REVIEWS
| Date | 01 May 1961 |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02185.x |
| Published date | 01 May 1961 |
KEVIBWS
GOVERNMENT,
EUROPE.
2
Vols.
and
Co.
LAW
AND
COURTS
IN
THE
SOVIET UNION
AND
EASTERN
Edited by
V.
GSOVSKI
and
K.
GRZYBOWSKI.
London
:
Stevens
&
Sons, Ltd. The Hague
:
Mouton
1959.
xlvii and
1941
and (bibliography and index)
126
pp.
$8
8s.
net.]
TiiEsE
two volumes have been written by twenty-eight refugees from eleven
countries, who received their legal education and practised law in their native
countries (some of them are now members of the American legal profession).
They were set the task “to present in one work
a
comparative study of the
law
and
government of the Soviet Union and those of Eastern Europe within
the Soviet orbit.
It
covers
Albanh, Bulgaria, Czechoslovakia, Estonia,
Hungary, Latvia, Lithuania, Poland, Rumania, the Soviet Union and
Yugoslavia.” The editors point out that “it seems neither possible nor
worthwhile to cover in
a
single work all the ramifications of governmental,
legal and judicial systems of eleven countries. Thus, the research was
focussed not on the legal technicalities and details, but
on
the efects
of
the
legal system on the rights
of
€he
people.
Elucidation‘
of
rights
of
the
individd
and
thir
protection within tke Sozriet orbit
was
the. maim objective
of
the
research
[my italics]. Topics for discussion were selected frotn that
point of view. Individual reports followed, in
so
far as feasible, an organised
plan and uniform coverage of essential topics and issues. Accordingly, the
book is not
a
mere collection of essays, but represents an integrated,
simultaneous effort by the several co-authors.”
I
quote this statement from the preface at such length because it is
irnportant for understanding the nature of this study. The authors
do
not
provide
a
study in comparative law or give
a
systematic account of the legal
system of their countries of origin, and this study cannot be used as
n
reference
book
on the present laws and procedures in those countries. In
fact, it
looks
more like
a
collection of prosecutors’ briefs, prepared for those
who ’want to make
a
moral judgment about .laws and especially about legal
practice in the countries which fall within the Soviet orbit. The
Zeit-motin
of
all the research of the authors is the desire to prove that in these eleven
countries the rights of the people do not have the protection from the legal
system which they have in non-Communist countries. Only material proving
this thesis is presented. Evidence which might have been presented by counsel
for the defence is not called. Everything
in the legal system
of
the Soviet Union and other Communist countries is
presented in the worst possible light-no positive feature is traced in these
legal systems which might be favourably compared with non-Communist
countries. \\;hen the provisions of the law itself cannot be condemned,
distortions, infringements of law and examples of the violation of legality by
arbitrary administration are presented as
a
general legal practice in the
application of
a
law which is in substance not
so
bad. Even when the authors
are confronted with new reforms, they present them condescendingly as
a
somewhat illegitimate child of these generally bad legal systems.
Past legal history, which reflects the special circumstances of civil war, of
acute political struggle, and of emergency measures, is very often described in
the historical present; and the reader
is
often left wondering where the
history
ends,
and what the present situation is. Sometimes, he is helped by a
footnote remark that the provisions of the law which were discussed, at great
399
The result is
a
onesided picture.
400
THE
MODERN
LAW
REVIEW
VOl..
24
length have now been repealed,
or
he finds in the Appendix that the situation
is
now different from that described in the main text.
In the space
at
my disposal,
I
can give only
a
few illustrations
of
this
method of presentation of material. The volume is opened by twelve surveys
on “The Regime and the Origin” of the eleven countries
(460
pages are
devoted to this), which give
a
bird’s-eye view of the origin and essential
features of these regimes. There are very superficial descriptions of how
power was seized by the Communists. We read (on p.
12)
:
“
Although the
Bolsheviks formed an
insignificant
minority, the radicalism of their action and
their promises of land and peace, though accidental to their actual programme,
brought to their
side
all
sorts
of
radical elements:
Socialist revolutionaries
of the
Left,
maximalists, anarchists, peasants cherishing the
idea
of the
distribution among them
of
the landowners’ land, racial separatists, local
sectionalists and non-partisan personalities looking for adventure
or
quick
enrichment” [my italics].
On
p.
13
it
is
stated: “When the Constituent
Assembly convened on January
5,
1918,
it
had
a
majority of Socialist
revolutionaries and
a
strong BoaPhedlG mhrity
(about
one-quarter).
It
refused to recognise the Soviet government and was disbanded and dissolved
by the Bolsheviks.
A handful
of
milore
disposed
of
the institution,
which
had been the dream of three generations of Russian revolutionaries and of
the Bolsheviks themselves” [my italics]. On p.
14
again we read:
“
In
fact, the armed resistance
to
the Communist rule
of
the entire
population
of
Rzursicc
[my italics], both the Russians and the ethnic minorities, reduced the
R.S.F.S.R. to the central provinces
of
European Russia until the end of
1920.
All the border regions were accupied by the White Russian Armies, fighting
for
‘
Russia united and indivisible
’
and also by
the
former ethnic minorities
claiming independence
or
autonomy.” But if the Soviet government was
confronted by the resistance
of the entire popbation
of
Russia,
and by the
opposition of the ethnic minorities
as
well
as
by the intervention of German,
French, English and Japanese armies in support of the White Russian armies
(nothing is said about this intervention by the authors), how did it happen
that it succeeded in reestablishing its power and regaining
all
its
former
imperial territories, except the Baltic states, Bessarabia and Poland?
It
is
left to the reader to wonder.
It
is only said:
“
When, by
sheer military force
[my italics; from whom this force
was
recruited when the
entire
population of
Russia resisted the Soviet government remains the secret of the authors
:
A.B.]
tlie communist rule was extended
to
she of the lost territories some of them
were included in the R.S.F.S.R. either
as
regular administrative subdivisions,
or
where
a
certain ethnic minority prevailed,
as
‘autonomous republics’
or
‘
autonomous regions.’
”
In the chapter on human rights, we read: “The Soviet state does not
recognise
any restraint
[my italics] upon the government in its dealings with
its citizens. The human being,
as
such, is not regarded
as
having
a
permanent
value of his
own”
(p.
27).
However; “The
1936
constitution contains a
chapter
an
‘Basic Rights and Duties of Citizens,’ but
it
is far from being
A
bill of rights. In the first place,
right of ownership
[my italics] is not
mentioned among the rights covered therein
”
(p.
28).
On p.
1184.
“
It
may be
concluded that the
‘
personal ownership
’
dowed Soviet citizens [by the
constitution
:
A.B.]
is different from
normal
private ownership by virtue of its
limitation.” On p.
1168,
“
At present, in theory, there exists the possibility of
zliilimited accumulation
of
p~mte wealth
in,
money and securities
in
Soviet
Russia
[my italics] if deposited in certain government banks. However, one
circumstance is supposed to limit this possibility. This
is
the lack of legitimate
and profitable avenues of activity that would facilitate such accumulation
of
capital, because private industrial and commercial enterprise are practically
eliminated.” “One thing is clear: the possibility of an unearned inconic
for
the coming generations is established under the Socialist rttgime
of
present-day Russia. Thus, in this field,
as
in many others, the Soviet leaders
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