Socialist law
Encyclopedia
Socialist law denotes a general type of legal system which has been used in communist and formerly communist states
. It is based on the civil law
system, with major modifications and additions from Marxist-Leninist ideology. There is controversy as to whether socialist law ever constituted a separate legal system or not. If so, prior to the end of the Cold War
, socialist law would be ranked among the major legal systems of the world.
While civil law systems have traditionally put great pains in defining the notion of private property
, how it may be acquired, transferred, or lost, socialist law systems provide for most property to be owned by the state
or by agricultural co-operatives, and having special courts and laws for state enterprises.
Many scholars argue that socialist law was not a separate legal classification. Although the command economy approach of the communist states meant that most types of property could not be owned, the Soviet Union
always had a civil code, courts that interpreted this civil code, and a civil law approach to legal reasoning (thus, both legal process and legal reasoning were largely analogous to the French
or German
civil code system). Legal systems in all socialist states preserved formal criteria of the Romano-Germanic civil law; for this reason, law theorists in post-socialist states usually consider the Socialist law as a particular case of the Romano-Germanic civil law. Cases of development of common law
into Socialist law are unknown because of incompatibility of basic principles of these two systems (common law presumes influential rule-making role of courts while courts in socialist states play a dependent role).
ideology. Vladimir Lenin
accepted the Marxist conception of the law and the state as instruments of coercion in the hands of the bourgeoisie and postulated the creation of popular, informal tribunals to administer revolutionary justice. One of the main theoreticians of Soviet socialist legality in this early phase was Pēteris Stučka
.
Alongside this utopian trend was one more critical of the concept of "proletarian justice", represented by Evgeny Pashukanis
. A dictatorial trend developed that advocated the use of law and legal institutions to suppress all opposition to the regime. This trend reached its zenith under Joseph Stalin
with the ascendancy of Andrey Vyshinsky
, when the administration of justice was carried out mainly by the security police in special tribunals
.
During the de-Stalinization
of the Nikita Khrushchev
era, a new trend developed, based on socialist legality, that stressed the need to protect the procedural and statutory rights of citizens, while still calling for obedience to the state. New legal codes, introduced in 1960, were part of the effort to establish legal norms in administering laws. Although socialist legality remained in force after 1960, the dictatorial and utopian trends continued to influence the legal process. Persecution of political and religious dissenters continued, but at the same time there was a tendency to decriminalize
lesser offenses by handing them over to people's courts and administrative agencies and dealing with them by education rather than by incarceration.
By late 1986, the Mikhail Gorbachev
era was stressing anew the importance of individual rights
in relation to the state and criticizing those who violated procedural law
in implementing Soviet justice. This signaled a resurgence of socialist legality as the dominant trend. It should be noted, however, that socialist legality itself still lacked features associated with Western jurisprudence. In particular, the ultimate control of the legal system lay with the party
leadership, which was not democratically
elected by, and therefore not responsible to, the public at large.
sector and decreased private law
sector.
A specific institution characteristic to Socialist law was the so-called burlaw court
(or, verbally, "court of comrades", Russian товарищеский суд) which decided on minor offences.
) have added extensive modifications to their legal systems. In general, this is a result of their market-oriented
economic changes. However, some communist influence can still be seen. For example, in Chinese
real estate
law there is no unified concept of real property
; the state owns all land but often not the structures that sit on that land. A rather complex ad hoc
system of use rights
to land property has developed, and these use rights are the things being officially traded (rather than the property itself). In some cases (for example in the case of urban
residential property), the system results in something that resembles real property transactions in other legal systems.
In other cases, the Chinese system results in something quite different. For example, it is a common misconception that reforms under Deng Xiaoping
resulted in the privatization
of agricultural land and a creation of a land tenure
system similar to those found in Western
countries. In actuality, the village committee owns the land and contract
s the right to use this land to individual farmers who may use the land to make money from agriculture. Hence the rights that are normally unified in Western economies are split up between the individual farmer and the village committee.
This has a number of consequences. One of them is that, because the farmer does not have an absolute right to transfer the land, he cannot borrow against his use rights. On the other hand, there is some insurance against risk in the system, in that the farmer can return his land to the village committee if he wants to stop farming and start some other sort of business. Then, if this business does not work, he can get a new contract with the village committee and return to farming. The fact that the land is redistributable by the village committee also ensures that no one is left landless; this creates a form of social welfare.
There have been a number of proposals to reform this system and they have tended to be in the direction of fully privatizing rural land for the alleged purpose of increasing efficiency. These proposals have usually not received any significant support, largely because of the popularity of the current system among the farmers themselves. There is little risk that the village committee will attempt to impose a bad contract on the farmers, since this would reduce the amount of money the village committee receives. At the same time, the farmer has some flexibility to decide to leave farming for other ventures and to return at a later time.
Soviet Union
Communist state
A communist state is a state with a form of government characterized by single-party rule or dominant-party rule of a communist party and a professed allegiance to a Leninist or Marxist-Leninist communist ideology as the guiding principle of the state...
. It is based on the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
system, with major modifications and additions from Marxist-Leninist ideology. There is controversy as to whether socialist law ever constituted a separate legal system or not. If so, prior to the end of the Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
, socialist law would be ranked among the major legal systems of the world.
While civil law systems have traditionally put great pains in defining the notion of private property
Private property
Private property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by...
, how it may be acquired, transferred, or lost, socialist law systems provide for most property to be owned by the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
or by agricultural co-operatives, and having special courts and laws for state enterprises.
Many scholars argue that socialist law was not a separate legal classification. Although the command economy approach of the communist states meant that most types of property could not be owned, the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
always had a civil code, courts that interpreted this civil code, and a civil law approach to legal reasoning (thus, both legal process and legal reasoning were largely analogous to the French
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
or German
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
civil code system). Legal systems in all socialist states preserved formal criteria of the Romano-Germanic civil law; for this reason, law theorists in post-socialist states usually consider the Socialist law as a particular case of the Romano-Germanic civil law. Cases of development of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
into Socialist law are unknown because of incompatibility of basic principles of these two systems (common law presumes influential rule-making role of courts while courts in socialist states play a dependent role).
Soviet legal theory
Soviet law displayed many special characteristics that derived from the socialist nature of the Soviet state and reflected Marxist-LeninistMarxism-Leninism
Marxism–Leninism is a communist ideology, officially based upon the theories of Marxism and Vladimir Lenin, that promotes the development and creation of a international communist society through the leadership of a vanguard party over a revolutionary socialist state that represents a dictatorship...
ideology. Vladimir Lenin
Vladimir Lenin
Vladimir Ilyich Lenin was a Russian Marxist revolutionary and communist politician who led the October Revolution of 1917. As leader of the Bolsheviks, he headed the Soviet state during its initial years , as it fought to establish control of Russia in the Russian Civil War and worked to create a...
accepted the Marxist conception of the law and the state as instruments of coercion in the hands of the bourgeoisie and postulated the creation of popular, informal tribunals to administer revolutionary justice. One of the main theoreticians of Soviet socialist legality in this early phase was Pēteris Stučka
Peteris Stucka
Pēteris Stučka, sometimes spelt Pyotr Ivanovich Stuchka ; b. in Koknese parish, Governorate of Livonia — d. January 25, 1932 in Moscow) was the head of the Bolshevik government in Latvia during the Latvian War of Independence, one of the leaders of the New Current movement in the late 19th...
.
Alongside this utopian trend was one more critical of the concept of "proletarian justice", represented by Evgeny Pashukanis
Evgeny Pashukanis
Evgeny Bronislavovich Pashukanis was a Soviet legal scholar, best known for his work The General Theory of Law and Marxism.-Early life and October Revolution:...
. A dictatorial trend developed that advocated the use of law and legal institutions to suppress all opposition to the regime. This trend reached its zenith under Joseph Stalin
Joseph Stalin
Joseph Vissarionovich Stalin was the Premier of the Soviet Union from 6 May 1941 to 5 March 1953. He was among the Bolshevik revolutionaries who brought about the October Revolution and had held the position of first General Secretary of the Communist Party of the Soviet Union's Central Committee...
with the ascendancy of Andrey Vyshinsky
Andrey Vyshinsky
Andrey Januaryevich Vyshinsky – 22 November 1954) was a Soviet politician, jurist and diplomat.He is known as a state prosecutor of Joseph Stalin's Moscow trials and in the Nuremberg trials. He was the Soviet Foreign Minister from 1949 to 1953, after having served as Deputy Foreign...
, when the administration of justice was carried out mainly by the security police in special tribunals
NKVD troika
NKVD troika or Troika, in Soviet Union history, were commissions of three persons who convicted people without trial. These commissions were employed as an instrument of extrajudicial punishment introduced to circumvent the legal system with a means for quick execution or imprisonment...
.
During the de-Stalinization
De-Stalinization
De-Stalinization refers to the process of eliminating the cult of personality, Stalinist political system and the Gulag labour-camp system created by Soviet leader Joseph Stalin. Stalin was succeeded by a collective leadership after his death in March 1953...
of the Nikita Khrushchev
Nikita Khrushchev
Nikita Sergeyevich Khrushchev led the Soviet Union during part of the Cold War. He served as First Secretary of the Communist Party of the Soviet Union from 1953 to 1964, and as Chairman of the Council of Ministers, or Premier, from 1958 to 1964...
era, a new trend developed, based on socialist legality, that stressed the need to protect the procedural and statutory rights of citizens, while still calling for obedience to the state. New legal codes, introduced in 1960, were part of the effort to establish legal norms in administering laws. Although socialist legality remained in force after 1960, the dictatorial and utopian trends continued to influence the legal process. Persecution of political and religious dissenters continued, but at the same time there was a tendency to decriminalize
Decriminalization
Decriminalization or Decriminalisation is the abolition of criminal penalties in relation to certain acts, perhaps retroactively, though perhaps regulated permits or fines might still apply . The reverse process is criminalization.Decriminalization reflects changing social and moral views...
lesser offenses by handing them over to people's courts and administrative agencies and dealing with them by education rather than by incarceration.
By late 1986, the Mikhail Gorbachev
Mikhail Gorbachev
Mikhail Sergeyevich Gorbachev is a former Soviet statesman, having served as General Secretary of the Communist Party of the Soviet Union from 1985 until 1991, and as the last head of state of the USSR, having served from 1988 until its dissolution in 1991...
era was stressing anew the importance of individual rights
Individual rights
Group rights are rights held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof...
in relation to the state and criticizing those who violated procedural law
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
in implementing Soviet justice. This signaled a resurgence of socialist legality as the dominant trend. It should be noted, however, that socialist legality itself still lacked features associated with Western jurisprudence. In particular, the ultimate control of the legal system lay with the party
Communist Party of the Soviet Union
The Communist Party of the Soviet Union was the only legal, ruling political party in the Soviet Union and one of the largest communist organizations in the world...
leadership, which was not democratically
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
elected by, and therefore not responsible to, the public at large.
Characteristic traits
Socialist law is similar to common law or civil law but with a greatly increased public lawPublic law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
sector and decreased private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
sector.
- partial or total expulsion of the former ruling classes from the public life at early stages of existence of each socialist state; however, in all socialist states this policy gradually changed into the policy of "one socialist nation without classes"
- diversity of political views directly discouraged.
- the ruling Communist party was eventually subject to prosecution through party committees in first place.
- abolition of private property (NOT meant as personal property) considered as a primary goal of socialism, if not its defining characteristic, thus near total collectivization and nationalization of property;
- low respect for privacyPrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
, extensive control of the party over private life; - low respect for intellectual propertyIntellectual propertyIntellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
as knowledge and culture was considered a right for human kind, and not a privilege as in the free market economies. - extensive social warrants of the state (the rights to a job, free education, free healthcare, retirement at 60 for men and 55 for women, maternity leave, free disability benefits and sick leave compensation, subsidies to multichildren families, ...) in return for a high degree of social mobilization.
- the judicial process lacks adversaryAdversarial systemThe adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
character; public prosecution is considered as "provider of justice."
A specific institution characteristic to Socialist law was the so-called burlaw court
Burlaw court
Burlaw court, was a special form of collective justice that existed in the Soviet Union. Burlaw courts were elected for the term of two years by open voting of working collective members, and were entitled to consider minor offences and to impose fines up to 50 Soviet rubles or to pass the case...
(or, verbally, "court of comrades", Russian товарищеский суд) which decided on minor offences.
Chinese Socialist law
Among the remaining communist governments, some (most notably the People's Republic of ChinaPeople's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
) have added extensive modifications to their legal systems. In general, this is a result of their market-oriented
Free market
A free market is a competitive market where prices are determined by supply and demand. However, the term is also commonly used for markets in which economic intervention and regulation by the state is limited to tax collection, and enforcement of private ownership and contracts...
economic changes. However, some communist influence can still be seen. For example, in Chinese
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
real estate
Real estate
In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...
law there is no unified concept of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
; the state owns all land but often not the structures that sit on that land. A rather complex ad hoc
Ad hoc
Ad hoc is a Latin phrase meaning "for this". It generally signifies a solution designed for a specific problem or task, non-generalizable, and not intended to be able to be adapted to other purposes. Compare A priori....
system of use rights
Use (law)
Use, as a term in real property law of common law countries, amounts to a recognition of the duty of a person, to whom property has been conveyed for certain purposes, to carry out those purposes....
to land property has developed, and these use rights are the things being officially traded (rather than the property itself). In some cases (for example in the case of urban
City
A city is a relatively large and permanent settlement. Although there is no agreement on how a city is distinguished from a town within general English language meanings, many cities have a particular administrative, legal, or historical status based on local law.For example, in the U.S...
residential property), the system results in something that resembles real property transactions in other legal systems.
In other cases, the Chinese system results in something quite different. For example, it is a common misconception that reforms under Deng Xiaoping
Deng Xiaoping
Deng Xiaoping was a Chinese politician, statesman, and diplomat. As leader of the Communist Party of China, Deng was a reformer who led China towards a market economy...
resulted in the privatization
Privatization
Privatization is the incidence or process of transferring ownership of a business, enterprise, agency or public service from the public sector to the private sector or to private non-profit organizations...
of agricultural land and a creation of a land tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
system similar to those found in Western
Western world
The Western world, also known as the West and the Occident , is a term referring to the countries of Western Europe , the countries of the Americas, as well all countries of Northern and Central Europe, Australia and New Zealand...
countries. In actuality, the village committee owns the land and contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s the right to use this land to individual farmers who may use the land to make money from agriculture. Hence the rights that are normally unified in Western economies are split up between the individual farmer and the village committee.
This has a number of consequences. One of them is that, because the farmer does not have an absolute right to transfer the land, he cannot borrow against his use rights. On the other hand, there is some insurance against risk in the system, in that the farmer can return his land to the village committee if he wants to stop farming and start some other sort of business. Then, if this business does not work, he can get a new contract with the village committee and return to farming. The fact that the land is redistributable by the village committee also ensures that no one is left landless; this creates a form of social welfare.
There have been a number of proposals to reform this system and they have tended to be in the direction of fully privatizing rural land for the alleged purpose of increasing efficiency. These proposals have usually not received any significant support, largely because of the popularity of the current system among the farmers themselves. There is little risk that the village committee will attempt to impose a bad contract on the farmers, since this would reduce the amount of money the village committee receives. At the same time, the farmer has some flexibility to decide to leave farming for other ventures and to return at a later time.
See also
General:- Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
- Chinese lawChinese lawChinese law is one of the oldest legal traditions in the world. In the 20th and 21st century, law in China has been a complex mix of traditional Chinese approaches and Western influences....
- Cuban Legal SystemCuban Legal SystemThe judicial branch of Cuba is one of three branches of the Cuban government.Shortly after the triumph of the Cuban Revolution, the Cuban government adopted as its guiding force the ideas of Marxism-Leninism and sought to build a socialist society in accordance with these principles...
- Cuban lawCuban LawThe substantive and procedural laws of Cuba were later based on the Spanish Civil laws and were influenced by the principles of Marxism-Leninism after that philosophy became the guiding force of government.- Principle of equality :...
Soviet Union
- Law of the Soviet Union
- Ministry of Justice of the USSRMinistry of Justice (Soviet Union)The Ministry of Justice of the Union of Soviet Socialist Republics , formed on 15 March 1946, was one of the most important government offices in the Soviet Union. It was formerly known as the People's Commissariat for Justice...
- Procurator General of the USSR