Cuban legal system: socialist legality: welfare of society ahead of individual rights
Debra Evanson is regarded as the leading American authority on the Cuban legal system. She has published widely in this area. She describes herself as a critical supporter of the Cuban Revolution.
The following material should not be seen as an uncritical analysis of the Cuban system, nor as an acceptance of its practical effects. The Cuban system is analysed as an expressly socialist legal system which gives deep insight into the English capitalist system.
Evanson’s work has been described by contemporary academics as a penetrating analysis of how law and society interact in a revolutionary setting. Her views include the following:
Cuba is described as a democratic-centralist state organized according to a Marxist-Leninist model. The Supreme Court of Cuba is the country’s highest judicial branch of government and also operates as a court of last resort for appeals from lower courts.
Cuba is divided into 14 provinces and numerous municipalities. Provincial courts deal with serious crimes, civil matters including divorce, and appeals from municipal courts. Municipal courts are courts of first instance for less serious crimes and civil matters.
The Cuban legal system reflects Cuba’s historical status as a Spanish colony. It is a civil law country with an emphasis on written codes rather than judicial precedent as sources of law. The inquisitorial system of criminal procedure is similar to that of France and Spain.
Aspects of the Cuban system
Husbands are legally obliged to share equally in household chores and child rearing.
Mortgage payments are set at a maximum of 10 percent of salary.
Personal injury lawsuits are rare.
Lay judges, chosen from the workplace, sit alongside traditional judges at trials.
The welfare of society is put ahead of individual rights.
In balancing social good with individual interests, the emphasis is on collective welfare. There is a deep sense of community.
In 1994, a severe economic crisis resulted from the collapse of the Soviet bloc. One consequence of this was that it was thought that more lawyers were needed. New areas of law have been developed, including tax, trademark registration, a new labour code, consumer rights, an updated contract, a new criminal code and bankruptcy.
The Cuban revolution of 1959 was based on humanistic and egalitarian aims. These included gender and race equality, the redistribution of wealth, land reform and the realisation of social and economic rights to housing, health care and education.
The legal system was of minor relevance to these aims. During the early part of the Castro regime, law comprised a large number of decrees made by the revolutionary leadership.
In 1976 a new Constitution came into force, together with new codes dealing with, for example, the legal profession, the judicial system, employment law and criminal justice. Legislation came to be seen as a primary instrument for social change.
The central, general aim of the revolution has been the creation of a system of economic well-being founded on the equitable distribution of resources. Achievements in universal free education, health care and equality are now regarded in Cuba as fundamental rights. It is generally recognised that individual freedoms have been subordinated to these collective aims. It is clear that those who oppose the socialist system are subject to limitations on their freedom of expression and association.
The question of human rights in Cuba can only be properly considered in the context of the fact that the United States has continuously attempted to undermine and destabilise Cuba’s government. These attempts have included an invasion, assassination attempts, an economic embargo and travel restrictions.
The origins of Cuban law
American and Spanish colonialism have had a significant influence on Cuban law. For example, the Spanish Penal Code was in force until 1979 and the Spanish Civil Code until 1987. Slavery was not abolished in Cuba until 1886.
Before the Revolution, Cuba was notorious as a haven for organised crime controlled from the US.
After the Revolution, law was made by the post-revolutionary Council of Ministers. Early legislation included agrarian reform and nationalisation. Revolutionary Tribunals and people’s courts were created.
The Cuban concept of socialist legality
Law must establish the basis for social stability and create the conditions for social development.
Socialist legality includes the value system according to which laws are evaluated and amended, as well as the method by which the state governs society.
Socialist Constitutions are dynamic agents in the evolution of communism.
This can be contrasted with capitalist Constitutions which preserve the status quo.
Key elements of “socialist legality”
An emphasis on substantive rather than judicial measures of justice.
The use of law as a pro-active tool for socialist development.
Limited use of formal legal mechanisms for the resolution of private disputes.
The use of informal “social courts” to resolve, for example, housing and labour disputes.
Direct citizen involvement in judicial and crime control processes.
State-organised law collectives to provide free or low-cost legal services.
Commentators have analysed legal developments in post-revolutionary Cuba according to four phases:
From 1959 (the year of the revolution) to the early 1970s: a period of revolutionary experimentation, for example the creation of People’s Courts without the involvement of the legal profession.
From the early 1970s: a phase of institutionalization, for example the creation of a new Constitution, the development of a hierarchical and more formal court system and the creation of bufetes colectivos.
The mid 1980s: a “rectification” phase including a new penal code.
The “special period” of severe economic crisis following the collapse of the Soviet bloc.