This paper traces the development of Soviet and Russian law from its ideological foundations in Marxism-Leninism through the Cold War era and into the post-Soviet constitutional reforms of the 1990s. Drawing on scholarship by Berman, Bartlett, Kahn, Krygier, Marochkin, and Reshetnikova, the paper examines how socialist legal theory shaped—and continues to influence—the Russian legal system. Topics covered include the internal Soviet debates over whether a socialist state needed law at all, the spread of the Soviet legal model to newly socialist states, post-Soviet pluralism in Russian adjudication, the 1993 Russian Constitution, anti-discrimination enforcement, and the procedural principles governing modern Russian civil and criminal courts.
The legal system of Russia may be viewed through the prism of communism and Marxism, but that is not all that needs to be considered when discussing Soviet and Russian legal ideology and court systems (Bartlett, 2008). In reviewing the development of how western scholars think about the impact of Soviet legal practices on Russian law, Bartlett points out that law is more than just statutes — it is also the "social practices, norms, behaviors, and expectations" of the public (Bartlett, 2008, p. 4). As one of the world's nuclear powers and the largest country in Eurasia, an understanding of the development of Soviet and Russian legal practices is essential to understanding the region.
Soviet law was portrayed as socialist law, but the ideology behind it was strictly Marxism (Berman, 1948, p. 223). In the socialist legal framework, the legal systems under a capitalist regime are viewed in a negative light; "capitalist law" is thought to be "an instrument of bourgeois domination... and bourgeois justice [thought to be] justice for the rich and not for the poor" (Berman, 1948, p. 224). In the decades spanning 1917–1945, the debate within the Soviet Union was fractured regarding the configuration of the Soviet legal system (Bartlett, 2008, p. 14). There was no clear consensus as to whether a nation whose political orientation was socialist "should have a legal system at all" (Bartlett, 2008, p. 15). Many Soviet legal scholars argued that the legal systems in existence at the time around the world were a product of "bourgeois" society, and that if a nation abandoned a capitalist structure — as the Soviet Union had — it would make no sense to embrace such a legal system (Bartlett, 2008, p. 15).
In the years between 1945 and 1960, a totalitarian system of legal justice emerged in the wake of the U.S.S.R.'s conflict with the United States. At least, this is how Soviet legal scholarship was portrayed in the West (Bartlett, 2008, p. 17). The system in the Soviet Union during the Cold War was deeply politicized. Bartlett suggests, however, that Soviet Russian law was not truly totalitarian in the sense of serving the interests of a single powerful leader. Rather, Soviet Russian law was unique because it was formed and influenced heavily by "political and ideological undercurrents" (Bartlett, 2008, p. 18).
Americans who studied at the Moscow Juridical Institute found that the foundational ideology behind Soviet law was the political ideology of Marxism-Leninism (Bartlett, 2008, p. 19). Scholars such as John Hazard found that the development of Soviet law during the U.S.S.R.'s reign was directly related to and in line with "the economic and political" situation in the country (Bartlett, 2008, p. 20). Towards the end of the Cold War, from 1965–1991, western perceptions of the Soviet situation were altered. The socialist model, of which the U.S.S.R. was among the biggest proponents, spread rapidly throughout the world, and the socialist legal model that developed was political in nature. Newly socialist states patterned their civil, criminal, and administrative laws after the Soviet Union (Bartlett, 2008, p. 23). Soviet socialist law viewed itself as activist in nature; in socialist nations, judges actively sought to use the law to change society so that laws would eventually no longer be needed (Bartlett, 2008, p. 25).
In the post-Soviet era — encompassing the years from 1991 to the present — the communist system waned and a distinctly Russian law began to emerge. The Russian Civil Code coexists alongside everyday customary legal traditions (Bartlett, 2008, p. 52). Rather than a single civil code, the new Russian legal system is plural, with multiple overlapping systems of adjudication. In post-Soviet Russia, local courts could make legitimate judicial decisions not simply on the basis of statutory law, but also on the basis of "customary or religious principles" (Bartlett, 2008, p. 54).
The lasting impact of the socialist experiments carried out in the name of Marx and Lenin was, for many years, characterized by the very "absence of the rule of law" (Krygier, 1990, p. 634). In the old Soviet Union, law was inherently negative unless used in an administrative capacity (Krygier, 1990, p. 636). Part of the revolutions in Eastern European countries during the 1980s and 1990s was a transformation in thinking about the very possibilities and the role of the rule of law (Krygier, 1990, p. 639). Krygier quotes Czarnota to illustrate how emerging countries began to think about and reflect on the role of law in modern society — a stark contrast to the relationship between law and society under communist political thought, where law was not considered an appropriate paradigm through which society could be organized, but rather a mere tool of oppression (Krygier, 1990, p. 639).
"1993 Constitution, human rights, and discrimination law"
"Procedural principles governing Russian civil courts"
Modern Russian courts are evolving and have incorporated European and western legal principles, codifying those rules in their statutes, constitution, and civil regulations. However, the Russian court system, like the Soviet legal system, remains a complex and political entity. The increasing standardization of Russian law in the modern era has not eliminated the influence of government officials and wealthy businessmen. These two groups are often exempt in practice from punishment under the law for various criminal and civil infractions. Of the two court systems — criminal and civil — the Russian civil law system is far more effective. Russian criminal law, like the law of the Soviet Union, is far more likely to be used as a weapon by the government to identify and punish political adversaries (Reshetnikova, 2009).
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