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Socialist law orSoviet law are terms used in comparative legal studies for the general type oflegal system which has been (and continues to be) used incommunist and formerly communist states where thesupreme state organ of power (SSOP) stands above thecommunist state constitution, and thesupreme judicial organ and thesupreme procuratorial organ work under the SSOP's leadership. It is based on thecivil law system, with major modifications and additions fromMarxist–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 theCold War,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 ofprivate property, how it may be acquired, transferred, or lost, socialist law systems provide for most property to be owned by thestate or byagricultural 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 thecommand economy approach of the communist states meant that most types of property could not be owned, theSoviet 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 theFrench orGerman 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 ofcommon law 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).[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 NYUJournal 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 reflectedMarxist–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 andproletarian law in this early phase wasPēteris Stučka. Other proponents of proletarian law includedDmitry Kursky andNikolai Krylenko.[6]
Alongside this trend was one more critical of the concept of "proletarian justice", represented byEvgeny 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 underJoseph Stalin with the ascendancy ofAndrey Vyshinsky, when the administration of justice was carried out mainly by the security police inspecial tribunals.[citation needed]
During thede-Stalinization of theNikita 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 todecriminalize 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, theMikhail Gorbachev era was stressing anew the importance ofindividual rights in relation to the state and criticizing those who violatedprocedural 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]
Socialist law is similar to thecivil law but with a greatly increasedpublic law sector and decreasedprivate law sector.[8]
A specific institution characteristic to Socialist law was the so-calledburlaw court (or, verbally, "court of comrades", Russian товарищеский суд) which decided on minor offences.[9]
After China'sReform and Opening Up, theChinese Communist Party (CCP) emphasized the rule of law as a basic strategy and method for state management of society.[10]: 110 General Secretary of the Chinese Communist PartyJiang Zemin first called for establishing a socialist rule of law at theFifteenth Party Congress in 1997.[10]: 110 In 2014, the CCP formally adopted a policy of constructing a "socialist rule of law with Chinese characteristics."[11]
In his writings on socialist rule of law,General Secretary of the Chinese Communist PartyXi 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).[12]: 110–111 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.[12]: 115
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