Socialist law or Soviet law denotes a general type of legal system 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.[1] If so, prior to the end of the Cold War, socialist law would be ranked among the major legal systems of the world.
Bulletin at the Elections to the Supreme Soviet of the USSR (1946)
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 Government 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 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 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]
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".[5]
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 and proletarian law in this early phase was Pēteris Stučka. Other proponents of proletarian law included Dmitry Kursky and Nikolai Krylenko.[6]
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.[7] 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. Socialist legality itself still lacked features associated with Western jurisprudence.[clarification needed]
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, thus near total collectivization and nationalization of the means of production;
subordination of the judiciary to the Communist Party
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.
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.[9]
^Quigley, J. (1989). "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law. 37 (4): 781–808. doi:10.2307/840224. JSTOR 840224.
^Partlett, William; Ip, Eric C. (September 14, 2015), Is Socialist Law Really Dead?, SSRN 2660098
^Дмитриевна, Максимова Ольга (2014). "Роль Д. И. Курского в формировании идей советского права и в законотворчестве". Правоведение (4 (315)): 225–236. ISSN 2658-6037.
^Elie, Marc (2013). "Khrushchev's Gulag: the Soviet Penitentiary System after Stalin's death, 1953-1964". In Kozlov, Denis; Gilburd, Eleonory (eds.). The Thaw: Soviet Society and Culture during the 1950s and 1960s. Toronto University Press. pp. 109–142. ISBN978-1442644601. HAL 00859338. Retrieved October 30, 2017.
^Glenn, H. Patrick (2010). Legal Traditions of the World: Sustainable Diversity in Law (4th ed.). New York: Oxford University Press. ISBN978-0-19-958080-4. OCLC 650838256.
^Berman, Harold J.; Spindler, James W. (1973). "Soviet Criminal Law and Procedure: The RFSR Codes". Stanford Law Review. 25 (2): 842. doi:10.2307/1227986. ISSN 0038-9765. JSTOR 1227986.
Further reading
Stuchka, P.I. (1988). Selected Writings on Soviet Law and Marxism. Robert Sharlet, Peter B. Maggs, and Piers Beirne (eds.). Armonk, N.Y.: M.E. Sharpe. ISBN978-0-87332-473-1. OCLC 17353762.
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This article needs additional citations for verification Please help improve this article by adding citations to reliable sources Unsourced material may be challenged and removed Find sources Socialist law news newspapers books scholar JSTOR June 2007 Learn how and when to remove this template message Socialist law or Soviet law denotes a general type of legal system 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 1 If so prior to the end of the Cold War socialist law would be ranked among the major legal systems of the world Bulletin at the Elections to the Supreme Soviet of the USSR 1946 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 Government 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 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 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 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 5 Contents 1 Soviet legal theory 2 Characteristic traits 3 See also 4 Notes 5 Further readingSoviet legal theory EditSoviet 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 and proletarian law in this early phase was Peteris Stucka Other proponents of proletarian law included Dmitry Kursky and Nikolai Krylenko 6 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 7 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 Socialist legality itself still lacked features associated with Western jurisprudence clarification needed Characteristic traits EditSocialist law is similar to the civil law but with a greatly increased public law sector and decreased private law sector 8 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 thus near total collectivization and nationalization of the means of production subordination of the judiciary to the Communist Party 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 A specific institution characteristic to Socialist law was the so called burlaw court or verbally court of comrades Russian tovarisheskij sud which decided on minor offences 9 See also EditGeneralLegal systems of the worldCubaCuban legal system Cuban lawSoviet UnionLaw of the Soviet Union 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 LawNotes Edit Quigley J 1989 Socialist Law and the Civil Law Tradition The American Journal of Comparative Law 37 4 781 808 doi 10 2307 840224 JSTOR 840224 Soviet law Retrieved September 10 2016 Markovits I December 2007 The Death of Socialist Law Annual Review of Law and Social Science 3 233 253 doi 10 1146 annurev lawsocsci 3 081806 112849 Soviet law Retrieved September 10 2016 Partlett William Ip Eric C September 14 2015 Is Socialist Law Really Dead SSRN 2660098 Dmitrievna Maksimova Olga 2014 Rol D I Kurskogo v formirovanii idej sovetskogo prava i v zakonotvorchestve Pravovedenie 4 315 225 236 ISSN 2658 6037 Elie Marc 2013 Khrushchev s Gulag the Soviet Penitentiary System after Stalin s death 1953 1964 In Kozlov Denis Gilburd Eleonory eds The Thaw Soviet Society and Culture during the 1950s and 1960s Toronto University Press pp 109 142 ISBN 978 1442644601 HAL 00859338 Retrieved October 30 2017 Glenn H Patrick 2010 Legal Traditions of the World Sustainable Diversity in Law 4th ed New York Oxford University Press ISBN 978 0 19 958080 4 OCLC 650838256 Berman Harold J Spindler James W 1973 Soviet Criminal Law and Procedure The RFSR Codes Stanford Law Review 25 2 842 doi 10 2307 1227986 ISSN 0038 9765 JSTOR 1227986 Further reading EditStuchka P I 1988 Selected Writings on Soviet Law and Marxism Robert Sharlet Peter B Maggs and Piers Beirne eds Armonk N Y M E Sharpe ISBN 978 0 87332 473 1 OCLC 17353762 Evenson Debra 2003 Law and Society in Contemporary Cuba 2nd ed The Hague Kluwer Law International ISBN 978 90 411 2165 3 OCLC 52976800 Partlett W amp 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 Retrieved from https en wikipedia org w index php title Socialist law amp oldid 1169738430, wikipedia, wiki, book, books, library,
