Institute of Modern Russia

In the first years of its existence—or, as we say, at the dawn of its misty youth—Soviet criminal law was different. The main difference was that the law was couched in sociological, not legal, terms. A crime was defined as a “socially dangerous act,” a punishment as a “measure of social protection.” The offender was named a socially dangerous person, and to be declared this kind of person, it was not necessary for an individual to have done something bad: any past activity that looked wrong from the viewpoint of the new regime, or some sort of connection with the underworld, was enough to brand a person with this designation. It was a very convenient formulation, because the criminal law did not give a clear definition of what exactly was meant by unfortunate past activities or unseemly ties with the underworld.

The concept of guilt was proclaimed alien and therefore an unnecessary bourgeois criterion, and the fundamental principle of Roman law nullum crimen, nulla poena sine lege (no crime, no punishment without law; now enshrined in Article 7 of the European Convention on Human Rights) was heavily criticized and replaced by the principle of analogy, which was as convenient for the authorities as the definition of a “socially dangerous person.” According to the principle of analogy, if an act or omission was not designated under current criminal law as an offense, that still did not mean that a person could not be prosecuted for it. Here, the judge’s role came into play, as he had to find an offense in the existing Soviet legislation that was analogous to the performed actions (or failure to act). This rule then had to be applied in a particular case. Courts and judges were to be guided by the following order, issued in November 1917: “The local courts decide cases in the name of the Russian Republic and guide in its decisions and sentencing by laws of the overthrown government in the extent that they are not repealed by revolution and do not contradict revolutionary conscience and revolutionary sense of justice” (paragraph 5, Decree on Court Number 1)¹.

A year later, on November 30, 1918, the new regime created a legal framework intended to guide the action of judges, rendered as follows: “In all cases the People’s Court shall practice the decrees of the Workers’ and Peasants’ Government, and in the absence of an appropriate decree or incompleteness of such, it has to be guided by socialist legal consciousness” (Article 22, Regulation of the People's Court of the RSFSR, November 30, 1918)². Article 24, which declared that “the People's Court is not constrained by any formal proof and may decide, based on the facts of the case, to admit certain evidence or request it from third parties, for whom such a requirement is binding,” laid the foundation for infinitely broad judicial discretion and selective enforcement, which subsequently became recognized as a Russian brand, like vodka, the Russian matryoshka nesting-dolls, and the balalaika.

There is a theory that the Soviet jurists who assisted in the creation of the first regulations in the area of ​​criminal law were significantly influenced by a work called Criminal Sociology, which was published in the Russian Empire in 1908. This book was written by the famous Italian criminologist Enrico Ferri, a student and follower of the even more famous Cesare Lombroso. In his study of the causes of crime, Ferri moved significantly further than his teacher, who had studied mainly psychological and anthropological factors that have an impact on the motivations and identity formation of offenders. The focus of Ferri’s scientific analysis, besides psychological, anthropological, and physical factors (among which he included geographical features, weather conditions, and climate), was mainly social and economic factors. According to Ferri’s concept of social protection, the function of justice is to protect society from socially dangerous elements. Ferri denied such basic elements of criminal law as crime, punishment, guilt, responsibility, and the objective examination of a crime and strongly advocated for the personification of punishment, or the determination of a punishment based on the personality of the offender, not on the offense. A key role in determining punishment was played by the judges. In this view, criminals were considered a separate species of the human race³.

Recognized as one of the brightest representatives of the positivist school of criminology, Ferri was a mixed and contradictory figure. During the First World War, he headed the Italian commission charged with drafting a criminal code, the underlying ideas and positions of which were later incorporated into the Criminal Code of 1930, passed during fascism’s heyday in Italy. By the end of his life, he had become a devoted supporter of Benito Mussolini and considered fascism to be the fullest realization of socialism’s ideals. Soviet scientists (e.g., A. A. Piontkovskiy, in the collection of articles entitled Marxism and the Criminal Law) angrily rejected the assumption that Enrico Ferri’s theories had a significant impact on the formation of early Soviet criminal law⁴. They considered it shameful to acknowledge that the concepts and conceptual and categorical apparatus of Soviet criminal law were formed under the pronounced influence of the teachings of an odious bourgeois scholar, a Mussolini apologist who had actively collaborated with the Nazi regime. But you cannot hide the obvious: the resemblance was too close. Is it any wonder that Ferri’s Criminal Sociology was not reprinted in Russia for nearly a hundred years?

The concept of “revolutionary justice” also played a huge role in the formation of early Soviet criminal law. In the era of military communism, criminal law enforcement was placed almost entirely in the hands of quasi-judicial agencies, and not in the legal courts. Considering that the majority of these quasi-judicial institutions’ staff lacked a legal background, they had little trouble carrying out the tasks assigned to them: rejection of the concept of guilt, rejection of the principle of objective analysis of a crime, and the establishment of the principle of determining punishment on the basis of revolutionary consciousness, depending not on the offense but on the personality of the offender. Soviet jurists interpreted the extensive use of the analogy principle, the rejection of basic elements of criminal law, and the replacement of the rule of law with the revolutionary sense of justice not only as a response to the emergency situation of those years, but also as a result of the need to protect the young Soviet state against internal and external enemies.

Borrowing yet again from Ferri’s teachings, the idea of the ​​defensive nature of criminal law, designed to protect society from socially dangerous elements, gained a strong following in the practice of “revolutionary jurisdiction.” The replacement of the basic concepts and categorical system of criminal law with sociological definitions and the overall implementation of the principles of analogy and revolutionary consciousness was considered by Soviet jurists as a kind of prelude to the planned future extinction of criminal law (according to Marxist-Leninist theory, the law eventually has to become extinct, along with the state, the family, and other remnants of the bourgeois order). But expectations were not met, because the Soviet criminal law proved to be a surprisingly useful tool: the state appreciated it, began to enjoy it, and ultimately decided not to reject it any more. Judge for yourself: according to the Criminal Code of 1922, a person could be legally classified by a court as socially dangerous (1) “on [the basis of] his criminal activities,” (2) “as a result of abuse during his professional practice or in pursuing a trade or execution of office,” or (3) “on [the basis of] affiliations with the criminal environment” (v. 48–49); in the Criminal Code of 1926, –consideration of a person’s past activities was added to this list (Article 7). Then, couldn’t practically anyone be recognized as socially dangerous? In both Criminal Codes (the 1922 and 1926 versions), the analogy principle appears as one of the key principles of Soviet criminal law: “If any socially dangerous act is not provided directly by this Code, the basis and limits of responsibility for it are determined by the reference to the articles of the Code, which provide for the most similar crimes” (Article 16, 1926 Criminal Code of the Russian Federation). Consequently, any person could be recognized as socially dangerous for practically any reason. This created the perfect design for a totalitarian state: at any time, any person could be put in prison or shot, in full accordance with the law.

The elasticity and vagueness of the early Soviet criminal law not only provided a pseudo-legalization for the massacre of hundreds of thousands of innocent people. These standards also became a terrible weapon, the basis of a catastrophe waiting to happen, and they are still dangerous. The early Soviet criminal law, including the Criminal Codes of 1922 and 1926, formed the basis for a legal tradition of arbitrary interpretation and selective application of the law. These acts have made a huge contribution to the formation of a specific mentality of Soviet judges, transforming judicial discretion into judicial arbitrariness. And here, too, Ferri’s theories played a sinister role in establishing that the main function of justice is to protect society from socially dangerous elements. In the Soviet version of this concept, the basic function of justice is transformed into the prioritization of defense of the state over defense of its citizens—that is, defense against you and me. This approach became customary in our beloved empire: the state takes a boxing stance, and the judges line up around it, to protect it with the tenacity of Oorfene Deuce’s wooden soldiers. Such a system is good for the state, and for the judges. But, for us, it is much worse.

¹ http://www.law.edu.ru/norm/norm.asp?normID=1119194
² http://constitutions.ru/archives/6707
³ See Criminal Sociology by Enrico Ferri
⁴ See the article by A.A. Piontkovsky “Enrico Ferri: fascism and the positive school of criminal law” in Marxism and Criminal Law (Moscow 1929), pp. 111-131