Socialism and Legal History

The Histories and Historians of Law in Socialist East Central Europe

Ville Erkkilä, Hans-Peter Haferkamp, Ville Erkkilä, Hans-Peter Haferkamp

• Verlag: Routledge
• Jahr: 2020
• ISBN:
  9781000213737
• Auflage: 1
• Thema: Historia
• Thema: Historia báltica

This book focuses on the way in which legal historians and legal scientists used the past to legitimize, challenge, explain and familiarize the socialist legal orders, which were backed by dictatorial governments.

The volume studies legal historians and legal histories written in Eastern European countries during the socialist era after the Second World War. The book investigates whether there was a unified form of socialist legal historiography, and if so, what can be said of its common features. The individual chapters of this volume concentrate on the regimes that situate between the Russian, and later Soviet, legal culture and the area covered by the German Civil Code. Hence, the geographical focus of the book is on East Germany, Russia, the Baltic states, Poland and Hungary. The approach is transnational, focusing on the interaction and intertwinement of the then hegemonic communist ideology and the ideas of law and justice, as they appeared in the writings of legal historians of the socialist legal orders. Such an angle enables concentration on the dynamics between politics and law as well as identities and legal history.

Studying the socialist interpretations of legal history reveals the ways in which the 20th century legal scholars, situated between legal renewal and political guidance gave legitimacy to, struggled to come to terms with, and sketched the future of the socialist legal orders.

The book will be a valuable resource for academics and researchers working in the areas of Legal History, Jurisprudence and Philosophy of Law and European Studies.

The Open Access version of this book, available at

https://www.taylorfrancis.com/books/socialism-legal-history-ville-erkkil%C3%A4-hans-peter-haferkamp/e/10.4324/9780367814670?context=ubx&refId=2db6d49f-af1c-4b51-9503-9673a131f541, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license."

Part I

Framing the socialist legal
historiography

1 The transformations of some classical principles in socialist Hungarian civil law

The metamorphosis of bona fides and boni mores in the Hungarian Civil Code of 1959

András Földi

On the historical background

As is well known, the concepts of bona fides and boni mores originate in Roman law. Before examining their fate in the socialist Hungarian civil law, it is necessary to refer briefly to the relationship between Hungary and the Roman law tradition. Until the middle of the 19th century, the Hungarian legal system did not belong to civil law jurisdictions. Apart from during the Roman times, Roman law has never been the law in effect in Hungary. In the Middle Ages as well as in the early modern period, Hungary had a conservative national customary law strongly characterised by feudalistic features. In these times, Roman law only had a limited impact on the development of Hungarian law (Bónis, 1964; Zlinszky, 1983, pp. 56ff; Hamza, 2009, pp. 366ff).

The modernisation of Hungarian law in terms of the reception of the Roman law tradition—I am speaking now about private law—began in the 19th century. Hungarian private law acquired a civilian (Roman law) character due to the introduction of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) in 1853. Some years later, the ABGB was repealed but, as a matter of course, it was hardly possible to return to the old Hungarian private law. Judicature and other factors of legal development aimed for the creation of a modern Hungarian private law, mainly on the basis of German law (besides the impact of the Pandectists, it was in a certain period especially the Saxon Civil Code of 1863 which was regarded as a model code for developing the Hungarian private law), but the Austrian law and later (after the First World War) sometimes the Swiss law were taken into consideration as well.¹ At the end of the 19th century and in the first decades of the 20th century, several drafts of a Hungarian Civil Code were elaborated, even presented as bills to the Hungarian Parliament, but they were never adopted. Among these drafts, especially the last one, the Private Law Code of Hungary in 1928 is to be stressed, not only because of its high professional level, but also because of its considerable impact on the judicature, which tacitly recognised it as an effective source of law (cf. Zlinszky, 1983, p. 65; Földi, 1988, pp. 364ff; Képes, 2016, pp. 112f).

As far as the social-historical context of the development of Hungarian private law before the First World War is concerned, it is to be noted that this development took place within the framework of the Austro-Hungarian Monarchy. After the Compromise between Austria and Hungary was concluded in 1867, a golden age began for Hungary for some decades when both the economy and culture developed to a great extent (Rigó, 2017). These decades were dominated by the increasing influence of liberal ideas. In this context, it is important to refer to the emancipation of Jews in Hungary (Act No. XVII of 1867) and to their continuously growing role in the Hungarian economy and society. The Tiszaeszlár blood libel trial in 1882 and 1883 showed the presence of antisemitism in Hungary, but in spite of antisemitic agitation, the rule of law triumphed.

Unfortunately, the First World War did not only break the belle époque, it also led to the fall of the Austro-Hungarian Monarchy in 1918. It is not so much the emergence of new national states that is to be lamented in this respect but rather the loss of a number of high values, especially the devaluation of liberal ideas, not to mention socialist ones.

The definitive end of the liberal period of the former decades was marked by a short communist intermezzo that took place in 1919, namely, the formation of the first communist regime in Hungary on the March 21, 1919. The so-called ‘Hungarian Soviet Republic’ led by Béla Kun (1886–1938) had extremist ideas and applied terrorist means. It collapsed after 133 days. Since the majority of communist politicians leading the Soviet Republic of 1919 were of Jewish origin, albeit they were not members of the Jewish community, antisemitism in Hungary became stronger in the interwar period and it became a part of government policy as early as 1920 (Karady and Nagy, 2012).

The restoration of the Kingdom of Hungary in 1920 was possible in a territory reduced to two-thirds of its original size. Due to the Trianon Treaty of 1920, Hungary lost not only large and important territories, but also more than a quarter of native Hungarians suddenly found themselves outside of Hungarian borders, mainly in Romania, Czechoslovakia, and Yugoslavia. After such antecedents, from 1920 a national Christian course prevailed in Hungarian politics, characterised by strong anticommunism and increasing antisemitism as well as antiliberalism.

In the framework of the present study, I can refer only briefly to the tragic events of the Second World War and of the Holocaust that afflicted Hungary to a tragically great extent. The political and moral responsibility of the Hungarian governments and other influential political factors should not be underestimated in this respect. Between September 1944 and April 1945, the territory of Hungary was liberated or, as it turned out later, occupied by the Soviet Red Army. Soviet troops left the country only after the fall of communism in 1991. The Hungarian Communist Party took power in 1948 and in the same year the communist (called ‘socialist’) transformation of the Hungarian legal system began.

Creation of the first Hungarian Civil Code of 1959

In this transformation process, the greatest task was the creation of the first Civil Code of Hungary. The codification works began in 1953 and it was on July 30, 1959, that the Parliament adopted the Civil Code of the People’s Republic of Hungary as Act No. IV of 1959. The Civil Code entered into force on May 1, 1960, and after several amendments remained in force until March 15, 2014, when the new Civil Code (Act No. V of 2013) entered into force.

Hungary in the 1950s as well as other socialist countries in Europe experienced a dark era characterised by massive brutality from the communist party, which made use of the state organs. On the other hand, there were a number of highly qualified jurists who had, fortunately, an important role in the gigantic project of civil law codification in Hungary. As we know from history, legal science (or at least the validity of private law) and a totalitarian regime do not necessarily exclude each other. The classical Roman jurists as well as the excellent jurists of Justinian worked in an autocratic empire (cf. Honoré, 1973–1974, p. 869).

As for the preparation of the first Hungarian Civil Code (Act No. IV of 1959), which began in 1953, its main drafters were Miklós Világhy (1916–1980), Gyula Eörsi (1922–1992), Endre Nizsalovszky (1894–1976), Elemér Pólay (1915–1988), and Béla Kemenes (1928–2000). Nizsalovszky was perhaps the greatest Hungarian private lawyer of his time. From 1938 he was the Professor of Civil Procedure Law at the University of Budapest, and from 1943 he was also Professor of Private Law there. He was a member of the Hungarian Academy of Sciences from 1939. He is mentioned in third place in the list given above because as a non-communist, he could have only a limited influence on the actual codification.

It was in fact remarkable in those times that Nizsalovszky was invited to the codification committee at all. Many of his colleagues, having been labelled ‘bourgeois scholars,’ were forced to retire between 1945 and 1950; if they had been members of the Academy of Sciences, as a rule they lost their membership. Nizsalovszky, however, was an extremely renowned legal scholar, and he was, moreover, politically more liberal than conservative being by no means hostile towards progressive ideas prior to the Second World War.²

The leading members of the codification committee were Világhy and Eörsi. Formerly as law students they had been Nizsalovszky’s pupils. A semi-official letter written by Nizsalovszky to Eörsi in 1954 attests that the esteemed professor treated his young colleague as a good friend (see Bodzási, 2018, fol. 16, pp. 1146ff). In spite of their ‘bourgeois’ family background, both Világhy and Eörsi as persons open to new ideas—Eörsi being in addition a Holocaust survivor—became convinced communists after 1945. They were appointed Professors of Civil Law at the University of Budapest in 1953 and later also became members of the Hungarian Academy of Sciences. The fact that the Civil Code of 1959, despite some socialist institutions, remained a Romanistic one is especially due to Világhy and Eörsi who, possessing a certain political influence, could successfully insist that a number of classical traditions of private law be preserved.

At this point, the Soviet jurists to some extent controlled to what extent socialist principles were present in the new Hungarian Civil Code. A well-known Soviet jurist, Anatolii Venediktov (1887–1959), professor at Leningrad State University and member of the Soviet Academy of Sciences (cf. Benevolenskaya, 2013, pp. 173ff), sent a letter containing general observations on the draft of the new Hungarian Civil Code in December 1957. Venediktov welcomed the fact that the new Hungarian Civil Code as the first socialist civil code would not contain a general part (cf. Baldus and Dajczak, 2013).³ Venediktov adds, however, that just that is why the preliminary provisions should be more detailed than in a civil code having also a general part. Lacking a Russian translation, Venediktov, as he himself observed, was not in a position to ascertain whether the preliminary provisions in the Hungarian draft contained to a satisfactory extent the principles of socialist civil law, even if taking into account the current lower stage of the development of socialism in Hungary.⁴ A less rigorous and at the same time a less detailed letter was sent by the Institute of Legal Sciences of the Soviet Academy of Sciences (Antimonov, Bratus, Sadikov) to Gyula Eörsi in May 1958 (Bodzási, 2018, fol. 8, pp. 567ff).

As highly qualified jurists, although hardly being convinced communists, Pólay and Kemenes had important roles in the codification. They were appointed professors at the University of Szeged in 1951 and 1961, respectively. Pólay was especially renowned as a scholar of Roman law.⁵

As for the preparatory materials of the Civil Code of 1959, it is an advantageous recent development that on the basis of a mandate given by the Minister of Justice of Hungary these materials stored in the National Archives of Hungary were digitalised in 2015 and 2016 (Verebics, 2017, p. 12). These materials, amounting to 16,000 pages, were rendered accessible online in 2018 (Bodzási, 2018). A part of these documents was published in printed form in 2017, and the corresponding volumes are also accessible online.⁶

The materials mentioned above—typically typed, sometimes written with a pen, and sometimes printed—attest that the preparation of the Hungarian Civil Code of 1959 was carried out at a highly professional level. Excellent jurists who had been educated during the previous era took part in the work and clearly did their best. It is characteristic of the high professional standards that both a former project of the famous Professor of Roman law, Géza Marton (1880–1957),⁷ and a study written by Ferenc Mádl (1931–2012)⁸ were taken into account with regard to civil liability regulations.

The coming into being of the socialist equivalent of bona fides

In the framework of the present study, I will deal with the socialist transformation of two classical principles of private law, namely, that of ‘good faith and fair dealing’ (bona fides) and that concerning the prohibition of contracts ‘contrary to good morals’ (contra bonos mores).

The Bill of a Private Law Code for Hungary, published in 1928 mentioned above, contained, similar to the Swiss Civil Code (para. 1 of art. 2), the principle of ‘good faith and honesty’ (section 2) and also contained, like the French ‘Civil code’ (Code civil) (old art. 1133), the prohibition of contracts ‘contrary to good morals and public policy’ (section 973). From 1949 these concepts were regarded in Hungary as being incompatible with socialist civil law. These notions were regarded as expressions of the relationships of capitalism. This evaluation was reflected not only in the Hungarian legal literature of the 1950s but also in the subsequent decades.

Eörsi laid down in his monograph on the development of ownership published in 1951 that the principle of good faith applied in the traffic of goods, i.e., ‘good faith and fair dealing’ (Treu und Glauben) served as an instrument to moderate the impoverishment (‘proletarisation’) of small capitalists and to prevent anarchy. He regarded this principle as a reflection of the impotence and class character of the imperialist patrimonial law (Eörsi, 1951, II, 65, 388). In a later monograph published in 1965, Eörsi ascertained that ‘good faith and fair dealing’ had been inserted into the German and Swiss civil codes as an ‘alien body’ since these codes reflected the cold business mentality of capitalism. Eörsi added that the principle of good faith was a ‘rubber rule’ that generated legal uncertainty (Eörsi, 1965, p. 72).

In 1965 a monograph of Imre Sárándi was published about the abuse of rights. Sárándi explains that good morals, the habits of an honest man, and good faith and fair dealing are bourgeois principles, the content of which is always being established in accordance with the current class interests of monopoly capitalists (Sárándi, 1965, p. 69). In the following year, a monogra...