of the struggle—the larger issues of the class struggle and the larger interests of the proletariat had to be brought to the fore, in opposition to narrow and petty personal interests and grudges. Applying this to the legal arena, relying on the masses doesn't mean that people who, for example, have a personal grudge against the defendant should all get together, come to the trial and try to shout down the defense when it is trying to make its case.
In our polemics against the Mensheviks (those who took the revisionist road) in our Party, around the question of China, we had to point out that, even in socialist society, in certain circumstances people can be mobilized around petty, even around reactionary, interests. These Mensheviks pointed to all the mass demonstrations in China celebrating "the fall of the Gang of Four." The way we answered them was to say that a demonstration organized by the reactionaries who seized power in China proves primarily one thing: reactionaries can organize demonstrations. Especially where they hold power, they can mobilize people around their program. Even in socialist society, masses can be mobilized around lines which are in fact in opposition to their highest interests. If that weren't so, the whole revolutionary struggle and even the struggle in socialist society would be far simpler than in reality it is.
So this kind of phenomenon will also enter into the struggle to achieve the correct synthesis between a certain institutionalization and a certain structuring of legal principles and legal procedures on the one hand, and on the other hand the mobilization and reliance on the masses as the fundamental thing. There's not some sort of simple answer to it. It can be resolved neither by simply paying attention to the articulation of general principles like relying on the masses, nor by relying essentially on formal procedures and structures. This is something we will have to pay continual attention to. It's something that we need to call attention to as a problem to be focussed on—even today when unfortunately there are no socialist states—in anticipating and projecting forward and putting forward to the masses a vision of what socialist society will be like. This is one arena, or one area, where we also have to pay attention to the question of what is the correct synthesis of form and content, in which content is principal and decisive, but form also (while secondary) has an important role and reacts back upon and influences content.
* These quotes are from the 1981 Programme of the RCP,USA. This excerpt is drawn from a talk given before the Draft Programme was published in 2001. This topic is discussed in the May 2001 Draft Programme, pages 16-17 and in the related appendices, "Consolidating the New Proletarian Power, Developing Radically New Institutions" and "Proletarian Dictatorship, Democracy, and the Rights of the People." [Return to article]
** See Part 1 of this series, "The Dictatorship of the Proletariat: What Is It Good For?" in RW #1214 (October 5, 2003). [Return to article]