Thursday, 12 February 2009

Socialists on the Criminal Justice System – Nikolai Bukharin and Evgeny Preobrazhensky

This is the fifth piece in my series examining writings by various socialists that relate to the criminal justice system. This piece will examine the ninth chapter of their ABC of Communism, entitled “Proletarian Justice”. The chapter can be found online at the Marxist Internet Archive at

The chapter begins with a brief view of the authors summary of justice under capitalism. Their summary of this institution is summed up in this quote
“This estimable institution is carried on under the guidance of laws passed in the interests of the exploiting class. Whatever the composition of the court, its decisions are restricted in accordance with the volumes of statutes in which are incorporated all the privileges of capital and all the lack of privileges of the toiling masses.”
They do also briefly discuss the effect of allowing the working class some say in deciding judges or judgements through elections and go on to say, “Thus originated trial by jury, thanks to which legal decisions made in the interests of capital can masquerade as decisions made by the 'whole people'.”
Needless to say, I find their take on this a little one sided as it doesn’t take into account the fact that even illusory elements of popular control over the justice system are concessions wrung from capitalism.
Bu this is not the bulk of the work, which is really an attempt to argue for a different vision of a justice system and also to defend steps taken in this direction by the Soviet regime. Indeed, in the very next section of the chapter they explain why they have not taken up the demand of the Second International “…for the popular election of the judiciary…”. They explain that such a position isn’t possible under the Soviet regime as they are enacting laws to eradicate capitalism, they can “…hardly accept the representatives of capital or of the landed interest as administrators of the new laws…” and thus they characterise the courts of the workers state as thus
“In the old law-courts, the class minority of exploiters passed judgement upon the working majority. The law-courts of the proletarian dictatorship are places where the working majority passes judgement upon the exploiting minority. They are specially constructed for this purpose. The judges are elected by the workers alone. The judges are elected solely from among the workers. For the exploiters the only right that remains is the right of being judged”
They then continue the attack on capitalist justice, stating
“In bourgeois society the administration of justice is an exceedingly cumbrous affair. Bourgeois jurists proudly declare that, thanks to the gradation of lower courts, higher courts, courts of appeal, and so on, absolute justice is ensured, and the number of miscarriages of justice reduced to a minimum.”
But this isn’t really the case they go on to explain. The huge about of bureaucracy requires a lot of expense by those attempting to pursue legal action and thus “Well-to-do persons, being able to command the services of highly paid lawyers, can carry a case from court to court until they secure a favourable decision; whereas a plaintiff who is poor often finds it necessary to abandon his suit on grounds of expense.”
They then go on to explain how they have tried to speed up court processes to make them accessible to workers. However, they explain that these courts are still developing and are not developing as fast as they like due to the civil war that was occurring at that time.
This leads neatly into the next section which discusses the revolutionary tribunals. As they state, the popular courts are seen by the Communist Party as the normal courts of a workers state. The revolutionary tribunals in their view are a supplement that has been made necessary by the brutality of the civil war. They argue that their function is solely to deal with the enemies of the revolution, and in their view that likens them to the Red Guard more than the courts, which is why they are under the control of the Soviets rather than being directly elected by the workers.
They then move on to discuss punishments in a workers state. Firstly they briefly justify the existence of the death penalty at that time by the existence of the civil war, and then they move on to arguing that the workers courts are much more lenient than capitalist ones. They go on to ascribe this difference to
“When we come to consider the punishments inflicted by proletarian courts of justice for criminal offences which have no counter- revolutionary bearing, we find them to be radically different from those inflicted for similar offences by bourgeois courts. This is what we should expect. The great majority of crimes committed in bourgeois society are either direct infringements of property rights or are indirectly connected with property. It is natural that the bourgeois State should take vengeance upon criminals, and that the punishments inflicted by bourgeois society should be various expressions of the vengeful sentiments of the infuriated owner.”
They note that whilst there are still elements of ‘professional criminals’ around, they see this as due to the later becoming engaged in this behaviour under capitalism and therefore seek not to punish as if this is their fault. They note the shift from pure prison sentences (enforced idleness) to enforced social labour, which they see as necessary to restore the damage done to society by the ‘criminal’. The various elements of the system, they note, are geared “in such away as to give the offender full opportunities for moral regeneration.”
The final section attempts to look at the direction that the justice system will move in the future. To start with they argue that things thrown up to deal with the civil war specifically (revolutionary tribunals, red army, extraordinary commissions etc.) “are transient” and “will no longer be needed” after the end of the civil war.
They go on to argue that the worker-elected popular tribunals will remain until such a time as classes have been abolished – in the case of the ruling class they see this as a fairly short perspective, in the case of the peasantry a longer period. Whilst these class divisions still exist then they argue that there will still be conflicts that need to be brought before the court. Additionally, they argue that “…anti-social offences arising out of personal egoism, and all sorts of offences against the common weal, will long continue to provide work for the courts.”
Ulimately they conclude that
“As the State dies out, they will tend to become simply organs for the expression of public opinion. They will assume the character of courts of arbitration. Their decisions will no longer be enforced by physical means and will have a purely moral significance.”
The piece is somewhat simplistic and doesn’t really get into some of the more interesting details of the justice system in the early period of the revolution. But then it is a piece trying to explain in simple terms the ideas of the Communist Party, and we really shouldn’t explain much more from it than that. Interestingly though, there is a small list of further reading on the topic that the authors suggest, noting that works on this topic by socialists are ‘scanty’. This piece does, however, serve as a giving a good indication of the hopes the Communist Party associated with its justice system and the justifications they gave for some of how it functioned, and is thus valuable for those reasons.

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