Review: Cercel, C.S. (2018). Towards a Jurisprudence of State Communism. Law and the Failure of Revolution. London: Routledge. 240 рp.

Abstract

The present essay is a review of the 2018 book by Professor Cosmin Cercel TowardsaJurisprudenceofStateCommunism.LawandtheFailureofRevolution. In reviewer’s opinion, this book is a good contrast to the books and articles written in the first post-Soviet years in the Central European countries, when the intellectuals glorified the Western ideals and condemned the socialist past of their countries and the ideological legacy of the communist regimes. The focal point of the book under review is to rethink the history of authoritarianism in Romania through analyzing the formalist legal ideology that was utilized by communist regimes for their purposes. In author’s opinion, the ideas of Soviet jurisprudence do not significantly differ from the bourgeois discourse about law that characterizes the modernity. In the perspective of this discourse, the formal and procedural autonomy of legal rules (the regime of legality) is opposed to the substantial exceptions from these rules which are justified with references to higher values. These latter underpin the legitimacy of the laws. There were different versions of postulation of such values in the Western and in the communist legal theories, but all these versions are equally based on the same dualist paradigm of legal thinking.The author contextualizes this analysis of the legal philosophy of the interwar period within theoretical attempts to understand law through its connection with the state represented a kind of psychological defense of the classical jurisprudence against the revolutionary changes of the first decades of the XX century. These attempts are considered by the author as a function of psychoanalytical replacement and ousting of the historical facts from legal mentality, as far as these facts undermined the legal rationality and demonstrated the triumph of political violence over legal order. This semantic background was important for legal and political changes in the postwar Romania after 1945 — the wide discretional powers of the regime were justified with reference to the principle of exception which allows avoidance of rules in the name of people, country or state. This theoretical construction was largely utilized by the authoritarian regime which did not invent anything new but just followed the theoretical paths protracted in the interwar legal philosophy and theory.