Teaching Soviet Law in the 21st Century: A Case Study

University of Cambridge

Introduction

In my presentation, I focus on teaching Soviet Law in the 21^st century. It is partly based on my current work in progress co-authored with the other member of this roundtable, Professor Ekaterina Mishina. While the paper includes both of our experiences teaching Soviet law now, in this presentation, for brevity, I would like to focus on my course, ‘Soviet Law, its Origins and Development (1917-1948)’, that I taught at the Free University (Brīvā Universitāte) in the Fall 2021.

Why Study Soviet Law?

General description

My co-author and I begin the extended version of the paper with a summary of how Soviet law had been taught in the past, which I will not be addressing as I am conscious of space. The bottom line is that both the post-Soviet and Western interest in teaching Soviet law has vanished after the fall of the USSR. So, why is it important to rekindle the study of Soviet law in the 21st century? There are three reasons.

Understanding Soviet history

Firstly, understanding Soviet law is an important part of learning more about Soviet history. While there exists a certain opinion that Soviet law worked only in theory and not in practice, proclaiming legal rights that were not in fact protected, and is thus unimportant, it does not match historical reality. In fact, the Soviet state made use of the legal form to achieve its ends. Some of them could be reduced to legitimation (or, simply speaking, propaganda), but it does not mean that Soviet law is not worth studying — it is important to know how this propaganda worked.

Making sense of law

Secondly, Soviet law can also help us understand how law works in general. In Jurisprudence, my field, I know that one of the components of constructing a viable legal theory is to test it in response to atypical laws and legal systems. Soviet law is, in this way, special in the following three dimensions. First, it is a unique legal system as it is dissimilar to both common law and civil law legal systems, even though it draws heavily on the latter1. Second, it is a legal system of an authoritarian (and, at certain points in history, totalitarian) state rather than a liberal democracy. Third, it is at times what I call, in my other work, an ‘evil2’ and not good or benign legal system when it came to various instances of political terror throughout its history.

Responding to modern Russian law

Thirdly, the legacy of Soviet law has had a profound impact on modern Russian law: both the use of law for political purposes and methods of such politicization such as reasoning by analogy, can be traced back to the Soviet times. These are addressed in more detail in Professor Mishina’s contribution. One example is the infamous Pussy Riot case, where members of a punk rock group staging a protest concert in the Cathedral of Christ the Savior faced criminal responsibility for an offense that was in fact only administrative at the time. This draws eerie parallels with the Rokotov-Faibishenko case of 1961, where a group of suspected financial speculators were sentenced to execution — a penalty that was not provided by law at the time. Studying Soviet law is therefore important to understand the vices of the Russian legal system, resist them at the time, and effectuate the transition to a new regime.

How to Study Soviet Law? My Experiences

General description

With this in mind, I have designed a course on Soviet Law, ‘Soviet Law, Its Origins And Development (1917-1948)’ (Russian name: ‘Становление советского права (1917-1948)’), to be taught at the Free University. This is one of the few courses, with the exception of my co-author Ekaterina Mishina’s, that is dedicated solely to the historical study of Soviet law rather than being part of a general legal history or comparative law course in modern times. It was taught over an online video conferencing platform (Zoom) in two groups — Russian-language and English-language, and has attracted a diverse group of students from Russia, Ukraine, Ireland, Hungary, Germany, Uzbekistan, and the United Kingdom, to name just a few. I will now describe some features of my course.

Content

First, let me turn to the course content. I provide a comprehensive reading list in the Appendix. It should be noted that the course was limited to the study of Soviet law from 1917 to 1948 and did not cover any developments that occurred after that. This was because the course focused on the origins of Soviet law rather than all stages of its development. The course syllabus specified eight 1.5-hour seminars.

The first one, ‘Approaches to Soviet Law’, was a ‘bird’s eye’ exploration of Soviet law through the lens of historiography, aimed at indicating different frameworks that could be applied to the study of Soviet law. The next six seminars were arranged in chronological order:

‘Law and State in Marxism’, focusing on the concept of law in the works of Karl Marx and Friedrich Engels;
‘Law and Revolution’, on Lenin’s vision of law in State and Revolution (1917) and how it came to be realised in the early years of the Soviet state;
“‘Legal Experiments” of the 1920s’, where I considered competing visions for the place of law in the new Soviet state given by Petr Stuchka and Evgeny Pashukanis during the period of transition to a new legal order;
‘Return to Legal Formalism’, covering Andrey Vyshinsky’s legal thought and his work as a legal reformer in early 1930s, culminating in the 1936 ‘Stalin’s’ Constitution;
‘Law and Terror’, on the role of law in the Great Terror of 1936-1938;
and ‘Soviet Contribution to International Law’, focusing on Soviet postwar efforts to influence the newly emerging international legal order, exemplified by the Soviet role in the Nuremberg Trials and Vyshinsky’s criticism of the Universal Declaration of Human Rights.

The last seminar of the course, ‘Soviet Law Now’, tried to bridge the gap between the studied period and the world today, by discussing the continuity of legal systems, memory politics, and transitional justice.

Teaching mode

Secondly, I turn to how this content was taught. With the aim of ensuring that the students understood Soviet law and its political, social, economic, and cultural context, and to provoke a free discussion about its features and implications, I arranged the teaching as follows.

I used a ‘flipped classroom’ approach, where the students were assigned materials to acquaint themselves with before the seminar3. These materials included a range of primary and secondary sources, mostly written, but sometimes audiovisual. I also tried to provide English translations of the materials for the English-language group whenever possible.

In class, I used a variation of the Socratic method4, asking my students guiding questions that they could volunteer to answer based on the pre-consulted materials from the syllabus. This created a space for discussion while also putting the students at ease by not ‘cold-calling’ them.

Assessment

Third, I shall briefly address the assessment. Again, I was conscious of the fact that most of my students were not exposed to Soviet law before, while at the same time wanting to challenge them and foster creativity. Apart from class participation, I assigned response papers. The 1500-2000 word response papers had to tackle one of the sources from the syllabus — either primary or secondary — and not just summarise what the source said, but analyse it in the light of other sources in the syllabus, as well as in-class discussion. When writing their response papers, students engaged with a variety of sources — from works of Marx and Engels on law to my co-author’s, Ekaterina Mishina’s, article on the Soviet roots of modern Russian criminal law. They also employed a wide range of approaches — critiquing the arguments made in the materials, placing them in a broader context, and finding their novel applications.

Conclusion

Overall, teaching Soviet law was definitely a very interesting and rewarding experience, which hopefully contributed to the academic study of law and the state and practical upshots thereof. I hope my experience provides a blueprint for teaching this subject that might be helpful to my colleagues who wish to incorporate to Soviet law into their pedagogy.

Appendix: Course Syllabus (Abridged)

SOVIET LAW, ITS ORIGINS AND DEVELOPMENT (1917–1948) / СТАНОВЛЕНИЕ СОВЕТСКОГО ПРАВА (1917-1948)

1. Approaches to Soviet Law

Secondary sources:

S. Fitzpatrick — Revisionism in Soviet History
D. Sagatienė — Framing Legal History: Competing Western Interpretations of Soviet Law
H. Berman — The Comparison of Soviet and American Law
E. Huskey — A Framework for the Analysis of Soviet Law

Topics:

Is ‘Soviet law’ an oxymoron? (Students were asked to write a 500-word response to this question as part of the admissions process.)
Approaches to Soviet law: historiography and legal theory.

2. Law and State in Marxism

Primary sources:

K. Marx — On the Jewish Question (1844) (fragment)
K Marx, F. Engels — The German Ideology (1844) (fragment)
K.Marx, F. Engels — The Communist Manifesto (1848), parts I, II (https://www.marxists.org/archive/marx/works/1848/communist-manifesto/)
K. Marx — Preface to A Contribution to a Critique of Political Economy (1859) (https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.htm)
F. Engels — On the Housing Question (1872) (fragment)
K. Marx — Critique of the Gotha Programme (1875) (fragment)
F. Engels — Anti-Dühring (1878) (fragment)

Secondary sources:

B. Leiter — Marx, Law, Ideology, Legal Positivism, especially pp. 1–10

Topics:

Marx and Engels as the theoretical foundation of Soviet law.
Law as a “superstructure”.
“Withering away” of the law and state.

3. Law and Revolution

Primary sources:

V. Lenin — State and Revolution (1917) (https://www.marxists.org/archive/lenin/works/1917/staterev/)
The Constitution of the RSFSR (1918) (https://www.marxists.org/history/ussr/government/constitution/1918/index.htm)

Secondary sources:

P. Beirne, A. Hunt — Law and the Constitution of Soviet Society: The Case of Comrade Lenin
D. Kivotidis — Dictatorship of the Proletariat (https://legalform.blog/2019/12/11/dictatorship-of-the-proletariat-dimitrios-kivotidis/)

Topics:

Lenin on law and state.
“Proletarian dictatorship” and “revolutionary justice”.
October Revolution: dismantling pre-revolutionary law.

4. ‘Legal Experiments’ of the 1920s

Primary sources:

P. Stuchka — The Revolutionary Part Played by Law and the State (1924), chapters 1 “What is Law”and 4 “The Organized Authority of the Dominant Class and the Law”, in H. Babb (ed.), Soviet Legal Philosophy, pp. 17–28, 52–71
The Constitution of the USSR (1924)
The Constitution of the RSFSR (1925) (https://bit.ly/3R8jBgV)
E. Pashukanis — The General Theory of Law and Marxism (1929), introduction “The Task of the General Theory of Law”, chapters 3 “Relationship and the Norm” and 10 “Law and Violation of Law”

Secondary sources:

P. Solomon — Soviet Criminal Justice Under Stalin, chapter 1 ‘The design of an experiment’, pp. 17–49

Topics:

Creating a new Soviet law.
Stuchka and Pashukanis on law and state.
Legal nihilism of late 1920s-early 1930s.

Assignment:

RESPONSE PAPER 1

Response paper is a 1500–2000 word reflection on one of the sources studied as a part of this course. It should not be a summary of this source. You are allowed — and encouraged — to draw not just on that source, but also on other course materials and your own knowledge. You can find a good resource on writing response papers here: https://twp.duke.edu/sites/twp.duke.edu/files/file-attachments/response-paper.original.pdf.

5. Return to Legal Formalism

Primary sources:

The Constitution of the USSR (1936) (https://www.departments.bucknell.edu/russian/const/1936toc.html)
A. Vyshinsky — Fundamental Tasks of Soviet Law (1938), in H. Babb (ed.), Soviet Legal Philosophy, pp. 303–343

Secondary sources:

P. Solomon — Soviet Criminal Justice Under Stalin, chapter 5 “Returning to the traditional legal order”, pp. 153–196
H. Berman — The Spirit of Soviet Law
L. Fuller — Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory

Topics:

Return to legalism in theory and practice.
Vyshinsky: his life and works.
“Socialist legality”.
“Stalin’s” Constitution of 1936.

6. Law and Terror

Primary sources:

A. Vyshinsky — Prosecutor’s speech at the Third Moscow Trial (1938) (transcript) (https://art-bin.com/art/omosc22m.html) + video (https://www.gettyimages.com/detail/video/news-footage/104048817)
Объяснительная бывшего начальника Кожевниковского РО НКВД Салтымакова Дмитрия Кондратьевича (1956) (https://tv2.today/Istorii/Chto-ya-smog-sdelat-odin-protiv-takoy-sistemy) (An account by D. Saltymakhov, a former NKVD officer)
Мой ГУЛАГ — Воспоминания Тихановой Валентины Александровны (2016) (https://mygulag.ru/tihanova_valentina) (An interview with V. Tikhonova, a step-daughter of V. Antonov-Ovseyenko, an ‘Old Bolshevik’ who fell victim to the Great Terror)

Secondary sources:

P. Solomon — Soviet Criminal Justice Under Stalin, chapter 7 “The Great Terror and Criminal Justice”, pp. 230–267
A. Lukina — The Semenchuk Case of 1936: Storytelling and Propaganda above the Law in the Soviet Criminal Trial, especially pp. 71–80
T. Martin — The Origins of Soviet Ethnic Cleansing
А. Байбурин — Советский паспорт: история, структура, практики (A. Baiburin — The Soviet Passport), chapter 3 «Введение паспортной системы в СССР (1932–1936 гг.)», especially pp. 127–133

Topics:

Law and terror.
The anatomy of a show trial.
Political terror in the eyes of victims and perpetrators.

7. Soviet Contribution to International Law

Primary sources:

Выступление министра иностранных дел СССР А. Я. Вышинского на 3-й сессии Генеральной Ассамблеи ООН о Всемирной Декларации Прав Человека (9 декабря 1948) (https://news.un.org/ru/audio/2013/02/1002921) (A. Vyshinsky — Speech in the UN on the Universal Declaration of Human Rights) (1948) + transcript
A summary in English can be found in my paper below

Secondary sources:

F. Hirsch — The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order
A. Lukina — Russia and International Human Rights Law: A View from the Past, especially pp. 46–53

Topics:

The USSR and international law.
The Soviet concept of human rights in the UN.
Cold War ‘lawfare’.

8. Soviet Law Now

Primary sources:

**M. Gessen — My Grandmother, the Censor* (1998) (https://granta.com/my-grandmother-the-censor/)
Особое мнение судьи Конституционного Суда Российской Федерации А.Г. Арановского по делу о проверке конституционности положений статьи 13 Закона Российской Федерации «О реабилитации жертв политических репрессий» (2019) (The RCC Decision on the Victims of Political Terror Law, ‘Special opinion’ (concurrence) by A. Aranovsky), pp. 29–41.

Secondary sources:

E. Mishina — The Re-Birth of Soviet Criminal Law in Post-Soviet Russia

Тopics:

Where are we now? A discussion on the continuity of legal systems, memory politics, and transitional justice.

Assignment:

RESPONSE PAPER 2

DOI: 10.55167/da81c9f5f7fc