- Socialist law
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).
Soviet legal theory
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 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.
- 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 privacy, extensive control of the party over private life;
- 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.
- 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 adversary character; public prosecution is considered as "provider of justice."
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 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
- ^ Quigley, J. (1989). "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law 37 (4): 781–808. doi:10.2307/840224. JSTOR 840224.
- ^ http://arjournals.annualreviews.org/doi/abs/10.1146/annurev.lawsocsci.3.081806.112849
- ^ http://books.google.co.uk/books?id=eERrPWIQn2kC&pg=PA331&dq=%22Socialist+law%22&hl=en&ei=rQY-TPrODY6UjAf49cX5Aw&sa=X&oi=book_result&ct=result&resnum=5&ved=0CD4Q6AEwBA#v=onepage&q=%22Socialist%20law%22&f=false
- Stuchka, P.I. (1988). Selected Writings on Soviet Law and Marxism. Robert Sharlet, Peter B. Maggs, and Piers Beirne (eds.). Armonk, N.Y.: M.E. Sharpe. ISBN 0-87332-473-0. OCLC 17353762.
- Evenson, Debra (2003). Law and Society in Contemporary Cuba (2nd ed.). The Hague: Kluwer Law International. ISBN 904112165X. OCLC 52976800.
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