Legal nurturing: the educational function of law in the Soviet Union

Ðàçìåùåíî íà http://www.allbest.ru/

Ðàçìåùåíî íà http://www.allbest.ru/

Ïðàâîâå âèõîâàííÿ: îñâ³òíÿ ôóíêö³ÿ ïðàâà ó Ðàäÿíñüêîìó Ñîþç³

Àííà Ëóê³íà

Óí³âåðñèòåò Êåìáðèäæó

Àíîòàö³ÿ

Ó ñòàòò³ äîñë³äæåíî, ÿê îñâ³òíÿ ôóíêö³ÿ ïðàâà íàáóëà õàðàêòåðó «ïðàâîâîãî âèõîâàííÿ» ó ðàäÿíñüê³é äåðæàâ³. Õî÷à íà ïî÷àòêó ðàäÿíñüêî¿ äîáè îñâ³òà ìàëà íàäàòè ðîá³òíè÷îìó êëàñó á³ëüøå àâòîíî쳿, âîíî øâèäêî ïî÷àëî âèêîðèñòîâóâàòèñÿ ÿê çàñ³á êîíòðîëþ, ñïðÿìîâàíèé íà ïåðåòâîðåííÿ êîæíîãî ãðîìàäÿíèíà íà «íîâó ðàäÿíñüêó ëþäèíó». Ïðàâî, íà ð³âí³ ÿê òåîð³¿, òàê ³ ïðàêòèêè, âèçíàâàëîñÿ îäíèì ³ç çàñîá³â ïðèùåïëåííÿ öèõ íîâèõ ö³ííîñòåé ³ çâè÷îê, à çàêîíîäàâåöü, ñóäè ³ ãðîìàäñüê³ñòü ìàëè î÷îëèòè âèêîíàííÿ öüîãî çàâäàííÿ. Íàïðèê³íö³ ñòàòò³ àâòîð òàêîæ ñòèñëî ïîêàçóº, ÿê ïðàâîâå âèõîâàííÿ ñïðèÿëî ÿê ñîö³àëüíîìó ïðîãðåñîâ³, òàê ³ ïîë³òè÷íîìó òåðîðîâ³, òà ðîçì³ðêîâóº ïðî ïðîÿâè ðàäÿíñüêî¿ ñïàäùèíè ó ñó÷àñí³é Ðîñ³¿.

Êëþ÷îâ³ ñëîâà: ðàäÿíñüêå ïðàâî, âèõîâíà ôóíêö³ÿ ïðàâà, íîâà ðàäÿíñüêà ëþäèíà

Legal nurturing: the educational function of law in the Soviet Union

Anna Lukina

University of Cambridge

Abstract

This paper explores how the educational function of law assumed a distinctive form of “legal nurturing" in the Soviet state. Even though originally socialist education was meant to give the working classes more autonomy, it soon became to be used as a tool of control aimed to shape each citizen into a “New Soviet Man". Law, both in theory and practice, was recognized as one of the tools for instilling these new values and habits, and the legislature, the courts, and the civic community were put at the forefront of this task. The essay concludes with a brief summary of how legal nurturing facilitated both social progress and political terror and a rumination on the legacy of Soviet legal nurturing in Russia.

As Soviet Law was heaviLy infLuenced by the Western LegaL tradition, it makes sense to go back to the Latter's roots. The educationaL function of Law dates back to cLassicaL phiLosophy. Law, according to PLato, AristotLe, and Cicero, was “necessariLy an educator” (Burge-Hendrix 2007: 245). In PLato's Laws (PLato 2008: Book IV), the Athenian Stranger procLaims that Laws use not mereLy “force”, but “persuasion”. The practicaL vaLue of Law is, therefore, “twice as good”. Preambles were one of the ways to create “good-will” among the citizens so they could “more intelligently receive [the law's] <...> command.” In a similar manner, Aristotle (Aristotle, n.d.: Book II, 1) believed that “lawgivers [could] make citizens good by forming habits in them.” Like Plato, he insisted that “legislators ought to stimulate men to virtue and urge them forward by the motive of the noble, on the assumption that those who have been well advanced by the formation of habits will attend to such influences; and that punishments and penalties should be imposed on those who disobey and are of inferior nature” (Aristotle, n.d.: Book X, 9). In other words, law, by coercing even those badly inclined people into good acts, is uniquely positioned to make them more virtuous. The ancients greatly influenced medieval Catholic thought. Aquinas (Aquinas 1947: Part I-II Q95 A1), building on Aristotle, wrote that law does not just coerce the wicked so they can desist the evil-doing, but also so “that they themselves, by being habituated in this way, might be brought to do willingly what hitherto they did from fear, and thus become virtuous.” Thus, law's habituation could produce “the motive of the noble” not only in a select few, but also in anyone.

2. Education and personal autonomy

There are therefore two paradigms to be found in the classical description of law's educational function. On the one hand, Plato's “persuasion” alludes to a more horizontal relationship between a lawgiver and a law-subject. Education is impossible without some degree of consent - or at least engagement - of the educator. This aspect of law-making was downplayed by early legal positivism, which perceived law as a command of a sovereign (Austin 1995: 1 ff.). As Burge-Hendrix (Burge-Hendrix 2007: 254) argues, “positivism inherited from the command theory its tendency to de-emphasize the communicative, indeed the educative, features of legal systems.” The remedy is to reflect more on the place of personal autonomy in law today (Burge-Hendrix 2007: 254), which was partly achieved by the more liberal legal positivism of Hart and Raz that “that relates individuals to rules and reasons rather than to the will of other, superior individuals” (Burge-Hendrix 2007: 252). Raz's “service conception” of authority is the clearest expression of this idea. Raz believed that practical authority, or the ability to impose duties, is justified when

the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly. (Raz 2003: 53)

This model emphasizes the role of the state as an epistemic authority that, thanks to its resources, can aggregate knowledge about the world better than individual citizens and therefore serve as a guide for them to better organize their lives.

3. Education and hierarchy

On the other hand, education through habit, especially in Aquinas's formulation, presupposes a top-down relationship in which the educator not only has epistemic authority over the educated, but can also reinforce it via coercive means. To those who value autonomy, this hierarchy problematizes the educational function of law. For instance, the liberal idea of individual autonomy made the paternalism of law engaging in a supposedly private enterprise of forming one's moral character repugnant. Mill's insistence that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill 2001: 13), is the most famous of such formulations. This was further claimed by Hart (Hart 1963), who, in his debate with Devlin (Devlin 1968), echoed Mill in arguing that criminal law had no business in enforcing morality, while Devlin made a contrary case for the sake of maintaining stability within the community.

4. Soviet law as “parental law'

legal education soviet union

Berman recognized the educational function of Soviet law in his 1963 monograph “Justice in the USSR”. He wrote that while the educational function of law was not a new phenomenon, in the Soviet Union, it was uniquely identified as “central to the concept of justice itself” (Berman 1963: 283). This version of educational function exhibited hierarchical tendencies, legal moralism, and paternalism. Unlike in the West, where a law- subject is “the rugged individualist” who is responsible for his actions, the Soviet citizen

is treated less as an independent possessor of rights and duties, who knows what he wants, than as a dependent member of the collective group, a youth, whom the law must not only protect against the consequences of his own ignorance but must also guide and train and discipline. (Berman 1963: 283)

This paternalistic turn is even reflected in language-in Russian-language sources that he builds on, “educational [function]” is translated as “vospitatel'naya [funktsiya]”, a word meaning “nurturing” (Berman 1972: 83). “Legal nurturing”, as I will call it, is a distinct form of the educational function of law that does not just encourage some socially beneficial habits and values, but considers them as parts of an integrated schema aimed to develop a new type of citizen-“New Soviet Man”.

This vision of law, as I will demonstrate, was a result of an evolution in philosophy, legal theory, and legal practice. While the original Marxist promise was to liberate workers from the confines of bourgeois ideology through socialist education- corresponding to the autonomy model-it transformed into a desire to “trap” them, along with other Soviet citizens, in a new social role, gradually embracing the hierarchical model.

Education and transformation of Soviet society

1. Bourgeois law and ideology

Speaking somewhat crudely, Marx and Engels saw law as a part of the “superstructure” resting on the “base”, or foundation, of relations of production (Marx 1996: 503). This “legal and political superstructure” (Marx 1996: 503) is both determined by this base and sustains it. It expresses the common interest of the ruling class (Marx and Engels 1975: 90) (under capitalism-bourgeoisie) and keeps the conflict between the ruling and the exploited class (under capitalism-proletariat) to the minimum (Friedrich Engels 1970: 326). It does so not only by “holding down by force the exploited class” (Engels 1987; Kelsen 1955: 2), but also by deception. These superstructures are forms of “ideology”, a false consciousness opposed by the social reality that exists in order to protect the material conditions of the society from being questioned. In “The German Ideology”, ideology is compared to a camera obscura that reverses the image it receives; the image is recognizable, yet distorted (Marx & Engels 1975: 25). In other words, if law- as-ideology is in any way “educational”, this education is not directed towards getting closer to the truth, but rather to hiding the reality of exploitative relations of production and justifying them. Law under capitalism is thus akin to a “bad” teacher, not in terms of mastery of his craft, but in terms of his purpose.

2. Pre-revolution: Marxism as a teacher

To Marx and Engels, while education (like law) could reproduce capitalism, it can also be used (unlike law) to undermine it. Even though a revolution was deemed historically inevitable, Marx (Marx 2010: 10) recognized the importance of communist movements in “shortening] and lessening] the birth pangs.” According to Engels, an educated proletariat will not be disposed to remain in the oppressed condition in which our present proletariat finds itself. (Frederick Engels 1975: 243)

In this way, Marxism was seen as an educational enterprise, aiming to make the proletariat aware of true reality hiding behind ideology and lead a revolution, ultimately dispensing with all machinery of the previous order, including the law and state. As Lenin would later say,

By educating the workers' party, Marxism educates the vanguard of the proletariat, capable of assuming power and leading the whole people to socialism, of directing and organizing the new system, of being the teacher, the guide, the leader of all the working and exploited people in organizing their social life without the bourgeoisie and against the bourgeoisie. (Lenin 1974: 404)

However, this educational enterprise, while aiming to increase workers' autonomy, is also hierarchical. While in Marxism the proletariat is deemed the main historical agent, it too, in the words of Gouldner, needs to be “summoned” by someone (Gouldner 1985: 2). On a more cynical view, Marxism is, ironically, a product of intellectuals who have been “shopping for an agent” to enact the change they desire, which does not place it very far from the bourgeois ideologues it despises (Gouldner 1985: 22-25). But it could also be seen as an emancipatory project undertaken by intellectuals who reject their elitist status and counter the socialization of workers into submission by the capitalist regime (Blackledge: 2007). Either way, educating the proletariat and, on the second interpretation, also educating oneself was recognized as important. Marx, Engels, and their heirs, therefore, did not only recognize the importance (and danger) of the ideological power of capitalist law, but opposed it with the same means, even to some extent internalizing the hierarchical thinking behind it.

3. Post-revolution: the New Soviet Man

“It is apparent,” Berman (Berman 1963: 284) notes, “that the Soviet emphasis on the educational role of law presupposes a new conception of man.” To Lenin, political education was profoundly important - one of the phrases he is still known for is his call to “learn, learn, and learn” (`uchit'sya, uchit'sya i uchit'sya”). Originally, this phrase was used by him in 1899 in his admiring description of the ambition of workers under capitalism who, despite their circumstances, “develop into conscious Social Democrats, the `working intelligentsia This phrase was also used in (Lenin 1970: 391).'” (Lenin 1967: 269). Later, it morphed into the imperative directed towards all Soviet people, each of which had to envision themselves as the “New Soviet Man Here and elsewhere in the use of the term, “man” means “person”. “The New Soviet Man” ideal as examined for the purposes of this article applied equally to men and women. Additional pressures faced by the New Soviet Woman are out of scope of this inquiry. For more on those, see, e.g.: Attwood 1990.” or “Homo Sovieticus”, a term popularized by Zinoviev in his satirical exploration of Soviet culture in the late 1980s (Zinoviev 1986). The unironic use of this concept, however, can be dated back to the 1920s works of Bogdanov (Soboleva 2017: 68 ff.), who claimed that the proletarian culture, properly developed through education, was uniquely suited to become a driving force behind the transition of society to communism because of its combined collectivism and rationality (Bogdanov 1990: 332; Soboleva 2017: 68-70). That idea was challenged by Trotsky, who, keeping in mind the end-goal of a classless society, argued instead for a new “revolutionary” or “socialist culture” post-revolution (Trotsky 1960; Soboleva 2017: 70-71). Trotsky's concept, built upon by prominent Party functionaries such as Lunacharsky, Krupskaya, and Kalinin, prevailed despite its author's eventual demise, and by the 1930s the “New Soviet Man”-committed to Marxist ideology, internationalist and collectivist, socially active and harmonious as a person (Soboleva 2017: 73-74)-had become a recognized trope. Both Bogdanov and Trotsky, despite their differences, were convinced that social change was needed to create a “new kind of humanity” unseen before (Soboleva 2017: 71-72). However, Soboleva argues that while Bogdanov's original concept implied “the evolutionary, free, and rational development of a person”, its subsequent evolution entailed “violent <...> homogenization of Soviet society according to the proclaimed socialist ideals <...> by means of the centralized system of communist education” (Soboleva 2017: 78-79). In other words, it gradually emphasized hierarchy, and not autonomy, in the process of education. This move can also be traced through the history of Soviet law in theory and practice.

Educational function of Soviet law in theory and practice

1. Theory

In my previous work, I argued that the dictatorship of the proletariat-the transitional stage between capitalism and communism envisioned in classical Marxism- gradually crystallized into a new legal order (Lukina 2020). This can be tied to the Soviet state's growing need not just for coordination, but also education through law. Even at the concept's inception, Marx acknowledged that this “dictatorship” would retain certain remnants of the legal form such as the doctrine of individual right (Marx 1989: 87) while Engels straight-up characterized it as “commonalty”, or a self-dissolving state (Engels 1991: 64).

Written at the backdrop of the October Revolution, Lenin's “The State and Revolution” (1917) was one of his main works on the matters of law and state. Lenin, in Line with classical Marxism, called for the immediate abolition of the previous order via all means necessary. The dictatorship of the proletariat was supposed to be “unrestricted by law” and “based on force As attributed to Lenin by Stalin (Stalin 1953: 118), but not detectable in the text of “The State and Revolution” itself.”. Nevertheless, for him, like for Marx and Engels, “communism in the first phase retain[ed] “the narrow horizon of bourgeois law and state (Lenin 1974: 471)”. Law and state, according to Beirne and Hunt, for Lenin, were needed to eradicate the remnants of bourgeois power and suppress dissent (control function), acquire control over the capital (coordination function), and, finally, “educate and foster discipline” (Beirne & Hunt 1990: 72-77). The new state is supposed to play a significant role in this education. Lenin writes that the worker's state would establish an “iron discipline” under which “the [officials'] functions of control and accounting, becoming simpler and simpler, will be performed by each in turn, will then become a habit and will finally die out as the special functions of a special section of the population (Beirne & Hunt 1990: 426).” Therefore, to Lenin, law in a transitional period is not just inevitable (as for Marx and Engels), but also necessary. This has proven true at the advent of the new Soviet legal order. Stuchka, Lenin's reformer-in-chief, has famously recognized the transitional arrangement as a new, “Soviet”, legal order rather than merely a remnant of pre-revolutionary times. While bourgeois law was taken to advance the interest of the bourgeoisie, Soviet law would defend the interests of the proletariat and aim to destroy the former ruling class (Stuchka 1951: 51). Stuchka writes that Soviet law, like any law, does not only have to constrain, but also to “persuade” law-subjects, but do so for the benefit of the masses (Stuchka 1951: 67-68).

However, the idea of distinctively Soviet law had opponents at its earliest stages. For instance, Pashukanis circumscribed law only to establishing property rights and regulating the production and distribution of goods (Pashukanis 1980b: 61-62) However, he saw it quite broadly, for example, including criminal law rules as an outgrowth of “an eye for an eye” exchange (Pashukanis 1980b: 111 ff.). ibid 111 ff.. To him, unlike Stuchka, there was no law other than bourgeois law, and thus no place for Socialist or Soviet law other than law-like, but not properly legal (on his conception) rules of administration (Pashukanis 1980b: 88-89). Thus, Pashukanis' approach, deemphasizing the role of law in Soviet society, constituted a break from recognition of its educational value. The only time Pashukanis mentioned “socialization and re-education” as goals of law was in his final work, “State and Law Under Socialism” (Pashukanis 1980a: 360), in which he “repented” for his previously held views when a more formalist analysis of law had become the new orthodoxy See explanatory note by Maggs (Pashukanis 1980a: 346-48)..

The appreciation of the educational function of law reached its peak in the works of Vyshinsky, who was, ironically Later, Vyshinsky would be known as the prosecutor at the infamous Moscow Show Trials and one of the architects of the Great Terror., the key figure in dismantling, in Huskey's terms, the “nihilism”, or the position that law and socialism were incompatible, of the previous era, and turning to “statism”, or the idea that “socialism is not only compatible with law, [but] provides an ideal environment for it” (Huskey 1991: 55, 57). Wholly rejecting Pashukanis's understanding of Law and further developing that of Stuchka One should note that Vyshinsky, while directing most of his ire towards Pashukanis, also criticized Stuchka for “reducing law to economics” (Vyshinsky 1951: 330)., he conceived of Soviet Law as a new, “bigger, better, and purer” (Fuller 1949: 1163), legal order. Just as Lenin, he claimed that this new form of state would “annihilate” capitalism even “in human consciousness” (Vyshinsky 1948: 50) as the new habits become entrenched. The shift to communism that was at the center of the communist theory of law in the past did not disappear, but was significantly postponed to the point it became nebulous. As per Fuller, this is a deeper change than rooting out the element of exchange or reciprocity of performances from the economic system as described by Pashukanis-it involved training and conditioning men into following the rules necessary to social order without coercion (Fuller 1949: 1163). In other words, it demanded building new morality and mentality, not just as a superstructural change naturally following an economic transformation, but as an end goal of its own. As such, it corresponded to the New Soviet Man ideal that, by that time, became fully entrenched in ideology and policy. For the same reason, Vyshinsky advocated for his own version of “morality of law This is Fuller's term for what is also known as the rule of law-eight desiderata, according to which legal rules shall be general, publicly promulgated, prospective, clear, free of contradictions, stable, possible to obey, and administered in a way that does not diverge from their apparent meaning (Fuller 1969: 33).”, or “socialist legality”, men must know, or think they know, where they stand before the courts. (Fuller 1949: 1165)

This was not incidental but linked to law's coordinative and educational functions-in order for both specific instructions and general statements of values to be understood and correctly responded to (which is a part of both coordination and educational functions of law), laws need to avoid vagueness and self-contradiction, be applied consistently, and generally conform to the rule-of-law desiderata (Raz 1979). One need not be deceived by this rhetoric-Velikanova, for instance, warns that “the low tide in Stalinist policies during 1933-1936, with the [1936 `Stalin's'] constitution as its component, did not mean the end of repression and mobilization as a mode of administration” (Velikanova 2018: 42). However, even though “socialist legality”, as we will see, did not always reign supreme in practice, the very fact that this value, previously deemed as “bourgeois”, was resurrected, speaks to its importance to the developing Soviet state.

2. Practice

A. Legislation

Our examination of legal nurturing in practice should start with legislation. First of all, legislation can directly communicate value-laden messages to law-subjects. This was recognized even by Plato, who recommended attaching “preludes”, or preambles, to laws as an essential part of “persuading” the citizens (Plato 2008: Book IV). Early Soviet legal documents, such as the three Bolshevik Decrees of 1917 following their success in the October Revolution, the 1918 Declaration of Rights of Working and Exploited People, the first 1918 Constitution of the RSFSR, and the 1924 Constitution of the USSR establishing a Union of Soviet republics, in particular, were in the form of political manifestoes rather than “dry” black-letter Law. For instance, Article II of the 1918 Declaration (also referred to as the “smaller Constitution” or “malaya konstitutsiya”) and of the Article 1 Part 3 1918 RSFSR Constitution defined the main goals of the Soviet state:

the abolition of the exploitation of men by men, the entire abolition of the division of the people into classes, the suppression of exploiters, the establishment of a socialist society, and the victory of socialism in all lands. (Deklaratsiya prav 1918; Konstitutsiya 1918)

Even later laws, that were more formalistic in character, often referenced Marxist-Leninist concepts to explain the motivation behind legal rules.

Secondly, it is obvious that written laws, by rewarding some and punishing other behavior, form habits and values. This legislative technique was heavily utilized in Soviet law. For example, the 1936 and 1977 Soviet Constitutions explicitly recognized not just the rights, but the “duties” of Soviet citizens. One of these duties was the duty to work, captured in Article 130 of the 1936 Constitution (“to maintain labor discipline”) (Konstitutsiya 1936) and Article 60 in the 1977 Constitution (Konstitutsiya 1977). This constitutional duty was enforced in practice by “anti-parasite” laws authorizing people's courts (courts of first instance) to resettle those who refrain from work “or commit other antisocial acts”, confiscate their “unearned” income, and force them to work in the place of resettlement Berman mentions “anti-parasite” Laws as a particularly vivid example of “parental Legislation” (Berman 1963: 291 ff.). Here, the RSFSR Edict of May 1961 (Ukaz 1961) is quoted.. Instead of taking a liberal approach of letting law-subjects choose how to spend their time and sustain themselves, Soviet law not only persuades, but also forces them to become model workers, exemplifying the hierarchical model. More importantly, the punishment for “parasites” is not meant as a mere threat aimed to scare them into compliance, but is itself a course of re-education for the benefit of the community.

Thirdly, the very language of these laws was made to influence public consciousness-referring to offenders as “parasites” conveyed disapproval of their actions (or, rather, lack of actions) and, in addition to the formal legal sanction, invited their fellow citizens to shun them informally as, quite literally, a foreign and harmful organism in the fabric of society. In another striking example, Article 131 of the 1936 Constitution stated that “persons committing offenses against public, socialist property [were] enemies of the people (vragi naroda) [emphasis mine]” (Konstitutsiya 1936), cementing this language, which would later become the hallmark of the Great Terror, in public discourse.

B. Courts

The Soviet court has always played a special role in the task of legal nurturing. The origins of this relationship are rather unusual. As Wood points out in her study, between 1919 and 1933, what she calls “agitation” trials, mock proceedings performed as plays in order to instill new Soviet values, were a popular practice. These trials covered a wide range of issues, including sex, murder, medical malpractice, prejudice, hooliganism, social relations, and the state (Wood 2018: 1). Wood writes that while the earliest examples of such trials involved more ambiguity and dialogue, they later were more dogmatic (Wood 2018: 8). This tracks the turn from “education as autonomy” to “education as hierarchy” as the concept of the New Soviet Man became more demanding. The hierarchical relationship between the educator and the educated became further reinforced as the educational function of trials spread to real proceedings that eventually replaced the imaginary ones. As Vyshinsky said,

Justice, public and open, contributes more than all else to an understanding of the court's authority and assures that its activity will achieve social and educational results. (Vyshinsky 1948: 517) Later, this goal was emphasized in Article 3 of the 1938 Legislation on the Judiciary of the USSR, Soviet, and Autonomous Republics (Zakon SSSR 1938) and Article 3 of the 1958 Fundamental Principles of the Legislation on the Judiciary of the USSR, Soviet, and Autonomous Republics, that the Soviet court educates Soviet citizens in the spirit of faithfulness to their Motherland and the task of socialism, in the spirit of precise and steady obedience of Soviet laws, careful attitude towards socialist property, honest attitude to state and public duties, and respect for the rules of socialist society. (Zakon SSSR 1958) This function was performed on two levels While this paper focuses on criminal Law examples, the same tendency could be noted with regards to civil proceedings, especially those of family courts (Berman 1963: 308-11, 330-45).. Firstly, Soviet judges often encouraged the parties in the trial to reflect on their words and actions and produce “right” answers on spot. Consider this snippet from what Feifer called a “typical” People's Court proceeding:

- Defendant, we are waiting. The court is waiting to hear how you can explain your unsatisfactory performance as a worker. <...> I repeat, how you explain your record? You misbehaved, you systematically violated work discipline. Why? You were a burden to the administration and your fellow workers. What prompted you to act that way?

- <...> I don't consider myself a bad worker. Not worse than average; I've a decent record. You're just collecting all my sins.

- You have a record of consistent violation of discipline and have had plenty of opportunity to pull yourself together. Evidently you are not interested in leading an honest life as a Soviet worker.

- I admit I was wrong. I'm sorry. (Feifer 1967: 29-31)

To the reader, it might seem like the proceeding was concerned with work discipline; however, it was a criminal trial dealing with the theft of rubber boots (Feifer 1967: 32). Nevertheless, the judge, in an informal manner resembling an (albeit disgruntled) parent or teacher, still sought to perform a didactic role beyond simply establishing the fact of theft and the defendant's fault. This did not stop even at the sentencing stage-often, even if the defendant had been acquitted, the judge would produce an official “admonition” warning them of the criminal “potential” of their activity (Berman 1963: 1307).

Secondly, the court (in the broad sense described above) had to reach the wider public. It is no coincidence that the majority of proceedings-from petty disputes such as the case of the boot thief to (in)famous “show trials”-were open to an audience and often publicized. This (partial) transparency was by no means particular to Soviet Law, but was used to extend the educational effect of the proceedings to the maximum number of law- subjects. There were even “travelling sessions” that brought the court to work collectives in which crimes were committed (Feifer 1967: 107 ff.). Consequently, the judge did not just decide outcomes of specific cases, but was also tasked with communicating a “Soviet legal narrative” to the wider public (Lukina 2016: 63), pronouncing on the situation at hand as an illustration of the interplay of broader socialist values. For instance, in the verdict of the RSFSR Supreme Court as of 1936 in relation to the murder of a doctor at a polar station (`The Semenchuk Case'), an ordinary killing, most likely for personal reasons, was turned into a “morality tale”, in which the accused, the head of the station, monopolized his power and oppressed the native population, perpetuating long- forgotten colonialism of the Tsarist era (Lukina 2016: 80 ff.).

What is important to note is that all the `actors' in court often acted as a single organism. Not only judges, but also prosecutors, witnesses, and sometimes even defense attorneys “[Talking about a chauffeur accused of reckless driving] His own Lawyer, counsel for the defense, grills him determinedly. Had he behaved well? No, very badly. Not badly, the lawyer says, but criminally.” (Feifer 1967: 55)., as well as defendants themselves “I stole and I lied and I falsified. I don't know whether I shall ever be able to redeem myself.” (Feifer 1967: 62), often assumed the educational role on both micro and macro levels - drawing lessons for both themselves and society at large. This almost theatrical feature of Soviet justice was most visible in infamous “show trials”, each of which read like a scripted play due to the total absence of spontaneity characteristic of unconstrained adversary proceedings.

C. Citizen participation

The mock trials of early Soviet Russia outlined in Wood's study were also unique in that they allowed the members of the public not to just passively observe the proceedings, but also to assume roles of judges, prosecutors, and defense attorneys. This was likely a result of popular educational ideas at the time that emphasized the effectiveness of “dramatization” as a teaching method (Wood 2018: 25-29).

... soldiers, students, workers, and peasants all responded to seeing themselves on stage. They were transformed from a passive “class” into active learners who showed initiative and even creativity in putting on this kind of a dramatic lesson. (Wood 2018: 28)

Through “playing” as those wielding power, ordinary citizens gained knowledge about the rights and responsibilities of state officials and a greater appreciation of their role in the new Soviet state. It is interesting that after the functions of agitation trials were relegated to ordinary courts, this element of play did not go away as there were ways in which ordinary citizens could take on legally significant roles without entering the legal profession.

One of the examples of citizen participation in justice is the institution of lay assessors (“narodnye zasedateli”), lay citizens elected by citizens' assemblies, work collectives and, in case of higher courts, councils of people's deputies-to serve on courts alongside judges This institution, Like many more, was not unique to Soviet Russia-Bolsheviks Likely followed the example of Schöffengericht, German courts of first instance consisting of one professional and two lay judges.. Established in 1917 by the Decree on Courts, they survived the fall of the Soviet Union and were only abolished in 2003 in civil cases, and 2004 in criminal cases. Two such assessors had to sit on courts and pass judgment both of law and fact alongside the judge, having the same procedural rights as judges whom they could theoretically outvote. However, despite these extensive powers, in practice most lay assessors were reported to be passive and deferential, partly because the judges' superior knowledge of the law gave them epistemic leverage (Barry & Barner-Barry 1982: 157; Los 1985: 454). For this reason, in professional legal slang, they were known as “nodders” (“kivaly”). “Furniture!” is how one young Soviet lawyer contemptuously described them (Feifer 1967: 81-82) Feifer, however, points out that there were a number of cases in which the assessors were invested enough to influence a judgment, describing a case in which they successfully pushed for a Not Guilty verdict (Feifer 1967: 82-83)..

From 1958, lay members of the public were allowed to take part in legal proceedings as “social” (“obsestvennye”) accusers and defenders. They were usually nominated by work collectives or public organizations the defendant belonged to and sought to represent communal, but not governmental interest in the case (Berman 1963: 94; Feifer 1967: 103-4). Similarly to lay assessors, the social accusers and defenders “rarely [knew] much about the law”, and turned their attention towards “the accused as a man - his character, his rate of production, his attitude towards his work and his fellows, his family life, his crime in the perspective of everyday life (Feifer 1967: 104-5).” If the accused expressed sincere repentance, the social defender was often tasked with asking the court to release him so he could be “re-educated” within the collective (Ugolovnyi Kodeks RSFSR 1960, art. 52; Kuznetsov 1961: 12; Taylor 1964: 50-51). As such, the nurturing function was able to reproduce itself-the “students”, lay persons educated by law, thus became the “teachers” to their still “ignorant” comrades.

This “re-education” often happened through the medium of comrades' courts (“tovarishcheskie sudy”), quasi-legal institutions fully run by members of the public that were tasked with reprimanding the members of collectives for minor legal and moral transgressions. The comrades' courts were around from the early days of the Soviet state and were used widely in the Civil War period and early 1930s. In the late 1950s, they experienced a renaissance (Los 1985: 456-57), partly as a way to relieve the judicial system of minor but cumbersome cases (Gorlizki 1998: 403). The sanctions imposed by these courts had “educational” rather than punitive character and included a public apology to the victim, a warning, social censure, a reprimand, a small fine, compensation to the victim, or a recommendation that the offender is demoted or fired (Los 1985: 457). Los warns, however, that in reality the comrades' courts were not as horizontal as one might think, as they tended to be used as a tool of control by factory and collective farm managers, doing the “dirty work” of legitimizing firings, the responsibility for which they did not want to assume (Solomon 1981: 33-34; Los 1985: 459-61). Even when the management was not involved, comrades' courts created a new hierarchy, in which the collective superseded the individual. The nurturing function of Law was not transformed, but merely delegated to the community.

This citizen participation in justice can be read in two ways. On the one hand, in theory it can be praised as an example of a horizontal engagement of government with its citizens. But in practice these institutions were either ineffective in this regard, preserving old hierarchies between citizens and the state and managers and workers, or effective in promoting collectivism in which individual interests were subjugated to collective ones. Either way, legal nurturing reigned supreme.

Conclusion: the two “faces” of legal nurturing

I have tried to explore the way the idea of law as an educational tool was realized in the Soviet Union through “legal nurturing”. Any law is designed to have an impact on habits or values. However, it is in the Soviet state that this process was put on an industrial scale. The legislature, the judiciary, and the community at large, as well as other actors that fall out of the scope of this article, worked together not to just incentivize good behavior, but to mold every citizen into the New Soviet Man. This holistic and hierarchical approach can be read in works of prominent jurists, traced in legal practice, and observed in everyday life.

Legal nurturing need not be pathologized; nor was it always sinister. As Berman (Berman 1972: 92) points out, “there is, generally, something of great value in the idea that the court-in certain types of cases, at least-should look beyond the specific acts that brought the parties before it and should explore, and not only explore but also seek to influence, the underlying situation.” The same can be said about the role of the legislative branch and the community as a whole. Western lawyers would do well to learn from this approach-and have been adopting some of its aspects regardless of whether they are ready to acknowledge the Soviet connection. It is generally a good idea to look at and address the causes of criminal offences, protect a vulnerable party in a civil transaction, or try to draw moral lessons from a legal dispute.

Still, legal nurturing had many excesses-not bugs in the system, but programmed into its design. Paternalism sits badly with individual rights and convincing rhetoric is often incompatible with truth. Most rightly associate the idea of law as propaganda with the infamous “show trials” for ideological crimes, in which, instead of at least trying to get to the bottom of “objective truth” underlying the case, false conspiracies were created to turn the public against various “enemies of the state”. Even though, at the first sight, political terror can be perceived as undermining the sincerity of calls to nurturing through law, I agree with Berman in that law and terror did not work at cross purposes, but were just different ways of achieving the same objectives. Terror “served as an instrument of political and ideological discipline”, while law-“as an instrument of moral and social discipline” (Berman 1955: 807). In other words, both performed the nurturing function, albeit on different levels.

For better or worse, legal nurturing was-and remains-a phenomenon worthy of more attention and exploration, and not the least because we experience some of its

Legacies now. The modern Russian Legal system sees itself as not just performing the MiLLian role of preventing harm, but also making sure that the public is instilled with the “right” values. In a notable example, in 2012 three members of Pussy Riot, a feminist punk rock band, were charged with `hooliganism' (Ugolovnyi Kodeks RF 1996, art. 213, part 2) for an unauthorized performance in a Russian Orthodox cathedral and sentenced for two years imprisonment. The prosecution heavily relied on the perceived offensiveness of the performance, which has drawn ire from the Church and its parishioners. In the aftermath of the case a law criminalizing “public actions that convey blatant disrespect to society and are committed for the purpose of offending religious sentiments of the faithful” (Federal'nyi Zakon 2013b, art. 1; Ugolovnyi Kodeks RF 1996, art. 181(1)). Similar effort to regulate public morality resulted in the infamous “gay propaganda law” that imposed “administrative” (misdemeanor) liability for “propaganda of non-traditional sexual relations among minors” (Federal'nyi Zakon 2013a, Art. 3; Kodeks 2001, Art. 6.21). The “foreign agents” laws (starting with the Federal'nyi Zakon 2012) and the new “educational activities” law (Federal'nyi Zakon 2021) that effectively regulate the values one can disseminate as part of their political or educational activity, finish the triad. As such, legal nurturing will be a useful tool for examining the connection between law and morality in modern Russia.

Á³áë³îãðàô³ÿ

Aquinas, Thomas. ([1485] 1947). Summa Theologica. Translated by Dominicans. English Province. 1st complete American ed. New York: Benziger Bros. Available at

https://aquinas101.thomisticinstitute.org/st-index (accessed 24 May 2021).

Aristotle. ([353 BC]). Nicomachean Ethics. Translated by W.D. Ross. Available at

http://classics.mit.edu/Aristotle/nicomachaen.10.x.html (accessed 24 May 2021).

Austin, John. ([1832] 1995). Austin: The Province of Jurisprudence Determined. Edited by Wilfrid E. Rumble. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press.

Attwood, Lynne. (1990). The New Soviet Man and Woman: Sex-Role Socialization in the USSR. London: Palgrave Macmillan.

Barry, Donald D., Barner-Barry, Carol. (1982). Contemporary Soviet Politics: An Introduction. Englewood Cliffs, N.J.: Prentice-Hall.

Beirne, Piers, Hunt, Alan. (1990). Law and the Constitution of Soviet Society: The Case of Comrade Lenin. In Revolution in Law - Contributions to the Development of Soviet Legal Theory, 1917-1938 Piers, Beirne (ed.). London: Routledge.

Berman, Harold J. (1955). Soviet Justice and Soviet Tyranny. Columbia Law Review 55(6): 795-807.

Berman, Harold J. (1963). Justice in the U.S.S.R.: An Interpretation of Soviet Law. Cambridge: Harvard University Press.

Berman, Harold J. (1972). The Educational Role of the Soviet Court. The International and Comparative Law Quarterly 21(1): 81-94.

Blackledge, Paul. (2007). Marx and Intellectuals. In Marxism, Intellectuals and Politics, edited by David Bates. London: Palgrave Macmillan.

Bogdanov, A.A. ([1917] 1990). Programma Kul'tury. In Voprosy Socializma: Raboty Raznyh Let. Moscow: Izdatel'stvo politicheskoy literatury.

Burge-Hendrix, Brian. (2007). The Educative Function of Law. In Law and Philosophy, edited by Michael Freeman and Ross Harrison. Current Legal Issues. Oxford University Press.

Deklaratsiya prav trudyashchegosya i ekspluatiruyemogo naroda [From Rus.: Declaration of Working and Exploited People], (1918), 13 January 1918. Available at

http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ESU&n=4446#0921820506631997

7 (accessed 24 May 2021).

Devlin, Patrick. (1968). The Enforcement of Morals. London, New York: Oxford University Press.

Engels, Frederick. ([1884] 1970). Origin of the Family, Private Property, and the State. In Karl Marx and Frederick Engels: Selected Works (III). Progress Publishers.

Engels, Frederick. ([1845] 1975). Speeches in Elberfeld. In Collected Works, by Karl Marx and Frederick Engels. Vol. 4. London: Lawrence & Wishart.

Engels, Frederick. ([1877-1878] 1987). Anti-Dühring. In The Collected Works of Marx and Engels (Volume XXV). London: Lawrence & Wishart

Engels, Frederick. ([1875] 1991). Letter to August Bebel (18-28 March, 1875). In The Collected Works of Marx and Engels (Volume XLV). London: Lawrence & Wishart

Federal'nyi Zakon [From Rus.: Federal Law], (2021), 5 April 2021 No 85-FZ. Available at http://www.consultant.ru/document/cons doc LAW 381385/ (accessed 23 June 2021).

Federal'nyi Zakon [From Rus.: Federal Law] (2012), 20 July 2012 No 121-FZ. Available at

http://www.consultant.ru/document/cons doc LAW 132900/ (accessed 23 June 2021).

Federal'nyi Zakon [From Rus.: Federal Law] (2013a), 29 June 2013 No 135-FZ. Available at

http://www.consultant.ru/document/cons doc LAW 148269/ (accessed 23 June 2021).

Federal'nyi Zakon [From Rus.: Federal Law] (2013b), 29 June 2013, No 136-FZ. Available at http://www.consultant.ru/document/cons doc LAW 148270/ (accessed 23 June 2021).

Feifer, George. (1967). Justice in Moscow. New York: Simon and Schuster.

Fuller, Lon L. (1949). Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory. Michigan Law Review47(8): 1157-66.

Fuller, Lon L. (1969). The Morality of Law. New Haven, Conn.; London: Yale University Press.

Gorlizki, Yoram. (1998). Delegalization in Russia: Soviet Comrades' Courts in Retrospect. The American Journal of Comparative Law 46(3): 403-25.

Gouldner, Alvin Ward. (1985). Against Fragmentation: The Origins of Marxism and the Sociology of Intellectuals. New York: Oxford University Press.

Hart, H. L. A. (1963). Law, Liberty, and Morality. Stanford, Calif.: Stanford University Press.

Huskey, Eugene. (1991). A Framework for the Analysis of Soviet Law. The Russian Review 50(1): 53-70. Kelsen, Hans. (1955). Communist Theory of Law. New York: Frederick A. Praeger.

Kodeks Rossiyskoi Federatsii ob administrativnykh pravonarusheniakh [From Rus.: The Russian Code on Administrative Offences], (2001), 30 December 2001 No 195-FZ. Available at

http://www.consultant.ru/document/cons doc LAW 34661/ (accessed 23 June 2021).

Konstitutsiya (Osnovnoy Zakon) Rossiyskoy Sotsialisticheskoy Federativnoy Sovetskoy Respubliki [From Rus.: The Constitution (Basic Law) of the Russian Soviet Federative Socialist Republic], (1918), 10 July 1918. Available at

http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ESU&n=2929#0505782428657417

8 (accessed 24 May 2021).

Konstitutsiya (Osnovnoy Zakon) Soyuza Sovetskikh Sotsialisticheskikh Respublik [From Rus.: The Constitution (Basic Law) of the USSR], (1936), 5 December 1936. Available at

http://www.hist.msu.ru/ER/Etext/cnst1936.htm (accessed 24 May 2021).

Konstitutsiya (Osnovnoy Zakon) Soyuza Sovetskikh Sotsialisticheskikh Respublik. [From Rus.: The Constitution (Basic Law) of the USSR], (1977), 7 October 1977. Available at