Article by Christopher Osakwe
Law, like language or music, is a historically determined product of civilization and, as such, has its roots deep in the spirit of the people. In the final analysis law is a normative expression of the culture, history, customary morality, and psyche of a given nation. The development of law may be likened to the organic growth of a plant: it is slow and derives its strength from an inner fertilization by the people's spirit. Because law is not the product of the formative reason of a particular legislator, its natural evolution can neither be accelerated nor brought to a complete stop by his intervention.
Despite its unconscious development, Soviet law in general and Soviet criminal procedure in particular is slowly but surely accepting the irreducible principles of what may be described as a common law of mankind. This evolutionary process of Soviet criminal procedure may have been temporarily obstructed by the abuses of the law by different generations of Soviet political leaders. Yet while much of the intervention by varying Soviet governments has been self-serving and internally inconsistent, ultimately the fate of Soviet criminal procedure is determined not by the repressive uses of that law by Soviet leaders but by the yearning for liberal reforms within the spirit of the Soviet people. The enduring source of the natural evolution of Soviet criminal procedure is the irrepressible spirit of the Soviet people, not the intervention of the Soviet legislator. If legislative enactments capture the essence of this guiding force, they will remain a permanent fixture in the ordinary evolution of that law; if not, such legislative interruptions can only be expected to last as long as the political force which sustains them.
If Soviet criminal procedure is a historical process, then modern Soviet criminal procedure represents only a phase in this continuing evolution. The philosophy of this law is one of systematized collectivism, and it recognizes that there is only one law, i.e., positive law. This law is essentially jus scriptum, and its foundation is embodied in the constantly changing fundamental law of the Soviet state, i.e., the Constitution of the USSR. It is ascertained by the courts through a process of induction. But since the USSR Supreme Court is not endowed with a roving commission to police the other branches of the government, it neither has a charge to be the overseeing guardian of constitutional norms nor the authority to be the special enforcer of constitutional restrictions. Hence, in the long run the only guarantee of justice under modern Soviet criminal procedure is the expectation that the legislature will act with self-restraint under the enlightened guidance of the omnipotent Communist Party of the Soviet Union (CPSU). Whereas the rules of pre-1953 Soviet criminal procedure were designed to meet the fugitive exigencies of the passing hour and amendments thereto were readily made as the exigencies changed, the modern law, thanks to the soul-searching which took place in the Soviet Union between 1953 and 1958, is demonstrably less prone to prerogativism.
Modern Soviet criminal procedure was designed by its principal architects to serve as a precision machine for the discovery of truth and the punishment of malefactors. A fundamental principle of this system is the idea that the pursuit of the objective truth is beneficial both to the individual and to the community at large. Accordingly, the underlying purpose of every rule within this system is the search for the objective truth. All of the affirmative duties which the system imposes on all participants in the proceedings, including the defendant himself, are motivated by a need to protect the public interest. The system is not intended, however, to operate like a judicial slot machine. Rather, it treads a middle course between two philosophical extremes of prerogativism and mechanical judicature. As such, the system makes provisions for the exercise of discretion at all phases of the proceedings—investigative, prosecutorial, and adjudicative. But in an effort to minimize possible misuses and abuses of such discretionary authority, each statutorily granted discretion is carefully defined, confined, and structured.
To students of comparative legal systems, modern Soviet criminal procedure can best be described as an example of creative plagiarism—it blends elements of the inquisitorial civil law tradition with institutions that are indigenous to the socialist legal systems. Remarkably, the Soviet hybrid has been virtually uninfluenced by the common law adversary (accusatorial) tradition. By comparison with the procedure that was employed by Soviet criminal courts prior to 1953, the present Soviet criminal procedural system represents nothing less than a phenomenal improvement. Nevertheless, the question remains whether the theories of modern Soviet criminal procedure are truly reflected in their realities.
About the Author
Christopher Osakwe. Eason-Weinmann Professor of Comparative Law, Tulane University; Director, Eason-Weinmann Center for Comparative Law; LL.B. 1966, LL.M. 1967, Ph.D. 1970, Moscow State University; J.S.D. 1974, University of Illinois.
Citation
57 Tul. L. Rev. 439 (1983)