The Family of Socialist Law

The Idea of Law

Socialist law is based on Marxian philosophy. It is the official name of the legal system of
Communist states. It is based on the civil law system, with major modifications and additions
from Marxist-Leninist ideology. Civil law system has traditionally endeavored in defining the
notion of private property, how it may be acquired, transferred, or lost, while Socialist legal
systems sees the concept of private property as the source of all evils. Socialist Legality
postulates that in a socialist society, the law should serve as a tool to promote the development of
socialism.
According to Marxian view, the law existing in a given society is determined by its socio-
economic structure. It is the superstructure standing on economic sub-structure. The development
of law over a long period is connected with class struggle or class contradiction, socio-economic
inequality and the consequent political relations of domination and suppression.
Karl Marx interpreted human history in scientific way. This philosophy says that, the whole
reality of the world is discoverable objectively and anything spiritual, ideal or conceptual is
merely a reflection of the particular material reality. All the ideas; the religion, moral philosophy,
art and whole stock of political and legal rules and institutions, which are comprehensively
called the state and the law are not independent at all. They do not derive from any given eternal
and unchangeable idea of law and justice. They are rather parts of superstructures, which simply
reflect the economic foundation and relation of productions especially serving as tool, which the
ruling class uses to maintain its existing position of power in society and the economy.
Economic foundation alters through history by dialectical leaps and bound. New forces of
productions arise, develop and spread the contradictions with existing relations, increases and
leads to revolutionary change in relations of production, which there in turn, produces similar
alterations in the superstructure.
State and law are identical. There is no law without state and there is no state without law; state
and law are two different words designating the same thing. The law is an instrument, which in
the class struggle safeguards the interests of the ruling class and maintains the social inequality
for its o profit. The basis of socialist law is Marxism, Leninism, which is based on dialectical and
historical materialism.

Society starts in condition where no legal system is needed because all property is owned in
common and it develops through the slave owning society, feudal society and then capitalism,
socialism and communism. In communism, there will be no need of law because all economic
contradictions are resolved and all exploitations of man by man will be ended. The state and
legal order will than die away, for they will have no functions left. Thus, law appears as
subsidiary to economic relations indeed derivative from them. It is conceived as lacking in
autonomy.

Role of Law
Marxists differ about the role played by law in the intermediate period, but they view that law is
an essential means of assuring, stabilizing and molding social conditions. The leaders of the
communist party alone have the necessary training and education to organize and develop the
process in accordance with the natural process of social development and to ordain the positive
law appropriate for the current state of social development. Practice of law is tied to this
principle of socialist legality. All these engaged in applying laws, must always act in harmony
with the objective legality of social development as interpreted by communist party. Law has two
functions; repression and education i.e. the double edge of law.
According to Marxist view, the capitalist system perpetuates class exploitation by means of
privately owned means of production. The owner is empowered to exploit other individual or
class. All state apparatus are managed in such a way that will disseminate the ideas of capitalist
system that will help to sustain it. These are the ideological state apparatus disseminating
capitalist ideology. In socialist society, the situation is just opposite, as class antagonism and
exploitation is avoided by socializing the means of production. There is the collective ownership
of the means of production.
Marxists' view that; the history of human-society is the history of class struggle. Its turning point
is marked by the victories of the exploited class. Then the means of production will be owned
collectively and they will be exploited for the common interest. Finally, classless society will be
created and the law will have no relevancy and wither away.

Functions of Socialist Law

After the revolution under the leadership of proletariat is completed and the state power comes
under the control of communist party the role of law will also be changed. In socialist stage law
will be an instrument of construction of communist (classless) society.
It is the means of transforming the society toward the communist ideal, the classless society with
true liberty. In this stage it is an instrument of new ruling class for changing the society from
capitalism to socialism.
Its aim is to educate people about the communist ideal. It teaches people and make them able to
understand that the anti-social attitudes that were accepted in capitalist society are not acceptable
in socialist society.
The first function of socialist law is to create collective ownership over the means of production.
All the means of production are brought under the control of the state. The property in socialist
society can be classified into private property, collective property and state property. The things
necessary for running life fall under private property which includes house, furniture, kitchen
garden and utensils.
The properties under the ownership of community for collective use are collective properties.
Agricultural firms, factories and forests come under collective property.
The property owned by the state is state property. All the productive land is nationalized. All the
properties other than private and collective properties are state properties. Larger industries,
hospitals, large agricultural firms are state properties.
The Second function of socialist law is educative. Law educates people about the role of state
and their duties toward the regime. Punishing people for breaking socialist law means educating
them.
The third function of law is to repress the reactionaries who try to revive their heaven or system
of exploitation. Since the function of law in capitalist society is to preserve the capitalist system,
the function of socialist law is to protect the socialist system. It aims at repressing the activities
that harm the socialist institutions.
In the course of development, there emerges a classless or communist society where the
exploitation of men by men will have ceased. In such a classless society, no state and law will be
needed and state and law will wither away. However, in the period of radical transformation
there will be the dictatorship of the proletariat. In this period, the law will be the instrument of
transforming and guiding society toward the communist ideal outside of which no true liberty,
equality or morality can exist. Socialist law has existed in Russia after the Bolshevik Revolution
then, in China and other socialist countries.

Sources of Socialist law

According to Marxian view law is not independent branch of knowledge. It is based on socio
economic structure of society. Therefore, the sources of law are not independent from source of
power and authority. The fundamental source of socialist law is composed of two factors; first
the collectivization of means of production and second establishment of dictatorship of
proletariat.
The basic source of socialist law is the Marxist and Leninist principle. Since the law is necessary
for the execution of socio-economic objective of the state based on Marxist Leninist philosophy
it is natural for the law being influenced from this philosophy.
The decisions of the convention of the communist party are another important source of law.
Other sources of law are legislation, constitution, codes, customs, international conventions, and
the writings of Marxists authors.

The Law of the Soviet Union

Soviet Law, or Socialist law-was the law that developed in the Soviet Union following the
October Revolution of 1917. Its modified versions were adopted by many Communist State
following the World War II. The law of the Russian territories before the October Revolution was
based on the civil law tradition. Soviet Law had some of the characteristics of civil law systems,
including some similar rules of procedure and legal methodologies. However, it introduced
major differences:
 While civil law systems have extensive legislation dealing with private property, Soviet law
upheld state ownership of the means of production and national economic planning,
 The lack of a distinction between civil and criminal law;
 The practical lack of civil rights and separation of powers, the lack of recourses against
government;
 The idea that the underlying purpose of the law was to aid in the restructuring of society and
advancing towards communism under the supervision of the Communist Party
This legal system was developed after the Russian Revolution and based on traditional Western
civil law, with many elements originating in the Russian legal tradition.
In 1917, the Soviet authorities formally repealed all Tsarist legislation and began to establish a
socialist system with the final aim of reaching Communism. The vast majority of Marxist theory
concerned itself with matters of politics, economics and sociology, not legislation, and thus
"socialist law" had to be built from scratch, using mostly non-Marxist legal theory. A few general
guidelines were laid out.
First, the new legal system should eliminate the political power and dominance of the
bourgeoisie. Second, law should be the instrument of the state and the people, not a restriction to
policy-makers. Third, law should establish rules of public order which ease the state's transition
into socialism and eventually communism. Fourth, law should educate citizens in how they can
help to build a communist social system. This is the basis on which Soviet Law was constructed.
Soviet Law did not use an adversary system, in which a plaintiff and defendant argue before a
neutral judge. Instead, court proceedings in the Soviet Union included a judge, a procurator, a
defense attorney and two people's assessors, and allowed for free participation by the judge. This
same system was used for all cases, due to the aforementioned lack of distinction between civil
and criminal law.
Judges kept legal technicalities to a minimum; the court's stated purpose was to find the truth,
rather than to protect legal rights. Other aspects of Soviet Law more closely resembled the
Anglo-Saxon system. In theory, all citizens were equal before the law-defendants could appeal to
a higher court if they believed their sentence to be too harsh. However, the procurator could also
appeal if he/she considered the sentence to be too lenient.
Soviet Law also guaranteed defendants the right to legal representation, and the right to be tried
in their native language, or to use an interpreter. Although, most hearings were open to the
public, hearings could also be held privately, if the Soviet Government deemed it necessary.
After the establishment of Soviet state in Russia, legal provisions were amended to confirm them
with the Marxist philosophy. Collectivization of economy started. The law had to perform three
functions i.e. national security, economic task of developing production and educating people to
destroy anti-social behavior. Soviet law took its model from Roman law and from the countries
of continental Europe belonging to the Romanists system. This legal system emphasized on
codification of law.
Sources of Soviet law were of two types i.e. primary and secondary. Collectivization of means of
production and establishment of proletariat dictatorship were the main sources. Legislation,
judicial decisions, customs and doctrinal works are secondary sources. Socialist legal system
adopted inquisitional procedure. However, there were some features in Soviet law that
differentiated it from civil law system. There was no provision of the review of legislative
actions. It also rejected the idea of distinction between private law and public law. The concept
of ownership in this legal system was different from other systems. There was either not the
provision of private property or was very limited. The means of production were under collective
ownership or state ownership.

The Law of Peoples Republic of China

Among the remaining communist governments, China has added extensive modifications to her
legal systems. This is a result of their market-oriented economic changes, as well as their de
facto abandoning of Marxism. However, some influence of Marxism 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 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 village committee owns the land and contracts the right
to use this land to tenure system similar to those found in Western countries. In reality, the
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.
However, the members of the socialist camp are those countries, which formerly had laws
belonging to the Romano-Germanic law. However, the originality of socialist law is particularly
evident from the revolutionary nature attributed to them in opposition to the somewhat static
character of Romano-Germanic laws.

Influence of Socialist Legal System in Nepali Law

The objective of socialist law is to establish egalitarian society. Law works as a tool to establish
socialism. Socialism is achieved by bringing the means of production under collective
ownership. Creating public enterprises and corporation and ensuring the right to work to the
labours. Providing social security, free education and health service are primary steps toward
socialism. The Constitution of Nepal, 2019 B.S. incorporated directive principles of state policies
which included the establishment of exploitation free society. Land Reform Act, 2021 imposed
ceiling on land holding and protected the right of the tenants. It also tried to prevent the
fragmentation of land and operation of cooperative agriculture.
The Cooperatives Act, 2049 aims for the formation and operation of various types of cooperative
associations and societies based on the mutual support and cooperativeness for the economic and
social development of the general public consumers by the farmers, craftsperson (Kaligadh),
class of people with low capital and low income, labors, landless and unemployed people or
social workers of the country.
The preamble of the Constitution has expressed its commitment to socialism. Article 4 of the
Constitution has defined state as socialism- oriented state. The function and objective of law in
socialism is to create equality and make equitable distribution of gains. Right to equality
enshrined in the Article 18 of the Constitution, right against exploitation guaranteed by the
Article 29, right relating to education guaranteed by Article 31, right to culture and language
guaranteed by Article 32, right to employment guaranteed by Article 33, right to labour
guaranteed by Article 34, right to health guaranteed under Article 35, right to food guaranteed by
the Article 36 and right to housing guaranteed by Article 37 are some measures to create equality
and social security.
For the attainment of the goal of the state to create equality, the Article 50(3) of the Constitution
has stated the objective of developing a socialism- oriented independent and prosperous
economy while making the national economy independent, self-reliant and progressive in order
to build an exploitation free society by abolishing economic inequality through equitable
distribution of the gains. Therefore, according to the Constitution the legal system of Nepal is
socialism-oriented.
The different public service laws including the Civil Service Law and Police Law, Army Law are
based on inclusive principles. The positive discrimination in public service has created inclusion
in public sphare which is the result of the influence of socialist legal system.
BREAK

Socialist law, rooted in Marxian philosophy, serves as the legal framework in Communist states,
adapting the civil law system with Marxist-Leninist principles. Rejecting the traditional emphasis
on private property, Socialist Legality asserts that law should propel socialist development.
According to Marx, societal laws derive from the prevailing socio-economic structure, acting as
a superstructure atop the economic sub-structure. Marx's scientific interpretation of history posits
that all concepts, including law and the state, reflect material realities and serve the ruling class.
Economic shifts lead to revolutionary changes in the superstructure, with state and law seen as
interchangeable instruments upholding the ruling class's interests. In the Marxist progression of
society from communal ownership to communism, law's necessity diminishes as economic
contradictions are resolved, and exploitation ends. In communism, the state and law are expected
to wither away, having fulfilled their functions. Thus, law is viewed as subordinate and
derivative, lacking autonomy, and its existence is intricately tied to economic relations. The
foundation of socialist law lies in Marxist-Leninist ideology, underpinned by dialectical and
historical materialism.
In Marxist ideology, the role of law in the transitional period varies among theorists, but it is
universally seen as crucial for assuring, stabilizing, and shaping social conditions. Communist
party leaders, deemed the only ones with the requisite education, organize and develop societal
processes, prescribing positive laws aligned with current social development. The practice of law
is tethered to socialist legality, demanding alignment with the party's interpretation of objective
social development. Law, with its dual functions of repression and education, acts as a tool under
the guidance of the communist party.
In the post-revolutionary era, when the proletariat assumes control of state power through the
communist party, the functions of socialist law undergo a profound transformation. In the
socialist stage, law serves as a tool for constructing a communist, classless society—a departure
from its role under capitalism. Its primary purpose is to facilitate the transition from capitalism to
socialism under the guidance of the new ruling class, the communist party.
The first function of socialist law involves the establishment of collective ownership over the
means of production. This entails categorizing property into private, collective, and state
ownership. Private property includes personal belongings, while collective property encompasses
resources for communal use, such as agricultural enterprises and factories. State property
involves the nationalization of productive land, including larger industries and hospitals.
The second function of socialist law is educative, enlightening individuals about the role of the
state and their responsibilities within the socialist system. Through punitive measures for law
violations, it aims to educate the populace.
The third function is repressive, targeting reactionaries seeking to revive exploitative systems.
Unlike the capitalist legal system, which preserves the status quo, socialist law aims to safeguard
and repress activities harmful to socialist institutions.
In the transitional period marked by the dictatorship of the proletariat, law becomes an
instrument for transforming society towards the communist ideal. It guides this radical shift,
aiming for the eventual emergence of a classless, communist society where the need for state and
law will wither away. Socialist law has been implemented in various socialist countries,
including Russia after the Bolshevik Revolution and in China.
Soviet Law, or Socialist law, emerged in the Soviet Union post the October Revolution of 1917,
influencing many Communist states after World War II. While rooted in the civil law tradition, it
departed significantly from conventional civil law systems. Soviet law upheld state ownership of
means of production, embracing national economic planning over private property.
Distinguishing features included the absence of a civil-criminal law divide, limited civil rights,
and a lack of recourse against the government.
The core purpose of Soviet Law was to aid societal restructuring and advance towards
communism under Communist Party oversight. After the 1917 Revolution, the Soviet authorities
nullified all Tsarist legislation, seeking to establish a socialist system progressing towards
communism. Socialist law, a construct necessitated by the dearth of Marxist legal theory, aimed
to eliminate bourgeois political power, serve as a tool of the state and the people, establish rules
for public order aiding the transition to socialism, and educate citizens in building a communist
social system.
The Soviet legal system, devoid of an adversarial approach, featured judges, procurators, defense
attorneys, and people's assessors. Court proceedings were consistent for civil and criminal cases,
emphasizing truth-seeking over legal rights protection. Equality before the law was theoretically
affirmed, allowing appeals for both defendants and procurators based on perceived harshness or
leniency in sentencing.
Soviet Law guaranteed legal representation, trial in one's native language, and public hearings,
with private sessions at the discretion of the Soviet Government. Amendments aligned legal
provisions with Marxist philosophy during the establishment of the Soviet state, coinciding with
economic collectivization. Soviet law served national security, economic development, and the
eradication of anti-social behavior.
Derived from Roman law and continental European legal systems, Soviet Law prioritized
codification. Primary sources included the collectivization of means of production and the
establishment of proletarian dictatorship. Secondary sources comprised legislation, judicial
decisions, customs, and doctrinal works. Employing an inquisitorial procedure, Soviet law
eschewed the review of legislative actions and rejected the dichotomy between private and
public law. Ownership concepts differed significantly, either limited or absent in private forms,
with collective or state ownership prevailing over the means of production. Ultimately, Soviet
Law represented a unique legal system tailored to the ideological and socio-economic context of
the Soviet Union.
In the People's Republic of China, legal systems have undergone significant modifications due to
market-oriented economic changes, deviating from strict adherence to Marxism. While some
Marxist influences persist, notable deviations are evident. Chinese real estate law, for instance,
features state ownership of land, with a complex system of use rights for structures. Contrary to
the misconception of Deng Xiaoping's reforms privatizing agricultural land, individual farmers
use the land, creating a distinctive tenure system. Despite originating from the Romano-
Germanic legal tradition, socialist law in China exhibits revolutionary characteristics, contrasting
with the static nature of its Western counterparts.
The influence of the socialist legal system is prominently evident in Nepal's legal framework,
aligning with the objective of establishing an egalitarian society. Socialist law, as a tool for
realizing socialism, emphasizes collective ownership of the means of production and the creation
of public enterprises to ensure the right to work and social security. The Constitution of Nepal,
formulated in 2019 B.S., incorporates directive principles of state policies geared towards
establishing an exploitation-free society.
Key legislative measures, such as the Land Reform Act of 2021, demonstrate a socialist
influence by imposing ceilings on land holdings, protecting tenant rights, and preventing land
fragmentation. The Cooperatives Act of 2049 further reflects socialist principles by promoting
the formation of cooperative associations for economic and social development, particularly
benefiting farmers, artisans, individuals with low capital, low-income groups, laborers, landless
and unemployed individuals, and social workers.
The constitutional commitment to socialism is explicit, with Article 4 defining the state as
socialism-oriented. Various articles within the constitution, such as Article 50(3), outline the
objective of developing a socialism-oriented independent and prosperous economy, aiming to
eliminate economic inequality through equitable distribution.
Nepal's legal system, therefore, is distinctly socialism-oriented, with the constitution enshrining
rights and principles that foster equality and social security. Measures such as the right to
equality, protection against exploitation, rights related to education, culture, language,
employment, labor, health, food, and housing underscore the commitment to creating a socially
just society.
In the public service sector, laws like the Civil Service Law, Police Law, and Army Law are
grounded in inclusive principles, reflecting positive discrimination to promote inclusion in the
public sphere. This reflects the enduring impact of socialist legal principles on the development
and implementation of laws in Nepal.

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