Revolutionary Legal Consciousness

Institutional basis

Decree on Courts No. 1 of November 1917 dismantled the tsarist court system and established local people's courts. It provided that judges could apply pre-revolutionary statutes only insofar as these did not conflict with revolutionary legal consciousness, and in practice written statute soon dropped out of reference altogether.

Subsequent legislation in 1918 and 1919 extended the principle. The Guiding Principles of Criminal Law defined the purpose of punishment as social defence rather than retribution or proportion to guilt, and offered the actor's class position and social dangerousness as the criteria of judgement. That legal training had been suspended, so that many judges were party members and workers with no legal education, also shaped what the principle meant in practice.

How it worked

Revolutionary legal consciousness served two functions. One was to justify the break with the old legal order. The other was to make the punishment of class enemies possible without legal grounds. That a worker and a former merchant received different punishments for the same act was not a contradiction under this principle.

During the civil war the principle ran alongside the Cheka's punishment outside the courts, and under NEP it came under pressure toward codification with the criminal code of 1922. That code included a provision permitting reasoning by analogy, so that conduct with no express provision could be punished under a similar one. Room for judgement was preserved even after a formal code arrived.

Replacement and recurrence

In the 1930s the principle was displaced by the discourse of socialist legality. Vyshinsky's formulation defined law as a permanent instrument guaranteeing the stability of the proletarian state and stressed adherence to written norms and procedure. The shift widened legal certainty and at the same time moved political repression inside the forms of law.

Revolutionary legal consciousness did not disappear entirely. The reasoning that makes a class standpoint the criterion of adjudication recurred in the political cases of the Great Purge and in later prosecutions for anti-Soviet agitation. In the history of legal theory the concept is classed as the legal nihilism of the years right after the revolution and is treated, alongside Pashukanis's commodity-form theory, as one of the two poles of early Soviet jurisprudence.