Law and Justice in Soviet Society

The 1917 Revolution played a very special role in the development of Russian law and the judiciary. Institutionally, both the court system and administrative apparatus have undergone radical transformations during the 70 years of the socialist regime. A socialist society also produced a peculiar normative base, which determined how conflicts were resolved and justice restored. This applied to legislation, as well as the general principles and values regulating social interactions in socialist society. Scholarship has dubbed this type of legal system socialist, or social. This chapter mostly looks into how the mechanism of complaints was built into the general assortment of ways to restore justice available to citizens of the USSR, how it was organized, and how it served as an institutional structure channeling a request for justice.

The first reason for radical changes occurring after the 1917 Revolution in the sphere of law and the foundations of justice lay in the total rebuilding of everything related to the Tsars—one of the Revolution’s major political promises. Following through on this promise brought about dramatic consequences for the judiciary. A Decree “On Court” No. 1 adopted on November 22, 1917, dissolved all pre-existing judicial institutions. In the first draft of his article “The Immediate Tasks of the Soviet Government,” Lenin wrote:

... the absolute duty of the proletarian revolution was not to reform the judicial institutions .., but to destroy them completely, sweep away the entire old court and its apparatus. This necessary task was accomplished successfully by the October Revolution (Lenin 1969a[1918]:162–163).

By 1922, a new court reform had been prepared. The Statute on the Judiciary of the RSFSR, adopted on November 11, 1922, set up a three-level system of general courts. The lowest level was represented by People’s Courts (narodnye sudy or narsudy). These courts differed from their predecessors—Justices of the Peace—in their jurisdiction. The level of local courts, which included the Justice of the Peace and the Volost’ Courts, and were closest to the people, were abolished. In the case of an unsatisfactory decision of the People’s Court, the appeal could be submitted to a governorate (gubernia) level, but no further (Solomon 1996:21–22). The Supreme Court was established as the highest level of the judiciary and a supervisory body for all types of courts, however under the Soviet system it was never completely independent. Judges of the Supreme Court were appointed by the Presidium of the Supreme Council of the USSR and later elected by the Supreme Court of the RSFSR.¹³ The higher the court, the more desirable it was for a judge to have professional legal training. However, this was not a requirement for any court, including the Supreme Court. Much more important was the candidate’s compliance with such criteria as public and party work experience, loyalty to the ideas of

13 The highest organ of state administration that had lawmaking and some executive and controlling powers. Was established by the 1936 Constitution. Replaced the Congress of Soviets and the Central Executive Committee of the Soviet Union.

Socialism (the so-called ‘revolutionary consciousness’), their working-class background, and later, party membership (Solomon 1996:30–31).

The decree On Court No. 1 abolished the laws of the former regime as contradicting the ones newly adopted by the All-Russian Central Executive Committee (VTsIK) and the Council of People’s Commissars (SNK). Over the first years of the Soviet government, a lot of effort was invested into creating a new regulatory base. In 1918–1922, the first wave of codifying the new legislation took place.¹⁴ The haste, with which the first Soviet legislation was adopted, took a toll on its quality. A researcher of the language of the first Soviet laws remarks on their extremely broad statements and an abundance of unclear definitions (Feldman 2006). This is partly to do with the general principles of the Bolshevik, and later socialist judicature, which granted judges quite a lot of freedom to interpret offences and correlate judgments with the norms of socialist morality. Lenin also insisted that Soviet law be simple and popular and above all avoid the bureaucratic deformations he had encountered during his short career as a lawyer under the Tsar. But the more functions Lenin attributed to the law, the more difficult it would prove to keep it simple (Solomon 1996:28).

The freshly minted regulatory base suffered from multiple gaps. In spite of the declared principle to ban the Tsarist legislation, some of the earlier laws were acceptable to use during the first decades of the Soviet regime.

As Stalin said in a conversation with the British author Herbert Wells, “ If […]

14 As early as in 1919 Petr Stuchka suggested codifying the new law. Constitution was to have pride of place, followed by the ‘social law’ comprised of family law and social welfare law. After that were supposed to be ‘property rights’ or, rather, laws abolishing and limiting these rights (land and industry nationalization, as well as

‘the acceptability of using the residual vestiges of private property rights during the period of transition’. The collection was to be completed by codified labor regulations,

‘leftovers of contractual law’, and international law. Thus systematized norm would become ‘the basic law that is compulsory for everyone’, while all subsequent legislations would be nothing but technical guidelines. This first attempt to tackle the issue of a legal system was determined by a practical necessity due to the formation of the Soviet legislative system. The 1920s were a period of intensive work on codification of the law. This was when the Civil Code, the Criminal Code, the Land Code, the Code of Civil Procedure, the Code of Criminal Procedure, the Labor Code were adopted and became operative, and the projects for the Commercial Code, Industrial Code, Co-Operative, and Administrative Code developed.

any of the laws of the old order can be utilized in the interests of the struggle for the new order, the old laws should be utilized.”¹⁵ Also in the process of compiling the Criminal Code of 1922 recourse was made to the project of the Criminal Code developed in 1903, but never fully enacted (Solomon 1996:29).

New Soviet legislation was not supposed to go against the main premises of the Marxist-Leninist doctrine. Thus, certain legal spheres were doomed to remain underdeveloped or to be pushed out from the judiciary and into paralegal structures. This was especially true of civil law as pertaining to the protection of individual rights, private property rights, labor law, housing law, and laws protecting an individual’s honour and dignity. Rejected for ideological reasons was administrative law regulating public relations in the sphere of governmental bodies’ managerial activities and public officials’ actions in the process of performing executive functions on behalf of the state. This area of law was supposedly relevant exclusively to a bourgeois society where policing and tensions between those in power and the populace were believed to exist. In contrast, socialist society would build on the principle of close-knit partnership between the power and the citizens, and on the immediate involvement of the latter in state governance.

The second reason for a radical transformation of legal sphere under the Soviet regime follows from the powerful influence of the Marxist doctrine proposing an idiosyncratic vision for how public relations are to be regulated.

Law was understood primarily as a bourgeois society’s regulatory system.

All law was necessarily class law, cementing the power of the ruling class and repressing the others. Human rights were “nothing but the rights… of egotistic man…, who is separated from other men and from community”

(Marx 1970[1875]:44). According to the Marxism, Socialism—a formation Russia entered through the Revolution—is a transitional phase on the way to a classless society with no private property and no priority given to individual rights—in other words, any of the things that the law protects in a bourgeois society.

15 Joseph. Stalin’s conversation with the British author Herbert Wells. 23 July 1934.

http://www.magister.msk.ru/library/stalin/14-1.htm. Quoted from https://www.

marxists.org/reference/archive/stalin/works/1934/07/23.htm

The role of law in a socialist society became the subject of a heated debate among legal scholars in the 1920s. During the years of the formation of the Soviet system, the opinion was widespread that law as a system of regulating society was destined to dissolve. In particular, Evgenii Pashukanis, a famous legal scholar and the Deputy People’s Commissar of Justice in 1936–1937, recognized the specific nature of the “Soviet law.” This new, “inauthentic”

law and the state, established under dictatorship of proletariat, Pashukanis (and many other Marxists) compared to authentic law and state. He believed, that not being rooted in the authentic legal paradigm, the “Soviet law” would disappear in the future.

Marxism therefore hoped for a society in which goods would be distributed not in exchange for their equivalent value measured in terms of money, labor, or deserts but, as in a family, in response to each recipient’s individual needs.

Just like in a family, interactions would be governed not by formal rules, designed and applied by professionals, but by informal, ad hoc, fact-specific decisions among comrades (Pashukanis 1980[1924]).¹⁶ To Pashukanis and his contemporaries, with the establishment of Socialism, the market (and thus law) in the Soviet Union would be driven out by the Economic Plan, formal rules would be replaced by technical specifications, due process required to resolve conflicts would be superseded by the “unity of purpose” among the comrades bent over a common task (Pashukanis 1980[1924]:137).

Gordon Smith (1988:138) argues that Vladimir Lenin accepted the Marxist conception of law and the state as instruments of enforcement that belonged to the ruling class. He presumed the eventual transition to a communist society in which enforcement instruments of the state and law would no longer be necessary and would, indeed, wither away. The situation Lenin confronted in the lawless and chaotic days following the overthrow of the Provisional Government in November 1917, however, called for a legal system to provide law and order. He wrote:

16 The general theory of law and Marxism, in: Beirne, P and Sharlet, R. (eds.) From Evgeny Pashukanis, Selected Writings on Marxism and Law, London and New York. pp.

32–131. Cit by: (Markovits 2007).

There is no doubt that we live in a sea of illegality and that local influences are one of the greatest, if not the greatest, obstacle to the establishment of legality and culture. . . . It is clear that in light of these conditions we have the firmest guarantee . . . that the Party create a small, centralized collegium capable of countering local influences, local and any bureaucratism and establish an actual, uniform conception of legality in the entire republic and the entire federation (Lenin 1970[1922]:200–201).

Andrei Vyshinskii, the procurator of the USSR in 1935–1939, formulated the Marxist-Leninist version of the understanding of the role of law in socialist society. Vyshinskii denied the disappearance of law as a system and advocated the establishment of the so-called Proletarian law. In his work “Revoliutsionnaia zakonnost’ i zadachi sovetskoi zashchity” he affirmed the conception of law as a means of fighting for socialism and of reprisals against the enemies of socialist society (Vyshinskii 1934:18–20).

As a result, socialist judicial system acquired very distinctive features, such as:

• The law plays second fiddle to ideology and socialist morality (Lukach 2004:450);

• Collective rights trump individual rights;

• Judicial process is not an adversarial system; public prosecution is con-sidered to be a “provider of justice;”

• The judiciary is subordinate to the Communist Party.

Throughout the Soviet period, the judiciary evolved and changed. This process, like many other socio-political processes taking place in Soviet society, was characterized by certain ambiguity. On the one hand, the entire judicial system was expected to constantly reaffirm its subordination and loyalty to Marxist-Leninist teachings, to highlight the differences from the bourgeois judicial system. A 1956 Soviet legal dictionary defined the principle of the rule of law as an “unscientific concept depicting the bourgeois state as one in which there is supposedly no place for arbitrariness on part of the executive authority and where law and legality are supposed to reign supreme” (Kudriavtsev

1956) The concept, according to the dictionary, is used “in a demagogic way”

by the bourgeoisie of many countries “in their class interests” in order “to inculcate harmful illusions in the masses, to mask the imperialist essence of the contemporary bourgeois state and its law” (Quigley 1990:206).

On the other hand, as Soviet regime stabilized, so did also Soviet legal institutions, not without undergoing some modernization along the way.

Even during the blackest years under Stalin, the rule of law was occasionally restored, with higher standards of professional training demanded of specialists, the language of the laws made more precise and to the point, the Constitution amended and adopted (1918, 1936, 1977). The degree, to which these changes correlated with the principle of supremacy of the law, is open to discussion, however, attempts to bolster an established regime through constitutional order are valuable in and of themselves. Additionally, historians usually distinguish two waves of law codification: one during the short period between 1922 and 1924, another beginning in late 1950s and lasting until the demise of the Soviet system.¹⁷

Thus, despite its stark contradiction to Marxist-Leninist teachings, the judiciary system did not disappear under the Soviet regime. The Bolsheviks assumed the typical monarchic ambiguity in regards to restoring justice. In pre-Revolutionary Russia, the law as the body of basic regulations competed with customary practices, whereas Socialism developing alongside the judiciary paved the way for para-judicial mechanisms based to a large extent on newly formed socialist morality. In Tsarist Russia, the law failed to become the one and only principle regulating public relations; the socialist conditions made this scenario simply impossible.

17 As a result of the postwar large-scale codification, the Basic Principles of Law, the Civil Code, the Code of Civil Procedure, the Criminal Code, and the Code of Criminal Procedure were adopted in all Soviet republics. In total, 15 basic legislative documents were adopted between 1958 and 1977. In the 1970s–1980s, the Labor Code of the RF (1971), the Housing Code of the RF (1983), the Code of Administrative Offences of the RF (1984) were adopted. In 1993, the Customs Code of the Russian Federation was adopted. In 1994–1995, two parts of the new Civil Code of the Russian Federation were adopted.

In post-socialist Russia, the new Family Code, Water Code, Forest Code, new Criminal Code, etc., were also adopted.

Just like the judiciary was not entirely separated from the executive, so also the general division of power in the Soviet state was rather tentative.

The branches of power were distinguished nominally, however, their functions and ranges of responsibilities were neither clearly defined, nor always observed. Meanwhile, the revolutionary interruption and denial of monarchical inheritance brought also a number of modernizing steps.

The Bolsheviks project brought the first experiences of the codification of legislation. Besides, its anti-monarchist foundations destroyed a pattern of the divine origins of justice, which served the basis of monarchical power.