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Law and practice

The representational and performative nature of socialist and democratic discourse was also a product of resilient sociocultural practices in relations between the state and society71: among others, reliance on informal, personalized practices rather than on legal norms. Historically, the latter only slowly established themselves both in the elite, bureaucracy, and peasantry. The model of "the supremacy of the ruler to the law [as] an attribute of monarchical rule in Russia”72 can explain such traditional negligence of the law. Only in the mid-nineteenth century did the new legal ethos emerge with its recognition of the importance of law in Russian judicial administration, but among the peasantry customary law continued to dominate.73 These fragile foundations of legal consciousness could hardly be strengthened in Soviet practice when the law had been rejected in the Revolution, when law contradicted established informal practices,74 and when implementation of one law contradicted another law.75 The persistence of informal practices (blat, for example) was another side of distrust of institutions at the bottom of society.

“Revolutionary” suspension of law during the Civil War period and the constant resort to extrajudicial measures later did not enforce legality in the bureaucracy or legal consciousness in the population and ultimately contributed to poor manageability of the state apparatus. As P. Solomon notes, “the antilaw tendency in Soviet legal thought,” so pronounced in the 1920s, “had always appealed to the hearts and minds of many Party officials.”76 The 1920s and 1930s saw a persistent pattern of cessation and reemergence of the extrajudicial power of the political police toward specific groups and offenses. On the one hand, the suspension of law accelerates and simplifies procedure; on the other, it conflicts with a ruler’s need to control the state machinery. A clear legal framework adds legitimacy and stability to the system of power77 as the Constitution of 1936 projected. The turn to a traditional legal order in the mid-1930s, in order to revive the authority of law and enforce centralization and manageability, was inconsistent and was finally interrupted by the extralegality of the Great Terror. Tellingly, the Prosecutor’s Office - the institution designed to oversee compliance of the law with the Constitution - by its own hands waived the constitutional demand of the prosecutor’s sanction on arrest. On August 7, 1937, Prosecutor A. la. Vyshinskii issued the appropriate instruction to the legal agencies: “There is no need to follow the legal procedure and preliminary sanction on arrest.”78 It was restored in November 1938. It was common practice for laws to be ignored by implemented

Nominal democracy in Stalinism 269 at the local level (the cases are too numerous to be presented here): churches were often closed without the required sanction of the local soviet and the TsIK; when the Politburo ordered stopping repressions “immediately” starting November 16, 1938, shootings in NKVD cellars continued even during December.79 Both local executives and the current legislature commonly ignored the law.

The gap between current laws, instructions, and the Constitution was one of the mechanisms of the nominal nature of democracy in Stalinism. Just before his quiet cancellation of the constitutional norm of the prosecutor’s sanction for arrest on August 7, 1937, Vyshinskii stated:

Soviet state justice is characterized by the unity and coherence of all its parts. In our Constitutional justice, there is no contradiction between its individual institutions, and there is no contradiction or even the slightest divergence between the principles it proclaims and their practical implementation. ... The Constitution of December 5, 1936, and the electoral law of July 9, 1937, are in complete unity.80

Constitutional legal norms authorized by government bodies were time and again degraded or modified by numerous often secret instructions and decrees issued by the NKVD, the prosecutor, or the Party. Their instructions bent the Constitution to meet the convenience of one or another agency. The Tatar ASSR (Autonomous Soviet Socialist Republic) NKVD chief questioned Moscow in January 1937:

For us, the line to follow in our conduct [in relation to exiled kulaks] is not clear in connection with the new Constitution. We ask you to clarify if all previous orders of the USSR NKVD on this subject remain in effect, or if we should rely on the corresponding articles of the Constitution and apply them to those people as citizens of the USSR enjoying all rights as citizens.81

We can see the answer to this question from practice: when, after the 1936 Constitution, the NKVD prioritized its own decrees and Politburo directions. Soviet polity often lived according to informal practices and normative acts.

Deportation of the kulaks in the collectivization and construction of special settlements was a good example of this incongruence. Legal formalization of the repressions lagged behind their implementation. First, extrajudicial deportations started and only afterward did the construction of the quasi-legal foundation for them begin. Many peasants were deported without trial or formal verdict and did not know their terms:

We do not consider ourselves to be deprived of rights according to the court decision, but only by the NKVD [power], because we did not hear any sentence, any trial, but they simply exiled us to another area and that’s it.82

As Lynne Viola and Sergei Krassil’nikov wrote, the mass banishment during collectivization was conducted not by the judiciary but by Soviet administrative organs. According to the law, such an administrative procedure could inflict only individual (not family) deportation and only free (not forced) labor, and was limited to five years. The extraordinary practice of family deportation, with forced labor and no terms of exile, violated the law and created a legal vacuum around the question of subsequent liberation that in turn allowed authorities to manipulate the issue with bylaws and instructions according to their immediate needs.83

L. Viola and S. Krassil'nikov conclude: “Normative acts quenched the power of law.” The authors abstain from using the term “the legal status of spetsperese-lentsÿ' (special settlers or deportees), as the notion of legality does not reflect the reality of deportees’ conditions.

It was a quasi-legal procedure, with norms and rules not restricted by any legal or justice institutions, but established and changed by political authority. ... The law was an instrument in the hands of regime organs [NKVD] supervising the groups of special settlers.84

Restoration of their civil rights according to the 1936 Constitution was incomplete and sabotaged at every level of administration. It is worth noting that all instructions and laws (if carried out) were interpreted by implemented in favor of tightening and restriction rather than softening. We see a common practice whereby the Constitution, law, or decree granting rights to citizens was truncated by normative instructions or nonfulfillment on the local level. In this light, it is emblematic that Stalin rejected most popular amendments to the Constitution in 1936 by reasoning that they instead belonged to current legislation. They were supposed to be disregarded.85

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