7

Socialist Legality and the

Soviet Legal System

Two legal systems exist in the Soviet Union today, each functioning
quite independently and bearing little resemblance to the other. The first,
the one about which the average American citizen knows the least, is the
legal system that, day in, day out, maintains law and order, enacts and
enforces the law, and adjudicates the disputes that inevitably arise among
citizens and institutions in modern societies. Existing alongside this legal
system is an arbitrary and repressive system used to punish critics of the
regime. To call the latter an apparatus for the administration of justice
distorts the concept of justice beyond all recognition. In this second legal
system, which is discussed in greater detail in Chapter 13, law and legal
institutions are used in an arbitrary and brutal manner to suppress political,
national, and religious dissent.
The problem confronting observers of Soviet legal policy is differentiat-
ing these two systems. All cases do not fall neatly into one system or the
other. Rather, there exists a grey area of uncertainty in which an ordinary
case may suddenly and unexpectedly take on a political character.
Soviet legal policy must bridge these two systems, providing a frame-
work for the functioning of each. Since Stalin's death in 1953, even the
repressive legal system has been limited by law and established procedures.
The interests of the first and second legal systems may not always coincide.
An advocate charged by law to provide a full and conscientious defense of
his client in a political case will undoubtedly feel compromised by political
risks to his career. Soviet legal policymakers are fully aware of these con-
flicts and attempt, where possible, to mediate them when they occur.
Studying Soviet legal policy formulation, then, provides an opportunity
to witness the points of contact and divergence between the two legal sys-
tems, the varying interests of the bureaucracies charged with legal adminis-
tration and the maintenance of law and order, and the shifts in power from
one system to the other.
Before proceeding to legal policy-making, we must first consider the
historical background and the structure of Soviet law and legal administra-
tion.

137
G. B. Smith, Soviet Politics
© St. Martin's Press, Inc. 1988
138 SOVIET POLITICS: CONTINUITY AND CONTRADICTION

ORIGINS OF SOVIET LAW

Historically, Russian law belongs to the larger family of civil-law sys-
tems that are ultimately derived from the rules, principles, and practices
elaborated in the ancient Roman Forum. Anglo-American students of Soviet
law, who are accustomed to the common-law systems derived from En-
gland, are at a disadvantage in understanding Soviet law and legal proce-
dure, while European scholars find the fundamentals of the Soviet legal
system quite familiar. Thus, examining any given aspect of Soviet law in-
volves determining whether it is a common characteristic of all civil-law
systems or uniquely Soviet. Furthermore, only if no parallel exists in impe-
rial Russian law does this aspect represent a unique trait of socialist law,
rather than part of the Russian legal heritage acquired by the Soviets in
1917.
Historians have noted that civil law encouraged autocracy, while com-
mon law promoted democracy. The common-law principle was enshrined in
the maxim "Rex no debet esse sub homine sed sub Deo et Lege" ("The king
should not be under any man, but under God and the Law"), while the
principle of civil law was "Quod principi placuit legis habet vigorem" ("The
will of the sovereign has the force of law"). Generally, civil legal systems
grant greater authority to state officials than do common-law systems.
Civil law and common law also differ markedly in the origins of laws.
In common-law systems, judges make law by establishing precedent deci-
sions. Laws thus change organically, growing as a result of piecemeal judi-
cial decisions. In civil-law systems, all laws are the official enactments of
executive or legislative bodies. These laws are gathered into codes and peri-
odically updated and standardized. Greater importance is attached to offi-
cial documents and reports in civil-law systems, and administrative officials
are given broader discretionary powers.
Soviet law also displays many unique characteristics that derive from
the existence of a socialist economy in the USSR and reflect the official
ideology of Marxism-Leninism. Lenin accepted the Marxist conception of
law and the State as instruments of coercion in the hands of the ruling class,
the bourgeoisie. He envisaged the eventual transition to a communist society
in which coercive 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 pro-
vide law and order. He wrote:
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 establishing an
actual, uniform conception of legality in the entire republic and the entire
federation. 1
Yet, the writings of Marx and Engels provided only scant guidelines for
Lenin to follow in constructing a socialist state. Marx was first and fore-
most a social critic, not an architect of the new economic and political