By Anna Lukina
“The Soviet court should, above all, persuade, prove and subordinate the public attention to its moral influence and authority.”
Andrei Vyshinskii, “Theory of Evidence in the Soviet Law” (1946)
It is well-known that the Soviet court procedure, especially in the 1930s, can be characterized by its lack of due process, judicial independence, and fair outcomes. It remains unclear, however, why these legal institutions were preserved and, on the surface, respected at all. The core of Marxist-Leninist philosophy was suspicious of legal formalism, with early 1920s legal scholars such as Pashukanis and Krylenko advocating for the ‘withering away’ of the state and hence law.
Yet this position was fundamentally reversed in 1930s. This can be explained by the fact that Stalin saw the courts’ hidden potential as a political tool: not as an explicit source of power (since coercion could be, and was, applied via extralegal procedures), but as a mode of communication with the population.
Even before the 1930s “conservative shift”, Soviet society recognized this hidden meaning of judicial procedures. Some of the 1920s trials such as the Trial of the SRs (1922) and the Shakhty Trial (1928) were more like “trial-lectures” addressed to a wide audience of spectators. In the 1930s, however, this function was enhanced since the state, aided by the Show Trials prosecutor Andrey Vyshinskii as a chief reformer, invested in legal education, legal scholarship, and the reorganization of judiciary and related institutions. This was followed by a “refetishisation of the law” – an explicit acknowledgment of legal order as the cornerstone of socialism and a building force in Soviet society.
This, in turn, has increased the use of Soviet court for propagandistic purposes, creating what I call a “Soviet legal narrative”. It can be briefly described as a chronological account of the facts of a specific case, which was presented as the primary ‘story’ in the Soviet court. Even though the notion of a legal narrative is not unique to the Soviet legal system, and has been used to describe legal procedures in a variety of jurisdiction, its Soviet form was characterized by a number of distinct features.
Firstly, as mentioned above, the Soviet legal narrative was addressed to an unusually wide audience. While ordinarily a story presented in court is intended to influence the judge and the jury, the Soviet court was officially designated a function of educating wider population. This “education” did not only extend to ideologically neutral values such as respect for law, but covered instillation of more specific Marxist-Leninist values. It was disseminated via the openness of trials themselves, wide reporting in the (state-controlled) media, and even novels and short stories based on real-life trials. It can be partly attributed to the lack of adversarial procedures, which diminished the role of the court in the decision-making: when the outcome is pre-determined, there is no one to persuade.
Secondly, it can be viewed as an official agenda. The Soviet legal doctrine furthered an extremely idiosyncratic role of the court: educating the population as synonymous with establishing an objective truth. However, unlike similar (but more legitimate) concepts in contemporary civil law systems, the latter meant construing impressions as reality using materialistic dialectics – a strong ground for creating a narrative deviating from facts. Therefore, it can be argued that propaganda appeared to be an implied goal of the Soviet court in that period.
Thirdly, the Soviet narrative was characterized by a specific type of content. For instance, it presented the mens rea (the “mental” element of the crime – such as motives and intentions) as more important than the unlawful act itself. Anti-Soviet motives were considered as aggravating factors and therefore actively discouraged when the narrative was disseminated to the legal audience regardless of the objective impact of the defendant’s actions.
Moreover, many distinctly colourful assertions were made about the defendant’s character and their class standing, as well as the victim’s relative characteristics. These “portraits” created a story which was easily digestible by the audience, with clear protagonists and antagonists: a cautionary tale designed to shape the existing social norms. In addition, it represented class struggle, turning the trial not only into a battle of personalities, but a tension between the oppressor and the oppressed. This provided both a justification for coercion and a political lesson for the spectators to learn from.
Finally, the omnipresence of this particular variety of narrative was cultivated by the fact that the Soviet court structure was far from the “storytelling contest” seen in adversarial trials: both the court and the prosecution followed the same line from the very start. Even the defence was not exempt from repeating the official line, as defence attorneys were considered the servants of the state as much as prosecutors, and so were compelled to advance similar goals and ideas. In this sense, the Soviet legal narrative was hardly challenged by any competing stories, which solidified it in the audience’s minds.
Therefore, the Soviet legal narrative phenomenon and the use of the court as a propaganda device can explain many peculiarities of trials in that period. Even though the rule of law would have presented a challenge to the totalitarian leadership, a pretense of the rule of law was, ironically, central to its strengthening.
Anna Lukina is a 3rd year BA in Jurisprudence student in the University of Oxford. Her research has so far focused on legal narratives in the Soviet criminal case and Soviet conceptions of human rights(1). She plans to combine Soviet legal history, socio-legal studies and legal theory in her work. This blog post is partly based on her article:
Anna Lukina, “The Semenchuk Case of 1936: Storytelling and Propaganda above the Law in the Soviet Criminal Trial”, Review of Central and East European Law, Volume 41, Issue 2, 2016, 63-116. http://booksandjournals.brillonline.com/content/journals/10.1163/15730352-04102001