socialist legal system

CRITICAL ANALYSIS OF THE SOCIALIST LEGAL SYSTEM

INTRODUCTION

Socialist law is the official name of the legal system used in 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. Many contemporary observers no longer consider it to be such, due to similarities

with the civil law system and the fact that it is no longer in widespread use following the

dismantling of most communist states.

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 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).

According to Karl Marx and other socialist thinkers, socialism and law are incompatible. It has

been argued that the aspects of socialist law derived from Stalinism are in fact found elsewhere

in the world in other jurisdictions and are thus not truly socialist.

THE ORIGIN OF SOCIALIST LAW.

Soviet law, also called socialist law, law developed in Russia after the communist seizure of

power in 1917 and imposed throughout the Soviet Union in the 1920s. After World War II, the

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Soviet legal model also was imposed on Soviet-dominated regimes in eastern and central Europe.

Later, ruling communist parties in China, Cuba, North Korea, and Vietnam adopted variations of

Soviet law. Soviet law, which changed radically during its more than 70 years of development in

the Soviet Union, revived certain features of earlier tsarist law, shared key elements with the law

of other dictatorships, and introduced public ownership of the means of production and

subordination of the legal system to the Soviet Communist Party.

HISTORY OF SOCIALIST LAW

Many basic features of Soviet law came into effect very soon after the Russian Revolution of

1917. The regime immediately placed itself above the law and gave the head of the Communist

Party powers similar to those enjoyed for centuries by the tsars. The new government replaced

elected officials with its own leaders; it decreed that suspected enemies of the revolution should

be eliminated without trials; it expropriated land, banks, insurance companies, and large

factories; and it promulgated its ideology and suppressed opposing speech. In important ways,

however, the legal system of the immediate postrevolutionary period differed from Soviet law as

it developed later. The ideology imposed by the party was hostile to law, proclaiming, on the

authority of Karl Marx, that the state and all its institutions (including legal ones) would “wither

away” after the communist revolution. Accordingly, the new regime destroyed the

prerevolutionary legal structure of the market economy, including property, contract, and

business law. In 1921 Soviet communist leader Vladimir Lenin introduced the New Economic

Policy, which restored the legal basis necessary for the economy to function. He ordered that a

civil code based upon western European civil law be drafted and enacted. The code allowed the

formation of business entities and protected basic contract and property rights. Other legislation

established a court system to enforce these rights and to try criminal cases.

SOVIET LEGAL SYSTEM

Soviet law displayed many special characteristics that derived from the socialist nature of the

Soviet state and reflected Marxist-Leninist ideology. Vladimir Lenin accepted the Marxist

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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.

CHARACTERISTIC TRAITS

Socialist law is similar to common law or civil law but with a greatly increased public law sector

and decreased private law sector.

1) 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."

2) Diversity of political views directly discouraged.

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3) The ruling Communist party was eventually subject to prosecution through party

committees in first place.

4) Abolition of private property considered as a primary goal of socialism, if not its

defining characteristic, thus near total collectivization and nationalization of the means

of production.

5) Low respect for privacy, extensive control of the party over private life

6) Low respect for intellectual property as knowledge and culture was considered a right

for human kind, and not a privilege as in the free market economies.

7) 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.

8) The judicial process lacks adversary character; public prosecution is considered as

"provider of justice."

9) A specific institution characteristic to Socialist law was the so-called ‘burlaw’ court

which decided on minor offences.

CHINESE SOCIALIST LAW

Among the remaining communist governments, some (most notably the People's Republic of

China) 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 contracts the right to use this

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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.

The rule of law both as a legal concept and as a practice in China has become the subject of great

attention. There is increasing international pressure on China to build a legal system that is

premised on the "rule of law." Domestically, the three-decades of economic reform generated a

growing demand for the production of a legal system that will secure justice and restore the

public confidence in the judiciary. China's commitment to the rule of law is implicated by its

effort to develop a socialist legal system that maintains Chinese characteristics.

The specifics of what is a socialist legal system and what constitutes Chinese characteristics in

terms of the rule of law are subject to further debate. The Confucian heritage rooted legal

tradition and the single party ruling system have significantly shaped the legal landscape of the

country, making the route to the rule of law in China a long and thorny one. Despite China's

socialist laurel, the civil law influence apparent since the late 19th century remains highly visible

in the modem Chinese legal system.

China is determined to develop a legal system under the banner of the rule of law that is

consistent with its unique philosophy of governance. Whatever difference there may exist

between China's rule of law discourse and the rest of the world's, the development of a rule of

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law in China that incorporates Chinese characteristics signals China's determination to move the

country toward a sound legal system meaningful for China and for the international community

as well. Among many challenges, however, the biggest one is perhaps how to reconcile the role

of the ruling communist party and the "rule of law."

SCOPE OF THE STUDY

In this project we will first inspect the origin and the history of the Socialist Legal system. We

have limited the scope of the study of critical analysis of Socialist Legal system in the states of

former Soviet Russia and China only and shall not study the legal systems of other socialist

states such as North Korea and Cuba. However, we shall do a thorough, intensive as well as a

critical analysis of the legal system of Soviet Russia and China.

LITERATURE REVIEW

ARTICLES:

1. Perter B. Maggs, Soviet Law, Britannica encyclopedia, September 6, 2011.

This article deals with the whole spectrum of Socialist Law starting from its hidtory and

origin to its establishment in many nations of the world. Extract:

“Soviet law, also called socialist law, law developed in Russia after the communist

seizure of power in 1917 and imposed throughout the Soviet Union in the 1920s. After

World War II, the Soviet legal model also was imposed on Soviet-dominated regimes in

eastern and central Europe. Later, ruling communist parties in China, Cuba, North Korea,

and Vietnam adopted variations of Soviet law. Soviet law, which changed radically

during its more than 70 years of development in the Soviet Union, revived certain

features of earlier tsarist law, shared key elements with the law of other dictatorships, and

introduced public ownership of the means of production and subordination of the legal

system to the Soviet Communist Party.”

OBJECTIVES

1) To study the origin of the Socialist Legal System.

2) To focus and study the establishment and development of Socialist Law in Soviet Russia

and China and to draft a comparison of the two systems.

3) To evaluate the history and a critical analysis of the Socialist Legal System.

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RESEARCH QUESTIONS

1) What is the origin of the Socialist Legal system?

2) How did the Socialist Legal system developed in the states of Soviet Russia and China?

3) What were the effects on the Russian legal system after the fall of the Soviet Union?

4) How far was the system effective with respect to the ordinary business of the courts and

in imparting justice?

5) Is the Socialist Legal system dead?

HYPOTHESIS

“The concept of Socialist Law was a brainchild of Karl Marx and the establishment of Soviet

Union played a vital role in its development and contributed a lot to make it one of the major

legal systems of the world”.

METHODOLOGY

Approach to research:In this project, we have adopted doctrinal type of research. Doctrinal research is essentially a library-based study, which means that the materials needed by a researcher may be available in libraries, archives and other data-bases.Various types of books were used to get the adequate data essential for this project.

Type of research

This is clearly an exploratory as well as explanatory type of research.

Sources of data collection

Data has been collected from secondary sources like: books, web sources etc. no primary source like survey data or field data was collected.

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TENTATIVE CHAPTERISATION

1) INTRODUCTION.2) THE ORIGIN OF SOCIALIST LAW.3) THE HISTORY OF SOCIALIST LAW.4) SOVIET LEGAL SYSTEM.

i. THE ESTABLISHMENT.ii. THE DEVELOPMNT AND EFFECTIVENESS OF SOCIALIST LAW.

iii. EFFECT ON RUSSIAN LEGAL SYSTEM AFTER THE FALL OF THE SOVIET UNION.

5) CHARACTERISTIC TRAITS.6) CHINESE SOCIALIST LAW.

i. DEVELOPMENT OF CHINESE SOCIALIST LAW.ii. EFFECTIVENESS IN IMPARTING JUSTICE AND IN THE ORDINARY

BUSINESS OF THE COURTS.

7) CRITICAL ANALYSIS OF THE LEGAL SYSTEM OF SOVIET RUSSIA AND CHINA.

8) IS THE SOCIALIST LEGAL SYSTEM DEAD?9) CONCLUSION.

BIBLIOGRAPHY

1. Albert H.Y. Chen, An Introduction to the Legal System of the People’s Republic of China 1-5, 3d ed., 2004.

2. Rhett Ludwikowski, Judicial Review in the Socialist Legal System: Current Developments, Vol. 37, No. 1, Jan 1988.

3. http://en.wikipedia.org/wiki/Socialist_law, visited on 26/2/2013.4. http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Socialist_law.html, visited on

26/2/2013.5. http://www.china.org.cn/government/whitepaper/node_7137666.htm, visited on

28/2/2013.6. http://www.jstor.org/discover/10.2307/1122376?

uid=3738256&uid=2&uid=4&sid=21101889538727, visited on 28/2/2013.7. http://www.britannica.com/EBchecked/topic/557116/Soviet-law, visited on 1/3/2013.

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