Abstract
As we have seen, Lenin characterized the state as an apparatus of constraint serving the dominant class. The state and law are an expression of the will of the dominant class, and therefore are instruments of its domination. Aided by the law, the dominant class controls the people by a systematic application of violence.1
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References
Lenin, State and Revolution (in Russian) (Collected Works, vol. XXIV, 1931 ed., p. 365). In conformity with the teacher, Krylenko—once a Commissar of Justice— characterized the court as ‘a weapon for the safeguarding of the interests of the ruling class… A club is a primitive weapon, a rifle is a more efficient one, the most efficient is the court.’ (Krylenko, The Judiciary of the R.S.F.S.R. (in Russian) 1923. Cited from Gsovski, v. I, p. 241.
‘The principal object of the Constitution of the R.S.F.S.R., which is adapted to the present transition period, consists in the establishment of a dictatorship over the urban and rural proletariat and the poorest peasantry, in the form of strong all-Russian Soviet power; the object of which is to secure complete suppression of the bourgeoisie, the abolition of exploitation of man by man, and the establishment of Socialism, under which there shall be neither class division nor state authority.’ (Art. 9, ch. V of the Constitution of the R.S.F.S.R., July 10, 1918.)
S. Dobrin, ‘Soviet Jurisprudence and Socialism,’ Law Quarterly Review, v. 52, pp. 420–21. A. Vyshinskii asserts the same thing: ‘To the students, the growing cadres, a nihilistic attitude toward Soviet law was suggested.’ (‘On the Situation on the Front of Legal Theory,’ Sotsialisticheskaya zákonnost, 1937, 5, p. 31.)
See also N. S. Timasheff, ‘The Crisis in the Marxian Theory ou Law,’ (N. Y. University Law Quarterly Review, May 1939, No. 4, pp. 519–531);
also John N. Hazard, ‘Housecleaning in Soviet Law,’ The American Quarterly on the Soviet Union, v. 1, April 1938, pp. 5–16. For further details concerning the withering away doctrine
(Lenin, Stuchka, Reisner, Pashukanis, Vyshinskii, etc.) see the symposium Soviet Legal Philosophy, J. Hazard, Cambridge, 1951.
Stalin’s address delivered at a session of the Central Committee of the Communist Party of the Soviet Union, April, 1929.
Joseph Stalin, Leninism, Selected Writings, International Publishers, N. Y., 1942, p. 113.
Quotation from the Report delivered by Stalin at the plenary session of the Central Committee and the Central Control Commission of the Communist Party of the Soviet Union, January 7, 1933. See Leninism (supra, note 5), p. 288. Quotation in the text is taken from the English translation of Vyshinskii’s The Law of the Soviet State, N. Y., 1948, p. 62.
See Komarov, ‘Osnovnye voprosy teorii sovetskogoprava,’ Sovetskoe gosudarstvo, 1934, No. 1, pp. 55–56.
Leninism, pp. 338 and 394.
Vyshinskii, ‘Voprosy pravá i gosudarstva u K. Marksa,’ Sov. Gos., 1938, No. 3; ‘Stalinskoe uchenie o sotsialisticheskom gosudarstve,” ibidem, 1939, No. 2; ‘XVIII S’ezd V.K.P. (b) i zadachi nauki sotsialisticheskogo prava,’ ibidem, 1939, No. 3.
Vyshinskii, The Law of the Soviet State, p. 51. Cf. Leon L. Fuller, ‘Pashukanis and Vyshinskii. A Study in the Development of Marxian Legal Theory,’ Michigan Law Review, XLVII (1949), p. 1157 ff.
A circumstance especially emphasized by Stalin. He set forth many times the fact of ‘capitalist encirclement’ and that bourgeois countries are awaiting an opportunity ‘to fall upon the Soviet Union and shatter it—or at least to undermine its power and weaken it.’ (Leninism, p. 83, 309 ff., 438 ff).
The same had been repeated also by Molotov: ‘Under conditions of capitalist encirclement the problem is not the withering away of the communist state, but its capacity to repulse victoriously attacks of its class enemies… Under present conditions the question which stands before us is not that of the withering away of the Soviet state, but that of strengthening its power in order to have a firm, powerful, socialist state, organized according to Bolshevist principles.’ (‘The Twenty-First Anniversary of the October Revolution,’ Bolshevik, 1938, No. 21–22, pp. 34–35.)
Vyshinskii, ibidem, pp. 50–52.
Ibidem, p. 52.
Ibidem, p. 60. Also in a special article: ‘A general formula foretells the inevitability of the state’s withering away ‘under certain economic and cultural premises,’ explains Vyshinskii; ‘namely abolition of classes, liquidation of opposing differences between city and village, between intellectual and physical labor, an extensive development of culture, disappearance of the remnants of capitalism in men’s consciousness, the custom of getting along without constraint (compulsory measures), and such a level of development of the productive forces that the abundance of material values will allow transition to the realization of the principle: ‘“From each according to his ability, to each according to his needs.’“
(Vyshinskii, ‘Stalinskoe uchenie,’ [see supra, note 9], pp. 105–106).
The legal character of some territorial problems is distinctly expressed in Art. 18 of the Soviet Constitution: ‘The territory of a Union Republic may not be altered without its consent.’ Cf. also Art. 8 of the same Constitution: ‘The land occupied by collective farms is secured to them… for an unlimited time—that is, in perpetuity.’
See G. C. Guins, Ethical Problems of Contemporary China (in Russian) Kharbin, 1927, p. 12.
Originally a very simple form of registration, marriage later became a more solemn procedure in the Soviet Union, the performance thereof being necessary for juridical significance. (Ukase of July 8, 1947, Art. 40). ‘Marriage ceremony has to be as attractive as possible, not a simple stamping of marriage documents.’ (Komsomolskay a Pravda, April, 1948).
The one-judge court in labor cases under the law of June 26, 1940, is criticized as being lacking in solemnity. (See Perlov, ‘K proektu ugolovno-processualnogo kodeksa,’ Sov. Gos. i Pravo, No. 9, 1947).
See G. C. Guins, Law and Culture (in Russian) Kharbin, 1938, pp. 70–74.
Declaration of the Rights of the Laboring and Exploited Peoples of July 10, 1918; Declaration of the Rights of the Peoples of Russia. Declaration on the Constitution of the Soviet Union dated July 13, 1923—to mention but a few. The Law of the Five- Year Plan for Restoration and Development of the National Economy of the U.S.S. R. for 1946–50, has also a declarative character.
Organizational provisions establish, to be sure, many important duties as far as citizens are concerned, and invest authorities with great power; rituals have a constitutive force and some rights cannot exist unless rituals are performed; declarations having no legal character are merely promises. Thus, all three groups cannot be classified as technical rules.
‘To each according to his work.’ (Art. 12 of the Constitution.)
‘The basis of our system is public property, just as private property is the basis of capitalism.’ (Stalin, Leninism, p. 267).
‘The prophesy of the withering away of penal repressive organs was an attempt to leave us with fettered hands and to abandon our country to the mercy of saboteurs, terrorists, and diversionists.’
(Vyshinskii, ‘Osnovnye zadachi nauki sovetskogo sotsialisticheskogo prava,’ So-vetskoe gosudarstvo, No. 4, 1938.)
This term was confirmed by the Fundamental Principles of the Criminal Legislation of the U.S.S.R. and Constituent republics, enforced by the Resolution of the nth Conference of the Tsik of the U.S.S.R., October 31, 1924 (Coll. Laws USSR, 1924, No. 24). This act is still formally in force.
Ukase on the Protection of the Property of State Enterprises, Collective Farms, and Cooperatives, and the Strengthening of Public (Socialist) Ownership. (USSR Laws, 1932, text 360.) Capital punishment was recently replaced in peacetime by confinement in a camp of correctional labor for a period of 25 years. (Ukase of May 26, 1947). On January 12, 1950, capital punishment was restored for treason, espionage, and diversionist acts. (Izvestia, January 3, 1950).
Ukase of June 4, 1947, concerning the Increased Protection of Government and Public Property. ‘…Although the death penalty is at present excluded, there are now even broader possibilities of applying severe penalties for any mishandling of property of the collective farms.’ (See Gsovski, Vol. I, p. 731).
In 1942 a ruling of the Supreme Court instructed the courts to apply by analogy the law of January 20, 1930, incorporated in the Criminal Code as Art. 79, even in the case of fraudulent slaughter of offspring in contradiction to the government’s plans for breeding of cattle. A new law was also issued and incorporated as Art. 793–4 of the Criminal Code establishing penalties for ‘illegal slaughter of horses without the authorization of the supervising veterinary authorities, the intentional maiming of horses or any malicious act which results in the loss of a horse or renders it unfit for use.’
Art. 59 of the Crim. Code.
Reporting for profit was also practiced; the person making the report was often able to obtain the housing of the person about whom he had made the report. A certain P—, for a purely personal motive, falsely accused a girl of the same village of having made anti-Soviet statements, and induced two other girls, one still a minor and the other illiterate, to sign his statement. (Both examples from Goliakov, Ugolov-noe pravo, Textbook, Moscow, 1947, p. 222.)
Law of Nov. 25, 1935. See Art. 732 (amend, of 1936) and Art. 155 of the Criminal Code.
John Hazard, ‘Drafting New Soviet Codes of Law,’ American Slavic and East-European Review, February, 1948, tells of a Soviet project of increasing penalties for the punishment of mothers who murder their newly born children. Unfortunately, the author limits himself to the simple information and does not explain why the described crime took place and why it is necessary to increase the penalty.
Goliakov, op. cit., pp. 208–209.
‘The origin of crime—the struggle of the isolated individual against dominant relationships—like the origin of law is not purely arbitrary. On the contrary, crime is rooted in the same conditions as is the governing power existing at the time.’ (Marx and Engels (Russ. Edition), vol. IV, p. 312. Quoted by Vyshinskii, The Law of the Soviet State, p. 14).
Applicati on of criminal law by analogy (Art. 16, Crim. Code) is one of the peculiarities of the Soviet system, violating one of the oldest principles nullum crimen, nulla poena sine lege. Analogy is permitted if there is similarity in kind and in importance of an act. Authors accepting this violation of fundamental principle of law indulgently (cf. H. Berman, ‘Principles of Soviet Criminal Law.’ Yale Law Journal, v. 56, 1947, pp. 804, 810) ignore the fact that the ‘importance” of an act is always defined according to the government’s views. (See supra, note 28 and comments to Art. 78, 166, etc. of the Penal Code, ed. 1947, in Russian.)
Soviet jurists assert that ‘in the social order of the U.S.S.R. there are no conditions which could give birth to criminality. The latter is the result of capitalist encirclement and survivals of capitalism in the consciousness of backward people.’ (Cf. V. M. Chkhikvadze, ‘Sovetskii sud—borba za preodolenie perezhitkov kapitalizma,’ Sov. gos. i pravo, No. 2, 1949). Such an explanation is not in agreement with the content of Soviet laws which give sufficient evidence that many crimes have their origin in conditions created by the Soviet system.
The idea of ‘superstructure’ of law had been extremely abused in the Soviet Union, and it handicapped the development of science even in such purely special branches as the linguistic. Stalin published a survey in which he asserted that language embraces all spheres of human activities and is much more wide than the sphere of influence of a mere ‘superstructure’…development of language consisted in the evolution and improvement of its fundamental elements but not in the abolition of one and construction of the other.’ (Stalin, Otnositelno Marxisma v iazykoznanii, Izd. Pravda, 1950, pp. 9, 25.)
The same, however, can be said about the development of law, which Soviet jurists try to deny (see Denisov, ‘Tsenneishii vklad v sokrovishchnitsu Marxisma-Leninisma,’ Sov. Gos. i. Pravo, 1950, No 9, pp. 1–16). At the same time they borrow a great number of legal provisions from the foreign codes and norms of International Law (cf. Antonov, Sov. Gos. i Pravo, 1938, No. 4, p. 72).
Art. 156, 166, 171 of the Civ. Code established privileges such as housing and legal force of contracts. Art. 5 of the Introductory Regulations to the Civil Code provided special privileges in application of legal provisions in regard to working people.
‘Slaughter of one’s own animals under a certain age entailed a fine for a non-kulak, but for a kulak it entailed confiscation of all his animals and implements, withdrawal of the land he used, and two years imprisonment, with or without exile.’ (USSR Laws, 1930, text 66, Sec. 1; 1931, Text 474). The same for failure to pay taxes on the date due. (See Gsovski, op. cit., p. 712.)
‘The court of the State of proletarian dictatorship is the court of the working class…’ (See Gsovski, op. cit., p. 249ff).
‘The judiciary is an organ of state power and therefore cannot be outside of politics.’ (J. Towster, Political Power in the USSR, New York, 1948, p. 304).
The continually increasing penalties of Soviet legislation contradict decisively the statement of H. Berman that ‘Socialist Law which protect and educates morality… helps the Soviet state to inculcate in the peoples of the USSR discipline and self-discipline.’ (Harold J. Berman, ‘The Challenge of Soviet Law,’ Harvard Law Review, v. 62, no. 2 and 3, 1948, p. 238). Soviet legislation demonstrates on the contrary that discipline in the Soviet Union is based on compulsion and terror rather than on ‘educational morality.’
G. J. Jellinek, System der subjectiven oeffentlichen Rechte, 1892.—The right to demand cancelling of all orders of the state if they violate freedoms; the right to judiciary and administrative assistance; and the right of participating in political activity. For a while this doctrine was not only accepted by the Soviet administrative law, but even completed with a right of using State’s property. (See Kobalevsky, Sov. Admin. Law, Kharkov, 1928, p. 12).
Cf. G. C. Guins, On the Way to the State of the Future (From Liberalism to Soli-darism), in Russian, Kharbin, 1930. Also his New Ideas in Law (in Russian), Vol. I, Kharbin, 1931, § 24; Vol. II, 1932, § 50.
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Guins, G.C. (1954). Law Does Not Wither Away in the Soviet Union. In: Soviet Law and Soviet Society. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0869-8_5
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