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A picture of the cover of a new edition of a book by Andrei Vyshinsky, Theory of Legal Evidence in Soviet Law, in the Russian language.
Cover of Theory of Legal Evidence in Soviet Law by Andrei Vyshinsky. Photo by Peter Roudik.

Old Legal Theories Given a New Life

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The following is a guest post by Assistant Law Librarian of Congress Peter Roudik, who also serves as the foreign law specialist for Russia and former Soviet states. He has previously written blog posts on on a spring holiday for workers, the Soviet investigation of Nazi war crimeslustration in UkraineCrimean history and the 2014 referendumregulating the Winter Olympics in RussiaSoviet law and the assassination of JFK, the treaty on the creation of the Soviet Union, and assassinations of Russian ambassadors.

As a foreign law specialist, I periodically review new books from my assigned jurisdictions and decide what needs to be selected for the Library’s collection. I like this part of my job because it allows me to browse through newly published books and gain an understanding of what legal publishing in foreign countries is focused on.

When I reviewed a recently received shipment from our Russian vendor, one book in particular caught my attention. The name of the author was A. Ya. Vyshinsky. This name is very well known to people in Russia and other post-Soviet states. In the 1930s, Andrei Vyshinsky was the First Deputy Minister of Justice and the Prosecutor General of the Russian Federation and Soviet Union. He was a mastermind of all the major show trials that constituted the so-called “great purge” of the Soviet leadership and elite. In a foreword to a biography of Vyshinsky, Stanford professor Robert Conquest called him “a leading accomplice of Stalin’s crimes” because he turned these fake trials into “bloody and revolting farces.” An American cartoon in the Library of Congress’s collection pictured him as the “hatchet man” in these trials where, according to Conquest, “all charges were fabricated by the people who conducted the investigation.”

When I saw this name on the cover of a newly published book, my first thought was that the writer must be a full namesake of the infamous prosecutor. However, all doubts about the author’s identity evaporated when I looked at the title of the book. It said, Theory of Legal Evidence in Soviet Law.

Everyone who received their legal education in the Soviet Union is familiar with this fundamental work. Published for the first time in 1941, and then republished in 1946 and 1950, this textbook compiled all the basic principles of “socialist revolutionary justice.” Besides his prosecutorial work, Vyshinsky was the leading figure in managing Soviet legal scholarship. He headed the major legal studies institute, and edited the most influential scholarly law journal.

As a Russian legal scholar explains, this book was declared one of “the classics of Soviet jurisprudence.” It is full of citations to the writings of Marx and Lenin and with critique of foreign publications. It states that “the Soviet court is not a research lab required to establish truth through verification and confirmation of all available evidence.” Instead, its task is to decide on the probability of a crime having been committed based on accepted evidence. (Vyshinsky, at 230.) The evidence should allow the court to make a “right decision that would be based on the socialist ideological position of judges.” (Id. at 267-268.) According to Vyshinsky, the investigation and the court shall decide what is useful for making a “right decision” and consider the evidence that would serve this purpose. (Id. at 270.)

Another major idea of Vyshinsky’s theory is that the defendant’s statement, especially in cases when a crime was committed against the state, should be regarded as the most important evidence. (Id. at 302.) Relying on a defendant’s confession, the prosecutor could extract from the statement given by the accused person the content that would fit the position of the prosecution. (Id. at 306.) The principle of equality of the prosecution and defense at the trial was dismissed as a bourgeois legacy. (Id. at 279.) Vyshinsky also wrote that the old formula of interpreting doubts in favor of the accused does not work in the Soviet court because there should be no doubts remaining in a case after it is tried by a court. (Id. at 287.)

Armed with this theory, Soviet law enforcement used it as a guidance to disregard facts, issue predetermined rulings, and serve justice through extrajudicial institutions, considering all these actions as just, useful, and necessary.

The new publication of this book by a large Russian legal publisher does not say that this is a reprint of the 70+ year old text. It does not provide any commentaries or clarifications, and does not explain the circumstances in which this theory was applied. It just says that, in 1947, this work was awarded the highest state prize, which at that time was named after Stalin, and adds that the book “is recommended to graduate and postgraduate students, legal scholars, legislators, and law practitioners.”

It appears from this publication that Vyshinsky’s ideas have not been rejected. In fact, they are used in political trials in contemporary Russia, meaning that previous attempts to move towards a democratic and humanistic justice system based on principles of the rule of law are undermined.

When I started to do research for this blog post, I found that the reprint of this book is not the only attempt to revitalize Vyshinsky’s ideas in Russia. Recently, 29 handwritten pages from the manuscript for this book were offered for sale at the Russian auction of literary rarities. The starting price is about US$550.

After World War II, Vyshinsky kept his high level government positions, managed Soviet participation at the Nuremberg Tribunal, and served as the Soviet delegate to the United Nations, where he was a regular subject of political cartoons in American newspapers.

More information about Vyshinsky and his role in the show trials of the 1930s can be found in a book in the Law Library’s collection titled The Prosecutor and the Prey: Vyshinsky and the 1930s’ Moscow Show Trials.

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