(32) Human Rights: Past and Present
Stalin’s Constitution and the “All-People’s Discussion”
Perhaps the most prominent aspect of the new Constitution’s discourse on rights was its retreat from neo-corporatism. Gone is the explicit deprivation of rights to entire categories of the population. Article 135 grants the right to vote and be elected to “all citizens of the USSR aged 18 or older, regardless of racial or national membership, faith, educational level, residence, social origin, property status, and past activities.” Articles 132 and 133 proclaim the “sacred duty of every citizen” to perform military service - without reference to who may or may not bear arms. Freedom of conscience, expression, assembly, and association (described both as “freedoms” and “rights”) are now “guaranteed by law to citizens [rather than to “toilers,” as in 1918] of the USSR.” And yet traces of the neo-corporative idiom - and more broadly, of the state’s use of rights as a political tool – remain. Whereas the various freedoms are granted to “citizens,” their exercise must “correspond to the interests of toilers and the strengthening of the socialist system.” Moreover, the all-important material guaranties by the state for the realisation of civil rights are extended to “toilers” rather than to “citizens.” True, “toilers” now meant the troika of officially recognized social groups (working class, peasantry, and intelligentsia), leaving only recalcitrant individuals on the sidelines; but the subtle distinction between “citizens” and “toilers” was not lost – least of all on the toilers themselves, as we will see in a moment.
The Stalin Constitution enumerates most of its rights in Section Ten, “Fundamental Rights and Duties of Citizens,” reflecting an implicit quid pro quo whereby the exercise of rights depends not only on material support by the state but on the fulfilment of duties by citizens. Although most duties are listed after rights, they - unlike the enumerated rights - are dignified with affective terms such as “sacred” and “a matter of honour.” The Stalin Constitution repeatedly distinguishes between “having” a right, something any citizen can do, and being granted (by the state) the material means to exercise it, which depends on one already being a “toiler” - that is, someone engaged in fulfilling the preeminent duty of labour. Labour is the indispensable link between duties and rights, the only activity listed under both categories.
Labour is the key by which the fulfilment of duty opens the door to rights. If there was any truth to the Soviet claim that the 1936 Constitution was “the most democratic in the world,” it lay in the opening articles of Section Ten. Here, for the first time, a state legally guaranteed to its citizens a comprehensive program of material welfare and expressed this guarantee in the same language used to grant the more traditional civil and political rights.
The economic and social rights pioneered in the Stalin Constitution included the right to employment, to leisure, to material security in old age and in the event of illness or incapacity to work, and to education, up to and including higher education. Disparities in the distribution of all the aforementioned rights based on gender, race, and nationality were forbidden.
Here too, however, careful readers could detect a certain neo- corporatism - updated to reflect the more nuanced hierarchy of the newly proclaimed socialist order. In the grammar of official Soviet rights-talk, no right could have practical value without an explicit commitment from the state to ensure the material prerequisites of its realisation. And among the economic and social rights inaugurated in the 1936 Constitution, those pertaining to leisure and material security received that commitment only with regard to “workers,” leaving the recently collectivised peasantry effectively out in the cold.
Lest we are tempted to regard these terminological distinctions as so much academic hair-splitting - after all, they could have resulted from the messiness of collective redactions, or perhaps were never meant to inform actual practices – historians have shown that ordinary Soviet citizens were extraordinarily attuned to such nuances. The Stalin Constitution was made available for public comment while still in draft form between June and October 1936, prior to its ratification later that year. This “all people's discussion” of matters constitutional generated an enormous cache of published and unpublished comments by Soviet citizens. “In a limited sense,” as one historian puts it, “they are something like the Cahiers de doléances of the Stalin revolution.”
Together with NKVD (secret police) reports on the public mood regarding constitutional issues, they have made it possible to listen in as Soviet citizens talk about rights in the 1930s, and therefore can serve as benchmarks for analogous sources from the post-Stalin era.
Many unpublished comments on the draft 1936 Constitution were critical. The most widespread complaint came from members of collective farms, who immediately grasped the import of fine distinctions among the material rights guaranteed to “citizens,” “toilers,” and “workers,” and who complained bitterly about their prospective exclusion from state-financed pensions, sanatoria, vacations, and health care. Equally significant, for our purposes, is that such complaints appear to have been couched in the language not of common citizenship but of a specificc form of parity and fairness: If workers get such-and-such, so should peasants. Theirs was by no means an argument for general social equality. If anything, the neo-corporative idiom was even more pronounced in popular comments than in the 1936 Constitution: Apart from complaints by collective farmers about their exclusion from certain benefits, the next most common (unpublished) sentiment was hostility toward the planned Constitution’s abandonment of an explicitly class-based regime of rights. Letter writers protested the granting of equal rights to kulaks, priests, and other “right-less” groups. The Constitution, in their view, seemed to mark a retreat from dictatorship of the proletariat toward a “bourgeois” order. As one worker put it, “I disagree with the policies of the party. We are going toward capitalism, since the new constitution gives the right to vote to all.”
The expanded civil rights granted by the 1936 Constitution also elicited substantial opposition. Article 127’s guarantee of “inviolability of the person,” meaning that “No one may be subject to arrest except by court order or with the sanction of a procurator,” struck some as an example of excessive proceduralism. Why wait for official approval before arresting and punishing criminals? Why not hold relatives responsible for the crimes of their kin? One peasant maintained that “using free speech, meetings, and so forth to oppose the Soviet state constitutes a betrayal of the country and should carry heavy punishment.” Many peasants indicated that they would gladly relinquish the right (and presumably the duty) to work. One should not exaggerate, however, the weakness of rights consciousness in popular comments on the 1936 Constitution. Substantial numbers of participants advocated the formation of alternative political parties to pursue their collective rights. With textbook accounts of the French Revolution fresh in their minds, pupils at one middle school drafted their own constitution in the form of a “Declaration of the Rights of the Pupil and the Citizen.” As this and other examples suggest, the idea of rights found expression in citizens’ comments primarily in the idiom of corporative claims (whether as collective farmers, workers, students, etc.) to benefi ts issued by the state, rather than individual claims of immunity against state intrusion, or claims on behalf of the entire citizenry.
Rights-Talk during Khrushchev’s “Thaw”
Under Stalin, of course, unpredictable and often violent intrusion by the state in the lives of Soviet citizens reached epic proportions. After the 1956 “Secret Speech” by his successor, Nikita Khrushchev, the offi cial diagnosis of Stalin’s crimes emphasized his failure to abide by “socialist legality,” rather than the content of socialist law itself. “No matter what distortions of and departures from the constitution of the USSR took place in practice,” asserted one Soviet jurist, looking back at the Stalin era, “the constitution’s basic principles … are as solid and stable as the socioeconomic bases of the Soviet state.” The first intimations that Khrushchev himself did not share this vision of constitutional stability came in 1959, when Khrushchev proclaimed the goal of “full-scale construction of communism,” reflecting “a new and momentous stage” in the USSR’s socioeconomic development. Having ceased to be a dictatorship of the proletariat, the Soviet Union, according to Khrushchev, was now an “allpeople’s state” in which the “material prerequisites” for communism would be in place by 1980. The country’s international status, too, was changing dramatically. If one of the justifi cations for the dictatorship of the proletariat (and the neo-corporative rights regime that went with it) had been the Soviet Union’s encirclement by hostile bourgeois states, then the spread of socialism to neighboring countries after World War II diminished the need for such a dictatorship. “Socialism has emerged from the framework of one country,” Khrushchev announced, “to become a mighty world system.” These “sweeping changes” required “expression and legislative consolidation in the Constitution of the Soviet Union, the Fundamental Law of our land.” As he put it in a proposal to the Supreme Soviet in 1962, “The constitution of a socialist state must change with the transition of society from one historical stage to another.… The constitution adopted in 1936 conformed to the period of the consolidation of socialism.… Naturally, the chief provisions of this constitution are now obsolete.”
The key word in this statement is “naturally”: in order to avoid becoming fictions, constitutional laws needed to keep up with the natural laws of change (zakonomernosti, or in the original Marxian formulation, (Gesetzmäßigkeiten) in economy and society. Pronounced just twenty-six years - a single generation - after enactment of the Stalin Constitution, this breathtaking verdict of historical obsolescence faithfully reproduced the logic used to justify the Stalin Constitution in its own time. Stalin had presided over (and constitutionalized) the transition from the state capitalism of the New Economic Policy to socialism; Khrushchev would do the same for the transition from socialism to communism.
Among the revolutionary “Leninist norms” that fueled Khrushchev’s vision of the communist future were echoes of the “legal nihilism” of the 1920s. In 1961, for example, the party introduced the “Moral Code of the Builder of Communism,” a distillation of twelve supreme ethical values for the homo sovieticus. Beyond its goal of fostering socially productive behaviors (e.g., Point 2: “Conscientious labor for the good of society,” or Point 6: “Humane relations and mutual respect between individuals”), the Moral Code was widely understood as preparing the ground for the withering away of law in the coming communist era. The Twenty-Second Party Congress in 1961 announced that during the transition to communism, “the role of moral principles in social life grows, the sphere of activity of moral factors widens, and correspondingly the importance of administrative regulation of relations between people decreases.” According to one commentator, “in developed Communist society, [moral norms] will be the only form of regulation of relations between people.” All this was consistent with the long-standing assumption that crime would gradually disappear from socialist society.
What is noteworthy in these formulations is not just the persistence of antinomianism in the Soviet moral imagination, but the way the Moral Code performed, in the Soviet context, the function of “regulative ideal” not unlike that of human rights in other parts of the world at the time. As a non-legally binding expression of supreme ethical values with explicitly pedagogical purposes, the Moral Code paralleled the 1948 Universal Declaration of Human Rights (UDHR), a similarly nonbinding “standard of achievement” whose signatories pledged to “strive by teaching and education to promote respect” for the principles it contained. Of course, the contrasts are important too: The Moral Code applied to builders of communism, rather than to all human beings (indeed, called for “intolerance towards the enemies of communism”), and its ideals were expressed strictly in terms of duties, without reference to rights or freedoms. Most important, whereas the framers of the UDHR aspired for its norms to be absorbed into the binding legislation of the various signatory countries, the Moral Code of the Builder of Communism was meant eventually to replace law, becoming “the only form of regulation of relations between people.”
In the near term, however, Khrushchev was determined to put his stamp on a new Soviet constitution. A subcommission established in 1962 began its work by soliciting the views of ordinary Soviet citizens as part of the drafting process. In a review of practices in capitalist countries, it noted that the constitution of the USSR’s main geopolitical rival had been composed in 1787 “by a convention in Philadelphia … consisting of members of the bourgeoisie and slave owners who conducted their sessions behind closed doors.” In the Soviet Union, by contrast, the framers planned not only to solicit broad input from the entire Soviet population (public notice of the subcommission’s work appeared in Pravda in April 1962), but to submit the resulting text to a popular referendum:
This would be something never before seen in the world, an act of genuine demokratizm. For in those instances when bourgeois states have conducted referendums for the ratifi cation of constitutions, the people were permitted to vote “for” or “against” a constitution already drafted by the government. But at no time anywhere in the world has there been an instance when the people itself has worked out a draft of the fundamental laws and ratifi ed them itself. As in 1936, the people’s “work” on the Constitution appears to have had minimal impact on the actual drafting process. Nonetheless, again as in 1936, the attempt to stimulate popular engagement in the constitutional process produced a rich body of sources for the study of Soviet rights-talk, a rare glimpse into vernacular legal consciousness at the height of the Khrushchev’s “Thaw.”
Before we examine the “talk” itself, a few remarks are in order regarding the textual sources in which that talk is captured. These remarks color not only how we read the sources but how we map the shifts in constitutional rights-talk in the post-Stalin era. Unlike in 1936, no draft of the new Constitution was made available in advance of the solicitation of public input; to the extent that citizen participants invoked an already existing text, it was usually the 1936 Constitution (which remained in force), although in a number of cases letter writers referred to constitutions of foreign countries (e.g., Poland, Yugoslavia, East Germany, France, the United States) - something almost unheard of in the “all-people’s discussion” of 1936. In contrast to 1936, citizen comments regarding the planned Khrushchev Constitution appeared exclusively in the form of letters voluntarily sent by individuals (the majority of whom identified themselves by name, occupation, and place of residence) directly to the constitutional subcommission – rather than originating as oral comments at partyorganized meetings, then being written down by local offi cials and sent on to Moscow. The de facto requirement of literacy in the Khrushchev-era discussion may help explain why collectivized peasants, whose voices were strongly present in the 1936 “all-people’s discussion,” were largely absent in the early 1960s. The Khrushchev-era letters do, however, represent people from a wide variety of occupations - from atomic engineer to factory worker - residing in cities, towns, and villages across much of the Soviet Union.
Few traces of the neo-corporative approach to rights, so characteristic of previous Soviet constitutions and even more so of the public discussion in 1936, appear to have survived into the 1960s. Collectivized peasants ( kolkhozniki ) such as M. A. Parshin of Astakhovo, who was old enough to remember the ratifi cation of the Stalin Constitution, no longer claimed rights via analogy to the privileged category of workers: “During the period of bourgeois ascendancy, they asked, What is the Third Estate? Nothing. What should it be? Everything. With us one could ask, What is the peasantry? It’s the kolkhozniki . What do they want and what should they be? Citizens with equal rights in all respects.” In the “all people’s state,” citizenship now appeared as the defi ning criterion for rights-bearing, regardless of what kind of labor one performed. Among letters touching upon the different legal rights of various groups of the Soviet population, the majority concerned the nationalities and urged putting an end to “affirmative action”- style policies. “The current structure and division of union republics according to national characteristics,” wrote N. Shokhov from Alma-Aty, “has outgrown itself”:
Several dozen nationalities reside in Kazakhstan. The Kazakhs here constitute 25 percent of the total. But the republic is Kazakh. One might pose the question, “Why not the Uyghur republic or the Dungan republic?” Should we really create certain privileges for particular nationalities when all these nationalities work in a unified family? Should we really artifi cially create abnormalities in their relations and [thereby] do great damage to the economy?
Another writer complained that one million Estonians sent the same number of deputies to the Supreme Soviet as 120 million Russians and 43 million Ukrainians. Most letters regarding nationality issues urged the abolition of national categories in offi cial documents. If rights were no longer to derive from membership in a corporative group (whether defined by class, social origin, or nationality), what was to be their source? One of the most intriguing tensions to be found in the letters sent to the constitutional subcommission (indeed, sometimes within a single letter) was between the notion that rights had to be earned via labor and other duties, and the contrasting idea that they derived automatically from the status of citizen of the USSR or - more rarely - of human being. The assumption that rights needed to be earned came easily in a system that explicitly linked rights with duties. I. M. Abramovich, a history teacher from Murom, submitted his own draft constitution, which included the declaration that “There are no rights without duties and vice versa.” Leningrad resident N. F. Boiarskii approvingly quoted the “principle of socialism” from Article 12 of the 1936 Constitution, “From each according to his ability, to each according to his work.” If the receipt of food and other life-sustaining goods were conditional upon labor (at least for the able-bodied), argued Boiarskii, why shouldn’t the same apply to less vital goods such as civil and political rights? All the more so given that in the Soviet Union rights were typically construed as things the state bestowed upon its citizens (or some subset thereof), rather than recognizing them as inherent in the latter. Even those rights classified in the Anglo-American tradition as “immunities” or “negative freedoms,” claims that in theory merely required the state to refrain from certain activities (censoring speech, barring assemblies, etc.), appeared in letters to the subcommission as requiring positive state action in order to enable their practice on a fair and equal basis. As history teacher Abramovich put it, echoing offi cial sources: “Bourgeois constitutions merely proclaim the rights of the citizen, but the Soviet constitution materially guarantees their realization.”
As we have seen, Soviet rights-talk was changing over time both in content (adding social and economic claims, for example) and applicability (visà-vis an expanding range of citizens). Nonetheless, the ambiguity vis-à-vis rights granted to “citizens” but limited in practice by the interests of “toilers” (i.e., those who fulfi lled the duty of working) left ample room to construe the nexus between rights and duties in a variety of ways. Quite a few letters called for tighter and more explicit linkage between the two. Kiev resident A. I. Avgustovskii urged that “prior to receiving rights and using them, citizens of the USSR should know and fulfi ll their duties.” The new constitution should require citizens to complete secondary schooling and engage in at least two years of “socially useful work” before becoming bearers of rights. Even letters strongly in favor of robust civil rights could embrace the rights-duties nexus. “Without freedom of speech and the press,” wrote Citizen Grigor’ev from Penza, “society cannot develop normally.… The constitution should indicate that in oral and written statements, citizens are obliged to express their critical comments.”
A substantial number of letters proposed a new right, absent from all prior Soviet constitutions: the right to choose one’s place of residence within the USSR and/or to emigrate beyond its borders. The system of residential permits in cities such as Moscow, Leningrad, and Kiev, according to engineer Piman (from Riga), while “justifiable from an administrative-managerial standpoint, is unconstitutional, amounting to a kind of discrimination based on territorial identity.” Of those proposing the right to emigrate from the Soviet Union, several noted that constitutions of bourgeois countries routinely grant such a right.
Freedom of expression emerged as a particularly controversial issue. Among the dozens of letters calling for stricter constitutional limits on expression, nearly all targeted religious believers. According to the teacher A. S. Poluektov (from the town of Oktiabr), “the constitution is supposed to defend the rights of the people, to protect them from attacks by religion on citizens’ consciousness.” For citizen Agapov (from Andizhan), the claim of a “human right to religion” has no place in the Soviet Constitution, since as a “reactionary organization,” religion can only impede progress toward communism. Members of religious sects, several people wrote, should be placed “outside the law.”
The lion’s share of letters regarding freedom of expression, however, advocated stronger constitutional protection of public criticism of offi cial policies. One writer suggested that in order to make the constitutional statute governing freedom of the press more than just a “formality,” people should be allowed to publish opposing views - but at their own cost. Prior to publication, moreover, the “suffi cient well-foundedness” of the material should be verified. Like a number of letter writers, pensioner D. K. Markov (from Kolpino) was interested in using the (revised) Constitution to prevent a recurrence of Stalin’s “cult of personality,” but unsure how to do so: Criticism of our shortcomings, mistakes, defects, and survivals of capitalism is an inalienable, organic characteristic of the Soviet system. Criticism is encouraged in our society and, it must be said, is highly developed. But this criticism is one-sided. It goes mainly from top to bottom.… Along came Stalin. He promoted arbitrariness, made a heap of mistakes, and where was the criticism? Just you try to criticize! Now we have comrade Khrushchev.… I don’t even want to compare him with Stalin; it’s night and day. But comrade Khrushchev isn’t anointed with the holy spirit either. He can make mistakes too.… Down here it’s more visible to us when he’s mistaken, so why shouldn’t we criticize openly and honestly? But how? If you say something - they’ll come up with an article especially for you! Still other writers, however, regarded the horrors of the Stalin era as stemming not from insuffi cient freedom of speech on the part of the population, but from excessive “rights” on the part of Stalin himself. As V. G. Klubov of Cherepovets put it, “Much misfortune was caused by one person, who was in power and who was granted unlimited rights, which are still being eradicated today.” Far from representing moral or legal claims, rights in this sense were practically indistinguishable from powers. The way to prevent a recurrence of the “cult of personality,” Klubov proposed, was thus not through additional rights of speech and the press but through the institution of a popular referendum every four years, so that Soviet citizens could approve or disapprove of the performance of their leaders.
Klubov’s proposal is emblematic of a view widely conveyed (if often only implicitly) in letters to the subcommission, namely, that rights were not the only or even the primary instrument for protecting citizens against abuse of power by state officials. Just as important, if not more so, was the practice of kontrol ’, public monitoring to ensure offi cial accountability. In this as in other respects, the vernacular rights-talk on display in letters to the subcommission was substantially in sync with offi cial discourse. Both had moved away from the assumption that the selective denial of rights constituted a legitimate political tool. Neither questioned the fundamental rights–duties nexus; on the contrary, rights were uniformly regarded as contingent on the performance of duty, part of an ongoing system of exchange between citizens and the state. A general consensus held that rights emanate from the state and require the state’s material resources for their realization. Indeed, the pervasive silence regarding the economic and social rights promulgated by the Stalin Constitution suggests that they had become firmly anchored in popular consciousness as a specifically socialist entitlement. With only one exception, no letters questioned the Constitution’s insistence that the exercise of civil rights must “correspond to the interests of toilers and the strengthening of the socialist system.” Although rights could legitimately be used to constrain the actions of abusive offi cials, nowhere does one fi nd the argument that constitutional rights can (let alone should) place limits on the authority of the state itself. This is hardly surprising, given letter writers’ virtually unanimous rejection (again in sync with official doctrine) of the idea of separation of powers. Even letter writers who passionately defended civil liberties cast rights as emanating from the state, rather than as natural or innately human. In popular as in elite discourse Soviet rights were thus understood as historically specific, made possible only within the context of the breakthrough to a socialist order.
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