Melbourne Law School
Socialist law was supposed to have died in the early 1990s. Yet, despite the end of the Cold War, socialist law lives on—albeit in far different form than its Cold War days. The ongoing development of the socialist legal system motivates a new book co-edited by myself, Fu Hualing, Pip Nicholson, and John Gillespie. This short post considers the persistence of socialist law—and its critique of western legalism and constitutionalism—after the fall of socialist economics/end of the Cold War. It will suggest that an understanding of the history of socialist constitutional law helps us understand its continuing hold across the world. This history demonstrates that socialist law was more than the creation of Marxist-Leninist ideology and economics. It instead shows that socialist law was also an updated—and turbo-charged—manifestation of a much deeper set of views about the importance of a centralized and supervisory state for achieving certain developmental goals.
The history of socialist law?
Scholars have rarely examined the historical roots of socialist law. Instead, they argued that socialist law was a “young legal system” that was emerging from a new economic system. This approach drew in part on the work of Soviet-bloc scholars and reflected in part the Marxist view that law is the product of the economic system. According to this logic, when market reforms swept the world in the late 1980s, socialist law should also disappear.
This ahistorical approach fails to see that socialist law was built on broader grounds than Marxist-Leninist economics. Instead, it was built within the context of the Russian legal tradition. This Russian legal tradition was grounded on a belief that the state should be structured not to ensure liberty through divided power but instead to allow Russia to mobilize and catch up with the West. One of the key creators of this system was Peter the Great, who famously returned to Russia after viewing the shipyards of a rapidly industrializing eighteenth century Britain. Hoping to modernize a “backward” Russia, Peter structured the Russian state to allow the Tsar to oversee and direct the vast and diverse Russian empire to compete with and catch up with the West.
Underlying this modernizing project were two approaches to constitutional design that rejected western constitutionalism. First was centralism: The idea that power must be concentrated in the hands of one individual (edinoderzhavie) who could coordinate and strategically deploy resources for particular purposes. The second was supervision (nadzor). Supervision included institutions that displaced independent courts by combining both judicial and executive powers in checking and re-checking both administrative and judicial decisions for “conformity to the law and the commands of their superiors.” This included the Senate, a legislative body that also served as a high court that supervised the implementation of laws. It also included the Procuracy, a vertically-controlled institution that combined the role of ombudsman, attorney general, and administrative court.
After the 1917 revolution, the Bolsheviks set about building socialist legal system in the Soviet Union. One of the most pressing aspects of this project was writing a socialist constitution; this new constitution would signal to the world the proper structure of a socialist state. At the center of this conflict over the correct constitutional structure of the socialist state was the role of the Tsarist approach to state structure. One group argued that Tsarist Russian tradition should be rejected. This antiformalist approach was best summed up in the work of Evgeny Pashukanis, who described the future socialist constitutional system as looking nothing like Russia’s Tsarist past. The other drew heavily on the Tsarist constitutional system, justifying its institutions in the language of Marxism. In this view, socialist constitutional law should turbo-charge the state apparatus in order to overcome capitalist encirclement and build a workers’ paradise.
This dispute was finally resolved in the 1936 Soviet Constitution, the first constitution proclaiming the triumph of socialism. Amidst calls for rapid industrialization and militarization, this 1936 Constitution rejected the anti-formalist approach and instead drew heavily on the Tsarist model of a centralized and supervisory state apparatus. The 1936 constitution therefore centralized power in a hierarchy of legislative councils (soviets) controlled at the top by a powerful chairman. This chairman ensured that the state would be the “transmission belt” for Communist Party policy. Second, it included the supervisory institutions. Article 113 gave the Procuracy “supreme supervisory power” over law, allowing it to resume its old Tsarist position of exercising pseudo-judicial power to review laws and administrative decisions as well as entertain petitions and prosecute crime. Furthermore, Article 104 charged the Supreme Court with providing supervision over the legal system. This meant that the Supreme Court would have the power to issue guiding explanations as well as reopen cases that had become final.
These institutions were described in the language of Marxism-Leninism. Centralism was famously described as “democratic centralism,” a supposed improvement on the bourgeois concept of separated powers. Furthermore, the return of the much-hated Procuracy as well as a centralized Supreme Court was justified as path to a special kind of “socialist legality”. But, looking deeper, these institutions were reintroduced for much the same reasons the Peter the Great—once called the “first Bolshevik”—advocated. Socialist-style centralism and supervision were justified as a way of allowing the Communist Party to modernize and mobilize the country to catch up with the West. In fact, Stalin famously stated that the Marxist formula is the “highest possible development of the power of the state.”
The 1936 Constitution would then serve as the model for socialism around the world. And, again, the appeal of this model in socialist revolutions across Asia, Africa, and Latin America was far more than just Marxism-Leninism. In fact, for many of these countries emerging from colonial or pseudo-colonial backgrounds, socialism’s model of statist mobilization seemingly offered the best path to material prosperity and independence. In particular, centralism and supervision were viewed as far more effective tools for rapidly modernizing, overcoming inequality, and establishing independence than western constitutionalism’s model of separated and divided government.
Centralism and supervision today
This history remains important today. Despite the collapse of the Soviet Union and the end of the Cold War, centralism and supervision remain influential across the socialist (and post-socialist world). In this vast space, western-style separation of powers is still viewed with suspicion while centralization and supervision remain important values. Underlying this persistent difference remain deeper historical justifications. Whether its China’s increasingly centralized system of “socialism with Chinese characteristics” or Russia’s super-presidential system of “sovereign democracy”, these countries still view centralism and supervision as necessary for overcoming poverty and mobilizing the state to compete with and catch up with the West. The longevity of these systems will rest—in part at least—on their ability to continue to justify a centralized and supervisory state as tools for achieving these goals.
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William Partlett is an Associate Professor in Constitutional Law at Melbourne Law School
Suggested Citation, William Partlett, ‘The History of Socialist Constitutions’ IACL-AIDC Blog (5 October 2018) https://blog-iacl-aidc.org/blog/2018/10/4/the-history-of-socialist-constitutions