law(redirected from Legal theory)
Also found in: Dictionary, Thesaurus, Medical, Legal.
law,rules of conduct of any organized society, however simple or small, that are enforced by threat of punishment if they are violated. Modern law has a wide sweep and regulates many branches of conduct.
Development of Early Law
Law does not develop systematically until a state with a centralized police authority has appeared. For this development a written language is not required, but necessarily the earliest known legal codes are those of literate societies. Examples of early law systems are to be found in the code of HammurabiHammurabi
, fl. 1792–1750 B.C., king of Babylonia. He founded an empire that was eventually destroyed by raids from Asia Minor. Hammurabi may have begun building the tower of Babel (Gen. 11.4), which can now be identified with the temple-tower in Babylon called Etemenanki.
..... Click the link for more information. (Babylonia), the Laws of ManuManu
, semilegendary Hindu lawgiver. Traditionally ascribed to him are the Laws of Manu, best known of the Sanskrit smriti texts (see Sanskrit literature). They were compiled, probably between 200 B.C. and A.D.
..... Click the link for more information. (India), and the Mosaic code (Palestine). These codes show what would seem to be the universal tendency of the religious and ethical system of a society to produce a legal order to enforce its ethical and social mandates. In classical antiquity the first codes of law are those attributed to SolonSolon
, c.639–c.559 B.C., Athenian statesman, lawgiver, and reformer. He was also a poet, and some of his patriotic verse in the Ionic dialect is extant. At some time (perhaps c.600 B.C.) he led the Athenians in the recapture of Salamis from the Megarians.
..... Click the link for more information. and to Lycurgus.
Roman Law and Its Influence
The first law code in Roman history was the Law of the Twelve TablesTwelve Tables,
early code of Roman law. Most modern authorities accept the traditional date of 450 B.C., but several place the work later. The tables were supposedly written in response to the plebeians' protest that the patrician judges were able to discriminate against them
..... Click the link for more information. , the prelude to the development of Roman lawRoman law,
the legal system of Rome from the supposed founding of the city in 753 B.C. to the fall of the Byzantine Empire in A.D. 1453; it was later adopted as the basis of modern civil law.
..... Click the link for more information. , a highly elaborate system that has had immeasurable influence on the growth of Western law. It was summarized in the Corpus Juris CivilisCorpus Juris Civilis
, most comprehensive code of Roman law and the basic document of all modern civil law. Compiled by order of Byzantine Emperor Justinian I, the first three parts appeared between 529 and 535 and were the work of a commission of 17 jurists presided over by the
..... Click the link for more information. in the time of Justinian. Roman law developed the distinction between public law (in which the state is concerned directly, e.g., treason and taxation) and private law (concerned with disputes between persons, e.g., over contracts).
The breakup of the Roman Empire under the pressure of the Germanic invasions brought the disruption of the Roman legal administration. Temporarily the codes of Germanic lawsGermanic laws,
customary law codes of the Germans before their contact with the Romans. They are unknown to us except through casual references of ancient authors and inferences from the codes compiled after the tribes had invaded the Roman Empire.
..... Click the link for more information. eclipsed Roman law in Western Europe. In the simpler Germanic codes the main distinctive element was the use of compositioncomposition,
in ancient and medieval law, a sum of money paid by a guilty party as satisfaction to the family of the person who was injured or killed. Failure to make the payment might justify retaliation in kind against the offender or his family.
..... Click the link for more information. for crimes, but most of the Germanic codes showed at least some Roman influence.
Roman law, together with the Bible, was the basis of canon lawcanon law,
in the Roman Catholic Church, the body of law based on the legislation of the councils (both ecumenical and local) and the popes, as well as the bishops (for diocesan matters).
..... Click the link for more information. , the legal system of the Roman Catholic Church, while Muslim law was derived from the Qur'anQur'an
[Arab.,=reading, recitation], the sacred book of Islam. Revealed by God to the Prophet Muhammad in separate revelations over the major portion of the Prophet's life at Mecca and at Medina, the Qur'an was intended as a recited text, and was not compiled
..... Click the link for more information. and the traditional sayings of Muhammad, and later Hebrew law was based on the TalmudTalmud
[Aramaic from Heb.,=learning], in Judaism, vast compilation of the Oral Law with rabbinical elucidations, elaborations, and commentaries, in contradistinction to the Scriptures or Written Laws. The Talmud is the accepted authority for Orthodox Jews everywhere.
..... Click the link for more information. . Feudal law also showed the effects of Roman law, although in theory it was based not upon any concept of the state but on personal relations (see feudalismfeudalism
, form of political and social organization typical of Western Europe from the dissolution of Charlemagne's empire to the rise of the absolute monarchies. The term feudalism is derived from the Latin feodum,
..... Click the link for more information. ).
The revival of trade in the commercial revolution, and in the Renaissance brought new developments in maritime lawmaritime law,
system of law concerning navigation and overseas commerce. Because ships sail from nation to nation over seas no nation owns, nations need to seek agreement over customs related to shipping.
..... Click the link for more information. . The study of Roman law itself was also revived, notably at the Univ. of Bologna. It became the basis of most Continental law, as exemplified in the French Code Napoléon, the archetype of codes that govern the jurisdiction of civil lawcivil law,
as used in this article, a modern legal system based upon Roman law, as distinguished from common law. Civil law is based on written legal codes, a hallmark of the Roman legal system, in which disputes were settled by reference to a written legal code arrived at
..... Click the link for more information. .
In England after the Norman Conquest the feudal law was ultimately replaced by the law of the royal courts, such as the king's bench. The royal courts developed common lawcommon law,
system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that
..... Click the link for more information. , i.e., judicial legislation as opposed to the law of the formally enacted statutestatute,
in law, a formal, written enactment by the authorized powers of a state. The term is usually not applied to a written constitution but is restricted to the enactments of a legislature.
..... Click the link for more information. . Common law adhered excessively to precedent, and equityequity,
principles of justice originally developed by the English chancellor. In Anglo-American jurisprudence equitable principles and remedies are distinguished from the older system that the common law courts evolved.
..... Click the link for more information. , exercised by the king's chancery, appeared, with its reliance upon the dictates of conscience rather than upon precedent.
The two systems became bitter rivals. In the early 17th cent. Francis Bacon championed equity, while such eminent jurists as Edward Coke upheld the common law. In the 18th cent. English jurisprudence stressed natural law (the theory that law must incorporate the natural rightsnatural rights,
political theory that maintains that an individual enters into society with certain basic rights and that no government can deny these rights. The modern idea of natural rights grew out of the ancient and medieval doctrines of natural law, i.e.
..... Click the link for more information. of humans), and the highly influential work of Sir William BlackstoneBlackstone, Sir William,
1723–80, English jurist. At first unsuccessful in legal practice, he turned to scholarship and teaching. He became (1758) the first Vinerian professor of law at Oxford, where he inaugurated courses in English law.
..... Click the link for more information. exemplifies the theory.
The work of Blackstone was the most important influence in U.S. law (except for Louisiana, Puerto Rico, and the Virgin Islands, where Continental civil law prevailed). Among those who helped to develop the American concept of law were James KentKent, James,
1763–1847, American jurist, b. near Brewster, N.Y. He was admitted to the bar in 1785 and began practice in Poughkeepsie, N.Y. Active in the Federalist party, he served several terms in the New York legislature.
..... Click the link for more information. and Joseph StoryStory, Joseph,
1779–1845, American jurist, associate justice of the Supreme Court (1811–45), b. Marblehead, Mass. Admitted to the Massachusetts bar in 1801, he practiced law in Salem and was several times elected to the Massachusetts legislature.
..... Click the link for more information. ; in constitutional law the most important figure was John MarshallMarshall, John,
1755–1835, American jurist, 4th chief justice of the United States (1801–35), b. Virginia. Early Life
The eldest of 15 children, John Marshall was born in a log cabin on the Virginia frontier (today in Fauquier co., Va.
..... Click the link for more information. . In the United States the distinctive feature is the coexistence of federal and state law, for the U.S. Constitution limits the sphere in which federal law is supreme.
See H. L. A. Hart, The Concept of Law (1961); R. A. Wormser, The Story of the Law and the Men Who Made It (rev. ed. 1962); R. David, Major Legal Systems in the World Today (tr. 1968).
lawsee SOCIOLOGY OF LAW, SCIENTIFIC LAW.
(legal), the legislative instrument of a higher agency of state power, adopted in a prescribed manner and possessing a higher legal force in relation to instruments of other state agencies and social organizations. Laws are the basic form of legal expression in contemporary society.
The higher legal force of laws is shown by the fact that they are incontestable (only a legislative body can revoke or change a law), and the acts of all state agencies must conform to laws. Laws occupy the dominant position in the state’s system of legal acts; the legal norms contained in laws usually regulate the basic and most important social relations. The law most fully expresses the state-backed will of the ruling class and its economic and political interests.
According to the significance and character of the legal norms contained in laws, they may be either constitutional or common laws. Constitutional laws predetermine the content of existing legislation and consolidate the fundamental principles of the social and state system, the order of the establishment and activity of state agencies as well as their competence, the electoral system, and the basic rights and obligations of citizens. The adoption or amendment of constitutional laws requires as a rule a two-thirds or three-fourths majority vote in the legislative body and sometimes a referendum.
In socialist countries, a law is a basic legal instrument for resolving political problems and an important tool for economic and cultural development, for ensuring the internal and external security of the state, for the protection of socialist property, and for the expansion and consolidation of socialist democracy. Under the Constitution of the USSR the right to enact laws in the USSR belongs exclusively to the Supreme Soviet of the USSR; the laws of Union and autonomous republics are enacted by the Supreme Soviets of these republics. In other socialist countries the right to enact laws is also the prerogative of higher representative agencies of power (for example, the National Assembly in Bulgaria). The determining role of laws in relation to other legal acts of state agencies is one of the basic principles of socialist legality.
The basic law of the USSR is the 1936 Constitution of the USSR. Of special importance among Soviet laws is the Basic Principles of the Legislation of the USSR and of the Union Republics, a document containing general fundamental regulations for the legislation of all Union republics concerning different branches of Soviet law. Of great importance are the laws concerning the state economic development plan and the laws concerning the state budget. Law codes play an important role in the legislation of Union republics.
The constitutions of the majority of contemporary bourgeois states officially recognize as the highest legal authority the laws adopted by parliament. In actuality, however, acts of the head of state and acts of the government concerning questions relating to the competence of parliament have become increasingly important. To justify this practice, two types of law have been identified in bourgeois jurisprudence: law in the formal sense (as an act promulgated by parliament) and law in the material sense (as an act promulgated by the government and having a general regulative character).
A. F. SHEBANOV
a necessary, essential, stable, recurrent connection between phenomena. A law expresses the connection between objects and between the elements composing a given object, between the properties of things, and between the properties within a given thing.
Not every connection, however, is a law. A connection may be necessary or contingent. A law is a necessary connection. It expresses the essential connection between things coexisting in space. This is functional law. Thus, for example, the law of universal gravitation says that all bodies are attracted to each other by a force inversely proportional to the square of the distance between them. In addition to and in unity with functional laws, there are developmental laws, expressing the tendency, direction, or sequence of events in time. Thus, society develops from one socioeconomic formation to another. “The concept of law is one of the stages of the cognition by man of unity and connection, of the reciprocal dependence and totality of the world process” (V. I. Lenin, Poln. sobr. soch., 5th ed., vol. 29, p. 135).
In objective idealism, laws are interpreted as an expression of world reason embodied in nature and society. From the point of view of subjective idealism, laws are introduced into the real world by the knowing subject, that is, reason ascribes laws to nature. For example, according to neopositivism, a law is a purely logical phenomenon; objective necessity is not inherent in law; a law possesses only logical necessity. Dialectical materialism proceeds from the fact that laws have an objective character, expressing real relations between things, as well as their reflection in consciousness. Laws may be general to a greater or lesser extent. Less general laws operate in a limited field and are studied by specific concrete sciences—physics, chemistry, and biology, for example, the law of natural selection. More general laws, for example, the law of the conservation of energy and of the circulation of information, are studied by a number of disciplines. Universal laws, such as the laws of dialectics, including the law of the transition of quantitative changes into qualitative changes, are studied by philosophy.
Some laws express a strict quantitative dependence between phenomena and are fixed in science by mathematical formulas, for example, the law of universal gravitation; other laws cannot be expressed mathematically, for example, the law of natural selection. Laws may be dynamic or statistical. Dynamic laws express a necessary causal connection, where the interrelationship between cause and effect is univocal. Knowing the initial state of a particular system (for example, the movement of the earth around the sun and of the moon around the earth), the eclipse of the sun or moon can be accurately predicted. In contrast to a dynamic law, a statistical law is a dialectical unity of necessary and contingent events. In this case, the subsequent states follow not univocally from the initial state of the system but with a certain probability, which characterizes the extent to which a particular contingent event is capable of being realized (for example, winning in a lottery).
The realization of a law depends on the relevant necessary conditions, the presence of which ensures that the effects arising from a law will pass from a state of potentiality into actuality. In nature laws act as an elemental force. Social and historical laws, since they operate in the same way as the conscious actions of human beings, are the laws of human activity itself: they are created and carried out only by men. But the action of social laws, like that of the laws of nature, is objective: at the basis of the historical process is the development of the mode of production.
On the basis of the knowledge of laws, foreknowledge of the future is achieved, and theory is transformed into practice. It is possible, by means of known laws, to direct both natural and social processes. The laws reflected in thought constitute the nucleus of science. Man’s power over the surrounding world is measured by the extent and depth of his knowledge of its laws.
A. G. SPIRKIN
(right; in Russian, pravo), the aggregate of generally binding rules of conduct established or sanctioned by a state, the observation of which is ensured by state enforcement actions. Law allows the class or classes controlling state power to regulate the behavior of individuals and groups in a particular way. It is used to make compulsory the social relations that meet the interests of the ruling class and to legally protect and foster the development of these relations. In addition to organizing their power in a state, the ruling classes give general expression to their will by incorporating their will into laws, the content of which is always expressed in terms of the relations of these classes (see K. Marx and F. Engels, Soch., 2nd ed., vol. 3, p. 322). Law is thus the regulator of social relations. In a developed state, the law acts primarily in the process of reproduction, that is, production, distribution, exchange, and consumption. Law consolidates existing property relations and regulates the measure and forms of the distribution of labor and its products among members of society. It also consolidates the forms of government and state organization, the organization and functioning of the state mechanism, the legal status of citizens, and measures for the punishment of those attempting to harm the state structure and existing social relations.
Law is inseparably linked to the state. In the life of society it operates as rules of conduct that are either directly created and instituted by the state or sanctioned by it. In both cases state enforcement stands behind the rules. Law “is nothing without an apparatus capable of enforcing the observance of standards of right” (V. I. Lenin, Poln. sobr. soch., 5th ed., vol. 33, p. 99). Law cannot have a class essence that differs from the class nature of the state existing in a particular society. The inseparable tie of law to the state is one of the characteristics that distinguish law from the rules of conduct in a classless society and also from moral standards and all other norms in a class society. The state, in turn, is inconceivable without law. The very organization of the state mechanism must receive legal formulation, for without this it is impossible to distribute and coordinate the labor of the state’s agencies and officials. State administrative activity is impossible without legal forms. Furthermore, the relations of state and citizen also require that the rights and duties of both parties be regulated.
Law is the will of the state cast in legal form, but it is not a voluntaristic offspring of the state. As one of the crucial elements of the superstructure that rises above the economic base of class society, law is conditioned by the economic structure of society and the nature of existing production and class relations. The formation and development of law are also fundamentally influenced by political factors, the dominant ideology, religion (in certain ages), historical circumstances, and national traditions. Moreover, in developed society, the state is forced to take account of the previously established system of law to a certain degree. According to Marx’ well-known formula, law cannot be higher than the cultural development of a society. In view of all these factors, law reflects economic conditions in a very indirect form.
An offspring of the socioeconomic order, law in turn exerts a significant influence on the course of social development, promoting or hindering it; an example is seen in the connection between feudal law and developing capitalist relations. Historically, however, the ability of law to inhibit social development or, conversely, bypass necessary stages of development proves quite limited, since law cannot void the action of the objective laws of social development.
The existence of law in a society signifies that a considerable range of social relations assumes the character of legal relations, that is, relations in which the participants have legal rights and duties. The aggregate of these legal relations forms the legal order of a society. Law as a system of legislative and other normative acts is inseparably linked to change in the many legal relations that form in society.
The rights, freedoms, and duties of citizens are an important aspect of law. In this connection one speaks of subjective law as distinguished from objective law, which is the system of legal norms. In the last analysis, the existence, nature, and scope of these rights and freedoms—such as the right to work, the right to education, and freedom of conscience—are determined by the socioeconomic order of society and the position of the human being in the process of social production. For actual realization, however, they must be fixed in law and backed by legal guarantees.
Law’s overall role as the normative regulator of the life of society is very significant; developed society knows no other system of social norms that could ensure such active and comprehensive regulation of economic, political, and national relations. Social relations are given order by the universal compulsory nature and exactness and formal definitiveness of law and by the systematic way law influences social relations; these same factors also provide stability combined with dynamism. The ideological role of law and its influence on man’s consciousness and psychology are also important.
Marxism stresses the class nature of law. This is expressed above all in the use of law by the economically and politically dominant class to secure its demands and privileges through generally binding standards and to effect prohibitions and preventive measures aimed at protecting its interests and suppressing its enemies. The class nature of law is also expressed in its reflection of the correlation of social forces and the level and results of class struggle in society; when the level of class struggle is higher, the ruling classes will be forced to resort to greater legal concessions.
Pre-Marxist social thought was dominated by the idealist interpretation of law, which saw its prime source and basis either in the characteristics of the human spirit and thinking—the “idea of law”—or in “divine will.” A frankly idealist or positivist approach to understanding the essence of law characterizes the dominant bourgeois schools of law in the 19th and 20th centuries. Even when bourgeois writers speak of economics as a factor influencing law, this is far from recognizing the primacy of the socioeconomic order in relation to law. Bourgeois legal thought also disregards the interrelationship of law and the class structure of society because such an approach objectively leads to a recognition of the class nature of bourgeois law, which was traditionally pictured as the product of “common will.” When the bourgeoisie came to power, the doctrine of natural law and the historical school of law lost their importance. Legal positivism became the leading school, declaring that bourgeois law was the highest principle and did not need economic, political, or other substantiation. Positivism declares the tasks of legal science to be nothing more than treatment of existing law by formal logic.
Normativism, the pure theory of law, has become an influential variation of positivism in the 20th century. Neo-Kantianism in law and the phenomenological school of law derive law from an idealist principle, and the psychological school of law declares it to be a product of the human psyche. Alongside these theories, various currents of sociological jurisprudence and existentialism in law have become widespread in the 20th century. All of these conceptions are based on hypertrophy of some particular element of the legal superstructure—legal norms, court activity, or legal attitudes—removed from the real interdependence of phenomena. Whereas the legal world view of the ascendant bourgeoisie appeared as a negation of the theological world view, bourgeois legal ideology of the 20th century is very clearly influenced by clericalism and, particularly, neo-Thomism. The rebirth of natural law is to a large degree related to the spread of neo-Thomism. Ideas concerning the “primacy of law” and the “rule-of-law state” occupy prominent places in present-day bourgeois jurisprudence.
The long historical development of law confirms that the Marxist class and materialist interpretation of law is correct. Before class divisions appeared in society, there were norms of social behavior called customs, but customs, unlike law, expressed the will of all members of society and were based on public ownership, not on differences in the possession of property. There was no special apparatus above society to force members of the society to follow the norms.
The need for such coercion—and this is precisely what distinguishes the norms of law from other social norms—arises only when norms meet the interests of only certain classes and strata and not of the entire population. The other important cause for the emergence of law was the division of labor and the growing complexity of the process of social production and exchange. “At a certain very early stage in the development of society there arises a need for a general rule to encompass the acts of production, distribution, and exchange of products, which are repeated every day. There is a need to see that the individual human being is subordinate to the general conditions of production and exchange. This rule, which at first is expressed in custom, later becomes law. Together with the law there necessarily come into being agencies assigned to enforce the law” (F. Engels, in K. Marx and F. Engels, Soch., 2nd ed., vol. 18, p. 272).
Thus, the initial form of law was customary law, which at first was not recorded in writing. The history of written law goes back to deep antiquity, with the code of Ur-Nammu in Mesopotamia (21st century B.C.), the code of Hammurabi in Babylonia (18th century B.C.), the Hittite laws (14th century B.C.), Draco’s laws in Athens (seventh century B.C.), and the Twelve Tables of Rome (mid-fifth century B.C.). In the most ancient written law, records of court decisions occupied an important place alongside customary law. Since religion played a large part in the historical genesis of law, ancient law ordinarily had a religious coloring. Law was one of the tools of incipient statehood in the struggle against the clan order, as is seen in the reforms of Solon in Athens and those of Servius Tullius in Rome. Law lent support to the institution of slavery and fixed the inequality that had arisen among free persons. It reinforced the distinction between free citizens with full rights and free citizens without full rights; the latter included the mush-kinu in Babylonia, the perioeci in Sparta, and the plebeians in Rome. Law also limited the rights of immigrants and foreigners.
The law of slaveholding society was the first historical type of law. It provided for the conversion of slaves into the property of slaveholders and regarded the slave as the subject matter of a right and not as a holder of a right. It protected private property by means of extremely harsh sanctions and safeguarded the absolute power of slaveholders in the state as well as paternal rule in the family. The most highly developed system of slaveholding law was Roman law, which F. Engels called “the classic juridical expression of the living conditions and conflicts of a society in which pure private property reigns” (K. Marx and F. Engels, ibid., vol. 21, p. 412; see also vol. 20, p. 105). It had an enormous influence on feudal and bourgeois law, especially the latter.
The formation of feudal law proceeded along different paths in different countries. In some countries the law of early feudal society took shape as the primitive communal system declined, with no significant influence from the law of slaveholding society; examples include Anglo-Saxon law and the Russkaia Pravda. In those parts of the Roman Empire where feudalism developed as a result of a synthesis of disintegrated slaveholding and primitive communal relations, the legal systems were dualistic. Thus, Roman law operated with certain modifications for the Roman population in Gaul, whereas the conquerors used the customary law recorded in what was called barbarian law. In some cases, feudal law took shape through a transformation of Roman law. This was typical of Byzantium, for example, where the Corpus Iuris Civilis of Justinian attempted to adapt slave-holding law to new social requirements. During the period of feudal fragmentation in Europe, the predominant form of law was customary law, which was distinguished by extreme particularism. Feudal law openly fixed legal inequality and different rights for different classes; it was a law of privilege. Important to the system of feudal law were norms that regulated feudal ownership of land and kept the peasants in a dependent status. The immunity rights of feudal lords developed as an inalienable attribute of large feudal land ownership and as a means of noneconomic coercion. A feudal hierarchy arose and vassalage relations were carefully regulated. In practice, the law of might—club-law—often prevailed. The development of commodity-money relations in Western Europe led to the emergence of urban laws, which reflected the special status of the city in medieval society; Magdeburg law, for example, became widespread. Roman law, with its detailed regulation of the relations of commodity production, was borrowed and adapted. An elaborate system of canon law developed at the same time Roman law was borrowed. Canon law regulated affairs within the church, marital and family relations, and certain civil transactions.
When feudal fragmentation ended and estate and absolute monarchies emerged, the role of centralized power in shaping the law grew and the particularism of law gradually lessened. As law developed, each state shaped its own system of law, each system reflecting the state’s national characteristics and traditions. The Roman and Anglo-Saxon legal systems, which took shape in the 17th through 19th centuries, have been preserved, on the whole, in present-day bourgeois states. The Roman system is based on Roman law and used in continental Europe, whereas the Anglo-Saxon system—the system of precedent law—is employed in Great Britain and has been adopted in part by the United States and many other countries, primarily former English colonies. Islamic law is a special legal system.
The last type of exploitative law constitutes bourgeois law. When the bourgeoisie struggled for power, it pitted a juridical world view against the theological world view that had dominated the Middle Ages. It also made broad use of the slogans of law and legality in the struggle against feudalism. When the bourgeois order emerged victorious, the role and significance of law increased greatly. The development of capitalist commodity relations led to the speedy development of private law, that is, branches of law—such as civil and commercial—that define the status and relations of participants in capitalist activities. It also led to the development of procedural law, which regulates the order of resolving the numerous conflicts that arise. As the role of law in politics and administration grew, state and administrative law developed. Specialized national systems of law took shape. In its class essence, bourgeois law served as a means of reinforcing the economic and political conditions of a system in which the bourgeoisie was dominant and the working class was exploited. Marx and Engels precisely defined bourgeois law as the will of the bourgeoisie incorporated into law (see Soch., 2nd ed., vol. 4, p. 443). The comparatively low level of consciousness and organization among the masses of working people in the period of industrial capitalism enabled the exploiting classes to express their own mercenary private-property interests to the maximum in law without any significant concessions, protecting these interests by means of harsh and repressive sanctions. At the same time, bourgeois law represented real socioeconomic relations in idealized form (“legal fetishism”), concealing economic inequality behind formal equality and noneconomic coercion behind freedom of agreement.
In the period of imperialism, the systems of bourgeois law continued developing, with the law adapting to the conditions and requirements of monopoly and state-monopoly capitalism. Under pressure from the masses of working people and in connection with change in the world situation, the bourgeois state was forced to grant a number of legal concessions to the workers, including concessions in the area of labor law, suffrage, and social legislation. These concessions, however, do not signify a fundamental transformation of bourgeois law, as many bourgeois and reformist ideologists contend. To counterbalance the legal gains of the working people, the monopolistic bourgeoisie makes extensive use of reactionary and antilabor legislation. Because the legislation frequently does not correspond to constitutional principles and the level of democracy that has been achieved, it operates as “legislation in violation of rights.”
Under conditions of the general crisis of capitalism, the ruling bourgeoisie no longer sees law as a basic and sufficient means of protecting its social position; when this position is threatened, the bourgeoisie resorts either to curtailing the legal principles in the life of society or to entirely rejecting them. Examples are seen in the fascist regimes of Germany and Italy between the wars and in the regime established by the military junta in Chile in 1973. In Marxist literature this process is called the crisis of bourgeois legality. Law is thus seen to be one of the basic objects of the acute socioeconomic and political struggle between the monopoly capitalists and the working people and between the forces of democracy and reaction in present-day capitalist society.
Countries that have become liberated from colonial dependence are faced with the crucial issue of how law is to develop. Neocolonialism has an interest in preserving the legal systems carried over from the former mother countries, but the needs of the economic, political, and cultural development of the countries demand significant modifications of the legal superstructure. New states with socialist orientations are choosing to create new legal systems.
The highest historical type of law is socialist law. This type of law emerged in the Soviet state after the Great October Socialist Revolution. Socialist law initially expresses the will of the working majority and later expresses the will of the entire population. Its basic principles include abolition of private ownership of the means of production and elimination of man’s exploitation of man and other forms of nonlabor enrichment. Socialist law is based on the consistent protection of public socialist ownership as the foundation of the socialist economic system. It aims at securing the sovereignty of the working people, ensuring democratic principles of government, and establishing the full equality of citizens, regardless of race, nationality, or sex. Socialist law seeks to develop the socioeconomic and political rights and freedoms of citizens, including the right to work, recreation, education, and material support in old age. It is based on compulsory obedience to law by all state and public organizations, officials, and citizens. It is founded on a determined struggle against all infringements of the socialist order and is based on humaneness and justice. Because socialist law corresponds to the will and interests of all the people, legal fetishism is alien to it; it gives a true reflection of real relations and openly proclaims its class nature.
Because of its fundamentally new content and goals, socialist law cannot result from evolution or transformation of the old bourgeois law. The emergence of the new socialist type of law in any of its forms objectively necessitates rejection of the old legal system either at once, as was the case with the socialist revolution in Russia, or gradually, as has happened in some other socialist countries. For many years anticommunist ideologists portrayed the abolition of the old tsarist law during the October Revolution as a fundamental rejection of all law by the new political power and a transition to nonlegal methods of government. Bourgeois literature commonly alleges that Marxism typically disregards law as a bourgeois social institution and thus concludes that law is insignificant under socialism. In reality, Marx and Lenin regarded the necessity of law under socialism until the complete victory of communism as an objective law of the development of socialist society. In State and Revolution, Lenin emphasized the role of the legal form of social regulation and wrote: “If we are not to indulge in utopianism, we must not think that having overthrown capitalism people will at once learn to work for society without any standard of right. Besides, the abolition of capitalism does not immediately create the economic prerequisites for such a change” (Poln. sobr. soch., 5th ed., vol. 33, p. 95).
The economic prerequisites of the necessity of law under socialism are found primarily in the existing level of development of productive forces, which demands state regulation of the measure of labor and compensation, that is, the use of a legal scale. Commodity-money relations, the realization of the principle of material incentive, are impossible without legal forms. The economic organizational function of the socialist state assumes the existence of a national economic plan that has been ratified as a mandatory law; fulfillment of the plan requires legal regulation of the activity of socialist enterprises and organizations. Thus, in the course of socialist construction, law is viewed not solely as a means of resolving various types of conflicts; it is also given important organizational and constructive functions, especially in the sphere of social production. The USSR developed history’s first legal forms for state management and planning of the economy. Under socialism, law is also necessary to fight crime and other legal offenses, as well as the vestiges of capitalism. Law is also a factor in molding communist consciousness and promotes the strengthening and development of socialist relations.
The basic principles of Soviet law have been preserved in all stages of the Soviet state’s development. At the same time, the law’s social content has changed, reflecting the characteristics of particular historical periods. Soviet law was initially proletarian law, a weapon of the dictatorship of the proletariat. During that period it expressed the state will of the working class, which was allied with all toilers, and was directed against the overthrown exploitative minority; for example, the voting rights of representatives of the exploitative classes were restricted or taken away. The law of that period played a significant role in carrying out socialist transformations in industry and agriculture, that is, in shaping the socialist economic system and formulating and reinforcing the principles of socialist democracy and the structure and forms of the activity of state agencies. Even during that period there was a developed system of Soviet law based on the first Soviet codification, which was carried out in the early 1920’s under Lenin’s direct supervision.
In developed socialist society, law is all-people’s law. This means that law is a state expression of the interests and will of all the Soviet people, that the development of law is subordinated to the tasks of directly molding communist social relations and consciousness, and that all the basic features and principles of law receive continued qualitative development.
The transformation of proletarian law into all-people’s law—a higher stage of socialist law—signifies that the social base of this law is expanding even further. However, all-people’s law is still a class social phenomenon. It is directed toward the class goals of the working class, and it develops under the leadership of this class. All-people’s law continues to be directed against exploiters and is the antipode of exploitative law. It has a very great class role in the struggle and peaceful coexistence of different sociopolitical systems.
Developed socialist society is characterized by continued consistent development and refinement of law and an increasing role for law in the life of society. In the 1960’s and 1970’s an extensive new codification of law was carried out in the USSR. Basic Principles of Legislation were adopted for all the principal branches of law, and corresponding codes based on the principles were put into effect in the Union republics. The range of rights legally guaranteed to citizens and their organizations is growing broader. The lawmaking process is becoming even more democratic. The growing effectiveness of Soviet law results from its ever-increasing correspondence to the objective laws of social and economic development, the increase in the directing role of the CPSU in the legal activity of the Soviet state, and constant work to bolster socialist legality. Socialist legality presumes the compulsory and unfailing observation of laws by all state and public organizations, officials, and citizens.
Some present-day ideologists of ultraleftist movements view the consistent development of socialist law as a rejection of revolutionary traditions and as evidence of a growing bourgeois quality in socialist society. Exponents of the bourgeois convergence theory argue, in a similar vein, that the development of socialist law means that it is drawing closer to the bourgeois model of law, the more highly refined model.
In reality, socialist law is the highest historical type of law and is an effective and necessary means to build a communist society. The activity of the CPSU is constantly directed at improving Soviet legislation, strengthening legality and law and order, and steadily increasing legal sophistication in the country. The Twenty-fourth Congress of the CPSU contended that respect for the law and enacted pieces of legislation should become the personal conviction of everyone, especially officials.
From the historical perspective, the victory of communism will mean that law will disappear together with the state. Communism is impossible without rules of communist communal life that are compulsory for all its members. However, a developed communist society, in which the contradiction between personal and public interests has been fully resolved, will have no need for political means to regulate social relations and no need for legal sanctions; observance of social norms will become a natural habit. On the one hand, the withering away of law represents the discarding of legal norms made unnecessary by the adoption of communist relations; on the other hand, it represents the development of a number of transformed norms into a constituent part of the rules of conduct in a communist society.
REFERENCESMarx, K., and F. Engels. “Manifest Kommunisticheskoi partii.” Soch., 2nd ed., vol. 4, p. 443.
Marx, K. “Kritika Gotskoi programmy.” Ibid, vol. 19, pp. 18–20.
Engels, F. Proiskhozhdenie sem’i, chastnoi sobstvennosti i gosudarstva. Ibid., vol. 21.
Engels, F. Liudvig Feierbakh i konets klassicheskoi nemetskoi filosofii. Ibid. Chapter 4.
Engels, F. “Iuridicheskii sotsializm.” Ibid., pp. 495–516.
Engels, F. “K zhilishchnomu voprosu.” Ibid., vol. 18, pp. 272–74.
Lenin, V. I. Gosudarstvo i revoliutsiia. Poln. sobr. soch., 5th ed., vol. 33.
Lenin, V. I. “O ‘dvoinom’ podchinenii i zakonnosti.” Ibid., vol. 45.
Materialy XXIV s“ezda KPSS. Moscow, 1974
Teoriia gosudarstva i prava. Moscow, 1962.
Alekseev, S. S. Problemy teorii prava, vols. 1–2. Sverdlovsk, 1972–73.
Alekseev, S. S. Sotsial’naia tsennost’prava vsovetskom obshchestve. Moscow, 1971.
Kerimov, D. A. Filosofskie problemy prava. Moscow, 1972.
Obshchaia teoriia gosudarstva i prava, vol. 2. Edited by V. S. Petrov and L. F. Iavich. Leningrad, 1974.
Marksistsko-leninskaia obshchaia teoriia gosudarstva i prava, vols. 1–4. Moscow, 1970–73.
Nedbailo, P. E. Vvedenie v obshchuiu teoriiu gosudarstva i prava. Kiev, 1971.
Szabó, I. Sotsialisticheskoepravo. Moscow, 1964. (Translated from Hungarian.)
Tumanov, V. A. Burzhuaznaia pravovaia ideologiia: K kritike uchenii o prave. Moscow, 1971.
Istoriia gosudarstva i prava SSSR, parts 1–2. Moscow, 1961–62.
Chernilovskii, Z. M. Vseobshchaia istoriia gosudarstva i prava. Moscow, 1973.
Shebanov, A. F. Forma sovetskogo prava. Moscow, 1968.
V. A. TUMANOV