The Bolsheviks and the Law: The Legacy of Arbitrary Justice
Analyzing the law through the prism of a revolution is inherently paradoxical. Revolutions, after all, are made to overhaul existing orders.
Of course, not all revolutions are the same. The Glorious Revolution of 1688 led to a rebalancing of power between monarch and parliament in England, as well as the codification of fundamental rights, including free elections. The American Revolution was largely a conservative reaction to British arbitrariness: after winning independence, the founding fathers took control of making and enforcing laws, but they built the American legal system on a foundation of British common law. The French Revolution was more genuinely revolutionary in that it replaced a monarchy with a republican form of government.
Although different in their motivations and aims, the revolutions of the 17th and 18th centuries catalyzed the maturation of a fundamental concept – the rule of law – that today constitutes the foundation of Western societies.
The Soviet experiment was something else altogether. Legal tradition in most societies tends to be built upon precedents that span epochs, and even differing governing systems. But in the Bolsheviks’ case, they tried to make a complete break with precedent, mainly because they tended to see the law as a bourgeois creation. They wanted to build an entirely new legal system, yet, at the same time, they recognized the utility of trying to adhere to existing forms in order to give their efforts a greater appearance of legitimacy. Thus, in creating their new legal system, the Bolsheviks tried to dress up the dictatorship of the proletariat in an ill-fitting republican costume.
Under republican systems of government, the law aims to establish basic rights and responsibilities, and create a level playing field for all citizens (although this ideal is often less than perfectly implemented in practice). But equality before the law was never even an aspiration of Soviet revolutionary jurisprudence. The Bolsheviks did not see the law as a means to adjudicate civil and business disputes, or to dispense justice blindly; they viewed it as a mechanism to implement their social and political agenda. The late Harold J. Berman, one of the foremost scholars of Soviet legal history, noted that the Bolsheviks envisioned Soviet law somewhat as a code of conduct, an instrument used in the early years after the 1917 October Revolution to cajole or compel citizens into adhering to new Socialist norms, as determined by the vanguard of the proletariat, the Communist Party.
In the spring of 1918, just months after seizing power, Vladimir Lenin noted in a pamphlet entitled “The Immediate Tasks of the Soviet Power” that there was an urgent need to create “conditions in which it will be impossible for the bourgeoisie to exist, or for a new bourgeoisie to arise.” The law, for the Bolsheviks, was the means toward that end, an instrument of persecution, not of dispensing justice.
Independence was never really a feature of the Soviet legal system. The law, along with the system’s functionaries, was expected to serve the interests of the state, or, more specifically, the party running the state.
All of the above-listed objectives were reflected in the Russian Federation’s first constitution of 1918. This basic law codified inequality, elevating a certain class, the proletariat, to preferred status. At the same time, it limited the rights of others, namely anyone deemed to be a member of the bourgeois class. In this way, the Soviet example marked a drastic departure from other experiments in constitution-writing arising out of revolutions. Whereas others sought to create more balance in their political systems, the 1918 Russian Constitution enshrined imbalance.
Stalin’s rise to power in the late 1920s led to the elimination of any distinction between the law and the party’s will. The Constitution of 1936, specifically Article 126, was the first to institutionalize the Soviet Communist Party as the leading force of society, i.e. the arbiter of all that is right and wrong. And since the party’s structure was hierarchical, not pluralistic, the 1936 Constitution in essence sanctioned Stalin’s dictatorial authority.
Ironically, the previous article in the same 1936 Constitution offered guarantees for freedom of speech, an independent press and freedom of assembly. Such guarantees, of course, were meaningless because Article 126 meant that the Communist Party’s desires and preferences could override any “law.”
Keeping the trajectory of the Soviet legal system’s development in mind, it is easy to argue that the Great Terror and the Gulags were no accident of history: they were an inevitable byproduct of a system that was built upon an unworkable concept – that of arbitrary justice.
Even during the late Soviet period – after the party had come to grips with the worst of Stalin’s excesses – Soviet law remained arbitrary, in that Kremlin leaders, like the early Bolsheviks, continued to manipulate the law, using it as an instrument of repression. Political factors, not legal precedents, determined judicial decisions. Telephone justice, a term signifying this reality, entered the lexicon.
Russia had a chance to break with the past when the communism collapsed in 1991. Unfortunately, a Soviet-style legal system, built upon the concept of arbitrary justice, managed to outlive the Soviet Union itself.
During the twilight of the Soviet era, there was a serious attempt to push Russia in the direction of the rule of law. In mid-1991, a reform initiative sought to introduce the concept of judicial review via the creation of a Constitutional Court. Some Russian officials also pushed for the gradual introduction of jury trials.
Russia’s constitutional crisis in 1993 brought all movement toward the rule of law to an immediate halt. The Constitutional Court proved unable to remain above the political fray between the executive and legislative branches. After using the military to defeat parliamentary opposition in early October 1993, then-president Boris Yeltsin decreed the dissolution of the Constitutional Court, which he saw as allied with parliament. When he eventually reconstituted the court, Yeltsin made sure it would be, as in the Soviet era, only nominally independent. In practice, it acted at the executive branch’s behest.
More broadly, the 1993 crisis ensured a continuation of the legal status quo that existed in the Brezhnev era. There would be no effort to embrace the idea of “transitional justice,” as occurred in the former East Germany following German reunification. Soviet-era personnel and practices were largely continued. There would be no substantive examination of the past.
If anything, Russia’s legal system over the last decade has turned back the clock to an even earlier Soviet age. The law in Russia these days is increasingly defined by a single individual – Vladimir Putin. In a legal sense, one can argue that it is 1936 all over again for Russia.
Dmitry Dubrovsky holds a PhD in Cultural Anthropology. From 2004-2015, he was a lecturer and founder of the first BA program in Human Rights at the Smolny Department of Liberal Arts and Science, St. Petersburg State University. Dmitry has also held appointments at Columbia University's Harriman Institute, Bard College, the Kennan Institute of Advanced Russian Studies, the National Endowment for Democracy, Helsinki University and the University of Johannesburg (South Africa). He is currently affiliated with the Center of Independent Social Research in St. Petersburg.