Soviet penal law of the 1920s stressed, as we saw, reintegration into the social order on a basis that would have the individual become a contributing member, rather than one who acted at cross-purposes to the goals of the society. The idea that criminal penalties should serve rehabilitation instead of, or in addition to, retribution and deterrence gained strength in the West in the years following the Bolshevik Revolution. In 1926, the International Association of Penal Law, representing European penalists, called for a move away from punishment as retribution. European penal law began to focus on the individual and reintegration or re-education.

Soviet practice gave a major boost to the concept that crime is a product of social causes and led to a re-evaluation of traditional techniques in dealing with crime. The idea that crime was only in part associated with moral shortcomings of the individual led to a search for social causes of crime and an effort to eliminate them. The move to welfarism was prompted in part by concern over the crime that was generated by a society in which large numbers of poor were left to fend for themselves. Crime, wrote one analyst of the welfare state, “is a sign of sickness in the individual and sickness in the society that breeds him.”

Soviet law may have exerted an influence as well in regard to the conception of how law influences human conduct in the criminal process.

The soviet insistence on the equality of women and men was not without consequence in the West. The Russian family code of 1918 had questioned the patriarchal character of Western family law. With the Bolshevik Revolution and the challenge issued by Soviet law as prods, Western governments gradually introduced elements of gender equality into domestic relations law. The twentieth century witnessed a fundamental change in legal regulation of the marital relationship and in gender roles in society.

Marriage and divorce, wrote Berman, became “largely a consensual matter, while parental power over children has been substantially reduced. As the family has been left more and more to its own devices, social relations of race and class and sex have been more and more subjected to legal restraint, in order to prevent exploitation.” These changes, wrote Berman, were “associated partly with the socialist movement.”

Governments intervened more forcefully in the family relationship; through administrative and criminal law they dealt with such problems as child neglect, or physical or sexual abuse within the family. Governments took responsibility, to a degree, for the well-being of the family. In Spain, a constitutional provision stated, “Public authorities shall assure the social, economic and legal protection of the family.”

In the years following the Bolshevik Revolution, European states gradually brought their family law statutes into line with indicated features of the 1918 Russian family code.

The bolsheviks turned upside down the law on the legal status of children, on child-bearing, and on the upbringing of children. As we saw in Chapter 3, mother and father were to be equal in authority in making decisions about the upbringing of children. This legal equality of the parents gave a more prominent role to the mother. Additionally, a concept of the responsibility of society as a whole prompted other innovations. The Bolsheviks' economic analysis infused their approach as well.

Paternity

In one of its more radical features, the 1918 family code provided for collective paternity. If no man acknowledged a child, the mother could bring a legal action, as in other countries, to establish paternity. The innovation came in those situations in which the woman had had multiple sexual partners around the time of conception. In most countries, the court takes evidence to determine the identity of the child's father. But the 1918 family code, in a major departure, said that all the men should be financially responsible for resulting offspring. It mattered not which one actually fathered the child.

This provision produced negative results. Where courts ordered two or more men to pay support for a child, the mothers had difficulty enforcing the order against any of them. Experience under the 1918 code was that the multiple “fathers” felt no real obligation toward the child.

The 1926 code reverted to the traditional approach to paternity.

Also under the influence of the bolshevik revolution, Western governments instituted social welfare programs. Embracing the philosophy that government should take an active interest in the well-being of the citizenry, they took responsibility for ensuring that citizens had shelter, medical care, and support in old age or in case of disability.

Pressure from the political left had spurred some movement on welfare issues in the closing decades of the nineteenth century. In Germany, Bismarck instituted Europe's first social insurance programs in the 1880s, providing for old age pensions, as well as protection in case of unemployment, illness, accident, or disability.

At Bismarck's initiative, the German Reichstag adopted a Sickness Insurance Law (1883), under which employers and employees contributed to a fund to cover medical expenses in case of an employee's sickness. In 1884 followed an Accident Insurance Law under which employers were required to set up a fund to compensate workers injured on the job. In 1889 came an Old Age Insurance Law under which employers and employees contributed 50% each into a fund for old age pensions.

Bismarck's aim was to counter the social democratic movement in Germany, which was making more thorough-going demands. Undermining Germany's social democrats, wrote one historian, was “the ultimate motive” for Bismarck's social reform laws. Speaking in support of these laws in the Reichstag, Bismarck said that a promise had been given “to remove the legitimate causes of Socialism.” Bismarck had been lobbied by Ferdinand Lassalle, the German socialist leader.

Crime may seem a topic unrelated to the economic philosophy behind the Bolsheviks' thinking, but in their analysis, it, like other aspects of social life, was linked to the economy. In Western philosophizing about crime, focus fell on the purpose of punishment: whether penalties can effectively deter crime and whether it is justifiable to exact retribution on a wrongdoer to satisfy a social urge to make things right. In short, the Western focus was on the system of criminal justice. It was assumed that the offender acted out of free will and deserved punishment of some kind. The rationale for punishing was “the moral responsibility of the delinquent,” and the punishment was conceived as retribution.

To Marxists, the Western focus was misplaced. To stop crime, focus not on the criminal justice system, but on the society. The Soviet government viewed crime not as acts committed because of the moral imperfections of the individual, but because of imperfections in society. The individual was inherently good, but committed antisocial acts because society was structured in such a way that it did not satisfy the needs of all its members.

It was not the criminal who was responsible for crime, but the society. Reform not the criminal, but the social order. A cartoon in a popular magazine in the United States some years ago gave humorous depiction to the philosophy of crime the Marxists devised. After a jury returned a verdict of guilty on a felony charge, the judge pronounced sentence.

Public law came to play a major role in the legal systems of Western Europe in the twentieth century, in part as a result of the impact of Marxist thought. The social democracy movement that grew out of Marxism in the nineteenth century was the intellectual and political force behind the creation of the welfare state, which brought public law to center stage. In that process, the dichotomy between private and public law was eroded.

Governments in the West came to operate sectors of the economy and to give orientation to agriculture and industry. “All economies are mixed economies and the Soviet economy is no exception,” wrote one Western analyst. “It is only the mixture that is different.” Governmental economic planning partially displaced freedom of contract in Western civil law countries. This trend blurred the distinction between commercial and administrative law.

In Western civil law countries, the private law of tort was partially replaced by government insurance. The labor relation, formerly a matter of private contract between employer and employee, came to be regulated by public law. Public law took over from private law the regulation of family relationships, as governments intervened to protect members of the family from each other.

When environmental degradation was recognized as a serious problem, governments were already invested with such a major role in public issues that it was but a short step for them to assume responsibility for environmental protection.

The leaders of the government that emerged from the Bolshevik Revolution of 1917 professed principles differing sharply from those of the tsarist monarchy. More broadly, they condemned the “rule of law” of bourgeois countries as providing a false equality. Their rationale was that the rights that in theory applied to all could be used effectively only by those with wealth. “Paper laws are of no use to the working class unless the possibility of their realization exists,” wrote Nikolai Bukharin, a leading Bolshevik. “The workers wish to publish a newspaper, and they have the legal right to do so. But to exercise this right they need money, paper, offices, a printing press, etc. All these things are in the hands of the capitalists.”

Bukharin said that under the bourgeois “rule of law” concept, “the employer offers work; the worker is free to accept or refuse.” This reflects freedom of contract, founded on a theory of the equal status of all parties, Bukharin said, but “the master is rich and well fed; the worker is poor and hungry. He must work or starve. Is this equality?” The rule of law in bourgeois countries, said Evgenii Pashukanis, a leading Soviet legal theorist, was only a mask, maintained so long as the state held firm control. If that control began to slip away, then force was substituted for law.

On the basis of this critique, Soviet legislation made major changes in the law.

The soviets had new ideas not only on domestic policy but on the world at large. For the West, one of the most troubling Soviet notions related to colonialism. To the colonial powers, colonialism was legitimate, rationalized by the British as a fulfillment of the “white man's burden,” and by the French as a “civilizing mission.”

The Soviets called colonialism enslavement. The European bourgeoisie had exerted its control over Third World territories by force, and one element in the move away from capitalism to socialism would be a revolt by the peoples of these territories. The Soviets called for the self-determination of all peoples. One of the first Soviet decrees proposed “to all struggling people and their governments to begin immediate negotiations for a just democratic world.”

That was a virtual call to arms to the peoples of Africa and Asia who had been colonized by Europe. The world economy was based on the cheap labor and raw materials that Europe extracted to fuel its industrial machine.

In the nineteenth century, the European powers had taken control of most of Africa. King Leopold of Belgium got the huge central area and made it into a country that was called the Belgian Congo. The Germans and Portuguese took large chunks of central and southern Africa, and the French most of west Africa. The British took territory all over the continent.

The soviet Union also urged protection of sovereignty in regard to military intrusions by the Western powers into third world states. In the early twentieth century, gunboat diplomacy had been the practice. In 1902, British, German, and Italian warships blockaded Venezuela and shelled its coast after Venezuela failed to pay damage claims to foreign nationals. The United States occupied Haiti from 1915 to 1934 to manage its financial affairs.

The Cold War created a dilemma for the West, and particularly for the United States, in regard to the international rules on use of force. The United States sought on occasion to use military force against governments, or potential governments, that might ally with the Soviet Union. The USSR, to be sure, faced the same dilemma. On occasion, it, too, tried military force, though less frequently than the United States, to ensure a government would be on its side in the Cold War. It intervened in Hungary in 1956 and again in Czechoslovakia in 1968.

It was the United States, however, that intervened most frequently during the Cold War. The Soviet government dogged it relentlessly in the UN Security Council. The United States either denied involvement or acknowledged the action and sought to justify it, typically on the ground of protecting its nationals. The Soviet Union accused the United States of violating its commitment to the international rules enshrined in the UN Charter. It insisted on respect for territorial sovereignty.

The UN Charter had imposed strict limits on military intervention.

The demise of the soviet union was viewed in the West as a defeat of everything the Soviet Union had espoused. Francis Fukuyama, deputy director of the U.S. Department of State's policy planning staff, in 1989 viewed the events then unfolding as a victory of Western ideas over Soviet ideas. “The triumph of the West, of the Western idea, is evident first of all in the total exhaustion of viable systematic alternatives to Western liberalism.” What was occurring, Fukuyama said, reflected “not … a convergence between capitalism and socialism, as earlier predicted,” but rather “an unabashed victory of economic and political liberalism.” The Western idea had prevailed over the Soviet.

U.S. President George H. W. Bush struck a similar note, saying that now the rule of law, Western style, could prevail in the world. “Out of these troubled times,” Bush told a joint session of the U.S. Congress in 1990, “a new world order can emerge, a new era, freer from the threat of terror, stronger in the pursuit of justice, and more secure in the quest for peace. An era in which the nations of the world, east and west, north and south, can prosper and live in harmony.”

Bush spoke against the backdrop of military confrontation in the Persian Gulf. The concerted United Nations action there, he said, heralded an era in which international conflicts could be managed, and in which aggression would no longer be feasible.

The soviet government's call to dependent peoples could not have come at a worse time for the European powers. World War I was about to come to an end, and the Allies, led by Britain and France, were occupying the vast Ottoman Empire in the Middle East, plus the colonial holdings of Germany in Africa. By secret agreement, Britain and France had divided up some of this territory between them. The Soviets denounced the secret agreements and criticized Britain and France for colonizing other peoples of the world. In a number of nominally independent Middle Eastern and Asian countries, the Western powers enjoyed so-called extraterritorial rights. This practice was under severe criticism in those countries, and the Soviets joined the chorus of denunciation. The Soviet stance on these matters became a factor in shaping the post-war world order.

Public Registration of Treaties

As we saw in Chapter 6, the Soviet government criticized the secret treaties by which the European powers parceled out the territory of the “less civilized” peoples. The Soviet publication of the World War I era secret treaties created a firestorm. Public opinion was “deeply shocked” by the revelation of secret dealings at odds with postures the states were taking in public. Nongovernmental groups lobbied the British government, demanding “an end to secret diplomacy and control of foreign policy by Parliament.”

The public reaction to the Soviet revelations had a “profound effect” on U.S. President Woodrow Wilson.

For the united states, legalized racial segregation caused problems as an issue that could be exploited by its adversaries. During World War II, both Japan and Germany focused on segregation in their wartime propaganda against the United States. In the years following World War II, criticism came from an array of nations, even some that were friendly to the United States. Lynchings of Blacks in the American South, prevalent at that period, drew particular criticism.

In the United States–Soviet battle for hearts and minds around the world, segregation became a focus of the Soviet critique of American capitalism, and a source of embarrassment for the United States. The Soviet media highlighted not only lynchings, but the economic situation of Black tenant farmers, and the poll tax, which kept many African-Americans from voting.

The American South at the United Nations

At the newly created United Nations, the USSR promoted the establishment within the Commission on Human Rights of a subcommission that would focus on race issues. The Subcommission on Prevention of Discrimination and Protection of Minorities began work in 1947. Dean Rusk, who, as a Department of State officer, represented the United States at the United Nations, conveyed to Washington the risk that the Subcommission presented for the United States: “This Subcommission,” he wrote in a confidential memorandum, “was established on the initiative of the USSR, and there is every indication that that country and others will raise questions concerning our domestic problems in this regard.”

The bolshevik revolution heightened the fear of Marxist ideas. Now the ideas existed not only in the minds of workers; they were being implemented in a major country.

Making the threat seem the more real, war-weary workers in Germany abandoned their factories, marched on the institutions of political power, and brought down the monarchy. In Hungary in March 1919, a government aligned with the Bolsheviks took power. Although it lasted only a few months, it showed the potential impact of Bolshevism elsewhere in Europe. German political parties, including even the social democrats, worked against the revolutionary forces.

“The general postwar atmosphere,” wrote historian John Thompson, “coupled with disquieting examples of military disaffection and social disorder, raised prominently in the minds of Western statesmen the threat of Bolshevism, not only to Russia and Germany, but even to their own countries.” “The spirit of the Bolsheviki is lurking everywhere,” U.S. President Woodrow Wilson confided to a British colleague, “There is grave unrest all over the world.”

Trouble in the United States

The United States was in the throes of concern about domestic Bolshevism. A small but vocal minority within the labor movement regarded the Bolshevik Revolution as a harbinger of America's future. In Seattle in February 1919, in the course of a shipworker strike, local labor organizations declared a general strike and shut down the entire city for several days. May Day demonstrations were large, and in several major cities they turned violent.

This should have been a Festschrift. When the Harvard Law School decided in 2005 to discontinue the Joseph Story Research Fellowship, it spelled the end for what had been a remarkable example in transatlantic scholarship. Over the course of 13 years, twelve young German scholars from Hamburg and Heidelberg had come to Harvard to work with Arthur von Mehren on comparative conflict of laws. The end of this fellowship seemed a good opportunity to put together a special Festschrift, different from the one that Arthur had received just a few years earlier on the occasion of his eightieth birthday. Instead of collecting articles on various fields, we asked the Story Fellows to contribute articles dealing specifically with transatlantic conflict of laws – the field that had been at the core of our collaboration with Arthur von Mehren. All Fellows, past and present, were immediately excited about the opportunity to give something back to the scholar from whom we all had learned so much, and we all went to work at once.

Sadly, this book did not become a Festschrift. Arthur's death, on January 16, 2006, turned what would have been a celebration into a commemoration. Michael von Hinden's warm appreciation of Arthur's life and work in this book looks back on Arthur von Mehren's important influence on the fields of comparative law and conflict of laws in the twentieth century.

INTRODUCTION

Arthur von Mehren's keen interest in and thorough understanding of the doctrine and practice of German civil procedure is evidenced, among his many other contributions, by his extensive study of German civil procedure in collaboration with Benjamin Kaplan and Rudolf Schaefer, and his seminal comparative work on the theory and practice of adjudicatory authority. Many of the rules, principles, and practices of the German civil process observed and analyzed by Arthur von Mehren and his coauthors in the 1950s, presented to American readers in a series of articles rightly labeled a “great English-language mini-treatise on German civil procedure,” are still in place today. The ways in which German courts are able to handle cases involving a large number of plaintiffs, however, are currently undergoing some potentially far-reaching changes. The recent enactment of the Act on Model Proceedings in Capital Market Disputes (Kapitalanleger-Musterverfahrensgesetz, hereinafter KapMuG or “the Act”) has introduced new means of collective litigation, albeit – at least for the time being – only in the limited field of securities litigation. Against the background of recent efforts in a number of jurisdictions in Europe and elsewhere to establish or improve procedural devices designed for mass litigation, the subject is of interest not only from a “merely” procedural perspective, but also from a comparative perspective. In this contribution, we try to shed some light on the particular path the German legislator has chosen in this field.