4.4 - Cavoski, Kosta - The Attainment of Human Rights in Socialism (en)

7/27/2019 4.4 - Cavoski, Kosta - The Attainment of Human Rights in Socialism (en)

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The Attainment of Human Rights in Socialism

The Attainment of Human Rights in Socialism

by Kosta avoki

Source:

PRAXIS International (PRAXIS International), issue: 4 / 1981, pages: 365-375, on www.ceeol.com.
http://www.ceeol.com/http://www.ceeol.com/http://www.ceeol.com/http://www.dibido.eu/bookdetails.aspx?bookID=d1bdefd8-6d05-473d-baba-ef37a525117ahttp://www.ceeol.com/


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365

THE ATTAINMENT OF HUMAN RIGHTS INSOCIALISM

Kosta avoki

Law under socialism, or what is called socialist law, has been a reality of our agefor more than sixty years. This is a long enough time for it to have shown its truenature, that is, all the values which should serve as an example, but also all theweak points which should be eliminated in the further development of socialism.Of course, there are different ways to examine the legal order in existing socialistcountries. One of the most common approaches, for instance, is to study the newclass substance of this law. Interesting attempts have also been made to observelaw under socialism in terms of the need for it to wither away and graduallytransfer the class state and law to the museum of antiquities. And it is from thisapproach that emerged the well-known theory and practice of self-management:socialization of the state, law, and politics.

Oddly enough, however, it is hard to find a leading philosopher or law expertin individual socialist countries who has undertaken a serious and unbiased studyof the positive legal order with regard to the attainment or trampling of

elementary human rights and freedoms, although contemporary ideologicalpresentations and prevailing slogans constantly point up the liberating characterof the new socialist order. The mere attempt to raise such questions is frownedupon. And those local nationals who try are usually ascribed hostile intentions,while the interest of foreign writers in this question is qualified as bloc rivalryand interference in the internal affairs of other states. This fact alone eloquentlyspeaks for the fact that the guarantee and attainment of human freedoms andrights in existing socialist countries is not just a crucial, but also a largelydisputed and sensitive, question.

This essay is an attempt to indicate the different forms in which this question

arises. It has no serious claims to studying this matter in full detail. The mainpoint of reference here is the political and legal order in the Soviet Union whichhas the longest experience in building socialism, and whose achievements andfailures in this process are the most far-reaching. The other point of reference isthe experience of those socialist states in which Soviet influence is decisive.

Discussions on human rights and their attainment in the existing order of thisor that country usually proceed from the modern natural law theory according towhich by virtue of the fact that one belongs to the human race (gens humana),every individual has certain inalienable rights. As such, these elementary humanrights, as natural rights, precede every system of government and constitute not

only the basis on which it rests, but also a legitimate reason to change or abolish itwhen it becomes an obstacle to attaining the objectives because of which it wasoriginally established. In terms of their actual attainment in a given state order,these rights constitute a corresponding group of freedoms, powers, andimmunities which represent the inviolable basis of the individuals moral


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autonomy in relation to government. However, I will not discuss the intricateand in many ways disputed question of how natural law is rooted in the notion ofhuman nature, or the differences between nature and convention. Instead, theessay will set out from the broadly accepted tenet that elementary human rights,being natural rights, are a fundamental condition of human social life and amorally correct political order. Here, human rights and freedoms stand as theminimum condition under which people can develop and progress asautonomous and independent beings. In other words, guaranteeing andconsistently respecting elementary human rights is the conditio sine qua non of agood society, as, according to the ideas of its founders, the socialist society shouldbe.

1. Threatening and trampling upon elementary rightsA primary question in these discussions is: what is, or what should be the mainnovelty introduced in the sphere of human rights by the October and othersocialist revolutions, and what, in terms of liberating the individual, givessocialism a hard edge over todays bourgeois societies? Since elementary humanrights were basically established at the beginning of the modern age, the socialistrevolutions of the twentieth century could only adopt classical declarations ofhuman freedoms and rights, and make more or less successful attempts to expandand enrich them with new, primarily social and economic rights. But what

socialist revolutions could and should have done is not so much to point up newhuman rights, as to realize classical human rights and turn them into a practicaldeed and positive, active freedom of each and every member of the politicalcommunity. Therefore, Ernst Bloch could rightly say that the main principlesand fighting slogans of the French revolution freedom, equality, fraternity rise far above the horizon of bourgeois society, since their best part has yet toappear.1 This manifesto of elementary human rights clearly shows that it is notalways a question of the great gap between past and the future, but rather one ofcarrying out the thoughts of the past,2so as to establish the truth of this worldas the practical equation between mind and reality, freedom and law. Because in

the most famous French declarations, the striving towards dignity, human rights,and legal guarantees of human security and freedom as tried and tested categoriesof human dignity still remain an unfulfilled task, an objective which has yet to befully achieved.

Unfortunately, some socialist states deny and even abolish not only the bestthat the idea of human rights contains, but also the fundamental basis whichprecedes every freedom and every right which is simply called the right to life.But in order to avoid any misunderstanding from the start, let it be said that, as arule, the right to life is never denied as such; what is denied or abolished are thelegal guarantees which make this right safe and inviolable. Clear evidence of how

this actually worked is the following example of a political trial which revealedthe true face of Stalins reign of terror and tyranny to the public world. Thecounter-revolutionary Trotskyist-Zinovievist group headed by Zinoviev,Kamenev, and Smirnov, was tried before the military council of the SupremeCourt of the Soviet Union from August 19th to 22nd, 1936, on charges of having

aCEEOL NL Germany


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Praxis International 367

organized and prepared attempts on the lives of leaders of the Bolshevik Partyand Soviet government and the murder of Kirov. Many years later it wasestablished that innocent people had been sent to their death after this trial.Nikita Khrushchev, in two famous speeches, even clearly intimated that Stalinhimself may have organized the assassination of Kirov, although these suspicionswere impossible to prove because, in the interim, all material evidence had beendestroyed and all material witnesses had been liquidated one by one.

However, it would be wrong to claim that this trial, and the court murderswhich followed, constituted the abolition of the elementary right to life simplybecause an ordinary court error was in question. Far from it. The error as suchonly confirms the rule that judges try to determine the facts and rule according totheir conscience, but, even with the best of intentions, they can also err, becauseno person, and so no judge, is entirely above this human weakness. Butsomething quite different is at issue here, because even the possibility ofdetermining the truth through court procedures was abolished beforehand. Inorder for the truth to be determined (which, of course, cannot always and entirelybe achieved), a corresponding procedure must be applied towards this end, whichfor all intents and purposes means the accuseds right to receive assistance indefending himself or herself before the court (i.e. the professional assistance of afreely chosen lawyer); it means the inviolability of the accused and the witnessesfor the prosecution and defense, and this rules out the extraction of falseconfessions and perjury by means of blackmail and torture; and, finally, it means

the accuseds right to an unbiased and independent trial. Since this was a publictrial, it became immediately known that the accused had been deprived ofprofessional assistance from freely chosen lawyers. And worse still, in the Sovietpublic and world communist movement, not only were these legal guaranteesdenied and without them the right to life is no right at all but their functionas a necessary condition for ensuring that trials are not just ordinary acts ofprivate revenge dressed in legal attire was brought into question. Under suchcircumstances there could be no question of an unbiased and independent trial,especially since as soon as the accused were arrested, a fierce campaign waslaunched in the press and public under the ominous slogan no mercy for the

enemy, demonstrating once again that such political campaigns with theirbranding not only define and condemn the alleged enemies, but actually createthem.

Many critics of the worst aspects of Stalinism too easily accept the facilepronouncement that these were instances of the ordinary abuse of power and thatthis would not have occurred had Stalin not been so prone to tyranny and crueltywith political opponents. In other words, personal failings or human character isto blame and not the nature and set-up of political institutions. However, thisapproach easily passes over the fact that at issue here is not just the banefulpersonal inclinations of those in power, but first and foremost the nature of the

political order in which firm and reliable legal guarantees of elementary humanrights did not exist at all. For, in principle, if capital punishment is allowed in astate, then public power in the form of a competent court can legitimately executeit, if all legal guarantees which render this procedure objective, and which makethe right to life as such secure and safe, are consistently applied and honored. In


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the event that such guarantees do not exist, then the right to life is no right at all,but rather life itself depends on the goodwill of those who rule, and goodwill canalways turn into illwill, just as life can turn into death. This was not just a merepossibility, for suffice it to recall that Stalin himself used to confirm entire lists ofdeath sentences with just a stroke of his pen, without ever trying to consider andtry each case separately.

Moreover, this absence of firm and reliable legal guarantees of human securityand freedom was not just a sporadic exception but rather a general rule whichcould threaten the freedom and life of each and every person. For instance,virtually no use was made in the Soviet Union of the institution of habeas corpus,which as a means to check the arbitrary deprivation of freedom, obliges policeorgans to turn an arrested person over to the court immediately, as the sole bodycompetent to decide on whether such a restriction of personal freedom is

justified. During Stalins reign of terror, it was quite normal for an arrestedindividual to be detained in prison for months, and even years, without everobtaining a court ruling on the justification of such a deprivation of freedom.

All these forms of threatening and trampling upon human freedoms and rights,and even the right to life itself, belong to a time which we would like to believe isbehind us. But this does not mean that such violations of human rights still donot occur, and that liberty and dignity are truly inviolable values. The breadthand number of such violations has appreciably gone down, especially their worstforms: overt terror, the taking of hostages, punishing the family of political

prisoners, collective punishment of all members of an ethnic group, and cruelprison conditions which, as a rule, means slow but certain death. But actualviolence against individuals and their freedom has not entirely disappeared. Onemight even say that such violations of human rights have taken on more subtleforms. And new forms have emerged such as the abuse of psychiatry allegedly totreat political renegades and heretics.

Especially prevalent is the threat to individual freedom and dignity stemmingfrom fears for ones own material and social well-being, which is aroused by theuse of different forms of existential pressure such as loss of employment,interruption of ones career, demotion, impeding promotion, etc. So, for

instance, out of fear that they might lose their jobs, teachers teach things in whichthey do not believe; out of fear for their future, students repeat after the teacher.Out of fear that they will not be politically suitable for a better, especially aleadership post, people join official political organizations. Fear of theconsequences of abstention sends people to the polls to vote for proposedcandidates and to pretend that they view this ceremony as a real election. Out offear for the possible consequences, people do not publicly, and often evenprivately, say what they really think. Fear that they may be prevented fromcontinuing their public work and other unpleasant consequences makes manyscientists and artists pay lip-service to ideas which they do not personally uphold,

to write things with which they disagree and even know to be untrue, to joinofficial organizations, to participate in jobs of which they have the lowestopinion, or to recant their earlier ideas and butcher their own works.

Admittedly, as a rule this is not fear in the usual psychological sense of theword, but rather in a deeper, ethical sense; it is part of a collective


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consciousness of constant and omnipresent danger. For no ones social ormaterial position is inviolable in a society where virtually all people live by laborthe means of which are state owned, and state controlled. And there is hardly anindividual who does not have something to lose. At stake is whatever is ofmeaning to the individual, ranging from the many privileges of those who takepart in the power structure, the possibility to perform a corresponding job, to thebasic possibility of living within the restricted frameworks of legal security forloyal citizens, but not, say, for those classified as so-called dissidents orextremists.

In the words of Vaclav Havel, this system of existential pressure would not beeffective were it not for the fact that it rests on cruder forms of pressure andblackmail. Because there will always be individuals who are prepared, in thename of their convictions, to lose all the amenities that are usually important toordinary people, therefore, in the case of individuals who turn their backs onordinary measures of existential pressure, much harsher measures must beapplied, those which, following the customary practice of Stalins time, areconceived and applied by the so-called political police. This, then, is the ultimatereason for blockages to any disagreement. Or, as Vaclav Havel says, on the basisof his own experience:

This is the hideous spider whose invisible web runs right through the whole ofsociety; this is the point-at-infinity where all the lines of fear ultimately intersect;this is the final and irrefutable proof that no citizen can hope to challenge the powerof the State. And even if most of the people, most of the time, cannot see this webwith their own eyes, nor touch its threads, yet even the simplest citizen is well awareof its existence, assumes its silent presence at every moment in every place, andbehaves accordingly behaves, that is, so as to ensure the approval of those hiddeneyes and ears. And well does he know the importance of that approval. For thespider can intervene in a mans life without any need to have him in itsjaws. . . . Thus, the very fact that the state police are in a position at any time tointervene in a mans life, without his having any chance to resist, suffices to rob hislife of some of its naturalness and authenticity, and to turn it into a kind of endlessdissimulation.4

These and similar examples of threatened elementary human rights show that

the tragic lesson of Stalinism has not been fully understood and accepted, andthat there are still countries where the value and necessity of firm guarantees ofhuman security and freedom are denied in the name of socialism. Furthermore,when political expedience necessitates it, resort is made to periodic violations ofelementary legal safe-guards, which are otherwise honored. Then the rights ofthe accused, especially in the case of political opponents and political crimes, aresometimes restricted: the possibility and inviolability of defense, particularly therole of a freely chosen defense attorney, are limited; in some cases the trials areclosed, which could be taken to mean that the prosecution lacks reliable andproperly compiled evidence; mass communications media are used to create the

proper public mood which brands the accused before their guilt is actuallydetermined, and this brings into question the independence of judgment.

Of course, the question is why do such manifestations still exist? It is not easyto answer. Since the socialist revolution was first carried out in an economicallyundeveloped and poor country, it appears that from the very start socialism chose


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the wrong direction in competing with capitalism, and concentrated on theeconomic and material side of social development while neglecting the questionof human liberties. And since mans freedom and dignity are often neglected andtrampled upon, freedom and human rights become an important question for us,one which we cannot overlook.

2. Potestas legibus soluta

One of the reasons for this threat to elementary human rights in certain socialistcountries is the fact that law was given an exclusively instrumental value as ameans to pursue current policy and to fight against those who disagreed with thispolicy. Reducing law to an instrument of political power, which is a lower andextracted value in relation to the power it serves, is only the other side of the well-known idea and practice that supreme rulers are above the law, and, therefore, ina given situation can derogate the law itself when they deem it to be purposeful.This legally unrestricted power is said to constitute potestas legibus soluta, i.e., tobe absolved of the duty to abide by the law. Under this system one or severalrulers can act at will without having to follow any legal norms, and their deedsand decisions are considered as acts of state to which everyone owes obedience.This form of institutionalized self-will came to fullest expression in ancient Romeafter the collapse of republican institutions, when prevalence was given to thedespotic constitutional principle of princeps legibus solutus (meaning absolved of

the duty to honor the law), since the will of the ruler himself carried the weight oflaw (quod principi placuit legibus habet vigorem).One of the main shortcomings of the post-revolutionary Bolshevik government

was precisely that it remained potestas legibus soluta absolute and unlimitedpower. Once they had defeated all their opponents and acquired power, theBolsheviks were not ready to limit it in advance and tie their hands in choosingthe means with which to fight those who thought otherwise. Most important ofall, they did not want to tie their hands in the sphere of criminal prosecution andpunishment, i.e., the possibility of inflicting harm on others. And this resulted inmaking the destruction of all traditional restrictions on the power of the state one

of the main features of that new age.It appears that this was mostly predetermined by the previous type of power

which had been brought down by the revolution. The revolution was precededby a long period of unlimited autocracy, and it seems that there was nothing morenatural than to replace one type of absolutism with another. Indeed, this is whathappened in the French revolution where the third estate (i.e., the people as thenew sovereign), was placed above the law, just as the previous sovereign, theFrench king, had, since the times of Bodin, enjoyed genuine absolute power,which, like the power of the Roman emperors, was potestas legibus soluta. And

just as the person of the king was the source of both power and the law, so the

people, too, took on this twofold role: in keeping with the idea of popularsovereignty it was the source of all power, and in keeping with the idea of volont

gnrale, which out of the multitude created one entity the Nation it was thesource of the laws themselves.

Like the French revolutionaries, the Russian Bolsheviks accepted this


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uncritical belief that power and laws are derived from the same source and,therefore, that there is no need to create and uphold a difference betweenconstituent power (pouvoir constituant), which with the passing of the

constitution lays the foundations of the given political community, andconstituted power (pouvoir constitu), which runs affairs within the scope of theauthorizations and restrictions determined under the constitution. But the resultof not honoring these differences was the possibility of uncontrolled expansion ofthe limits of power at the expense of guaranteed freedom. For, as is well knownfrom the history of constitutionalism, differentiating between passing theconstitution as an act of constituting the given political order, and otherregulations and measures as acts of already constituted power, only has meaningand justification if the constitution sets the limits of power and determines aninviolable sphere of individual freedoms and rights which power cannot touch.And this means that the raison detat which governs the current stateadministrators must be of a lower order than guaranteed freedoms.

In fact, elementary rights and freedoms should stand as a counter-balance to allpolitical expedience and must lie at the heart of restrictions on state power. Butfor this to be achieved, these rights must rest on foundations which constitute thebasis of the entire state order and which as such are of a higher order than theconcrete authorizations and acts of individual state organs. For only in this waycan these rights be inviolable. And, therefore, they do not constitute rights whichstate power passes out to its subjects, but rather the basic objectives and limits of

that power. To a certain extent they are pre-governmental or supra-governmentaland as such express the priority of a free society with regard to the organization ofstate power.

Indeed, this is the main reason why this kind of guarantee of human rightsrepresents not only a historically outlived accomplishment of liberalism, but alsoa fundamental value which far exceeds the horizons of the bourgeois society. Ifhuman rights are not respected under socialism, then we get its distortion,authoritarian socialism, which, according to Bloch, was capable of reproducingTiberiuss effects and with that truly uninherited lawlessness in socialism.5 HereBloch was probably thinking of Tacituss idea that autocracy completely changes

persons, corrupts them, and turns them into a fierce tyrant who threaten thefreedom and life of everyone within reach of their power. Under authoritativesocialism where genuine lawlessness rules, such results Tiberiuss effects are inevitable, because those in power are above the law and, therefore, arecapable of bringing everyones freedom and life into question at will.

3. The longevity of the state of siege

A particularly important trait of the legal order in the Soviet Union and othersocialist countries within the scope of its influence is the absence of firm and

reliable legal guarantees of elementary freedoms and rights. This refers to therelatively lasting suspension of elementary rights and legal guarantees of humansecurity and liberty. Most important of all, this suspension of elementaryfreedoms is usually justified by the presence of a constant threat to the verysurvival of the given state order.


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Of course, this suspension of laws and individual freedoms in a state ofemergency is not something unique to more recent times nor is it peculiar just toindividual socialist states. On the basis of the experience of ancient Rome andAthens and the application of English bills of attainder, Montesquieu concludedthat even in a republic liberty must sometimes be suspended: I must own,notwithstanding, that the practice of the freest nations that ever existed inducedme to think that there are cases in which a veil should be drawn for a while overliberty, as it was customary to cover the statues of the gods.6

But the real model for transcending a state of emergency situation was thedictatorship in ancient Rome as a specific republican and interim institution whichdiffered greatly from tyranny and other distorted state forms. First and foremost,it was a means to defend the republican constitutional order at times of seriousand direct danger. The Senate was authorized to decide on whether such a dangerdid actually exist, and then the consuls would entrust the power of dictatorshipto one person outside the regular circle of those who held state power. Thedictators power was temporary: it lasted only as long as did the danger and underno circumstances could it exceed six months. In the course of three hundredyears this rule was never overturned, although dictatorship was introduced someninety times during this period. The interim quality of dictatorship was alsoreflected in the fact that ordinary state officials retained their posts andimmediately took over all state affairs as soon as the dictator turned over hisduties. Only during the twilight of the republic did Cornelius Sulla and Julius

Caesar arbitrarily adopt the position of life-long dictator, whereby the dictatorshipceased being a traditional republican institution. And, finally, the power of thedictator during the age of the republic was indeed great, but it was not unlimited.The dictator could suspend laws, but he could not change them or enact newones.

This classical institution in the event of a state of emergency appears inmodern times in the form of the Anglo-Saxon martial law and the continentalinstitution of a state of siege (ltat de siege). A distant echo of this is certainly thewell-known dictatorship of the proletariat, whose very name indicates its ancestry.

It should immediately be said, however, that there are major differences

between the ancient dictatorship and modern institutions in the event of a state ofemergency (martial law and ltat de siege), on the one hand, and the newly createdSoviet dictatorship, on the other. These modern institutions, just like theirancient precursors, mean primarily suspending the law, and especially individualconstitutional and legal provisions regarding civil liberties and rights. But theSoviet proletarian dictatorship meant much more than this. According to Lenin,dictatorship is power relying directly on violence, which is bound by no laws.The revolutionary dictatorship of the proletariat is power which has been gainedand which is maintained by the violence of the proletariat over the bourgeoisie,

power which is not bound by any laws.7 Lenin repeatedly warned that power-

unlimited, unfounded on laws, based on violence in the most literal sense of theword is dictatorship.8 In other words, dictatorship in Lenins sense does notpresume the temporary silencing of laws but rather their complete absence. This isunlimited power above and beyond all laws.

Another, still more important, difference concerns the duration of the


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dictatorship. As we have already shown, until Cornelius Sulla and Julius Caesar,dictatorship was an interim institution, established only in the event of extremedanger to the survival of the state. The Soviet proletarian dictatorship wasintroduced as a relatively constant and lasting political institution. In order to

justify the longevity of its existence, the actual danger because of which it wasestablished had to be long-lasting. This was the explanation given by Stalin, andthe notion he invented for this purpose was designated by the term capitalistencirclement,9 by which he meant enemy encirclement. This expression iscleverly coined because it vividly evokes the siege which leads to the introductionof a state of siege. This, then, is a distinctive siege, which, as opposed to the siegeof a fortified town, is constant and long-lasting.

Finally, the permanence of the proletarian dictatorship due to the duration ofthe enemy encirclement to a certain extent expressed still another differenceregarding classical dictatorships and similar institutions of the modern age. Thisdifference pertains to the actual purpose of introducing and perpetuallymaintaining dictatorship. Classical dictatorship, and later modern institutions,had severely limited objectives. They were above all a means to offset misfortuneand evil which jeopardized the very survival of the people and state, and as suchusually did not touch the status quo. The Soviet dictatorship also assumed anessentially new, positive, and all-embracing role. According to the ideas of itsfounders, it was to be not just a lethal weapon for defense against looming eviland misfortune, but also an effective means for achieving freedom, good, and

happiness, for building a new socialist society in which these positive valueswould experience complete realization. The dictatorship, to be still more precise,was to be a means for eliminating all obstacles and destroying all opponents whostood in the way of building a new society, but it was also an effective way topersuade those who were still hesitant to pursue this road. And in order toachieve this, all means were justified, nothing was sacred if it stood in the way. AsTrotsky explained: As for us, we were never concerned with the Kantian-priestly and vegetarian-Quaker prattle about the Sacredness of human life. Wewere revolutionaries in opposition, and have remained revolutionaries in power.To make the individual sacred we must destroy the social order which crucifies

him. And this problem can only be solved by blood and iron.10

So according toTrotsky and his fellow-thinkers, the magnificent foundation of the future lies in

violence and blood. And in the name of this idea, some must be liquidated so thatin some distant future the personality of others may be free and sacred. This,however, called for a relatively lasting suspension of elementary rights and thelegal guarantees of human security and liberty, which could only be achieved byabusing the classical institutions of a state of emergency and proclaiming thepermanence of a special kind of state of siege.

4. Unlimited power instead of an order of freedomOne of the major failings of socialist revolutions to date, and especially theOctober revolution, is that the newly created legal and political order wasprimarily an order of power, of power with no restrictions, instead of an order offreedom. Indeed, this practical outcome of the October revolution could have


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been presumed, because as early as April 1917, Lenin clearly declared that thebasic question of every revolution is the question of power in the state. Andwhen the revolution was carried out, the newly acquired power first became themonopoly of the ruling and only allowed party, later to be concentrated in thehands of just a few: a great leader. But the greatest misfortune was that from theconviction that the question of power in the state is the basic question of theproletarian revolution, Stalin quite logically deduced that consistently buildingsocialism actually means further building up and perfecting the state apparatus ofpower, including its separate organs of force such as the security service andpolitical police.

Not just Lenin, but also his successor Stalin, liked to talk about emancipatingnot only the proletariat but the entire human race as well (hence the idea of worldrevolution), although they spoke more about the freedom and rights of individualcollectivities, such as class and nation, and much less about individual liberty anddignity, hardly mentioning elementary human rights as an inviolable sphere ofindividual freedom. Liberty and human dignity were discussed only as a questionwhich was extracted from the basic question of power in the state.

In my opinion, however, this was a crucial mistake, because liberty and humandignity cannot be extracted from, but rather are the basic question of, the socialistrevolution. This means that revolution should not simply be reduced toestablishing the new power of this or that single party, but rather shouldconstitute the foundation of freedom, what Henry de Bracton in his day called

Constitutio Libertatis.12

Since emancipation is the basic objective of revolution, itmust directly result in the practical foundation of freedom. And it is this that hasbeen largely betrayed, because the above-mentioned revolutions failed toestablish even reliable constitutional guarantees of the inviolability of elementaryfreedoms and rights, let alone anything more. It is forgotten that power as such,including revolutionary power, must not be all-embracing and omnipotent, thatit must be limited, that elementary rights and liberties must be outside the graspof power, that those who hold power usually tend to overstep the limits whichhave been drawn for them, and that, therefore, reliable constitutional guaranteesare necessary to prevent such abuses of power. Most important of all, this is only

the first step, since secure enjoyment of elementary human rights can never beequated with political freedom, which has a positive, active character. WhatConstitutio Libertatis can offer is primarily a negative freedom freedom frompressure and violence. This, then, is only the initial condition, for politicalfreedom is primarily a positive freedom, reflected in active participation in publiclife. Therefore it presumes that as members of the community, men and womenhave the ability to realize the best they can offer.

NOTES

1 Ernst Bloch, Prirodno pravo i ljudsko dostojanstvo(Natural right and human dignity),Beograd, Izdavaki centar Komunist, 1977, pp. 146, 165.

2 Marxs letter to Ruge, September 1843, Karl Marx and Friedrich Engels, Raniradovi (Early Works), Zagreb, Naprijed, 1961, p. 47.


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3 All the ensuing examples are from Vaclav Havels An Open Letter to GustavHusak, Encounter, September 1975, pp. 15-16.

4 Ibid., p. 16.

5 Ernst Bloch, op.cit., p. 210.6 Montesquieu, The Spirit of the Laws (New York, 1949), Vol. I, Book XII, ChapterXIX, p. 187.

7 V. I. Lenin, Proleterska revolucija i renegat Kaucki, Izabrana dela (TheProletarian Revolution and the Renegade Kautsky, Selected Works), (Belgrade,1960), Vol. 12, p. 362.

8 V. I. Lenin, Prilog istoriji pitanja o diktaturi, Izabrana dela (Contribution to theHistory of the Question of Dictatorship, Selected Works), Vol. 14, p. 49.

9 J. Stalin, Pitanja lenjinizma (Questions of Leninism), (Beograd, 1945), pp.597-598.

10 Leon Trotsky, Terrorism and Communism (Ann Arbor, 1963), p. 63.

11 V. I. Lenin, O dvovlas

u, April 22, 1917, Izabrana dela (On Dual Power,Selected Works), Vol. 10, p. 421. He repeated this on September 27, 1917, when hesaid: The most important question of the revolution is, indubitably, the question ofPower. One of the Main Questions of the Revolution, Selected Works, Vol. 11, p.166.

12 This is how Henry de Bracton described the Magna Carta in his De Legibus, fol. 186b.

4.4 - Cavoski, Kosta - The Attainment of Human Rights in Socialism (en)

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