Document Type

Article

Disciplines

International Law

Abstract

The "family of socialist legal systems" is an analytical classification widely used in international and comparative legal studies to characterize the core similarities and differences shared by the members of that family which distinguish them in aggregate from other families of legal systems. What those similarities and differences are, the respective weight that should be given to them, the aggregate required to place a legal system within one family rather than another, the impact of socio-economic, political, cultural, and legal change upon the core similarities and differences, the reasons for engaging in comparative legal analysis, and the interactions of extra-family legal relationships are the object of constant investigation, reassessment, and refinement by comparativists everywhere.

Curiously, the legal regulation of foreign trade has not figured significantly in comparative legal studies as a factor to be weighed in the classification of families of legal systems. The reasons, by no means self-evident, are undoubtedly several. Legal science in no country treats the law governing foreign trade or, more broadly, transnational transactions, as a distinct branch of law. At best it may be regarded as a branch of legislation, or grouped under "foreign relations law," or classed as part of private international law, or distributed among public and private international law, civil law, administrative law, public law, and others.' Movements of the past two decades to develop codes of international trade in socialist legal systems, exemplified by the 1963 Czechoslovak code, the 1976 Law on International Economic Contracts enacted in the German Democratic Republic, and by fascinating discussions and drafts in Poland since 1960, have had no discernible impact upon comparative legal classifications of legal systems.

Another influential factor must be that legislation regulating foreign commerce and international economic relations is, in nearly all societies, the most "outward-looking" of legislation. Within the constraints of domestic economic policy it enables commerce to occur and often actually facilitates trade. Few areas of the law experience the intensiveness of efforts to harmonize and unify national legislation as does the realm of foreign trade. The inherent impetus toward cooperation in facilitating economic links disposes us to view foreign trade legislation as perhaps the area of legislation most disposed to transnational or even "trans-family" classification rather than as part of a core distinguishing families of legal systems from one another. The accent, even in comparisons between the socialist and nonsocialist families of legal systems, is upon the nexus formed in foreign trade legislation so that members of the respective legal orbits may transact with one another. This in turn creates a set of mind attuned to similarities rather than differences, to the adaptation of national legal rules and institutions so as to meet the requirements of international exchange.

Indeed, in many respects international commerce is viewed as a legal sphere of its own. The "law of international trade" in most if not all conceptions embraces both the international treaties and the sundry regional or other community and municipal legal rules and institutions governing the conduct of commerce in the broadest possible sense. The activities pursued are primarily functional, albeit linked to economic and foreign policies, and their ultimate success is dependent upon the ability of legal regulation to facilitate trade (or the canniness of traders in circumventing obstacles placed by unresponsive legal regulation). Some comparativists are persuaded that factors which in the past were distinguishing characteristics of the socialist family of legal systems, notably economic planning and its legal implications, have become matters of degree in the light of greater State involvement in the economic life of mixed (formerly capitalist) economies.

The present article explores on a general level some of the distinctive aspects of the State monopoly of foreign trade and assesses these against the concept of the "common core" of the socialist family of legal systems.

Accessibility Requirements

1

Download

Share

COinS