Topic: Historical Development of Communism under Socialist

Law

Abstract:
Socialist Legal System draws its roots from civil law legal system
is an amalgamation of Civil Law Legal system and Marxist-
Leninist ideology. According to some scholars, the soviet legal
model is the socialist version of civil law. The prime notion of the
socialist legal system is state ownership rather than private
ownership thus ensuring an economic collectivization and political
omnipotence of communist party.1 The historical concepts of
Socialist law have been rigidly pro-communist party but with the
passage of time and modern transformations, states practicing
socialist law have undergone immense changes and modification.
There are many different versions of socialist law that are in
practice in different states of the world. The historical
developments in socialist legal system have resulted in diversion of
states from classic communism to modern socialist law which is
developed and evolved throughout history.

Key Words: Historical, Socialist Legal System (SLS), Historical

evolution, Communism, Marxism.

Introduction
Socialist or Soviet Legal System is the type of legal system which
is in practice in communist states like China, Vietnam, Cuba etc.
There have been states in the world which have formerly been
Communist exercising Socialist Law but are no more in adherence
to the strict principles of communism. In fact, China, which claims
to be socialist has deviated to certain extent from the theories of
socialist law in order to cope with the globalization and modern
trade.2 So it can be said that the modern socialist states practice
their own versions of socialist legal systems.
Socialist Law originated in Russia after Russian Revolution in
1917 and by communist annexation of power, it was spread all
over the Soviet Union in the 1920s. The Soviet-dominated

1
David, Rene and Brierley, E.C, John, Major Legal Systems in the world Today,
Edition II, P. 143
2
The China Legal Development Yearbook, Vol. 5, P. 4
governments in eastern and central Europe came under the socialist
rule after World War II.
Historical Background
After Russian Revolution in 1917, the new government replaced
elected officials with its own leaders and 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.
However, the legal system of the immediate post-revolutionary
period was different from Soviet law after its developments with
time.
The ideology imposed by the party was greatly influenced by
Marxist views. It enunciated that the state and all its institutions
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 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.
The New Economic Policy was ended after Joseph Stalin became
leader of the Soviet Union and asserted total central control over
the economy. The Soviet government nationalized the remaining
private businesses and forced peasants onto party-controlled
collective farms (kolkhozy)3.
Historical Development of Communism

In the first two decades after the Communist seizure of power,

Soviet legal institutions followed the official Marxist–Leninist
theory that law (like the state) is essentially a capitalist institution
destined to wither away /die out once socialism is established. This
theory was extracted 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

3
Roy D. Laird, ‘Kolkhozy, the Russian Achilles Heel: Failed Agrarian Reform’
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. This approach was pretty much
idealistic.
From 1917–1921, the new Soviet regime made serious efforts to
eliminate the legal institutions of the prerevolutionary period and
to introduce in the new classless society as early 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 overall economy was at a halt, 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 incentives 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. Therefore Lenin sent his jurists to the
prerevolutionary Russian laws as well as to western European legal
systems, to copy their provisions and adapt them to the new Soviet
conditions.
Consequently, the codes of criminal law, criminal procedure, civil
law, civil procedure, land law, labor law, and family law were
promulgated.

With the end of the NEP in 1928, a more positive content was
given to the notion of the dying out of state and law. 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 economy4.

4
Soviet Legal Philosophy 1951, pp. 279–280
In the mid-1930s, there was once again a reaction against
excessive dynamism. Stalin, in his “, called for “stability of laws.”5
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. efforts were made for the restoration of historical
traditions, the re-emphasis of family stability, Soviet patriotism,
and need for personal material incentives and economic stability
but not in the field of constitutional law like legislative process,
choice of leaders etc.
After the death of Stalin, Soviet law underwent substantial
liberalization. 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
Economic planning under Socialist Law
In October 1917, Russia had been involved in World War I since
three years which adversely affected Russia’s agricultural and
industrial productions. Had the situation been otherwise the
Bolshevik6 administration may not have intervened overmuch in
the economy beyond attempting to control key areas such as
banking (in order to inhibit a reversion towards outright
capitalism), critical war industries, and the grain trade. Even non
Communist European states had established fairly far-reaching
state controls on their economies in order to further their own war
efforts.

5
Report on the Draft Constitution, 1936, Stalin
6
Russian Revolutionary group originally led by Lenin
As social and political conditions developed in Russia, the General
Nationalization of June 1918 was adopted which had two main
roots7:-

(a) The displacement of those independent workers committees

that had gone beyond the Bolsheviks decree of Workers Control of
November 1917 to closely supervise the operation of privately
owned industry.

(b) The establishment of state control in the hope that this would
facilitate the Bolshevisation of Russia at a time of civil war.

Later on, Lenin put forward his New Economic Policy to improve
and enhance agricultural and industrial production of Russia. The
early stages of the development of this policy contemplated how
the peasantry could be encouraged to produce more food for the
towns and, in the later stages of planning, was extended towards
encouraging economic exchange between town and country and to
encouraging industrial production.

Lenin was prepared for some adaption of away from any attempt to
immediately establish Communism as he fully accepted that Russia
had not yet gone through the "Bougeois Capitalist" phase of the
ordering of economic relations in society that was held to be
strictly necessary in Marxist theory in order to provide the right
conditions for a large and disaffected proletariat to demand
Communism. Some compromise was therefore to be expected with
the present aspirations of peasantry.

As far as the encouragement of agricultural production went the

New Economic Policy accepted that peasants should only suffer
the requisition of a graduated proportion of any surplus they
produced. It was implied that the remainder of the surplus was
eligible to be freely marketed to the benefit of the producer. The
return of a free market as countenanced by the New Economic
Policy gave rise, before long, to the emergence of a class of

7
http://www.age-of-the-sage.org/history/new_economic_policy.html
wholesalers known as the nepmen who soon controlled the
majority of retail trade in Russia. A recovery of economic activity
in both rural and urban areas and between country and town was
thus facilitated.
Lenin could however console himself, and reassure those who
hoped to work towards Communism, by pointing out that the
Bolshevik's retained control of "the commanding heights" of the
economy - the large industrial plants, banking and foreign trade.

In twentieth century, socialist law prevailed in Soviet Empire,

China and several other nations that embraced state socialism. It
was the time when the distinction of first world (capitalist
countries), second world (socialist countries) and third world
(developing countries) was made.

FUNCTIONING OF STATE UNDER SOCIALIST LAW

The three fundamental organs of the state work in harmony under
the socialist law. The classic Marxist- Leninist jurisprudence
rejects separation of powers8 but allocates states functions to the
legislature, executive and judiciary. It assumes that these segments
of the socialist state work together under the leadership of the
party.9 The fundamental premise of socialist legal system was
supremacy of legislative bodies. Socialist system did not accept the
Montesquieu theory ‘separation of powers’. They claim that
system perform better under the party leadership. Legislature is the
supreme body according to the socialist legal theory. As the
founder of this theory claimed, “the representation of people is
nullity if it does not have powers”. The legislative body is
responsible to contain the state action under the shadow of
constitution. An internal body has the constitutional control over
such action of the legislature mostly headed by president.
Prosecutor-general is observer of law appointed by supreme
legislative body. Constitution is the supreme law of the land in a
socialist state. All state bodies are under the constitution.
Traditional socialist legal theory assume that an individual who
believe that his rights are violated can file a complaint before

8
M.A Glendon, M.W Gordon and C. Osakwe, “Comparative Legal Tradition”
(1985), pp. 126-172
9
Rules of Communist Party of Soviet Union; See also USSR Constitution 1977
Art. 6
executive branch for his redress. But now such person directly go
to court for a remedy. Socialist theorist believe that socialist
administration cannot be ‘set against’ individuals. About the
system of judicial review Andrei Vyshinsky wrote;
‘’Every sort of statute is consider as having force until it occurs to
some private persons or capitalist enterprise to file a petition to
have it, or a separate paragraph of it, declared unconstitutional.
Naturally this right is broadly used by monopolist cliques of
exploiters to obtain a declaration of ‘’unconstionality’’ as to the
law running counter to their interest.’’
Socialist theorist raised the idea that adopting some models of
social control can help to promote socialist democracy. The opted
the Reconstruction of judicial control over the administrative
authorities which was abolished in socialist countries of Eastern
Europe due to WW1.

HISTORICAL EVOLUTION IN SOCIALIST LAW WITH

REFERENCE TO CHINA
Socialism is a major cause of the absence of constitutional
evolution in china. Socialism and self-styled ‘socialist’ political
doctrine have been the defining focus of Chinese political believed
during the last half of the twentieth century (Schwartz 1968; Sun
Yan 1995; Chan 2003). However, Chinese constitutional discourse
has yet to classify a unique correspondence between any of the key
socialist doctrines to develop in China and any of the particular
arrangements, doctrines or procedures that constitute China’s
constitutional system.10Our debates above offer an explanation for

10
Constitutional scholars and intellectuals in China readily associate their
constitution in general with something called Chinese ‘socialism.’ But as noted
above, simply saying that China’s constitutional system is ‘socialist’, without
linking distinctive aspects of its socialism with distinctive aspects of its
constitutionalism, is comparatively meaningless (or more precisely,
tautological): similar to one saying that Chinese food is ‘socialist’. Of course, to
reiterate, the fact that the Chinese have not yet drawn particular links between
their socialist experiences and their constitutional experiences does not
diminish at all the importance or legitimacy of either China’s socialist system or
its constitutionalist system. Nor does it diminish the legitimacy of their claims
that their constitution is in fact a ‘socialist’ constitution. It simply means
whatever ‘socialist’ aspects there may be to these experiences, they are
aspects that—unlike many other aspects of Chinese constitutional experiences
(see Dowdle 1997)—as yet remain inherently outside the realm of to
meaningful comparative understanding.
this snooping. If constitutionalism includes an opening-up of
political epistemology, and if the epistemology of ‘socialism’ as it
has evolved in China is controlled by the CPC as I suggested, then
the two dissertations would be epistemically ill-assorted. The
reason why China’s socialist discourse remains in the main so
irrelevant to China’s constitutional development is because the
‘truths’ of Chinese socialism would have very little purchase in the
epistemic situation that governs Chinese constitutionalism.
Chinese constitutionalists today readily draw parallels between
China’s political and constitutional insight and their socialist
virtue. Nevertheless, Anglo-Americans, including Anglo-American
Christian theologians, have largely rejected the idea that our
respective constitutions have anything distinctly ‘Christian’ about
them (Dreisbach 1999). This phenomenon cannot simply be due to
some improper pressure of constitutional imperialism. Our
respective constitutionalist founders were well aware that they
were engaging in a very particularist scheme, one that to them was
by-and-large distinctly Anglo-Saxon (Kammen 1986). Today, we
continue to admit our constitutional particularism when we un-
debatably see in our constitutionalism noticeably ‘capitalist’ or
manifestly ‘liberal’ elements. Nor is Anglo-American theoretical
carelessness in this regard unique to us. Even self- professed non-
Christians countries (such as those in China, or in the Middle East,
or in the former Soviet bloc) who have sought to resist universal
application of Anglo-American constitutional models by-and-large
have not founded their resistance on any clearly ‘Christian’ aspect
to Anglo- American constitutionalism. We find a particularly clear
sit-down of Anglo-American constitutionalism’s intellectual
resistance to Christian-theological doctrine in the intellectual
history of the privilege against self-incrimination, a privilege that
is prominent in both the US and English constitutional systems (1
Blackstone 1783 [1765]:*68). In fact, that privilege actually
emerged initially in church law itself. Its initial justifications were
founded in significant part in Christian theological doctrine. From
there, it transferred into English and later into American
constitutional law. It was there that it shed its religious foundations
(Langbein 1994; Helmholtz 1990).

What could have caused the constitutional law of two strongly self-
identified Christian polities to rebut the Christian roots of one of its
fundamental maxims? The answer would seem to lie in truly the
kind of epistemic inconsistency that we saw above in the context
of the conceptual disconnect that separates constitutionalism from
socialism in socialist China. Particularly during the Enlightenment,
and maybe so even today, many saw the fundamental epistemology
of Christianity as being mismatched with the demands of the post-
feudal European constitutionalism. The foundational epistemic
structure of Christianity is faith. As described by John Locke,
‘Faith [in contrast with reason] is the assent to any
proposition…upon the credit of the proposer as coming from
GOD, in some extraordinary way of communication’ (Locke
1979). As per Locke, the very kind of faith prevents persons other
than the follower from being capable to evaluate the truths inherent
in the belief. Capability to underwrite to the truths of the belief
thus is hogged by the follower. Thus, under Locke’s explanation,
faith comports with what we are calling a closed epistemology.
American constitutionalists were strongly influenced by Locke’s
views about the conflict between faith-based religion and reason-
based constitutionalism (Walzer 1983)11. John Witherspoon, a
leading Presbyterian clergyman and President of the College of
New Jersey (later to be known as Princeton), argued that another
reason why the servants of God are represented as wearisome is,
because they will not, and they are not comply with the sinful
instructions of men. In matters merely civil, good men are the most
regular citizens and the most obedient subjects. But, as they have a
Master in heaven, no earthly power can constrain them to deny his
name or desert his cause (1802:415). Elder John Leland, leader of
the Virginia Baptists, expressed Nor is it to suggest that
Christianity—or religion in general—should not have such
influence (Greenawalt 1988). Christianity’s epistemic
incompatibilities with constitutionalism have caused its influence
on Anglo-American constitutional development, like socialism’s
influence on China’s constitutional development, to remain outside
the cognition of ‘constitutionalism’ per se. All this suggests
another important point regarding our efforts to identify a
‘socialist’ legal-constitutional transformation in Vietnam. Our
inspection of the way that Christianity did and did not affect
Anglo-American legal-constitutional development 200 years ago
argues that, insofar as Vietnam’s ‘socialist’ legal or constitutional

11
For a similar argument as made by a more modern Christian theologian, see
Powell (1993).
change is concerned, we need to be careful and not confuse a
assumption that Vietnam’s constitutional or legal transformation
has not been particularly ‘socialist’ with a supposition that
Vietnam’s constitutional or legal transformation has not in fact
been strongly and surely influenced by ‘socialism’. If it were to be
found that Vietnam’s legal makeover was not clearly ‘socialist’,
that would not disparage at all socialism’s contributions or possible
contributions to that country. It would not entail that socialism in
Vietnam is a pointless. It would not mean that socialism does not
contribute anything valuable or important to Vietnam’s enduring
legal and constitutional change. It would simply mean that
socialism’s particular contributions to Vietnam’s constitutional,
political and social development remain, at least for the time being,
outer the bounds of constitutionalism’s particular Gestalt.

CONCLUSION

In nutshell we can say that western constitutionalism continues

largely to ignore the particular economic and societal injustices
that socialism seeks to address should be of significant concern to
us. To date, our experience has been that the burdens of
‘transformation’ tend to fall unreasonably—and, many argue,
unjustly—on those very populations that socialism seeks to
protect. The idea(l) of a socialist legal transformation is thus very
appealing (Stiglitz 1994), and one hopes that socialist heritage
would allow it to contribute to our understanding of how such an
ideal might be reified in humanity at large.

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