Abstract
There are three kinds of authority to which people usually refer to prove validity of social regulations. First, there are outstanding persons, (eventually institutions), and then, facts and ideas, (general principles).
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References
‘Among all legal norms statutes (zakony) have a particular significance. Statute is the highest and fundamental form of Law; it is the law in its highest expression.’ (A. K. Stalgevich, ‘K voprosu o poniatii prava,’ Sov. Gos. i Pravo, 1948, No. 7, p. 56).
Lenin, Vol. XX, p. 532; vol. XXV, 4th ed., p. 72. Cf. Trainin, ‘State and Law’ (Soviet Legal Philosophy, p. 445) and Stalgevich, ‘K voprosu o poniatii prava” (Sov. Gos. i Pravo, 1948, No. 7, pp. 49–63).
Ibid., Vol. XXII, p. 420, 421; Cf. Vol. 36, 4th Ed., p. 92.
A. Vyshinskii, Teoriia sudebnykh dokazatelstv, p. 133.
The role of the Communist Party in the Soviet political structure and its correlation with the official organs of the Soviet state are described in more detail below (Chapter 15).
The official point of view in the Soviet Union is reversed. ‘The efficiency of our politics as expressed in law is based on the violence applied by the majority against the minority.’ V. Komarov, ‘Osnovnye voprosy teorii Sovietskogo prava,’ Sov. Gos. i Pravo, 1934, No. 1, p. 46. Komarov repeats Stalin who in turn repeats Lenin’s characterization of Bolshevist revolution directed against the bourgeois minority and in interests of the working masses. However, since 1917 circumstances have essentially changed. Since 1929, Soviet legislation is directed sometimes against the peasantry, sometimes against the workers, etc. Revolution requires sacrifices from all parts of population, each part is subject to ‘the violence,’ in one or another relation, and thus ‘the minority’ dominates the ‘majority.’ The forcible character of the Soviet legislation is reflected especially in the penal system. ‘The source of Soviet criminal law is being re-emphasized as lying in the need for the protection of class society, having no relationship to the equivalents of bourgeois exchange.’ (J. Hazard, J. of the Amer. Inst, of Criminal Law, Vol. XXIX, 1938, p. 169). The new Code of Soviet Criminal Procedure must have as its central theme the preservation of the Soviet way of life (the socialist state of workers and peasants). Strogovich, Ugolovnyi Process, Ed. 1938, note 6 on p. 10.
Malitsky, Sovetskoe Gosudarstvennoe Pravo, Kharkov, 1926, p. 14. Cf. M. M. Agar-kov, ‘Osnovnye printsipy Sovetskogo grazhdanskogo prava,’ Sov. Gos. i Pravo, 1947, P.35.
A. Vyshinskii, ‘Zákonnost revolutsionnaia,’ Bolshaia Sovetskaia Entsiklopedia, Vol. XXVI, ed. 1933, pp. 86–91 ; also Judiciary of the USSR (Russian, 2nd, ed. 1935), p. 32, quoted by V. V. Gsovski, ‘Soviet concept of Law,’ Fordham Law Review, Vol. VII, 1938, p. 31.
These reforms are being issued by Ukases of the Presidium of the Supreme Soviet while amendments of the Constitution require a vote of the majority of two-thirds in the Supreme Soviet.
‘The legal norms established by the decrees and orders of the Council of Ministers regulate a very wide circle of political, economic and cultural problems of the life of the Soviet society.’ (Osnovy Sov. Gos. i Prava, M. 1947, p. 48).
There are only two examples of the application of customs for the derivation of law: Articles 89 and 90 of the Code of Commercial Navigation of the U.S.S.R. permit the law to sanction the custom of a given port concerning time for loading and unloading and demurrage; Article JJ of the Land Code of the R.S.F.S.R. authorized the local custom applied to division of a peasants’ household. Osnovy Sov. Gos. i Prava, 1947, p. 49.
See J. N. Hazard, ‘The Soviet Court as a Source of Law,’ Washington Law Review, Vol. XXIV, No. 1, Feb. 1949, pp. 80–90. Prof. Hazard relates the discussion which took place in the Vsesoiuznyi Institute lurid. Nauk and arguments of both sides. He does not find that the point is disproved, that ‘court practice cannot and must not create new norms of law,’ and that ‘it must correspond with precision to existing norms.’
N. P. Sagatovsky and A. A. Reiner, ‘Protiv izvrashchenii sotsialisticheskoi zákonnosti,’ Sov. Gos. i Pravo, 1949, No. 2, pp. 36–39.
‘The Plenum of the Supreme Court establishes the most essential and often repeated misinterpretations of law by the courts, points them out to the courts and explains how they have to act in order to evade such mistakes in the future.’ Prof. M. Strogovich, Ugolovnyi Process, M. 1946, p. 90.
See Chapter XXIV.
The problem of the sources of International law will be discussed separately.
Cf. I. Baranov, Planovoe Khoziaistvo, 1949, No. 5, p. 63. Also Chapter X. ls Collective agreements had a normative character, but ‘as long as the planning system proved to become predominant in the whole national economy collective agreements were losing more and more their normative character.’
Prof. V. M. Doga-dov, ‘Etapy razvitiia Sovetskogo kollektivnogo dogovora,’ Izvestiia Akademii Nauk, Otdel economiki i prava, No. 1, 1948, p. 87.
A. Vyshinskii, Teoria sudebnykh dokazatelstv, p. 53. Uchenye Zaptski. Akademia Obshchestvennykh Nauk. pri TsK VKP (b) Vypusk 8, M 1951, p. 83.
S. F. Kochekian, ‘Sotsialisticheskoe pravo i ego istochniki’ Trudy Yubileinoi Sessii Akademii Nauk posviashchennoi tridtsatiletiiu Oktiabrskoi Revolutsii, Moscow. 1948.
Vyshinskii’s point of view would be supported if the Supreme Court had been forced to limit its guiding directives to interpretations of existing law, but this is not its present practice.
Collection of Laws and Decrees of the USSR, 1924, No. 7, text 71 ; also C. Askarkha-nov i C. Brodovich, Administrativnoe Zakonodatelstvo, OGIZ, 1936, pp. 20–23.
Cf. V. Gsovski, Vol. I, pp. 224–229.
Sbomiki deistvuiushchikh postanovlenii plenuma i directivnykh pisem verkhov-nogo suda S.S.S.R. Iuridicheskoe Izdatelstvo Ministerstva Iustitsii.
Especially valuable are the annotated editions of the Penal Code and the Collections of laws on Labor Law, Zakonodatelstvo o Trude.
Soviet jurists can criticize each other, in speaking of their newly published books and articles, only from the point of view of their theoretical approach toward legal problems and their consistency as Marxists. Cf. A. K. Stalgevich, ‘0 krupnykh nedostatkakh v sovetskoi iuridicheskoi literature,’ Sov. Gos. i Právo 1949, 1, pp. 26–39; V. M. Chkhikvadze, ‘Razvivať i kultivirovať Sovetskii patriotism,’ Sov. Gos. i Pravo, 1949, No. 4, pp. 8–17.
For the needs of a more detailed study of Soviet law there are several valuable collections of Soviet legal sources translated in English: 1. V. Gsovski, Soviet Civil Law, Vol. II, Ann Arbor, 1949 (Civil Code, Code of Laws on Marriage, family, and Guardianship, Soviet Nationality Law, Statute on Governmental Trusts, Civil Status of Churches, Patent and Copyright, Agrarian Legislation, Judiciary Act, Code of Civil Procedure, and some others). 2. Materials for the Study of the Soviet System by James H. Meisel and Edward S. Kozera. Ann Arbor, 1950 (State and Party Constitutions, Laws, Decrees. Decisions and Official Statements of the Leaders from 1917 to 1950). 3. Cases and Readings on Soviet Law by J. Hazard and M. Weisberg. Parker School. N. Y., 1950 (This variegated collection contains, besides many excerpts from the Soviet statutes, decrees, instructions, orders, model charters, cases, and excerpts from Soviet juridical literature). 4. Soviet Law in Action. The Recollected Cases of a Soviet Lawyer. Boris A. Konstantinovsky. Ed. by H. Berman, Harvard Univ. Press, 1953.
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© 1954 Martinus Nijhoff, The Hague, Netherlands
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Guins, G.C. (1954). Sources of Soviet Law. In: Soviet Law and Soviet Society. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0869-8_7
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