1 See A. Tsipko, “The Sources of Stalinism,”Nauka i Zhizn, 1988, no. 11, 45–55, in English in 29 Soviet Law and Government, Summer 1990, no. 1, 5–30. See also Robert C. Tucker, Stalin as Revolutionary, 1879–1929 (New York, 1973).CrossRefGoogle Scholar

2 Although I concede that theo-rhetoricists are not always the best judges of their own work. Since I found everything that Comaroff had to say interesting, I am almost persuaded to defer to his judgment. But not quite.Google Scholar

3 “Marxism and the Rule of Law: Reflections After the Collapse of Communism, “ 15 Law & Soc. Inquiry 602 & nn. 2–4 (1990).CrossRefGoogle Scholar

4 “Dialektyczna Natura Tradycji” in Andrzej Kaleta, ed., 11 Socjologia Wychowania (Torun, Poland, 1991); “Thinking Like a Lawyer” in Wojciech Sadurski, ed., Ethical Dimensions of Legal Theory, Poznan Studies in the Philosophy of the Sciences and Humanities (Amsterdam, 1991); “The Traditionality of Statutes” 1, 1 Ratio Juris, 20–39 (1988); “Tradition” in Dictionnaire Encyclopedique de Theorie et de Sociologie du Droit, (gen. ed., Andre-Jean Arnaud) 423–25 (Paris, 1987); “Law as Tradition,” 5, 2 Law and Philosophy 237–62 (1986); “Tipologia della tradizione,” 2 Intersezioni. Rivista de storia delk idee 221–49 (1985).Google Scholar

In a much closer context but a different idiom—that of orthodoxy, heresy, and apostasy, stressing the closeness of orthodoxy and heresy and the distance between heresy and apostasy—I have discussed the power of Marxist paradigms among troubled Marxists and once-Marxists, in “‘Bureaucracy’ in Trotsky's Analysis of Stalinism,” in Marian Sawer, ed., Socialism and the New Class 46–67 (Adelaide, 1978); “The Revolution Betrayed? From Trotsky to the New Class,” in Eugene Kamenka, Martin Krygier, eds., Bureaucracy: The Career of a Concept 88–111 (London, 1979), and “Marxism and Bureaucracy. A Paradox Resolved,” 20 (2) Politics 58–69 (1985).Google Scholar

5 E. P. Thompson, Whigs and Hunters, 266 (Harmondsworth, 1977).Google Scholar

6 Id.Google Scholar

7 15 Law & Soc. Inquiry at 625.Google Scholar

8 Andrzej Walicki, “Marx and Freedom,”N.Y. Rev. Books, Nov. 24, 1983, at 50.Google Scholar

9 Ibid. at 54.Google Scholar

10 Ferenc Feher, Agnes Heller, & Gyorgy Markus, The Diatatorship over Needs 43–44 (Oxford, 1983).Google Scholar

11 “Powers and Strategies, “ in Power/Knowledge ed. Colin Gordon 136 (New York, 1980). Cf. the (still guarded) phrasing of Tsipko, “Soviet Law and Government, at 8 (cited in note 1): Indeed, our experience of building socialism and communism is not complete or universal; only the future, potential, universal-historical experience of socialist development will be sufficient basis for a final assessment. But it is no less true that our experience, compared with possible future experience, in the building and development of socialism has the important advantage that it already exists, whereas future experience is for the time being only a possibility in principle and a hope that the theory will be confirmed…. Hope is in general not an argument in scientific debate.Google Scholar

12 Id. at 16.Google Scholar

13 Raymond Aron, “La definition liberale de la liberte”Etudes politiques 211 (Paris, 1972).Google Scholar

14 See Jeremy Waldron, “The Rule of Law in Contemporary Liberal Theory,” 2 (1) Ratio Juris esp. at 93–94 (1980).Google Scholar

15 The Morality of Law 5–32 (2d ed. New Haven, Conn. 1969).CrossRefGoogle Scholar

16 See Richard Pipes, Russia under the Old Regime (Harmondsworth, 1974). See also J. A. Hall, Powers and Liberties: The Causes and Consequences of the Rise of the West (London, 1985). Cf. Adam Czamota & Martin Krygier, “Revolutions and the Continuity of European Law,” in Zenon Bankowski, ed., Revolutions and Law in Legal Thought (Aberdeen, 1991 (forthcoming)) (“Czamota & Krygier, ‘Revolutions’”).Google Scholar

17 Cf. Jeremy Waldron, 2 (1) Ratio Juris at 93; “I take it that it is not necessary nowadays to argue for the proposition that the rule of law … is at most necessary, and certainly not sufficient, for a free society and a social order that is just.”Google Scholar

18 Joseph Raz, “The Rule of Law and Its Virtue,” in The Authority of Law 211 (Oxford, 1979).CrossRefGoogle Scholar

19 “A Revival of Liberalism in Poland?” 57 (2) Social Research, (Summer 1990) at 463–91.Google Scholar

20 The Socialist Register 1974.Google Scholar

21 Leszek Kolakowski, “How to Be a Conservative-Liberal Socialist,”Encounter, Oct. 1978, at 46–47.Google Scholar

A Conservative Believes: That in human life there never have been and never will be improvements which are not paid for with deteriorations and evils; thus, in considering each project of reform and amelioration, its price has to be assessed. Put another way, innumerable evils are compatible (i.e., we can suffer them comprehensively and simultaneously); but many goods limit or cancel each other, and therefore we will never enjoy them fully at the same time. A society in which there is no equality and no liberty of any kind is perfectly possible, yet a social order combining total equality and freedom is not. The same applies to the compatibility of planning and the principle of autonomy, to security and technical progress. Put yet another way: there is no happy ending in history….Google Scholar

A Liberal Believes: …. That the ancient idea that the purpose of the State is security still remains valid. It remains valid even if the notion of “security” is expanded to include not only the protection of persons and property by means of the law, but also various provisions of insurance: that man should not starve if he is jobless; that the poor should not be condemned to die through lack of medical help; that children should have free access to education—all those are also part of security. Yet security should never be confused with liberty…. In fact security can be expanded only at the expense of liberty. In any event, to make people happy is not the function of the State….Google Scholar

A Socialist Believes: …. That it is absurd and hypocritical to conclude that, simply because a perfect, conflictless society is impossible, every existing form of inequality is inevitable and all ways of profit-making justified. The kind of conservative anthropological pessimism which led to the astonishing belief that a progressive income tax was an inhuman abomination is just as suspect as the kind of historical optimism on which the Gulag Archipelago was based….Google Scholar

So far as I can see, this set of regulative ideas is not self-contradictory. And therefore it is possible to be a conservative-liberal-socialist….Google Scholar

As for the great and powerful International which I mentioned at the outset—it will never exist, because it cannot promise people that they will be happy.Google Scholar

22 Among these is “the pluralist myth: equality is the norm; deviations are random and trivial and cancel each other out.” This attribution is based on a passage which Abel takes to be about equality. In fact, it does not mention equality and is not about equality at all, but about the rule of law, and its purport is the opposite of Abel's interpretation. In saying that the elements of the rule of law are “nowhere fully or uniformly realized but are approximated to greater or lesser degree in different societies, among different classes, races, and sectors of social life, and at different times,” I am pointing to differences, not similarities, to the fact that the rule of law is unevenly attained. If Abel could not glean that from the passage he misquotes or the paragraph in which it occurs, he might have guessed its meaning from the citation of McBarnet, who does not laud pluralism or the rule of law.Google Scholar

23 The Invisible Writing 15 (London, 1954).Google Scholar

24 Law and Revolution: The Formation of the Western Legal Tradition 42 (Cambridge, Mass., 1983). Cf. Geoffrey Sawer, “The Western Conception of Law,” in 2 International Encyclopedia of Comparative Law 46–47 (Tubingen, 1975), and Czarnota & Krygier, “Revolutions” (cited in note 16).Google Scholar

25 See Stanislaw Baranczak's Breathing Under Water and Other East European Essays (Cambridge, Mass., 1990) See especially “E. E. The Extraterritorial,” 9–15.Google Scholar

26 15 Law & Soc. Inquiry n.8 (cited in note 3).Google Scholar

27 1–2 The Gulag Archipelago 283 (chapter, “The Engine Room”) (London, 1974).Google Scholar

28 Compare Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton, N.J., 1990).Google Scholar