The next point I want to speak to is the dictatorship of the proletariat and the "rule of law" and "civil society." In this connection it is worth recalling the statement from Mao in "On the Correct Handling of Contradictions Among the People" (quoted in "End/Beginning,"1 p. 18): "In socialist society there are still contradictions between the people and the government." It is worth noting how, in the speech by Chang Chun-chiao2 on the new Constitution of the People's Republic of China, which was adopted in 1975, his comments not only refer to the need to "create a political situation in which there are both centralism and democracy, both discipline and freedom, both unity of will and personal ease of mind and liveliness, and so help consolidate the leadership of the Communist Party over the state and consolidate the dictatorship of the proletariat"; he also specifically calls attention to the fact that in the new Constitution (adopted in 1975) it is stipulated that "all organs of the state shall practice democratic centralism" and that this Constitution "specifies the democratic rights of citizens, and especially rights of fraternal minority nationalities and of women. It also stipulates that the masses shall have the right to speak out freely, air views fully, hold great debates and write big-character posters. Moreover, in accordance with Chairman Mao's proposal, the specification that citizens enjoy freedom to strike has been added" (see And Mao Makes 5, p. 189).3
Now, this contrasts sharply with some analysis that has been made of the legal system and the rights of the people under the Nazi regime that is found in a book called In the Name of the Volk, Political Justice in Hitler's Germany by H.W. Koch. This book makes the analysis that under the Nazi regime:
"The law politicized laws to an unprecedented degree. It abrogated a whole range of the basic rights of the individual set out in the Constitution [that is, the Constitution that existed under the Weimar Republic in Germany before the Nazis seized power]. For the first time in German legal history, the judiciary was authorized to depart from the principle of nulla poena sine lege (`no punishment without law'). The National Socialist [Nazi] attitude to the law was that, irrespective of whether any changes would have to be made to it, its primary purpose was to serve the National Socialist `national community'; the individual would come second. ...The leadership principle [of the Nazis] was vague, ambivalent, unlimited and therefore extremely flexible: the power of the Fuhrer was devoid of any legal constraint. The leadership principle became an undefined absolute."
And, the author (Koch) makes the more "universal" claim that:
"Injustice is a fact of life, but still this remains a different thing from injustice being institutionalized and embodied in what is--or ought to be--the fountain of justice, the law. However, the law in the service of totalitarian claims is virtually by definition arbitrary, irrespective of the brand of totalitarianism."
So Koch makes the attempt to go from the particularity of the Nazi regime in terms of the law and the legal arena to more "universal" claims about the law and totalitarianism and about totalitarianism generally. But here we can see the qualitative difference between the dictatorship of the proletariat and a fascist dictatorship--which, despite its particular forms, is in its essence a class dictatorship, a dictatorship of the bourgeoisie--as well as the qualitative difference between the dictatorship of the proletariat and the dictatorship of the bourgeoisie in its (bourgeois) democratic form.
This is essentially and above all a question of the rights of the proletariat and masses of people in socialist society-- which flow from and correspond to their fundamental right to rule and transform society--a fundamental point stressed by Mao in "Critique of Soviet Economics" (and also pointed to in "End/Beginning" and elsewhere). But, as I have pointed out in a number of talks and writings, the mastery of the masses over all spheres of socialist society is not absolute but relative--it is something in motion, and it is realized both through the conscious activism and the "direct mobilization" of the masses themselves, on the one hand, and on the other hand, through other instrumentalities, including the state and the party and leaders who act as representatives of the masses-- or who don't! And, in the context of all this--along with, and subordinate to, the essential rights of the proletariat and masses of people, that is, their right to rule and transform society--there is the question of the rights of individuals.
Of course, in line with what Koch argues about totalitarianism in this book on the Nazi legal system, it is a general claim of bourgeois analysts and so-called scholars, commentators and so on, that communism, as a form of "totalitarianism," not only obliterates the rights of individuals, but along with that it obliterates what they refer to as "civil society," by which they mean more or less that space between the state and individuals in society--the space in which individuals interact with other individuals and interact in social ways in the society at large, and through various institutions and structures in society, which however are different than the institutions and structures of the state itself. One of the continual claims and continual accusations against the dictatorship of the proletariat and against communism is that it moves in the direction of--and sometimes it is even claimed that communism actually "succeeds" in--obliterating this "space," this "civil society." In this distorted picture, there is only the state on the one hand and, on the other hand, the people subjected to the domination of the state--there is nothing, no "buffer," between the all-powerful state and powerless individuals. The "reach" of the state carries into every corner of society, including people's private lives. There really is no space separating, and protecting, individuals from the state, and no space in society in which people can interact in various social ways with other members of society without the intrusion of the state (or the very real, imminent threat of that intrusion).
Of course, this is a distortion and a slander of communism. It's not even an accurate picture, in a literal sense, of the Nazi form of bourgeois dictatorship, although what was cited here (from the Koch book) about the law under the Nazi dictatorship, and generally the way in which the Nazis approached the legal arena as well as other arenas, has important aspects of truth to it. But it is not the case that the law under the Nazi regime in Germany represented only the will of the Nazis, or of the Fuhrer--more than that, and essentially, it represented the interests of the bourgeoisie in Germany in the particular conditions that existed in that country and its relation to the world arena in that period.
And all the more, with regard to communists, it is not the case that we seek to, or should want to, obliterate all this space between the state and individuals. Nor is it the case, more fundamentally, that the state in socialist society should be in antagonism to the members of society--or to the majority of society, to the masses of people. Once again, the contradiction can't be posed, simply or essentially, in terms of the relation between a mass of individuals and the state, but has to be posed in terms of the social relations--and in class society, the class relations. The state itself has to be situated within those class relations, and its essential role has to be recognized: the state, in whatever form, is an instrument of one class or another in exercising its rule in society. That's very fundamental. But, at the same time, there is a question in socialist society of allowing "space"--allowing for not only the rights of individuals, and institutionalizing those rights, as is expressed in what Chang Chun-Chiao says about the 1975 constitution in the People's Republic of China, but also allowing a certain space between the institutions of the state and the members of society. I'll come back to this later, because this is a complex question (or contradiction); there is a correct and an incorrect way--there's a way that is consistent with the proletarian world outlook, as well as a way that is reflective of the bourgeois outlook--to pose and to approach this question.
But the point I'm stressing here is that there is a qualitative difference between the dictatorship of the proletariat and certainly a fascist dictatorship, as well as a qualitative difference between the dictatorship of the proletariat and bourgeois-democratic dictatorship. While this is fundamentally a question of the rights of the people, as expressive of and flowing from their fundamental right to rule and transform society, this has to be understood itself as a contradictory phenomenon and something in motion. There has been a tendency in the history of the ICM to say, well, once the bourgeoisie is overthrown and the proletariat seizes power, then the proletariat is the master of society, so how can there be a contradiction between the state or the governmental structures and the members of society, including the members of the proletariat. This goes back to Mao's point, from "On the Correct Handling of Contradictions Among the People," where he emphasizes the fact that there do remain contradictions of this kind, between the people and the government. Even though these are not the essential contradictions in socialist society and they are in fact rooted in the larger social and class relations--and their underlying material foundation in the social production relations--there still is the existence of this contradiction between the people and the government in socialist society. And there has to be some formal and organizational way of dealing with this contradiction. That is what the Chinese Constitution, and in particular the provisions that were cited by Chang Chun-chiao, are giving expression to: some formal way to deal with this contradiction.
So it's not the case that socialist society does not recognize this or seeks to obliterate the role of individuals, or to simply subordinate them to the state and to the government. Even leaving aside the slanders of the bourgeoisie in terms of the nature and role of the state in socialist society, which they characterize as being the instrument of just a few individuals-- leaving that aside, and even in conditions where the state is actually the expression of the rule of the proletariat as a class and serves its interests--even under those conditions there still are contradictions between the institutions and structures of government and the members of society. This is what Mao was expressing in "On the Correct Handling of Contradictions Among the People", and what Chang Chun-chiao was speaking to, calling attention to those provisions of the Constitution that gave formal expression to the means for dealing with that contradiction in socialist society.
2 Chang Chun-chiao [Zhang Chunqiao], along with Chiang Ching [Jiang Qing], was among the revolutionary leadership who supported Mao Tsetung in the Great Proletarian Cultural Revolution. After Mao's death in 1976, Chang Chun-chiao, Chiang Ching, and other comrades of Mao (called "Gang of Four" by the counter-revolutionaries) were arrested in the coup d'etat which overthrew revolutionary rule and put China back on the capitalist road.