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Silvio Berlusconi, the former Prime Minister of Italy, has, after numerous trials for countless crimes, finally been convicted. This wealthy politicians and businessman has protested about being the victim of a politicised judiciary. Such an accusation raises an important question: is the judiciary under capitalism "political"? Ben Gliniecki looks at the role of judges and the law in capitalist society.

Silvio Berlusconi, the contemptible epitome of ruling class morality and belligerence, has had his appeal against a conviction and prison sentence for tax fraud steamrolled by Italy’s Court of Cassation. For decades the courts and the politicians have been enmeshed in a lucrative web of smoke-filled rooms populated by judges, media bosses, the mafia and MPs, all stewing in the juices of their own corruption. The fact that this cosy alliance has crumbled says a lot about the panic amongst the Italian bourgeoisie. It betrays the fear brought on by economic catastrophe that is opening fissures at the top.

But that is not the focus of this article, because this fiasco brings another question to light. Berlusconi has always claimed that he is the victim of a politicised judiciary and that he has been persecuted with a “judicial fury that has no equal anywhere in the civilised world”. Without going into the specifics of the Italian situation, we can ask the general question – does the judiciary in a capitalist society ever act in a politicised way?

Naturally the bourgeois liberals, who swear by the rule of law and idolise the blindness of justice, are horrified by such a suggestion. According to them the judiciary are impartial, neutral, independent, unbiased guardians of that rarely defined abstraction: justice. If our bourgeois liberal friends are to be believed then these judges must be superhuman – able to remove themselves from the whirlpool of everyday events and their own personal views, life experiences, attitudes and prejudices. They must be able to ignore the tumultuous affairs of world politics and economics. They can never recognise individual idiosyncrasies in the unfortunates appearing before them, they must just apply the law as they find it – blind and inflexible.

Clearly such people do not exist. Even just to get to be a judge, that individual must have followed a particular path in life – come from a particular background, attended particular educational establishments, socialised with particular people, had a particular job and finally become a judge. All the character traits, the experiences, the thoughts, the actions and the beliefs that allowed this person to become a judge, do not simply disappear upon installation behind the judicial bench.

The very fact of having a job that involves applying the law of a capitalist society cannot help but carve itself upon the consciousness of the judiciary. Laws made by capitalists will protect capitalists, and that inevitably means that they must attack workers. Thus a judge cannot help but spend all day every day attacking workers. This is not the source of a great deal of distress for the judge because they are earning an eye-watering salary for their role as an officer of the bourgeois state, which places their material needs well beyond a position in which they might be able to understand the lives of those workers upon whom he passes judgement.

The point that must be forcefully made against the idealistic proclamations of the bourgeois liberals is that judges are individual human beings, and like all individual human beings, their consciousness is shaped by their environment. These judges do not stand above class society and they cannot extract themselves from it. It envelops them and seeps through their entire existence, inextricably entangling itself with their thoughts and actions. And the reality is that under capitalism, the resulting consciousness of the judiciary renders it a wing of the bourgeoisie - of the capitalist class.

Despite this clear class prejudice, which is political to the core, it is still common to hear liberals talking of the apolitical nature of the judiciary. It is often the case with people who claim not to be political that this mask of indifference covers a reactionary and conservative outlook. It is only those who are not suffering under the present conditions who can afford to be indifferent to politics, for those who experience injustice and oppression, being apolitical is not an option.

And so it is with the apparently apolitical judiciary. Their refusal to enter into the realm of politics hides their support for traditional conservatism, a facet of their class interest. While trumpeting the fanfare of their impartiality, these judges firmly nail their colours to the mast of political reaction.

This is the explanation for Berlusconi’s frenzied outburst following the Court’s decision to uphold his conviction. He complains that the judiciary is “uncontrollable and uncontrolled” because he, as a proud member of the bourgeoisie, has been used to having the bourgeois judiciary on his side. Now he has lost control and cannot understand why.

We should not make the mistake of thinking that the conflict between them means that either Berlusconi or the Italian judiciary have ceased to represent the bourgeoisie. In fact this demonstrates the widening gulf between different sections of the bourgeoisie all scrambling for cover from the sparks of the revolutionary flame being kindled throughout Europe.

So we agree with Berlusconi that the judiciary is politicised because the judges, like anyone else, will act only in their own class interest. It may also be true that Berlusconi is indeed being persecuted by the judges because they believe that it is in the interest of the bourgeoisie as a whole to destroy this individual member of the ruling class who is nothing but an embarrassing pest. But on the other side we can see the disgusting hypocrisy of Berlusconi, whose accusations of judicial bias arise only now, when it is he who is on the receiving end, but which were not even whispered as long as the judges’ enforcement of bourgeois politics was not directed at him.

We can have no faith in capitalist politicians or the capitalist judiciary. We must take our lives into our own hands and wage our struggle on a firm working class basis.

Socialist Appeal are proud to publish this education guide to help focus your studies of Marxist theory and practice. Visit the various tabs below to find links to introductory articles, classic texts, videos and audio talks for different topics. Read More
Check out this selection of writings for an excellent introduction to many of the fundamentals of Marxist theory, providing a strong basis for those wishing to equip themselves with the ideas necessary in order to fight for socialism. Read More
Dialectical materialism is the philosophy or methodology of Marxism. We must seek to understand the laws of society and nature in order to change them. Read More
Historical materialism is the general theory of how and why society develops in the way it does. Each social system has its inherent laws of motion. If we want to overthrow capitalist society, we must understand how capitalism works. Read More
Marxist economics is the study of the laws of motion of capitalist society, allowing us to understand why capitalism perpetually goes into crisis, where inequality comes from, and what the alternative is. Read More
The Russian Revolution is the greatest event in world history for Marxists. Studying the events of 1917, and understanding why the Revolution degenerated into Stalinism, provides vital lessons for revolutionaries today. Read More
For Marxists, the state is not at all neutral. We must understand the state’s real basis and strip away its mysticism by treating it historically - taking in its origins, rise, and eventual fall. Read More
Anarchism is naturally attractive for those wanting to abolish capitalism. But only Marxist ideas can explain why bureaucracy and oppression exist - and how to overthrow the exploitative capitalist system. Read More
Marxists are irreconcilably opposed to the oppression of women and fight determinedly for liberation and against discrimination. We believe this will be achieved through the class struggle - to abolish the oppressive capitalist system. Read More
The madness of fascism expresses the historic crisis and dead-end of capitalism. But it could have been avoided if the working class had a united revolutionary leadership, prepared to take power. Read More
Nations have not always existed, nor will they always exist in the future. Marxists are internationalists, fighting for world socialist revolution as the only way forward for humanity and our planet. Read More
Wars represent the sharp extreme of capitalism’s impasse. Imperialism, Lenin said, was the "highest stage of capitalism". As long as the profit system exists, there will be wars over markets and spheres of influence. Read More
All written history, Marx stated, is the history of class struggle. Our task is to learn the lessons from history in order to prepare for the revolutionary events taking place today and in the future. Read More
Our aim is to spread the ideas of Marxism, in an organised fashion, amongst workers and youth. In order to do this, we must study the history and traditions of the working class. Read More
  • Educate Yourself
  • The Fundamentals of Marxism: suggested reading
  • Dialectical Materialism and Science
  • Historical Materialism
  • Marxist Economics
  • Russia, Lenin, Trotsky and Stalinism
  • The State
  • Anarchism
  • Women's liberation
  • Fascism
  • The National Question
  • Imperialism and War
  • Revolutionary History
  • Revolutionary Strategy

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