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Socialist law or Soviet law are terms used in comparative legal studies for the general type of
legal system A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...
which has been (and continues to be) 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. If so, prior to the end of the
Cold War The Cold War was a period of global Geopolitics, geopolitical rivalry between the United States (US) and the Soviet Union (USSR) and their respective allies, the capitalist Western Bloc and communist Eastern Bloc, which lasted from 1947 unt ...
, ''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 Private property is a legal designation for the ownership of property by non-governmental Capacity (law), legal entities. Private property is distinguishable from public property, which is owned by a state entity, and from Collective ownership ...
, how it may be acquired, transferred, or lost, socialist law systems provide for most property to be owned by the
state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
or by agricultural co-operatives, and having special courts and laws for state enterprises. Many scholars argue that socialist law was not a separate legal classification. Although the
command economy A planned economy is a type of economic system where investment, production and the allocation of capital goods takes place according to economy-wide economic plans and production plans. A planned economy may use centralized, decentralized, ...
approach of the communist states meant that most types of property could not be owned, the
Soviet Union The Union of Soviet Socialist Republics. (USSR), commonly known as the Soviet Union, was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 until Dissolution of the Soviet ...
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 the 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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
into socialist law are unknown because of incompatibility of basic principles of these two systems (common law presumes the influential rule-making role of courts while courts in socialist states play a dependent role). An article published in 2016 suggests that socialist law, at least from the perspective of public law and constitutional design, is a useful category. In the NYU ''Journal of International Law and Policy'', William Partlett and Eric Ip argue that socialist law helps to understand the "Russo-Leninist transplants" that currently operate in China's socialist law system. This helps to understand the "distinctive public law institutions and approaches in China that have been ignored by many scholars".


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 Vladimir Ilyich Ulyanov ( 187021 January 1924), better known as Vladimir Lenin, was a Russian revolutionary, politician and political theorist. He was the first head of government of Soviet Russia from 1917 until Death and state funeral of ...
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 and
proletarian The proletariat (; ) is the social class of wage-earners, those members of a society whose possession of significant economic value is their labour power (their capacity to work). A member of such a class is a proletarian or a . Marxist philo ...
law in this early phase was Pēteris Stučka. Other proponents of proletarian law included Dmitry Kursky and
Nikolai Krylenko Nikolai Vasilyevich Krylenko (, ; 2 May 1885 – 29 July 1938) was an Old Bolshevik and Soviet politician, military commander, and jurist. Krylenko served in a variety of posts in the Soviet law, Soviet legal system, rising to become Minis ...
. Alongside this 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 Joseph Vissarionovich Stalin (born Dzhugashvili; 5 March 1953) was a Soviet politician and revolutionary who led the Soviet Union from 1924 until Death and state funeral of Joseph Stalin, his death in 1953. He held power as General Secret ...
with the ascendancy of
Andrey Vyshinsky Andrey Yanuaryevich Vyshinsky (; ) ( – 22 November 1954) was a Soviet politician, jurist and diplomat. He is best known as a Procurator General of the Soviet Union, state prosecutor of Joseph Stalin's Moscow Trials and in the Nuremberg trial ...
, when the administration of justice was carried out mainly by the security police in special tribunals. During the
de-Stalinization De-Stalinization () comprised a series of political reforms in the Soviet Union after Death and state funeral of Joseph Stalin, the death of long-time leader Joseph Stalin in 1953, and Khrushchev Thaw, the thaw brought about by ascension of Nik ...
of the
Nikita Khrushchev Nikita Sergeyevich Khrushchev (– 11 September 1971) was the General Secretary of the Communist Party of the Soviet Union, First Secretary of the Communist Party of the Soviet Union from 1953 to 1964 and the Premier of the Soviet Union, Chai ...
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. By late 1986, the
Mikhail Gorbachev Mikhail Sergeyevich Gorbachev (2 March 1931 – 30 August 2022) was a Soviet and Russian politician who served as the last leader of the Soviet Union from 1985 to dissolution of the Soviet Union, the country's dissolution in 1991. He served a ...
era was stressing anew the importance of individual rights in relation to the state and criticizing those who violated
procedural law Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil procedure, civil, lawsuit, criminal procedure, criminal or admini ...
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 to the civil law but with a greatly increased
public law Public law is the part of law that governs relations and affairs between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that ...
sector and decreased
private law Private law is that part of a legal system that governs interactions between individual persons. It is distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the st ...
sector. * 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 an adversarial character; public prosecution is considered as "provider of justice." * 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 Private property is a legal designation for the ownership of property by non-governmental Capacity (law), legal entities. Private property is distinguishable from public property, which is owned by a state entity, and from Collective ownership ...
, thus near total collectivization and nationalization of the means of production; * subordination of the judiciary to the Communist Party * low respect for
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
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.


Socialist rule of law

After China's Reform and Opening Up, the
Chinese Communist Party The Communist Party of China (CPC), also translated into English as Chinese Communist Party (CCP), is the founding and One-party state, sole ruling party of the People's Republic of China (PRC). Founded in 1921, the CCP emerged victorious in the ...
(CCP) emphasized the rule of law as a basic strategy and method for state management of society.
Jiang Zemin Jiang Zemin (17 August 1926 – 30 November 2022) was a Chinese politician who served as General Secretary of the Chinese Communist Party, general secretary of the Chinese Communist Party (CCP) from 1989 to 2002, as Chairman of the Central Mil ...
first called for establishing a socialist rule of law at the Fifteenth Party Congress in 1997. In 2014, the CCP formally adopted a policy of constructing a "socialist rule of law with Chinese characteristics." In his writings on socialist rule of law,
Xi Jinping Xi Jinping, pronounced (born 15 June 1953) is a Chinese politician who has been the general secretary of the Chinese Communist Party (CCP) and Chairman of the Central Military Commission (China), chairman of the Central Military Commission ...
has emphasized traditional Chinese concepts including people as the root of the state (''mingben''), "the ideal of no lawsuit" (''tianxia wusong''), "respecting rite and stressing law" (''longli zhongfa''), "virtue first, penalty second" (''dezhu xingfu''), and "promoting virtue and being prudent in punishment" (''mingde shenfa''). Xi states that the two fundamental aspects of the socialist rule of law are: (1) that the political and legal organs (including courts, the police, and the procuratorate) must believe in the law and uphold the law, and (2) all political and legal officials must follow the CCP.


See also


General

: * Legal systems of the world


China

*
Law of the People's Republic of China The Law of the People's Republic of China, officially referred to as the socialist rule of law with Chinese characteristics, is the legal regime of China, with the separate legal traditions and systems of mainland China, Hong Kong, and Macau. C ...
* Legal history of China * Chinese law


Cuba

: * Cuban legal system * Cuban law ;


Soviet Union

: *
Law of the Soviet Union The Law of the Soviet Union was the law as it developed in the Soviet Union (USSR) following the October Revolution of 1917. Modified versions of the Soviet legal system operated in many Communist states following the Second World War—including ...
* 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


Further reading

* Solzhenitsyn, Aleksandr (1973). ''
The Gulag Archipelago ''The Gulag Archipelago: An Experiment in Literary Investigation'' () is a three-volume nonfiction series written between 1958 and 1968 by Russian writer Aleksandr Solzhenitsyn, a Soviet dissident. It was first published in 1973 by the Parisian ...
''. Available at: https://archive.org/details/TheGulagArchipelago-Threevolumes/The-Gulag-Archipelago__vol1__I-II__Solzhenitsyn/ * * * Partlett, W & E. Ip, Is Socialist Law Really Dead? 48 NYU Journal of International Law and Politics 463 (2016). Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2660098. {{DEFAULTSORT:Socialist Law Legal codes Legal systems