Socialist Legal Systems
Socialist law is the legal system used in most Communist states. It is based on the civil law system and Marxist-Leninist ideology. During the cold war period, it was incorporated into the legal systems of the Soviet Union and its former satellite states in Central and Eastern Europe. These systems were built on the notion that the state, rather than private individuals, should own most of the property within its jurisdiction.
When the cold war ended and the Soviet Union collapsed in 1989, support for the socialist legal model waned considerably. Some states, such as China, Cuba, Vietnam, and North Korea, continue to practice their own version of socialist law; however, most of these states have modified their legal systems in response to the growing popularity of market-oriented reforms and the inevitable forces of globalization. (1)
In a review of the International Encyclopedia of Comparative Law, Ulrich Drobnig, its editor, said the following, published in the Cornell International Law Journal (Volume 5, Issue 2, 1972):
The role of Socialist Law was intensively discussed at the 1965 Colloquium of the International Committee of Comparative Law on the basis of two reports submitted by Prof. Earsi (Budapest) 23 and Prof. Hazard (New York) 2 4 and a written comment by Prof. Blagojevi6 (Belgrade) (for an interesting account of the meeting by the two Soviet participants see Chkhikvadze 8- Zivs, Comparative Law in the Practice of International Scientific Collaboration, 5 Sovir L. & GovT., Summer 1966, at 3, 4-6). Western as well as Eastern experts were agreed that the laws of the socialist countries must be covered on a basis of full parity. The main issue was whether their integration into the topical “typical solutions” would distort the special socio-economic setting in which they have been created and in which they are applied. The answer is easy where the socialist countries have developed original approaches since these constitute separate “typical solutions” which will be discussed as such.
This is particularly true of institutions such as socialist property and planned contracts. Paradoxically, adequate treatment of the socialist laws is more difficult where their solutions are identical or very similar to those of non-socialist countries because the similarity of results may be due to quite different reasons (the same phenomenon may, of course, also occur in comparing laws of nonsocialist countries). This harmony of results in spite of differing causes is particularly remarkable. However, a full understanding of the solution requires a discussion of the underlying differences of the respective patterns. Thus, in cases in which a common typical
solution is reached by socialist as well as non-socialist countries, the distinctive features of the socialist solution must be thoroughly explained.
SOCIALIST LEGAL SYSTEMS—SOVIET LAW
Despite its stormy history, the Soviet legal system has acquired a definite character and gives evidence of being permanently established. Many of its features derive from prerevolutionary Russian origins and are therefore similar to those of other legal systems (especially the German and French), from which Russia borrowed in the nineteenth century. Other features, however, are peculiarly Soviet, reflecting the needs of a one-party state, a planned economy, and a social order directed toward a communist morality.
In the first two decades after the Communist seizure of power, in 1917, Soviet legal institutions had to contend with the official Marxist-Leninist theory that law (like the state) is essentially a capitalist institution destined to wither away (literally, “die out” ) once socialism is established. This theory derived from the premise that the apparatus of political authority (the state) and the formal procedures and general rules enforced by such apparatus (law) are essentially instruments of domination by the ruling class. They would have to be retained during the period of proletarian dictatorship but would not be needed in the future classless society, which would regulate itself, like a family or a kinship society, by customary standards, by morality and common sense, and by a recognition of the identity of individual and social interests.
In the period of War Communism, 1917-1921, the new Soviet regime made strenuous efforts to eliminate the legal institutions of the prerevolutionary period and to usher in the new classless society as rapidly as possible. The formal political and legal institutions that were introduced were quite primitive in character and were thought to be very temporary. By 1921, however, the entire economy was at a standstill, and Lenin introduced the New Economic Policy (NEP); private trade was restored, foreign firms were invited to do business on the basis of “concessions,” and the peasants were encouraged to sell the produce of their private holdings in the open market. The restoration of a certain degree of capitalism was thought to require also a restoration of law, and Lenin therefore sent his jurists to the prerevolution ary Russian codes, as well as to western European legal systems, to copy their provisions and adapt them to the new Soviet conditions.
In the 1920s there were promulgated codes of criminal law, criminal procedure, civil law, civil procedure, land law, labor law, and family law. These codes, as interpreted and developed by the judiciary, the bar, the Procuracy, the Ministry of Justice, and legal scholars, gave the Soviet Union a system of law comparable in its techniques and main outlines to those of Western countries. The system was hedged about, however, with provisions designed to prevent its being used contrary to the interests of the proletarian dictatorship.
Thus, article 1 of the Civil Code stated that the rights declared in the code should be protected by law “except in instances when they are exercised in contradiction to their social-economic purpose.” Similarly, the Criminal Code, rejecting the “bourgeois” principle of nullum crimen sine lege, provided that an act not made punishable by a specific article of the code may, if it is socially dangerous, be punished under articles relating to analogous acts (the doctrine of analogy).
Other features of the law of the NEP that reflected a “proletarian” or “Leninist” orientation included severe limitations upon rights of private ownership, civil liability for causing personal injury regardless of the absence of fault on the part of the defendant, an administrative procedure for divorce by unilateral repudiation, and heavy penalties for “counterrevolutionary” acts or utterances. In addition, the legal system as a whole was rendered somewhat precarious by the theory that it was only part of a transition toward a socialist society in which law would die out.
With the end of the NEP in 1928, the introduction of the first Five-Year Plan, and the collectivization of agriculture, there came a return to the nihilistic and apocalyptic spirit of the earlier period of War Communism. Now, however, a more positive content was given to the notion of the dying out of state and law. These were to be replaced, it was declared, by the plan. The legal institutions of the NEP, although not formally abolished, now became in many respects obsolete. Communist party directives and police terror replaced law in many areas of economic and social life, and Stalin, in that period, built his personal machine for governing.
The spirit of Soviet law in the early 1930s was reflected particularly in the writings of E. B. Pashukanis, the leading jurist of that period, who in his “General Theory of Law and Marxism” (1927) had expounded the view that law in its very nature is based on the concept of reciprocal exchange of goods and hence is essentially a product of a market economy. In the early 1930s Pashukanis foresaw the imminent disappearance of law and argued that such law as continued to exist in the period of construction of the planned economy should have maximum political elasticity. “The utmost dynamic force is essential,” he wrote in 1930. “Revolutionary legality is for us a problem which is ninety-nine per cent political” (Soviet Legal Philosophy 1951, pp. 279-280).
In the mid-1930s, however, there was once again a reaction against excessive dynamism. Stalin, in his “Report on the Draft Constitution,” 1936, called for “stability of laws.” With the adoption of the constitution in December 1936, socialism was declared to have been achieved; class antagonisms were said no longer to exist within the Soviet Union; but at the same time the new socialist era was said to require the strictest legality together with the strongest possible state power. The dying out of state and law was now postponed until the final stage of communism, after the end of “capitalist encirclement” -that is, when the whole world would be communist.
To this postponement Stalin added the “dialectical” doctrine that in order to pave the way for its own abolition the state must in the meanwhile become stronger and stronger. Thus the increase of terror against internal enemies-called agents of foreign imperialism-was given a theoretical justification, while at the same time the stabilization of the legal system could be promoted in those areas of social and economic life where terror was not considered necessary.
The dual system of law and terror that Stalin established in the mid-1930s is well symbolized by the fact that Pashukanis’ nihilistic theories of law were denounced and he himself was shot as a counterrevolutionary. He was replaced as dean of the Soviet legal profession by Andrei Ia. Vyshinskii, who laid down the new party line about law in a series of articles and in a book on Soviet public law (1938). While defending party supremacy and the use of force against “enemies of the people,” Vyshinskii attacked Pashukanis and other Soviet jurists for their attempt to reduce law to economics or to politics. He asserted that law has an “active, creative role” to play in the Soviet planned economy and that the reduction of law to politics would signify the ignoring of those tasks that stand before law, such as the tasks of legal protection of personal, property, family, testamentary, and other rights and interests (1938).
Under Vyshinskii’s aegis the whole vocabulary of “rights,” “duties,” “legality””contract,” “ownership,” “inheritance,” “fault,” “independence of the judiciary””right to counsel,” “burden of proof,” and the like was carried over from the NEP period and rebaptized as “socialist both in form and in content.” Moreover, the escape clauses of the NEP codes, such as article 1 of the Civil Code and the doctrine of analogy in criminal law, were greatly restricted in their application. In criminal law the element of personal guilt was emphasized as an essential element of crime. Liability for personal injury was now to be based on fault rather than on mere causation. A judicial procedure for divorce was introduced. Freedom of testation was increased, and the maximum 90 per cent inheritance tax was eliminated and replaced by a maximum 10 per cent notarial fee.
At the same time, “counterrevolutionaries” and “enemies of the people” were generally dealt with in secret administrative trials by the Special Board of the Ministry of Internal Affairs (MVD) or in a special secret procedure in the military courts. (The great purge trials of 1936-1938 were an exception to this rule.). Indeed, Vyshinskii developed theories to justify the application of special legal doctrines in political cases-for example, the theory that confessions have special evidentiary force in cases of counterrevolutionary crimes, since no person would confess to such a crime unless he were actually guilty!
The restoration of law as a positive feature of Soviet socialism was part of a general stabilization of social relations that occurred in the mid-1930s. It was related to the restoration of historical traditions, the re-emphasis of family stability, and the stress on Soviet patriotism, as well as to the recognition of the need for personal material incentives and for greater regularity and calculability in the administration of the economy. In the sphere of constitutional law, however, including choice of leaders, the legislative process, and civil liberties, “socialist legality” was largely a facade for Stalin’s personal despotism.
After Stalin’s death, in 1953, his successors denounced his “violations of socialist legality” and restricted very substantially the use of terror. They abolished the Special Board of the MVD and the special procedures in military courts for counterrevolutionary crimes. Hundreds of thousands of persons who had been convicted of counterrevolutionary crimes were released from labor camps and rehabilitated. Confessions were deprived of special evidentiary value, and the burden of proof was placed squarely on the prosecution in all criminal cases. The doctrine of analogy was eliminated from criminal law. New laws provided for the publication of all statutes and executive decrees having “general significance.” There was also a slight narrowing of the law on counterrevolutionary crimes (renamed “state crimes” ), although it remained a crime to defame the Soviet political and social system or even to possess written materials of such defamatory nature for the purpose of weakening Soviet authority. The regime in the labor camps (renamed labor colonies) was substantially reformed.
Even apart from political crimes, Soviet law underwent substantial liberalization in the years after Stalin’s death. There was a re-examination of virtually every branch of law and a weeding out of most of the harshest features. Between 1958 and 1962 “Fundamental Principles” were enacted by the U.S.S.R. Supreme Soviet in the fields of criminal law, criminal procedure, civil law, civil procedure, and judicial administration. On the basis of these Fundamental Principles the various Soviet republics have begun to enact new codes in these fields. Draft “fundamental principles” of labor law were published in 1959 and were still under discussion in 1965, with new Fundamental Principles of family law in preparation as of that date. The new basic legislation has effected not only a general liberalization of the pre-existing law but also a significant systematization and rationalization.
Among the distinguishing features of the Soviet legal system is the institution of the Procuracy, which was established by Lenin in 1922 on the model of the old Russian Procuracy established by Peter the Great. The procurator-general of the U.S.S.R. and his subordinates at all levels have the function not only of indicting and prosecuting criminals but also of supervising legality generally. “General supervision” includes “protesting” administrative abuses to higher administrative authorities, as well as “protesting” erroneous judicial decisions to higher courts. Any citizen may complain about an abuse of his rights to the Procuracy, which is required to investigate and reply to the complaint and in proper instances to “protest” it. Thus, the Procuracy exercises a “watchdog” function, without having administrative powers of its own (apart from the power to indict for crime). It is a legal institution peculiarly adapted to a political system in which there is a high degree of central administrative regulation.
A second characteristic Soviet legal institution is the system of administrative adjudication of contract disputes between state economic enter prises and organizations. So-called Arbitrazh tribunals hear such disputes and resolve them on the basis of contract law, administrative regulations, and state economic plans. Where plans require enterprises to enter into contracts for supply of goods and the enterprises cannot agree on the terms, Arbitrazh tribunals will hold hearings and resolve the dispute. Most of the several hundred thousand cases decided annually by Arbitrazh involve, however, not these “pre-contract” disputes, but suits for specific performance or for damages for breach of contract.
A third distinguishing feature of the Soviet legal system is its heavy stress on the educational role of law. Both substantive and procedural law, in virtually all fields, is oriented toward the guidance, training, and disciplining of Soviet citizens to be loyal, responsible, and devoted to the aims of the society as formulated by the Communist party. A specific manifestation of this “parental” philosophy is the law of official crimes, which makes administrative and managerial personnel of state organizations criminally liable for intentional malperformance or negligent performance of their official duties.
The emphasis on the educational role of law is connected with the theory of the dying out of state and law once communism is achieved. In 1961 the achievement of the first stage of communism was promised within twenty years. At the same time the Stalinist theory that the state must get stronger and stronger in order to create the conditions for its demise was rejected. The 1961 Communist party program declared that the period of proletarian dictatorship was over and that Soviet society would take immediate (although very gradual) steps to replace the coercive machinery of the state by the persuasive, voluntary processes of popular social action. In accord with this theory, various paralegal bodies have been established-notably, informal “comrades’ courts” in factories and apartment houses, which mete out reprimands and light fines for minor offenses, as well as “people’s patrols” (druzhiny), which act as volunteer auxiliary police. In addition, people who lead an “antisocial, parasitic way of life” and “live on unearned income” are tried by collectives of workers or by the courts in a special administrative procedure and are subject to “resettlement” for two to five years in places where they must take socially useful jobs.
The adoption of these “antiparasite” laws in the major republics in 1961 coincided with a general increase in harsh penalties for serious crimes. Thus, in 1961 the death penalty was introduced for large-scale economic crimes, counterfeiting, and illegal transactions in foreign currency. In 1962 repeated bribery of officials, rape committed by a group, and attempted homicide of a policeman or volunteer auxiliary policeman (druzhinnik) were added to the list of capital offenses. (Prior to 1961, only certain political crimes-treason, espionage, banditry, wrecking, terrorist acts-and murder committed under aggravating circumstances were subject to the death penalty in time of peace, and in 1958 the maximum period of confinement had been reduced from 25 to 15 years.)
Thus, as of the early 1960s there was a certain ambivalence in the Soviet legal system. On the one hand, many of Vyshinskii’s theories justifying the use of terror were denounced, and socialist legality was proclaimed to extend to all spheres of Soviet life. On the other hand, the dualism of law and terror was replaced by a dualism of law and informal social pressure, and law itself, although applied with greater objectivity than ever before in Soviet history, reflected increased harshness in some areas and increased leniency in others. Soviet jurists rejected Vyshinskii’s definition of law as a coercive instrument of state domination (embodying, Vyshinskii added, the will of the people); yet they were unable to find a new definition that corresponded to Marxist-Leninist theory, to the new conditions of Soviet life, and to the aspirations toward a communist society in which social influence and persuasion would replace formal rule and command. (2)
A decree adopted in late 1917, On the Court, abolished the tsarist judicial institutions, including the courts, examining magistrates, and bar association. However, during the first years following the Bolshevik Revolution, legal nihilists such as E. Pashukanis, who advocated the rapid withering away of the courts and other state institutions, contended with more pragmatic leaders who envisioned the legal system as an important asset in asserting and defending Soviet state power. The latter group prevailed. Vladimir Lenin, during the New Economic Policy, sought to re-establish laws, courts, legal profession, and a new concept of socialist legality to provide more stability in society and central authority for the Party hierarchy. The debate between the legal nihilists and their opponents was definitively resolved by Josef Stalin in the early 1930s. As Stalin asserted control over the Party and initiated industrialization and collectivization, he also asserted the importance of stabilizing the legal system. This process culminated in the 1936 constitution, which strengthened law and legal institutions, especially administrative law, civil, family, and criminal law.
The broad outlines of the legal system established by Stalin in the 1930s remained in effect until the late 1980s. Reforms introduced by Mikhail Gorbachev in the late 1980s, however, made significant changes in the Soviet judicial system. Gorbachev sponsored a lengthy public discussion of how to introduce pravovoe gosudarstvo (law-based state) in the USSR and introduced legislation to improve the independence and authority of judges and to establish the Committee for Constitutional Supervision, a constitutional court. (3)
Legal Systems and Criminal Justice
Note: there is additional information on the entries about criminal justice and the criminal justice system in this legal encyclopedia.
Previous writings that have tried to compare the criminal justice systems of different
countries have virtually all rooted themselves in the identification of various types of legalsystems or rules of law (See for example, Cole et al, 1987; Terrill, 1984; David and Brierley, 1968). Generally speaking, such studies claim that there are basically three legal families in
the world: civil law, common law, and socialist law. First, civil law refers to the Romano-Germanic family of law where “rules of law are intimately linked to ideas of justice and morality…[This family] attache[s] special importance to enacted legislation in the form of “codes” (David and Brierly, 1968:22). Second, common law is historically English and is premised on the notion that judicial decision “seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is, then, much less abstract than
[civil law]” (David and Brierly, 1968:24).
Third, law in the socialist society is “strictly subordinate to the task of creating a new economic
structure… [In fact], the proclaimed ambition of socialist jurists is to overturn society and
create the conditions for a new social order in which the very concepts of state and law will
disappear (David and Brierly, 1968:26). There is also some, though not much, recognition of other systems of law: “Asian,” “Islamic” and “Hindu” (David and Brierley, 1968). Since the people of the world who live under these three systems comprise roughly half the world’s population, it is difficult to avoid Beirne’s charge of “legal chauvinism” (1983) against such writers. From the point of view of legal systems and the idea of law, perhaps this charge is justified. However, from the point of view of criminal justice systems, we do not think that it is, for reasons that we shall make clear shortly.
The attempt to separate socialist law from the civil and common law is misguided at best, for some commentators. They argue that the fact is that Marxist theory has no room whatsoever for the concept of law. The emergence of socialist law is an aberration of civil law, not a “new” or independent body of law. Aberration is meant simply as a re-affirmation of the inquisitorial aspect of the history of the civil law family: law’s appropriation by a politically powerful autocracy to further its own interests.
Such occurred during the Inquisition of the Middle Ages, as well as during the Marxist era of the
20th century, they say. While the actual content of socialist law may appear different, its functions and operations remained an accentuated version of civil law with a heavy emphasis on a control model of criminal justice (See Packer, 1968). It is the latter observation of “socialist law” that suggests a differentiating factor: the needs of the state to establish an operational mode on top of the legal system. Thus, they conclude, it is the demands of the state that produce the basic structures of criminal justice systems, not the legal system or law per se.
- “Legal Systems.” International Encyclopedia of the Social Sciences. 2008.
- “Legal Systems.” International Encyclopedia of the Social Sciences. 1968.
- NEWCITY, MICHAEL. “Legal Systems.” Encyclopedia of Russian History. 2004.
The major “classics” of Soviet legal theory in the period prior to Stalin’s death have been translated in part by Hugh W. Babb in Soviet Legal Philosophy 1951. No one has emerged to replace Vyshinskii as dean of Soviet jurisprudence (1938). Among those scholars, formerly associated with Vyshinskii, who have been in the forefront of the reform movement since 1955 are M. S. Strogovich, S. A. Golunskii, A. A. Piontkovskii, and S. N. Bratus. Of the younger junsts who first came to prominence in the middle 1950s, O. S. loffe is perhaps the most outstanding. An extensive bibliography of Soviet legal writings may be found in Hazard & Shapiro 1962.
- Berman, Harold J. (1950) 1963 Justice in the U.S.S.R.: An Interpretation of Soviet Law. Rev. & enl. ed. Cambridge, Mass.: Harvard Univ. Press. ? Originally published as Justice in Russia: An Interpretation of Soviet Law.
- Berman, Harold J. (compiler) 1966 Soviet Criminal Law and Procedure: The R.S.F.S.R. Codes. Cambridge, Mass.: Harvard Univ. Press.
- Grzybowski, Kazimierz 1962 Soviet Legal Institutions: Doctrines and Social Functions. Ann Arbor: Univ. of Michigan Press.
- Gsovski, Vladimir 1948-1949 Soviet Civil Law: Private Rights and Their Background Under the Soviet Regime. 2 vols. Ann Arbor: Univ. of Michigan Press.
- Hazard, John N. 1960 Settling Disputes in Soviet Society: The Formative Years of Legal Institutions. New York: Columbia Univ. Press.
- Hazard, John N.; and Shapiro, Isaac 1962 The Soviet Legal System: Post-Stalin Documentation and Historical Commentary. 3 vols. Dobbs Ferry, N.Y.: Oceana.
- Pashukanis, E. B. 1927 Obshchaia teoria prava i marksizm (General Theory of Law and Marxism). Moscow: Izdatel’stvo Kommunisticheskoi Akademii. ? For a partial English translation see Soviet Legal Philosophy, 1951.
- Schlesinger, Rudolf (1945) 1951 Soviet Legal Theory: Its Social Background and Development. 2d ed. London: Routledge.
- Soviet Legal Philosophy. 1951 Cambridge, Mass.: Harvard Univ. Press; Oxford Univ. Press. A collection of major classics by V. I. Lenin and others, translated by Hugh W. Babb and published under the auspices of the Association of American Law Schools.
- Vyshinskii, Andrei Ia. (editor) (1938) 1948 The Law of the Soviet State. New York: Macmillan. First published in Russian.