Anna Lukina

In this paper, I seek to introduce, define, and ultimately defend the concept of ‘evil law’. Firstly, I look at the reasons – both theoretical and moral – why using the concept of evil law is valuable. Secondly, I argue that evil law is distinct from merely bad or unjust law and can be defined as law, which, if interpreted in its best light, will inflict or enable intolerable harm (including atrocities) to victims themselves. Thirdly, I claim that evil law is indeed law despite objections based on both its external and internal immorality. Fourthly and finally, I reject the challenge that using the vocabulary of evil law is empty at best and dangerous at worst.

This dissertation examines the link between law and extreme moral iniquity, seeking to provide a first comprehensive account of the nature of evil law. It consolidates existing philosophical discussions associated with evil law and enriches these debates by testing their arguments against the historical examples of the evil legal systems of Nazi Germany and Stalin’s Soviet Union, as well as the law of slavery in the antebellum United States. Firstly, it narrows down the category of evil acts and practices as necessary for its application to law and defends using the term ‘evil’ against those seeing it as redundant, empty, subjective, and even dangerous. Secondly, it identifies evil law as qualitatively distinct from bad or unjust law, and defines evil law as law, which, if interpreted in its best light, will cause or enable infliction of intolerable harm (including atrocities) to the victims themselves if not pre- empted by external factors. It also describes different types of evil laws – duty-imposing, power-conferring, permissive, and legitimating – and provides an account of evil legal systems as those containing a significant number of evil laws central to their material identity. Thirdly, it claims that evil law is law in the fullest sense of this word, notwithstanding objections from such law’s external and internal immorality. Fourthly, it posits that law does not hinder but helps evil regimes by securing coercion, coordination, legitimation, education and propaganda, and identity building. Fifthly, it grounds a right and a duty to resist evil law in participatory equality, human dignity, and autonomy, and limits them when resistance involves intolerable harm on others or oneself. Sixthly and finally, it argues that successful resistance can take many forms, but is ultimately only possible if one moves beyond the confines of legal interpretation, or resists from the outside and not from the inside. These conclusions paint a fuller picture of evil law, aiding both those who seek to understand it and those who aim to oppose it.

Contemporary legal theorist Joseph Raz claimed that, in a society of angels, there would still be need for law. This article will trace the history of this thought experiment back to the works of the medieval theologian St. Thomas Aquinas on the divine government and the society under the state of innocence. Despite writing centuries apart and belonging to the rival legal positivist and natural law jurisprudential traditions, both thinkers, quite surprisingly, agree that imagining a society of virtuous beings matters not only for recognizing the necessary coerciveness of law, but also its coordinative function. While disagreeing on the nature of law, Raz and Aquinas equally recognize the practical indispensability of legal rules even in a government of morally perfect beings and would also do so when it comes to its opposite—a society of demons. That this shared insight is not undermined by where Raz and Aquinas diverge is further proven when it comes to applying their theories when discussing the need for laws’ coordinating ability in atypical settings, such as post-legal societies, wicked regimes, extraordinary measures, and international law.

In this paper, I seek to introduce, define, and ultimately defend the concept of ‘evil law’. Firstly, I look at the reasons – both theoretical and moral – why using the concept of evil law is valuable. Secondly, I argue that evil law is distinct from merely bad or unjust law and can be defined as law, which, if interpreted in its best light, will inflict or enable intolerable harm (including atrocities) to victims themselves. Thirdly, I claim that evil law is indeed law despite objections based on both its external and internal immorality. Fourthly and finally, I reject the challenge that using the vocabulary of evil law is empty at best and dangerous at worst.

This chapter sets out to briefly introduce the theory of the legal form as originally conceived by Evgeny Pashukanis, a famous early Soviet legal scholar. Firstly, it will provide an account of Pashukanis's life, tragically cut short during the Great Terror. Secondly, it will move onto summarising his theory of the legal form through three theses: (i) Commodity Form Thesis, (ii) Bourgeois Law Thesis, and (iii) Withering Away Thesis. Thirdly, it will compare these theses to the positions on law and state advanced by his various interlocutors, past and contemporary, namely Karl Marx and Friedrich Engels, Vladimir Lenin, Petr Stuchka, and Andrey Vyshinsky. Fourthly, it will analyse the similarities and differences identified in the previous section, drawing conclusions as to the cause of Pashukanis's downfall. It will be eventually pointed out that Pashukanis's theory was fundamentally unsuitable to the project of Soviet state-building, which explains why viewing law and state from Pashukanist lens was contested and eventually abandoned.

This article addresses Schmitt’s concept of sovereign dictatorship—a departure from the normal legal order aiming to bring about a new mode of legality—as applied to the Marxist, and then Soviet, “dictatorship of the proletariat.” Unlike Schmitt, Marx and Engels, as well as Soviet legal theorists, saw the space for law even while aiming to dispense with the legal form on the road to communism. This is best explained by Schmitt’s failure to recognize the importance of legal systems not only for controlling social conflict, but also for coordination, the need for which does not disappear in extraordinary circumstances.

This paper examines Hans Kelsen’s Communist Theory of Law in the context of his general critique of natural law theories. Kelsen argues that since there is no such thing as objectively determined natural law, a theory that attempts to use it to establish constraints on positive law is at risk of automatically justifying the latter. Kelsen deploys this ‘Pandora’s Box Objection’ in his characterisation of the Communist theory of law as the ‘handmaiden’ of the Soviet government that conserved, rather than challenged, oppressive policies. The Objection is limited in scope. Firstly, it applies only to ‘forward-looking’ Communist theories of law that justify transitional socialist legal arrangements rather than seek to abolish the legal form as a whole. Secondly, it does not eliminate the Rule of Law constraints that are independent from natural law fetters – hence the state does not have a ‘blank cheque’ to introduce any positive law.