F. Hayek, Personal freedom is impossible without the rule of law

The inseparability of personal freedom from the rule of law is shown most clearly by the absolute denial of the latter, even in theory, in the country where modern despotism has been carried furthest. The history of the development of legal theory in Russia during the early stages of communism, when the ideals of socialism were still taken seriously and the problem of the role of law in such a system was extensively discussed, is very instructive.

In their ruthless logic the arguments advanced in these discussions show the nature of the problem more clearly than does the position taken by Western socialists, who usually try to have the best of both worlds.

The Russian legal theorists deliberately continued in a direction which, they recognized, had long been established in western Europe. As one of them put it, the conception of law itself was generally disappearing, and “the center of gravity was shifting more and more from the passing of general norms to individual decisions and instructions which regulate, assist, and co- ordinate activities of administration.” Or, as another contended at the same time, “since it is impossible to distinguish between laws and administrative regulations, this contrast is a mere fiction of bourgeois theory and practice.”

The best description of these developments we owe to a non-Communist Russian scholar, who observed that “what distinguishes the Soviet system from all other despotic government is that … it represents an attempt to found the state on principles which are the opposite of those of the rule of law … [and it] has evolved a theory which exempts the rulers from every obligation or limitation.” Or, as a Communist theorist expressed it, “the fundamental principle of our legislation and our private law, which the bourgeois theorist will never recognize is: everything is prohibited which is not specifically permitted.”

Finally, the Communist attacks came to be directed at the conception of law itself. In 1927 the president of the Soviet Supreme Court explained in an official handbook of private law: “Communism means not the victory of socialist law, but the victory of socialism over any law, since with the abolition of classes with antagonistic interests, law will disappear altogether.”

The reasons for this stage of the development were most clearly explained by the legal theorist E. Pashukanis, whose work for a time attracted much attention both inside and outside Russia but who later fell into disgrace and disappeared. He wrote: “To the administrative technical direction by subordination to a general economic plan corresponds the method of direct, technologically determined direction in the shape of programs for production and distribution. The gradual victory of this tendency means the gradual extinction of law as such.” In short: “As, in a socialist community, there was no scope for autonomous private legal relations, but only for regulation in the interest of the community, all law was converted into administration; all fixed rules into discretion and utility.”

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