Socialist law

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. 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
having special courts and laws for state enterprises.[2]
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 RomanoGermanic 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]

Soviet legal theory[edit]

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 Pteris Stuka.[citation needed]
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.[citation needed]
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.[citation needed]
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[edit]
Socialist law is similar to common law or civil law but with a greatly increased public
law sector and decreased private law sector.[5]

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 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.

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."

A specific institution characteristic to Socialist law was the so-called burlaw court (or,
verbally, "court of comrades", Russian ) which decided on minor
offences.[citation needed]

Chinese Socialist law[edit]

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.[citation needed]
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.[citation needed]
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.[citation needed]
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.[citation