CRITICAL ANALYSIS OF THE SOCIALIST LEGAL SYSTEM

INTRODUCTION Socialist law is the official name of the legal system used in 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. If so, prior to the end of the Cold War, Socialist Law would be ranked among the major legal systems of the world. Many contemporary observers no longer consider it to be such, due to similarities with the civil law system and the fact that it is no longer in widespread use following the dismantling of most communist states. 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. Many scholars argue that socialist law was not a separate legal classification. Although the command economy approach of the communist states meant that 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). According to Karl Marx and other socialist thinkers, socialism and law are incompatible. It has been argued that the aspects of socialist law derived from Stalinism are in fact found elsewhere in the world in other jurisdictions and are thus not truly socialist.

THE ORIGIN OF SOCIALIST LAW. Soviet law, also called socialist law, law developed in Russia after the communist seizure of power in 1917 and imposed throughout the Soviet Union in the 1920s. After World War II, the
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CRITICAL ANALYSIS OF THE SOCIALIST LEGAL SYSTEM

Soviet legal model also was imposed on Soviet-dominated regimes in eastern and central Europe. Later, ruling communist parties in China, Cuba, North Korea, and Vietnam adopted variations of Soviet law. Soviet law, which changed radically during its more than 70 years of development in the Soviet Union, revived certain features of earlier tsarist law, shared key elements with the law of other dictatorships, and introduced public ownership of the means of production and subordination of the legal system to the Soviet Communist Party.

HISTORY OF SOCIALIST LAW Many basic features of Soviet law came into effect very soon after the Russian Revolution of 1917. The regime immediately placed itself above the law and gave the head of the Communist Party powers similar to those enjoyed for centuries by the tsars. The new government replaced elected officials with its own leaders; it decreed that suspected enemies of the revolution should be eliminated without trials; it expropriated land, banks, insurance companies, and large factories; and it promulgated its ideology and suppressed opposing speech. In important ways, however, the legal system of the immediate postrevolutionary period differed from Soviet law as it developed later. The ideology imposed by the party was hostile to law, proclaiming, on the authority of Karl Marx, that the state and all its institutions (including legal ones) would wither away after the communist revolution. Accordingly, the new regime destroyed the prerevolutionary legal structure of the market economy, including property, contract, and business law. In 1921 Soviet communist leader Vladimir Lenin introduced the New Economic Policy, which restored the legal basis necessary for the economy to function. He ordered that a civil code based upon western European civil law be drafted and enacted. The code allowed the formation of business entities and protected basic contract and property rights. Other legislation established a court system to enforce these rights and to try criminal cases.

SOVIET LEGAL SYSTEM 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
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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. 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. 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. 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 Socialist law is similar to common law or civil law but with a greatly increased public law sector and decreased private law sector. 1) 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." 2) Diversity of political views directly discouraged.

CRITICAL ANALYSIS OF THE SOCIALIST LEGAL SYSTEM

3) The ruling Communist party was eventually subject to prosecution through party committees in first place. 4) 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. 5) Low respect for privacy, extensive control of the party over private life 6) 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. 7) 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. 8) The judicial process lacks adversary character; public prosecution is considered as "provider of justice." 9) A specific institution characteristic to Socialist law was the so-called burlaw court which decided on minor offences.

CHINESE SOCIALIST LAW 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. 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
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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. 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. 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. The rule of law both as a legal concept and as a practice in China has become the subject of great attention. There is increasing international pressure on China to build a legal system that is premised on the "rule of law." Domestically, the three-decades of economic reform generated a growing demand for the production of a legal system that will secure justice and restore the public confidence in the judiciary. China's commitment to the rule of law is implicated by its effort to develop a socialist legal system that maintains Chinese characteristics. The specifics of what is a socialist legal system and what constitutes Chinese characteristics in terms of the rule of law are subject to further debate. The Confucian heritage rooted legal tradition and the single party ruling system have significantly shaped the legal landscape of the country, making the route to the rule of law in China a long and thorny one. Despite China's socialist laurel, the civil law influence apparent since the late 19th century remains highly visible in the modem Chinese legal system. China is determined to develop a legal system under the banner of the rule of law that is consistent with its unique philosophy of governance. Whatever difference there may exist between China's rule of law discourse and the rest of the world's, the development of a rule of
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law in China that incorporates Chinese characteristics signals China's determination to move the country toward a sound legal system meaningful for China and for the international community as well. Among many challenges, however, the biggest one is perhaps how to reconcile the role of the ruling communist party and the "rule of law."

SCOPE OF THE STUDY In this project we will first inspect the origin and the history of the Socialist Legal system. We have limited the scope of the study of critical analysis of Socialist Legal system in the states of former Soviet Russia and China only and shall not study the legal systems of other socialist states such as North Korea and Cuba. However, we shall do a thorough, intensive as well as a critical analysis of the legal system of Soviet Russia and China.

LITERATURE REVIEW ARTICLES: 1. Perter B. Maggs, Soviet Law, Britannica encyclopedia, September 6, 2011. This article deals with the whole spectrum of Socialist Law starting from its hidtory and origin to its establishment in many nations of the world. Extract: Soviet law, also called socialist law, law developed in Russia after the communist seizure of power in 1917 and imposed throughout the Soviet Union in the 1920s. After World War II, the Soviet legal model also was imposed on Soviet-dominated regimes in eastern and central Europe. Later, ruling communist parties in China, Cuba, North Korea, and Vietnam adopted variations of Soviet law. Soviet law, which changed radically during its more than 70 years of development in the Soviet Union, revived certain features of earlier tsarist law, shared key elements with the law of other dictatorships, and introduced public ownership of the means of production and subordination of the legal system to the Soviet Communist Party.

OBJECTIVES 1) To study the origin of the Socialist Legal System. 2) To focus and study the establishment and development of Socialist Law in Soviet Russia and China and to draft a comparison of the two systems. 3) To evaluate the history and a critical analysis of the Socialist Legal System.
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CRITICAL ANALYSIS OF THE SOCIALIST LEGAL SYSTEM

RESEARCH QUESTIONS 1) What is the origin of the Socialist Legal system? 2) How did the Socialist Legal system developed in the states of Soviet Russia and China? 3) What were the effects on the Russian legal system after the fall of the Soviet Union? 4) How far was the system effective with respect to the ordinary business of the courts and in imparting justice? 5) Is the Socialist Legal system dead?

HYPOTHESIS The concept of Socialist Law was a brainchild of Karl Marx and the establishment of Soviet Union played a vital role in its development and contributed a lot to make it one of the major legal systems of the world.

METHODOLOGY Approach to research: In this project, we have adopted doctrinal type of research. Doctrinal research is essentially a library-based study, which means that the materials needed by a researcher may be available in libraries, archives and other data-bases. Various types of books were used to get the adequate data essential for this project. Type of research This is clearly an exploratory as well as explanatory type of research. Sources of data collection Data has been collected from secondary sources like: books, web sources etc. no primary source like survey data or field data was collected.

CRITICAL ANALYSIS OF THE SOCIALIST LEGAL SYSTEM

TENTATIVE CHAPTERISATION 1) 2) 3) 4) INTRODUCTION. THE ORIGIN OF SOCIALIST LAW. THE HISTORY OF SOCIALIST LAW. SOVIET LEGAL SYSTEM.
i. ii. iii. THE ESTABLISHMENT. THE DEVELOPMNT AND EFFECTIVENESS OF SOCIALIST LAW. EFFECT ON RUSSIAN LEGAL SYSTEM AFTER THE FALL OF THE SOVIET UNION.

5) CHARACTERISTIC TRAITS. 6) CHINESE SOCIALIST LAW.

i. ii. DEVELOPMENT OF CHINESE SOCIALIST LAW. EFFECTIVENESS IN IMPARTING JUSTICE AND IN THE ORDINARY BUSINESS OF THE COURTS.

7) CRITICAL ANALYSIS OF THE LEGAL SYSTEM OF SOVIET RUSSIA AND CHINA. 8) IS THE SOCIALIST LEGAL SYSTEM DEAD? 9) CONCLUSION.

BIBLIOGRAPHY 1. Albert H.Y. Chen, An Introduction to the Legal System of the Peoples Republic of China 1-5, 3d ed., 2004. 2. Rhett Ludwikowski, Judicial Review in the Socialist Legal System: Current Developments, Vol. 37, No. 1, Jan 1988. 3. http://en.wikipedia.org/wiki/Socialist_law, visited on 26/2/2013. 4. http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Socialist_law.html, visited on 26/2/2013. 5. http://www.china.org.cn/government/whitepaper/node_7137666.htm, visited on 28/2/2013. 6. http://www.jstor.org/discover/10.2307/1122376?uid=3738256&uid=2&uid=4&sid=2110 1889538727, visited on 28/2/2013. 7. http://www.britannica.com/EBchecked/topic/557116/Soviet-law, visited on 1/3/2013.
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