Socialist legal system is considered as the newly emerged legal system among the major legal system of the world. It is propounded by German communist Philosopher Karl Marx and firstly applied in Soviet by Russian communist leader V.I. Lenin. It has its unique characteristics in the comparison of the widely adopted two major legal system namely common and civil legal system. Economy is basic structure and law and others are super- structure is the key concept of this legal system. The summit of this legal system has been gradually declining with the fall of the USSR. Today, the application of the Soviet model socialist legal system as its original version is quite difficult to find. China and some others countries are adopting this legal system in modified version in the changing context. In this article the authors try to explore the concept of the socialist legal system, its major characteristics, doctrines, and its influence in Nepali legal system.
Key Words: Economy, exploitation, law, socialist.
Legal system is ‘the framework of rules, procedures, and institutions that a community uses to interpret and enforce their laws’. Legal system is a system of legal principles, legal rules, legal institutions, legal process, legal profession, which exists and identified with its content and structure having desirable autonomy in any society to get its objectives. The history of all hitherto existing society is the history of class struggles. The majority of influential comparative law scholars added the communist legal system as a third legal system to the common law and civil law legal systems during the Cold War. Socialist legal system was defined by comparative scholars as being based primarily on Marxist, command-style economics. In particular, most comparativists focused on the legal consequences of a system grounded in Marxist materialist ideology mandating public ownership over the means of production. The socialist legal system is the of product Marxist thought or ideology. Socialist legal system advocates classless society as a solution for the problems of economic evils and discrimination. He foresees that the contest between organized labor and centralized capital ends naturally in the giving of complete power of production to the state, so that classes are abolished and a classless society for the common good comes in Law in a socialist society should be used as an instrument to advance socialism.
Socialist legal system is prevalent in most Communist states. Its foundations are civil law and Marxist-Leninist theory. Among other foundational ideas of the socialist philosophy, it is based on the idea that, all laws are tools of economic and social policy. Marxist theory is founded on the doctrine of ‘dialectical/historical materialism’ which argues that a society goes through various stages or phases in the course of its evolution and development. It might begin with no legal system, then become a slave owning one, followed by a stage of medieval feudalism, before moving on to capitalism, then socialism, before law finally ‘withers away’ in a classless society with no necessity for any legal system, because all men will treat each other as equals. The family of socialist laws originated in the Union of Soviet Republics where these ideas prevailed and a new law has developed since the 1917 revolution. In Marxist theory, law and the state are seen as instruments used by the ruling classes in various stages of the development of society to oppress and exploit other social classes. The law is not an autonomous entity but is merely a reflection of the material base especially the economic relations of production of society. During the cold war period, it was incorporated into the legal systems of the Soviet Union and its former satellite states in Central and Eastern Europe. These systems were built on the notion that the state, rather than private individuals, should own most of the property within its jurisdiction.
The Communist Party is the only real governing and planning body within the socialist legal system. Once it decides a particular policy, it communicates its plans to all its constituent organs and this policy will be carried out by its legislative, executive and judicial agencies. When the cold war ended and the Soviet Union collapsed, support for the socialist legal system declined considerably. Some states, such as China, Cuba, Vietnam, and North Korea, continue to practice their own version of socialist law; however, most of these states have modified their legal systems in response to the growing popularity of market-oriented reforms and the inevitable forces of globalization. In this article the author presents the notion, theory and principles of socialist legal system along with the its practice in international scenario and Nepali legal system.
Data and Methods
The method of this paper is doctrinal. In this article the author has used qualitative, secondary information from various literature. The collected information and literatures are descriptively examined and analytically explained. The required information is obtained from both print and online secondary sources such as authentic books, journals, archives, previous studies etc.
Results and Discussions
Conceptual Framework of Socialist Jurisprudence
Socialist legal system is considered as one of the branch of major legal system of the world which has its root on the philosophy, ideology and principles of Karl Marx, Lenin and Friedrich Engels. It was originated from the former Soviet Union (USSR) therefore it was named as Soviet legal system. ‘Socialist law denotes a general type of legal system which has been used in communist and formerly communist states. With significant alterations and modification from Marxist-Leninist doctrine, it is based on the civil law system’. Generally, it is not an indigenous legal system of communist states but a reception of the civil legal system with major alternation and modification by applying Marxist-Leninist philosophy. Before disintegration of former USSR, socialist legal system was one of the major legal systems. But after 1990s, it is no longer a leading legal system. But one cannot get rid of socialist legacy in legal system so easily, since some countries still adopt a socialist legal system e.g. Cuba, North Korea, China, Vietnam, east European countries.
While civil law system has traditionally put great pains in defining the notion of private property, how it may be acquired, transferred or lost socialist law system provide for most property to be owned by the state or by agricultural cooperatives and having special courts and law for state enterprise. The originality of socialist law in particularly evident because of the revolutionary nature attributed to them; in opposition to the somewhat static character of non-socialist laws such Romano-Germanic laws or common laws. ‘The ambition of socialists is to overturn society and create the conditions of a new social order in which the very concepts of state and law will disappear. The sole source of socialist rule of law lies with the legislators who express popular will, narrowly guided by the communist party or socialist party. Marxist consider law as a scientific truth which is strictly subordinate to the task of creating a new economic structure. They collectives the production and this lead to minimize the relationships between citizens and all private laws became public law.’
‘Legal system reflected the aspirations and needs of the dominant class’. ‘The legal system with its institutions, doctrines, and regulations, develops in response to the demands that the ruling class’. Legal system reflect interest of the of the ruling class. Jurisprudential theories, legal rules, institutions, legal apparatus and the whole structure of legal system arise as per the need of the ruling class. Governing the state according to law and building a classless and exploitation free state are being interpreted by the states who are following the socialist legal system.
Characteristics of Socialist Legal System: There are some basic characteristics of socialist legal system. Those are:
1.Marxist-Leninist theory, is ‘based on infrastructure’ and ‘Super-structure’, economy is basic infrastructure and law is super-structure. It which serves as an explanation for policy, politics, law, and society, is the foundation of the socialist legal system. The way of to reach in the communism is law.
2. The ends of the socialist legal system is not individual justice but distributive justice or socio-economic justice.
3. The principle of socialist legality is all states mechanism cannot go beyond the state policy of communism.
4. Law based on collective ownership, no real right on property.
5. No separation of power, all power vested on the party which they claimed as proletariat government. There is no rule of law.
6. Supremacy of enacted laws, codes or textual law.
7. The is no judicial review. Interpretation of legislation has to be in accordance with the principles of socialist legality.
8. Judges are considered as the “transmission belts” of Party policy.
9. There is planned economy, state-controlled economy.
10. It believes that legal system can only be established by revolution.
11. Planned economy without individual right over property.
12. There is no distinction between public and private law. All law is public. There is no room for private law.
13. Custom plays a very minor role in the interpretation or application of legislation.
Doctrines of the Socialist Legal System
- Doctrine of the Economic Determination of Law: Law is a superstructure on an economic system, economic facts are independent of and antecedent to law. The notion that the law is the reflex of an economic substrate is not an ideology, for it accords with reality. The ultimate reality is the economic background.
- Doctrine of the Class Character of Law: Law is an instrument used by the economic rulers to keep the masses in the subjection. Even after the establishment of the proletariat dictatorship law will continue to be used as the instrument by which the working class majority can crush and eliminate the capitalist minority. Law is an instrument of domination.
- Doctrine of the Identity of Law and State: The state came into existence as soon as there was unequal distribution of commodities and class distinctions developed. The capitalist minority used the law and state to oppress and exploit the working majority. Even in the proletariat dictatorship these will remain as instruments of compulsion and domination. The state reflects an essentially unequal condition of affairs.
- Doctrine of the Withering Away of Law and State: When the communist or classless society arrives, there will no longer be any domination or inequality. Therefore, the instruments of domination, i.e. law and the state, in the words of Engels, will wither away and be replaced by an administration of things.
Two principles of Leninism
Lenin has different ideas about the state and law. He considered the law and state as the means to establish proletariat dictatorship. In the proletariat dictatorship law should be a means to an end, namely, to prepare two interrelated principles in this Leninist system were most important which are as follow:
- Vanguardism: First principle of Leninism was the concept of vanguardism. Lenin made it clear that law and legal institutions should play an instrumental role in building a strong, dictatorial state that could help the Communist Party serve as leading, vanguard role in building a new society. Lenin explained that “law is a political tool” and therefore should be mobilized as a way of building a new society. A key implication of this was that a socialist legal system should emphasize “public order” rather than “individual rights” and that only “universal legal discipline could hold the state together.” Thus, in contrast to the civil law basis in traditional Roman and Canon law principles, this Leninist conception saw law as a tool of contemporary politics.
- Democratic Centralism: Lenin described democratic centralism as “freedom of discussion” but “unity of action.” In this system, courts and judges were the “transmission belts” of Party policy. In this centralist approach, law and courts were tools for ensuring unity and promote control over a large space. In this regard they were much like other instrumentalities of an administrative state and therefore a tool for national consolidation and centralization. This Leninist “democratic centralism” therefore fundamentally rejected the system of checks and balances in the western legal systems.
Analysis on Socialist Legal System in Nepalese Context
Socialist law has its direct or indirect influence in all over the world. Nepal is not isolated from this fact. Principally, Nepali legal system is mixed legal system and it is the follower of common law as well as highly influenced by common law. But in practice, Nepal also applying some aspects of socialist law. The function of socialist law is to create classless society. The objective of law in socialism is to create equality and make equitable distributions of gains. It was started from the Constitution of 2019 B.S. in its directive principle it provisioned about the establishment of exploitation free society. Nepal has been adopting the periodic economic planning, the concept of welfare state, social inclusion, mixed economy, establishment of National Planning Commission which are the part and particles of socialist law family. Some provisions regarding the influence of socialist law can be observed as below:
Provisions under the constitution of Nepal 2072
Preamble-Being committed to socialism based on democratic norms and values including the people’s competitive multiparty democratic system of governance…. Article 4 of the Constitution states that, Nepal is an independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented, federal democratic republican state. The economic objective of the State shall be to achieve a sustainable economic development, while achieving rapid economic growth, by way of maximum mobilization of the available means and resources through participation and development of public, private and cooperatives, and to develop a socialism-oriented independent and prosperous economy while making the national economy independent, self-reliant and progressive in order to build an exploitation free society by abolishing economic inequality through equitable distribution of the gains.
Different Fundamental Rights: Right to Equality (Article-18), Right against untouchability and discrimination (A rt.24), Right against exploitation (Art. 29), Right to labour (Art-34), Rights of women (Art.38), Rights of Dalit (Art.40), Rights of senior citizens (Art.41), Right to social justice (Art.42), Right to social security (Article 43) etc.
Different Constitutional Bodies: The Commission for the Investigation of Abuse of Authority, Auditor General, National Natural Resources and Fiscal Commission, National Women Commission, National Dalit Commission, National Inclusion Commission, Indigenous Nationalities Commission, Madhesi Commission, Tharu Commission, Muslim Commission etc.
Some Relevant Acts: Land Reform Act, 2021B.S. imposed celling on land holding and protected the right of the tenants. The Companies Act 2063 protected the rights of the minority shareholders, Labour Act, 2074 and Trade Union Act, 2049 protects the interest of labor/employee. In the same manner various state owned or public corporations were established under Corporation Act 2021. Cooperative Act, 2048 aims for the formation of operation of various types of cooperatives associations and societies based on the mutual support and cooperativeness for the economic and social development of the general public consumers by the farmers, craft persons, economically low-class people, labors, landless and unemployed people or social workers of the country. Some Programs of Nepal Government such as Reservations (quotas) for government jobs and political institutions, Old age allowance (pension), Allowance for single woman, Protection programs for marginalized people, Minority group etc. Different public service laws including Police Act, 2012, Army Act, 2063, Armed Police Force Act, 2058 are based on inclusive principle. Positive discrimination in public services has created inclusion in public sphere which is the result of influence of socialist legal system.
Socialist Legal system has its own unique characteristics and its own peculiar short history of development. It is based on the political, philosophical doctrines of Marxism and Leninism having the main distinctive feature of infrastructure of economy and superstructure of law and others. After the successful completion of Bolshevik Revolution, great leader Lenin applied the socialist law in Soviet Union. The great ideological experiment, begun with Lenin’s Bolshevik Revolution lasted just over 74 years. The USSR formally collapsed on December, 1991. After the Second World War, Russia was able to spread the wave of soviet type of legal system in the most countries of Eastern Europe and Asia. After the down fall of Russian Empire, many more socialist countries have turned to their original legal systems. Some countries like China, Cuba, and North Korea are adopting the socialist legal system in their own modified versions.
By nature, Socialist legal system is more scientific, evidence based and people oriented. It has the ultimate aim to build the classless and lawless society. But the application was not succeeded as the spirit of the concept of the system. Despite the less followers of this system, it has so many positive aspects. The concept of welfare state, economic planning, social security, social inclusion are the product of socialist legal system which are being adopted by almost all countries of the world and it is also received in apex law and other specific legislations as well as practiced in Nepal. Thus, the relevancy of the socialist legal system is still prevailing.
Author: Assistant Professor of Law and Coordinator of B.A.LL.B. Programme at Gandaki University, Pokhara (Nepal).