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| Pix credit El País, Dying for the Revolution |
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| Pix credit The New Humanitarian |
Versión en Español aquí
Secretary of State Marco Rubio said Monday that Cuba has “already fallen” and is a “failed state” as tensions rise between the U.S. and island nation. Well, the truth is Cuba has already fallen,” Rubio told Fox News’s Sean Hannity. “It does not have a functional economy, and it is governed by people who continue to preach about some revolution that has been dead for 20 years. It’s never worked.” * * * He added that Cuba’s problem “is, basically right now, it is a failed state in every sense of the word.” “Now they may have a government that’s capable of jailing and killing people, they have a regime capable and has jailed and killed people, but it’s not a functional government and it’s not a functional country,” the secretary of State continued. “It just simply isn’t. And in addition to that, it is one that’s fueled by corruption and theft.”* * * He added that the U.S. hopes some of the island’s officials “open their eyes” to reshape the government internally and eventually bring “economic freedom” and “political freedom first.” “That will require a period of transition,” he told the host. “Unfortunately, the people that continue to chant revolutionary slogans –– too many of them still believe that they can wait out this administration and make no changes and do nothing. They are wrong and they will learn the lesson the hard way if they don’t correct.” (Rubio says Cuba has ‘already fallen’: ‘It is a failed state’ )
The Cuban state, on the other hand, sees something positive emerging from the current state of affairs (Cuba y el trabajo constante por una mejor sociedad: "«Para nosotros no tiene sentido el crecimiento económico si no tiene impacto en el desarrollo social; para nosotros no tiene sentido generar riqueza económica si no tiene un impacto y un apoyo a los programas sociales y, sobre todo, que la riqueza que construyamos se distribuya con un concepto de justicia social»; but see Cuba and the Constitution of a Stable State of Misery: Ideology, Economic Policy, and Popular Discipline).
As the situation in Cuba comes closer to some sort of resolution along a very broad spectrum of possibility, the aftermath (perhaps more than the process of moving from one stage of Cuban historical development to the next) deserves some consideration. That consideration is usually very strategic and objectives oriented. Lamentably that all-too-human approach might merely continue the cyclical process of the Cuban tragedy that acquired its modern form during the 19th century, reproduced in a variety of forms, some violent, ever since.
In that context it might be useful to start with first principles--with the prior commitments, largely unexamined of the normative and cognitive commitments of the social, cultural, and political order. This sort of exercise advances no one's immediate interests--all the more reason for engaging in the exercise) about the nature of legal transition in Cuba (transition that may in the end move Cuba to a different model of Marxist Leninist legality the importation of which has been resisted since the 1990s, and perhaps with good reason, or on the other end of the spectrum to some sort of new adventure in liberal democracy or at least its forms. From the perspective of legality one might start with a critical examination of what counts, or ought to count, as law, as politics, as scholarship, as justice, upon which the entire enterprise of a political-legal system is grounded and which tend to be assumed away without a second thought as something given, natural, unavoidable, internal, etc.
Those consideration led me to a first effort at something like an analysis of these first principles and their pragmatic effects on the project of Cuban reconstruction in the form of an essay, Reconstructing Legality in Cuba: Challenges for Policymakers, Academics, and Civil Society in Reforming the Political-Economic Model of Caribbean Marxism-Leninism, which follows below.
This summary distills the principal findings and policy-relevant conclusions of Reconstructing Legality in Cuba. The essay addresses a question of practical consequence for anyone engaged with Cuba’s institutional future: how might a legal order be reconstructed under a regime that, while not liberal-democratic, moves beyond the political-economic model formally adopted by the Communist Party of Cuba (PCC) and implemented by the State through its constitutional, administrative, and operative apparatus? The analysis is addressed to policymakers, academics, economic actors, and civil society—both within Cuba and in its diaspora.
Opening Note
The reconstruction of legality in Cuba is not an exercise in legal engineering. It is a problem of political imagination constrained by institutional history. I will suggest a "Bologna analogy," tat the exercise is closer to the incorporation of a recovered Roman law in late medieval Italy than it is a process of return to a pristinely preserved prior state of still viable indigenous legality. That is, I will suggest, is more apt than the metaphor of return: what is required is the reconstruction of a legal corpus from materials produced by a different system—materials that bear the imprint of their origin but that can be reworked for new purposes within a new institutional framework.
Nothing about this is simple. Nothing about it can be accomplished quickly. And nothing about it can be imposed from outside without reproducing the very logic of domination that the reconstruction aims to overcome. The reconstruction of legality in Cuba is, ultimately, a project that must be undertaken by Cubans themselves—all factions, all sectors, including the diaspora—working with and through the materials that their own history has produced, toward a future that none of the currently available cognitive cages can fully anticipate.
Core Diagnosis
The essay identifies a central paradox: any reconstruction undertaken while the political-economic model is being reformed must be built with materials produced by the very system being transformed. There is no tabula rasa; no pristine civil-law substrate waiting to be uncovered once an ideological varnish is removed. The metaphor of varnish-removal presupposes what it would need to demonstrate—namely, that a stable civil architecture exists underneath. It does not, or at least not in any operationally meaningful sense.
The institutions, doctrines, professional habits, constitutional vocabulary, and political culture of Cuban law have been shaped by decades of operation within a Marxist-Leninist framework. The challenge is not merely to replace one legal order with another, but to re-establish continuity in legality while articulating a new vision of the relationship between law and politics—one that acknowledges the history of the system without remaining captive to it.
Key Insights
1. The Marxist-Leninist Inheritance: Private law was rendered conceptually impossible. Under Marxist-Leninist theory, the public-private distinction dissolves. All property is fundamentally collective; the State is its custodian. Private autonomy was, as Cuban doctrine itself recognized, “dry and infertile.” The normative migration drained private law of content, transferring its regulatory framework to administrative and economic law. By 1968, the Civil Code and Commercial Code had lost virtually all effectiveness. The curriculum followed: Mercantile Law, Mortgage Law, and Corporate Law disappeared as “bourgeois.”
Unjust enrichment served structural transformation. The Marxist-Leninist reconfiguration of legal institutions was not merely punitive; it was structurally unidirectional. Under both Soviet and Cuban approaches, legal institutions were reconfigured so that only the State could be the beneficiary of corrective transfers. Decree-Law 149/1994 represents the domestic face of the same logic that Castro deployed internationally in the odious-debt discourse from 1985 onward. Both rest on a single conceptual foundation: that accumulation under capitalist or imperial conditions is inherently suspect.
2. The Soviet-Eastern Bloc Template: The 1975–76 coordinated rupture—the first PCC Congress, the Socialist Family Code, the Socialist Constitution, all contemporaneous with the East German Zivilgesetzbuch (ZGB)—was not a selective borrowing. It was a structural transformation. Whatever civil-law forms survived in Cuban codes arrived through the ZGB’s own retention of Bürgerliches Gesetzbuch architecture. The reconstruction challenge is, in this sense, the mirror image of the transplant.
3. The Impossibility of Return: The interruption between 1959 and 2026 spans sixty-seven years—longer than Cuba’s First Republic. Institutional memory has been displaced not only by deliberate policy but by the passage of time. Curricular capture eliminated entire fields of legal knowledge. The diaspora’s internalized legal frameworks—principally U.S. common law—function as foreign law in the Cuban institutional context. And Cuba has developed what the essay calls a “stable state of misery”: a precarious equilibrium sustained by the discipline of scarcity, which any reconstruction must avoid destabilizing without offering a functional alternative.
4. The Paradox of Continuity and the Bologna Analogy: The essay proposes that the appropriate analogy for Cuba’s situation is not the restoration of a lost legal order but the reception of Roman law in twelfth-century Bologna. The Glossators did not inherit Roman law as living practice; they received it as a textual corpus to be reconstructed for new purposes within a fundamentally different institutional framework. Cuban scholars are in an analogous position. The doctrinal reconfiguration undertaken by Cuban academics in the 1990s and 2000s may represent not the triumph of civil-law normativity over Marxist-Leninist ideology, but the construction of a parallel academic discourse—one directed at an international audience and operating under the tolerance (not the defeat) of the political establishment. This is what the essay calls “Potemkin jurisprudence”: technically accomplished, genuinely learned, but structurally incapable of affecting the operative legal order it purports to reinterpret.
5. Three Visions of Law and Politics. The essay identifies three competing visions: (a) republican formalism, which treated legal forms as self-sufficient and deliberately insulated property arrangements from distributive inquiry; (b) Marxist-Leninist instrumentalization, which reduced law to a “transmission belt” of political power; and (c) the Justinianic question—the recovery of justice as an independent evaluative standard that neither the pandectistic tradition nor the Marxist-Leninist instrumentalization has provided. Both reduce the tripartite Justinianic relationship of law, justice, and jurisprudence to a binary, eliminating justice from the equation.
6. The Cognitive Cage and Re-Sovietization. The Conceptualización del modelo económico y social cubano de desarrollo socialista, adopted through the PCC’s Seventh Congress in 2016, constituted an act of re-Sovietization: the explicit reaffirmation of the primacy of state property, the leading role of the Party, and the prohibition of the concentration of wealth in non-state hands. The PCC’s ideological ossification—its treatment of foundational ideology as divine scripture, immutable and immovable—contradicts the very premise of Marxism: that theory must evolve to reflect changing conditions of historical development. The Party’s cognitive cage sets the boundaries within which legality may develop.
7. Two Cubas: Formal and Informal. The formal and informal economies coexist in a relationship of mutual necessity. The informal economy has produced its own institutional-legal cultures: barter systems, trust networks, customary dispute-resolution mechanisms, and a transnational lex mercatoria grounded in the customs and traditions of its participants. It is in the informal sector, more than in any imported model, that the seeds of an indigenous development of the kind of robust civil element essential to a stabilizing legal-institutional system may be found.
8. Comparative Horizons. The Chinese experience suggests that the separation of political power (residing in the vanguard party, above the constitution) from administrative power (exercised through state organs, subject to constitutional constraints) is viable within Marxist-Leninist parameters. The European post-socialist transitions offer a cautionary lesson about the arrogance of liberal-democratic elites who assumed that miniature replicas of liberal democracy would spring spontaneously from the ashes of the prior system. The Vietnamese model of gradual opening within Party-State continuity has been cultivated as a reference point.
9. The 2019 Constitution’s Internal Contradiction.The 2019 Constitution simultaneously recognizes propiedad privada and prohibits the concentración de la propiedad. This internal tension—which reflects the Conceptualización’s constraints—means that any reform proposal must navigate between constitutional recognition of private property and the Party-doctrine prohibition on its accumulation.
10. Conditions of Possibility. The essay identifies several technical-doctrinal dimensions that merit attention: (a) the concept of Vermögenszuordnung (attribution of assets) as a tool for reconstructing the logic of unjustified enrichment beyond the punitive Soviet framework; (b) the residual neutrality of the ZGB as a technical starting point; (c) the perversion of subsidiarity—the inversion of the principle that collective action is justified only when individual action is insufficient; and (d) the systemic integration of Article 67(a) as a pathway to reconnect codified provisions with a coherent legal logic. Practical implications extend to pending Helms-Burton litigation, international arbitration over expropriated investments, and post-transition planning.
The following phased steps are offered not as a blueprint—blueprints presuppose a degree of certainty that the Cuban situation does not permit—but as a framework for organizing reform efforts. The phases are not strictly sequential; several may proceed in parallel, and all are subject to revision as conditions develop.
Phase 1: Diagnosis and Inventor
1. Map the operative legal order. Conduct a comprehensive inventory of the legal order as it actually operates—not as codified texts describe it—distinguishing between law on the books and law in practice. This includes the informal economy’s customary norms and dispute-resolution mechanisms.
2. Audit the institutional and personnel gap. Assess the state of legal education, the availability of trained personnel in private law, commercial law, and comparative law, and the capacity of existing institutions to absorb doctrinal change.
3. Catalogue the claims and property exposure. Inventory pending and potential claims under the Helms-Burton Act (Title III), international arbitration commitments, and the domestic confiscatory apparatus built on Decree-Law 149/1994 and related instruments.
Phase 2: Doctrinal Reconstruction
4. Confront the normative logic of Marxism-Leninism. Engage with the inherited normative system not as contamination to be purged but as a normative order with its own internal coherence that must be understood before it can be transcended. The error to avoid is treating Marxist-Leninist theory as exogenous to the legal system.
5. Rearticulate the law-politics-justice relationship. Develop a conception of justice that operates as an independent evaluative standard—one that overcomes both pandectistic abstraction and Marxist-Leninist instrumentalization. This requires recovering the Justinianic tripartite relationship.
6. Exploit the ZGB’s residual technical neutrality. Use the ideologically neutral architectural elements retained in the Civil Code from the East German Zivilgesetzbuch as a technical starting point for doctrinal reconstruction, while recognizing that these elements carry the imprint of their origin.
Phase 3: Institutional Capacity and Training
7. Reform legal education. Reintroduce private law, commercial law, comparative law, and legal theory beyond the Marxist-Leninist framework into the law school curriculum. Train new generations of jurists with competencies that the curricular capture of the past six decades eliminated.
8. Engage the diaspora as a resource, not a model. The Cuban diaspora’s experience in diverse legal systems constitutes a resource of significant value, but diaspora law functions as foreign law in the Cuban context. Engagement must be collaborative, not prescriptive.
9. Re-establish scholarly exchange. Rebuild academic exchange with the international legal community, including the Spanish and Latin American academy, on terms that permit scholarship to reach the operative legal order rather than producing Potemkin jurisprudence for international consumption.
Phase 4: Integrating the Informal Economy
10. Recognize the informal economy’s institutional-legal cultures. The barter systems, trust networks, customary dispute-resolution mechanisms, and transnational commercial practices of the informal economy represent indigenous legal development. Any reform that ignores this sector disregards the most authentic source of Cuban civil-law practice.
11. Build bridges between formal and informal legality. Develop mechanisms for the gradual integration of informal practices into the formal legal order without destroying the functional norms that have sustained economic activity outside the state sector.
Phase 5: Property and Claims Resolution
12. Develop a framework for property claims. Address the intersection of domestic confiscation (rooted in the Marxist-Leninist enrichment doctrine) and international claims (Helms-Burton, international arbitration). Recognize that the domestic confiscatory logic and the Castro-era odious-debt discourse share a single conceptual foundation that a successor regime will need to confront simultaneously from both directions.
13. Navigate the 2019 Constitution’s property provisions. Any property reform must work within or seek amendment of the constitutional tension between the recognition of private property and the prohibition on concentration of property—a tension that reflects the Party’s doctrinal constraints.
Phase 6: Institutional Differentiation
14. Separate political direction from administrative implementation. This does not necessarily require dismantling the PCC or adopting a multiparty system. It does require that the political work of the Party—the determination of objectives and priorities—be institutionally distinguishable from the administrative work of the State—the implementation of those objectives through an institutional machinery subject to the rule of law. The Chinese experience demonstrates that this separation is possible within a Party-State system.
15. Address the chain of command. Clarify the relationship among Party Congresses, the Lineamientos, constitutional provisions, and the operative codes, so that the legal significance of any codified provision can be understood independently of shifting Party doctrine.
Phase 7: International Engagement and Monitoring
16. Prepare for international legal exposure. A successor regime will simultaneously face odious-debt claims from abroad, the need to dismantle a domestic confiscatory apparatus, and the imperative to construct a legal-institutional framework capable of attracting investment, protecting property rights, and providing the certainty and predictability that economic actors require.
17. Establish monitoring and feedback mechanisms. Build into any reform process the capacity for iterative assessment, so that reconstruction can be adjusted as its effects become apparent—avoiding the arrogance of the assumption that any single model, whether liberal-democratic, Marxist-Leninist, or nostalgic-republican, can anticipate the full range of consequences.
* * *
Quality Checklist for Reform Proposals
The following questions are offered as a diagnostic instrument. Any reform proposal that cannot answer these questions affirmatively, or that has not seriously considered them, is likely to reproduce—in different doctrinal clothing—the structural deficiencies it purports to correct.
Continuity and Materials
☐ Does the proposal work with and through the materials produced by the existing system, rather than assuming a clean slate?
☐ Does it acknowledge the institutional layers—colonial, republican, revolutionary, Soviet, informal—rather than treating only one as authentic?
☐ Does it avoid the varnish-removal fallacy—the assumption that a civil-law architecture exists intact beneath the Marxist-Leninist overlay?
Avoidance of Nostalgic Return
☐ Does the proposal avoid presupposing a return to pre-1959 legal forms, given that sixty-seven years of institutional displacement have made such a return historically irreproducible?
☐ Does it treat diaspora legal expertise as a resource rather than a template, recognizing that diaspora law functions as foreign law in the Cuban institutional context?
Justice as Independent Standard
☐ Does the proposal articulate justice as an independent evaluative criterion, rather than reducing law to either a technical system (pandectistic abstraction) or a political instrument (Marxist-Leninist transmission belt)?
☐ Does it recover the tripartite relationship of law, justice, and jurisprudence—or does it simply substitute one binary (law-politics) for another (law-technique)?
Scholarship and Operative Law
☐ Does the proposal create conditions under which legal scholarship can reach and affect the operative legal order, rather than producing internationally respectable but domestically inert academic output?
☐ Does it ensure scholarly autonomy sufficient to permit genuine doctrinal development, rather than scholarship that operates within a cognitive cage defined by Party doctrine?
Constitutional Coherence
☐ Is the proposal consistent with the 2019 Constitution’s property provisions—or, if it requires constitutional amendment, does it acknowledge and plan for that?
☐ Does it address the internal tension between the constitutional recognition of propiedad privada and the prohibition on concentración de la propiedad?The Informal Economy
☐ Does the proposal engage with the institutional-legal cultures of the informal economy—barter systems, trust networks, customary dispute resolution—as indigenous legal development?
☐ Does it avoid the error of imposing a formal framework that destroys functional informal norms without providing a viable substitute?
Stability
☐ Does the proposal account for the "stable state of misery"—the precarious equilibrium sustained by the discipline of scarcity—and avoid destabilizing it without offering a functional alternative?
☐ Does it phase reform to minimize the risk of the kind of dislocation that produced a generation of tragedy in other post-socialist transitions?
International and Claims Exposure
☐ Does the proposal address pending and potential international claims—Helms-Burton Title III litigation, international arbitration, odious-debt arguments—and their interaction with domestic confiscatory instruments?
☐ Does it prepare for the simultaneous challenge of confronting claims from abroad while dismantling a domestic confiscatory apparatus?
Cognitive-Cage Awareness
☐ Does the proposal avoid reproducing a cognitive cage—whether Marxist-Leninist, liberal-democratic, or nostalgic-republican—that constrains the range of institutional possibilities?
☐ Does it acknowledge that none of the currently available frameworks can fully anticipate the institutional forms that a reconstructed Cuban legality may require?
* * *
The paper follows below and may be accessed HERE.
