Dual Power and the Criminal Justice System

- A Review of Chapter 10 (Popular Justice, Dual Power and Socialist Strategy by Boaventura de Sousa Santos) of Capitalism and the Rule of Law (1979) edited by Fine et al. (Last set of papers from the National Deviancy Conference)

I chose just to write a review of this chapter because of some of the interesting issues it raises in terms of social revolution and criminal justice. Such pieces are something of a rarity too (something I'd like to change).
This piece discusses the lack of a Marxist theory of law and why the author thinks this is so, before speaking of the need to understand and analyse past revolutions to learn for the future. In this case, the author uses the 'concept' of dual power as outlined by both Lenin and Trotsky in the context of the Russian Revolution. de Sousa Santos then goes on to utilise a concept of 'dual powerlessness' in relation to the 1974-5 Portugeuse Revolution before commenting on transitional forms of justice both there and amongst the oppressed in Brazil.
As mentioned before analyses of the Criminal Justice System (CJS) during a revolutionary situation is rare. In doing this, de Sousa Santos picks up on several things written by Lenin, primarly the distinction between the governments 'sharing' dual power. One, the Provisional Government, is a regular bourgeois government whereas the other 'is a revolutionary dictatorship ie. a power based on outright revolutionary seizure, on the direct initiative of the masses from below and not on a law enacted by a centralised state power... it is the crux of the matter.' Trotsky, writing later, generalises dual power to other revolutionary situations although noting that in Russia it was very clearly marked out.
De Sousa Santos characterises the Portugeuse Revolution as being one of dual powerlessness, where "the bourgeois state may undergo a generalised paralysis for an extended period of time without coming to a collapse. On the contrary, it remains intact as a kind of reserve state to be reactivated if and as soon as the relationship of forces change in its favour." (pg. 158)
He then discusses several cases in both revolutionary Portugal and Brazil. I'm not going to cover them all as he only briefly covers them, but I will discuss the most interesting case for me, that of Jose Diogo, a rural worker accused of murdering a big landowner. The still existing state authorities kept refusing to try his case so a popular jury ended up trying him on the court steps and after considering the extreme circumstances he was under, as explained by many other rural workers present, acquitted him, although condemning the fact that he took individual action. The main point of this for me, is that what happened isn't just mob justice, it's an example of a popular criminal justice system and shows that an alternative is possible.