Socialist Legality

Breaking with Pashukanis

The dominant theory in Soviet jurisprudence through the 1920s was Pashukanis's commodity-form account. Law, on this view, is a bourgeois form corresponding to commodity exchange, so that once socialism abolishes commodity relations law itself withers away, replaced by planned administration. Because the theory treated the disappearance of law as an index of socialism, it saw the elaboration of codes as a provisional measure of the transition.

In the mid-1930s Vyshinsky attacked it. In his formulation law is an instrument of class rule, and the socialist state requires strong law to guarantee its own stability. The task of socialism therefore becomes the strengthening of law rather than its disappearance. Pashukanis was arrested as an enemy of the people in 1937 and shot, and his works were withdrawn.

Joined to the 1936 Constitution

The shift was institutionalized with the Constitution of 1936. It set out a list of citizens' rights, the organization of the courts, and the supervisory powers of the procuracy, and socialist legality became the term for adherence to that written order. The strengthening of the procuracy as the organ supervising observance of law is characteristic of the same period.

At the same time the organs of extrajudicial sentencing were operating at their maximum. That the year in which socialist legality was proclaimed official doctrine overlaps with the year the troikas sentenced hundreds of thousands shows the doubleness of the discourse. The language of procedure served to move political cases inside formal legality, while the mass operations proceeded outside that form.

Later reinterpretation

The emphasis of the concept moved after Stalin's death. Under Khrushchev the extrajudicial sentencing bodies were abolished and criminal procedure was codified, so that socialist legality was reinterpreted toward the guarantee of procedural rights. The revisions of the criminal and criminal-procedure codes in 1958 and 1960 were the result.

During perestroika the concept expanded again and was offered as a ground for protecting individual rights against the state, and the expression law-governed state entered official discourse. The history of socialist legality can be read as the movement of one term, across periods, from a means of defending the state to a means of defending the individual.