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| Pix credit El País, Dying for the Revolution |
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| Pix credit The New Humanitarian |
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 considerations 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 full paper follows below and may be accessed HERE.
Reconstructing Legality in Cuba:
Challenges for Cuban Policymakers, Academics, and Civil Society
in Reforming the Political-Economic Model of Caribbean Marxism-Leninism
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar
Professor of Law and International Affairs, Penn State Dickinson Law
Abstract
This essay examines the challenges that Cuban policymakers, academics, economic actors, and civil society would face in reconstructing a legal order beyond Caribbean Marxism-Leninism—under a regime that, while not liberal democratic, is no longer tethered to the political-economic model formally adopted by the Communist Party and implemented through the State’s constitutional, administrative, and operational apparatus. The analysis proceeds from a central paradox: any reconstruction undertaken while that model is being reformed or replaced must be built from the materials produced by the very system being transformed. The essay identifies the foundational problems confronting such reconstruction: the structural impossibility of “private law” under Marxist-Leninist theory, the dissolution of justice as an independent evaluative standard in both formalist and instrumentalist legal traditions, the role of scholarly communities operating under conditions of constrained intellectual autonomy, and the re-Sovietization of Cuban political-economic doctrine that has hardened rather than relaxed the orthodox framework. Drawing on comparative analysis of Chinese, Vietnamese, and post-Socialist European experiences, the essay argues that the path to legal reconstruction requires confronting—not merely replacing—the normative logic of the system from which it emerges, and that the relationship between law and politics must be rearticulated around a conception of justice that neither the pandectistic tradition nor Marxist-Leninist instrumentalism has adequately supplied. The essay ends with an action plan for reform that draws on the key insights developed in the essay to produce a six phase framework for organizing reform and “Quality Checklist” for reform proposals.
I. Introduction
The pressures on the Cuban legal order are real enough, though their direction and their ultimate consequences remain more uncertain than either advocates of regime change or defenders of the status quo tend to acknowledge—what one sees depends substantially on the cognitive cage from which one looks. The protective insulation that was provided to the Republic of Cuba by its Soviet protectors and, paradoxically, by the United States embargo has long since disappeared.[1] The revolutionary leaders around whom both state and Party were organized are leaving or have left the scene. The re-establishment of diplomatic relations with the United States, however fraught with its own complications, marked the end of a particular form of isolation. Yet the political-economic framework adopted at the Seventh Congress of the Cuban Communist Party (PCC) in 2016—the Conceptualización del modelo económico y social cubano de desarrollo socialista—reaffirmed with renewed vigor the primacy of socialist state property, the leading role of the Communist Party, and the prohibition on concentration of property and wealth in non-state hands,[2] effectively freezing movements toward reform within a Marxist-Leninist framework and aligning the operative model with the trajectory originally proposed at the First Congress of 1976.
This essay takes as its starting point the question that follows: what would legal reconstruction look like in a Cuba that has moved beyond the political-economic model formally adopted by the Communist Party and implemented through the State—not toward liberal democracy, but toward some alternative configuration that is no longer bound by the cognitive cage of Caribbean Marxist-Leninist orthodoxy? The question is not speculative in the way that constitutional design exercises for hypothetical states are speculative. It engages real materials, real institutional histories, and real constraints. The Cuban legal order has not been static; it has been shaped by colonial layering, Republican formalism, revolutionary rupture, Sovietization, the crisis of the Special Period, the tentative openings of the Lineamientos, and the retrenchment of the Conceptualización. Any reconstruction must work with and through these accumulated strata.
The central paradox of reconstructing legality while reforming or replacing the adopted political-economic model is this: the materials from which any “new” legal ordering must be constructed are heavily connected to the text and spirit of the system from which it will emerge. One looks in vain for a blank slate, or for a pristine civil-law substrate waiting to be uncovered once the ideological varnish is removed—the metaphor itself presupposes what needs to be demonstrated, that there is a stable civilian architecture underneath. The institutions, the doctrines, the professional habits, the constitutional vocabulary, and the political culture of law have all been shaped by decades of operation within a Marxist-Leninist framework. The challenge for Cuban policymakers, academics, economic actors, and civil society is therefore not merely to replace one legal order with another, but to re-establish continuity in legality while articulating a new vision of the connection between law and politics—one that acknowledges the system’s own history without remaining captive to it.
II. The Inheritance: What the Marxist-Leninist Legal Order Produced
Any serious engagement with the problem of reconstructing legality while reforming or replacing the adopted political-economic model must begin by understanding what the Marxist-Leninist legal order actually produced—not as an abstract ideological category, but as a concrete institutional reality with specific effects on the structure of law, the organization of property, and the possibilities of private ordering.
A. The Impossibility of Private Law
What may be the most consequential challenge—and the least intuitive—is that there may be no “private law” in Cuba to which one can return. Under Marxist-Leninist theory, the public-private distinction is dissolved. All property is fundamentally collective; the state is its custodian. Private autonomy was, as Cuban scholarship itself has acknowledged, “dried and unfertile.”[3] Normative migration left private law “void of content” while its regulatory framework moved to administrative and economic law. By 1968, when the remaining bars, restaurants, barbershops, and corner shops were transferred to the State, the Civil Code and the Commerce Code lost almost all effectiveness. Trade and Corporate Law and Mortgage Law courses completely disappeared from the curriculum as they were considered “of bourgeois nature.”
What was called “private law” during the Socialist period was not private law at all but an administrative residuum clothed in civil law forms. The familiar metaphor of Marxist-Leninist ideology as “varnish” on a civil law substrate—ideology merely coating the surface of an underlying civilian architecture—can and should be inverted. After 1959, it may be more accurate to say that the Marxist-Leninist state was the substance, and the civil law forms were merely decorative remnants lacking conceptual coherence. If Marxist-Leninist theory collapses the public-private distinction—if all property is fundamentally collective, if private autonomy has no operative content, if the law is a transmission belt for political power under the dictatorship of the proletariat—then the persistence of a Civil Code is evidence of formal continuity, not substantive existence.
This means that reconstruction of legality beyond the inherited political-economic model faces a foundational problem that is often underestimated: there is no living “private law” to which one can “return.” The scholars of the 1990s and 2000s who reframed legal institutions within the German Rechtsgeschäft framework via what might be called the “Late Spanish Connection”—the renewal of scholarly exchange with Spain and Latin America after the fall of the Soviet Union—were not recovering something that Cuban law had lost; they were acquiring something that Cuban law had never operationally possessed in its Marxist-Leninist incarnation. The better analogy is the reception of Roman law in twelfth-century Bologna—the reconstruction of a dead textual corpus within a fundamentally different institutional reality. The Glossators and Post-Glossators did not inherit Roman law as a living practice; they received it as a textual corpus to be reconstructed, reinterpreted, and put to new uses within a fundamentally different political and institutional framework.
B. The Structural Transformation: The State as Sole Beneficiary
The Marxist-Leninist transformation of legal institutions was not merely “punitive” in the colloquial sense of harsh or excessive. It was structurally unidirectional. Under Soviet and Cuban approaches, legal institutions were reconfigured so that only the state could be the beneficiary. In both systems, it became impossible for individuals to launch claims against the state or its instruments—which theoretically included all the means of production, directly or indirectly. The 1922 Bolshevik Civil Code’s Article 402 was explicit: whoever has been enriched at the expense of another by reason of an act contrary to law or prejudicial to the State is bound to surrender to the State whatever he has unjustly obtained. Lenin gave express instruction to enlarge the interference of the State with relations pertaining to “private law” and to enlarge the right of the government to annul, if necessary, private contracts.[4]
In a system where the state owns all means of production, the individual-to-individual corrective function of private law was structurally foreclosed because there were—conceptually—no private patrimonies capable of being “enriched” or “impoverished” in the meaningful sense. Everything belonged to the collective; the state was the collective’s custodian; therefore, any “undue” enrichment was necessarily enrichment at the expense of the collective. This structural transformation is not a detail of legal history; it is arguably the most consequential feature of the legal order that any reconstruction must confront.
The domestic logic of undue enrichment also has an international face. From 1985 onward, Fidel Castro recast the classical doctrine of odious debt associated with Sack. Traditional doctrine asked whether a successor state could repudiate debts contracted by an illegitimate predecessor; Castro’s systemic-illegitimacy account instead questioned the legitimacy of the global lending system itself, treating it as the economic continuation of the old European imperial order and as a mechanism that reproduced subordination and exploitation.[5]
The connection usually missed is that domestic enriquecimiento indebido and the international odious-debt argument share a single Marxist-Leninist conceptual foundation. Both begin from the proposition that accumulation under capitalist or imperial conditions is inherently suspect: the individual is “unduly enriched” at the expense of the collective, while the creditor state’s lending perpetuates the subordination of debtor states. Decree-Law 149/1994, with its focus on outbursts of wealth in private hands, is therefore the internal face of the same logic that Castro deployed externally against the global financial system.
The civil actions brought in 1999–2000 in the name of “the people of Cuba”—seeking “human damages” and “economic loss” from “unlawful acts that have affected the people of Cuba throughout the historical process of the Cuban Revolution”—were the domestic-litigation equivalent of this international claim. A successor regime may consequently have to confront traditional odious-debt claims from outside while dismantling a domestic confiscatory apparatus built on the same premise. The division between a civil restitutionary register and an administrative confiscatory register is not merely doctrinal; it reflects the dual deployment of one Marxist-Leninist logic, directed inward against private accumulation and outward against creditor power.
C. The Forces of Conservation and Rupture
Cuban legal history from colonial times through the present is characterized by a persistent tension between forces of conservation and forces of rupture. The forces of conservation include path dependence—the tendency of institutional arrangements to persist through inertia—Latin American cultural gravitation, civil-law structural persistence, and the embedding of legal forms in the nationalist foundational narrative. Cuba’s attachment to the regional Hispanic civil-law sub-family exerted a counteracting cultural-legal force against the ideological pull of the Soviet Union and the Eastern Bloc throughout the revolutionary period.
The forces of rupture operated through at least four forms of capture. Formal-structural capture began with the swift takeover of the judiciary days after January 1, 1959, and continued through the repeal of formal legal validity of pre-revolutionary law. Functional capture contracted the substantive scope of private law and eliminated entire domains. Ideological capture imposed desuetudo and class-obsolescence on “bourgeois” legal categories. And curricular capture transformed legal education itself—introducing Marxist-Leninist legal theory, replacing pre-revolutionary textbooks, and eventually installing Soviet-trained faculty in positions of authority. The pre-1959 legal cultural baseline—characterized by layering, late codification, customary practices, resistance to legal transplants, and the embedding of legal forms in the nationalist foundational narrative—shaped both the anatomy of the Socialist legal transplant and the possibilities for any future reconstruction.
III. The Inheritance from the Soviet-Eastern Bloc
The Soviet-Eastern Bloc inheritance must be treated as more than one influence among many. The German Democratic Republic’s Zivilgesetzbuch (ZGB) was enacted in 1975; Cuba’s First Communist Party Congress was held that same year; the Socialist Family Code was enacted in 1975; and the Socialist Constitution followed in 1976.[6] These were not coincidental dates or isolated acts of comparative borrowing. They marked a coordinated moment of deliberate rupture in which Cuba constituted the Party-State, adopted the political-economic model associated with the Eastern European socialist states, and began building a legal architecture suited to that model. The ZGB’s appearance as the principal structural source for the 1987 Cuban Civil Code therefore belongs to the same historical decision as the constitutional and Party reorganization of the mid-1970s.
Fidel Castro viewed East Germany as the ideal Soviet satellite state: the most disciplined, the most systematically organized, and the most complete in its implementation of the Socialist model. The GDR consequently occupied a different place in Cuba’s political imagination from Poland, Czechoslovakia, Hungary, or the RSFSR. Cuba’s decision to model its legal system on the GDR was not ordinary law-shopping. It was an institutional choice to reproduce a particularly ordered version of Soviet socialism, including its assumptions about the relation between Party direction, State administration, collective property, and legal meaning. The Cuban legal transplant must therefore be read as part of a broader political and administrative reconstitution, not as the importation of a few useful civilian doctrines.
The transplant was not merely technical; it was a structural transformation of legal institutions. Unjust enrichment illustrates the point. In a conventional civilian system, the institution ordinarily supplies a corrective claim between patrimonies. Under Soviet and Cuban Marxist-Leninist logic, however, the institution was reoriented so that the State could be the beneficiary of enrichment claims. Where the State owns all means of production, directly or indirectly, an individual claim against the State or its instruments becomes conceptually difficult, even incoherent: State property is treated as the property of the collective, and enrichment at the expense of the collective is therefore administered as a claim of the State against the individual. The result was not a punitive gloss placed on an otherwise unchanged institution. It was a second-order transplant into a different conceptual universe, in which the individual-to-individual corrective function of private law was structurally foreclosed.
This also clarifies what civilian form survived in the Cuban codes. Whatever appears familiar—the Code’s general part, its obligations framework, or a restitutionary vocabulary—arrived through the ZGB’s own retention of BGB architecture and the continued availability of continental textual forms. It did not arrive through the survival of a living Cuban legal tradition across thirty years of revolutionary government. By the time the Cuban Code was enacted, the pre-1959 institutional settings, professional practices, curricula, and judicial habits that had given civilian concepts operative meaning had been displaced. The civilian residue was thus a textual inheritance preserved within a Socialist code, not a living Cuban private-law tradition waiting to be restored.
The Warsaw Pact comparison raises a related methodological question. Poland, Czechoslovakia, Hungary, the RSFSR, and the GDR exhibited convergent features in their treatment of enrichment, property, and the State’s interest. Some of those parallels may reflect direct borrowing, especially where Cuban drafters consulted translated codes. But they may also represent convergent expressions of a shared Marxist-Leninist political logic. If the system structurally requires confiscatory provisions to control private wealth accumulation and protect a collective-property regime, textual parallels would appear across the codes regardless of whether one drafter copied another. Direct borrowing and systemic convergence are therefore competing explanations, not alternatives that can be resolved merely by cataloguing verbal similarities.
The consequence for reconstruction, if this reading holds, may prove more difficult to manage than the more familiar problems of recodification. It is not enough to peel off a Soviet layer and assume that an intact Cuban civilian system will reappear underneath. The more accurate analogy remains the reception of Roman law in twelfth-century Bologna: the reconstruction of a dead textual corpus within an institutional reality that had fundamentally changed. The Cuban task is to identify which inherited forms can be repurposed, which ideological premises must be abandoned or transformed, and which institutional practices must be built anew—work that requires historical intelligence rather than nostalgia, and institutional reconstruction rather than textual archaeology alone.
IV. The Impossibility of Return: Why There Is No Going Back to Pre-1959
The Eastern Bloc inheritance leads directly to a second conclusion: reconstruction cannot be conceived as a return to the pre-1959 legal order. That order is not a dormant institutional program awaiting reactivation. It was a historical formation whose social relations, personnel, professional culture, and material conditions have disappeared. The reasons are distinct but cumulative.
A. First—Historical Irreproducibility
It is a commonplace that history cannot be repeated, but the implications of that truism for legal reconstruction have not been seriously worked through in the Cuban context. The human collective culture, institutional fabric, behavioral norms, customary practices, and social relations of the pre-1959 period cannot be reproduced by declaration or codification. The interruption between 1959 and 2026 cannot be treated as a short-term disruption; it has lasted sixty-seven years—longer than the fifty-six years of the First Cuban Republic from 1903 to 1959. The colonial layering of legislation and custom, the Republican-era formalism of the planter-merchant elite, and the particular configuration of United States economic domination were not detachable components of a legal code. They were the conditions that made that legal order intelligible and operative. Whatever is salvaged from the past will necessarily be something new when manifested in the present. A reconstructed order may draw on pre-1959 texts, but it cannot recreate the historical world that gave those texts their original force.
B. Second—No Institutional Apparatus or Personnel
There is also no institutional apparatus capable of recreating the earlier order and no cadre of personnel sufficiently familiar with it to implement that project. The Marxist-Leninist period replaced pre-revolutionary textbooks, transformed the curriculum, installed Soviet-trained faculty, and eliminated entire fields such as Trade and Corporate Law and Mortgage Law as bourgeois disciplines. The loss was not limited to technical knowledge. It altered professional instincts, institutional expectations, and the vocabulary through which legal problems are recognized. A restoration would therefore require the creation of the very institutions and professional communities it presupposes. It would not be a return carried out by custodians of a continuous tradition, but a new construction undertaken by people trained in a different legal and political world.
C. Third—The Diaspora as Foreign Law
Whatever memory of the pre-1959 legal order survived in the diaspora—and whatever has been reconstructed through decades of exile scholarship and advocacy—would itself be a variant of foreign law when inserted back into Cuba. It would be another act of projection by an Americanized, Europeanized, or Latin Americanized elite whose legal cognition has been formed by long residence abroad, nostalgia, and strategic commitments. The diaspora’s legal knowledge is no longer simply Cuban law; it is the memory of Cuban law refracted through the legal systems in which its bearers were educated and practiced. This does not disqualify the diaspora from participating. It requires that participation to be candid about its hybridity and subject to dialogue with island-based experience. The warning of the “Forbidden City” is relevant here: recursive, self-referencing discursive spaces see only themselves, mistake internal repetition for national reality, and become incapable of bridging their own vocabulary with the social world they claim to represent.[7]
D. Fourth—The Imperative of Stability
Stability remains critical. A reconstruction that produces or amplifies disruption risks the kind of institutional and social instability associated with post-Soviet transitions in Eastern Europe, including breakdowns in administration, contested property claims, and the loss of basic protections before replacement institutions are capable of functioning. The “stable state of misery” framework suggests that the Cuban State has developed mechanisms for maintaining order through managed deprivation, limited and reversible openings, ideological discipline, and periodic tolerance of non-state activity. Those mechanisms are not benign, but disrupting them without adequate replacement structures could produce severe instability rather than legality. Reconstruction must therefore distinguish between dismantling injustice and dismantling the minimal arrangements that currently prevent social disintegration—a distinction that is easier to state than to apply, but that any responsible approach to transition must attempt. A gradual, capacity-building approach may be normatively imperfect yet institutionally indispensable.[8]
E. Fifth—Indigenous Reform Efforts Must Be Honored
Any reconstruction that ignores indigenous reform efforts—especially the Lineamientos and subsequent Party-directed reforms—will likely produce or amplify disruption while disregarding what has developed organically within Cuba. That includes the work of indigenous academics, even those now resident abroad, and the deepening practices and cultures of the informal economy. Cuba survives because there are two Cubas: the formal Cuba of ideology and spectacle, and the informal and popular Cuba of the streets, unofficial networks, barter, and pragmatic approaches to everyday life. These are not wholly separate worlds. The formal economy depends on, tolerates, regulates, and periodically legalizes portions of the informal one.
The informal economy has produced its own institutional-legal cultures: practices of exchange, dispute resolution, trust, barter, and economic organization that operate beneath or beyond the formal apparatus. These are not merely pathologies to be eliminated. They are indigenous developments to be understood and, where appropriate, incorporated into reconstruction. The non-state sector and the tolerated unofficial economy provide the experiential reality of stability in misery: portions of the non-state sector are legalized during periods of need, with “need” measured against the maximum misery that can be tolerated from time to time. The resulting practices may supply the beginnings of a Cuban law of contract, enterprise, and dispute resolution more responsive to lived conditions than an imported code.
Ignoring this reality would mean ignoring the actual operative legal order of contemporary Cuba. The task is not to romanticize informality or to preserve every practice that emerged under scarcity. It is to recognize that reconstruction will be legitimate and stable only if it engages the legal cultures through which people currently survive, exchange, and resolve conflict. Indigenous reform therefore means more than preserving official Cuban initiatives; it means treating the knowledge embedded in everyday practice as evidence about the institutions that a future legal order can realistically sustain.
V. The Paradox of Continuity: Building from Materials Produced by the System Being Transformed
The central challenge of legal reconstruction during reform or replacement of the adopted political-economic model is not the absence of legal materials but their provenance. Cuban law does not lack codes, constitutional texts, scholarly commentary, or institutional experience. What it lacks is a legal tradition that has been continuously operative outside the Marxist-Leninist framework. Every legal text currently in force—every constitutional provision, every codified norm, every administrative regulation—was either enacted within or filtered through the political logic of the Party-State system. The question is whether and how these materials can be repurposed for a different political-legal project.
A. The Bologna Analogy
The analogy to the reception of Roman law in twelfth-century Bologna, introduced above, merits development. When the Bolognese jurists began their systematic study of Justinian’s Corpus Juris Civilis, they were not recovering a living legal tradition. Roman law had been dead as an operative institutional reality for centuries. What they were doing was receiving a textual corpus and reconstructing it for use within a fundamentally different institutional framework—one characterized by feudal property relations, ecclesiastical jurisdiction, and emerging urban commercial life. The texts were Roman; the uses were medieval.
Similarly, whatever civilian forms appear in Cuban law—the Code’s general part, its obligations framework, its remnants of a restitutionary architecture—arrived not through the survival of a living Cuban legal tradition across decades of revolutionary government but through the retention of civilian forms within the Socialist codes themselves, principally the 1975 Zivilgesetzbuch of the German Democratic Republic, which served as the principal structural model for the 1987 Cuban Civil Code. The Zivilgesetzbuch was enacted as the culmination of the GDR’s legal Sovietization—the replacement of the Bürgerliches Gesetzbuch with a code explicitly grounded in Socialist legal principles—in 1975, the same year as Cuba’s First Party Congress. Whatever civilian residue the Cuban Code contains is there because the GDR’s code retained it, not because the Cuban legal system preserved it through thirty years of revolutionary transformation.
The implications for reconstruction are not easily overstated. Reformers seeking to replace or reconstitute the inherited political-economic model cannot simply “return” to pre-revolutionary Cuban law, which is as remote from contemporary institutional reality as Justinian’s texts were from twelfth-century Bologna. They cannot rely on the Civil Code’s formal continuity as evidence of substantive legal continuity. They must, like the Glossators, reconstruct a legal tradition from textual materials whose original institutional context has been destroyed—and they must do so within whatever political framework emerges from that process.
B. The Problem of “Potemkin Jurisprudence”
The scholarly enterprise of the 1990s and 2000s—the reframing of Cuban legal institutions within civilian categories through the Late Spanish Connection—presents a particularly acute version of this paradox. During this period, a new generation of Cuban legal scholars, trained in civilian rather than Soviet methodology, produced a substantial body of doctrinal work reinterpreting Cuban legal institutions within the framework of the German Rechtsgeschäft as received through Spanish authors. This work was technically accomplished and genuinely learned. It represented, in its practitioners’ understanding, a “cleansing operation against Soviet legal philosophy.”
But this scholarly enterprise must be assessed against the operative legal reality in which it was produced. While scholars reframed legal institutions in civilian categories, the confiscatory apparatus continued to operate: administrative confiscation under Decree-Law 149/1994, criminal prosecution of “illicit economic activities,” nullity of contracts “against the interests of society and the State,” and the State Attorney’s explicit doctrine linking restitutionary, administrative, and criminal registers into a “punitive catalog of actions against undue enrichment as an anti-proletarian social phenomenon.” The scholarly reframing apparently had no effect on this operative reality.
Moreover, the scholarly exchange was overwhelmingly outward-facing—directed toward Spanish and Latin American academic circuits rather than toward the Cuban state apparatus. Cuban scholars published in regional law reviews, participated in international seminars, and contributed to Latin American doctrinal debates. This raises a question that any future reconstruction must confront: was the doctrinal reframing an endogenous legal transformation or an exercise in outward projection—the construction of a civilianized legal self-image for international consumption, consistent with the recurring pattern in Cuban history of legal development shaped by external forces? The operative legal reality—the confiscatory regime, the State Attorney’s doctrine, the ongoing campaigns against individual wealth—remained untouched, while scholarly output provided the regime with the international respectability of a civil law facade.
This constitutes what might be called “Potemkin jurisprudence”—technically accomplished, genuinely learned, but structurally incapable of affecting the operative legal order it purported to reinterpret. If reconstruction of legality is to succeed, it must ensure that the scholarly enterprise is not merely repeated in a new key—producing elegant doctrinal frameworks that coexist with, but do not constrain, the exercise of state power.
C. The Scholars and Their Audience
Under Fidel Castro’s 1961 formula—“within the Revolution, everything; against the Revolution, nothing”[9]—the social function of the intellectual was fundamentally reconstituted. The scholar was not an autonomous doctrinal authority in the continental sense but a participant in the revolutionary project whose intellectual output must operate within the boundaries set by the Revolution’s right to exist, to develop, and to prevail. This formula does not merely limit the content of intellectual expression; it reconstitutes the relationship between the intellectual and the state. The continental ideal of scholarly authority—in which doctrine is a recognized source of law, professorial commentary shapes judicial interpretation, and the law faculty participates as a co-equal in the elaboration of legal meaning—is itself a transplant that was fundamentally transformed by the Marxist-Leninist reconstitution of the intellectual’s role.
This means that the production apparatus for legal knowledge—the scholars, the institutions, the publication channels, the continuing education programs—is itself a product of the system being transformed. Any reconstruction that relies on the scholarly community to elaborate a new legal order must reckon with the fact that this community was formed within, and to a significant degree by, the very constraints it would need to transcend. The cast of characters involved in legal knowledge production has changed over time—from the political leadership and juridical nomenklatura of the revolutionary period, through the in pectore government scholars and enabling jurists of the codification era, to the new generation formed by the Late Spanish Connection—but each iteration has been shaped by the political framework within which it operated.
A dimension frequently overlooked is the role of exiled academics who carried Cuban legal knowledge abroad and constituted an interlocutor community for island-based scholars. These are not the exile polemicists who have been dismissed for nihilistic approaches to Cuban law, but a distinct category: scholars who were trained in Cuban institutions, participated in the scholarly life of the island, and then left—maintaining a continuing engagement with Cuban legal questions from outside the constraints of the “within the Revolution” formula. Any reconstruction must account for this transnational dimension of Cuban legal knowledge and the question of how to reintegrate these scattered intellectual resources.
VI. Law, Politics, and Justice: Three Competing Visions
Reconstruction of legality in a reformed or replaced political-economic model requires confronting a question that Cuban legal development has consistently evaded: what is the relationship between law and politics, and where does justice figure in that relationship? The history of Cuban law offers three competing answers, each of which has shaped the legal order and none of which is adequate to the challenge of reconstruction.
A. The Formalist Tradition
The Republican-era legal order (1902–1959) was committed to a literal-formalistic approach that rejected fairness-oriented inquiry into the material underlying situation. The Supreme Court during the Republic consistently restrained all considerations of equitable adjustment within the boundaries of a formalistic verification of specific requirements. This was not normatively neutral; it was a political choice. The planter-merchant elite that dominated Republican Cuba, operating under intense United States economic domination, deployed legal formalism to insulate property arrangements from equitable scrutiny. The Republican legal order was a political order that used the machinery of pandectistic abstraction to protect specific distributions of wealth and power—a point that is typically obscured by treating the Republican period as a “civil law baseline.”
B. The Marxist-Leninist Instrumentalization
The revolutionary legal order (1959–present) replaced formalist abstraction with ideological instrumentalization. Within Marxist-Leninist political theory, law is not an autonomous domain but is instrumentalized to serve the political project of the vanguard party, which derives legitimacy from its capacity to fulfill ideologically mandatory responsibilities to the collectives it serves.[10] The vanguard’s relationship to law—including what remains of private law—is one of leadership responsibility in which legal categories serve as instruments for the construction of socialist society. Democratic centralism, the Party’s “leading role,” and the unity of state power are not rhetorical accessories but constitute the operating system within which all legal codes were designed to function.
If law is understood as an instrument of unified state power under vanguard leadership, then concepts like “unjust enrichment”—to take one illuminating example—were not aberrations or contaminations of a technical institution but applications of the vanguard’s responsibilities. Within Marxist-Leninist normative logic, the accumulation of private wealth “without legitimate cause” is not merely a matter of civil restitution but a concern for the political project that the vanguard is obligated to address. Any reconstruction must decide: was the Marxist-Leninist reading a pathological deviation from the institution’s “true” purpose, or a purposeful and internally coherent element of the legal order as designed? The answer one gives determines the approach to reconstruction.
C. The Justinianic Question
Justinian’s Institutes defined justice as “the constant and perpetual will to render to each his right” and jurisprudence as “the knowledge of things divine and human, the science of the just and the unjust.”[11] The Roman prohibition against enrichment at another’s expense was grounded not in technical restitutionary logic alone but in the broader maxim of Pomponius: “by the law of nature, no one should be enriched at the expense of another’s loss.”[12] For the Roman jurists, law was oriented toward justice as its constitutive purpose.
Cuban legal development has oscillated between a technical restitutionary pole and a punitive ideological pole without recognizing that both poles share a common deficiency: the absence of justice as an independent evaluative standard. The formalist tradition detaches law from politics; the Marxist-Leninist tradition collapses law into politics. Neither asks the Justinianic question: what does justice require? One substitutes will theory and private autonomy for justice; the other substitutes the dictatorship of the proletariat. Both reduce the tripartite relationship of law, justice, and jurisprudence to a binary—either law-technique or law-politics—dropping justice from the equation.
Any reconstruction that merely replaces the Marxist-Leninist instrumentalization with a restored pandectistic formalism would reproduce rather than transcend this impoverishment. It would substitute one form of instrumentalization—law as a transmission belt for the proletarian state—with another: law as a self-referential doctrinal system that insulates patrimonial arrangements from equitable scrutiny. The challenge for Cuban policymakers and scholars is to articulate a relationship between law and politics that makes room for justice as an independent evaluative standard—one that neither the pre-revolutionary formalist order nor the revolutionary instrumentalist order adequately supplied.
VII. The Institutional Architecture: Party, State, and the Production of Legal Knowledge
The institutional architecture of the Cuban Party-State system presents specific challenges for legal reconstruction that go beyond the substantive content of legal norms. The intermeshing of Party and State organs, the centralization of authority within the First Secretary and the Politburo, and the practical impossibility of separating political governance from administrative implementation have produced a legal culture in which the distinction between lawmaking and policy direction has been systematically effaced.[13]
A. The Party-State Intermeshing
The Cuban Constitution creates mutually reinforcing structures of authority among the state apparatus and the PCC. Those at the top positions in the Party also hold top positions in crucial state institutions. The result is an interlocking structure in which decision-making power is effectively subsumed within the PCC’s structures.[14] Because Cuba is a small state, informal structures obliterate the fine distinctions between PCC and state positions. This intermeshing has specific consequences for the legal order: the separation between the Party’s political direction and the state’s administrative implementation—a separation that even Marxist-Leninist theory formally endorses—has never been effectively realized.
The failure to separate PCC governance from state administration has produced pathologies that any reconstruction must address—among them the intermingling of administrative and PCC organs at every level, creating overlapping and often contradictory lines of authority; the pervasive use of legislation that accomplishes little more than providing officials with largely unconstrained discretion (legislation that invites corruption and undermines any prospect of a rule-of-law culture); and what might be called the corruption-discretion axis, in which systems of law that require individualized application without reviewable standards produce fertile ground for corruption not as a deviation from the system’s design but as a predictable consequence of it.
B. The Chain of Command and Legal Meaning
In a Marxist-Leninist state, legislation implements the political line of the Party. The Party Congress sets the political line; the Central Committee elaborates it into programmatic directives; and legislation implements those directives. This means that the meaning of legal provisions changes with the political context, even when the legislative text remains unchanged. The Lineamientos de la Política Económica y Social del Partido y la Revolución, adopted after the Sixth Congress in 2011, expanded the scope of lawful private economic activity, created new categories of private property and income, and thereby changed the universe of patrimonial transfers and legal relationships—even though the relevant code provisions were not formally amended. The 2019 Constitution introduced “private property” as a recognized category for the first time since 1976, alongside the prohibition of “concentration of wealth.”[15]
The 2019 Constitution therefore marks more than a change in economic vocabulary. It recognized propiedad privada as a constitutional category for the first time since the 1976 Socialist Constitution, alongside state property, cooperative property, and personal property. At the same time, it constitutionalized the prohibition on the concentration of property and wealth in private hands as incompatible with the Socialist foundations of the State. The text thus recognizes a lawful sphere of private patrimonial ownership while preserving a constitutional basis for policing its scale and distribution.
That combination creates a new constitutional configuration with direct consequences for reconstruction. Recognition of private property supplies, for the first time since the Revolution, a constitutional category of lawful private accumulation against which “enrichment” can be measured. It may therefore transform the meaning of provisions governing undue enrichment, restitution, nullity, and confiscation even when legislative text remains unchanged. Yet the prohibition on concentration of wealth also supplies a new constitutional anchor for the punitive confiscatory register. The same constitutional settlement can thus support both a civil account of legitimate patrimonial transfer and an administrative account of impermissible accumulation.
This reconfiguration bears directly on the bifurcation between civil and administrative legal mechanisms. It also exposes a notable gap in much of the scholarship: the constitutional change is often treated as an economic opening without asking how it changes the legal meaning of enrichment itself. The question for reconstruction is consequently whether the 2019 framework confirms that legal meaning is determined by the constitutional-political framework rather than by legislative text or scholarly doctrine. If it does, recodification alone cannot complete the project; reconstruction would require constitutional reconstitution capable of changing the framework within which the codes operate.
Reconstruction must therefore address not only the content of legal codes but the chain of command that gives those codes their operative meaning. In a system where the Communist Party sets the cognitive cage within which legality develops, changing the Party’s political line changes the meaning of the law—even when no legislator acts. This has both liberating and constraining implications for reconstruction. On one hand, it means that substantial legal change can be effectuated through changes in political direction without the burdensome process of comprehensive recodification. On the other hand, it means that legal change remains dependent on political will—and that any reconstruction that does not address the relationship between political authority and legal meaning will reproduce the structural problem in a new form.
C. The Cast of Characters
Legal reconstruction requires understanding the production apparatus for legal knowledge and how it has evolved. During the revolutionary period (1959–1976), five groups were principally involved: political leadership, juridical nomenklatura, in pectore government scholars, enabling jurists (pre-revolutionary academics who remained and provided legitimacy to the new order), and system operators (the State Attorney, the People’s Supreme Court). After the institutionalization of the Communist Party in 1975–1976—the First Congress, the Socialist Constitution, the formalization of the vanguard party’s leading role—this apparatus changed. The enabling jurists of the early revolutionary period were replaced or absorbed; the juridical nomenklatura’s relationship to the Party apparatus was formalized; and the system operators acquired a different institutional posture. After the Special Period of the 1990s, it changed again: the Late Spanish Connection introduced new methodological orientations, new scholarly networks, and new generations of scholars trained in civilian rather than Soviet methodology.
Any reconstruction must account for all these generations and their distinct relationships to the legal order. It must also account for the exiled academics who carried Cuban legal knowledge abroad and constituted an interlocutor community for island-based academics—scholars who, operating outside the “within the Revolution, everything” formula, could engage with Cuban legal questions with a degree of intellectual freedom unavailable on the island. The reintegration of this diaspora scholarly community into the process of legal reconstruction would itself be a significant institutional challenge—and a significant opportunity.
VIII. The Seventh Congress Legacy and the Cognitive Cage
The Seventh Congress of the PCC, held in 2016, represents a critical inflection point that any reconstruction seeking to reform or replace the inherited political-economic model must confront. It did not merely continue the trajectory of the Sixth Congress; it hardened it. The Conceptualización explicitly reaffirmed the primacy of socialist state property over the means of production (“la propiedad socialista de todo el pueblo sobre los medios fundamentales de producción, forma principal de la economía nacional”), the leading role of the Communist Party (“el papel dirigente del Partido Comunista de Cuba, único y vanguardia organizada de la nación”), and the prohibition on concentration of property and wealth in non-state hands (“No se permite la concentración de la propiedad y la riqueza en personas naturales o jurídicas no estatales”).[16] This represented a retreat that effectively froze movements toward reform within a Marxist-Leninist framework. The 2026 Programa Económico y Social del Gobierno confirmed this trajectory, explicitly citing the Conceptualización and the Lineamientos as “documentos rectores que rigen la dirección del desarrollo del país.”[17]
This creates a difficulty for the narrative of scholarly progress that has not been adequately confronted. If Cuban scholars successfully “rejected” Soviet ideological influence during the 1990s and 2000s—reframing legal institutions within civilian categories—then that rejection apparently had no effect on the trajectory of Party doctrine. The Communist Party moved in the opposite direction during the very period of scholarly reorientation. Either the scholarly rejection operated entirely outside the domain that matters for the operative meaning of law—confirming the Potemkin jurisprudence hypothesis—or the Party’s reassertion of orthodox doctrine in 2016 effectively nullified whatever the scholars had accomplished.
To dismiss the re-Sovietization as irrelevant to legal development would require one of two untenable positions: either that the Communist Party of Cuba does not matter for law—which would be to posit away the role of the Lineamientos themselves—or that there is a substantial gap between the realities of law as it has developed and been deployed on the ground and its conceptual structures as developed within the state apparatus and Party organs. The second position is more defensible but has far-reaching implications: it means that scholarly discourse describes only the theoretical surface while the functional reality, governed by Party doctrine, remained aligned with—and after 2016 hardened toward—the Soviet model. Any reconstruction seeking to alter that model must reckon with this gap and ensure that legal reform operates in the domain that matters for the operative meaning of law, not merely in the domain of scholarly discourse.
A. The PCC’s Ideological Ossification
The PCC remains very much a revolutionary party rather than a party in power.[18] The revolutionary moment remains a palpable concept—it has been detached from history and governs all aspects of the operation of governance, political or administrative, within Cuba. This preservationism—the obsession with stopping time at January 1, 1959—substantially limits the PCC’s ability to organize itself as anything other than a vanguard party at the moment of accession to power, rather than as the vanguard party tasked with the governance of a state that is meant to eventually reach a level of development that makes the communist ideal attainable.
The PCC has become more conservative since the 1990s, and more reactive. It has begun to treat its foundational ideologies like divine script—unchangeable and immovable—a text for all ages beyond which it is impossible to move. Yet ideological growth is a necessary foundation of any Leninist project, and indeed evolution toward an ultimate objective is a central tenet of Marxism itself. There is nothing sacred about central planning, nothing inevitable about cults of personality within Leninist collective structures of governance, nothing inherently Marxist about the rejection of firm regulatory structures and rule-of-law principles bent toward socialist objectives. Markets do not have political or ideological affiliations, and capital does not assert political power.[19] The rejection of that idea of evolution—where both polity and theory grow toward the establishment of a communist society built on the accumulated wealth of the nation—will increase the likelihood that Cuban nationalist Marxism continues on the road toward irrelevance.
B. The Cult of Personality and Institutional Development
The PCC suffered from the conflation of Party and personality through its first half century. Unlike China after Mao Zedong, where a systematic process of depersonalization occurred—leading to the theorization of collective leadership and the development of institutional mechanisms for succession[20]—Cuba reinforced the personal element in party organization. The institutionalization of the PCC was late and weak; the first Party Congress was not held until 1975. This delayed institutionalization has consequences for legal reconstruction: without strong institutional structures, any reform is vulnerable to personality-driven reversal. The Chinese and Vietnamese experiences suggest that effective legal development within a Party-State system requires the prior depersonalization of political authority and its embedding within institutional structures that are not dependent on the preferences of individual leaders.[21]
IX. Comparative Horizons: Chinese, Vietnamese, and Post-Socialist European Paths
Cuba’s legal reconstruction, should it occur, will not take place in comparative isolation. The experiences of other states that have navigated the transition from or within Marxist-Leninist frameworks provide both cautionary tales and instructive models—though none can be simply transplanted to the Cuban context.
A. The Chinese Path
China has adapted Leninism in quite distinct ways, developing what is increasingly referenced as “socialist democracy” and effecting a separation between political power—which rests with the vanguard Party and exists above the Constitution—and administrative power, which is exercised through State organs and is subject to the constraints of the national constitution.[22] The object is to ensure that the political work of the Party as an institution is distinct from the work of the state as the apparatus through which political work is implemented. This provides a basis for separating political issues—open only to Party members and the intra-party mechanisms of democratic centralism—from administrative issues, for which popular participation may be encouraged as an instrument for ensuring administrative efficiency.
The Chinese Communist Party has also moved toward what it calls “socialist democracy”—an effort to routinize and institutionalize intra-Party democracy in collective decision-making.[23] The concept of “socialist modernization,” key to the scientific development of the CCP’s political line, is noticeably absent from PCC discussion. And it is absent precisely because the ideological center of Cuban Marxism remains rooted in state planning as the unchangeable cornerstone of both internal and external economic models. The PCC has not embraced the Chinese separation of political and administrative power, nor the Chinese willingness to develop Marxist-Leninist theory to meet changing conditions.
For Cuban legal reconstruction, the Chinese experience suggests—without prescribing—several conditions that the PCC has not been willing to meet and perhaps cannot meet without confronting the cult-of-personality problem that China addressed, however imperfectly, after Mao. The separation of Party governance from state administration appears to be a prerequisite for any development of a rule-of-law culture that would constrain administrative discretion rather than merely redescribe it; and the depersonalization of political authority, embedding it within institutional structures that outlast individual leaders, seems essential for the stability that legal development requires. No less important is the willingness to treat markets as compatible with socialism—a theoretical step that the PCC has explicitly refused to take, treating central planning as an unmovable cornerstone of Marxist ideology rather than as one organizational possibility among several—and the development of anti-corruption mechanisms within the Party itself, without which institutional reform lacks credibility. The Chinese model is far from perfect: the relationship between the Party and the Constitution remains unresolved, and the anti-corruption apparatus is itself subject to criticism.[24] But it demonstrates that it is at least possible to develop a Marxist system that is compatible with markets, that separates political leadership from administrative governance, and that does so within a Party-State framework—a possibility that the PCC’s ideological preservationism has foreclosed.
B. The European Path
The post-Socialist experience of Poland, the Czech Republic, Hungary, and reunified Germany provides a different set of lessons.[25] These states underwent the comprehensive dismantling of their Party-State systems and the adoption of liberal-democratic constitutional orders and market economies. The legal transition involved wholesale recodification, the adoption of new constitutional frameworks, and the reconstruction of private law from the ground up. The experience was in many respects successful—these states are now functioning members of the European Union with operative rule-of-law systems—but it was also traumatic, uneven, and plagued by problems of institutional continuity, lustration, property restitution, and the persistence of what scholars have called “the survival of the socialist legal tradition.”
Cuba’s case may be distinctive. The revolutionary moment’s persistence, the a-historicity of PCC ideology, and the island’s particular position between Soviet, Chinese, and Latin American influences create a context that does not map neatly onto either the Chinese or the European model. Moreover, the PCC appears to be choosing a path that carries the risks of the European experience without its benefits: political reform while preserving central planning orthodoxy—the same path that led to the sweeping away of the Party-State systems in Eastern Europe.[26] As one observer has noted, this is a high-risk gambit that, when tried in Europe a generation ago, produced precisely the outcome it was designed to avoid.
C. The Vietnamese Model
Vietnam offers yet another comparative reference, one that the Cuban leadership has itself engaged with through inter-parliamentary exchanges. The Vietnamese Communist Party has maintained its leading role while permitting substantially greater economic liberalization than the PCC has been willing to accept, and the Vietnamese National Assembly has developed into a more muscular deliberative organ than its Cuban counterpart. But Vietnam also demonstrates the limits of economic reform without corresponding institutional development: corruption, bureaucratic stagnation, and the reluctance of younger generations to join the Party are problems shared by both systems. The Vietnamese model suggests that economic liberalization alone does not resolve the institutional pathologies of the Party-State system; it merely relocates them.
X. The Conditions of Possibility: What Would Reconstruction Require?
The conditions that would be necessary—though not sufficient—for a meaningful reconstruction of legality while the inherited political-economic model is reformed or replaced are easier to identify than to create.
A. Confronting Rather than Replacing the Normative Logic of the System
The most important condition is the one most likely to be evaded: the serious engagement with the normative logic of the Marxist-Leninist legal order as a system with its own internal coherence, not merely as an ideological contamination to be stripped away. Any reconstruction that simply replaces Marxist-Leninist categories with liberal or civilian ones—treating the transition as a return to a natural baseline—will reproduce the Potemkin jurisprudence problem in a new form. The scholars of the Late Spanish Connection demonstrated that it is possible to produce technically accomplished doctrinal work that coexists peacefully with the very institutional pathologies it purports to address. Reconstruction must aim higher: it must ask what the Marxist-Leninist system was trying to accomplish, where it succeeded and where it failed on its own terms, and what elements of its normative logic deserve preservation or transformation rather than simple rejection.
B. Rearticulating the Relationship Between Law and Politics
Legal reconstruction requires an explicit rearticulation of the relationship between law and politics—one that avoids both the formalist pretense that law is autonomous from politics and the Marxist-Leninist collapse of law into politics. This rearticulation must make room for justice as an independent evaluative standard: the Justinianic principle that jurisprudence is the science of the just and the unjust, and that legal institutions must be oriented toward justice as their constitutive purpose. Neither pandectistic abstraction nor Marxist-Leninist instrumentalism supplies this—the former drops justice in favor of technique, the latter in favor of ideology. The challenge for Cuban policymakers and scholars is to articulate a vision of law that is neither detached from the political order nor wholly subordinate to it, but oriented toward justice within whatever political framework emerges.
C. Institutional Separation of Party and State Functions
The Chinese experience suggests that the separation of Party governance from state administration is a prerequisite for meaningful legal development within a Party-State system. This requires the PCC to accept that its role is to set political direction—the broad objectives of the polity—while leaving the administrative and ministerial functions to the organs of state, operating within a framework of rules rather than unconstrained discretion. This is not a call for the abandonment of the Party’s leading role but for its refinement: the development of a more sophisticated understanding of what political leadership means when it is exercised through institutional structures rather than through personal authority and ad hoc intervention.
D. Developing the Production Apparatus for Legal Knowledge
Legal reconstruction requires not only new legal norms but a transformed production apparatus for legal knowledge. This means reforming legal education to move beyond both Soviet methodology and the constrained civilian reframing of the Late Spanish Connection; developing an autonomous scholarly community capable of genuine doctrinal authority; reintegrating the diaspora scholarly community; and creating the institutional conditions—judicial independence, transparent administrative practice, published and accessible judicial decisions—that allow scholarly work to affect the operative meaning of law rather than merely its theoretical surface.
E. Re-establishing Continuity in Legality
Perhaps the most delicate challenge is re-establishing continuity in legality—the principle that the legal order is a continuous institutional framework, not a series of revolutionary ruptures each of which erases what came before. Cuban legal history is a history of ruptures: the colonial-to-Republican transition, the Republican-to-Revolutionary transition, and the periodic internal ruptures of the revolutionary period itself. Each rupture was accompanied by claims of radical novelty and the delegitimation of what came before. A reconstruction undertaken in response to a reformed or replaced political-economic model cannot simply add another rupture to this sequence; it must find a way to acknowledge the legal order’s history—including its Marxist-Leninist history—while redirecting its trajectory. The materials from which the new order will be built are the materials produced by the old order, and any reconstruction that denies this continuity will lack both legitimacy and institutional foundation.
F. The Technical-Doctrinal Dimensions of Reconstruction
(a) The Patrimonial Attribution Question (Vermögenszuordnung). The scholarly reframing of causa legítima through the Late Spanish Connection treated it as patrimonial attribution rather than as the French-style cause du contrat. Whether that reading is technically defensible remains open. The Cuban Code is a “tropical mix” of Franco-Hispanic and Germano-Soviet strands, while the ancestral Spanish Civil Code does not operate with the Abstraktionsprinzip; it inherits a causal system of transfer. Grafting a German concept of patrimonial attribution onto that causal system may alter the internal logic that makes the system work. The Spanish translation of the German concept may also have introduced distortions that passed into Cuban reception. Reconstruction must therefore ask whether the scholarly reframing was a faithful reception or a creative distortion, because the answer will determine whether reconstructed institutions can operate coherently rather than merely appear civilian in vocabulary.
(b) The Ideological Neutrality of the ZGB. The claim that the Zivilgesetzbuch supplied a neutral structural source for Cuban codification also requires scrutiny. The ZGB’s general part opens with the tasks of Socialist civil law; its property provisions embed the Volkseigentum/persönliches Eigentum dichotomy; and its general principles include a harmony clause analogous to Cuban Articles 2 and 4. Its architecture cannot easily be separated from its ideological framing. The German Federal Court’s 1999 decision in BGH, V ZR 358/97, describing the ZGB’s unjust-enrichment provisions as not conceptually different from the BGB, arose in the distinctive setting of reunification, when courts were deliberately assimilating ZGB rules into a BGB framework and actively de-ideologizing them. That decision therefore cannot, without more, establish that the ZGB’s structure was ideologically neutral when received in Cuba.
(c) The Subsidiarity Perversity. Post-2003 Cuban judicial decisions introduced subsidiarity for unjust enrichment: civil restitution is available only when no other remedy exists. In most civilian systems, that limitation protects the corrective function by preventing unjust enrichment from displacing more specific causes of action. In Cuba’s Marxist-Leninist setting, however, the result can be perverse. Where criminal prosecution, administrative confiscation, and contractual nullity operate as a catalog of punitive legal devices, subsidiarity makes civil restitution available only when those more punitive instruments have not been deployed. It therefore does not protect the corrective function; it relegates it to practical irrelevance by ensuring that punitive instruments take priority. Reconstruction must decide whether subsidiarity should be retained as a principle that may function normally in a transformed system or rejected as a mechanism through which the inherited system secured state primacy.
(d) Article 67(a) and Systemic Integration. Article 67(a) of the 1987 Civil Code—nullity of contracts “against the interests of society and the State”—is one of the system’s punitive legal devices, but its relationship to restitution has been under-analyzed. Once a contract is declared null under Article 67(a), restitution of performances follows as a matter of course. Every ideological nullification therefore generates a restitutionary scenario. The punitive register and the corrective register are not simply separate tracks; the punitive instrument generates the corrective remedy. That causal chain matters for reconstruction. Reforming the confiscatory or nullity apparatus without revising the restitutionary provisions, or revising restitution without addressing the grounds of ideological nullity, would leave the inherited systemic relationship substantially intact.
G. Practical Implications: The “So What?” Question
For practitioners in Helms-Burton litigation, the dual-register finding should complicate any assumption that Cuban unjust enrichment is the functional equivalent of unjust enrichment in another civil-law jurisdiction. The relevant Cuban institution is a composite transplant whose meaning depends on which register is operative. A claim presented in civil-restitutionary language may have been formed within a system in which the state’s punitive and administrative powers define the boundaries of legitimate enrichment. United States courts should therefore examine not only the text of the Cuban provision but also the institutional setting and political-constitutional logic that gave the provision its operative meaning.
The same caution applies to international arbitration involving confiscated property. The coexistence of civil restitution and administrative confiscation means that Cuban unjust enrichment cannot automatically be treated as the functional equivalent of the institution in other civil-law systems for purposes of investment-treaty claims. The question is not simply whether Cuban law uses familiar restitutionary language. It is whether that language operates as an independent corrective remedy or as the downstream consequence, or possible substitute, of an administrative and ideological determination that private accumulation was impermissible.
For post-transition legal planning, the analysis does not yield an automatic answer between wholesale recodification and scholarly reinterpretation. Existing code provisions might be capable of sustaining a civil-law reading once political conditions change, but only if the institutions applying them, the constitutional framework surrounding them, and the production of legal knowledge change as well. The answer depends on where legal meaning is located—in text, scholarly commentary, or the political-constitutional framework. The analysis developed here suggests that the last of these has been decisive, which means that recodification without institutional and constitutional change risks leaving the inherited semantics in place.
The essay therefore opens with the structures and ideologies of Caribbean Marxism-Leninism and closes with a warning: the punitive semantics embedded in a legal order can always return. Between those poles lies the practical guidance. Reconstruction is not a technical exercise in recodification but a political-institutional project that must address the relationship among law, Party, State, and justice simultaneously. Without that work, familiar civilian forms may once again serve an order whose operative premises remain punitive and politically controlled.
XI. Action Plan for Reform
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.
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?
XII. Conclusion
The challenge of reconstructing legality as Cuba reforms or replaces its inherited political-economic model is not a problem of legal engineering. It is a problem of political imagination constrained by institutional history. The Marxist-Leninist legal order did not merely overlay an existing civil-law system; it transformed the institutional reality within which legal concepts acquire their meaning. The state became the sole beneficiary of legal institutions that were formally neutral; the public-private distinction was dissolved not merely in theory but in the operative structure of property, contract, and obligation; the production apparatus for legal knowledge was reconfigured to serve the revolutionary project; and the relationship between law and politics was reconstituted along lines that leave no space for justice as an independent evaluative standard.
Any reconstruction must work with these materials—not because they are adequate, but because they are the only materials available. The Bologna analogy is instructive: the Glossators did not have a living Roman legal tradition to restore; they had a textual corpus to reconstruct within a different institutional reality. Cuban policymakers, academics, and civil society face an analogous task. They must reconstruct a legal order from materials that were produced by a system operating on different premises, using institutional resources that were themselves shaped by those premises, and they must do so within a political framework that—whatever its ultimate form—will carry the imprint of its Marxist-Leninist history.
The path forward requires three things that the Cuban legal tradition has consistently lacked. First, an honest confrontation with the normative logic of the system being transformed—not as an ideological deviation from a civil-law norm, but as a purposeful, internally coherent, and institutionally embedded legal order that must be understood before it can be transcended. Second, a rearticulation of the relationship between law and politics that makes room for justice as an independent evaluative standard—the Justinianic insight that jurisprudence is the science of the just and the unjust, not merely the technique of social ordering. And third, an institutional architecture that separates political direction from administrative implementation, creates the conditions for genuine scholarly authority, and re-establishes the principle that legality is continuous even when political regimes are not.
Whether Cuban policymakers, academics, economic actors, and civil society will be given the opportunity to undertake this reconstruction—and whether they will prove equal to it—remains to be seen. What can be said with confidence is that the materials for this project already exist, embedded in the very system that must be transformed. The challenge is not to find new materials but to reimagine the uses to which the old ones can be put—much as the Bolognese jurists reimagined Justinian, and much as every generation that has inherited a legal tradition not of its own making has had to do. The reconstruction of Cuban legality beyond Caribbean Marxism-Leninism is, in the end, a particular instance of the universal challenge of building law from history while refusing to be imprisoned by it.
[1]See generally Carmelo Mesa-Lago, ed., Cuba After the Cold War (Pittsburgh: University of Pittsburgh Press, 1993).
[2]The Conceptualización del modelo económico y social Cubano de desarrollo socialista, adopted at the VII Congreso del Partido Comunista de Cuba (2016).
[3]See Larry Catá Backer, “The Cooperative as Proletarian Corporation: Property Rights Between Corporation, Cooperatives and Globalization in Cuba,” Northwestern Journal of International Law and Business 33:527–618 (2013).
[4]See Vladimir I. Lenin, What is to Be Done?: Burning Questions of our Movement (New York: International Publishers, 1929, 1943).
[5]See Larry Catá Backer, “Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes,” 70 Law & Contemporary Problems 1 (2007); see also Larry Catá Backer, Caribbean Marxism: Essays on Cuba in the Post-Fidel Castro Era (Little Sir Press, 2018); “Cuba and the Constitution of a Stable State of Misery: Ideology, Economic Policy, and Popular Discipline,” 13(2) Penn State Journal of Law & International Affairs 1–84 (2025); “Forbidden Cities” (Oct. 15, 2008); “From Hatuey to Che: Indigenous Cuba without Indians and the U.N. Declaration on the Rights of Indigenous Peoples,” 33(1) American Indian Law Review 201–238 (2008); and “Legal-Institutional Foundations for Reconstruction in a Post-Revolutionary Cuba: A Conceptual Exercise,” ASCE Proceedings Paper (Mar. 31, 2026).
[6]See Larry Catá Backer, “Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes,” 70 Law & Contemporary Problems 1 (2007); see also Larry Catá Backer, Caribbean Marxism: Essays on Cuba in the Post-Fidel Castro Era (Little Sir Press, 2018); “Cuba and the Constitution of a Stable State of Misery: Ideology, Economic Policy, and Popular Discipline,” 13(2) Penn State Journal of Law & International Affairs 1–84 (2025); “Forbidden Cities” (Oct. 15, 2008); “From Hatuey to Che: Indigenous Cuba without Indians and the U.N. Declaration on the Rights of Indigenous Peoples,” 33(1) American Indian Law Review 201–238 (2008); and “Legal-Institutional Foundations for Reconstruction in a Post-Revolutionary Cuba: A Conceptual Exercise,” ASCE Proceedings Paper (Mar. 31, 2026).
[7]See Larry Catá Backer, “Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes,” 70 Law & Contemporary Problems 1 (2007); see also Larry Catá Backer, Caribbean Marxism: Essays on Cuba in the Post-Fidel Castro Era (Little Sir Press, 2018); “Cuba and the Constitution of a Stable State of Misery: Ideology, Economic Policy, and Popular Discipline,” 13(2) Penn State Journal of Law & International Affairs 1–84 (2025); “Forbidden Cities” (Oct. 15, 2008); “From Hatuey to Che: Indigenous Cuba without Indians and the U.N. Declaration on the Rights of Indigenous Peoples,” 33(1) American Indian Law Review 201–238 (2008); and “Legal-Institutional Foundations for Reconstruction in a Post-Revolutionary Cuba: A Conceptual Exercise,” ASCE Proceedings Paper (Mar. 31, 2026).
[8]See Larry Catá Backer, “Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes,” 70 Law & Contemporary Problems 1 (2007); see also Larry Catá Backer, Caribbean Marxism: Essays on Cuba in the Post-Fidel Castro Era (Little Sir Press, 2018); “Cuba and the Constitution of a Stable State of Misery: Ideology, Economic Policy, and Popular Discipline,” 13(2) Penn State Journal of Law & International Affairs 1–84 (2025); “Forbidden Cities” (Oct. 15, 2008); “From Hatuey to Che: Indigenous Cuba without Indians and the U.N. Declaration on the Rights of Indigenous Peoples,” 33(1) American Indian Law Review 201–238 (2008); and “Legal-Institutional Foundations for Reconstruction in a Post-Revolutionary Cuba: A Conceptual Exercise,” ASCE Proceedings Paper (Mar. 31, 2026).
[9]Fidel Castro Ruz, “Palabras a los intelectuales” (June 1961): “dentro de la Revolución, todo; contra la Revolución, nada.”
[10]Larry Catá Backer and Flora Sapio, “Popular Consultation and Referendum in Cuban Socialist Democracy,” in Cuban Socialism in a New Century: Adversity, Survival, and Renewal.
[11]Justinian, Institutes, Book I, Title 1: “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi.”
[12]Digest 50.17.206 (Pomponius): “Iure naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem.”
[13]Estatuto del Partido Comunista de Cuba, arts. 15–19, 45–53.
[14]On bureaucratism and the corruption-discretion axis, see Larry Catá Backer, The Cuban Communist Party at the Center of Political and Economic Reform, 8 Northwestern Interdisciplinary L. Rev. 71 (2015).
[15]The 2019 Constitution of Cuba introduced “propiedad privada” as a recognized category alongside state, cooperative, and personal property, while simultaneously prohibiting the “concentración de la propiedad y la riqueza.”
[16]The Conceptualización del modelo económico y social Cubano de desarrollo socialista, adopted at the VII Congreso del Partido Comunista de Cuba (2016).
[17]Programa Económico y Social del Gobierno (2026), citing the Conceptualización and the Lineamientos as “documentos rectores que rigen la dirección del desarrollo del país.”
[18]Larry Catá Backer, “The Cuban Communist Party at the Cusp of Change,” in Reforming Communism: Cuba in a Comparative Perspective (Scott Morgenstern and Jorge Pérez López, eds.).
[19]Larry Catá Backer, “The Cuban Communist Party at the Cusp of Change,” in Reforming Communism: Cuba in a Comparative Perspective (Scott Morgenstern and Jorge Pérez López, eds.).
[20]See Hu Angang, China’s Collective Presidency (Dordrecht: Springer, 2014).
[21]See Eusebio Mujal-León and Joshua W. Busby, “Much Ado About Something?: Regime Change in Cuba,” in Cuban Communism, 1959–2003 (Irving Louis Horowitz and Jaime Suchlicki, eds., Transaction Publishers, 2003).
[22]On the distinction between “socialist democracy” and classical Leninist democratic centralism in the Chinese context, see Larry Catá Backer, “Crafting a Theory of Socialist Democracy for China in the 21st Century,” Asian-Pacific Law and Policy Journal 16(1):29–82 (2014).
[23]See Larry Catá Backer and Keren Wang, “The Emerging Structures of Socialist Constitutionalism With Chinese Characteristics,” Pacific Rim Law & Policy Journal 23(2):251–341 (2014).
[24]See Larry Catá Backer and Keren Wang, “The Emerging Structures of Socialist Constitutionalism With Chinese Characteristics,” Pacific Rim Law & Policy Journal 23(2):251–341 (2014).
[25]See, e.g., the experience documented in Poland, the Czech Republic, Hungary, and reunified Germany after 1989. Cf. Mańko, “The Survival of the Socialist Legal Tradition” (2013).
[26]Larry Catá Backer, “The Cuban Communist Party at the Cusp of Change,” in Reforming Communism: Cuba in a Comparative Perspective (Scott Morgenstern and Jorge Pérez López, eds.).
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