University of Glasgow

Giganty i Charodei Slova. Russkie Sudebnye Oratory Vtoroi Poloviny XIX. Nachala XX Veka byV. I. Smolyarchuk; Final Judgement. My Life as a Soviet Defence Lawyer by Dina Kaminskaya;Zapiski Advokata by Dina KaminskayaReview by: Rene BeermannSoviet Studies, Vol. 37, No. 4 (Oct., 1985), pp. 561-563Published by: Taylor & Francis, Ltd.Stable URL: http://www.jstor.org/stable/151582 .

Accessed: 09/12/2014 19:29

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Taylor & Francis, Ltd. and University of Glasgow are collaborating with JSTOR to digitize, preserve andextend access to Soviet Studies.

http://www.jstor.org

This content downloaded from 128.235.251.160 on Tue, 9 Dec 2014 19:29:41 PMAll use subject to JSTOR Terms and Conditions

that it has most value as a supplementary text, read to enliven more formal study. In this role, it is excellent, with its general survey and interesting highlights. On its own, its clear cynicism may be a little off-putting, although it does raise very serious issues: ('. .. if Soviet law is more bad than good . . .'; (p. 324)) ('. . . legal nihilism in practice disguised by legal normativism is incomparably more dangerous than legal nihilism in theory corrected by legal normativism in practice' (p. 36).

In conclusion, Ioffe and Maggs are to be congratulated for having achieved their aim of putting together a general book with

an outline of Soviet Law as a whole, on one hand, and Soviet Law as an acting force in the most important social realms, on the other hand.

King's College, London JANE E. GIDDINGS

V. I. Smolyarchuk, Giganty i charodei slova. Russkie sudebnye oratory vtoroi poloviny XIX-nachala XX veka. Moscow, 1984, 272 pp., 65 kop.

Dina Kaminskaya, Final Judgement. My Life as a Soviet Defence Lawyer. London: Harvill Press, 1983, 364 pp., ?12-95.

Dina Kaminskaya, Zapiski advokata. Vermont: Khronika Press, 1984, 345 pp., no price.

THE three volumes under review provide an interesting illustration of continuity and change in Russian history. The particular example with which they deal is the Russian Bar and defence counsel in two successive historical periods. Smolyarchuk's study, published recently in the Soviet Union, provides a moving, even glowing and affectionate account of the life stories, professional activities and speeches for the defence of a number of well-known Russian pre-revolutionary advocates, whose official d,esignation was advocates under oath (prisyazhnye poverennye). The Russian Bar was set up in tte course of the 1864 judicial reforms as an independent self-governing estate (soslovie) incorporating the advocates and their assistants, the latter being required to undergo a five-year training before acquiring the status of an advocate under oath. Smolyarchuk makes the important observation that the advocates by no means restricted their activities to their professional tasks but were in addition highly respected members of the public, most of them writers, some even poets and some well-known experts in fine art such as Prince Urusov. The newly-created profession soon acquired great popularity, so that even high-ranking officials gave up their secure and well-salaried jobs in order to become members of the Bar. Many advocates were members of the intelligentsiya, that unique force in Russian history which began with Radishchev's memoirs of his journey from St Petersburg to Moscow and faded out after the October revolution. All of the lawyers referred to by Smolyarchuk, with one exception, were advocates and defence counsel. The single exception, Anatolii Fedorovich Koni, was undoubtedly the most highly esteemed lawyer in pre- and early post-revolutionary Russia, his career including membership of the procuracy, a judgeship, the Procuracy of the Ruling Senate, a senatorship and a professorship of law. As a judge he presided in 1878 over the trial of Vera Zasulich, accused of the attempted murder of the police-chief of St Petersburg, Trepov. Zasulich was defended by P. A. Aleksandrov, whose speech is included in Smolyarchuk's book; as is well known, the jury acquitted Zasulich, apparently accepting the plea of the defence that the noble-minded girl had been outraged beyond reason by Trepov's order that a convicted student, Bogolyubov, should be birched.

After the revolution the Russian advocacy experienced a dramatic change in its status and popularity in the eyes of the courts and authorities, and also in the eyes of public opinion. The second volume under review, the professional autobiography of Dina Kaminskaya, most

that it has most value as a supplementary text, read to enliven more formal study. In this role, it is excellent, with its general survey and interesting highlights. On its own, its clear cynicism may be a little off-putting, although it does raise very serious issues: ('. .. if Soviet law is more bad than good . . .'; (p. 324)) ('. . . legal nihilism in practice disguised by legal normativism is incomparably more dangerous than legal nihilism in theory corrected by legal normativism in practice' (p. 36).

In conclusion, Ioffe and Maggs are to be congratulated for having achieved their aim of putting together a general book with

an outline of Soviet Law as a whole, on one hand, and Soviet Law as an acting force in the most important social realms, on the other hand.

King's College, London JANE E. GIDDINGS

V. I. Smolyarchuk, Giganty i charodei slova. Russkie sudebnye oratory vtoroi poloviny XIX-nachala XX veka. Moscow, 1984, 272 pp., 65 kop.

Dina Kaminskaya, Final Judgement. My Life as a Soviet Defence Lawyer. London: Harvill Press, 1983, 364 pp., ?12-95.

Dina Kaminskaya, Zapiski advokata. Vermont: Khronika Press, 1984, 345 pp., no price.

THE three volumes under review provide an interesting illustration of continuity and change in Russian history. The particular example with which they deal is the Russian Bar and defence counsel in two successive historical periods. Smolyarchuk's study, published recently in the Soviet Union, provides a moving, even glowing and affectionate account of the life stories, professional activities and speeches for the defence of a number of well-known Russian pre-revolutionary advocates, whose official d,esignation was advocates under oath (prisyazhnye poverennye). The Russian Bar was set up in tte course of the 1864 judicial reforms as an independent self-governing estate (soslovie) incorporating the advocates and their assistants, the latter being required to undergo a five-year training before acquiring the status of an advocate under oath. Smolyarchuk makes the important observation that the advocates by no means restricted their activities to their professional tasks but were in addition highly respected members of the public, most of them writers, some even poets and some well-known experts in fine art such as Prince Urusov. The newly-created profession soon acquired great popularity, so that even high-ranking officials gave up their secure and well-salaried jobs in order to become members of the Bar. Many advocates were members of the intelligentsiya, that unique force in Russian history which began with Radishchev's memoirs of his journey from St Petersburg to Moscow and faded out after the October revolution. All of the lawyers referred to by Smolyarchuk, with one exception, were advocates and defence counsel. The single exception, Anatolii Fedorovich Koni, was undoubtedly the most highly esteemed lawyer in pre- and early post-revolutionary Russia, his career including membership of the procuracy, a judgeship, the Procuracy of the Ruling Senate, a senatorship and a professorship of law. As a judge he presided in 1878 over the trial of Vera Zasulich, accused of the attempted murder of the police-chief of St Petersburg, Trepov. Zasulich was defended by P. A. Aleksandrov, whose speech is included in Smolyarchuk's book; as is well known, the jury acquitted Zasulich, apparently accepting the plea of the defence that the noble-minded girl had been outraged beyond reason by Trepov's order that a convicted student, Bogolyubov, should be birched.

After the revolution the Russian advocacy experienced a dramatic change in its status and popularity in the eyes of the courts and authorities, and also in the eyes of public opinion. The second volume under review, the professional autobiography of Dina Kaminskaya, most

561 561 REVIEWS REVIEWS

This content downloaded from 128.235.251.160 on Tue, 9 Dec 2014 19:29:41 PMAll use subject to JSTOR Terms and Conditions

REVIEWS

eloquently illustrates this change. Born into a family of jurists, Kaminskaya enrolled as a student at the Institute of Legal Studies in Moscow. She writes that neither she nor any of her fellow students ever considered becoming an advocate at this time; the most generally favoured occupation was a job in the Procuracy. The popularity of the accusatorial office might at first sight seem surprising to a Western reader. Kaminskaya undertook her studies during the 1930s and 1940s, a time of arrests, purges, mass executions and incarcerations in labour camps of innocent people and of the illfamed show trials of the former comrades-in-arms of Lenin. Kaminskaya notes that the favourite professor of the students, Boris Arsen'ev, lashed out at defence counsel in his lectures on criminal law as wretched and defeated opponents. During her practical work in the Procuracy Kaminskaya herself was able to obtain first-hand evidence of the unenviable, miserable position of advocates in the Soviet legal system. She accordingly deserves the more credit for her change of mind and final decision to join the ranks of the advocates as a defence counsel in political trials. To judges and colleagues her action was incomprehensible. The decision to become a defence counsel in political trials was even more surprising, because it followed a brilliant defence of two adolescent boys tried for a common crime-rape and murder. The account of the three trials leading to the acquittal is perhaps the most exciting and gripping part of the book. Kaminskaya makes a very significant statement that the job of a defence counsel is 'surely the happiest job in the world', and, one might add, perhaps also one of the noblest jobs in the world. She also vindicates the Soviet judicial system by stating that the acquittal of the two boys was a triumph for Soviet justice; her view is that there are good and bad investigators, prosecutors and judges in the Soviet Union as there are in any other country.

In the subsequent chapters Kaminskaya tells us about the many difficulties and frustrations that advocates experience in political trials. Thus she is refused a dopusk (permit) necessary for political trials and is prevented from appearing as defence counsel in the case of the two writers, Sinyavsky and Daniel, who were accused of having slandered the Soviet Union with intent to harm it under article 70 of the RSFSR Criminal Code. She deals also with her other political trials such as those of Bukovsky, Galanskov and Ginsburg, and with the concomitant problems and tribulations. She also reports the case of her colleague, Boris Zolotukhin, who was expelled from the Bar for mentioning in his defence of Alexander Ginsburg the case of Sinyavsky and Daniel and the unfavourable impression that their convictions and prison sentences had aroused among leading members of communist parties in the West.

A tentative explanation may be suggested of the dramatic change in the status that advocates experienced after the revolution. As has already been noted, the advocates were part and parcel of the Russian intelligentsia, which, however, disintegrated in the course of the revolutionary upheaval and the civil war. The new ruling Communist Party was concerned to establish its monopoly of the expression of public opinion in the USSR. In its eyes the pre-revolutionary legal system, and the advocates in particular, expressed the rotten ideology of bourgeois-capitalist liberalism. It was also assumed that both state and law would wither away in the not too distant future. The laws and the courts were still held to be necessary, as bourgeois survivals, but only so long as there were still people who refused to submit to the new order or deviants of various kinds corrupted by the old order. The advocacy was felt to be almost superfluous in trials before proletarian and just tribunals. In addition the pre-revolutionary legal system and particularly the advocacy were alien to the bulk of the population of workers and peasants, among whom the pre-1864 court system and especially the khodotai po delam (private attorneys) had a very bad image indeed. Some of these continued to act even after the reforms among the general population, while the prisyazhnye poverennye functioned in city courts and had little contact with the village courts or the land marshals (zemskie nachal'niki) who were concerned with peasant affairs. These circumstances together provided the presuppositions for a change in the status of the advocacy.

562

This content downloaded from 128.235.251.160 on Tue, 9 Dec 2014 19:29:41 PMAll use subject to JSTOR Terms and Conditions

Nevertheless, these circumstances alone do not adequately explain the sudden change in the status of the advocacy from a position of 'giants and wizards of oratory' (to quote Smolyarchuk's title) to the miserable condition so vividly described by Dina Kaminskaya and well borne out in Soviet newspapers and periodicals (one of the latest attacks upon them may be found, for instance, in Literaturnaya gazeta, 28 September 1983, p. 14, an article by N. Loginova on 'Peresud'). At least part of the additional explanation that is required may be found in the theories of Mary Douglas on pollution and taboo (see for instance her Purity and Danger (1966) and other works). The deposed old order, in these terms, left as an inheritance to the new government with its new ideology a great amount of old and hostile political views and beliefs which had to be swept away in order to cleanse the social environment. The advocacy and its members were suspected of being defiled by association with 'polluted' institutions such as the former judicial system. The

pre-revolutionary system was accordingly abolished in the course of 1917-18 and new tribunals set up in its place. Thus practically the only survivors, albeit under a different name, were the advocates. The new order was strongly community, in other words group oriented. The advocates, however, were individuals with a rather loose form of organisation, and they defended not only wayward members of society but also outspoken enemies or suspected enemies of the new regime. In Mary Douglas's terms, the advocate and his defendant are outsiders, and the defence of a political suspect or even a criminal is an indirect attack upon the group. Pollution by association or defilement by close association have accordingly become a punishable offence, without the requirement that the individual concerned be shown to have been aiding or abetting the criminal (see for instance articles 7, 16 and 58(lc) of the now superseded RSFSR criminal code of 1926-27).

The prosecuting officer acquired an entirely different position after the revolution. Before the revolution he had frequently been ridiculed by writers like Gogol, Dostoevsky and Chekhov; now he was the fair knight fighting for the establishment and security of the new order in the name of the new ideology. Compare, for instance, the position of the head of the Cheka, Felix Dzerzhinsky, among the pantheon of the Soviet great with the status of the prokurory described by Dina Kaminskaya.

However, with the withering away of state and law now postponed to the far distant future, and the much greater acceptance within the USSR of the principles of natural law and human rights, the status of the advocate has greatly improved. The right of defence and the right to a defence counsel has been a constitutionally guaranteed right since the adoption of the new Constitution in 1977 (see articles 158 and 161). The importance of their work in a semi-adversary context is fully recognisable. Special round-table talks have been held concerned with improving the status and role of defending counsel and particularly of advocates. Former attitudes have been condemned and the press has been censured for its frequently biased attitudes in support of the prosecution and against the defence counsel (see for instance 'Povyshenie roli advokatury v okazanii yuridicheskoi pomoshchi grazhdanam', Sovetskoe gosudarstvo i pravo, 1985, no. 2, pp. 85-99, and no. 3, pp. 73-8). Future years may indeed see, if not a complete reversal, then at least some redressing of the balance in favour of the advocates and those whom they defend, and whose role is so well depicted in the volumes under review. Kaminskaya's memoirs, one may conclude by noting, are not exactly the same in English and in Russian and the translation, while generally accurate, incorporates a number of unfortunate Americanisms such as 'law schools' when the reference in Russian is to the aristocratic pre-revolutionary uchilishche pravovedeniya or the present-day schools of secondary legal education.

563 REVIEWS

University of Glasgow RENE BEERMANN

This content downloaded from 128.235.251.160 on Tue, 9 Dec 2014 19:29:41 PMAll use subject to JSTOR Terms and Conditions