Selected Writings on Soviet Law and Marxism

P.I. Stuchka, Robert Sharlet, Peter B. Maggs, Piers Beirne

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9780873324731
• eBook ISBN:
  9781317460008
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Latvian-born legal theorist P.I. Stuchka (1865-1932), generally recognized as one of the principal architects of modern Soviet legal theory and the Soviet legal system itself, was a prodigious author and editor. Twenty essays by Stuchka written between 1917 and 1931 were selected for translation

PART I

From “Bourgeois Law” to “Revolutionary Legality”

Introduction

Questions about the appropriate form and content of the regulation of social relations were an important aspect of Bolshevik discussion from the very beginning of the revolution. What relationship ought to exist between the Tsarist legal system and the new forms of Bolshevik power? Which aspects of social relations should be regulated by law, which by simple coercion, and which by propaganda and exhortation? Should the technical expertise of Tsarist lawyers be relied upon until a coherent system of proletarian law was enacted? To none of these questions did erstwhile Bolshevik legal theorists have any ready-made answers. No coherent program was provided either by prerevolutionary Russian jurisprudence or by classical Marxism itself. The confused, negative thrust of Russian nihilism merely exacerbated this vacuum. However, developed communism demanded the withering away of law and, therefore, the Bolsheviks set themselves the task of trying to identify temporary, democratic, and accessible legal structures appropriate to a transitional period of socialist construction. In the first two essays translated here Stuchka displays his practical concern with the character of new proletarian institutions, such as the People’s Courts, and with the various elements of the legislation of the transitional period. In the next two essays Stuchka attempts to develop some of the major concepts within a Marxist theory of law.

In “A Class Court or a Democratic Court?” Stuchka reveals both optimism at the prospect of socialist construction and frustration at the pace with which it was proceeding. To a certain extent, in the very early phases of the revolution, the workers themselves had anticipated subsequent Bolshevik strategies. Immediately after the February revolution of 1917, for example, in Kronstadt and in the Vyborg side of Petrograd the workers had ignored the Tsarist courts and were in the process of setting up their own revolutionary courts. Stuchka himself admits that the revolution had acted very slowly with respect to the old bourgeois apparatuses of power. He complains, on the one hand, that courts remained bourgeois institutions in part because judges were not yet subject to democratic election and recall, and also because there still existed salary differentials based on such factors as the old division of members of the judicial magistracy. On the other hand, Stuchka reports, with seeming approval, that the provisional revolutionary courts were actually beginning the tasks of construction.

Prior to the passage of the first decrees on the court there was heated discussion among the Bolsheviks about the proper relation that ought to exist between the old court system and the objectives of the socialist revolution. One faction within the Bolsheviks urged the retention of prerevolutionary courts as necessary apparatuses for the period of socialist transition. Another faction was adamant that all Tsarist law and all existing legal institutions should be abolished because they were incompatible with socialism. Lenin himself effected a compromise between these two factions with the rules enacted in Decree No. 1 on the Court. This decree was intended to accomplish several objectives. First, it abolished large segments of the Tsarist legal system. These included the district courts, military and naval courts, commercial courts, court chambers and the departments of the Ruling Senate, the Procuracy, and the system of justices of the peace. Second, it was declared that all laws were invalid if they contradicted the decrees of the Central Executive Committee or the minimum programs of the Russian Social-Democratic party and the Socialist Revolutionary party. Third, a new court system was to be instituted. This system was based on a nationwide structure of local (later people’s) courts and revolutionary tribunals. The former were to sit in judgment on civil cases and relatively minor criminal offenses; the latter were created to combat counterrevolutionary forces and to consolidate the gains of the revolution. Both were to be elected democratically, and their members were instructed to be guided by their revolutionary consciousness.

However, developments on the military and internal fronts rapidly edged aside (or pushed forward to the future) these early experiments with Soviet legal forms. Beginning in 1918 civil war swept through Soviet Russia with increasing ferocity. The Bolshevik response to the bloody chaos that ensued was a draconian set of policies that was intended to regulate all aspects of social life. It was found necessary to create more law. Decree No. 1 on the Court was followed by other decrees on the judiciary. Decree No. 2 on the Court both expanded the layers of the judicial system and also attempted to define the rules according to which the courts reached decisions. Old legal officials could now be elected to judicial and investigative institutions. The rules of court procedure of 1864 were henceforth to be operative in both civil and criminal cases insofar as they had not been abolished and did not run counter to the ‘legal conscience’ of the working class. There was to be a limited system of appeals from court decisions overseen by a Supreme Supervisory Authority in Petrograd. Decree No. 3 on the Court increased the jurisdiction of the local courts, and the Decree on the People’s Court provided for appeal in cases of procedural error. Decrees such as these were part of an erratic program of legal regulation that initially culminated in a new Constitution (in 1918) and a set of guiding principles for criminal law (in 1919).

In his article “Proletarian Law” of 1919 Stuchka reasserts his commitment to the democratization of the law of the transition period. The composition of the courts, he insists, should be close to the people or coming from the depths of the people. Ordinary civil relations should be equally comprehensible to the citizen and to the lawyer; indeed, the courses in revolutionary judicial procedure that Stuchka was now teaching at the Socialist Academy of Social Sciences, were open to judges in the People’s Courts. “Proletarian law,” he argues, “is primarily a simplification, a popularization of our new social order.” At the same time he discusses various aspects of the actual content of the Soviet law of the transitional period. These laws included a mass of new decrees on the abolition of estate and civil hierarchies, the separation of the state and the schools from the church, the eight-hour working day, abolition of the means of production and the bourgeois freedom of contract, and new rules of “social law” to do with the family, divorce, and prostitution. Finally, he suggests that the time was now opportune for the publication of a compendium of proletarian law. This compendium (to be published in a technical version for lawyers, and a simpler version for citizens) should include the laws of the new constitution, the rights and duties of the citizen, social law, property law, labor law, and international law.

In effect, these reforms instituted an incremental process of relegalization even before 1921 when the Bolsheviks declared the strategic retreat embodied in the principles and apparatuses of the New Economic Policy. Familiar legal institutions were revived and an elaborate program of codification was instigated based on foreign bourgeois models of law. The New Economic Policy mandated and accelerated full-scale relegalization in the early 1920s as an essential condition both to facilitate economic recovery from the Civil War and War Communism and to provide an institutional shell for the industrialization program. For the Marxist jurists relegalization implied the postponement of the withering away of the state and law. The task now became the development of theoretical analysis of the bourgeois legal system with a view to determining the conditions, within the constraints of socialist construction, for its ultimate dissolution. Stuchka played a prominent role in this early phase of Marxist legal theory. His work served, in an important but rather elementary way, as the nexus between Marx’s, Engels’, and Lenin’s fragmentary writings on law and the sophisticated theoretical analysis engaged in by Pashukanis.

In 1921 Stuchka published the first edition of his noted text The Revolutionary Role of Law and State. Like many of his works, which were primarily produced either as primers and textbooks for pedagogical purposes or as treatises on specialized topics, this book was widely read in jurisprudential circles and was used in law courses as an introduction to Marxist analysis of law. At the level of general questions about the nature of legal rules, it was never Stuchka’s intention to develop an integrated or coherent general theory of law. Rather, his intentions seem to have been both to criticize the major schools of bourgeois legal theory (especially those that had adherents in the Soviet Union during the New Economic Policy) and to develop some of the chief concepts within Marxist legal theory.

Both these intentions were evident in his essay “The Marxist Concept of Law” of 1922. This was written at the beginning of the New Economic Policy, and in it Stuchka articulated three themes. First, he stresses that it is important to remember Engels’ dictum that law and legalism were the classical principles of bourgeois ideology. As such, a chief aspect of the New Economic Policy was to be principled communist struggle against legal ideology. Stuchka argues that the bourgeois-juridical perspective, with its notions of “blind justice” and the “nightwatchman state,” must be rejected in favor of the recognition that law and state are essentially phenomena of class relations. However, as a second theme, he reminds his audience that revolutionary class struggle consists in part of “struggle around law,” precisely because the distribution of the means of productions is expressed in and protected by the law of private property. Only under developed communism can law be dispensed with. Third, he attacks those who promulgated the slanderous view that the Bolsheviks were opposed to legality. On the contrary, Stuchka stresses, progress in the socialist transition must be based on revolutionary legality and class legal consciousness.

The final essay in Part I, “Notes on the Class Theory of Law,” reproduces Stuchka’s speech to the inaugural meeting of the Section of the General Theory of Law within the Institute of Soviet Law. In this essay Stuchka attempts to deepen the discussion of the class nature of law, and he argues that the material basis of law lies in the relations of production that are manifest in legal relationships. In addition, he analytically merges the concepts of revolutionary legality and proletarian legal consciousness into the more dynamic concept of revolutionary legal consciousness. Finally, Stuchka calls on his colleagues to undertake the development of the Marxist theory of law to provide guidance for criticism of the individual branches of bourgeois law. Toward this objective, he offers an inventory of twelve generalizations about the initial program of the Section of the General Theory of Law.

1. A Class Court or a Democratic Court?

While news is received about the widespread recognition accorded the new Workers’ and Peasants’ Government, the judicial branch, led by the Ruling Senate, continues to act in the name of the overthrown Provisional Government. Our judiciary thereby displays its independence from politics. So thinks our judicial personnel of Shcheglovite origin. [Shcheglovitov was a legal official in the prerevolutionary government and was the author of a leading legal handbook—Eds.]

We must concede that the Russian Revolution acts very slowly with respect to the old apparatus of power; except for the commanding heights, all the old apparatus is intact. The civil servants of the Republic have changed somewhat: they have joined trade unions based on the principles of “Novaia Rus'” [New Russia], “Zhivoe slovo” [Living Word], etc., or have introduced an electoral system into their milieu. However, although all socialist programs consistently demand the election of civil servants and judges as Commissars (including the Commissars of the former Ministry of Labor), within all socialist programs, nevertheless judicial officers are still appointed from above. The justices of the peace are exceptions to this, but even they are subject to indirect election through the city dumas and zemstvo meetings; moreover, the restricted right to vote (in these bodies) introduced no improvements, and the court has remained a purely bourgeois class institution. It is essential to eliminate this apparatus of the old authority and to subject the court to democratic elections, and elected judges liable to the right of recall. The first priority is to relieve the court of a series of cases that until now have encumbered the judicial system. The following cases will be transferred from the court: agrarian cases (to land committees), apartment house cases (to apartment house mediation committees, etc.), with the remainder, constituting three-quarters of all civil cases (to special workers’ institutions). However, the overall volume of cases will significantly diminish with simplification of the law because, all know legal ambiguities present for fifty years (even though early eliminable) have created very favorable grounds for casuistry and judicial red tape. These include defenses about jurisdiction, decisions, and separation of cases, etc. Finally, the removal of such obsolete institutions as tribal property or predetermined inheritance (subject to abolition), etc., will significantly shorten and simplify civil court procedure. The abolition of political and religious crimes, and the simplification of the penal system itself will also facilitate the work of the criminal court.

Every court must be elected from top to bottom. The old division of members of the judicial magistracy will disappear, because salary differentials based on the hierarchy of judicial officers will disappear (both a justice of the peace and a senator should receive the same salary). At the same time, we must coordinate this with the (salary) base for the personnel of the so-called procuratorial supervision and the bar. These institutions should be consolidated into a single elected, social institution. The old differential earnings of the bar (attorneys) and the magistracy (judges), and the political distinctions between the Procuracy and bar should therefore disappear. If not now, then very soon, we must dismantle these old legal institutions. But dismantling is not enough—construction is also needed. Provisional revolutionary courts have already begun to function in some places, and others must be set up under the aegis of all Soviets of Workers’, Office Workers’, and Peasants’ Deputies. With the lists established for elections to the Constituent Assembly, we must next hold elections for an appropriate number of democratic judges. In turn, these elected judges should perhaps be allowed, for the first time ever, to elect from their own ranks the higher tier of judges which should of course be reduced in number.

These changes cannot be delayed.

“Klassovoi ili demokraticheskii sud?,” Pravda, No. 185, Nov. 10, 1917 (Old Style), Nov. 23, 1917 (New Style), p. 2, col. 1.

2. Proletarian Law

The earth shall rise on new foundations We have been naught we shall be all.

[From the “International”—Eds.]

I.

With a bourgeois conception of law, we cannot even speak of proletarian law, because the purpose of the socialist revolution is to abolish law and replace it with the new, socialist order. For the bourgeois legal scholar, the word “law” is inseparably linked with the concept of the state as a protective mechanism, a coercive weapon in the hands of the ruling class. With the fall, or more correctly, the withering away of the state, law in the bourgeois sense also naturally falls, withers away. We may speak of proletarian law itself only as the law of the transitional period, of the period of the proletarian dictatorship,. . .Alternatively, we may speak of law in the sociali...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface and Acknowledgments
• Editors’ Introduction
• Part I: From “Bourgeois Law” to “Revolutionary Legality”
• Part II: The Marxist Theory of Law
• Part III: Socialist Construction and Soviet Legality
• Bibliography
• Name Index
• Subject Index