Soviet Law

How to Draft a Soviet Law

Iago Khvichia
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One may think that drafting a Soviet law is an easy task. Not at all. Neither high qualifications nor a good education is sufficient to that end. The process is much like a good art school graduate dreaming about creating a masterpiece. Something much more is required to achieve this "great" goal – the person drafting it must be of the right kind and have an internal hunch, because the difference between "masterpieces" and ordinary, good paintings lies in small details.

To illustrate the above contention, let me quote a truly Soviet norm from a currently operational law:

"A person having committed an administrative offence shall be released from administrative liability and the materials [of the case] shall be passed for consideration to a burlaw court, a public organization or a labor collective, provided that, taking into account the nature of the administrative offence and the personality of an offender, it is deemed appropriate to apply towards an offender [as punishment] a measure of public influence," - Article 21 of the Code of Administrative Offences of Georgia (effective wording, adopted in 1984).

It is a perfect norm – a humane one, concerning the release from liability. Moreover, it contains something that will evoke pleasant memories among some of our citizens, reminding them of the "great" old times... those times when one could use "public influence" to rebuke, even scold, small scale re-sellers (who were deemed offenders in the Soviet Union) or people with "dissenting" opinions in the above mentioned burlaw courts.

To the displeasure of such nostalgic people I will say that those memories are no longer true. This norm is no longer backed by either burlaw courts, public organizations or labor collectives – each of these have disappeared, much like the "good" old times, the Soviet Union and the friendship with brotherly Russian people. The process of scolding has become more complicated...
In other words, the memories evoked by this norm are illusive and unrealizable. Illusiveness and the inability to be realized are characteristic qualities of Soviet laws.

Reading the above quoted norm, an observant person will notice that the Soviet Union was distinguished by, amongst other things, its specific legislation – it was so specific that after its disintegration Soviet lawyers became "extinct."

They have not passed away, but their qualifications reached a point of irrelevance whereby their "heartbeat" can no longer be felt (it is virtually impossible to name three Georgian lawyers of Soviet vintage in civil or administrative law who managed to retrain themselves and continue practicing).

A new generation of lawyers soon got down to creating Soviet-style legislation with doubled efforts (even after the reception of Western legislation they have "managed" to create legislative acts "reeking of a Soviet aroma").

The demise of those lawyers has not, however, led to a slackening of the drafting of Soviet laws. In fact, a new generation of lawyers soon got down to creating Soviet-style legislation with doubled efforts (even after the reception of Western legislation they have "managed" to create legislative acts "reeking of a Soviet aroma").

For illustration, let's look at a legal norm drafted in the post-Soviet epoch:

"Licensing for foreign investment may be denied when the realization of the investment infringes on the national, historic, religious, moral, ethic and cultural values of people living in the Republic of Georgia." (Article 17 of the Law of Georgia on Foreign Investments; adopted in 1995).

Let's compare that with a norm of the Soviet times:

"In exercising their rights and performing responsibilities, citizens and organizations shall observe laws, respect the common rules of socialist life and the moral principles of a communist society" (Article 5 of the Civil Code of the Soviet Socialist Republic of Georgia).

One more component of Soviet law is eye-catching – the imposition of restrictions based on the premise of defending moral values.

Restrictions are not uncommon for Western legislation either – for example, considerations made for ensuring security. However, true Soviet law has a specific reason for imposing restrictions –Soviet law often recognizes human rights, but immediately points to a restriction or a certain repressive measure that can be applied should these rights be "abused." At the same time, a Soviet lawmaker understands that it is better to initially establish such restrictions as temporary measures, which would be valid for a certain period. Thereafter, once people have got used to those measures, they can continue to be applied. Besides, when drafting a law one should sense the bright aim it pursues, it might contain a certain element of abstraction to be more convincing. This element must be either overtly or indirectly discernable from the text (for example, the aim of building communism, to establish a dictatorship of the proletariat, or to restore justice).

Let's consider an example:

"The law protects civil rights, except when these rights are exercised against the purpose which these rights are assigned in socialist society during the period of building communism." (Article 5 of the Civil Code of Soviet Socialist Republic of Georgia; 1964).

Let's compare this with a recently adopted law:

"After the local elections of 2014, all civil servants employed at local self-government bodies shall be considered as acting public servants and they will continue to exercise their respective powers until the corresponding positions have been filled [by employees selected] through a competition." (Article 1344 of the Law of Georgia on Public Service, operational wording, February 2014).

The conclusion one can draw is that in order to achieving a generous aim, Soviet law deems it acceptable to restrict the rights of any number of people.

Soviet law must make it clear that whatever the actions of the leading comrades, these are being done upon the mandate of the people, in accordance with the will of the people and towards a generous aim.

As comrade Lenin said regarding local executive committees, "an executive committee is an authority which is clear for everyone, which does everything in front of the masses, is accessible for the masses, directly emerges from the masses, and is the body expressing the will of the masses."

It is clear that this maxim would never be neglected and so various committees and councils adopted different laws to legalize the process of dekulakization and repressions – all done, of course, in accordance with the will of the people.

Let's look at yet another law adopted recently with the aim of "executing the people's will."

".... after the parliamentary election of October 1, 2012 thousands of Georgian citizens, foreigners or stateless persons have filed complaints to the executive authorities and Parliament of Georgia stating that in 2004-2012 they were unlawfully and/or unjustly convicted of criminal offences....

".... it is the intention of the Government of Georgia to restore law and justice with respect to all those persons who were convicted unlawfully and/or unjustly, for which reason it is necessary to design some additional and temporary legislative mechanisms..." (The preamble of the Law of Georgia on the Temporary State Commission on Miscarriages of Justice; 2013).

Yet another quality of Soviet legislation has been revealed – anything (human rights, an earlier law or a court ruling) can be restricted, changed or overturned if done in accordance with the will of the people and upon their demand.

When drafting Soviet law it is useful to master one specific technique that enables lawmakers to convince people that those universal rights, which people cannot be denied, appear to have been granted to the people by the lawmakers.

For example, we can boldly write in a law that:

"A partner may sell or bequeath his/her own share" (Paragraph 1 of Article 46 of the Law of Georgia on Entrepreneurs; 1994 wording).

Or can formulate it like this:

"The acquisition of one's own share shall be prohibited" (Paragraph 6 of Article 46 of the Law of Georgia on Entrepreneurs; 1994 wording).

Looking at the financial and economic spheres will also be useful:

"Personal savings of citizens, the own means of economic partnerships and societies, as well as the means left in the economic stimulation funds of enterprises, shall be used for the purchase of state enterprises. For the same purpose, a buyer may also use borrowed and other monetary means" (Article 7 of the Law of the Republic of Georgia on Privatization of State Enterprises in the Republic of Georgia; 1991).

If the number of such "rights" are too many, we can even implement painful "reforms," for example, abolishing some fundamental rights (in the Soviet Union, the right to superficies was abolished in the late 1940s). If people voice their protest, we can change the content of a right whilst maintaining its form and title (for example, the amount of rent shall be set by a state entity (Article 143 of the Housing Code of the Soviet Socialist Republic of Georgia)).

What's more important, dreaming about true Soviet law will prove futile if the sale of land plots is allowed. Of course, you will still have to compromise to some extent – after all, even the legislation of Soviet Georgia recognized private property (Article 91 of the Civil Code of the Soviet Socialist Republic of Georgia), but beware of allowing foreign citizens to exercise their ownership rights on Georgian land.

Naturally, the above list is not exhaustive. Soviet legislation has numerous other specific qualities; moreover it is being perfected and becoming increasingly difficult to recognize – there are many specialists in this genre and, consequently, attitudes vary... However, we hope that this article will be of some help.

P.S. Bear in mind that true Soviet laws are not printed from a computer; please honor tradition and use a typewriter.

 

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