After the collapse of the Soviet Union the legal systems which formed the socialist legal family (legal families) have nearly disappeared. Socialist law was considered to have a special character owing to its foundation in the world view of Marxism-Leninism. This becomes obvious in the much-observed definition of law by Vyshinsky: ‘Law is the totality of rules of conduct which express the will of the ruling class and are laid down in a legislative manner, along with the rules and practices of communal life which are sanctioned by the power of the state. The application of these rules is backed by the coercive power of the state in order to secure, reinforce, and develop the social relationships and conditions which are agreeable to the interests of the ruling class.’
From this viewpoint law serves as an instrument for the planning and guidance of the economical and social pattern of a country and for the active advancement and control of the progress towards the classless society naturally preordained according to the doctrine of dialectical and historical materialism. Here the most obvious and important difference between the law of the ‘western’ legal families becomes visible: the law is, in principle, politically and socially functional. As a consequence, Marxism rejects the view that law may aim at the realization of other independent values. In particular, the view is rejected that the law may set limits to governmental action by guaranteeing to the individual citizen certain spheres of freedom immune from control of the state, even where such control might otherwise seem justified by the needs and demands of politics and society. For a state that is convinced of possessing a scientifically grounded salvation doctrine, it is only natural to put emphasis on those matters that the state itself recognizes to be right and to disregard the interest in securing individual freedom, which is the focus of procedural legal regimes in western countries.
However, the opening of the Wall in Berlin revealed a (socialist) legal reality in eastern Germany that operated beyond the seemingly all infiltrating ‘system’; courts and judges admittedly followed the political prerequisites but nevertheless acted with common sense within their given limitations and thereby resolved disputes. Law, however, only played a minor role in the resolution of disputes. On the one hand, it left no freedom for the individuals and did not protect them from the state’s persistent aim of influencing people’s inner attitudes and educating them. On the other hand, law was not always rigorously implemented.
2. Socialist civil law
In 1922, in the so-called period of the ‘New Economic Policy’, the Russian Socialist Federated Soviet Republic produced a civil code, which was arranged in the pandectist tradition (Pandektensystem), first having a general part that deals, among other things, with ‘subjects of law’, ‘objects of law’ and ‘juridical acts’. In the section on property the code regulated the new institutions of ‘state ownership’, ‘collective ownership’ and ‘private ownership’, while the law of obligations was very close to German law. Characteristic of the spirit of the code were its general clauses such as Art 1,whereby civil rights receive no protection if ‘they are exercised in contradiction to their social and economic purpose’. After Stalin strengthened his position as a dictator in the 1930s, discussions focused on the foundation of economic legislation because a socialist civil code was deemed something unthinkable. Only after the death of Stalin in 1953 was there any change in the pitiful conditions in which Soviet legal scholarship had found itself since 1930. The (new) Civil Code of the Russian Socialist Federated Soviet Republic was finally adopted in 1964. This code, too, in terms of its formal structure generally adhered to the ideas of classical civil law. Accordingly, it contained an opening section with ‘general provisions’, in which a textbook definition of juridical acts was to be found. The civil code regulated the economic relations between state-owned and collectively owned organizations as well as relations between them and individual citizens. The code therefore defeated the then hotly debated proposal that the legal relationship of socialist undertakings should be covered in a separate economic code. On the other hand, in accordance with a tradition dating from the revolutionary era, family law and labour law remained outside the civil code. The reform of marriage and family law are typically among the first comprehensive enactments in countries which have turned socialist: church wedding is replaced by marriage before state authorities; other important features include equal treatment of husband and wife, divorce on the irretrievable breakdown of marriage and, at least in general, equal status for legitimate and illegitimate children.
With the exception of Outer Mongolia, which at the beginning of the 1920s became independent with the help of the Soviet Union and which subsequently modelled its law on the Soviet pattern, the worldwide advance of socialist law and the growth of a ‘socialist legal family’ only became possible when the Red Army moved deep into central Europe towards the end of World War II. In the People’s Republic of China the development of socialist law began after the soldiers of Mao Tse-Tung succeeded in ousting first the Japanese and then the National Chinese troops from the Chinese mainland. There, too, the reform of family law in 1950 was one of the first comprehensive codifications. However, energetic efforts at codification only started after the end of the Cultural Revolution and with the proclamation of the policy of ‘reform and opening’ after 1978. However, due to disagreements with the Soviet Union since the beginning of the 1960s, these later efforts did not primarily follow the Soviet pattern. The law in the People’s Republic of China was, rather, influenced by European civil law (Chinese law, influence of European private law), an influence, which has even intensified since the end of the 1990s. The drafting of a comprehensive civil code is currently pending.
In most of the former socialist countries in mid-eastern Europe, however, a comprehensive civil code was promulgated after World War II: Hungary in 1959, Poland and Czechoslovakia in 1964, East Germany in 1975 (a code on family law had already been promulgated in 1965) and Albania in 1981; in Yugoslavia a ‘code on obligations’ was implemented in 1978. Some of the socialist countries, though, adopted a more independent solution and diverged significantly from the Soviet model of state administration of the economy. Examples are Yugoslavia and Hungary, where individual state undertakings were given considerable scope for independent initiative. In legislation as well, many countries went their own way: Czechoslovakia and East Germany deviated from the dominant doctrine in the Soviet Union and took economic law out of the civil code: the civil code was not to be applicable to legal relations between state-owned undertakings. In 1976 East Germany promulgated a law on international trade which applied to contracts concluded between state-owned enterprises and foreigners if the law of East Germany was applicable to the contract in question.
Under the influence of Marxist ideology, socialist civil law developed its own particular terminology in the field of property law, which deviates considerably from other (western) legal systems. While ownership of property in the liberal view of the latter legal systems entails an extensive sovereignty that is in principle unlimited, socialist state ownership confers only those powers that the grantee needs in order to achieve the goals laid down in advance by the state in its plans for the economy.
Contracts, too, have a particular function in socialist legal systems. In particular, they assist the preparation, concretization and execution of the state’s economic plan. It is the state’s economic plan rather than the contract that is the primary means of ordering economic transaction. Admittedly, the contract has an established place in socialist laws that quite deliberately employ it as a mechanism for effecting a compromise for the interests of the individual, relatively independent, economic enterprises. But though the socialist state uses the contract as a means for advancing individual and group interests in this way, it does so only in the hope that this will ultimately advance the general interest, as conclusively expressed in the plans drawn up by the government. Thus the contract always stands in the service of the plan, individual interest always in the service of the common interest.
3. The administration of law
The administration of law in socialist countries is characterized first of all by judges who are bound to serve the political objectives set up by the Communist party and who remain subject to constant party control, supervision and accountability. It is self-evident that under these conditions justice cannot have the status of an independent ‘third power’. Indeed, this is reflected by the fact that judges in the Soviet Union were elected for periods of five years but could be recalled even before the expiry of such a period by their electors if they could be charged with a serious dereliction of their duties, a matter which was in practice decided by the party alone.
The second important characteristic of legal practice in socialist countries is that law has an educational function. This is due to the fact that socialist law is quite determined to influence people’s inner attitudes and to educate them in the ‘socialist morality’, which is needed for the achievement of the final stage foreseen by Marxist-Leninist ideology, when state and law will have died away and when individual egoism will be an issue of the past with property being distributed in accordance with the principle ‘to each according to his needs’. The educational function of law becomes especially apparent in the large number of procedures and institutions designed to give judicial activity greater publicity thus increasing its educational effect by involving groups or persons other than those directly implicated, eg representatives of social organizations or collectives with which one party has worked. The court can even transfer an entire hearing to the factory or block of flats affected by the case in question or to which the parties to the trial belong.
Another significant feature of the administration of law in socialist countries is the effort made to transfer the legal functions of the state to self-administering groups. With the intent of relieving the state legal organs of the burden of having to deal with the trivial disputes of daily life and of having an educative effect on the populace by involving them more directly in the solution of conflicts, ‘comrades’ courts’, ‘social courts’, ‘conflict commissions’ or ‘arbitral commissions’ were established in enterprises, public agencies and in the residential areas of cities and localities.
Last but not least, it is noteworthy that the institution of res iudicata in socialist legal systems does not play the important role it plays in western legal systems. This is due to the fact that socialist countries claim general political control of all state activities. The concept of res iudicata, having the purpose of promoting legal certainty and stability by allowing parties to treat the situation established by the judgment as final and conclusive, is unacceptable in a socialist country because it would set a ‘formal’ limitation of its power. From this point of view, it must be possible to break through the binding force of a judicial decision if on higher grounds, that is, in the interest of the uniform achievement of political goals, this seems to be necessary. Such a court review procedure may typically be initiated by the public prosecutor or a higher court. The parties to the litigation have no right to set the review procedure in motion.
4. Socialist law today
In view of the collapse of the Soviet Union and the reforms in the former socialist countries in eastern Europe, the question arises whether socialist law still exists. Besides the Democratic People’s Republic of Korea (whose legal system has thus far been the subject of little western language research), the Socialist Republic of Vietnam, and the Republic of Cuba (where the new civil code promulgated just ahead of the collapse of the Soviet Union in 1987 has roots in the Ibero-American legal family (legal families) as much as in socialist patterns) the People’s Republic of China with its so-called ‘socialist market economy’ obviously comes to mind.
In fact, the law of the People’s Republic of China still displays clear traces and patterns of the socialist legal family. In substantive civil law, for example, the Law of Property Rights promulgated in 2007 differentiates between state-owned, collective and private property in the tradition of the socialist legal family. Ownership of land remains with the state or the collective. However, since the 1980s land was commercialized through the establishment of land use rights (quite similar to the leasehold in England or the Erbbaurecht in Germany). It was not until the implementation of the new Chinese Contract Law in 1999 that there was a division between civil law and economic law as in the former socialist countries in eastern Europe. The ‘General Principles of Civil Law’ of 1986, generally following the pattern of the laws of the Soviet Union, East Germany, Hungary and Czechoslovakia, were applicable to legal relations involving at least one (Chinese) natural person, whereas special laws existed for legal relations between legal persons: the Economic Contract Law and the Law for Economic Contracts, which was applicable to legal relations with foreign natural and legal persons. With the enactment of the Contract Law in 1999 this division has vanished. The new Chinese contract law now clearly follows the pattern of international uniform law (especially the CISG) and the internationally recognized principles of contract law such as the UNIDROIT Principles of International Commercial Contracts (PICC) and the Principles of European Contract Law (PECL) (Chinese law, influence of European private law). At the same time, certain left-overs of the planned economy can be found in Chinese contract law. In Chinese company law (adopted in 1993 and revised in 2005) a corresponding legal dualism between the rules applicable to purely Chinese companies (ie without the involvement of foreign investors) and special rules applying to companies with foreign investment (termed ‘foreign invested enterprises’, ie joint ventures and wholly foreign-owned enterprises) is slowly fading away. Another feature of Chinese law that has its roots in socialist law but is also due to the particularities of Chinese characters, is the vagueness in the formulation of law. However, in practice such vagueness leads to action by state authorities that is typical of the socialist legal family, eg administration of unjusticiable terms such as the requirement that a joint venture enterprise ‘must be able to promote the development of China’s economy and the improvement of science and technology for the benefit of socialist modernization’.
Even more than in Chinese substantive civil law, characteristic elements of socialist legal systems are visible in Chinese procedural law. First of all, judges are not independent when it comes to the question of the separation of powers, ie judges are primarily and closely bound to the socialist state. By rendering judicial interpretations of law binding on the lower courts, the Supreme People’s Court of China (like the Supreme Court of the USSR) to a certain degree assumes the function of a legislator. Furthermore, the public prosecutor may initiate the re-examination of ‘final’ judgments.
In addition, the educational function of law and its administration are obvious at several points. Thus, eg, the General Principles of Civil Law envisage as a consequence for breach of contract and tortious acts the ‘signing of a statement of repentance’ or an apology. Additionally, judges may order hearings to be conducted outside the court ‘if necessary’. Furthermore, due to the general aim of avoiding (open) disputes, a trait which is deeply rooted in Chinese culture, alternative dispute resolution (mediation, conciliation and arbitration) certainly plays an important role. During conciliatory proceedings in court, the judge may order the participation of persons other than those directly implicated, ‘who have a particular relation to the parties and are beneficial for the success of the reconciliation’.
It is therefore safe to say that elements characteristic of socialist legal systems live on in the law of the People’s Republic of China. Whether this finding justifies the assumption of the continued existence of the ‘socialist legal family’ is debatable since the influence of the continental civil law systems as well as of the common law are at least similarly obvious today.
Andrei Januarjewitsch Wyschinski, Die Hauptaufgaben der Wissenschaft vom sozialistischen Sowjetrecht, Sowjetische Beiträge zur Staats- und Rechtstheorie (1953) 50; Ernst-Wolfgang Böckenförde, Die Rechtsauffassung im kommunistischen Staat (1967); Ferdinand O Kopp, ‘Das Verfassungsverständnis in den sozialistischen Staaten’ in Hans Hablitzel and Michael Wollenschläger (eds), Recht und Staat (1972) 573; Norbert Reich, Sozialismus und Zivilrecht (1972); Norbert Reich and Hans-Christian Reichel, Einführung in das sozialistische Recht (1975); Imre Szabó, ‘The Socialist Concept of Law’ in IECL II (1975) ch 1, paras 86 ff; Georg Brunner, Einführung in das Recht der DDR (1979); Klaus Westen and Joachim Schleider, Zivilrecht im Systemvergleich (1984); Dietrich Nelle, ‘Das neue kubanische Zivilgesetzbuch’ (1990) 34 Recht in Ost und West 262; Albert HY Chen, ‘Socialist Law, Civil Law, Common Law, and the Classification of Contemporary Chinese Law’ in Jan Michiel Otto, Maurice V Polak, Jianfu Jian and Yuwen Li (eds), Law-Making in the People’s Republic of China (2000) 55; Inga Markovits, Gerechtigkeit in Lüritz—Eine ostdeutsche Rechtsgeschichte (2006).