Socialist Law

In the proposed chapter, I argue that Kelsen's Pure Theory of Law contains its own legal theory of revolution, and this theory can be explained by interpreting the concept of the Basic Norm. According to the Sociological reading of the Basic Norm, the latter represents the importance that jurists attach to a certain type of situation of social peace and the related (relatively) sustainable functioning of the legal order. From this point of view, a revolution takes place if a radical change in the social order breaks its connection with the legal one. The latter is replaced by a new order through an unauthorized constituent act to create new legal authorities. This idea of the emergence of a new Basic Norm is presented through the analysis of the proclamation of Bulgaria as a Republic and the first Bulgarian constitutional transition in the period 1944-1947.

The recently enacted Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) is unique in global perspective: it was both drafted by and adopted from a jurisdiction espousing an entirely different type of legal system. In this article, I consider the NSL as a potential socialist legal transplant from the People’s Republic of China to its Special Administrative Region of Hong Kong upon its promulgation in June 2020. I consider why, in the criminal law context, the NSL bears certain socialist characteristics and may even be classified as a socialist law. I also consider whether the NSL might be the world’s first ever socialist criminal law transplant into a common law jurisdiction, and discuss what this might mean for legal interpretation and comparative law scholarship more generally. While existing comparative law scholarship on legal transplants has focused, where relevant, on transplants into States espousing socialist legal systems or between such systems, rarely have scholars encountered and analysed laws making their way across legal boundaries in the other direction. This article uses the example of the NSL, enacted by the Standing Committee of the National People’s Congress in Beijing and applied to Hong Kong’s common law legal system, to begin to fill the gap.

Se trata del estudio preliminar a la obra de Enrique Martí Jara "El Rey y el Pueblo. El constitucionalismo de la postguerra y la Propuesta de Constitución española". La lucha entre rey y pueblo es el motor de la historia política y constitucional, del mismo modo que la lucha de clases lo es de la historia económica y social. Si hay un punto de partida para el libro, es éste. Martí Jara lo publicó poco antes de morir con dos objetivos claros. No sólo quería destacar con argumentos jurídicos la desfachatez de la dictadura de Primo de Rivera, que en 1929 se disponía a imponer un texto aparentemente constitucional cuyo único fin era asegurar los poderes absolutos de Alfonso XIII. Además, el autor pretendía divulgar las doctrinas constitucionales en boga durante la Europa de entreguerras, en un momento en el que la iuspublicística española permanecía anclada en las teorías liberales del siglo XIX. En efecto, es algo más que una crítica valiente a la monarquía y a la dictadura como su sostén. Y no sólo representa el esfuerzo pionero de sistematizar e interpretar el nuevo constitucionalismo democrático y social. Lo peculiar radica en el enfoque eminentemente republicano y socialista que guía el método de investigación de principio a fin. Se trata de un "rara avis" dentro de la ciencia jurídica desarrollada en el Estado español que, además, careció de discípulos o herederos claros.

Since China's reform and opening up started in 1978 and Vietnam's Doi Moi reforms were initiated in 1986, these two East Asian economies have adopted capitalistic models of development while retaining and reforming their socialist legal systems along the way. Tracking the trajectory of socialist laws and their legacy, this book offers a unique comparison of laws and institutional designs in China and Vietnam. Leading scholars from China, Vietnam, Australia and the United States analyze the history, development and impact of socialist law reforms in these two continuing socialist states. Readers are offered a varied insight into the complex quality and unique features of socialist law and why it should be taken seriously. This is a fresh theoretical approach to, and internal critique of, socialist laws which demonstrates how socialist law in China and Vietnam may shape the future of global legal development among developing countries.

In this article I analyse one of the most important claims of the neoliberal policy prescriptions for Central and East European states in the early 1990s, that “communist” property should be “privatised.” My claim is that this neoliberal policy prescription was based on a number of false assumptions about what it was “communist” property, and a number of false assumptions about communist law. As a result of these assumptions, the post-communist process of privatisation was plagued by a host of unintended and negative consequences. Nevertheless, based on these false assumptions, the neoliberal ideology was capable to portray the privatisation as” rights based” and essentially a democratic process. I debunk these pretentions by showing that the reality of “communist property” was totally different than that assumed by neoliberal policies. The distinctiveness of communist arrangements of property resided not in absence of private property, which was tolerated under communism, but in the organisation of property as an administrative matter, based on unwritten operational rules. Moreover, the communist corporate law was more or less the similar with the “western corporate” law, so a simple change of formal law would not lead to the transformation of communist property into private property. If a transformation was desired, what needed to be changed was the operational rules accordingly to which the communist property operated. However, this was a level of “reform” totally ignored by the neoliberal policies, with the result that post “privatisation,” these operational rules continued to apply. The result was the great enrichment of the former communist managers who were able to benefit “privatisation” at the expense of the public, in a process which was not “right based” or “democratic.”

Crimes against humanity is one of the core crimes in international criminal law, whose existence is treated as a natural reaction to mass atrocities. This idea of linear progress is challenged by this article, which demonstrates that in Post-Second World War Hungary an alternative approach was developed to prosecute human rights violation committed against civilian populations. Even though this concept was eventually used as a political weapon by the communist party, it had long-lasting effects on the prosecution of international crimes in Hungary.

The essay deals with the global historical development of the human rights doctrine and its role in modern politics from a Czech, Czechoslovak and East-Central European point of view. It draws on recent revisionist historiography of human rights the main characteristic of which, described at the beginning of the essay, is the reconstruction of the human rights doctrine as an epiphenomenon of major historical political conflicts. Then, the author turns to the comeback of human rights as a universalistic concept during the Second World War and the Allied struggle against Nazism. He continues with tracing down the general development during the Cold War leading to the promotion of human rights as a part of binding international law since the mid-1970s. Further, the Czechoslovak postwar situation is analysed starting with the Stalinist Constitution of 1948 up to the dissident struggle for human and civil rights during the last two decades of the communist dictatorship. The last part of the essay examines the rise of liberal internationalism and humanitarian interventionism in the post-1989 period and strives to specify the Czechoslovak and Czech development within a broader context, finishing with a plea for understanding human rights as a space for political deliberation, dialogue and contest.

Arno Trültzsch is a Sylff fellow from the University of Leipzig. He is working on a dissertation to explore the former Yugoslavia’s non-alignment policy and movement and its impact on international norms, including international laws and major UN resolutions for humanitarian and peace-building efforts, between 1948 and 1980. In this article, Trültzsch discusses the essence of his findings and arguments.