Among the various institutions of bourgeois society which serve to oppress and deceive the working masses, must be mentioned bourgeois justice. 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.
As far as the organization of bourgeois justice is concerned, this is in perfect harmony with the characteristics of the bourgeois State. Where the bourgeois State is comparatively frank in its methods, where it is free from hypocrisy in its determination that the decision of the courts shall be favourable to the ruling class, there the judges are appointed from above; but even when they are elected, only the members of the privileged stratum are entitled to vote. When the masses have been sufficiently brought to heel by capital, so that they are duly submissive and regard the laws of the bourgeois State as their own laws, the workers are permitted to a certain extent to be their own judges, just as they are allowed to vote exploiters and their henchmen into parliament. 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'.
The programme of the Socialists adhering to the Second International contained a demand for the popular election of the judiciary. In the epoch of the proletarian dictatorship, this demand assumes a no less impracticable and reactionary complexion than the demand for universal suffrage or the demand for the general arming of the people. When the proletariat is in power, it cannot permit the enemies of its class to become judges. The workers could hardly accept the representatives of capital or of the landed interest as administrators of the new laws which are intended to overthrow the capitalist régime! In fine, in the long succession of civil and criminal affairs, the proceedings of the courts must be conducted in the spirit of the new socialist society which is in course of construction.
For these reasons the Soviet Power did not merely destroy all the old machinery of justice which, while serving capital, hypocritically proclaimed itself to be the voice of the people. It went farther, and constituted new courts, making no attempt to conceal their class character. 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.
In bourgeois society the administration of justice is an exceed ingly 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. In actual fact, in the past and today, the working of this graded series of law courts has been and is to the unfailing advantage of the possessing classes. 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. The right of appeal secures an 'equitable' decision only in this sense, that it secures a judgement in the interest of exploiting groups.
The unified popular law-court of the proletarian State reduces to a minimum the time which elapses from the moment when the case is brought before the court to the moment when it is finally decided. The law's delay is greatly diminished, and if proceedings are still sluggish, this is only because all soviet institutions are imperfect during the first months and years of the proletarian dictatorship. But the general upshot is that the courts have been made accessible to the poorest and most unenlightened strata of the population; and they will become still more accessible as soon as the epoch of intensified civil war is over, and as soon as all the mutual relationships of the citizens of the republic have assumed a more stable character. Inter arma leges silent [in war time, the laws are in abeyance] the Romans used to say. But during the time of civil war the laws are not in abeyance as far as the workers are concerned. The popular law-courts continue to do their work, but it is impossible as yet for the whole population to realize the nature of the new courts of justice and rightly to appreciate their advantages.
During this era when the old society is being destroyed and the new society is being upbuilded, the popular courts have a gigantic task to perform. The process of change has been so rapid that soviet legislation has not been able to keep pace with it. The laws of the bourgeois landlord system have been annulled; but the laws of the proletarian State have as yet merely been outlined, and will never be committed to paper in their, entirety. The workers do not intend to perpetuate their dominion, and they therefore have no need for endless tomes of written laws. When they have expressed their will in one of the fundamental decrees, they can leave the interpretation and application of these decrees, as far as practical details are concerned, to the popular courts in which the judges are elected by the workers. The only important matter is that the decisions of these courts shall bear witness to the complete breach with the customs and the ideology of the bourgeois system; that the people's judges shall decide the cases which come before them in accordance with the dictates of proletarian ideology, and not in accordance with those of bourgeois ideology. Dealing with the unending series of disputes which arise during the break-up of the old relationships, and during the realization of the rights of the proletariat, the people's judges can carry to its proper issue the transformation which began with the November revolution of the year 1917, and which must inevitably involve all the mutual relationships of the citizens of the Soviet Republic. On the other hand, in dealing with the vast number of cases which occur independently of the peculiar conditions of the revolutionary era - minor criminal cases of a petty- bourgeois character - the popular courts must give expression to the entirely new attitude towards such offences which has been adopted by the revolutionary proletariat, thus effecting a revolution in the whole character of penal measures.
These popular courts - to which the judges are elected, from which the judges can be recalled, and in which every worker must fulfil his judicial duty when his turn comes - are looked upon by the Communist Party as the normal law-courts of the proletarian State. But in the epoch of the extremest intensifica tion of the civil war, it has been found necessary to supplement the popular courts by the appointment of revolutionary tri bunals. The function of the revolutionary tribunals is to deal speedily and mercilessly with the enemies of the proletarian revolution. Such courts are among the weapons for the crushing of the exploiters, and from this point of view they are just as much the instruments of proletarian offence and defence as the Red Guard, the Red Army, and the Extraordinary Commissions. Consequently, the revolutionary tribunals are organized on less democratic lines than the popular courts. They are appointed by the soviets, and are not directly elected by the workers.
In the sanguinary struggle with capitalism, the working class cannot refrain from inflicting the last extremity of punishment upon its declared enemies. While the civil war continues, the abolition of the death penalty is impossible. But a dispassionate comparison of proletarian justice with the justice of the bourgeois counter-revolution shows the marvellous leniency of the workers' courts in comparison with the executioners of bourgeois justice. The workers pass death sentences in extreme cases only. This was especially characteristic of the legal proceedings during the first months of the proletarian dictatorship. It suffices to recall that in Petrograd the notorious Purishkevich was condemned to only two weeks' imprisonment by the revolutionary tribunal. We find that the progressive classes, the inheritors of the future, have dealt very gently with their enemies, whereas the classes that are dying have displayed almost incredible ferocity.
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. Just as absurd have been and are the punishments inflicted for casual offences, or for offences which arise out of the fundamentally imperfect character of personal relationships in bourgeois society (offences connected with the family relationships of society; those resulting from romanticist inclinations; those due to alcoholism or to mental degeneration; those due to ignorance, or to a suppression of social instinct, etc.). The proletarian law-court has to deal with offences for which the ground has been prepared by bourgeois society, by the society whose vestiges are still operative. A large number of professional criminals, trained to become such in the old order, survive to give work for the proletarian courts. But these courts are entirely free from the spirit of revenge. They cannot take vengeance upon people simply because these happen to have lived in bourgeois society. This is why our courts manifest a revolutionary change in the character of their decisions. More and more frequently do we find that conditional sentences are imposed, punishments that do not involve any punishment, 'their chief aim being to prevent a repetition of the offence. Another method is that of social censure, a method that can only be effective in a classless society, one in which a social consciousness and a social sense of responsibility have greatly increased. Imprisonment without any occupation, enforced parasitism, the penal method so frequently employed under the tsarist régime, is replaced by the enforcement of social labour. The aim of the proletarian courts is to ensure that the damage done to society by the criminal shall be made good by him through the performance of an increased amount of social labour. Finally, when the court has to deal with a habitual criminal (one whose liberation after his sentence has been performed will entail danger to the lives of other citizens), isolation of the criminal from society is enforced, but in such away as to give the offender full opportunities for moral regeneration.
Most of the measures above described, involving a complete transformation of the customary penal methods, have already been recommended by the best bourgeois criminologists. But in bourgeois society they remain a dream. Nothing but the victory of the proletariat can ensure their realization.
As far as the revolutionary tribunals are concerned, this form of proletarian justice has no significance for future days, any more than the Red Army will have any significance for the future after it has conquered the White Guards, or any more than the Extraordinary Commissions have any significance for the future. In a word, all the instruments created by the proletariat for the critical period of the civil war are transient. When the counter-revolution has been successfully crushed, these instruments will no longer be needed, and they will disappear.
On the other hand, proletarian justice in the form of the elective popular courts will unquestionably survive the end of the civil war, and will for a long period have to continue the use of measures to deal with the vestiges of bourgeois society in its manifold manifestations. The abolition of classes will not result in the immediate abolition of class ideology, which is more long-lived than are the social conditions which have produced it, more enduring than the class instincts and class customs which have brought it into being. Besides, the abolition of class may prove a lengthy process. The transformation of the bourgeoisie into working folk and that of the peasants into the workers of a socialist society will be a tardy affair. The change in peasant ideology is likely to be very slow, and will give plenty of work to the law-courts. Moreover, during the period which must precede the full development of communist distribution, the period during which the articles of consumption are still privately owned, there will be ample occasion for delinquencies and crimes. Finally, 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. It is true that these courts will gradually change in character. 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.
Communist literature dealing with bourgeois and proletarian courts of justice is scanty. Among the older works, the following may be recommended.
Marx, Address to the jury at the Cologne Communists' Trial; Engels, The Origin of the Family, of Private Property, and of the State; Lassalle, Collected Works, especially: Speeches for the Defence, The Idea of the Working Class, The Programme of the Workers; Engels, Anti-Dühring (the parts dealing with the State); Kautsky, The Nature of Political Offences; Van Kon, The Economic Factors of Crime; Gernet, The Social Factors of Crime.
Recent works: Stuchka, The Constitution of the RSFSR in Question and Answer; Stuchka, The People's Court; Hoichbart, What should a People's Court be?