The importance of reforming civil law in formerly socialist legal systems

Abstract

The modern civil law emerged from many centuries of development. In the 18th and 19th centuries European civil law based on Roman law foundations carried forward the concept of the individual citizen at the heart of the liberal revolutions. New conceptions of the role of the state and the development of national civil codes re-orientated this conception. The Soviet socialist legal model resonated faith in ‘top-down’ state control while at best tolerating a socialist version of the civil law. Today, internationally the philosophical characteristics and legal rights of the individual citizen are explicated in public law and the role of civil law is to provide the institutions, doctrines and transactions of civil society and commercial law.

A distinguishing feature of the civil law is its enforceability horizontally in society directly against those who fail in their responsibilities and does not depend on authority acting ‘top-down’ within the public law realm. There are advantages to society and the state in fostering direct horizontal enforcement. Without pro-active reform socialist and formerly socialist legal systems have restricted capacity to gain these advantages. This is not an argument against the importance of constitutionalism, human rights protection and anti-corruption initiatives – the civil law provides an essential juristic background to public regulation and a direct method of remediating loss occasioned by unlawful action.