Formalism and Anti-formalism under Socialist Law: the Case of General Clauses within the Codification of Civil Law

Abstract

Within Soviet law, the tension between formalism and anti-formalism had mainly two aspects. They were diachronically inconsistent, and reflected the change of attitude that occurred before, and after, the establishment of Soviet law as “the law of the Socialist State”. As a divide between the two phases, we can take the year 1936, when a new Constitution expressed the principles of the triumphant Soviet State and Law. A first aspect, that goes back to the early period of the Soviet rule (1918-1928), was imbedded in the recourse to anti-formalism as a tool to destroy the whole body of Russian (Czarist) law. Making use of French doctrines (Gény, Duguit), Soviet jurists in the 20ies drafted an interim codification based on the principle of abuse of rights . A dissemination of general clauses (social purpose of the law, respect of social/economic interests, good faith) was meant in order to give a politically inspired judiciary the tools to control and, when necessary, reverse, the formality of the statute. The politically selected judges, however, went too far in implementing their revolutionary zeal, and the Supreme Court was obliged to give order and predictability to the system, by quashing the samples of a too radical anti-formal understanding of the abuse of right doctrine. A different approach was taken when (mid of the 30ies), having firmly rooted a new system of Soviet law, the ideologists of the established Stalinist socialism exalted the principle of socialist legality, and identified at the same time customary law with conservatism, and judge made law with anarchism, so depriving of any possible legitimacy the two alternative sources of law. This approach, which substituted the principle of “revolutionary legality” with the principle of socialist legality, was clearly indebted with a different set of French inspired doctrines, based upon the principle of the absolute supremacy of the legislature, as the expression of the people’s will. Strict formalism and adherence to the letter of the law, however, were temporarily contradicted by the Khruschev’s attempts (1956-1964) to insert “social” elements within the theory of the Soviet state. The short-lived and unsuccessful experiment of “socialization of the State” favored, somehow, an overvaluation of the role that general clauses can play within the system of civil (private) law. This paper tells the story of the “historical accident” (to say, Khruschev ephemeral attempt to introduce anti-formalism within the structured formalism of Soviet state and law) that led to the preservation of flexible formulas within the codes of the 60ies, not only in the Soviet Union but also in Poland, Hungary, Czechoslovakia. An accident that did not meet the favor of legal scholars, but had anyhow an influence on the style of the law making. An influence that did hold until today, as the Civil Codes recently adopted in the area can show.