Early Soviet Property Law in Comparison with Western Legal Traditions

Abstract

This chapter is an attempt to put early Soviet property rights theory into conversation with property rights theories in various Western legal traditions, and to bracket that discussion within more foundational critiques of legal formalism. This is important not just because of the endurance of various socialist property regimes to this day, but also because unlocking shared ontological, political or ideological commitments in two nominally-opposed theoretical contexts can help us understand the actual normative stakes in these deliberations, and thus, shed light on the deeper institutional contours of property reforms by identifying previously overlooked actors, interests, and pathways of governance. The chapter starts with a heuristic mapping of several theoretical moorings for property rights in the Western legal tradition and attempts to problematize the formalist claim that property law regimes are relatively autonomous/internally constituted. It then examines early Soviet critiques of formalism and their remarkable ‘anti-formalist formalist’ argumentative logic. Following recent research that shows the deep embeddedness of private right as a default assumption in both Soviet and Western legal thinking, the chapter lays out several intuitions regarding the ideological and political functions that are served by the recognition of formal individual property rights regimes in socialist and liberal societies, including: (1) the reification of the individual as a primordial legal actor; (2) promotion of individualism in socialist societies and collectivism in liberal societies as an affective dimension of bipolarity; (3) instrumentalisation of private rights to occlude class conflicts or channel distributional conflicts towards particular institutional forms of dispute settlement. These themes are directly relevant to ongoing policy debates over the role of strong and clear property rights as prerequisites for economic growth not only in the context of various post-socialist ‘transitions’ but also globally.

Keywords: property law theory, liberalism, liberal property theory, Soviet property law, post-socialist law reform, transitology, law and development, Russian legal theory, perestroika, privatization, Cold War bipolarity, private rights, legal formalism, New Economic Policy