Soviet Legal Theory and Practice
The Bolshevik Abolition of the Tsarist Legal System
The Bolshevik seizure of power in October 1917 initiated the most radical legal transformation in modern history: the complete abolition of the existing legal order and its replacement by a new “proletarian” law. The Decree on Courts No. 1 of November 22, 1917, abolished the entire tsarist judicial system — the Governing Senate, the judicial chambers, the district courts, the justices of the peace, the procuracy, the bar, and the forensic investigation apparatus. The Decree prohibited the application of tsarist laws “unless they have not been abolished by the revolution and do not contradict the revolutionary conscience and the revolutionary concept of justice.”
In place of the abolished institutions, the Decree established local people’s courts (mestnyye narodnyye sudy) elected by soviets, composed of a professional judge and two lay assessors. These courts were instructed to apply “revolutionary legality” (revolyutsionnaya zakonnost) and “revolutionary conscience” rather than formal law. The Decree also created revolutionary tribunals (revolyutsionnyye tribunaly) to deal with counter-revolutionary activity, profiteering, and official misconduct. The tribunals operated outside ordinary procedural rules, with the chair and jurors elected by local soviets.
The legal theory underlying these reforms was derived from Marxist doctrine. Vladimir Lenin articulated the view that law was an instrument of class rule — a superstructure that reflected and protected the interests of the ruling class. Under capitalism, law served the bourgeoisie; under socialism, law would serve the proletariat until the state itself “withered away” and law was replaced by the administration of things. The principle of revolutionary legality held that formal legal rules were subordinate to revolutionary consciousness and class interests.
Pashukanis and the Commodity-Exchange Theory of Law
The most sophisticated Marxist legal theorist of the early Soviet period was Evgeny Pashukanis (1891–1937). In his seminal work, The General Theory of Law and Marxism (1924), Pashukanis developed the commodity-exchange theory of law, arguing that legal forms were not merely reflections of class interests but structural consequences of the commodity form under capitalism.
Pashukanis argued that the legal subject — the individual bearer of rights and duties — was the juridical expression of the commodity owner. Just as commodities are exchanged in the market between independent owners, so legal relations are conducted between autonomous subjects. The legal form, with its categories of rights, duties, contracts, and property, was inseparable from the capitalist mode of production. Law, in Pashukanis’s view, would “wither away” along with the state under communism, to be replaced by technical regulation and the administration of things.
Pashukanis’s theory had radical implications for Soviet legal policy. If law was a bourgeois form, then the construction of a socialist legal system was a contradiction in terms. The task of the Soviet state was not to build a new legal order but to prepare for the disappearance of law altogether. Pashukanis influenced the early Soviet approach to codification: the codes of the 1920s were conceived as transitional instruments that would gradually give way to non-legal forms of social regulation.
The ascendancy of Stalin and the need for legal stability during the period of rapid industrialisation and collectivisation, however, led to the repudiation of Pashukanis’s theory. In 1937, Pashukanis was denounced as a “Trotskyite wrecker,” removed from his positions, arrested, and executed. His works were banned, and his commodity-exchange theory was condemned as “harmful and anti-Marxist.” The Soviet legal system would take a very different direction under Pashukanis’s successor.
Vyshinsky and the Theory of Socialist Legality
Andrey Vyshinsky (1883–1954), the chief prosecutor of the Soviet Union and later Minister of Foreign Affairs, developed the legal theory that would dominate Soviet law for the remainder of the Stalin period. Vyshinsky rejected Pashukanis’s view that law was a bourgeois form destined to wither away. Instead, he argued that law under socialism was not merely necessary but positive: it was an instrument for building socialism and defending the socialist state against its enemies.
Vyshinsky’s theory of socialist legality held that law was the expression of the will of the ruling class — the proletariat, led by the Communist Party — and that the function of law was to protect and advance socialist construction. The courts were instruments of state policy, not neutral arbiters of individual rights. The procuracy was the guardian of socialist legality, responsible for supervising the observance of law by all state organs, officials, and citizens.
Vyshinsky’s most infamous contribution was his role as chief prosecutor in the Moscow show trials of 1936–1938 — the Trial of the Sixteen (August 1936), the Trial of the Seventeen (January 1937), and the Trial of the Twenty-One (March 1938). The defendants, including the leading Bolsheviks Grigory Zinoviev, Lev Kamenev, Nikolai Bukharin, and Alexei Rykov, were tried for treason, espionage, and sabotage. The trials were carefully staged: the defendants were subjected to prolonged interrogation and psychological pressure until they confessed to fabricated charges, and the trials were conducted with elaborate procedural formality — witnesses were called, documentary evidence was produced, and the accused were permitted final statements — all designed to create the appearance of legality.
Vyshinsky’s conduct as prosecutor was characterised by verbal abuse of defendants (“mad dogs,” “fascist degenerates”), reliance on confessions as the “queen of evidence,” and explicit demands for the death penalty. The trials resulted in the execution of virtually all defendants and established the procedural model for political repression throughout the Stalin period. Vyshinsky’s theory of socialist legality — that law must serve the political objectives of the Party — provided the ideological justification for the perversion of the legal process.
The Stalin Constitution of 1936
The Constitution of the USSR of 1936 (the “Stalin Constitution”) was presented as evidence of the “victory of socialism” and the transition to a higher stage of socialist development. The Constitution declared the USSR a “socialist state of workers and peasants” and established the Supreme Soviet of the USSR as the highest organ of state power, elected by universal, equal, direct, and secret suffrage. The Constitution formally guaranteed a wide range of civil rights: freedom of speech, press, assembly, and association; inviolability of person and home; secrecy of correspondence; and the right to education, work, rest, and social security.
The 1936 Constitution was regarded as the most democratic constitution in the world at the time of its adoption. In practice, however, the constitutional guarantees were entirely illusory. The rights provisions were subject to the limitation that they could be exercised only “in conformity with the interests of the working people and for the purpose of strengthening the socialist system.” The Party’s monopoly on political power was not explicitly provided for in the Constitution but was exercised through control of the electoral process, the legislative agenda, and the security apparatus. The very year the Constitution was adopted, 1937, was the peak of the Great Terror, during which the constitutional guarantees were systematically violated.
The Gulag Legal System
The Gulag (Glavnoye Upravleniye Lagerey, Main Administration of Camps) operated through a parallel legal system that existed alongside — and in tension with — the formal legal order. The legal basis for mass incarceration was established by the Law of 7 August 1932, which imposed the death penalty or ten years’ imprisonment for the theft of socialist property, and by the resolution of the Central Executive Committee of 1 December 1934, which established expedited procedures for cases of terrorism — including no right of appeal, no right to defence counsel, and immediate execution after sentencing.
The NKVD troikas — three-person administrative tribunals composed of the local NKVD chief, the Party secretary, and the procurator — were authorised to sentence persons to exile, imprisonment in labour camps, or death, without trial, without counsel, and without right of appeal. The troikas operated under secret operational orders (prikazy) that had no legal basis in published law. The most notorious was Order No. 00447 of July 30, 1937, which established quotas for the arrest and execution of “anti-Soviet elements” — former kulaks, criminals, and other “socially dangerous” persons. Under Order No. 00447, approximately 770,000 persons were arrested and 386,000 executed.
The labour camps were regulated by the Corrective Labour Code of 1924 (revised 1933), which defined the legal status of prisoners, their rights and obligations, and the conditions of their internment. In practice, the corrective labour legislation was a legal fiction: prisoners had no effective rights, conditions were determined by the economic needs of the camp administration rather than by law, and the mortality rate — particularly during the construction of the White Sea-Baltic Canal, Norilsk, and Kolyma — was catastrophic. The Gulag legal system illustrated the fundamental contradiction of Soviet law: formal legal rules coexisted with arbitrary administrative power that operated outside any legal framework.
Post-Stalin Legal Stability and Brezhnev-Era Law
The death of Stalin in 1953 and the Secret Speech of Nikita Khrushchev in 1956 initiated a period of legal reform and de-Stalinisation. The Fundamentals of Criminal Legislation of the USSR and Union Republics (1958) abolished the principle of analogy (analogiya zakona) that had allowed courts to punish acts not specifically prohibited by law, re-establishing the principle nullum crimen sine lege. The 1960 RSFSR Criminal Code modernised criminal law and procedure, though it retained provisions for the punishment of “anti-Soviet agitation and propaganda” (Article 70) and “anti-Soviet defamation” (Article 190-1) that were used to suppress political dissent.
The 1961 RSFSR Civil Code, the 1964 RSFSR Code of Civil Procedure, and the Fundamentals of Labour Legislation of 1970 completed the post-Stalin codification. These codes provided a stable legal framework for the administration of the Soviet economy and society, though they operated within the constraints of the one-party state and the planned economy. The 1977 Constitution of the USSR (the “Brezhnev Constitution”) declared the USSR a “state of the whole people” (obshchenarodnoye gosudarstvo) and expanded the catalogue of social rights but did not alter the fundamental structure of Party dominance.
The Brezhnev era (1964–1982) was a period of legal stability — the extreme arbitrariness of the Stalin period was replaced by a more predictable, though still repressive, legal order. The KGB operated through a system of “legal prophylaxis” — pre-trial warnings, administrative detention, and the use of psychiatric hospitals — rather than the mass terror of the Stalin period.
Perestroika and Legal Reform
The perestroika (restructuring) period under Mikhail Gorbachev (1985–1991) initiated the most fundamental legal reforms since the 1920s. Gorbachev’s concept of a socialist rule-of-law state (sotsialisticheskoye pravovoye gosudarstvo) sought to reconcile socialist ideology with the principles of legality, judicial independence, and human rights. The Law on the Status of Judges (1989) established judicial independence, irremovability, and tenure for the first time in Soviet history. The Law on the Procuracy (1989) redefined the procuracy’s supervisory functions.
The most significant reform was the establishment of the Constitutional Supervision Committee (Komitet Konstitutsionnogo Nadzora SSSR) in 1989 — the first constitutional court in Russian history. The Committee had the power to review legislation for conformity with the Constitution and to suspend the operation of laws it found unconstitutional, subject to override by the Congress of People’s Deputies. The Committee’s decisions, including rulings on the constitutionality of the internal passport system and the requirement of propiska (residence registration), demonstrated the possibility of constitutional review within the Soviet system.
The 1990 Law on Property and the 1990 Law on Enterprises began the transition from the planned economy to a market economy, recognising private ownership and the freedom of economic activity. The Fundamentals of Civil Legislation of the USSR and Union Republics (1991) introduced concepts including private property, freedom of contract, and protection of intellectual property — a radical departure from the socialist civil law that had governed Soviet economic relations for seven decades. The perestroika legal reforms, though incomplete and overtaken by the dissolution of the USSR in December 1991, provided the foundation upon which the post-Soviet legal system would be constructed.