Jurisprudence is

" . . . the philosophy of law".

('Oxford English Dictionary', Volume 8; Oxford; 1989; p. 321).

and law is

" . . . the body of rules . . . which a particular state . . . recognises as binding on its members".

('Oxford English Dictionary', Volume 8; Oxford; 1989; p. 712).

According to Marxism-Leninism, the state is

" . . . a machine for maintaining the rule of one class over another".

(Vladimir I. Lenin: 'The State', in: 'Selected Works', Volume 11; London; 1943; p. 647).

and came into existence when society became divided into classes:

According to Marxism-Leninism, the base of society

while the superstructure of society " . . . is the political, legal, religious, artistic, philosophical views of society and the political, legal and other institutions corresponding to them". (Josef V. Stalin: ibid.; p. 505).

In the period following the socialist revolution in November 1917, revisionist conceptions of law were dominant in Russia.

This was possible because the view was widely in legal circles at this time that

so that

although in fact

In the period immediately following the Russian revolution of November 1917, the dominant school of legal philosophy in the young Soviet republic was that of the 'intuitive school' of Mikhail Reisner (1868-1931), who was himself a disciple of Lev Petrazhitsky (1857-1931). According to Petrazhitsky,

In short, the 'intuitive school' legal theory of law

.

But this view -- that ideas are primary and the material world is secondary -- is an

" . . . idealist principle", ('Great Soviet Encyclopedia', Volume 19; New York; 1978; p. 493).

where philosophical idealism

Reisner himself claimed that Petrazhitsky's phantasmata

and he claimed

But in reality Reisner's adaptation of Petrazhitsky's idealist theory is not Marxist at all. For whereas Marxism holds that the dominant ideas in a society are those of the ruling class of that society:

Reisner, in contrast, holds that Soviet law is

Or, in the words of the Marxist-Leninist legal theoretician Andrei Vyshinsky, Reisner depicts law as

and sums up his analysis of Reisner's legal philosophy as follows:

Since Reisner's legal ideas were so obviously alien to Marxist-Leninist thought, they

The 'commodity exchange' school of legal philosophy rejected the Marxist-Leninist thesis that the state came into existence when society became divided into classes, so that machinery became necessary for maintaining the rule of one class over society (p. 1). It

The leading figures in the 'commodity exchange' school were Petr Stuchka (1865-1932), Dmitri Kursky (1874-1932), Nikolai Krylenko (1885-1935), Ivan Akulov (1888-1939), and Evgeny Pashukenis (1891-1937). Stuchka was RSFSR People's Commissar for Justice in 1918-21, and Chairman of the RSFSR Supreme Court from 1923 until his death in 1932. Kursky was RSFSR People's Commissar for Justice in 1918-28, a Presidium member of the All-Russian Central Executive Committee in 1921-23, a Presidium member of the USSR Central Executive Committee in 1923-24, and USSR Ambassador to Italy in 1928-32. Krylenko was RSFSR Procurator in 1922-31, RSFSR People's Commissar for Justice in 1931-36, and USSR People's Commissar for Justice in 1936-38, Akulov was USSR Deputy People's Commissar for Workers' and Peasants' Inspection in 1930-31; 1st Deputy Chairman of the OGPU in 1931-32 and USSR Procurator in 1933-35. Pashukenis was Director of the Institute of Soviet Construction and Law of the Communist Academy in 1931-36, and USSR Deputy People's Commissar for Justice in 1936-37.

Of these,

(Robert Sharlet: 'Pashukenis and the Withering Away of Law in the USSR', (hereafter listed as 'Robert Sharlet (1978)', in: Sheila Fitzpatrick (Ed.): 'Cultural Revolution in Russia: 1928-1931'; Bloomington (USA); 1978; p. 170).

while Krylenko, in particular,

The school concealed the essentially reactionary character of its ideology behind a false facade of pseudo-left demagogy. Or, in the words of the Marxist-Leninist Andrei Vyshnsky, it

Indeed,

The 'commodity exchange' school of legal philosophy took in a fundamentalist way, as 'holy writ', the passage from Engels in which he states that after the conquest of political power by the working class, the state will wither away:

Consequently, the 'commodity exchange' school of legal philosophy

In fact, a key feature of the views of the 'commodity exchange' school of legal philosophy was that the state and law would, following the socialist revolution, speedily wither away. Pashkunis expressed this view by saying

Thus, most members of the 'commodity exchange' school denied that such a thing as 'proletarian law' could exist:

Consequently, they characterised Soviet law as

The 'commodity exchange' school of legal philosophy

The 'Communist Academy' was

By the late 1920s, the 'commodity exchange ' school of law

and 'commodity exchange' jurists

and a campaign was launched for the removal of Marxist-Leninists -- depicted as 'bourgeois' -- from the field of academic law:

and the campaign was then extended to the state apparatus proper:

In some places,

So, by the end of 1930,

There were, of course, theoretical " . . . differences within the commodity exchange school",

(Robert Sharlet (1978): ibid.; p. 171).

The theoretical deviations from Marxist-Leninist principles of the dominant revisionists of the 'commodity exchange' school were, of course, reflected in the field of legislation. For example, in the discussions on the draft Criminal Code that was finally enacted in May 1922, People's Commissar of Justice Dmitri Kursky argued

However, as a result of strong opposition from the Marxist-Leninist minority within the legal profession, the legislators " . . . did not follow Kursky's suggestion" (Yuri Starosolsky: ibid.; p. 14), although eight years later, in 1930, " . . . Krylenko took it up again in his drafts". (Yuri Starosolsky: ibid.; p. 14).

Nevertheless, the code as adopted at the time gave wide scope to judicial discretion:

The new code also gave wide scope to analogy, defined as:

Article 10 of the 1922 Criminal Code read:

However,

Indeed, in the discussions on the Code prior to its adoption, the principle of analogy was at first rejected in favour of that of 'nullum crimen, nullum poena, sine lege' (no crime, no punishment, without pre-existing law).(Yuri Starosolsky: op. cit.; p. 16).

However, within a month of this, in June 1922, Marxist-Leninist jurists succeeded in getting the People's Commissariat of Justice (Narkomiust) to issue a circular letter in which " . . . analogy was characterised as something that should be applied only exceptionally".

(Yuri Starolovsky: op. cit.; p. 62-63).

Returning to the battle in 1927, Krylenko suggested a review of the Criminal Code, proposing

and, in Article 6 of Krylenko's draft, even the imprisonment of those

In their draft of 1930 for a new Criminal Code, Pashukenis and Krylenko revived the earlier tendencies " . . . and carried them to an extreme. 'Bourgeois legality' ought to be replaced by the application of repressive measures according to considerations of expediency, without any claim that these repressive measures should correspond to individual guilt".

(Rudolf Schlesinger: op. cit.; p. 208).

Article 6 of the draft 1930 Code declared:

The effect of this would, of course, have been " . . . the security of law enjoyed by the average Soviet citizen . . . would have been destroyed".(Rudolf Schlesinger: ibid.; p. 208).

But before the new draft Code could be adopted, the Marxist-Leninists struck successfully against the revisionists and it never became law.

The Battle of Ideas over Jurisprudence In the 1930s, " . . . there occurred in Soviet legal history what is known as the 'struggle on the legal front'".

(Walter E. Butler (Ed.): Introduction to 'Russian Legal Theory'; Aldershot; 1996; p. xlii).

This was a battle of ideas between Marxist-Leninists and the dominant revisionist school based on the thesis of 'commodity exchange'. Supporters of the 'commodity exchange' school were called by their opponents 'nihilists' (from the Latin 'nihil' meaning 'nothing'). where 'nihilism' signifies

" . . . the rejection of all traditional values'. (Jennifer Bothamley: 'Dictionary of Theories'; Andover; 1993; p. 376).

The struggle to replace the dominant revisionist positions on legal theory by Marxist-Leninist positions was led by Andrei Vyshinsky (1883-1954).

Vyshinsky was RSFSR Procurator in 1931-33, USSR Deputy Procurator in 1933-35, USSR Procurator in 1935-39, USSR Deputy Minister for Foreign Affairs in 1940-49, USSR Minister for Foreign Affairs in 1949-53, and USSR Permanent Representative at the United Nations in 1953-54. In May 1931, " . . . Andrei Vyshinsky was appointed Procurator of the RSFSR".

(Arkady Vaksberg: op. cit.; p. 54).

The Soviet Procurator's Office had been established in May 1922

Until 1933 the Procurator's Office was part of the system of People's Commissariats of Justice in the republics, but in July 1933 the supervisory power of the Office was centralised in the

USSR Procurator's Office.

('Great Soviet Encyclopedia', Volume 21; New York; 1978; p. 221). In Ancient Rome, the Procurator was the

('New Encyclopaedia Britannica', Volume 9; Chicago; 1994; p. 718)

but later became the state prosecutor, functioning as " . . . the government official responsible for representing the state in court".

('Encyclopedia Americana', Volume 22; New York 1997; p. 667).

The word survives in Scotland in the 'Procurator-Fiscal', where 'fiscal' means " . . . pertaining to the fisc or treasury of state".

('Oxford English Dictionary', Volume 5: Oxford; 1989; p. 962). '

In July 1933, the Politburo of the Central Committee of the CPSU ordered

and Ivan Akulov was appointed USSR Procurator and Andrei Vyshinsky his deputy.

(J. Arch Getty & Oleg V. Naumov: ibid.; p. 120).

In 1934, the USSR Procuracy " . . . acquired its own journal 'For Socialist Legality' , with Akulov and Vyshinsky as Editor and Deputy Editor respectively.

The new journal

(Robert Sharlet & Piers Beirne 'In Search of Vyshinsky: The Paradox of Law and Terror', (hereafter listed as 'Robert Sharlet & Piers Beine (1984)') in: 'International Journal of the Sociology of Law', Volume 12, No. 2 (May 1984); p. 170).

In June 1930, Stalin publicly threw his weight behind the Marxist-Leninist denunciation of the revisionist legal philosophers when he told the 16th Congress of the CPSU:

As John Hazard notes,

This passage in Stalin's report

The adoption in November 1936 of the new 'Stalin Constitution' of the USSR " . . . is regarded as the formal turning point of the nihilistic trend in Soviet legal theory".

(Yuri Starosolsky: op. cit.; p. 42). ,

In November 1936, in his report on the new draft Soviet Constitution, Stalin declared:

The opening shot in the direct battle against the revisionists who dominated the field of legal philosophy was fired by the philosopher Pavel Yudin (1899-1968).

Yudin was Director of the Institute of Red Professors in 1932-38, Director of the Institute of Philosophy of the USSR Academy of Sciences in 1938-44, USSR Deputy High Commissioner in Germany in 1953, and USSR Ambassador to the People's Republic of China in 1953-59.

In January 1937, " . . . 'Pravda' published a vigorous attack upon him (Pashukenis -- as an 'enemy of the people'".

(John N. Hazard, in: Vladimir I. Lenin et al.: op. cit.; p. xxix).

and in September 1937, " . . . the short article was expanded by the same author, P. Yudin, in the Communist Party's magazine 'Bolshevik'".

(John N. Hazard, in: Vladimir I. Lenin et al.: op. cit.; p. xxix).

This article was entitled 'Socialism and Law', and in it " . . . Yudin denied the paucity of Marxist literature to serve as a guide for Soviet legal philosophy".

(John N.Hazard, in: Vladimir I. Lenin et al.: op. cit.; p. xxix).

Criticising the revisionists for saying that Soviet law is 'bourgeois law', Yudin wrote: "Their reasoning was approximately this: in bourgeois law there is the concept of a statute; in Soviet law there is likewise a concept of a statute. Soviet law was consequently borrowed from bourgeois law".

(Pavel Yudin: 'Socialism and Law', in: Vladimir I. Lenin et al.: op. cit.; p. 293

In fact, insisted Yudin,

" . . . the dictatorship of the proletariat is a state of a new type, and the law created by that state is law of a new type".

(Pavel Yudin: ibid.; p. 290). and he denounced those spurious Marxist-Leninists for whom

". . . the greatest productions of Marx, Engels, Lenin and Stalin failed to furnish the theoretical foundations of the legal order of the new society in any -- even the slightest -- degree. . . . The enemies of the people -- who assumed charge in this area -- knew how to occasion no little injury to us. They preached -- and not without success -- the theory of our state withering away and of the law withering away"..

(Pavel Yudin: ibid.; p. 289, 299).

In this battle of ideas, Krylenko initially " . . . carried out passive resistance to Vyshinsky's programme".

(Peter H. Solomon, junior: 'Soviet Criminal Justice and the Great Terror' (hereafter listed as 'Peter H. Solomon, junior (1987)'), in: 'Slavic Review', Volume 46, No. 3/4 (Fall/Winter 1987); p. 394).

the Procuracy being Vyshinsky's power base, while Krylenko's was the RSFSR People's Commissariat of Justice, with its influential journal 'Soviet Justice'.

(Eugene Huskey 'Vyshinsky, Krylenko and the Shaping of the Soviet Legal Order', in: 'Slavic Review', Volume 46, No. 3/4 (Fall/Winter 1987); p. 394

but Krylenko's

" . . . was an increasingly isolated voice in the Soviet legal community".

(Eugene Huskey: ibid.; p. 423).

In the light of Stalin's intervention of July 1930, in 1930 Pashukenis " . . . found it desirable . . . to publish an article correcting his errors".

(John N. Hazard, in: Vladimir I. Lenin et al.: op. cit.; p. xxvii).

In this article, entitled 'State and Law under Socialism', he criticised his earlier work of 1924, 'The General Theory of Law and Marxism' for saying that the Soviet law and state

The, in 1931,

His 1931 speech

" . . . was intended as a recantation of some of his ideas".

(John N. Hazard, in: Vladimir I Lenin et al: ibid.; p. xxxi).

The first authoritative public criticism of Kryenko

" . . . accompanied the elevation of Vyshinsky to the post of Procurator". (Eugene Huskey: ibid.; p. 419).

while in May 1935

In July 1938, the victory of the Marxist-Leninist legal philosophers was signalled when

and Vyshinsky

" . . . succeeded Pashukenis as the effective leader of the Soviet legal profession".

(Robert Sharlet (1978): op. cit.; p. 187).

and on Vyshinsky's initiative,

In January/February 1939, the All-Union Institute of Juridical Science of the USSR People's Commissariat of Justice approved a new draft Criminal Code which declared:

(in: Yuri Starosolsky: op. cit.; p. 49-50)

In reorganising the Soviet legal profession along genuine Marxist-Leninist lines, Vyshinsky distinguished between the great majority of legal workers who had been honestly misled and a handful who were found, after investigation, to have deliberately and criminally sabotaged the legal sciences. The majority of those who had followed the path of Pashukenis and Krylenko were regarded as

Thus, some of the followers of Pashukenis and Krylenko " . . . who were relieved of their teaching positions, such as Professor Grigory Amfiteatrov, were returned to their posts after a period of absence. Some of those whom Vyshinsky criticised in violent terms, but without the epithet 'enemy of the people', such as Professor Evgeny A. Korovin, were never removed at all. . . . Yet their theoretical errors seem to have aroused the same amount of criticism". (John D. Hazard, in: Vladimir I, Lenin et al.: op. cit.; p. xxxii).

Petr Stuchka, who had " . . . died in 1932 and was buried in Red Square", (Roy A. Medvedev: 'Let History Judge: The Origins and Consequences of Stalinism'; London; 1972; op. cit.; p. 202).

was posthumously declared " . . . a deliberate wrecker in the field of jurisprudence".

(Roy A. Medvedev: ibid.; p. 202).

while a handful who were still alive were arrested and charged with the criminal offence of diversionism, a diversionist being defined as " . . . a saboteur". ('Oxford English Dictionary', Volume 4; Oxford; 1989; p. 887).

Vyshinsky referred to this kind of activity in his 1938 speech entitled 'The Fundamental Tasks of the Science of Soviet Socialist Law':

In short, what was now the Marxist-Leninist majority in the leadership of the CPSU concluded that Pashukenis had

with the underlying intent

Consequently, Evgeny Pashukenis was arrested in January 1937, Ivan Akulov in August 1937, and Nikolai Krylenko in January 1938. (J. Arch Getty & Oleg V. Naumov: op. cit.; p. 485; Arkady Vaksberg: op. cit.; p. 1332, 136). ; They were charged (as in the case of Pashukenis) with having been " . . . engaged in counter-revolutionary activity in the sphere of the theory of Soviet law".

(Arkady Vaksberg: ibid.; p. 129).

or (as in the case of Krylenko) with " . . . having created in the bodies of the legal profession a wrecking organisation and having led it".

(Arkady Vaksberg: ibid.; p. 133).

In 'Pravda' of 9 April 1937, Pashukenis

" . . was linked by Vyshinsky with Bukharin as a wrecker 'who has now been exposed'.

(Robert Conquest: 'The Great Terror: Stalin's Purge of the Thirties'; London; 1973: p. 276

Pashukenis

while in February 1938, Krylenko

At their trials, Pashukenis, Krylenko and Akulov were found guilty of diversionism. Pashukenis and Krylenko were sentenced to death and executed, while Akulov was sentenced to imprisonment and died in prison in 1939. (Heinrich E. Schulz, Paul K. Urban & Andrew I. Lebed (Eds.): 'Who was Who in the USSR'; Metuhen (USA); 1972; p. 9;

Arkady Vaksberg: op. cit.; p. 142, 294).

The revisionists were able to score only one partial victory in the struggle. They succeeded in having the arrests, and trials of the convicted diversionists kept secret 'for security reasons'. The accused persons simply 'disappeared'. This was totally contrary to the policy of the Marxist-Leninists, who were firm upholders of the educational role of law:, "Ever since the early years of the Soviet State, a heavy emphasis has been placed, both in legal theory and in legal practice, on the educational role of law in Soviet society". .

(Harold.J. Berman: 'The Educational Role of Soviet Criminal Law and Criminal Procedure', in: Donald D. Barry, William E. Butler & George Ginsburg (Eds.):'Contemporary Soviet Law: Essays in Honour of John N. Hazard'; The Hague: 1974; p. 1).

Clearly, arrests and trials which were kept secret could play no educational role, but made it easier for the guilty persons to be 'rehabilitated' by revisionists at a later date.

Stalin's 1939 Statement on the Future of the State.

The definitive interpretation of Engels' passage, to the effect that, following the socialist revolution, the state will wither away: was given by Stalin to the 18th Congress of the CPSU in March 1939:

In the period of the construction of socialism, Stalin continued:

After the capitalist elements of town and country had been eliminated, continued Stalin,

Finally, Stalin asks, will the state still exist when socialism has given way to communism, when the principle 'to each according to his needs' has become operative?

Author: W.B. Bland
The Marxist-Leninist Research Bureau
NCMLU