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23 Colum. J. Transnat'l L. 331 (1984-1985)
Prerogativism in Modern Soviet Law: Criminal Procedure

handle is hein.journals/cjtl23 and id is 355 raw text is: Prerogativism in Modern Soviet Law: Criminal Procedure CHRISTOPHER OSAKWE* Modem Soviet law is as traditional as it is innovative. Though essentially Western law, it also has made new contributions to the general theory of law. One of the major novelties of modem Soviet law is its double dualism: the parallel existence of, as well as the symbiotic relationship between, on the one hand, the legal system stricto sensu (state law) and the system of Party rules (Party law) and, on the other hand, the dejure operation of its law of procedure at co- existent levels of normativism and prerogativism. In modem Soviet law, the law of the state and the law of intra- Party life constitute two sides of the same coin. These two systems of law often operate in unison, with one in the forefront and the other constantly looming in the background. The processes leading to the enactment and implementation of Soviet state law are governed by the basic norms of intra-Party life. Party law does not seek to displace or compete with state law. By virtue of the domination of the Party over the state, Party law governs both the conduct of Party members inside the Party and their conduct when they are operating within the state system. Party members hold key positions within the state apparatus, and while doing so are subject to double allegiance, to Party law and to state law. Because of this unique arrangement, any study of Soviet law must look not only at law stricto sensu, but also at law lato sensu, meaning the interplay between state law and Party law. Even though Soviet law matured into Western law sometime in the mid-1930's, Soviet law continues to retain in its law of procedure a form of elasticity that permits it to be expanded or contracted to suit the needs of the Party for strengthening the state. Because of this built-in element of malleability, Soviet law of criminal, civil and ad- ministrative procedure contemplates the parallel existence of legal regularity and legal irregularity in the way the law approaches differ- ent cases. The very notion of legal irregularity or legalized lawless- ness is a unique contribution of Soviet socialist law to the general theory of law. Although in every modern legal system there is an * Eason-Weinmann Professor of Comparative Law, Tulane University, New Orleans,

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