2024 Articles

Against the Triumvirate of Common, Civil & Soviet/Socialist Law

Neacsu, Dana

This essay interrogates the century‑old tripartite taxonomy of European legal families—common law, civil law, and Soviet/socialist law—through the lens of Michel Foucault’s concept of epistemic ordering. Beginning with Foucault’s premise that classifications both reveal and constrain what is intelligible within a given historical period, the author demonstrates how Soviet and later “socialist” law were elevated to parity with common and civil systems despite sharing the same formal foundations as civil law.

A brief historical survey reveals that, prior to Stalin’s 1936 Constitution, Russia’s legal system was widely regarded as state‑capitalist and rooted in inherited tsarist‑civil norms. Evgeny Pashukanis’s early Marxist theory even identified Soviet law as a bourgeois transitional form. Yet Stalinist jurisprudence, spearheaded by Andrei Vyshinsky, rebranded the existing framework as “socialist,” conflating ideological aims with legal taxonomy. This shift—driven less by doctrinal innovation than by political expedience—went largely unchallenged by Western comparatists, who grafted extra‑legal criteria (state ideology, institutional design) onto formal classifications.

The essay further marshals empirical “archaeological” evidence of U.S. state interventions—from financial bailouts to national‑security‑driven corporate divestitures—to illustrate that both liberal capitalist and Soviet systems employ state‑enforced norms and sanction mechanisms indistinguishable in function. This undermines any substantive distinction between “socialist” and “civil” law as applied legal systems.

Concluding that the triumvirate classification rests on inconsistent standards and obscures rather than clarifies legal families, the author calls for a reexamination: recognizing Soviet/socialist law as a civil‑law subclass defined by politburo‑decreed statutes rather than a standalone system. Such recalibration promises greater conceptual coherence and fidelity to historical and comparative analyses.