How Stalin’s Prosecutor Used Law to Build the Soviet World
The echoes of the Soviet World persist through the novel legal doctrine that the world’s first Marxist state promulgated, and these reverberations are growing louder in our present moment. Soviet legality, which combined formal rules emphasizing the law’s pedagogical character with a pragmatic willingness to embrace extralegal State action, influences Russia’s recent constitutional change, China’s efforts to strengthen its courts and define international rules, and much of the West’s current positive rights movement. To understand the character and nature of this Soviet legal understanding, it is imperative to turn to its chief architect, Andrey Vyshynsky.
The Soviet state did not emerge with a concern for the law. Lenin, like Marx and Engels before him, advocated for an essentially Schmittian “sovereign dictatorship,” a transitional period transcending the boundaries of legality. This “legal nihilist” vision of the Soviet system was that, through proletarian rule, the vestiges of State and Law—tools of the bourgeoisie—would wither away. As Lenin’s heirs were forced to hold the gained ground on political power, however, they turned back to legality as a way to sustain their dominance. In the 1930s, the Soviet state found itself at a crossroads. With the novelty of both the October Revolution and the struggles of the Civil War evaporating, Soviet officials had to turn to the more mundane matters of preserving the new polity. Old ideas, bristling with revolutionary fervor, started to be questioned.
Enter Andrey Vyshinsky; a man infamous for his urging to “shoot them like mad dogs” while he was prosecutor at the Moscow Show Trials. Vyshinsky was born on December 10, 1883 in Odessa. A practicing lawyer and a Menshevik before the Revolution, Vyshinsky nonetheless quickly rose through the ranks to become, by the mid-1930s, a Procurator General of the USSR and an influential academic authority on all matters of law and state. Vyshinsky had greater reverence for the legal form than many of his contemporaries. He resisted the legal nihilist tendencies of the time, arguing, instead, that the new Soviet state needed to strengthen, rather than weaken, its commitment to legality. While he, in fealty to Marx and Engels, wished for the eventual dissolution of the Law and State, the legal form, on his account, was necessary to accustom the population to the new reality: a socialist way of life. As he pointed out in one of his public addresses: “law is not just naked repression or punishment, but also a great cultural and political force, which allows [itself] to educate and re-educate people.” The state and the legal form had to be strengthened in order to accelerate their eventual demise. This represented a move away from previously popular theories such as that of Evgeny Pashukanis who argued that law would disappear along with the commodity form of economic relations.
Vyshinsky’s theory closely aligned with Stalin’s interest in building “socialism in one country”: maintaining centralized power required the exact kind of coordination produced by law that Vyshinsky highlighted in his account. It is thus no surprise that this “refetishization of law” was given a green light not only in theory, but also in practice. Reforms shortly followed, including the drafting of more legislation, that put a greater emphasis on the education of legal officials, and strengthening the Procuracy—the agency under Vyshinsky’s control. Even though Vyshinsky’s former boss at the agency, Nikolai Krylenko, argued for the relaxation of legal standards in the service of “revolutionary legality,” that proposal had, ultimately, suffered defeat. The new 1936 Constitution defined the era, featuring an extensive catalogue of rights, including a provision that guaranteed that “no person may be placed under arrest except by a decision of a court or with a sanction of a prosecutor (Art. 127)”—a source of marvel both within the Soviet Union and abroad.
While Vyshinsky’s theory emphasized “socialist legality”‚an analogue of the Western Rule of Law—rather than arbitrary power, it only went so far as it was deemed necessary for advancing the socialist cause. The Great Terror, swallowing both Pashukanis and Krylenko, exposed the “dual” nature of the Soviet state, wherein declared respect of law co-existed with the bending or direct flouting of legal rules in order to bring about retribution on political enemies. Still, it would be a mistake to exclude the role of the legal institutions from that story completely. Even though, in many ways, political repressions were extralegal, the engine of the law had been used extensively as a propaganda tool. Courts, with novel force, particularly contributed to what I call the “Soviet legal narrative.” Big cases, including the infamous Moscow Show Trials, were always well attended and covered by newspapers, while transcripts of the proceedings were published and widely distributed. Vyshinsky’s magnum opus, “The Theory of Evidence in the Soviet Law,” boasted his accomplishments as a prosecutor.
A Soviet citizen was thus exposed to a particular interpretation of the events by prosecutors (of whom Vyshinsky was the most colorful orator) and judges who, often in strong and even insulting terms, emphasized the parties’ state of mind and character, situating individual transgressions in the context of a wider political struggle. For instance, the 1936 Semenchuk case turned what could have been an ordinary murder trial into an invective against the remnants of colonialism in Soviet-controlled Arctic territories—and a refutation of similar charges that could be levelled against the Soviet state. These narratives were often corroborated by defense attorneys or defendants themselves, as the theme of redemption was used as a significant element of the story arc. A vivid but typical example is Nikolai Bukharin’s emotive plea at the third Moscow Trial as he was about to be sentenced to death for alleged treason:
“I am kneeling before the country, before the Party, before the whole people. The monstrousness of my crimes is immeasurable especially in the new stage of the struggle of the USSR. May this trial be the last severe lesson, and may the great might of the USSR become clear to all.”
Indeed, the demonstration trials were often such a “lesson” in political education. The new legalistic approach and the political aims of the Soviet government thus did not work at cross-purposes, but often converged to produce the period’s dominant ideology.
The turn in legal theory powered by Vyshinsky also put international law on the agenda. While the Soviets had previously rejected any cooperation with the West, the “First conference on the doctrine of Soviet state and law” in 1938 represented a change in the tide, expressing support for endeavors of scholars such as Aron Trainin. Trainin, a criminal law professor, turned to the idea of international crimes as far back as 1935, when he published a monograph entitled “Criminal Intervention.” He sought to protect international peace by criminalizing military aggression, a theme that would define his subsequent career. As the Second World War vividly showcased the necessity of building a strong international order, it was Trainin, supervised by Vyshinsky—by that time a diplomat—who was called to define the Soviet position, starting with defining the responsibility of Nazi war criminals.
In 1944, after the first Soviet trial of Nazi collaborators had already taken place, Trainin authored a volume “On the Criminal Responsibility of the Hitlerites,” which, along with works of Raphael Lemkin and Hersch Lauterpacht, became an inspiration for the Nuremberg Trials. Unlike Lauterpacht’s “crimes against humanities” concept that focused on violations of rights of individuals, and Lemkin’s notion of “genocide” that encompassed harm to ethnic minority groups, Trainin’s attention was turned toward crimes against the international legal order. Besides characterizing aggression as crime, Trainin built on his mentor Vyshinsky’s theory of complicity, deployed to great effect in the Moscow Show Trials, to build a case for indicting high-ranking officials who did not take “direct” part in the atrocities. In Nuremberg, these defendants were tried as members of criminal organizations, in a similar way to the defendants at Moscow Show Trials a decade earlier who were accused of being involved in a coup against the Soviet Union. While the International Military Tribunal undeniably yielded justice, one would not be mistaken to characterize it as a “narrative” trial similar to the ones of the 1930s. Like others, the Soviets came with their own agenda, wanting to globally recognize the losses suffered by their nation as well as to deflect some of the blame on its part—the talk of the Molotov-Ribbentrop Pact and occupation of Poland was scrupulously avoided. The “pedagogical” role of law as envisioned by Vyshinsky was thus transplanted onto the international venue.
After the war, Vyshinsky turned to the UN as his new stage. The drafting of the Universal Declaration of Human Rights provided him with a chance to take a decisive stand on core legal and moral values, which was especially necessary at the start of the Cold War. In his famous speech before the UN, he advocated for the approach, long taken by Soviet constitutions and going as far back as Marx and Engels: to prioritize collective interests, socio-economic guarantees, and positive action by the state. Though not unheard of today, when many make claims to rights to healthcare or education, this view contrasted strongly with the more commonplace individualistic picture of human rights. While, to Western nations, human rights meant preserving negative liberties of individuals from the intervention of the state in private affairs, the Soviet concept envisioned the state as playing an almost parental role, guaranteeing its citizens prosperity while limiting some of their freedoms for their own good. This was visible in the treatment of the freedom of speech, Which Vyshinsky argued was empty and futile without providing “the workers” with the resources needed to amplify their voice. At the same time, he asked for it to be restricted lest it be exploited by “fascists.” Vyshinsky chastised his Western colleagues for claiming to value the right to life and yet not compelling states to feed the hungry while they were quick to point out the authoritarian implications of his concept. This clash continued during Vyshinsky’s tenure as the Soviet Minister of Foreign Affairs at a contentious time in Soviet relations with the West, including the Korean War.
In 1953, Vyshinsky, then a Soviet Delegate to the UN, died as he lived—bent over his desk in the Soviet Mission’s headquarters in New York, working on a speech that never saw the world. But his project of instrumentalizing law to shape the political agenda both at home and abroad has endured. After the dissolution of the USSR and the transitional period that followed—as rife with political struggles as the beginning of the Soviet state—the formalistic approach to law continued to define legal research and education in post-Soviet countries. In many ways, the Russian legal system is “dual” in the way the Soviet system was: while the formalist approach is preserved in most ordinary cases, political contingencies call for extralegal action. In Russia’s recent constitutional changes the explicit antipathy to Western norms of law and the use of legal terminology to solidify Russian identity are both hallmarks of the Soviet legal doctrine.
Outside of the Soviet sphere Vyshinsky’s approach came to be regarded as the defining legal interpretation of Marxist legal theory, heavily influencing legal order and jurisprudential theory in China well after the nation’s relations with the Soviet Union soured. The definition of law in Chinese textbooks is taken directly from Vyshinsky as “the aggregate of the rules of conduct enacted and approved by the state, expressing the will of the dominant class, the application of which is guaranteed by the coercive force of the state.” After decades of flouting international law in areas such as intellectual property, China under Xi Jinping is having a renewed emphasis on legality. The Social Credit System, criticized for its emphasis on social engineering and neglect for traditional conceptions of the rule of law, nonetheless aims directly at strengthening the courts and improving legal enforcement. In addition, China, to strengthen its domestic legal form, is exporting its legal doctrine abroad, much in line with the Soviets.
The doctrine of complicity, as articulated at Nuremberg, has migrated into the legal aftermaths of many modern conflicts. Unlike Nuremberg, the Soviet human rights endeavor ultimately proved a failure for the Soviets. Unable to secure their amendments, they abstained from voting on the Declaration. Nevertheless, elements of both approaches (complicity and human rights) are found in modern human rights discourse, especially with regard to rights to public goods such as healthcare or education. With the adoption of the International Covenant on Economic, Social, and Cultural Rights and the European Convention of Human Rights, some of the claims to collective goods were given legal weight. However, some modern critiques of human rights law, such as Eric Posner’s, echo Vyshinsky’s warning that even such bulletins of rights are rendered an “empty slogan” without economic equality—not only between the individuals, but also between the states—to sustain them. The pedagogical role of law drives many legal innovations, such as hate crime laws, which aim to educate citizens on proper social relations. Similarly, with the far right on the rise, novel concerns such as political disinformation proliferating, and the COVID-19 pandemic requiring stringent public health measures, many conventional personal and political freedoms—like freedom of speech or assembly—are reexamined and weighted against common interests. The Soviet project of utilizing the legal machinery to reimagine political and legal doctrine has sown its seeds, and continues to shape our reality.
Author's note: I thank Ryan Khurana for his comments and advice on this essay.
Featured image: Vyshinsky serving as a judge in photograph (1928) via Wikimedia Commons.
Anna Lukina is a lecturer and an independent scholar passionate about jurisprudence and legal history. She is an alumna of the University of Oxford and Harvard Law School. Her work may be found on the Social Science Research Newtwork. She invites you to follow her on Twitter.