COMMON LAW SYSTEM
Common law is characteristic of the English system, which developed after the Norman Conquest in 1066 (Cownie, 2010). The law of England as well as those laws modeled on English law (such as the laws of the United States, Canada, Ireland, and India) resisted codification. Common law is based on case law, which relies on precedents set by judges in deciding a case (Friedman, 2002). Thus, it is “judge-made” law as distinguished from legislation or enacted (statutory) law. The doctrine of precedent is strictly a common law practice. The divisions of the common law; its concepts, substance, structure legal culture, and vocabulary; and the methods of the common-law lawyers and judges are very different, as will be demonstrated throughout the book, from those of the Romano-Germanic, or civil, law systems.
SOCIALIST LEGAL SYSTEM
The origins of the socialist legal system can be traced back to the 1917 Bolshevik Revolution, which gave birth to the Union of Soviet Socialist Republics. The objectives of classical socialist law are threefold. First, law must provide for national security. Ideally, the power of the state must be consolidated and increased to prevent attacks on the socialist state and to assure peaceful coexistence among nations. Second, law has the economic task of developing production and distribution of goods on the basis of socialist principles so that everyone will be provided for “according to his needs" The third goal is that of education: to overcome selfish and antisocial tendencies that were brought about by a heritage of centuries of poor economic organization.
The source of socialist law is legislation, which is an expression of popular will as perceived and interpreted by the Communist party. The role of the court is simply to apply the law, not to create or interpret it. Even today, for example, judges in China are not required to have any legal training, and few do. Most hold their positions because they have close connections with local governments, which are eager for quick convictions (Muhlhahn, 2009).
Socialist law rejects the idea of separation of powers. The central notion of socialist law is the concept of ownership. Private ownership of goods has been renamed “personal ownership" which cannot be used as a means of producing income. It must be used only for the satisfaction of personal needs. Nations with socialist law also have socialist ownership, of which there are two versions: collective and state. A typical example of collective ownership is the kolkhoz, or collective farm, which is based on nationalized land. State ownership prevails in the industrial sector in the form of installations, equipment, buildings, raw materials, and products. Although socialist law has faded in the former nations of the Soviet Union, versions of it still exist in China, Cuba, North Korea, and Vietnam.
The collapse of communism in the Soviet Union and the former Eastern-bloc countries in 1989 had immediate implications for the socialist legal system in those nations (Hesli, 2007). Almost overnight, the former Soviet nations had to reconceive basic notions of property, environmental protection, authority, legitimacy, and power and even of the very idea of law (Agyeman and Ogneva-Himmelberg, 2009). They are still experimenting with workable alternatives to the socialist rule of law in their attempts to create a climate for a system of laws compatible with democratic forms of market economies and civil liberties (Hesli, 2007).
Although the problems involved in the transition vary from country to country according to unique historical and political circumstances, all these states face common concerns, such as establishment of a new political ideology, creation of new legal rights, the imposition of sanctions on former elites, and new forms of legitimization (Feuer,
2010). Among the practical problems have been the creation of new property rights; the attainment of consensus in lawmaking; the formulation and instrumentation of new laws on such matters as privatization; joint ventures; restitution for and rehabilitation of victims of the overturned regime; revision of criminal law; the rise of nationalistic, antiforeign, and anti-Semitic sentiments; and multiparty electoral behavior (Oleinik, 2003). There is also a whole slate of legal issues previously denied public attention by socialist law, such as prostitution, drug abuse, unemployment, and economic shortages. There are, finally, concerns with the development of new law school curricula, selection of personnel, and replacement or resocialization of former members of the Communist party still occupying positions of power.
Perhaps the biggest task facing the new lawmakers in the former Soviet nations is the creation of a legal climate aimed at stimulating foreign investments. Westerners need to be assured about the safety of their investments, which requires the creation of a legal infrastructure based on democratic principles. New laws are still needed on repatriation of profits, property rights, privatization, and the movement of goods.
But the greatest challenge confronting the post-Communist regimes is crime management (Hesli, 2007; Oleinik, 2003). In Russia and in its former satellites, the Soviet criminal code has not been significantly altered, even though it is better suited to catch political dissidents than to inspire respect for law and order. The laws were aimed at defending the totalitarian state, not the individual. Presidential decrees and legislative acts have expanded the boundaries of life—from the right to buy and sell property to the freedom to set up banks and private corporations—but the notoriously inefficient courts have no legal basis for interpreting these decrees, much less enforcing them. Consequently, the police cannot formally tackle organized criminal activity, because under present law, only individuals can be held criminally culpable. Not surprisingly, the number of organized criminal groups in Russia more than quadrupled during the last decade of the twentieth century (Oleinik, 2003).
Almost every small business across Russia pays protection money to some gang. Some authors even raise questions such as “Is Sicily the future of Russia?” (Varese, 2001). Vast fortunes in raw materials—from gold to petroleum—are smuggled out through the porous borders in the Baltics by organized groups who have bribed their way past government officials, and ministries and municipal governments peddle property and favors. Official corruption is rampant, and along with that, tax instability, licensing confusion, and disregard for intellectual property rights serve as disincentives to the kind of private Western investment Russia needs to create jobs and a functioning market economy (Eicher, 2009).