Civil law system

Concept, Development and

Sources of Socialist Law
 Concept of Socialist law system
• The concept of socialist law expresses the ideological legacy of Marxism. Marxist
philosophy is Dialectical Materialism. It emphasize on contradiction and motion which is
especially based on Newton’s third law of motion (rule of action and reaction). This
philosophy argues that the society is also in motion from the history. So, Marxist
philosophy has methodology of Historical Materialism. It explains the society’s
development through several stages like Primitive Communism - Slavery – Feudalism –
Capitalism – Socialism – Stateless Communism. All of the stages have two rival classes and
the struggle between them results the transformation. Marxism promotes the working
class (proletariat) as the driving force of the society. So, Marxism empowers the working
class by the theory of Dictatorship of the Proletariat because Marxism assumes that the
state power is dictatorship itself. So law, according to Marxism, is an instrument of class
struggle, dictatorship and state power. Socialist Law is an instrument of the dictatorship of
the proletariat and the socialist state power till the withering out of it. Socialist Law is
based on Marxist economic ideology. Policy of planned economic development is effective.
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• Socialist law or Soviet 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. For example, private
property vs. state property/ social property. Leninist concept of
Vanguardism and principle of Democratic Centralism have the most
important role in the Socialist Law system. Vanguardism promotes the
communist party and takes law as a tool of contemporary politics.
Likewise, Democratic Centralism promotes freedom of discussion and
unity on action which consequently rejects the theory of check and
balance because law and courts are tools for ensuring unity and
promoting control over a large space. – Willium Partlett & Eric C. Ip, Is Socialist
Law Really Dead?, www.researchgate.net
 Historical Development of Socialist Law
1. Pre-Soviet Era:
• Before the establishment of Soviet Union, the concept of the Socialist Law was
developed through Marxist ideology. The thinker of Marxism was Karl Marx (1818-
1883). He had developed his idea from German philosophy, French history of
socialism and English economy. That’s why Socialist Law was more or less
influenced by Romano-Germanic Law.
• In 1871, French working class seized the power of Paris and had established Paris
Commune (Socialist State Power) for 2 months. During this, the commune
promulgated some decrees like separation of church and state, abolition of child
labour and night work in bakeries, postponement of commercial debt obligations,
the abolition of interest on the debts, right of employees to take over and run an
enterprise
• This is the ideological era. Socialist Law has been influenced by Leninist ideology
too. Russian Tzarist centralization and secularism of Alexis code (1649) have
influence, in some extent, to the Socialist Law practiced by Vladimir Lenin (1870-
1924).
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2. Soviet Era:
October Revolution or Bolshevik Revolution drove Russia, in 1917, to the Soviet Era establishing Union of Soviet Socialist
Republics (USSR). This revolution has an epoch making impact over the world. After the revolution dictatorship of
proletariat was established in Soviet Union. The Soviets (like assemblies) started to make Socialist laws. There are two
stages:
1. Stage for Socialism:
A) Revolutionary phase (1917-1921): It was transitional period. Soviets launched new laws under the principle of
dictatorship of proletariat. The laws nationalized the landlord’s (Kulak) property and industries for the foundation of
socialism.
B) New Economic Policy phase (1921-1928) : Soviet Federation created the codes like Civil Code, Civil Procedural Code,
Criminal Code, Criminal Procedural Code, Family Code, New Agrarian Code early of the phase. During this phase
Soviet Union led by Lenin characterized the NEP in 1921 as an economic system that would include "a free market
and capitalism, both subject to state control," while socialized state enterprises would operate on the profit basis.
New economic order and laws that permitted private ownership in small business, provided flexible taxation,
stopped grain requisition and so on.
C) Collective Ownership phase (1928-1936) : Soviet Union introduced the five years development planning. All
industries and trades were nationalized as collective ownership.
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2. Stage for Communism:
The Constitution of USSR was promulgated in 1936. The constitution had
provision of Supreme Soviet as Legislative and Executive chief was the
President. Soviet Union was declared as soviet public in 1961. Primarily
oriented to stateless society but later the principles of Perestroika
(Openness) and Glasnost (Restructuring) was applied by the President
Mikhail Gorbachev. In 1991, Soviet Union was dissolved.
3. Post-Soviet Era:
• Socialist Laws are being applied, in some extent, in former soviet
union territories and former socialist countries.
• China is executing Socialist law with Chinese Characteristics.
Sources of the Socialist Law
1. Primary Sources:
A. Economic Policy and Collective means of production
B. Doctrines of Thinkers and Jurists – Marx, Angels, Lenin, Stalin, Pasukanish,
Mao
C. Legislation
1) Constitution
2) Parliamentary Acts
3) Delegated Legislation
4) Ordinance
5) Codes
D. Judicial Decisions
2. Secondary Source :
• Customs and Rules of Socialist Community life,
• Super-eminent principles of Law – Equity, Justice, Reason, Good
Conscience
• Doctrinal Writings
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