The ?withering away? of law

Abstract

Is a socialist jurisprudence possible? Many thinkers on the Left, especially Marxists, would answer no. Radical thought has long been committed to the view that law will "wither away" under socialism, that is, that political and legal institutions will cease to exist with the emergence and development of socialist society. As a consequence of this view, thinkers on the Left tend to limit their interests to law's role in reinforcing capitalist exploitation, or, less typically, its potential for yielding short-term gains for the exploited. Thus Marxists do not consider the role law might play in post-capitalist society, and a socialist jurisprudence is virtually non-existent. This paper examines the withering away thesis, as it was originally articulated in the works of Marx and Engels, and as it has since been interpreted by Soviet and Western thinkers in the Marxist tradition. The purpose of this examina tion is two-fold: first, to understand the nature of the obstacles to a radical contribution to legal theory; and second, to discover whether these obstacles are irremovable, or whether there is in fact room for a socialist theory of law. I will suggest that legal institutions could exist under socialism, and thus that a socialist jurisprudence is possible. Perhaps the most perspicuous statement of the withering away thesis is that made by Engels: