Soviet Rights-Talk in the Post-Stalin Era
Прав тот, у кого больше прав .
Right is he who has more rights.
“The problem with Soviet legal history,” Martin Malia once quipped, “is that there’s not enough of it.” The remark was meant to register the pervasiveness, among elites and masses alike, of extra-legal ways of doings things, the apparent irrelevance of Soviet law to Soviet practices, and the particular Bolshevik contempt (sanctioned by Marx, Lenin, and others) for the “bourgeois” notion of the rule of law . Soviet law, in this widely shared view, functioned primarily as a façade for domestic and foreign spectators, behind which the real mechanisms of power operated. Implicit in this approach is an assumption of bad faith: those laws, or at least some laws, were not meant to be actionable and instead served a purely ideological function. It is a critique whose pedigree reaches back at least to Max Weber’s attack on the “pseudoconstitutionalism” of tsarist Russia following the revolution of 1905.
It should perhaps come as no surprise that the Soviet critique of “bourgeois” legal systems exactly mirrored this view. In capitalist societies, so the argument runs, law serves as an “illusion” behind which economically determined relationships of exploitation freely operate. “Fictions” was one of the favored terms used by Lenin – and therefore by legions of later Soviet scholars - to describe bourgeois constitutions: “A constitution is fi ctitious when law and reality diverge; it is not fi ctitious when they coincide.” Of course, regardless of time and place, pays légal and pays réel rarely coincide. It is more productive to think of laws as norms than as descriptions of reality, more fruitful to focus on the tension between law in theory and law in practice. My point is not to belittle Lenin’s (or Malia’s) observation, but rather to caution against a dismissive literalism when thinking about the functions and purposes of law under Soviet socialism.
Central to the Soviet critique of the “fictitious” nature of bourgeois constitutionalism were the allegedly inalienable rights they proclaimed - the smokescreen of equality among individuals designed to distract attention from the reality of class domination. Yet even a cursory glance at Soviet legal history reveals that rights claims of various kinds - individual, collective, expressive, material, etc. - quickly assumed a prominent place in the legal lexicon. The rhetoric of rights found expression not only in formal documents such as constitutions and civil codes but in the vernacular of ordinary Soviet citizens.
Indeed, it has been argued that, far from functioning as an ideological diversion, officially proclaimed rights may have promoted and/or reflected rightsbased thinking among signifi cant portions of the Soviet population. The question, then, is what sort of thinking that was.
If only on a quantitative level, the notion that there is not enough Soviet legal history should be laid to rest by the proliferation of constitutional discourse across the USSR’s seventy-four-year history. Four country-wide constitutions were ratified during this period: in 1918, 1924, 1936, and 1977. In this and other respects, the Soviet Union qualifies as an exceptionally “jurisgenerative” state. The 1936 and 1977 Constitutions, moreover (as well as a dress rehearsal for the latter in the early 1960s), were preceded by extensive state-sponsored public discussions that, for all their patently mobilizational purposes, have left us valuable sources for exploring the deployment of rightstalk in a country that understood itself as the laboratory of the future. These sources are doubly useful insofar as they allow us to investigate people’s legal consciousness at a moment other than when they were in trouble with the law - the typical way for the voices of ordinary individuals to enter the historical records of legal institutions.
The sometimes spectacular contradictions between Soviet law and Soviet reality, combined with explicit Bolshevik critiques of law as a mode of social control, led more than a few early observers to characterize the USSR as a country of “legal nihilism.” Among the proof texts for this viewpoint is the oft-quoted 1927 assertion by the fi rst President of the USSR Supreme Court, Petr Stuchka, that “Communism means not the victory of socialist law, but the victory of socialism over any law, since with the abolition of classes and their antagonistic interests, law will die out altogether.” One struggles to fi nd other historical instances of such a radical critique of law as an instrument of public order, particularly in a modern state. Even the early Christians, with their call for the transcendence of (Jewish) law by grace, did not repudiate legal frameworks entirely. And yet, however corrosive the early Bolshevik stance may have been for law as a moral or political value, subsequent developments made “legal nihilism” seem less and less useful as a description of either theory or practice in the Soviet Union. Indeed, Stuchka’s antinomianism was publicly repudiated in the USSR shortly before his death in 1932. In the decades that followed, observers in the West debated not whether there was law in the Soviet Union, but what kind of law it was, and in particular how to classify it vis-à-vis the two regnant paradigms, positivist and natural law . Adherents of each paradigm tended to identify Soviet law with the other. Thus John C. H. Wu, writing in the Catholic Encyclopedia, argued that “this is positivism pushed to its logical end. The will of the dominant class becomes the essence of law, and reason becomes the handmaiden of will.” By contrast, Hans Kelsen, a leading positivist theorist, insisted that “[Soviet law] is exactly of the same type as the bourgeois theory which the Soviet writers have derided and ridiculed …: the natural law doctrine [which] works out or pretends to work out principles ‘from life,’ that is, from nature in general and from the nature of society [or] social relationships in particular.”
The present chapter explores rights-talk as a facet of Soviet legal consciousness in the post-Stalin era, a time when Soviet leaders attempted to shift the repertoire of state policies away from terror and coercion in favor of persuasion and cooperation, and the USSR began to enter the orbit of international legal norms. At the heart of my enquiry lies the question how and with what effects the rhetoric of rights - the lingua franca of liberalism - was deployed in an avowedly illiberal society. To be sure, the Soviet Union is hardly the only setting in which the fl ourishing of rights-talk seems to demand explanation.
In an influential article, Thomas Haskell has asked how it is that rights-talk, with its implicit moral absolutism, has nonetheless thrived in an era of moral relativism in the United States. His hypothesis - that “rights are the principal means by which duty is smuggled back into cultures dominated by the rhetoric of individualism” - only heightens the distinctiveness of the Soviet case.
For the USSR, with its collectivist ethos, had no need to smuggle duty into its culture or its law codes – it was already there, prominently on display. What functions, then, did rights-talk serve in the Soviet setting, and what can one learn by studying its evolving grammar and syntax? If we are to move beyond visions of human rights as an American (or Western) export product, we must grapple with the histories of rights in non-Western environments. The paradigmatic “Other” of liberal rights-talk for much of the twentieth century was the “Second World,” an ensemble of socialist states that suppressed private property and the market in a quest to fashion what Bolshevik leader Lev Trotsky famously called an “improved edition of humankind” - the homo sovieticus.
What happens to human rights when “the human” is understood as a work in progress?
Rights and Neo-Corporatism
The surprising prominence of rights in Soviet legal discourse is but one facet of the larger about-face regarding the anticipated withering away of law and the state under socialism. Initially, Soviet law harnessed rights to the explicit goal of inverting (rather than abolishing) received patterns of class domination. Thus the 1918 Constitution of Soviet Russia (RSFSR) granted the classic freedoms of conscience, expression, assembly, and association exclusively to “toilers” - a term meant to include urban workers as well as the “rural proletariat” of poor peasants. The Constitution’s authors showed less interest in the content of these freedoms than in announcing what the state is obliged to do materially to facilitate their realization by the newly privileged elements of the population:
Article 14: In order to ensure for the toilers real freedom of expression of opinion, the RSFSR abolishes the dependence of the press on capital and turns over to the working class and the poor peasantry all technical and material resources for the publication of newspapers, pamphlets, books, and all other printed matter, and guarantees their free circulation throughout the country.
Article 15: In order to ensure for the toilers real freedom of assembly, the RSFSR, recognizing the rights of the citizens of the Soviet Republic freely to organize assemblies, meetings, processions, etc., shall place at the disposal of the working class and the poor peasantry all premises suitable for public gathering, together with furnishing, lighting, and heating.
From the outset, then, the realization of civil rights (“real freedom”) was construed as depending on certain economic preconditions. By promising the necessary material support only to “toilers,” the 1918 Constitution in effect redefined the inherited distinction between “active” and “passive” citizenship. It similarly inverted received categories of political rights, which were now granted exclusively to those “who obtain their livelihood from productive and socially useful labor” as well as “soldiers of the Soviet army and navy.”
The right to vote and to run for office were denied to “persons who employ hired labor in order to extract profit,” “persons living on non-labor income,” “private traders,” “monks and clergymen,” and other undesired categories.
Furthermore, the 1918 Constitution gave the fl edgling Soviet state the authority to deprive any individuals or groups of rights “used to the detriment of the socialist revolution” - thereby sanctioning the use of rights as a weapon against political opponents. By the early 1930s, some four million lishentsy had been stripped of their civil and political rights (but not of Soviet citizenship).
A smaller number of individuals were deprived of their citizenship as well and either expelled from the USSR or rendered stateless within its borders. The resulting hierarchy of civic belonging and exclusion amounted to a kind of neo-corporatism that put the inherited language of rights to both archaic and modernist purposes. A striking vestige of ancien régime estate privilege (inverted, to be sure) can be found in the 1918 Constitution’s decree that “the honorable right of bearing arms in defense of the revolution is granted only to toilers; non-toiling elements shall perform other military duties.” Toilers thus became a new nobility of the sword – a privilege quickly diluted in the heat of civil war, when the fl edgling “Red Army of Workers and Peasants” desperately drafted not only non-toilers but former tsarist army offi cers. A more forward-looking aspect of Bolshevik rights policies is on display in the extension of “all political rights of Russian citizens to foreigners residing within the territory of the Russian Republic … and belonging to the working class or the non-labor-exploiting peasantry.” This was a neo-corporative citizenship - and therefore a rights regime - of a radically internationalist cast. The Soviet leadership, as one historian put it, “believed that they were leading a transnational social class, not a state.”
By the mid-1930s, having extended the state’s control from the “commanding heights” to the farthest reaches of the national economy, and having exiled or killed millions of “class enemies,” Joseph Stalin offi cially declared the USSR a socialist society. For Marxists, such a profound transformation in the social and economic base naturally required a parallel adjustment in the superstructure, beginning with the legal system. Accordingly - and in sync with Moscow’s courting of Western allies for the emerging popular front against fascism - a new constitutional rights regime was drawn up refl ecting the violently altered social landscape. 13 Given the relative longevity of the 1936 “Stalin Constitution” - forty-one years, longer than all other Soviet constitutions combined – and given that it served as the foundational text for virtually all post- talinist discussions of rights and other constitutional issues - we would do well to spend some time with it.