Article by Hiroshi Oda
Socialist legality, which requires the strict observance of law by state agencies, government officials, social organizations, and citizens, is unique to socialist countries. This principle frequently is mentioned in legal publications and is regarded as the cornerstone of the socialist legal system. Recent constitutions of several socialist states explicitly endorse this principle.
Traditionally, the Procuracy was the agency primarily charged with the responsibility of overseeing the observance and implementation of socialist legality. In the Soviet Union, the Procuracy was established in 1922, and has long been regarded as a guardian of socialist legality. Along with its function of investigating and prosecuting crimes, the Procuracy is empowered to supervise the strict observance of laws by all ministries, local government agencies, enterprises, social organizations, government officials, and citizens. This function of the Procuracy is called general supervision. In recent years, however, some East European countries, such as Poland, have developed a system of limited judicial control over administrative action. Furthermore, in several socialist countries, constitutional courts have been established.
Reflecting on these recent developments, some Western specialists in socialist law have argued that the socialist countries recognize a notion of the supremacy of law and thus deny the uniqueness of socialist law in this respect. Some of them have gone further and suggested that the Soviet concept of socialist legality is analogous to the supremacy of law, which is one of the basic features of the modern Western legal system.
There are, however, insurmountable differences between the principle of socialist legality and the Western legal principle of the supremacy of law as reflected in the rule of law and the Rechtsstaat. Therefore, in this Article, the author intends to demonstrate these differences by examining the devices that the socialist countries have adopted to ensure the implementation of socialist legality. Because the author recently has made a survey of East European countries on this subject, this Article will focus mainly on Asian socialist countries.
Information from certain socialist countries such as Kampuchea is almost totally lacking; accordingly, this Article will concentrate on the institutions of China with some discussion of those in Vietnam and North Korea. The similarities and differences between the institutions in these Asian socialist countries and the European socialist countries will also be examined. After an overview of the mechanisms that these countries employ to ensure legality, the characteristics of socialist legality as reflected in these mechanisms will be discussed and compared with the characteristics of the rule of law and the Rechtsstaat principle.
About the Author
Hiroshi Oda. Associate Professor, Faculty of Law, University of Tokyo.
Citation
61 Tul. L. Rev. 1339 (1987)