Anatolii Lunacharskii, Revolution and the Court. December 1, 1917
Original Source: Pravda, No. 193, 1 December 1917.
A society is not a unified whole. There are classes with antagonistic interests and hence with diverse mentalities and legal consciousnesses. These classes are struggling in the womb of society. On the one hand, by means of the power of the state, the ruling classes secure for themselves privileges and punish those who encroach upon these privileges in conformity with their own law. On the other hand, the ruling classes infuse into the consciousness of the people a belief that their judicial order is a manifestation of “Justice,” that their judicial institutions are the basis of all social life, and that any tampering with these institutions may bring about the destruction of the entire culture.
In addition to introducing a higher economic order, the new class in the capitalist system, that is to say, the proletarian class, also promulgates a law that is incomparably higher than the decaying, ossified law of the old system-a law that served the usurpers and exploiters as a watchdog.
As long as this new class is suppressed, however, as long as it remains a victim of the law made by its masters, it is, naturally, deprived of the opportunity to formulate its own legal consciousness; it cannot create its own ideal of court and legal code in a vacuum. Any attempt of a socialist legal theorist to draft a project of a code of law for the future system in advance would be nothing but an interesting science fiction like Wallace’s and Bellamy’s novels. To be sure, such attempts have been made. Anton Menger, a talented quasi-bourgeois and quasi-socialist, has gained quite a reputation from such attempts.
All such attempts are, nevertheless, merely a theoretical game. Each class creates its law in fact only when it makes use of its power, when it shapes social reality to its own image, i.e., in conformity with its fundamental class interests, on the one hand, and the existing conditions, on the other. But one class, even a class that attained political power through the means of a harsh revolution, is not capable of creating a new world immediately. According to Marx, this world is born covered with a membrane of the old social texture.
This should not be interpreted to mean that the revolutionary class should move slowly and ceremoniously against the old order. Its task is to destroy and to create. The revolutionary class brings a new legal consciousness (Le., the presentiment of new juridical forms and relationships) which corresponds to the new economic conditions created by the revolution. Furthermore, the revolutionary class brings a new juridical consciousness as well as a new concept of good and evil. The revolution itself is a fact of counterposing a new law to the old one, an act of a popular mass trial over the hated system of privilege. The creation of a new civil and criminal law, a new state structure, new organs of power, judicial organs included, strengthens the revolution and at the same time formulates and materializes the new revolutionary legal consciousness, which has been brought forth by the new class interests and the new economic planning,
On October 25, the greatest revolution ever known was accomplished. For the first time, the working masses have not simply won (this happened previously) but, unlike the March of 1917, they have preserved the fruits of victory in their own hands. Can one then expect that, having accomplished the revolution, having become the political and military masters of our country, the proletariat and the peasantry will tolerate the old judges and the old laws, as did the Kerenskii pseudo-revolutionary government? Can we expect that the new master of the situation, the working people, would tolerate bourgeois verdicts that had been handed down in the spirit of capitalism and in the name of a government overthrown and destroyed by these working people? Could we expect the working people to allow the Senate to make laws in the name of the overthrown regime?
Revolution was accomplished for the purpose of creating a new law and the opportunity for a new legal consciousness to be translated into reality. This is why a victorious people should immediately start building new courts and a new code, building them in practice-at first gropingly-guided by their revolutionary consciousness, but gradually formulating a new law and crystallizing new, fine, and firm forms of a true people’s court.
To destroy the old court-the weapon of our enemy-and our fetters, is the first duty of revolutionaries; natural fighting spirit directs them toward this. Then to outline the foundations of the new court, even if in a most general way. Thirdly, to assign the remaining tasks to the creativity of the revolutionary people.
Like the Roman world, the bourgeoisie, which took root in feudal society, stood firmly for the absolute recognition of private property. Hence it was able to replace the law of the old regime with the available Roman law, only slightly modified to new conditions. The proletariat cannot choose such a path. The proletarian movement is a progressive one, not retrogressive; there is no precedent in history for a proletarian law. Since under capitalism the proletariat was deprived of the opportunity to develop its legal creativity, it has no choice now but to learn how to adjudicate pragmatically and create its own customary law, deducing it from the sources of the same spiritual movement that led the proletariat to the victorious revolution and that reflects its class character, its growth, and its significance in the social life. The Council of the People’s Commissariat, abolishing the czarist and bourgeois courts, urges the Russian working people toward such creativity.
Let the bourgeois jurists argue that what we have said today, and what the people will do tomorrow, is unheard of, and, from the judicial point of view, monstrous. It is inadmissible only from the viewpoint of a stagnant pseudo-science that constitutes the artificial foundation and justification of the inhuman law of its masters. Even some honest and talented bourgeois scientists, who have sought to ground their juridical theories in the true sciences of biology, psychology, and sociology, have spoken our language long before our revolution as though foreseeing it.
We urge our enemies, before they begin criticizing us, to read a few paragraphs from the writings of the theorists whom they recognize as authorities in the field. These paragraphs sound as though they were written yesterday, and as though they were written specifically in defense of the type of courts that we are forced by the existing circumstances to create. We also urge our friends to listen to what such true scientists, though not “Bolsheviks,” have to say about the revolutionary creation of law.
Thus, Berolzheimer speaks about an entirely new law which, though it appears in the form of a demand for a new justice, is brought forth by the fourth estate. He also speaks about the impending transition period, “in which, in an intense conflict, the last remnants of the old, disappearing system and the first elements of the new system will meet.”‘ Menger has even made an attempt to formulate this law, which is rooted in the consciousness of the new rising class, and which will be materialized in a new, popular workers’ state.
Also, Jellinek, a master professor, quite flatly recognizes the existence of law that is engendered in the womb of the bourgeois state, and that is not produced by means of juridical methods. For example, he speaks about “norms,” which on the social, though not judicial, level function as written law, despite the fact that they were not created in a formal legislative order.
Knapp, a student of the great Feuerbach, has grasped quite distinctly the difference between the new and as yet unrealized law (under whose banner the new class accomplishes the revolution in order to concretize this law) and the dominant, written law. This jurist writes the following concerning the revolutionary epoch: “The problem of right is frequently decided in the revolutionary street battles or in hardships of a world war; the right always appeals to an objective might, which alone can secure the external right.” This is exactly the problem we are confronted with: following the transfer of power into the hands of a new class, we must transform the inner legal consciousness into a young, mighty law.
Professor Petrazhitskii, in whom official Russian science takes pride as one of the greatest authorities in Europe, has described most vividly the relationships between the “positive,” i.e., written law, and the “intuitive” law of the new social forces, i.e., their ideal of justice. To quote Petrazhitskii, “The simultaneous existence and functioning of the positive (written) law with the intuitive law (with the ideal of the new classes) is possible only if there is a general agreement between them; if the discord reaches a certain degree, then the disintegration of the positive law becomes inescapable; in a case of opposition, the disintegration is brought about through a social revolution.” Such a revolution took place on October 25. It would be beyond comprehension if bourgeois positive law continued to exist by some miracle even after the Revolution-especially since the Revolution had been aroused by the craving to destroy it!
Petrazhitskii describes in detail how the new legal ideal grows among the lower classes … under the influence of changing conditions. He states that the sense of justice becomes even more offended when it encounters opposition, then “it reaches a fanatical hatred of the existing order with its laws, and ultimately it arouses an explosion-the Revolution.
Petrazhitskii is not frightened by even such manifestations of the new, popular, and revolutionary legal consciousness, which, of course, will never accompany the proletarian revolution: “However repulsive the guillotines of the Revolution and the destruction of the cultural centers are, they are an inescapable result of the insulted popular sense, a spontaneous vengeance for the suppression of rights, i.e., people’s inner legal consciousness.”
The conclusion is obvious: the people engender a new intuitive law, which calls, first of all, for the destruction of all organs of the old law that are perceived by them as complete injustices. This intuitive law (reflecting class interests of the masses, and corresponding to the new rising social structure) can be distinctly formulated only in the process of a direct, revolutionary legal creativity. Such is the law of revolution, especially great revolutions that have no precedents.
Down with the courts-mummies, with the altars of the dead law! Down with the judges, vampires, who are ready to drink the blood of the living on the fresh grave of tyrannical, capitalist rule! Long live the people who create a new law in their courts, which are boiling and fermenting like a new wine: a just law for all, a law of the great fraternity and equality of the workingman!
Source: Michael Jaworskyj, ed., Soviet Political Thought; an anthology (Baltimore: Johns Hopkins Press, 1967), pp. 52-56.