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Principles of Soviet Criminal Law'' PRINCIPLES OF SOVIET CRIMINAL LAW'' HAROLD J. BERPLANt I SOVIET criminal law reflects the reconciliation which Soviet Russia has effected in the last ten years between Revolutionary social-eco- nomic values and orthodox legal principles. Both in criminal legal theory 1 and in substantive criminal law 2 an answer has been found to the challenge uttered by Stalin in 1936: 3 "We need stability of laws now more than ever." In the drive for stability, new meaning has been given both to the Revolution and to Law-and this has found expres- sion in doctrines of crime and punishment. Prior to 1936 Soviet jurisprudence was committed to the theory that all law originated with the market-place and the exchange of commod- ities, and that with the gradual disappearance under Socialism (the first phase of Communism) of an economy centered around money and trade, law would begin to "wither away." 4 Criminal law, which had developed its basic characteristics of retribution and compensation from commodity exchange and the principle of equivalence, would * Practically nothing has hitherto been published in English on the substantive criminal law of Soviet Russia, though articles have appeared on Soviet criminal procedure, the political trials, treatment of criminals, and criminal theory. The present article deals primarily with substantive doctrines of crime and punishment, and is based largely on two volumes published in Moscow in 1943, as an official te.\tbool, by the All-Union Institute of Juridical Science--C~a ni AL LAw, GNEAL PAI and CRmmiUAL LAw, SPECIAL PAnr (both in Russian). t Member, Third Year Class, Yale School of Law. 1. See Hazard, Reforming Soviet Criminal Low, 29 J. Cxr.m L. & C m ox oG" 157 (1938) ; SCHLESINGER, SovrET LEGAL THEORY 236 et seq. (1945). 2. Worthwhile collateral readings, though not directed primarily to substantive crim- inal law, are: ZELrrcH, Sozr AmisTRATiox OF CunnNAL LAW (1931), which gives an introduction to the system of courts and trials prior to the Judicature Act of 1938, described in Kent, The Court Systemn in the Soviet Union, 2 Co.AP TIvE LAW SERIs 130 (U. S. Dep't Commerce 1939) ; Hazard, Soviet Criminal Procedure, 15 TmuLm L. REv. 220 (1941). 3. STALIN, REPoRT ON THE DR.'r CoNsrrrITox, delivered at the Eighth _,xtraordi- nary Conference of the V.K.P. (b) 39 (1936) (in Russian). 4. See PAsHu A.Ns, GENERAL THEORY OF LAW AN Mt.&uxism 104 (3d ed. 1927) (in Russian), where the doctrine of "the withering away of the law in general, that is, the gradual disappearance of the juridical element from human relations" is expounded. "The withering away of the categories of bourgeois law (exactly the categories, and not this or that particular rule) can under no circumstances mean their replacement by some new categories of proletarian law." Id. at 22. Pashukanis was the Director of the Soviet Insti- tute of Law of the Academy of Science, and editor of the leading journal Sov-r STATE AND LAw, prior to the renunciation of his doctrines in 1936 and 1937. For the source of the doctrine of the withering away of law under Communism, see ENGELs, ANi.-DunnLNG 308 (Eng. ed. 1934). Cf. LExrN, STATE AND REVOLUTIOn (2d ed. 1918). THE YALE LAW JOURNAL [Vol. 56: 803 yield to administrative disposition of those few delinquents who chal- lenged the harmony of a classless society. I In anticipation of these apocalyptic events, the juridical categories of crime, punishment, and guilt were replaced in early Soviet criminal legislation by sociological categories. The phrases "socially dangerous act" and "measure of social defense" were substituted for the words "crime" and "punishment." I Fault was declared to be a bourgeois criterion: "measures of social defense" should be meted out in accord- ance with the best interests of the "Workers'-and-Peasants' State," as determined by the "revolutionary legal conscience" of the judges.7 The doctrine of nullum crimen, nulla poena sine lege was assailed, and in its stead the principle of analogy was introduced: if an act or omission was considered socially dangerous, although no specific statute prohibited it, the judge could apply a statute prohibiting an analogous act or omission.8 Some of this philosophy of criminal law seems to have stemmed from the sociological school of jurisprudence of the 19th and early 20th cen- tury.' A good deal, however, was simply the product of the revolu- tionary emergency. In the period of War Communism (1917-1920), criminal law was almost entirely in the hands of semi-judicial and non- judicial bodies. 10 The "Red Terror" 11 was an explicit part of the 5. The emphasis-in theory, at least-was almost entirely on the rehabilitation of the socially dangerous person through corrective institutions. By 1930 it was expected by high officials of the People's Commissariat of Justice that criminal prosecutions would cease altogether within six or seven years at the most. See Pritt, The Russian Legal System, in TwELvE STUDIES ON SovrT RUSSIA (Cole ed. 1933). 6. See CRIMINAL CODE, RUSSIAN Sovr FEDERATED SOCIALIST REPUDLIc, Art. 1: "The criminal legislation of the R.S.F.S.R. has as its aim the protection of the Socialist State of the Workers and Peasants, and the legal order established therein, from socially dangerous. acts (crimes) by means of application to persons who have committed them of the measures of social defense indicated in the present Code." 7. The Law of Nov. 30, 1918 "On the People's Courts" (COLL. LAWS, R.S.F.S.R., 1918, No. 85, Art. 889), Art. 22, required the People's Judges to decide all questions on the basis of written Soviet laws, and, in case such written law did not cover a question, on the basis of "revolutionary legal conscience". 8. See note 37 infra. 9. The claim that Soviet jurists were greatly influenced by Enrico Ferr, the leader of the sociological school-a claim made by Ferri himself-was vigorously denied by the Russians. See PIONTKOVSKY, MARXISM AND CRIMINAL LAW 111 et seq. (1929) (in Rus- sian). 10. With the abolition of all hitherto existing courts by the First Decree on Courts, Nov. 24, 1917 (COLL LAws, 1917, No. 4, Art. 50), a double system of local courts and revolutionary tribunals was established. But central and local organizations sprang up to assume the functions of the local courts. KRYLENKo, THF JUDICIARY OF THE R.S.F.S.R. 322 (1923) (in Russian). These organizations were gradually absorbed by central and local Chekas (Extraordinary Commissions for the Struggle Against Counter-Revolutionary Sabotage). Thus, despite the provision for local courts in the First Decree on Courts, In fact from 1917 to 1922 the law was administered by the revolutionary tribunals which were 1947] PRINCIPLES OF SOVIET CRIMINAL LAW official policy of combatting counter-revolution from within and inter- vention from without. Even with the establishment of a judicial system of criminal law administration in 1923,12 itwas made clear that, as Lenin wrote,13 "the courts should not do away with terror-to promise that would be to deceive ourselves and others-but should give it founda- tion and legality, clearly, honestly, without embellishments." But Soviet jurists who were called upon to interpret the wide use of analogy, the subordination of culpability to political interest, and the replace- ment of the supremacy of law by revolutionary legal conscience, saw in them not merely a response to a perilous emergency situation, but also a prelude to the complete disappearance of criminal law from the Soviet social order. With the announcement in 1936 that Socialism had been achieved, 14 law, far frofn withering away, underwent a restoration on a large scale. 5 In criminal law particularly, "commodity exchange" theories have been renounced. Not equivalency of injury for injury, but rather "the self- defense of society against all violations of the conditions of its exist- ence," 16 is now thought to have been the basis for early forms of retribution and composition. Criminal law is thus not simply a bour- established by the same Decree (and by the Chekms, in so far as the Chekas may be said to have administered law). The revolutionary tribunals were set up to try cases dealing with such crimes as organized insurrections, sabotage against the government, and wilful destruction of necessities. They were supposed to be open, public courts, with both prose- cution and defense participating in the trial. See ZExrrc, Soviur AwrnISmATio: oF CsnuxA. LAw 35 et seq. (1931). But especially after the assassination of Uritsky and the attempt on Lenin's life (August 30, 1918), they abandoned formalities. Krylenko, prosecutor in the outstanding cases and later Commissar of Justice, said subsequently: "In the jurisdiction of the tribunals a complete liberty of repression was advocated, while shooting was a matter of everyday practice and the value of a tribunal or its president was judged by the extent to which they justified their designation as an instrument of re- pression." XRYLExxo, op. cit. supra note 10, at 209. 11. Resolution of Council of People's Commissars of Sept. 5, 1918 (Cou.. LAws, R.S.F.S.R., 1917-1918, No. 710), "On the Red Terror," announcing in broad terms the necessity of confining or shooting the enemies of the revolutionary regime. See also the editorial entitled "Red Terrorism" in Izvestia, Sept. 5, 1918. 12. The first CumarwA CODE and CODE OF CRinuuL ProcEnunR op THE R.S.F.S.R. were written in 1922 and went into effect Jan. 1, 1923. 13. Letter to Kurskdi, People's Commissar of Justice, regarding the drafting of the Criminal Code of 1922.
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