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Soviet Law in the Mirror of Legal Science

Published online by Cambridge University Press:  25 March 2019

George C. Guins retired
George C. Guins retired*
Affiliation:
University of California
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Extract

"Understanding any foreign system of law is difficult"; "Cases have different value in different systems, but in all systems a student who wants to understand the system must refer to cases."

These two statements borrowed from an interesting article by Prof. J. N. Hazard indicate the point at issue in the following discussion. In the United States Professors H. Berman, V. Gsovski, G. Guins, J. Hazard, and H. Kelsen have devoted special works to the study of Soviet law, not to mention a number of valuable articles written by various competent jurists.

Type
Research Article
Information
American Slavic and East European Review , Volume 16 , Issue 1 , February 1957 , pp. 66 - 73
Copyright
Copyright © Association for Slavic, East European, and Eurasian Studies 1957

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References

1 Hazard, J . N., “Understanding Soviet Law without the Cases,” Soviet Studies, VII. No. 2 (October, 1955), pp. 121–26CrossRefGoogle Scholar.

2 Prof. Harold Berman, Justice in Russia, (Harvard Univ. Press, 1950); Gsovski, V., Sovitt Civil Law, (Michigan University Press, 1948-49), Vol. I-II Google Scholar; Guins, G., Soviet Law and Soviet Society (The Hague, Netherlands, 1954)CrossRefGoogle Scholar; Prof. Hazard, J. N., Law and Social Change in the U. S. S. R. (London, 1953)Google Scholar; Prof. Kelsen, Hans, The Communist Theory of Law (New York, 1955)Google Scholar,

3 Besides Prof. Hazard's book and articles see also his Cases and Readings on Soviet Law (in cooperation with M. Weisberg) (New York: Parker School of Foreign and Comparative Law, Columbia University).

4 Prof. Hazard's reviews of this writer's book in the Annals of the Academy of Political and Social Science, CCXCVI (Nov. 1954), p. 208, and in the American Slavic and East European Review, Dec. 1955, p. 543.

5 Soviet Studies, p. 121 (see note 1).

6 Timasheff, N. S., The Russian Review, XIV, No. 1 (January 1955), 68 Google Scholar.

7 J. Hazard, Soviet Studies, p. 124. He is more exacting, however, in his reviews of this writer's book: “ I t is to be regretted that he omits almost all references to Soviet judicial decisions as a source of Soviet practice. It is from these decisions that the common law lawyer finds the glimpses that he wants and decisions are being used generally by American specialists to enrich the other materials” (The American Slavic and East European Review, Dec. 1955, p. 543); “The valuable case material is omitted almost entirely with a consequent loss in reader interest to those trained in common law” (The Annals [see above, note 4], p. 208).

8 M. V. Kolchanov, “K teorii sobstvennosti,” Izvestija akademii nauk SSSR, Otdel ekonomiki i prava, 1949, No. 4, p. 286.

9 G. C. Guins, “Das Sowjetsystem als neuer Typ einer Rechtsordnung,” Osteuropa-Recht (Dec, 1955), pp. 87-88.

10 G. C. Guins, Soviet Law (see note 2), pp. 23-24, 31-32, 46, 232-45, 275-77, and the Conclusion, esp. pp. 362-70; also G. Guins, “Towards an Understanding of Soviet Law”, Soviet Studies (July, 1955), esp. pp. 18-22.

11 Cf. the Preamble to the Party Statutes of 1939 and Section 36 of the Statutes as amended by the XIXth Party Congress of October, 1952.

12 Berman, Harold J. & Kerner, M., Soviet Military Law and Administration (Harvard University Press, 1955), p. 97 Google Scholar.

13 G. Guins, Soviet Law, pp. 148-49.

14 “Strictly uphold citizen's rights” by V. Boldyrev, USSR Prosecutor General (Izvestija, April 8, p. 2, 1954 [Current Digest of the Soviet Press, VI, No. 14.]). Similar cases cited by M. Klinov, Sverdlovsk Province Public Prosecutor, in Izvestija, January 19, 1955, p. 2.

15 ” A Lawyer's Notes: Guarding the Rights of Soviet Citizens,” V. Golovko, Izvestija (Nov, 26, 1954), Current Digest (Jan. 5, 1955).

16 Current Digest, see above note 14.

17 “For the further development of the science of state law,” Sovetskoe gosudarstvo i pram, No. 7 (1954), editorial.

18 This is the point set forth in our Soviet Law; see for example p. 320.

19 “Neither court nor criminal procedure is or could ever be outside politics” (Vyshinskij). Cf. Soviet Law, p. 368.

20 See J. N. Hazard, “The Soviet Court as a Source of Law,” Washington Law Review, XXIV, No. 1 (February 1949), pp. 80-90. Prof. Hazard relates the discussion which took place in the Vsesqjuznvj institut juridicheskikh nauk and arguments of both sides. He does not find that the point is disproved that “court practice cannot and must not create new norms of law and that it must correspond to existing norms.“

21 “We do not recognize anything private. In the field of economy everything is public and not private, from our point of view.” (Lenin). For other quotations see Guins, Soviit Law, p. 82 and notes 5, 6, and 7 on p. 393.

22 See Trainin, in Soviet Legal Philosophy, A symposium under the editorship of Professor Hazard (Cambridge, 1951), p. 447.