Notre Dame Law Review Volume 61 | Issue 2 Article 1 1-1-1986 Scientific oS cialism and Soviet Private Law Bernard Rudden Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Bernard Rudden, Scientific Socialism and Soviet Private Law, 61 Notre Dame L. Rev. 151 (1986). Available at: http://scholarship.law.nd.edu/ndlr/vol61/iss2/1 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. Scientific Socialism and Soviet Private Law* Bernard Rudden ** On October 15, 1985, the Plenum of the Central Committee of the Communist Party of the Soviet Union adopted a draft of a new revised Party Program.' In its entire previous history the Bolshevik Party has proclaimed only three of these: the first, in 1903, called for the overthrow of the Tsar and his replacement by the dictator- ship of the proletariat; the second, in 1919, set out the plans for installing socialism in order to make the revolution work; the third, Khrushchev's 1961 program, declared that socialism had been achieved, that the dictatorship of the proletariat had fulfilled its his- toric mission, and had spelled out the path to true communism.2 Strictly speaking, the new draft-which the Party has submitted for public comment throughout the USSR-proposes only revi- sions of the 1961 Program. In fact, it seems a rather more modest document than the one in which Khrushchev prophesied that the USSR would far outstrip the United States by 1980. Yet, in at least one respect its message is the same as Khrushchev's: soviet social- ism is scientifically superior to all other political systems. The introduction to the new draft traces the history of true so- cialism from the "scientific communism" of Marx and Engels through "each historical phase" wherein the Communist Party has solved the problems "scientifically based in its Programs." 3 The new document concludes that the years since the adoption of the last Program have "underlined the correctness of the Party's theo- retical . lines."'4 Elsewhere, the new Program describes the "fruits of its scientific sagacity" and avers that "the experience of the USSR demonstrates the indisputable social-economic, political, intellectual, and moral advantage of the new society as a stage of human progress surpassing capitalism." 5 • Adapted from a speech given at Notre Dame Law School on November 22, 1985. ** Professor of Comparative Law, University of Oxford; Fellow of Brasenose College; Solicitor; M.A., 1960, University of Cambridge; Ph.D., 1965, University of Wales. I Pravda, Oct. 16, 1985, at 1. 2 See HIsToRy OF THE CPSU (BOLSHEVIKS), SHORT COURSE 39-44, 232-33 (Commission of the Central Committee ed. 1939) (official edition). 3 Pravda, Oct. 16, 1985, at 1,col. 2. 4 Id. at col. 1. 5 Izvestiia, Oct. 26, 1985, at 1, col. 2. According to the new program the argument is as follows: Marx and Engels founded "scientific communism;" Lenin developed their teaching into a "scientific system;" the Party has united "scientific socialism with the work- ing-class movement;" and, thus, the Party has solved the problems "scientifically substanti- ated in its programs." Id. NOTRE DAME LAW REVIEW [Vol. 61:151 In this article I shall discuss the relationship between the Soviet notion of scientific socialism and the ordinary laws which govern all Russian citizens as well as their attorneys. I shall not deal directly with such critical issues as Soviet civil liberties, constitutional rights, dissent, and the like; these important topics, the subject of constant debate, are adequately addressed by others elsewhere. Also, since I 6 am not equipped to deal with the day-to-day realities of Soviet life, I shall limit my discussion to the relatively humdrum codes of pro- cedure, property, contract, and tort law in the Soviet Union. Each nation's view of the external world affects the laws which that society makes. I almost blush to make such a simplistic asser- tion. I am not advancing the proposition that "ought" can be de- rived from "is." I do not claim that any legal (or moral) system is logically entailed in any factual description. 7 My point is simply that perceptions of the external world may provide good, practical reasons for adopting a particular law. This is neither a difficult nor a contentious argument. For example, if we agree that, as a matter of fact, unpasteurized milk may carry the tubercular bacillus; that, on the whole, the costs of tuberculosis outweigh any benefit from leaving milk unpasteurized; and that legislation alone will not steril- ize milk (a factual truth); then there is good reason for having a law mandating the pasteurization of milk. I have deliberately chosen this simple example because almost all will agree with both the factual premises and the conclusion. But it follows that, even if we ourselves do not accept certain beliefs as to fact, we must admit that a society which does hold them will then have perfectly "good" reasons for its laws.8 If it is generally believed that witchcraft can maim humans and kill cattle, then laws against witches make perfect sense. Such laws were enacted in Eng- land and Scotland in 1563, stiffened by the British Act of 1603, and enforced enthusiastically by the good people of Massachusetts and Scotland. 9 When the belief as to facts changed, it made just as much sense to repeal the Witchcraft Act and to substitute a law 6 For a masterful account of these day-to-day concerns with Soviet law, see loffe, Soviet Law and Soviet Reality, 30 LAW IN EASTERN EUROPE 1 (1985). 7 That this cannot be done is said to have been demonstrated by Book III, part i, section i of D. HUME, TREATISE ON HUMAN NATURE 469 (L. Selby-Bigge ed. 1888). For the purposes of this article, I simply accept the proposition; whether it is, in fact, conclusive is much debated by moral philosophers. See THE IS-OUGHT QUESTION (W. Hudson ed. 1969). 8 We are committed to make this admission by the rule of formal justice adumbrated in Justinian's Digest: quod quisque iuris in alterum statuerit ut ipse eoden iuire utatur. DIG. JUST. 2.1.2. Thus, if we say that our beliefs as to fact are good reasons for our laws, then we must accept other people's different beliefs (even though, to us, mistaken) as good reasons for theirs. 9 Witchcraft Act (England), 1562, 5 Eliz. 1, ch. 16; Witchcraft Act (Scotland), 1563, 9 Mary ch. 9; Witchcraft Act (Great Britain), 1603, 1 Jas. 1, ch. 12. 1986] SCIENTIFIC SOCIALISM making it an offense to pretend to have magical powers.' 0 The relevance of the preceding to my theme is this. There are two ways of criticizing a law: one is simply to argue that it does not deal efficiently with the problems posed by the admitted facts; the other, and much more powerful attack, is to deny the reality of the facts to which the law is a response. This alternative poses an acute problem for a society which asserts that its cognition of the facts is scientifically verifiable, and tempts its leaders to make the system self-sealing. The facts provoke a set of laws, and one of these laws forbids denial of the facts. Imagine a country whose "Dairy Products Act" made it an of- fense to sell unpasteurized milk; and its "Lactic Heresy Act" pro- hibited the view that raw milk does not make a host for the tubercular bacillus. Now I emphatically do not suggest that the So- viet Union has a simple heresy law: indeed, the USSR Constitution itself lays down that "each citizen of the USSR shall have the right ... to criticize shortcomings in [the] work" of state agencies and that "[p]ersecution for criticism shall be prohibited.""1 But the re- lationship between the official scientific epistemology and the legal system is, as will be shown, much more complex. A society's view of the external world may well include a theory of cognition and of understanding-in short, an epistemology. The Soviet Union's view of its own view of the external world is that it is entirely "scientific." How do they know this? Because they are told so by the law and the prophets. As to the law, the preamble to the 1977 USSR Constitution explains that, in writing the Constitution, the Soviet people were "guided by the ideas of scientific Commu- nism." As to the prophets, Karl Marx himself insisted that "the premises from which [communists] begin are not arbitrary, but real .... [They] can be verified in a purely empirical way."' 2 Friedrich Engels devoted a whole book to making the point: its title is "So- cialism, Utopian and Scientific."' 3 The word "scientific" is a refrain in the draft of the new Program. Note that all of this operates at two levels. First, by calling its 10 Witchcraft Act, 1735, 9 Geo. 2, ch. 5. 11 U.S.S.R. CONST. art. 49 (1977). The "first amendment" rights of Soviet citizens are conferred thus: In accordance with the interests of the working people and with a view to strength- ening the socialist system, citizens of the USSR shall be guaranteed the freedom[s] of: speech, press, assembly, meetings, street processions, and demonstrations. U.S.S.R. CONST. art. 50 (1977). For an English translation of the Constitution of the USSR, see W.