RECENT DEVELOPMENTS IN SOVIET LEGAL THEORY
| DOI | http://doi.org/10.1111/j.1468-2230.1942.tb02863.x |
| Published date | 01 December 1942 |
| Author | Rudolf Schlesinger |
| Date | 01 December 1942 |
SOVIET
LEGAL
THEORY
21
developments are obviously bound to produce great changes.
This is not the place for their analysis.
So
far it seems that, as in
other countries, the State, under military and social exigencies,
has assumed a more active part in the control and direction
of
economic movements. The general policy is to use the pre-
dominant organisation within each section as partner and assis-
tant. This, for the time being, has increased the monopolistic
character
of
these organisations, within their sphere of interests.
The leading producers and employers, the principal trade unions,
are, at present, nearer to complete control in their particular
field than ever before. The small producer, the rival union, and
the individual outsider have little or no place in the triangular
relation between government, employers and labour organisations.
As
between the conflicting economic and social interests, the
Government attempts to maintain a precarious balance, trying
to recognise the
status
quo
without shifting the pre-war balance
too much one way or another. But the experience
of
other
countries (e.g. Germany, France and Italy) as well as the inherent
logic of the development traced in this article, seems to show that
such balance cannot be indefinitely maintained. Sooner or later
a stalemate is reached which leads to an active government
policy. The principal alternatives seem to be the socialist or
the fascist
way.
W.
FRIEDMANN.
RECENT DEVELOPMENTS IN
SOVIET
LEGAL
THEORY
I
URING
the 'thirties Soviet ideology clearly developed in the direction
of accepting the State as the organisation of Socialist Society,
an organisation which, if not ultimate,
is
in any case regarded as
definitive for any period admitting
of
human estimation. This development
could not fail decisively to change the outlook
of
Soviet legal theory.
Following the lines of classical Marxian thought, Soviet legal theory had
originally looked upon State and Law as superstructures essentially based
upon the foundations of bourgeois society and to be used by
a
proletanan
dictatorship only for
a
relatively short transitional period. Nearly all studies
of Soviet legal theories published outside the Soviet Union' have been
1
The only exceptions, apart from some American publications not now
available in
this
country, are the present writer's report in
Zeifschriff
fuer
Sorial-
forschung,
Vol. VII
(1938),
No.
3,
and (for the special problems
of
International
Law)
Hazard's article in
The American Journal
of
International Law,,
Vol.
32
(1938).
pp.
244
ff.
None of these publications,
of
course, has touched the most
recent developments, for which
I
must refer to the official Soviet legal organ,
D
22
MODERN
LAW
REVIEW
Dec.,
1942
exclusively concerned with developments during this first phase,
i.e.
in
fact during the first fifteen years following the end of the Civil War. The
subsequent events have not only
been
neglected by Western observers,
but their analysis
has
even
been
declared to be “uninteresting” by writers
who paid more attention to the external circumstances of the “purges”
than to the fundamental
issues
which were involved in that great political
crisisx
In
fact, the most interesting problem of Soviet legal development,
viz. the problem of
a
specjiic theory of Socialist Law, arises just
at
the
point where the need for such
a
theory
is
recognised in principle. There
could
be
no
such recognition
as
long
as
law was regarded
as
a
mere
“bourgeois fetish,” bound
to
“wither away”
as
a
consequence of the
success
of collectivismf
This
latter attitude merely expressed the revolutionaries’ natural
opposition to the law of the former state. But
this
opposition was rein-
forced by the original Marxian conception> according to which not only
the political organisation inherited from the former rulers, but the State
in general,
was
to be
used
by successful revolutionary
socialists
only for
a
transitional
period,
a
period
the duration of which
would
be
short
if
measured by the
standards
of history, and during which,
as
in
all
revolu-
tions, little attention was likely to
be
paid to legality. In some of Lenin’s
pape&.“proletarian dictatorship”
is
indeed given the meaning which
is
often associated with the word “dictatorship.” namely
that
of
a
“rule
not bound by fixed legal
norms.”
But, even during the Civil War,
it
was
only very exceptional that
Lenin
used
definitions of
this
kind. As
a
rule,
he
based
his
case
for proletarian dictatorship,
as
opposed to the allegedly
“classless” bourgeois democracy,
on
the Marxian doctrine that every
state means the domination by one class, and that, consequently, the only
choice confronting the working-classes
was
that between
a
state dominated
by themselves and
a
state dominated by the old ruling class. At the same
time, however,
Lenin
demanded in all the writings published during that
period that there should
be
“revolutionary legality,” i.e.
a
properly func-
tioning Soviet
State.
This was sociologically analysed
as
the rule of the
working classes, but
this
rule was to
be
exercised ’according to clearly
established legal norms,
so
that the question
as
to what was right or wrong
from the point of view of the interests of the working class should not
be
Sovietshoe
Gossudarstvo
(“The Soviet State”) (abbreviated in
this
article
with
S.G.).
Dobrin’s article in
The Law Quarterly Review,
Vol.
52
(1936).
is
written
without knowledge of the-then
just
beginning-crisis
of
the
Pashukanis
school,
but with an interesting analysis of the
reasons
that
led
to
this
crisis.
Virtually
all other publications (including the monograph by
Taracouczio
on Soviet
Conceptions of International
Law
and
the article by Makarov
in
Zeitschrif: fuer
auszaendischcs oeffediches RecM
und
VoeZkewecht,
1936. pp. 479
f/.)
deal with
stages of the developme?: within the
first
period.
Bolshevist and National Socialist
Doctrines
of Inter-
national
Law,”
in
Sociql Research
(New York).
Vol.
7.
p.
18.
It
is
unnecessary
to
discuss the question whether there
is
in
any
country
such a thing
as
a
pure
“inquiry for inquiry’s sake” concerning a problem
of
such high political import-
ance
as
legal theory.
It
may
be
taken for granted
that
the
participants
in
Russian
legal discussions were subject
to
any degree of political bias, but
I
venture
to
think
that
it
is
more interesting
to
look for the ideological expression of the
issues
people were each other “purging” for than for the paraphernalia of the
purges.
Reichberg in a publication of
Igrg-but
similarly Stouchka
as
late
as
1931.
In the
Critique
of
the
Gote
Programme
(1875).
8
Especially in
a
draft
on
Proletarian Dictatorship,” written
in
connection
with international Socialist discussions
in
xgzo and published
in
Vol.
XXV
of
the (Russian) complete collection of
his
works.
See
Florin-Hertz,
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