Abstract
There are only a few jurists of the western world who regard the Soviet legal system and Soviet justice as a challenge or as a new achievement of, social culture.1 A legal system which overloads citizens with obligations and does not give them any guarantees of rights or freedoms cannot attract those who understand the advantages of the ‘rule of law/ There are, however, some jurists who are more or less indulgent toward the arbitrariness and ruthlessness of the Soviet legal system, since they consider it to be only a successor to the pre-revolutionary Russian law known to the Russian people for generations. Such a point of view is supported by a general theory of law as a psychological phenomenon passing ‘from generation to generation’ and ‘intimately bound up with a people’s whole historical development.’ Soviet law is, consequently, regarded as built on the foundations of the Russian past and permeated with ‘Russian ruthlessness.’2
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
Cf. critical survey by N. S. Timasheff, ‘Is Soviet Law a Challenge to American Law?’ Fordham Law Review, Vol. XIX (June 1950), pp. 182–189.
Harold J. Berman, Justice in Russia: An Interpretation of Soviet Law (Cambridge: Harvard University Press, 1950), pp. 191, 200–203.
‘Soviet Russia has ... not inherited the legal conception of the state which has had so strong an influence in the West, and which was beginning to develop so rapidly in Russia itself in the late nineteenth and early twentieth centuries.’ Berman, op. cit., p. 161.
It is not accidental that all great philosophers of the modern world, both English and German, discussed problems of law and state in connection withjtheir ethical systems.
Rudolph von Jhering, The Struggle for Law (Chicago, 1879), a translation from the German.
G. C. Guins, Ethical Problems of Contemporary China (in Russian, Harbin, 1927).
Published in English under the title The Grand Instructions to the Commissioners appointed to frame a new Code of Laws for the Russian Empire. Composed by Her Majesty Catherine II. Translated by M. Tatishchev, London, 1768.
A. N. Radishchev, Puteshestvie iz Peterburga v Moskvu, 1790 (edited in Paris, France, 1921).
Nicolas Berdyaeff, The Russian Idea (London, 1947), pp. 51 ff.
Prof. Ivan Iljin, Wesen und Eigenart der russischen Kultur (2 Aufl., Affoltern a. H.: Aehren Verlag, 1944).
N. Berdyaev, C. Leontiev (London, 1940), especially pp. 186–188, 227.
This peculiarity of the Russian national psychology has been characterized by the present author in his article ‘Peculiarities of the World Outlook of Leo Tolstoy,’ in Russkoe Obozrenie (Harbin, Manchuria), December 1920.
Nobody has succeeded better in depicting the various difficulties in establishing the foundations of a legal order in Russia than V. A. Maklakov, in his books The First State Duma and The Second State Duma, published in 1939 and 1945 in Paris, France (Editions ‘La Renaissance,’ in Russian).
Despite all the limitations, several provincial zemstvos succeeded in developing their activity on a broad scale, especially in the field of education, sanitation and agronomic assistance to the population. See T. Polner and V. Obolensky, Russian Local Government during the War (New Haven, 1930);
N. J. Astrov, ‘The Municipal Government and the All-Russian Union of Towns’ in P. P. Grónsky, The War and the Russian Government (New Haven, 1929);
P. Vinogradov, Self-Government in Russia (London, 1915);
P. Vinogradov, The Russian Problem (London, 1914).
Since the establishment of the State Duma, the staff of the central institutions included many excellent specialists.
In Russia, a country of extreme contrasts, it was possible to observe side by side with a high civilization an extreme backwardness in the villages and in the regions populated by the primitive non-Russian tribes.
See G. C. Guins, ‘Administrativnoe i sudebnoeu stroistvo Asiatskoi Rossii,’ in Asiatskaia Rossiia, Vol. II, Izd. Pereselencheskogo Upravleniia (Petrograd, 1915).
The Code of Laws (Svod zakonov) should be distinguished from the voluminous Complete Collection of Laws (Polnoe sobranie zakonov), which included all the statutes, orders and regulations in chronological order. Every year one new volume was added to the Complete Collection, comprising all the essential statutes, ukases, and decrees which during the year were published in a special periodically issued bulletin (Sobranie uzakonenii) and in official papers. The difference between, the Svod zakonov and the Polnoe sobranie zakonov is often ignored even by acknowledged experts on Russian law. (See, for example, The U.S.S.R., edited by Ernest J. Simmons, Ithaca: Cornell University Press, 1947, p. 172). The Svod zakonov consisted at first of fifteen volumes; in 1892 a sixteenth volume was added, containing the Judicial Statutes of 1864. The structure of the Code of Laws always remained the same and even the enumeration of articles was preserved ; but the text was constantly revised in accordance with current legislation, and, therefore, some parts of the Code of Lawswere re-edited several times. As regards the Complete Collection of Laws (Polnoe sobranie zakonov), it was published continuously and there are three separate collections. The First Collection, published in 1830, included all laws from 1649 to 1825, in 45 volumes; the Second Collection, in 55 volumes, ends after the death of Alexander II; the Third Collection was begun in 1881 and included the laws promulgated during the reigns of Alexander III and Nicholas II.
An author asserts that the Russian Svod zakonov ‘took over European law wholesale, often with little reference to Russian conditions.’ (Harold J. Berman, ‘The Challenge of Soviet Law,’ Harvard Law Review, Vol. 62, No. 2, 1948, p. 252, note 45). In fact, every article of the Svod zakonov was taken from statutes which can easily be found in the Polnoe sobranie zakonov. Only the first part of volume X, the civil code (Svod zakonov grazhdanskith), contained some provisions borrowed from Europe, especially from the French Napoleonic Code.
Some important parts of the Svod zakonov, namely, Zakony grazhdanskie (Civil Law) and Ugolovnoe ulozhenie (The Penal Code), had to be replaced by newly drafted codes. Both drafts were published with voluminous and detailed commentaries. Although only part of the draft of the penal code was put into effect, the whole work had both scientific and practical significance. John N. Hazard erroneously asserts that the new criminal code ‘was never published, except for the chapter on state crimes’ (treason). It was promulgated on March 22, 1902, and all of its general provisions, which Prof. Hazard characterizes as ‘the most advanced and liberal,’ (The U.S.S.R., E. J. Simmons, ed., p. 172) went into effect. Only the enforcement of a special part was postponed, until re-adjustment of the penal system.
Almost the same conditions, if not worse, existed in many colonies of the European nations. However, these colonies were distant and did not attract as much attention as Russia’s Asiatic possessions, which comprised a part of the state.
‘The Russian movement in Central Asia has been marked by discipline and humanity ... Russia has forbidden slave trade in her own Asiatic possessions, as well as in the countries under her protection.’ (W. E. Baxter, England and Russia in Asia (London, 1855), Ch. III, pp. 20–30.
Prof. A. Kunitsin inspired Pushkin with ideas of the innate rights of man, the equality of human beings and freedom as an ideal of the legal order; and the great Russian poet dedicated some heart-felt lines to this teacher. Later on, however, and up to the time of the Great Reforms, only the historical study of law flourished in Russia. See G. C. Guins, ‘The Old Russian Civilists,’ Monitor of Civil Law (Vestnik grazhdanskogo prava), November, 1916, pp. 3–29.
M. Kovalevsky, B. Chicherin, Korkunov, Pobedonostsev, Tagantsev, Foinitsky, Martens, Baron B. Nolde, Sergeevich and Diakonov are.probably the best known. A short survey of law and jurisprudence in Russia is available in the Slavonic Encyclopaedia, edited by J. S. Roucek (New York: Philosophical Library, 1947), pp. 637–639.
One of these jurists was Leo Petrazycki, who proved to be one of the mostemi-nent theorists of law, and who became the head of a new school on the psychological theory of law. His most important work, A Theory of Law and State, published in Russia in 1909–10 in two volumes, is a forthcoming publication of the Law School Association. See Hugh W. Babb, ‘Petrazhitskii,’ in the Boston University Law Review, Vol. XVII, No. 4; Vol. XVIII, No. 3, 1938; also ‘Leo Petrazicki,’ by A. Meyendorff in the symposium Modern Theories of Law (London, 1933) ;
N. S. Timasheff, ‘Petrazhits-kii’s Philosophy of Law’ in Interpretations of Modem Legal Philosophies, 1947;
Max M. Laserson, ‘The Work of Leon Petrazhitskii: Inquiry into the Psychological Aspects of the Nature of Law,’ Columbia Law Review, v. 51, January, 1951, pp. 59–82.
Pravo; Vestnik Prava; Vestnik Grazhdanskogo Prava; Iuridicheskii Vestnik; Zhurnal Ministerstva Iustitsii; Izvestia Demidovskogo Litseia; Iuridicheskaia Biblio-graphia.
One has only to become acquainted with the eight volumes of commentaries to the draft of the new Russian Penal Code promulgated March 22, 1903, and with the voluminous commentaries to the draft of the new Civil Code which was submitted for the consideration of the State Duma, in order to get an idea of just how high the level of the Russian science of law really was.
Decree on the organization of militsia, April 17, 1917. Collection of Laws, No. 97, text 537.
Decree of May 21, 1917, Collection of Laws, No. 112, text 655. Municipalities re-elected officers on the basis of universal suffrage (Decree of April 15, 1917, Collection of Laws, No. 95, text 529).
Decree of June 13, 1917, Collection of Laws, No. 127, text 692.
Decree of May 4, 1917, Collection of Laws, No. 104, text 577.
Decree of May 30, 1917, Collection of Laws, No. 127, text 692.
Decree of April 11, 1917, Collection of Laws, No. 86, text 492.
Decree on Right of Meetings and Unions of April 12, 1917, Collection of Laws, No. 98, text 540; Decree on the Press of April 27, 1917, Collection of Laws, No. 109, text 597; Decree on Freedom of Religion of July 14, 1917, Collection of Laws, No. 188, text 1099.
See electoral laws of April 15, 1917, Collection of Laws, No. 95, text 529, and of May 21, 1917, Collection of Laws, No. 112, text 655. Law on public service, decree of August 5, Collection of Laws, No. 216, text 1413; Decree on admission of women to the bar of June 1, Collection of Laws, No. 132, text 706.
Decree on joint-stock companies of March 10, 1917, Collection of Laws, No. 69, text 388.
Decree of March 20, 1917, Collection of Laws, No. 72, text 414.
Decrees of May 4, Collection of Laws, No. 104, text 577; of June 16, Collection of Laws, No. 159, text 875; of July 18, Collection of Laws, No. 206, text 1299, and many others.
Decree of July 28, Collection of Laws, No. 201, text 1246.
Decree of July 12 and 29, 1917, Collection of Laws, No. 201, text 1247.
The evaluation of the significance of the Supreme Soviet offered in the text is based on analyses of the minutes of the sessions of that body as they are published in the Soviet press. Soviet leaders transmit their wishes to the people in the Supreme Soviet, but they do not use it for becoming acquainted with the people’s wishes. At least, the minutes of the sessions do not give any grounds for concluding that they do. However, Harold Berman offers a contrary opinion, Harvard Law Review, v. 62, No. 3, p. 463, note 35.
Arts. 89–91, Constitution of the R.S.F.S.R.; Arts. 84–86, Ukrainian Constitution, etc.
Arts, 72, 83, 92, 96, 99, Constitution of the R.S.F.S.R.; Arts. 74, 78, 87, 91, 94, Ukrainian Constitution, etc.
Stalin’s famous interview with Roy Howard. See Lenin and Stalin, Collected Works (Partizdat, 1937), Vol. III.
The scheme of Russian social and political development offered in the text does not support the conclusions arrived at by Harold Berman in his article, “The Challenge of Soviet Law,’ Harvard Law Review, Vol. 62, Nos. 2 and 3, 1948. Prof. Berman finds that Bolshevism is rooted in the Russian national psychology and is based in part on the sense of community (sobornost) of all men as comprising a single congregation, bound by common ritual and liturgy, and ultimately by a common sense of brotherhood originating in Kievan Russia. As a characteristic of Russian national psychology, sobornost had been ‘discovered’ by the Slavophils and was a product of mere imagination, a premeditated idealization of the past on the part of the Slavophils for the formulation of their social philosophy. Recently Berdyaev restored the same doctrine as an element of his religious philosophy and Professor H. Berman, as earlier J. Maynard, follows this doctrine. In its too simplified formulation that doctrine characterizes communism as a Russian national phenomenon, which is undoubtedly wrong. The so-called Germanists, Gierke and others, asserted that German national law had been developed in the spirit of the Genossenschaft (community) and contrasted with the individualism of Roman law. Would it not be wrong to ascribe communism on that ground to German psychology ? Not less amazing is Ber man’s assertion that ‘the energy released by the Russian revolution is being channeled into the creation of law—the building for the first time in Russian history of a Russian legal system comparable to that of the West.’ It has been the understanding of the writer that Soviet collectivism, based on the constraint and persecution of the opposition, is in contrast to the principles of Western individualism and to the democratic organization of social and political life. In his book cited above (note 2), Berman has elaborated upon the assertions of his articles.
Cited by Julian Towster, Political Power in the U.S.S.R., (New York: Oxford University Press, 1948), p. 306 (note).
See also Resolution of the CC of the ACP (b) of October 5, 1946, which acknowledged shortcomings in legal education in the Soviet Union and insufficient development of legal literature. These phenomena are still actual according to I. K. Stalgevich, ‘O krupnykh nedostatkakh v sovetskoi yuridicheskoi literature,’ Sov. Gos. i Pravo, 1949, No. 1, pp. 26–39;
N. V. Kozhevnikov i I. D. Martysevich, ‘Nekotorye voprosy universitetskogo yuridicheskogo obrazovuniia,’ Sov. Gos. i Pravo, 1951, No. 1, pp. 46–49;
Prof. V. N. Chkhikvadze, ‘Stalinskaia programma stroitelstva kommunisma,’ ibidem, N 2, pp. 14–16.
‘Figures referring to 1935 and 1936 show that only 5.8 per cent of the Soviet judges were graduates of regular law schools, 1.8 per cent had had a one-year course in law, and 41.7 per cent had had only a six-month course in law; so that 51.1 per cent had no legal training at all. Moreover, 62.2 per cent of all the judges of the higher courts had had barely elementary educations, while in the lower courts this percentage was as high as 84.6 per cent.’ V. Gsovski, Soviet Civil Law (Ann Arbor, 1948), I, pp. 242–243. The figures were drawn from Berman, ‘Concerning Legal Education,’ (1936) Soviet State No. 5, 115; (1935) Soviet Justice No. 35, 4–5.
The situation did not change essentially until the post-war period. ‘Lower courts have been sharply criticized by a new Minister of Justice of the U.S.S.R., appointed in 1948 to revitalize the work of agencies of the law.’ John N. Hazard, ‘Political, Administrative, and Judicial Structure in the U.S.S.R. since the War,’ The Annals of the American Academy of Political and Social Science, May 1949, p. 17. Examples of the lack of preparation of Soviet judges, having at times the character of comic anecdotes, are cited by Gsovški, Ibid., I, p. 246 (note 47).
Bolshevik, No. 15, 1946. Editorial.
In the spring of 1946, the work of the session of the Law Institute was carried out in record time. It had been completed before the official opening of the session. (Octiabr. No. 3–4. 1946). The work of the Soviet jurists continues to be ‘unsatisfactory’ and from time to time is severely criticized in the Soviet press. On February 4, 1953, several conspicuous jurists of the Law Institute were reprimanded for their inactivity. See also Izvestiia January 20–24, 1953, and Sov. Gosi Pravo, 1953, No. 1.
The resolution states: ‘In the intermediate legal institutes of the Ministry of Justice, persons are being accepted without having had any secondary education; the jurists graduating from these schools are in many respects poorly prepared for work in their own field, the courts, as well as for work in the offices of the prosecuting magistrates.’ ‘The U.S.S.R. Ministry of Justice has not taken the necessary measures for augmenting and improving higher legal education.’
Sotsialisticheskaia zakonnost, No. 7, July 1948, pp. 6–22. See also Izvestia, December 26, 1946, and April 24, 1947.
J. N. Hazard, The Annals., p. 18. (See note 46).
Prof. Berman asserts however that the Soviet legal system is ‘highly developed’ because ‘for the first time in Russian history Western elements of Reason, Conscience, and Precedents, Western belief in Completeness, and Supremacy, equality and the growth of law’ characterize the existing legal system. ‘The Challenge of Soviet Law,’ p. 259. If he named those who had accepted Western elements, Prof. Berman would render a very bad service to Soviet jurists at a time when Western culture is excoriated and Soviet cultural workers are urged to rid themselves of adulation of the West and subservience to foreign thought and foreign literary schools and forms. For example, the Minister of Higher Education reprimanded Soviet jurists, saying ‘those teaching juridical subjects are not always sufficiently critical of contemporary jurisprudence and do not always denounce its anti-social exploiting substance.’ Pravda, March 10, 1947. Prof. Berman also asserts: ‘With the restoration of legal orthodoxy in the middle 1930’s, Soviet criminal law returned to its source in Roman law, and has therefore rejoined the stream of legal history from which Anglo-American law flows.’ ‘Principles of Soviet Criminal Law,’ Yale Law Journal, Vol. 56, 1947, P- 836. But Roman criminal law, unlike civil law, was never the source of the modern penal system and has nothing in common with Anglo-American law, except some maxims, like nullum crimen, nulla poena sine lege, which are not adopted by Soviet law. The official Soviet declarations about regeneration of law must be examined in connection with existing Soviet legislation and the Soviet legal order as a whole. It is impossible to give an adequate characterization of Soviet law or to determine its ‘spirit’ and ‘challenge’ on the basis of mere declarations or particular provisions of law.
Cf. Vyshinskii, The Law of the Soviet State, pp. 28–30, 35–36.
Quite the opposite is the appraisal of Soviet law offered by Prof. Berman: ‘Law plays the role of father and educator’ in the Soviet Union. See his article, ‘The Spirit of Soviet Law,’ Washington Law Review, Vol. 23, p. 163. The same is repeated in his book, Justice in Russia (see note 2 above). In the recent book by Prof. H. Berman, The Russians in Focus, Boston, 1953, similar statements did not occur.
Rights and permissions
Copyright information
© 1954 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Guins, G.C. (1954). Soviet Law and the Legacy of the Past. In: Soviet Law and Soviet Society. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0869-8_2
Download citation
DOI: https://doi.org/10.1007/978-94-015-0869-8_2
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-015-0324-2
Online ISBN: 978-94-015-0869-8
eBook Packages: Springer Book Archive