A Socialist Judge Is a Contradiction in Terms

The decision of a Russian “court” to keep Wall Street Journal reporter Evan Gershkovich in jail suggests a few reflections. I put “court” in scare quotes for reasons to be explained below. Political economists are interested in such issues because they widely consider an impartial justice system as one of the essential institutions of a free and free-market society.

The Wall Street Journal writes (“Russian Court Upholds WSJ Reporter Evan Gershkovich’s Detention,” April 18, 2022):

The hearing was held behind closed doors, as is typical for most hearings connected with espionage charges. It is also exceedingly rare for defendants to win appeals or be acquitted in such cases in Russia, where espionage laws are increasingly wielded for political purposes, according to Western officials, activists and Russian lawyers. …

Russia’s Federal Security Service, the successor to the KGB, said the journalist “acting on the instructions of the American side, collected information constituting a state secret about the activities of one of the enterprises of the Russian military-industrial complex.”

That’s what journalists from free countries do, isn’t it, even without “instructions of the American side”?

In my review of Volume 2 of Friedrich Hayek’s Law, Legislation and Liberty, I emphasize why the Nobel economist considered a socialist (or fascist) judge as “a contradiction in terms” (see also his The Constitution of Liberty):

Hayek wages a frontal attack against the doctrine of legal positivism, represented by Hans Kelsen, John Austin, and other legal theorists. The doctrine claims that law is simply what is decreed by the sovereign. As Thomas Hobbes put it, “no Law can be Unjust.” In the same vein, Soviet legal theorist Evgeny Pashukanis, wrote that under socialism laws are “converted into administration, all fixed rules into discretion and utility.” Not protected by law, Pashukanis was later eliminated by Stalin. Contrary to state decrees, Hayek argues, law can only be made of general rules that meet general agreement among the public.

Quoting Hayek directly Volume 1 of the same work:

[A judge’s] task is indeed one which has meaning only within a spontaneous and abstract order of actions such as the market produces. … A judge cannot be concerned with the needs of particular persons or groups, or with ‘reasons of state’ or ‘the will of government’, or with any particular purposes which an order of actions may be expected to serve. Within any organization in which the individual actions must be judged by their serviceability to the particular ends at which it aims, there is no room for the judge. In an order like that of socialism in which whatever rules may govern individual actions are not independent of particular results, such rules will not be ‘justiciable’ because they will require a balancing of the particular interests affected in the light of their importance. Socialism is indeed largely a revolt against the impartial justice which considers only the conformity of individual actions to end-independent rules and which is not concerned with the effects of their application in particular instances. Thus a socialist judge would really be a contradiction in terms.

In my review, I wrote:

I would add that this crucial point would also apply to a fascist judge, and Hayek would certainly agree.

This is why Russian “courts” are courts in name only. They are instruments of government policy. For the same reason, what the apparatchiks call “law” is synonymous with government commands, it’s not law in the classical sense. When Vladimir Putin is said to be a “trained lawyer,” the second term also cries for scare quotes. When Putin said that he wanted a “dictatorship of the law,” he meant nothing more than a dictatorship of the dictator (and perhaps of the majority). In Russia, this is not new. Their plagiarism of Western law is a Potemkin village.

Was Gershkovich a spy for the American government? I don’t know, but I know two reasons why it is very unlikely. First, the Wall Street Journal has a reputation and a brand-name value to maintain, which serving as a CIA cover would destroy. After all, the WSJ is not Fox News even if, alas, the two publications have shared a common ownership since late 2007. To sell information, as opposed to entertainment or confirmation bias, a financial newspaper needs to be, and perceived to be, independent. The second reason is that we cannot count on the unrestricted liars in the Russian government nor on their judicial minions to tell us anything useful about journalistic activities.

It is true that, over the last 100 years or so in history of the “free world,” the law has not moved in the right direction, as Hayek detected long ago, even crying wolf too early in the opinions of some. Like virtually everything, the liberal rule of law is a matter of degree, at least up to a point. But there is no doubt that Western countries are still freer than Russia, which is why you read this blog. Like many economists who have studied the question (including James Buchanan and, yes, Anthony de Jasay too), we should continue to defend the endangered ideal of (classical) liberalism.