I found [Vishinsky] a man whose passion was lawnreform … He was doing what an ideal Minister ofnJustice would do if we had such a person in GreatnBritain — forcing his colleagues to consider what isnmeant by actual experience of the law in action. Henbrought to the study of the law in operation annenergy which we have not seen in this countrynsince the days of Jeremy Bentham.nWhat does a rule of law mean? Everything that thenproposed Thesis Section Eight covers, meaning that none ofnthese protections existed in the Soviet past nor do they existnnow. If they did, what would there be to reform?nSome Western experts argued that, while the Sovietnversion of the rule of law was hardly identical to its Westernncounterpart, still there were points of similarity. But it tooknGorbachev’s glasnost to make a mockery of this melioristicnWestern view of Soviet jurisprudence. And even nownGorbachev de facto parodies the idea of the rule of law.nThe Gentral Committee’s Thesis Section Eight demandsn”strict observance of the democratic principles of the legalnprocess.” But how can you have that in the absence of andemocratic, constitutional system of government to turnnproclaimed rights into practical rights? Who’s going tonensure the “strict observance?” The KGB, the Politburo,nthe Central Committee? Supreme Court ChairmannTerebilov? And who will dare, in the face of inevitablenreprisals, to ensure that the “presumption of innocence”nprinciple is not violated by the KGB?nOn July 21, 1988, for example, the New York Timesnreported that Armenia’s best known dissident, Paruir A.nAirikyan, had been stripped of his citizenship by thenPresidium of the Supreme Soviet and expelled from thencountry. He had been arrested in March and charged withnfomenting ethnic unrest in connection with the Nagorno-nKarabakh campaign. The Presidium took this action, saidnthe government announcement, for “actions discreditingnthe high title of a citizen of the USSR and harming thenprestige of the Soviet Union.”nIn any country where there is a rule of law, a citizen (orneven a noncitizen) could legally fight such a decree. Hisnattorney could appeal the finding, or go to a court and get anstay of execution of the Presidium order. The defendantncould sue for a trial on the facts, or insist on his right tonappear before the Presidium, with counsel or without. Whatnhappened to Aleksandr Solzhenitsyn, Vladimir Bukovsky,nand other Soviet dissidents in the Brezhnev era of “stagnation”n(as it is now called in the USSR) has happened tonAirikyan in the Gorbachev era oi glasnost.nThere is no rule of law in the Soviet Union because therenis neither an enforceable constitution nor an independentnjudiciary to guarantee the doctrine of constitutionalism,ndefined by Alexander Bickel as “a special kind of law whichnestablishes a set of pre-existing rules within which societynworks out all its other rules from time to time.” Constitutionalismncannot exist until the monopoly power of thenSoviet Communist Party is dismantled.nWhat there is today in the Soviet Union and what willncontinue to exist even under Gorbachev the Reformer isnwhat is called “instructive law” or “secret instructions.”nInvisible and unaccountable to the public, this system ofnparty directives to operational agencies affords party officials,nnomenklatura appointees and their friends — in othernwords, the ruling class — the protection of the “law” deniednto ordinary citizens.nWhat passes for the rule of law are really instructionsnhanded down from top officials to judges and prosecutors asnto how specific cases are to be decided. There is no appealnfrom these instructions, which have been described bynProfessor Robert Sharlet of Union College as representingn”legal arbitrariness.”nWriting in January, shortiy after Gorbachev’s ascension asnParty General Secretary, Professor Sharlet predicted that “ifnpast experience is any guide, odds are that many years willnpass before legality overcomes political expediency in thenSoviet Union.” And in 1988, his prophecy has yet to bendisproven.nBasing his findings on a spate of books dealing with Sovietnlaw. Professor Sharlet says that “party leaders . . .nfrequently adopt a cavalier attitude toward their own laws.”nHe writes:nThe Politburo, which has historically defined itselfnas a meta-juridical institution above and outside thenlaw it creates, routinely bypasses budget law, fornexample, in order to procure funding for unforeseennexigencies, and it regularly orders or permits ad hocnamendments to planning law in order to overcomenunexpected difficulties.nIn the meantime, however, we have Thesis Section Eight,na tacit admission that some seven decades after the BolsheviknRevolution the Soviet Union is still without the rule of lawnand that the Communist Party leadership, wealthy innprivilege and in property, is still beyond the law. As fornThesis Section Eight and what happened to it at the PartynConference — don’t listen to what they say, but watch whatnthey do.nOne of the most influential figures in the Soviet Unionnand the leading proponent of Soviet civil law was OlympiadnSolomonovich loffe, a man who had published 30 books,nsome of them to be found in Western law libraries. He wasnfor a long time head of the civil law faculty at the Universitynof Leningrad. loffe was probably the most popular teacher atnthe law school, according to Logan Robinson, a HarvardnLaw School exchange student whose experiences werenpublished in 1982 as An American in Leningrad.nloffe was well-known to Western scholars who specializednin Soviet jurisprudence. He was a true believer who in hisn40-year career had played a major role in the post-Stalinndrafting and recodification of Soviet civil law. He justifiednCatch-22 regulations in Soviet civil law no matter hownunfair they were in practice, and he derided students,nespecially foreigners like Robinson, who had the bourgeoisnaudacity to criticize such regulations.nloffe, the true believer in Soviet jurisprudence, finallynfound it necessary to emigrate in 1981 after a short career asna refusenik. Upon his arrival in the US, OlympiadnSolomonovich loffe was appointed to the Harvard LawnSchool faculty. Sic transit gloria legis Sovietici.nnnOCTOBER 1988/25n