Socialist law

Socialist law or Soviet law denotes a general type of legal system which has been used in socialist and formerly socialist 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.[1] 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
[2]
having special courts and laws for state enterprises.

Many scholars argue that socialist law was not a separate legal classification.[3] 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).[4]

Contents
Soviet legal theory
Characteristic traits
Chinese Socialist law
See also
Notes
Further reading

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 wasPēteris 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 inspecial 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.[5] 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. Socialist legality itself still lacked features
associated with Western jurisprudence.

Characteristic traits
Socialist law is similar tocommon law or civil law but with a greatly increasedpublic law sector and decreased private law sector.[6]

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 lacksadversary character; public prosecution is considered as "provider of justice."
partial or total expulsion of the formerruling 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 considered as a primary goal of socialism, if not its defining characteristic, thus near total
collectivization and nationalization of the means of production;
subordination of the judiciary to the Communist Party
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.
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.

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 theirmarket-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 dif

ferent. 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.
See also
General

Legal systems of the world

Chinese law
Cuban Legal System
Cuban law

Soviet Union

Law of the Soviet Union

Ministry of Justice of the USSR
Procurator General of the USSR
Review of Central and East European Law, formerly known as the Review of Socialist Law

Notes
1. Quigley, J. (1989). "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law. 37 (4):
781–808. doi:10.2307/840224 (https://doi.org/10.2307/840224). JSTOR 840224 (https://www.jstor.org/stable/84022
4).
2. "Soviet law" (https://www.britannica.com/topic/Soviet-law). Retrieved 2016-09-10.
3. Markovits, I. (December 2007). "The Death of Socialist Law?".Annual Review of Law and Social Science. 3: 233–
253. doi:10.1146/annurev.lawsocsci.3.081806.112849(https://doi.org/10.1146/annurev.lawsocsci.3.081806.112849).
4. "Soviet law" (https://www.britannica.com/topic/Soviet-law). Retrieved 2016-09-10.
5. Elie, Marc (2013). "Khrushchev's Gulag: the Soviet Penitentiary System after Stalin's death, 1953-1964"(https://hals
hs.archives-ouvertes.fr/hal-00859338/). In Kozlov, Denis; Gilburd, Eleonory. The Thaw: Soviet Society and Culture
during the 1950s and 1960s. Toronto University Press. pp. 109-142.ISBN 978-1442644601. HAL 00859338.
Retrieved October 30, 2017.
6. Glenn, H. Patrick (2010).Legal Traditions of the World: Sustainable Diversity in Law (https://books.google.com/book
s?id=eERrPWIQn2kC&pg=PA331&dq=%22Socialist+law%22&hl=en&ei=rQY-TPrODY6UjAf49cX5Aw&sa=X&oi=boo
k_result&ct=result&resnum=5&ved=0CD4Q6AEwBA#v=onepage&q=%22Socialist%20law%22&f=false) (4th ed.).
New York: Oxford University Press.ISBN 978-0-19-958080-4. OCLC 650838256 (https://www.worldcat.org/oclc/650
838256).

Further reading
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 90-411-2165-X. OCLC 52976800.

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