A few weeks ago, I was listening to Radio Moscow’s Joe Adamov answering mail-in questions from his North American audience. One query came from somebody in Nova Scotia: How important was Stalin to the Soviet victory in World War II? Adamov’s answer went like this:
Stalin’s contribution to the war effort had been nil. Before the war, Stalin had executed some 50,000 officers for no reason. In fact, when the Nazis invaded the USSR, there was such a dearth of general officers that captains were put in command of whole divisions. There was no alternative. But Adamov neglected to say that, thanks to scholars like Robert Conquest, the free world had known all this for at least a quarter century.
According to Conquest, Stalin in the late 1930’s had executed 14 of the 16 army commanders, 60 of the 67 corps commanders, and 136 of the 199 divisional commanders. Half the officer corps—about 35,000—were shot or sent to labor camps. All 11 of the vice-commissars of defense and 75 out of 80 members of the Supreme Military Soviet went. Comparing Adamov’s figures with Conquest’s, it seems that the British historian had erred on the side of scholarly caution.
As I listened to Adamov’s rabid anti-Stalinism, I thought of how, when the Party line mutates, things seem to change in the USSR almost overnight. In 1986, I had asked an assembly of Soviet media representatives at the Hall of Journalists in Moscow how Stalin could have happened without the complicity of the Soviet Communist Party. The answer was a mumble about “the cult of personality” but not a word about Stalin. And here, just two years later, was an official Soviet mouthpiece telling the (English-speaking) world—and I quote Adamov, his voice trembling—”the people won the war despite Stalin, not because of Stalin.” Millions of Soviet citizens died needlessly because of Stalin’s admitted military incompetence.
I thought of those in the West who had been consistently anti-Stalin even during World War II and who had been berated for their unseemly red-baiting, for “aiding” the Nazis by deprecating rather than glorifying the heroic Stalin, for uttering the heresy that Stalin was the enemy of everything good and decent. And now here was Comrade Adamov confirming that Stalin was a villain, a monster, just as the now-forgotten Khrushchev had claimed in his 1956 speech, when he told his Party associates about how Stalin had almost lost the war. It took 22 Soviet years for the truth finally to surface.
I don’t mean to knock Joe Adamov. After all, he’s saying a lot more about Stalin than Gorbachev has. For example, liquidating a “social class,” as Stalin did the peasantry, is no more than a venial sin to Gorbachev since he has yet to denounce the Great Terrorist with Khrushchevian candor. As President Nixon has written: “To a man [Stalin] who killed tens of millions of Soviet citizens Gorbachev gave a pat on the back and a slap on the wrist.” Gorbachev, said Nixon, has also endorsed Stalin’s brutal collectivization program and praised—in Gorbachev’s own words—the “tremendous political will, purposefulness and persistence, ability to organize and discipline the people displayed in the war years by Joseph Stalin.” That’s like saying Hitler “disciplined” the Jews.
My thoughts wandered off to the extraordinary Soviet Communist Party conference convened by Mikhail Gorbachev in Moscow in May 1988. Some weeks before the conference, the Soviet press published pages of “theses”—agenda items for delegate discussion—prepared by the Party’s Central Committee.
Section Eight of the theses dealt with the rule of law. Contained in the formulation was the implicit admission that the rule of law had not played much of a role in the Soviet political system. The “thesis” text is written in typically clotted Communese:
A major legal reform must be implemented with a view to improving radically the work of all bodies which are obliged to strengthen legality and defend the democratic principles of state life and citizens’ rights and freedoms. The priority measures . . . include the radical enhancement of the role of justice, and strict observance of the democratic principles of the legal process, the adversarial nature and equality of both sides, openness, and the presumption of innocence.
The rule of law as a popular issue has come to the forefront since Gorbachev began his “glastroika” (glasnost + perestroika) policies. In April, the chairman of the USSR Supreme Court, Vladimir Terebilov, in an interview with Literaturnaya Gazeta, had called for amendments to the Soviet Constitution to guarantee the independence of the Soviet courts. Such a guarantee was essential to prevent state or party officials from influencing the decisions of the courts, he said. (Just like those untrustworthy Russian emigre scholars had been saying all along!)
Sadly, Supreme Court Chairman Terebilov’s moral position was fast deteriorating. He himself was being accused of fiddling with court records. Just a few months earlier, Glasnost, the dissident Russian journal, reported that Terebilov had ordered the destruction of Soviet legal files dating from the bloody 1930’s to the 1950’s at the rate of 5,000 dossiers a month! (Before he became chairman of the Soviet Supreme Court, Terebilov had been Minister of Justice.)
For decades, a school of Western specialists in Soviet law (or “Marxist-Leninist jurisprudence”) have been insisting that a definable rule of law operates in the Soviet Union. One of the early pioneers of this lie, along with his contemporaries Beatrice and Sidney Webb, was Harold J. Laski, the British historian and Labour Party chairman in 1945. He described one of the most odious of Stalin’s henchmen—Andrei Vishinsky, Stalin’s prosecutor during the purges of the 1930’s—in these words:
I found [Vishinsky] a man whose passion was law reform . . . He was doing what an ideal Minister of Justice would do if we had such a person in Great Britain—forcing his colleagues to consider what is meant by actual experience of the law in action. He brought to the study of the law in operation an energy which we have not seen in this country since the days of Jeremy Bentham.
What does a rule of law mean? Everything that the proposed Thesis Section Eight covers, meaning that none of these protections existed in the Soviet past nor do they exist now. If they did, what would there be to reform?
Some Western experts argued that, while the Soviet version of the rule of law was hardly identical to its Western counterpart, still there were points of similarity. But it took Gorbachev’s glasnost to make a mockery of this melioristic Western view of Soviet jurisprudence. And even now Gorbachev de facto parodies the idea of the rule of law.
The Central Committee’s Thesis Section Eight demands “strict observance of the democratic principles of the legal process.” But how can you have that in the absence of a democratic, constitutional system of government to turn proclaimed rights into practical rights? Who’s going to ensure the “strict observance?” The KGB, the Politburo, the Central Committee? Supreme Court Chairman Terebilov? And who will dare, in the face of inevitable reprisals, to ensure that the “presumption of innocence” principle is not violated by the KGB?
On July 21, 1988, for example, the New York Times reported that Armenia’s best known dissident, Paruir A. Airikyan, had been stripped of his citizenship by the Presidium of the Supreme Soviet and expelled from the country. He had been arrested in March and charged with fomenting ethnic unrest in connection with the Nagorno-Karabakh campaign. The Presidium took this action, said the government announcement, for “actions discrediting the high title of a citizen of the USSR and harming the prestige of the Soviet Union.”
In any country where there is a rule of law, a citizen (or even a noncitizen) could legally fight such a decree. His attorney could appeal the finding, or go to a court and get a stay of execution of the Presidium order. The defendant could sue for a trial on the facts, or insist on his right to appear before the Presidium, with counsel or without. What happened to Aleksandr Solzhenitsyn, Vladimir Bukovsky, and other Soviet dissidents in the Brezhnev era of “stagnation” (as it is now called in the USSR) has happened to Airikyan in the Gorbachev era of glasnost.
There is no rule of law in the Soviet Union because there is neither an enforceable constitution nor an independent judiciary to guarantee the doctrine of constitutionalism, defined by Alexander Bickel as “a special kind of law which establishes a set of pre-existing rules within which society works out all its other rules from time to time.” Constitutionalism cannot exist until the monopoly power of the Soviet Communist Party is dismantled.
What there is today in the Soviet Union and what will continue to exist even under Gorbachev the Reformer is what is called “instructive law” or “secret instructions.” Invisible and unaccountable to the public, this system of party directives to operational agencies affords party officials, nomenklatura appointees and their friends—in other words, the ruling class—the protection of the “law” denied to ordinary citizens.
What passes for the rule of law are really instructions handed down from top officials to judges and prosecutors as to how specific cases are to be decided. There is no appeal from these instructions, which have been described by Professor Robert Sharlet of Union College as representing “legal arbitrariness.”
Writing in January, shortly after Gorbachev’s ascension as Party General Secretary, Professor Sharlet predicted that “if past experience is any guide, odds are that many years will pass before legality overcomes political expediency in the Soviet Union.” And in 1988, his prophecy has yet to be disproven.
Basing his findings on a spate of books dealing with Soviet law. Professor Sharlet says that “party leaders . . . frequently adopt a cavalier attitude toward their own laws.” He writes:
The Politburo, which has historically defined itself as a meta-juridical institution above and outside the law it creates, routinely bypasses budget law, for example, in order to procure funding for unforeseen exigencies, and it regularly orders or permits ad hoc amendments to planning law in order to overcome unexpected difficulties.
In the meantime, however, we have Thesis Section Eight, a tacit admission that some seven decades after the Bolshevik Revolution the Soviet Union is still without the rule of law and that the Communist Party leadership, wealthy in privilege and in property, is still beyond the law. As for Thesis Section Eight and what happened to it at the Party Conference—don’t listen to what they say, but watch what they do.
One of the most influential figures in the Soviet Union and the leading proponent of Soviet civil law was Olympiad Solomonovich Ioffe, a man who had published 30 books, some of them to be found in Western law libraries. He was for a long time head of the civil law faculty at the University of Leningrad. Ioffe was probably the most popular teacher at the law school, according to Logan Robinson, a Harvard Law School exchange student whose experiences were published in 1982 as An American in Leningrad.
Ioffe was well-known to Western scholars who specialized in Soviet jurisprudence. He was a true believer who in his 40-year career had played a major role in the post-Stalin drafting and recodification of Soviet civil law. He justified Catch-22 regulations in Soviet civil law no matter how unfair they were in practice, and he derided students, especially foreigners like Robinson, who had the bourgeois audacity to criticize such regulations.
Ioffe, the true believer in Soviet jurisprudence, finally found it necessary to emigrate in 1981 after a short career as a refusenik. Upon his arrival in the US, Olympiad Solomonovich Ioffe was appointed to the Harvard Law School faculty. Sic transit gloria legis Sovietici.