Andrei Vyshinskii, Proletarian Justice. 1925
Original Source: “Eshche raz o sotsialisticheskom pravosoznanii,” Rabochii sud, No. 5-6 (1925), pp. 196-200.
We are being told that the laws made by the bourgeoisie (which holds the state power in its hands) do not serve its own interests but the general interest; that they do not protect its own good but the general good; that they do not express its own will but the general will. We know, however, that in fact it is not so. All laws in the bourgeois state are bourgeois laws; they are made for the purpose of protecting the bourgeoisie and are applied in a cold and calculated way with the aim of safeguarding its interests.
We know that no judge in a bourgeois state would remain even an hour in his judicial chair if he decided to adjudicate according to his consciousness rather than according to the desires of his masters, the bourgeoisie. And, of course, it is quite natural that the bourgeois spirit reigns in bourgeois courts; that bourgeois judges make decisions in a bourgeois way; that their understanding of law (i.e., legal consciousness) is bourgeois throughout.
The other way around would be incomprehensible. For we know that law is merely an expression of economic relations. In The Communist Manifesto, Marx stated that “the ideas of bourgeois society are an offspring of bourgeois production and property relations.” In another place (Critique of Political Economy) Marx pointed out that “legal relations are rooted in the material conditions of life.” Finally, in his famous speech to a jury in Cologne (1847), Marx stated: “Society is not based on law. This is a fantasy of jurists. On the contrary, law should be based on society.”
The bourgeois society is bourgeois property. And bourgeois law is the law protecting this property. Whoever fails to grasp this, and thinks of playing childish comedies with so-called universal justice, has also failed to understand the fact that, to a bourgeois, justice signifies his property and his profit. Consequently, the “legal consciousness” on which the bourgeois judiciary is based is nothing but a bourgeois consciousness.
For a long time the classes have been opposed, one to another. But only recently the proletariat succeeded in advancing its own law against the bourgeois law, its own socialist legal consciousness against bourgeois legal consciousness. And, having advanced its socialist legal consciousness to the forefront of the struggle, the proletariat uses it as an active and creative force. The principle of being guided by the socialist legal consciousness in making judicial decisions was accepted immediately after the creation of the Soviet government and the Soviet Court.
… What is the meaning of “the socialist legal consciousness”? As we have seen, neither of our decrees provided a definition. But such a definition suggests itself and can be reduced to the following: The Proletarian Court is a court of the proletariat that seized governmental power by means of arms. It seized this power for the purpose of suppressing the resistance of its enemies and for bringing about socialism and communism as soon as possible.
The proletariat is overcoming the resistance by using all the means at its disposal, including such mighty means as the court–court justice. Comrade Bukharin stated the following in “The Communist Program”: “In the hands of the working class, the state power is an ax that is being held ready against the bourgeoisie.” The blade of this ax is the court, which should act in conformity with the state requirements of the victorious proletariat.
But where do we find the yardstick for judging this interest? How do we know whether a judicial decision is in conformity with that interest? The sole source, yardstick, compass, is the class consciousness of the proletariat. The class consciousness of the proletariat has been worked out in the process of the protracted, historical struggle with the bourgeoisie. It has been refined and sharpened on the solid stone of scientific socialism, which revealed to the proletariat not only the secret of its birth but also the secret of its victorious development. The class consciousness of the proletariat, based on the scientific foundations of socialist theories, is pointing out bow to conduct the struggle, what means to use, and how to use them. The socialist (or communist) legal consciousness is, therefore, the recognition of the necessity to act, when discharging justice, in a way conducive to ( 1 ) the revolutionary proletariat dictatorship, (2) with due consideration to the class struggle, and (3) in the name of communism.
Consequently, when a judge says “I made such a decision instead of another,” and adds, “because it is conducive to the dictatorship of the proletariat, to the class struggle, and to communism,” then we conclude that his action was guided by the socialist legal consciousness.
Each Communist knows what generates crime in contemporary society and who (i.e., which class) supplies the offenders. Crime is generated by misery; by capitalist oppression; by corruption and oppression by the capitalist society. The working class also supplies offenders, because it has been plundered and corrupted by capitalism.
Consequently, when an offender from the working class appears before the Soviet Court, the socialist legal consciousness should suggest to the judge both the proper approach and the right decision. For example, the law states that theft is punishable by five years of imprisonment. But, in conformity with the socialist legal consciousness, instead of sentencing the offender to prison, the judge will send him to work in a factory, giving him a suspended sentence.
That is why “the socialist legal consciousness”-as the fundamental principle underlying the Soviet judiciary-does not coincide with the existing codes and statutes and yet will remain in full force and have significance, in spite of the written law.
Source: Michael Jaworskyj, ed., Soviet Political Thought; an anthology (Baltimore: Johns Hopkins Press, 1967), pp. 200-202.