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Lenin and the Law in Revolutionary Russia

Published online by Cambridge University Press:  27 January 2017

Jane Burbank*
Department of History, Center for Russian and East European Studies, University of Michigan


Lenin's views on law, like so many other aspects of his intellectual life, appear in scholarly and political literature primarily as weapons—a striking quotation from State and Revolution here, an insistent instruction to the commissar of justice there—arms wielded in the service of particular aims and, often, interpretations of the Soviet project. A collection of these citations would yield a most disparate arsenal—jabs, slings, barbs and bombs, and sometimes the most precise button-pressings (especially when Lenin was head of state)—an arsenal drawn, it would seem, from different wars and different epochs of combat technology. It might also seem from such a survey that, where law was concerned, Lenin's various missiles were hurled at each other.

Copyright © Association for Slavic, East European, and Eurasian Studies. 1995

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I would like to thank Robert Gordon, Eugene Huskey, Jim Oakes, Peter Solomon, and the members of the Law and Society reading group at the University of Michigan and the Legal History Group at Stanford University for their helpful comments on this paper.

1. Polnoe sobranie sochinenii, 5th ed., 55 vols, [hereafter PSS] (Moscow: Gosudarstvennoe izdatel'stvo politicheskoi literatury, 1958-1965), 37: 245.

2. A major and provocative proponent of the “no rule of law” interpretation was Leonard Schapiro. See his introductions to The Origin of the Communist Autocracy: Political Opposition in the Soviet State, First Phase 1917-1922, 2nd. ed. (Cambridge: Harvard University Press, 1977), especially x-xii, xvi-xxi. Richard Pipes in his Legalized Lawlessness: Soviet Revolutionary Justice (London: Institute for European Defence & Strategic Studies, 1986) also pursues this theme.

3. See his theses from November 1918 (PSS, 37: 129-130).

4. For an example of this genre, see A. A. Ushakov, “V. I. Lenin i kodifikatsiia sovetskogo prava,” Sovetskoe gosudarstvo ipravo, 1956, 5: 3-9, where Lenin is enlisted in the campaign for a codification of Soviet law. For a superb summary of the history of legal reform in the Soviet Union, see Eugene, Huskey, “From Legal Nihilism to Pravovoe Gosudarstvo: Soviet Legal Development, 1917-1990,” in Barry, Donald D., ed., Toward the “Rule of Law” in Russia? Political and Legal Reform in the Transition Period (New York: M.E. Sharpe, 1992), 2342 Google Scholar.

5. See Iurii Nikolaevich Afanas'ev's infamous attack on Lenin as the founder of “a state politics of lawlessness” at the extraordinary third congress of peoples’ deputies of the USSR on 12 March 1990 (Iurii Afanas'ev, la dolzhen eto skazat’ [Moscow: PIK nezavisimoe izdatel'stvo, 1991], 270 Google Scholar). For a last-ditch defense of leninism from the other side, see the discussion of how to strengthen ideological work by demonstrating Lenin's commitment to the law, market relations and other fashionable goals in Pravda, 1 February 1990.

6. For two very different views of Lenin's idea of law, see Ivo, Lapenna, “Lenin, Law and Legality,” in Lenin: The Man, the Theorist, the Leader: A Reappraisal, eds. Schapiro, Leonard and Reddaway, Peter (New York: Praeger, 1967 Google Scholar; and Beirne, Piers and Hunt, Alan, “Law and the Constitution of Soviet Society: The Case of Comrade Lenin” and “Lenin, Crime, and Penal Politics, 1917-1924,” in Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917-1938, ed. Beirne, Piers (New York: M. E. Sharpe, 1990), 61135 Google Scholar.

7. This search for cohesion in Lenin's views pervades Piers Bierne and Alan Hunt's approach, even though they acknowledge the “risk of imposing … an artificial coherence on his utterances” (ibid., 69).

8. Ivo Lapenno in the article cited above makes a compelling attempt to describe minimum components of the “modern concept of legality,” but even this thoughtful definition depends upon an assertion that legality should have “stability, security and predictability” as “its main aims. “

9. On the history of legal scholarship in Russia, see Gionmaria, Ajani, “The Rise and Fall of the Law-Based State in the Experience of Russian Legal Scholarship: Foreign Scholarship and Domestic Style” in Barry, Donald D., ed., Toward the “Rule of Law” in Russia?, 316.Google Scholar

10. On Marx's experience with law studies, see Donald, R. Kelley, “The Metaphysics of Law: An Essay on the Very Young Marx”, American Historical Review 83, no. 2 (April 1978): 350–67Google Scholar; on Lenin's training and legal practice, see Trainin, A.N. and Shifman, M.L., “Stranitsy iz biografii V.I. Lenina,Sovetskoegosudarstvo ipravo, 1956, 3: 6171.Google Scholar

11. Trainin and Shifman, op.cit.; see also Volskii, N. [Valentinov, N.], The Early Years of Lenin (Ann Arbor: University of Michigan Press, 1969), 146–48Google Scholar.

12. PSS, 2: 17-60; 2: 265-314; 4: 274-87; 4: 401-16; 5: 289-94; 6: 399-408; 7: 326-34.

13. Bierne and Hunt label this approach a “class” reading of the law but these articles bear a more complex interpretation, as I indicate below. See Beirne and Hunt's discussion of Lenin's articles from this period in Hunt, Beirne and, “Law and the Constitution of Soviet Society: The Case of Comrade Lenin,Revolution in Law, 6668.Google Scholar

14. PSS, 2: 29-30.

15. PSS, 2: 285.

16. PSS, 4: 407, 415, 416.

17. PSS, 5: 278.

18. For a contrast between “civilized countries” and Russia, see “Zakon o voznagrazhdenii rabochikh, poterpevshikh ot neschastnykh sluchaev” (1903), PSS, 7: 326-34. See also PSS, 5: 280 ( “sovsem po-russki “); PSS, 5: 278 for one of many “Chinese” allusions.

19. For examples, see PSS, 2: 101; 4: 407; 5: 278.

20. PSS, 7: 34. Here Lenin called the law a “makhina “—a contraption—resonating with his other habitual epithet, the slow-moving “state machine” (PSS, 4: 425, for example).

21. PSS, 7: 317.

22. PSS, 4: 296.

23. PSS, 7: 321.

24. PSS, 2: 95.

25. PSS, 13: 198-199. It is after 1905 that Lenin begins to use the term “legality. “

26. PSS, 9: 171. In his outstanding study of lawyers under early Soviet rule, (Russian Lawyers and the Soviet State: The Origins and Development of the Soviet Bar, 1917-1989 [Princeton: Princeton University Press, 1986]), Eugene Huskey refers to this outburst as an example of Lenin's “unequivocally hostile” attitude toward lawyers (op. cit., 37-38). Of course, lawyers have been in bad repute in western Europe since at least the sixteenth century ( William, J. Bouwsma, “Lawyers and Early Modern Culture, “American Historical Review 78, no. 2 [April 1973]: 314 Google Scholar).

27. PSS, 17: 344.

28. See “Dva mira,” PSS, 20: 10-18.

29. Ibid., 10.

30. These comments were made on the occasion of a meeting of the German Social Democratic Party (PSS, 20: 13).

31. PSS, 20: 17.

32. PSS, 21: 115.

33. PSS, 21: 116.

34. See PSS, 19: 223-24.

35. See “Tri voprosa,” PSS, 21: 104-16.

36. PSS, 21: 105.

37. PSS, 20: 13. Note here Lenin's use of “detskii “—childish, infantile—the epithet he later applied to left-wing communism.

38. On Lenin's struggle against idealism, see Christopher Read's Religion, Revolution and the Russian Intelligentsia, 1900-1912: The Vekhi Debate and its Intellectual Background (New York: Harper and Row, 1980), especially 40-56.

39. PSS, 17: 339-53.

40. In December 1911, “Tri voprosa,” PSS, 21: 104-16.

41. PSS, 22: 129-32.

42. PSS, 26: 171.

43. In the April Theses, PSS, 31: 106. Here Lenin used “legalism” (legal'nost), not “legality” (zakonnost1).

44. PSS, 13: 110.

45. PSS, 32: 174.

46. PSS, 33: 32-33.

47. PSS, 33: 117.

48. PSS, 33: 77.

49. PSS, 33: 44.

50. PSS, 33: 101.

51. PSS, 33: 101-2.

52. PSS, 33: 90-91.

53. PSS, 33: 108.

54. Note Lenin's revealing example of moral behavior in this passage: “But … for this [the suppression of ‘excesses’] a special machine, a special apparatus for suppression is not necessary; this will be taken care of by the armed people themselves with that same simplicity and ease with which any crowd of civilized people even in contemporary society separates brawlers or does not permit violence against a woman” (PSS, 33: 91.).

55. PSS, 35: 57.

56. Lapenna describes these decrees as “issued mainly for propaganda purposes” ( “Lenin, Law and Legality,” 250), but “propaganda” in this sense can have a strong impact on the forms and significance of future laws.

57. PSS, 35: 23.

58. PSS, 35: 31.

59. PSS, 35: 41.

60. PSS, 35: 39.

61. PSS, 35: 51.

62. PSS, 35: 67.

63. PSS, 35: 126.

64. PSS, 35: 56.

65. PSS, 35: 37.

66. From 1 December 1917; PSS, 35: 137. This defense of the higher interests of the revolution through a contrast with “formal democracy” not only repeated arguments that had been asserted and attacked before 1917, but also served as ammunition for critics of Soviet dictatorship after the Russian revolution. The assertion that the “success of the revolution is the highest law,” made by Plekhanov in 1903, became an element in the highly public Vekhi debate on the intelligentsia (see Christopher Read, Religion, Revolution and the Russian Intelligentsia 1900-1912, esp. 108-9). After 1917 the same debate resurfaced in the writings of Mark Vishniak, a Socialist Revolutionary (see Jane, Burbank, Intelligentsia and Revolution: Russian Views of Bolshevism, 1917-1922 [New York: Oxford University Press, 1986], 8895 Google Scholar).

67. PSS, 35: 285, 481, note 109.

68. In July 1918 the fifth all-russian congress of Soviets adopted a constitution (fundamental law) of the Russian Socialist Federated Soviet Republic that incorporated the “Declaration of Rights of the Toiling and Exploited People” as one of six articles. In 1923 the 1918 constitution was replaced with the Constitution of the Union of Soviet Socialist Republics. For translations of the texts of these constitutions, see Triska, Jan F., ed., Constitutions of the Communist Party-States (Stanford: Hoover Institution, 1968), 236 Google Scholar. My point here is that constitutional government was not part of Lenin's (or Marx's) prerevolutionary ideas of socialist formation and that Lenin's actions in the direction of preemptive constitutionalism only two months after the bolshevik revolution do not derive from the theoretical pronouncements of State and Revolution.

69. PSS, 35: 231.

70. PSS, 35: 275.

71. PSS, 35: 311, 325.

72. PSS, 35: 310.

73. PSS, 35: 311-314. This means violence and specifically shooting.

74. PSS, 36: 51.

75. 36: 165-208.

76. “Excessively, unbelievably weak” (PSS, 36: 197).

77. PSS, 36: 197.

78. PSS, 36: 544, 547, 549.

79. PSS, 33: 91.

80. “Vystuplenie na zasedanii TsK RSDRP (b),” 23 February 1918, PSS, 35: 370.

81. PSS, 35: 318.

82. See his position at a meeting of the bolshevik central committee on 23 February 1918 (PSS, 35: 369-71). Earlier he had also tried to avoid holding a party conference and a party congress to discuss the peace (see the protocols of the Central Committee meeting of 19 January [1 February] 1918: PSS, 35: 318).

83. PSS, 37: 21.

84. PSS, 36: 315.

85. PSS, 37: 129.

86. PSS, 37: 129-30.

87. Eugene Huskey has described three types of “legal culture “—nihilist, statist and legalist—as co-existing and contending with each other in the Soviet period. From this perspective, Lenin's choice for functional centralized law can be seen as an extreme variant of the statist approach, although, as I have indicated, Lenin's pronouncements contain a big dose of nihilism as well. He never supported the legalist approach as defined by Huskey. See “A Framework for the Analysis of Soviet Law,” The Russian Review 50: no. 1 (January 1991): 53-70.

88. This was particularly evident in Lenin's treatment of the Soviet Constitution, adopted by the fifth congress of Soviets in July 1918 and incorporating the “Declaration of Rights of the Toiling and Exploited People.” In a number of speeches celebrating the first socialist constitution, he took great care to emphasize its roots in “life,” its flexibility. The constitution would be “corrected and filled out by its practical implementation,” he noted in July (PSS, 37: 21); it was not like other constitutions “thought up by some commission” (PSS, 37: 147). This last statement was wishful, if not deceitful, thinking since there had, after all, been a commission to write this constitution.

89. See Douglas Hay, “Property, Authority, and the Criminal Law,” in Hay, Douglas et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975), 1763 Google Scholar.

90. See, for example, Lenin's “Otvet na voprosy amerikanskogo zhurnalista,” PSS, 39: 114.