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The Impact of the Penal Law of Imperial Russia on Soviet Penal Law

Published online by Cambridge University Press:  25 January 2017

N. S. Timasheff
N. S. Timasheff*
Affiliation:
Fordham University
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Extract

Soviet law is the law of a society of a new type. That society is an ideocracy, or a society allegedly ruled not by men, but by an idea, the idea in question being, of course, Marxism in its Leninist-Stalinist interpretation. An ideocracy seems, however, to require as much enforcement as any other type of society. Nobody questions the fact that, in the Soviet Union, coercion, both on the legal and extralegal level, reaches high levels of intensity.

In so far as Soviet law expresses the ideocratic nature of Soviet society, it must be, and actually is, unique. But not all is unique in that law; there are also many elements in which Soviet law differs only slightly from pre-Revolutionary Russian law. Since Imperial Russian law belonged to the family of Western law (in contradistinction to the Chinese, Hindu, Islamic and other families of law) and more exactly, to the class called “civil law” (in contradistinction to the common law of the Anglo-Saxon countries), European jurists and even American jurists, though not so easily, can find in that law many traits with which they are familiar.

Type
Research Article
Information
American Slavic and East European Review , Volume 12 , Issue 4 , December 1953 , pp. 441 - 462
Copyright
Copyright © Association for Slavic, East European, and Eurasian Studies 1953

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References

1 On the basic traits of Soviet law, see Timasheff, N. S., “Soviet Law,” Virginia Law Review, XXXVIII (1952), 871–77.CrossRefGoogle Scholar

2 Cf. Timasheff, N. S., “The Retributive Structure of Punishment,” American Journal of Criminology, XXVIII (1937), 397–405.Google Scholar

3 These justices were elected by the District Zemstvo Assemblies, elective bodies of local self-government.

4 Cf. Timasheff, N. S., The Great Retreat (New York, 1946), 22–40.Google Scholar

5 Officially, the main reason was the necessity to reconstruct the prison system to adjust it to the demands of the new code. In actuality, the delay was caused by a private feud between the Minister of Justice Ščeglovitov and Senator N. S. Tagancev, the chief draftsman of the code.

6 Individual chapters and articles of the code were put in force by the laws of June 7, 1904; March 14, 1906; March 27, 1909; December 25, 1909; and March 20, 1911.

7 Of which the present writer was a member.

8 Of which the present writer also was a member. On the fate of the draft prepared by this committee see Timasheff, N. S., “Political Power in the USSR,” Review of Politics, XIV (1952), 16–17.Google Scholar

9 Vsesojuznyj Institut Juridičeskikh Nauk, Ugolovnoe pravo: Obscaja čast’ (4th ed., Moscow, 1948)Google Scholar. This is an official textbook on criminal law; hereafter referred to as such.

10 Sobranie uzakonenij i rasporjaženij Raboče-Krest'janskogo Pravitel'stva, 1918, No. 85, Art. 889.

11 Eženedel'nik Sovetskoj justicii, No. 3 (1922), pp. 3–4, hereafter cited as ESJ.

12 These drafts were published in Materialy narodnogo kommissariata justicii, Vols. VII and X.

13 ESJ, No. 22 (1922), pp. 27-28.

14 This draft was published in Proletarskaja revoljucija i pravo, 1921, No. 15. About the reasons for its rejection see official textbook, p. 124.

15 Hereafter referred to as ARCEC.

16 EST, No. 18 (1922).

17 On this draft cf. Timasheff, N. S., “L'evoluzione del diritto penale sovietico,” Rivista italiano di diritto penale, IV (1932), 174–89.Google Scholar

18 Cf. Hazard, J. N., “Drafting New Soviet Codes of Law,” American Slavic and East European Review, VII (1948), 32–44.CrossRefGoogle Scholar

19 Decisions 1882, No. 8; 1891, No. 9; 1906, No. 21; as reported in N. S. Tagancev, Uloženie o nakazanijakh ugolovnykh i ispravitel'nykh (18th ed., 1915).

20 Tried on February 11–27, 1923; cf. ESJ, No. 11 (1923), pp. 245-46.

21 Official textbook, pp. 246–47.

22 Ibid., pp. 254–56.

23 Approximately in the meaning of “restraining oneself,” to cover cases of irresistible impulse.

24 H. Berman, Criminal Justice in Russia (1950), pp. 222–27 erroneously assumes that the two criteria represent an innovation of the Soviet legislator.

25 Official textbook, p. 320.

26 As quoted by N. S. Tagancev, Ugolovnoe uloženie (1904–6), pp. 93–4. This is an edition of the code with excerpts from the memorandum; the commentary was prepared by the chief draftsman of the code and of the memorandum. Hereafter cited as UU.

27 Official textbook, p. 339.

28 UU, 97.

29 Official textbook, p. 346.

30 ESJ, No. 39–40 (1922), p. 20.

31 Ibid., p. 19.

32 Here and later on, the terms felony, misdemeanor, and petty offense stand for “atrocious crimes, crimes, and misdemeanors,” as defined in Article 2 of the code of 1903, by reference to the maximum punishment provided by it.

33 UU, 104.

34 Ibid., 102.

35 The Directive Principles were Union Law, while the code of 1926 was a statute of one of the constituent republics. According to the Stalin Constitution, Art. 20, Union law prevails over that of the constituent republics.

36 Official textbook, pp. 392–94.

37 This distinction was first made by the code of 1845, in imitation of German law.

38 Katorga, a Russian term analogous to English penal servitude.

39 I. Foinickij, Ugolovnoe pravo: last’ osobennaja (7th ed., 1916), pp. 68, 74.

40 The same terms had been used by the code of 1845, Arts. 1477, 1478.

41 This was a return to the code of 1845, Art. 1478, itself an imitation of French law.

42 Largely based on English practice; cf. Foinickij, pp. 119–21.

43 Decisions 1869, No. 771 and 1872, No. 1507; cf. Foinickij (1922), pp. 119, 121.

44 ESJ, Nos. 24–25 (1922), p. 20.

45 Ibid., No. 33, p. 17.

46 The oldest Germanic and Slavic laws, on the contrary, considered secret larceny as a more serious offense than open larceny. Cf. Brunner, H., Deutsche Rechtsgeschichte (1906), II, 647–49.Google Scholar

47 Summarized in UU, pp. 850–53; the difficulties met by the courts when applying the complicated provisions of the code of 1845 are summarized by Foinickij, pp. 193–241.

48 ESJ, Nos. 16–17 (1922).

49 Mošenničestvo, a term covering more than “cheating by false pretenses.”

50 UU, p. 881; Foinickij, p. 251.

51 Foinickij, p. 253.

52 The text reproduces the definition of 1926; that of 1922 was slightly simpler.

53 Maklezov, A., Timasheff, N. S. and others, Das Recht Sowjetrusslands (Tübingen, 1925), p. 399.Google Scholar

54 Provisional law of January 31, 1916.