8 Nat. L.F. 21 (1963)
Socialist Legality and Communist Ethics

handle is hein.journals/ajj8 and id is 25 raw text is: SOCIALIST LEGALITY AND
George L. Kline
THE NIHILISM which dominated Soviet legal theory and practice during
the 1920's has deeper and more tangled intellectual roots in the Russian
past than has generally been recognized. With respect to ethics and social
philosophy, early Russian Marxists around the turn of the century were
divided into three factions: an orthodox group, led by Plekhanov; a Kant-
ian revisionist group, led by Berdyaev; and a Nietzschean revisionist
group, led by Bogdanov. On the question of law and legality the influence
of Kant, Nietzsche, and Marx - and, for that matter, of the anarchists
Bakunin, Tolstoy, and Kropotkin - came to a single focus.
All the early Russian Marxists, though for rather different reasons, took
a negative view of legal institutions and norms. For them the juridical
state and the rule of law were empty and alien concepts. It is significant
that a leading Russian theorist of law, writing in 1909,1 felt called upon to
defend the rule of law against Russian intellectuals of every political hue,
from Leontyev and the Slavophiles to Herzen and the radicals - both
Marxist and non-Marxist - who had scorned and neglected it.
Marxism, of course, reinforced Russian antilegalism with its doctrine that
positive law is merely a codification of the selfish interests of the ruling class,
and that law as such, doomed by history, will wither away completely in the
classless society. But Kantianism also reinforced this antilegalism with its
sharp distinction between moral and legal norms, the latter being viewed
as external, compulsory, and nonmoral, while the former alone are internal,
autonomous, and moral. (Of course, Kant himself had much more respect
for positive law than either Marx or Nietzsche.) Finally, Nietzsche reinforced
Russian antilegalism with his ferocious attack upon norms as such, and his
violent rejection of obligation, whether moral or legal, as a constraint upon
individual freedom and creativity. It seems clear that Soviet juridical
nihilism was fed, sometimes in subterranean fashion, by all of these intel-
1. V. Kistyakovski, V zashchitu prava [In Defense of the Law], VEKxH (1909).

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