THE COMMUNIST CONCEPTION OF LAW. INTRODUCTION. Professor Albertsworth in a recent article,1 dealing with the question of the existence of a legal cycle necessarily recurring in the course of the development of the legal systems of nations passing through somewhat parallel stages of historic evolution, arrived at a number of very interesting conclusions. His comparison of current legal progress and reform in Anglo-American law with similar developments in the Roman law throughout its long history as the law of the civilized world, leads him to a revelation that but little advance was made over the past legal order, so far as its basic principles are concerned. He states that: "It is true that racially enormous progress has been made in controlling external nature through a better understanding of its laws, but in the field of social and legal relationships it cannot be denied that we have repeated largely a cycle of certain legal doctrines and institutions worked out by the experience of the past." Professor Albertsworth, therefore, deduces inter alia that "as long as a social order is based upon private property, it is useless to attempt to change in a radical way certain of the legal doctrines and institutions which have survived as best fitted to serve the needs of private property," and that "many of the doctrines and institutions which have survived have been based more upon the rationalistic speculation than upon social convenience or utility." Hence, he thinks that "Hegelianism with its eternal progress of ideas, or Stammler's view of a natural law with a varying content, is more of a key to the interpretation of the legal order than is generally realized." This conclusion we are unable to accept as necessarily resulting from the fact that basic legal doctrines and institutions of the Anglo-American and Roman systems of jurisprudence are similar. We submit that all that is proven is that when human beings in different historical epochs adopt similar basic social doctrines and institutions they will finally arrive at like rules of social control. Law being a rule of social control, we get two similar systems of basic legal conceptions repeating in a cycle. In other words, 1 California Law Review, vol. XI., p. 381. Ibid., p. 395. Ibid., p. 395. Ibid., p. 396. Ibid., p. 396. the enormous advance made by human beings from the time of the Roman Empire to our days in the means of controlling external nature did not make and could not make any appreciable impression on our basic legal conceptions, since the latter are not dependent on our means of controlling external nature. Furthermore, it is no argument to state that because many legal doctrines and institutions both in Rome and in Anglo-American countries were based seemingly more upon reason than upon social convenience or utility, that we must reject the definition of law as a result of conflicting social interests and accept the view that it is a product of an eternal progress of ideas or an expression of a natural law with varying content. On the contrary, the only conclusion that may be safely indulged in is that when human beings in different historical epochs adopt similar basic social doctrines and institutions they will finally evolve like rationalistic speculations. However, whatever philosophic theory on the nature of the law we may share, there is one nation to-day which has chosen to discard some of the basic social doctrines and institutions responsible for the Roman-Anglo-American legal cycle. In particular, this nation, i.e., Russia, abolished the institution of private property. It has introduced many other novel doctrines into its system of jurisprudence. The analysis of these legal innovations will consequently be of greatest value to a legal scientist searching after the forces and causes responsible for the rules of social control. If under new forms of basic social doctrines and institutions novel rules of social control are evolved, it will tend to prove the theory of social interests as responsible for our legal systems. If the basic legal conceptions in the communist commonwealth remain the same as ours, then we may well conclude that rules of social control are governed by natural law and not by the social order they direct. While these deductions are logically true, they must be subjected to several corrections. The communist ideal is not realized in Russia, and that country to-day is not a communist commonwealth. Its basic social doctrines and institutions are in the state of transition from the epoch of private property to the communist economic and social system. We must therefore expect that Russia's rules of social control will reflect this transitory period. And indeed, the present system of the Soviet law is a curious mixture of communist basic conceptions with doctrines and institutions of private property engrafted thereon. Furthermore, the present generation of Russians, both communist and non-communist, have been so long influenced by the basic social doctrines and institutions founded on private property, that consciously or unconsciously they must continue to be acting and legislating under the spell of these doctrines and institutions. It is only when the new generation of Russians, bred upon the communist principles, will take the reigns of government and begin to legislate in Russia, that we could safely analyse the legal communist conceptions, and decide. whether they are original or cyclic. The following analysis of communist basic legal conceptions as adopted by the communist government of Russia during the transitory current period is grounded exclusively on the Soviet legislative enactments, both Federal and State. The legal conceptions analysed here will be taken in the following order: (a) State, (b) Family, (c) Political Rights, (d) Civil Rights, (e) Property, (f) Ownership, (g) Obligations, (h) Torts, (i) Crime, (j) Punishment, (k) Civil Procedure, and (1) Criminal Procedure. (a) STATE. State is defined as a free socialistic society of all the toilers within a certain territory. It is a class institution both nationally and internationally, aiming at self-destruction, for its purpose is declared to be the establishment of socialism, abolition of class distinctions and elimination of the governmental authority. As such national class institution it vests all the governmental authority in the whole mass of toiling population organized into urban and rural councils. (soviets). The governing class, therefore, is confined to toilers possessing electoral rights in a communist State. The class gradation, however, does not stop here. The urban and rural proletariat and the "poorer" farmers are endowed with State dictatorial powers in order to completely eradicate bourgeois classes and abolish exploitation of men by men. So that, in the final analysis, the governing class in a communist State is limited to the proletariat and poorer farmers possessing electoral rights. The sum total of governmental authority being vested in the toiling masses, the councils elected by these masses inherit this sum total of State authority, each within its sphere of activities.10 The communist State rejects the divisional theory of governmental pow ers. Except in purely executive departments, it places State functions in the hands of collegiate bodies.11 The communist constitu Constitution of the Russian Socialist Federated Soviet Republic (hereinafter called "R.S.F.S.R.), July 10, 1918, art. 2, sec. 10. Ibid., art. 2, sec. 9. Ibid., art. 2, sec. 10. 10 Ibid., art. 2. sec. 12: art. 3, secs. 24 & 30. 11 Ibid., art. 3, secs. 25, 28, 37, 44 & 45. Constitution of the Union of Socialist Soviet Republics (hereinafter called "U.S.S.R."), July 7, 1923, art. 3, sec. 8; art. 4, secs. 13, 14, 15 & 26; art. 5, sec. 29; art. 6, sec. 37; art. 8, secs. 49, 55, 56 & 57. tions do not guarantee direct and secret ballots, but they adopted recall.12 Finally, the communist State deprives individuals and groups of individuals of rights, which these individuals or groups may use in a manner detrimental to the interests of the socialist revolution and the labouring class considered as a unit.13 As such international class institution, the communist State forbids the establishment or the existence of any advantages or privileges based on racial or national distinctions, grants racial equality to its citizens and prohibits any oppression of the national minorities or limitation of their rights.14 Furthermore, it guarantees to national minorities local autonomy and a union with the main State on a federative basis.15 The communist State recognizes the international solidarity of the toilers of the world, and consequently bestows on the toilers of any other State (both workmen and farmers not employing hired labour) residing and toiling within the communist State, upon compliance with simple formalities, all the political rights enjoyed by its citizens.1 It charges itself with the attainment of victory of socialism in all the countries, and pledges to refuse payment of loans contracted by the previous governments until complete victory will be achieved by an international labour rebellion against the yoke of capital." The communist foreign policy brands as barbarism colonial possessions of all the States, as well as oppression of small nations.18 Finally, the communist State abhors secret treaties, and in case of war calls for brotherhood of workmen and farmers of the warring States and the conclusion by the toilers at all costs, including revolutionary means, of a democratic peace without territorial annexations or monetary contributions and with a free choice of suzerainty by the population of the warring nations.19 A right of asylum on the territory of the communist State is granted to all aliens persecuted for political and religious beliefs.20 As such class institution, both nationally and internationally, it pursues certain economic policies. The communist State recognizes only State ownership of the land, forests, subsoil and watercourses 12 Ibid., art. 4, sec. 78. 13 Ibid., art. 2, sec. 23. 15 Ibid., art. 1, sec. 8, and art. 2, sec. 11. 16 Ibid., art. 2, sec. 20. 17 Ibid., art. 1, sec. 3(g). However, as R.S.F.S.R. is internationally a part of U.S.S.R. and the constitution of the latter contains no such purposes, these provisions must be considered as mere pious wishes, as R.S.F.S.R. has no State machinery for their realization. See on the constitution of U.S.S.R. generally Columbia Law Review, vol. 24, p. 36. Ibid., art. 1, sec. 5. 1 Ibid., art. 1, sec. 4. 20 Ibid., art. 2, sec. 21. of national importance.21 All the means of production and transportation, including factories, mills, mines and railroads, are placed under the control of labour.22 And last, but not least, the banking business is declared a governmental function.23 (b) FAMILY. Mutual consent of the parties to a marriage is a necessary element of its validity, and is also one of the sufficient grounds of divorce.24 State registration alone confers legitimacy upon a marriage,25 but its only advantage seems to be the presumption of father's parentage, as all the distinction between legitimate and illegitimate offspring is abolished.26 There is also no discrimination made between the rights of the full and half-blood relatives of the same degree or class.27 Personal and property rights of the parties to a marriage are absolutely equal, and any agreements between these parties impairing or limiting these rights are void.28 Husband and wife may enter into agreements in respect to each other's property, and each may choose his or her residence.29 A married couple may take the surname of either of the spouses or use a joint surname; may adopt the nationality of either party or retain each own separate citizenship; each spouse equally shares the duty of maintaining children.30 The matrimonial status as such confers no right of alimony on either spouse, but a disabled or an indigent spouse is entitled to an allowance from the other spouse even after divorce.31 The parental authority is exercised jointly by both spouses, who must mutually determine methods of education and religious instruction of their children (the latter only until the age of 14 years), and in case of disagreement as to the selection of a religious belief, none is to be taught to children.32 Adoption is abolished, but children previously adopted and step-children have the same rights as the natural born issue.33 Surnames of illegitimate children may be determined by the parental agreement, but in default thereof the court may give them the surname of either parent or their joint 21 Ibid., art. 1, sec. 2a. and 2b. 22 Ibid., art. 1, sec. 2v. 23 Ibid., art. 1. sec. 2d. 24 Domestic Relations Act of R.S.F.S.R. (Sept. 16, 1918), secs. 70 and 87. 25 Ibid., sec. 52. Ibid., sec. 133. "Ibid., secs. 69 and 172. 28 Ibid., sec. 106. 2 Ibid., secs. 104 and 105. 30 Ibid., secs. 100, 103 and 162. 31 Ibid., secs. 107, 119, 132. a2 Ibid., secs. 148 and 150. 33 Ibid,. secs. 182 and 183. |