Socialist law

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 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.

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 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. 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 sector and decreased private law 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, 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.

Socialist rule of law

After China's Reform and Opening Up, the Chinese Communist Party (CCP) emphasized the rule of law as a basic strategy and method for state management of society. General Secretary of the Chinese Communist Party Jiang Zemin 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, General Secretary of the Chinese Communist Party Xi Jinping 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.

Notes

References

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