Soviet Lawyers Research Articles

СЕКРЕТНОЕ ПИСЬМО В.И. ЛЕНИНА 20 ФЕВРАЛЯ 1922 г. НАРКОМУ ЮСТИЦИИ РСФСР Д.И. КУРСКОМУ И ДАЛЬНЕЙШАЯ МОДЕРНИЗАЦИЯ СОВЕТСКОЙ ПРАВОВОЙ ПОЛИТИКИ В УСЛОВИЯХ НЭПА

The paper based on V.I. Lenin’s works, published in sources and special historical materials, explores the true meaning and content of Lenin’s letter dated February 20, 1922 to the People’s Commissar of Justice of the RSFSR D.I. Kursky. This secret letter intended to modernize Soviet legal policy under the conditions of the NEP. Lenin wanted to direct the efforts of the People's Commissariat of Justice (Narkomyust) to fight the enemies of Soviet power. In carrying out this modernization of legal policy V.I. Lenin relied on the qualified Soviet lawyer D.I. Kursky, who for ten years (1918–1928) remained the permanent People's Commissar of Justice of the RSFSR, and then the USSR. In 1922, Lenin, in a secret letter, saw the Socialist Revolutionaries and Mensheviks as the main enemies in the transformation of Russia. One of them was a prominent Russian historian, a former Bolshevik fellow-fighter who went over to the Mensheviks, N.A. Rozhkov. Renegades apostates like him aroused special hatred in Vladimir Ilyich. V.I. Lenin pursued Nikolai Alexandrovich Rozhkov until his last breath. It should be noted that the addressee of the letter D.I. Kursky generally successfully implemented Lenin's demands and instructions for modernization and justice during the NEP years. He practically created a new Soviet law, but in 1928 I.V. Stalin began to sharply curtail the NEP, and D.I. Kursky was “diplomatically” sent by the USSR plenipotentiary envoy to Italy.

Учет мнения детей при разрешении споров об их воспитании: практика в Советской России и эволюция нормативного закрепления

Introduction. The Soviet law postulated the priority of the interests of children as the main principle of resolving family disputes. The Modern Russian legislator has adopted this approach. Currently, cases of mandatory consent of children to perform a legally significant action have been established and the procedure for ascertaining the opinion of minors has been regulated. Did a child have the right to vote in Soviet courts? The answer to this question will help to understand the historical background of the formation of the juvenile justice in Russia. Methods. The study was based on dialectics, which acts as a general methodology of scientific knowledge. General scientific, special and specific scientific methods were used. A generalization of the judicial practice of the Soviet period was carried out using analysis, synthesis, induction and deduction. The results obtained were processed using the interpretive method. A comparison of legal regulation in different historical periods is carried out (comparative research method). The principle of historicism made it possible to assess the dynamics of the development of the child’s right to express his opinion when resolving a dispute and to identify cause-and-effect relationships between the Soviet and modern approaches to this issue. Results. It was revealed that in the Soviet Russia the question of taking into account the opinions of children when resolving disputes about their upbringing was raised by judicial practice: first in individual cases, then in uniform explanations. The court was required to take into account the views of children. The forms of ascertaining the child’s wishes were different; priority was given to out-of-court interviews. The older the children were, the more likely it was that a decision would be made in accordance with their wishes. At the same time, the practice of courts, which limited themselves only to the child’s opinion, received a negative assessment. It was necessary to evaluate how well the children’s wishes corresponded to their real interests, the reasons for the lack of contact with persons applying for education, and the living conditions that were created for the children. The continuity of the Soviet experience in modern legal regulation of taking into account the child’s opinion in family disputes is revealed. The requirements developed by Soviet lawyers are applicable to modern court cases.

Диффамация и алгоритмы: новое измерение старой проблемы

The issue of the protection of legitimate rights of persons who were defamed is not new in Russian legal science. The problem of protection of honour and dignity was known to classical Roman law and was the subject of study of Russian and Soviet lawyers. However, the classic civilistic constructions formulated in the Civil Code were formed during the era of domination of the classical mass media, especially the print media. The digital age is creating new challenges for the system of protection of the defamed that require a new vision of the appropriate protection tools, such vision being based on a deep understanding of the potential of Internet platforms to disseminate information, particularly as they apply algorithmic guidance to enhance the dissemination of information about actions of persons who may be the victims of defamation. In this article, the author explores the institution of defamation in Russian civil law and assesses its effectiveness in conjunction with information law institutions, concluding that it is necessary to supplement the legislation governing algorithmic recommendations.

Costruction of the judicial defense speech: based on the material of court speeches by Y.S. Kiselev

The construction of a public speech is one of the most important components of creating a convincing oratorical performance. Despite the constant interest of researchers in the challenges of constructing a court speech, the arrangement of structural elements, the issue remains unresolved in practical aspect: modern court speakers need recommendations that would contribute to creating effective defense statements. The purpose of this research is to analyze the composition of successful court speeches of the famous Soviet lawyer Y.S. Kiselev, aimed at identifying the features of arrangement of the material, factors that condition this or that disposition, and on this basis to identify various options for the arrangement of content elements contributing to the creation of a convincing speech. Using the method of compositional analysis, as well as rhetorical analysis, descriptive and structural methods, we investigate thirteen effective judicial defense speeches by Y.S. Kiselev. Having analyzed the types of introductions used by him, we have established a high degree of viability of using hyped up or unexpected beginning, as well as conditionality of the choice of the type of introduction by the prosecutor, readiness of the audience to perceive the defense speech, and attitude of the audience to the circumstances of the case. The analysis of the main part of Kiselev’s speeches allows to identify the micro themes presented in all his defense statements, as well as conditionality of a number of micro themes by the circumstances of the case, the arguments of the prosecution, and the chosen line of defense. The conclusion reveals structural elements in all the speeches of the well-known lawyer under study: a clearly expressed position of the defense in the case, a pathetic and educational moment, and an appeal to the court for leniency or acquittal of the defendant. In general, the construction of the defense speech is conditioned by the circumstances of the case, the position of the prosecution, the chosen line of defense, the specifics of the audience, as well as the moral qualities, erudition and communicative skills of the speaker.

The influence of psychoanalysis on the state-legal views of M.A. Reisner and A. A. Ehrenzweig: a comparative analysis of ideas

The subject of the research in the article is approaches to the integration of ideas, concepts and theoretical constructions of S. Freud's psychoanalysis into jurisprudence, which are proposed in the works of the soviet lawyer and public figure M.A. Reisner (who was one of the brightest representatives of the brief period of soviet freudo-marxism) and the american jurist A. A. Ehrenzweig (author of a number of works on psychoanalytic jurisprudence). Special attention is paid in the article to the significance for the legal theory and practice of the doctrine of S. Freud is about the unconscious processes taking place in the human psyche, which to a significant extent form both an individual and the culture of peoples. The similarity of the authors' approaches to understanding the role of the unconscious principles of the human psyche in motivating people's behavior, as well as to understanding the processes of the genesis of law and the state, is shown. Along with this, fundamental differences in the concepts of soviet and american scientists are revealed, demonstrating the vulnerability of the position of M.A. Reisner, for whom (unlike A.A. Ehrenzweig) the subject of law is a social class, not an individual. It is shown that M.A. Reisner in his psychological interpretation of law replaces psychology with class ideology. The conclusion is substantiated that it is necessary to involve the ideas of psychoanalysis in jurisprudence for a deeper understanding of the nature of man as a subject of law.

Criminal Law Meaning of Professionalization of Сriminal Activities (the Case Study of the 1922 Criminal Code of the RSFSR and the 1996 Criminal Code of the Russian Federation)

In 2022, 100 years have passed since the adoption of the first Soviet Criminal Code — a fundamentally new codified enactment in the history of Russian legislation. The purpose and objectives of this study are 1) to identify and analyze provisions of the 1922 Criminal Code of the RSFSR aimed at combating professional crime, to assess their validity, novelty and consistency in the context of criminal and political objectives set before legislative bodies by the Soviet Russia establishment, as well as their dependence on socio-economic and criminological situation that was developing at that time; 2) to determine to what extent the legislator’s approaches to the criminal law fight against professional crime, used in the creation of the Code under consideration, were embodied and developed in subsequent criminal legislation of our country. To solve these problems, the author used rules and techniques of formal and dialectical logic, abstraction and generalization, historical, comparative and formal legal research methods, methods of interpretation of legal norms, documentary sources examination, ideal experiment, legal forecasting, results of previous criminological studies, etc. The author analysed the main and qualified corpa delicti containing such signs as engaging in crimes of a certain type as a profession and committing a crime in the form of a trade. The paper examines the rules of sentencing professional criminals and application of other social protection measures to them in addition to punishment. The author sets out provisions of the criminal law in combination with characteristics of socio-economic and criminogenic situation of the early 20s of the 20th century. Also, the paper explains the views of Soviet lawyers on problems of criminal professionalism and provides the author’s assessment of the grounds for legislative decisions, their gaps and shortcomings. In conclusion, the author briefly describes implementation of the ideas concerning countering professional crime in subsequent Russian criminal codes and in the currently effective 1996 Criminal Code of the Russian Federation.

ГРАЖДАНСКИЙ КОДЕКС РСФСР 1922 г. КАК ФЕНОМЕН ПУБЛИЧНО-ЧАСТНОГО ГРАЖДАНСКОГО ПРАВА: К ЮБИЛЕЮ КОДЕКСА

The article is devoted to revealing the legal nature of the first Soviet civil code and its role in the development of Russian positive law. The Civil Code of the RSFSR of 1922, created as a temporary one for the period of restoration of the Soviet economy after the Civil War, was in force for almost forty years. The author proves that the Civil Code of the RSFSR 1922 by his action, he refuted the assertion of Soviet lawyers about the fragility and determinism of the socio-economic conditions of the institutions enshrined in the codes. The article shows that many specific provisions of the RSFSR Civil Code of 1922 firmly entered the domestic civil law, becoming stable concepts and institutions.

СОВЕТСКАЯ АДВОКАТУРА В ГОДЫ ВЕЛИКОЙ ОТЕЧЕСТВЕННОЙ ВОЙНЫ: РОЛЬ АДВОКАТА И ГРАНИЦЫ ПОЛИТИЧЕСКИ ДОПУСТИМОГО В ЗАЩИТЕ ПО УГОЛОВНЫМ ДЕЛАМ

Based on the sources from the federal and regional archives of Russia, particularly on the materials of revisions of local bar associations by Peoples’ Commissariat of Justice, the reports of bar associations and the materials of disciplinary proceedings against guilty defenders, the article is devoted to the practices of the Soviet bar during the Great Patriotic War. The author analyzes some recordings of criminal trials that show strategies of defense. Considering personnel and organizational aspects of the Soviet bar existence, the author pays attention to the professional and political qualities of Soviet lawyers, as the Soviet government tried to form them during the Great Patriotic war. That period was the beginning of the development of a new system of the Soviet bar, since its new legal and organizational grounds had been established in 1938–1939 after the adoption of the new Stalin’s Constitution. Despite the viewpoint of some historians that, under Stalin, the Soviet bar played an exclusively formal role in legal proceedings, the archival sources show that the Soviet authorities did not try to form defenders as passive observers on trial. On the contrary, Peoples’ Commissariat of Justice required them to participate in the proceedings actively and stubbornly. From the point of view of the Soviet power, a “prompt” Soviet advocate ought to have general and legal literacy and special moral, political and ideological consciousness into “socialist legality” line. However, in practice, the government faced serious personnel problems: the educational level of lawyers was low and the number of communists among them decreased dramatically because of the war. The active defense of a bar member in court often led to disciplinary proceedings against the advocate, in particular after defending those accused of counter-revolutionary crimes. At these trials, the defenders were faced with the need to challenge accusations of disloyalty to the Soviet government and could themselves be accused of anti-Soviet activities. Most advocates decided to be inactive during political trials (but such passiveness often caused disciplinary penalties toward a bar member). One of the most common defense strategies was to ask for mercy for the accused. Only a few advocates risked challenging the political accusations. The defenders were much more willing to present their arguments in their appeals to the Supreme Courts of the RSFSR and the USSR, which were probably considered by the defenders to be more objective and competent. In conclusion, the author assumes that the role of the Soviet bar in wartime was not exclusively formal, and the authorities sought to make it an additional institution for maintaining “socialist legality” and socio-political status quo during the war. However, the intension did not mean the desire of the Soviet power to make an advocate a real defender of citizens' rights.

CONTINUITY OF LEGAL AND EDUCATIONAL DISCOURSE AS A CRITICAL SIGN OF THE PROFESSIONAL LEGAL STAFF TRAINING SYSTEM IN RUSSIA

Among other traditions of domestic legal education and science, it is important to designate the legal and educational discourse that has been going on for more than one century. Being continuous, it ensures the continuity of the development of the system of training legal personnel, its stable and effective evolution. Reflecting the clash of old and new, the discourse on what and how to teach future lawyers or how to teach law is filled with formalized, organized discussions, as well as informal discursive practices. Examples of formalized discussions are the “literary plebiscite” of the early 20th century, the discussion of the problems of Soviet legal education in specialized journals of the 1920s, as well as the scientific substantiation of the “model of the Soviet lawyer”. The informal component of the discourse includes the practice of recalling various actors in the system of training professional legal personnel, including those reflected in ego sources, oral history. Particular attention is paid to “profile” discussions on social networks and the relationship “teacher-student”. The conclusion is made about the need for further, deeper knowledge of the experience of domestic legal and educational discourse.

Philosophical problems of law in the theory of E.B. Pashukanis

The article examines the legal doctrine of Pashukanis from the position of Philosophy and Sociology of Law. On the example of the theory of Pashukanis, the differences between Marxist ideology and philosophy of neo-Kantianism are shown. The approach of the Soviet lawyer to understanding the methodological problems of the science of the theory of state and law is evaluated.

Can Law Wither Away Today?

To secure individual freedom by granting equal rights is a central achievement of the Rule of Law. A gap does, however, remain between the equality of rights and the inequality of economic resources. Soviet lawyer Evgeny B. Pashukanis formulated in 1924 that it is the law which, through the abstractness of its language and institutions, allows those rich in power and possession to disguise their material interests. In his opinion, the transformation from capitalism to communism would inevitably require all <italic>law to wither away</italic>. The metaphor gives way to a critical reflection about where the legal abstractions come from and what they do to our everyday relations. This text argues that it is even more an invitation to think about <italic>how</italic> this reflection can be made accessible to a greater public.

Soviet lawyers in China (1949–1960)

Soviet lawyers in China (1949–1960)

Reisner vs. Stalin: The RSFSR Constitution of 1918

In 2018, the centenary of the Constitution of the Russian Socialist Federative Soviet Republic (RSFSR) was celebrated. Scholarly debate over this legal and political document – Russia’s first constitution – has continued across time up to the present day. The process of drafting the Constitution of 1918 has received very contradictory coverage in the historical and legal literature. Writers’ assessments of the works on this topic have often been influenced by political circumstances. In particular, for a long time the role of the famous Soviet legal scholar and lawyer Mikhail Reisner in the preparation of the draft of the first Soviet Constitution was hushed up. This article examines Reisner’s contribution to the creation of the draft of the first Soviet Constitution and his confrontation with Joseph Stalin over the issue of federation in the Constitutional Commission. These two men proposed diametrically opposed approaches to the principles and foundation of the Soviet Federation. If Stalin believed that the Soviet Federation should be built on the national-state principle, Reisner considered this principle bourgeois and offered to abandon the national principle and build a Federation of Russia as a multi-stage Federation of Soviets. The article then analyzes the content of the draft of the Constitution prepared by Professors Reisner and Goikhbarg (the “professorial project”) and identifies its provisions, borrowed by the authors of the final text of the Constitution of the RSFSR of 1918. Additionally, the article describes a number of the provisions of the draft prepared by Reisner and Goikhbarg and distinguishes it from the final text of the Constitution of the RSFSR of 1918.

ABOUT MIKHAIL S. GREENBERG

The introductory article of the issue – the obituary – is devoted to the outstanding Soviet and Russian lawyer – professor Mikhail S. Greenberg. The author dwells on the main mile-stones of M.S. Greenberg's scientific biography: from studying at Leningrad State University to conferring the title "Honoured Lawyer of the Russian Federation" during his work in Omsk State University, highlights the main provisions of his scientific works, characterizes the personal qualities of M.S. Greenberg.

Accessory and Witness - The Profession of the Lawyer under Stalin (1945–1953)

Drawing on research conducted in Russian and Ukrainian archives, this article explores the legal profession in the late Stalin-era USSR, with a focus on the years following the Second World War. During this period, the number of cases dealt with in the courts grew considerably, and calls to rehabilitate “socialist legality” became more pressing. It is against this backdrop that the article details the different professional aspects—social trajectories and daily practices—of the criminal lawyer's craft. It concludes that while their influence remained relatively weak and was rarely anchored in their legal capabilities, Soviet lawyers did develop economic and networking capacities that enabled them to maintain their autonomy and to fully participate in the dynamics of the Soviet society that emerged in the aftermath of the war. Despite their weak position and the purges they had suffered, lawyers found ways to gain privileged information about ongoing cases, and some of them played an intermediary role between the apparatus of repression and Soviet notables—particularly by participating in the system of bribery and clientelism. Their actions exemplified the ways that Soviets acclimatized to Stalin's dictatorship, working to bend and improve the rules and to create spaces of protection, mutual assistance, and exchange at the heart of the state and the party.

Wizyta prawników radzieckich w Polsce w 1955 r. Dokument archiwalny o tematach i wynikach prawniczych konsultacji polsko-radzieckich

In 1955 the first official visit of Soviet lawyers to Poland took place. It is somehow strange that it took place so late, when the process of Sovietization of Polish law was already very advanced. The chairman of the delegation was Professor D. S. Kariew, who was also a high ranked official of the Soviet Ministry of Justice. The document presented below is the minutes of the last meeting of the delegation with Polish Minister of Justice, Henryk Świątkowski. The Soviet delegation was suggesting to implement many Soviet regulations into Polish law. Among them were: the election of judges (complete fiction) and abolishing the self-government of advocates. They were also pressing on increasing the Ministry’s supervision over judges. At the time the Polish party seemed to accept these proposals but in the event none were implemented into Polish law. This was so because of political changes in Poland in 1956, when Stalin’s period in Polish history ended. The process of reception of Soviet law in Poland then stopped, but not completely.

Russian Advocates: Before, during, and after Perestroika

The advokatura includes all Russian lawyers or advocates whose primary purpose is to advise and represent the interest of private citizens, and it was the nearest thing to a self-governing profession to be found in the Soviet Union. On the face of things, it should have been a major beneficiary of Gorbachev's pravovoe gosudarstvo, or law-governed state. Was it? And what now is to become of it? Is it on the threshold of a heroic age in which its words and actions will have a decisive impact on Russian politics much as those of the imperial advokatura did in the final decades of tsarist rule? Or is it on the brink of collapse? Will it disappear when Yeltsin's proposed reforms become law? No legal profession in the world, it is safe to say, faces quite such starkly contrasting futures. Robert Rand's study of Moscow advocates in the heady days of glasnost, perestroika, and pravovoe gosudarstvo provides a good vantage point from which to reflect on its present problems and speculate about its prospects. Rand's study is based on personal observation and unstructured interviews. It is part investigative journalism and part ethnography-rather more of the former, perhaps, but then most of what we know about Soviet lawyers has come from such efforts. It was conducted, in the main, at Legal Consultation Bureau No. 21 between November 1987 and June 1988. Moscow has 30 legal consultation bureaus, and all advocates are obliged to

The modern commonwealth: A soviet lawyer's perspective

The modern commonwealth: A soviet lawyer's perspective

Human Rights Study in Soviet Academia

For the first time, an academic department has been established at a Soviet law school to focus on human rights. The Human Rights Department began operation in 1988 at the All-Union Correspondence-Study Institute of Law in Moscow. At the same time, the institute was reorganized to establish a full-time law degree program. Soviet university law faculties, like those in Europe generally, are subdivided into departments. Faculty are assigned to a department. Each law student affiliates with a department, writing and defending a thesis in it. While the Human Rights Department is the first at a Soviet university law faculty, the USSR Academy of Science's Institute of State and Law, a legal research organization, has had a human rights section for some years and has produced a substantial literature on human rights.' Boris Nazarov, the law professor who chairs the Human Rights Department, served as a section chief at the United Nations Center for Human Rights in Geneva.2 He sees a need to train more Soviet lawyers in domestic civil rights law and in international human rights law. He cited an increased focus on human rights following the 1975 Helsinki agreements as a reason for establishment of the department.3 He also cited the decision of the Nineteenth Conference of the Communist Party of the Soviet Union in June 1988 to ensure that the USSR should be a state under the rule of law (pravovoe

Legal Education in the Soviet Union

In November 1986, General Secretary M.S. Gorbachev and the other members of the top leadership of the Soviet Union and the CPSU Central Committee issued a decree criticizing the legal profession and ordering reforms in legal education.' Early in 1987, the relevant ministries in Moscow responded to the . attack by implementing a comprehensive program to reform Soviet legal educaution. 2 In this article I shall explain why the top Soviet leadership is dissatisfied with legal education and how its reform fits in with M. Gorbachev's vision of improved Soviet socialism. First, the current role of the lawyer in Soviet society and perceived problems within the profession will be examined, to determine what Soviet lawyers need, by way of education, to be effective. Second, the current Soviet legal education will be discussed in the light of the needs of the profession. Third, high-level criticism of the current system of training lawyers will be examined, followed by an evaluation of the current blueprint for reform.