Most of the Progress Publishers titles in this series can be convicted on the evidence of their footnotes. They attack thinkers they have plainly not read, relaying Marcuse through a Soviet commentator or Trotsky through a Party resolution, and the apparatus gives the game away. Vladimir Tumanov's survey of twentieth-century Western jurisprudence is not that kind of book, and it is important to say so at the outset, because the failure it does contain is of a different and more interesting order.
Tumanov reads his opponents. He quotes Hans Kelsen from the Reine Rechtslehre (Vienna, 1960) and the General Theory of Law and State, but also from Sozialismus und Staat (Vienna and Leipzig, 1923), from The Communist Theory of Law (London, 1955) and The Political Theory of Bolshevism (California, 1948); Kelsen is named on the order of a hundred and twenty times, and the citations are to Kelsen's own editions in three languages. H. L. A. Hart appears through The Concept of Law (Oxford, 1971) and Law, Liberty and Morality (Stanford, 1963). Rudolf Stammler's Wirtschaft und Recht nach der materialistischen Geschichtsauffassung is quoted at length from the Leipzig edition of 1896; Roscoe Pound from Social Control through Law (New Haven, 1942); and when Tumanov wants a hostile witness against Kelsen he reaches for K. Leiminger's Die Problematik der reinen Rechtslehre (Stuttgart). Ehrlich, Radbruch, Gurvitch, Geiger, Fechner, Coing — the German sociological and philosophical literature of law is worked in the original. Whatever else is wrong here, the thing this series most often finds wrong is not: the citation test acquits the book, and does so decisively. Tumanov was a genuine comparative-law scholar — he would go on, after 1991, to sit on and briefly chair the Constitutional Court of the Russian Federation — and the book reads like the work of one.
That fact settles where the weight of a critical reading has to fall. It cannot fall on the apparatus; it falls on what the apparatus is used to do, and on the one question the book is constitutionally unable to ask.
The English edition carries "© Progress Publishers 1974," and for once the spine and the text nearly coincide. The latest Party congress cited is the Twenty-Fourth (1971); the most recent secondary sources are Chkhikvadze's The State, Democracy and Legality (Moscow, 1972) and Arbatov's The War of Ideas in Contemporary International Relations (Moscow, 1973). There is no printing history in the front matter and no earlier edition announced in the text, so the manuscript closed around 1972–73 and reached English almost immediately — unusually little lag for a Progress translation, and worth registering, because it means the book is genuinely a document of its moment rather than an older text in a newer jacket.
The moment matters enormously, and it is the whole hinge of any honest reading. 1974 is the high season of détente and of the human-rights turn that ran alongside it — the year Soviet legality came under sustained international scrutiny precisely as law. In February 1974 Aleksandr Solzhenitsyn was stripped of citizenship and deported; The Gulag Archipelago was reaching the West that winter. The samizdat Chronicle of Current Events, suppressed and revived, was cataloguing arrests case by case. The dissident Leonid Plyushch, a mathematician and a founder of the Initiative Group for the Defence of Human Rights, was held in a psychiatric prison-hospital, and Andrei Sakharov was appealing for his life. This is the reality against which a Soviet jurist, in that year, sat down to anatomise the class content and the mystifications of bourgeois law.
The rescue here is real and it is substantial, because the core of Tumanov's project is a genuine tradition of thought, not a slogan. The Marxist claim he presses is that law is a historical and class phenomenon rather than an eternal order — that legal forms arise from and lag behind the mode of production, and that a jurisprudence which treats them as self-grounding is performing an ideological service whether or not it knows it. Handled by a real scholar, this is a powerful lens, and Tumanov handles it well.
His long treatment of Stammler is the best of the book. Stammler had tried to refute historical materialism by inverting it — making law "the prime category, constituting and shaping the economic structure of society," "the final court of appeal bearing responsibility for the social economy." Tumanov shows, patiently and from the texts, that this is neo-Kantianism smuggled into jurisprudence: Stammler's concept of law is declared "totally independent of any social application of it in the sphere of actual experience," an a priori premise "engendered by reason," so that "history … would simply have to adapt itself to the 'logical primacy.'" And then the historical rejoinder, which is genuinely sharp: at the turn of the century "the change from industrial to monopoly capitalism necessitated substantial modifications in the sphere of law," and "the economic processes rend asunder the legal forms when these become road-blocks." The "primacy of law" thesis did not survive contact with the thing it claimed to command.
On Kelsen the reading is equally acute where it stays on Kelsen's own ground. Tumanov correctly identifies the "principle of elimination" — the ruling-out of every "metajuridical" approach so that "the proper study of law was law itself" — as the load-bearing move of the pure theory, and he sees what it is for. Normativism, he writes, is "doing all in its power to prevent these questions from even being stated, to depict bourgeois law as being in no way implicated in the socio-political actions and reality of imperialism." That is a fair description of what a rigorously self-enclosed positivism accomplishes: it purchases scientific purity at the price of never being able to say anything about the society whose law it studies. And his examples of law serving class interest under the forms of legality are concrete rather than declamatory — slavery and racial discrimination "legalised by the courts and judge-made law"; the ostracising of the Communist Party in the United States "by means of legislative action" in the 1950s; the banning of the Communist Party in West Germany "effected chiefly through action in the courts." A reader learns something true from these pages about how the rule of law distributes its protections.
The exposure of the post-war natural-law revival as mystification also has content. When natural-law theorists claim to found law on eternal values above the state, Tumanov is right that they are supplying a normative order out of thin air and calling it discovery; his insistence that "in one society there can be only one system of law, its base is material" is a serious position, not a dodge. The trouble is not that these instruments are blunt. The trouble is that they are sharp, and that they are only ever pointed in one direction.
This series has learned to distinguish two things that are easy to confuse. A Soviet book may freely admit that individual Bolsheviks erred — a wrong vote, a mistaken date, a bad policy — while never once allowing the analytic category it wields against its enemies to be applied to its own state. Error is admissible; the category is not. That is the test that survives contact with a candid book, and Tumanov's is candid enough to make the test bite hard.
He wields a very clear category. The book's charge against bourgeois positivism is that it treats law as the command of the state, evades the question of law's social and class content, and thereby mystifies an instrument of class power as neutral technique. Now watch what happens when the same categories approach Soviet law. "Anything in the nature of a voluntarist approach to law is alien to Marxism," Tumanov writes, "and the same is true of law in socialist society." The socialist state's "class will in legislation," he explains, is not voluntarism because "in the last analysis, this will is determined by the material conditions of life in the particular society." The category is not turned homeward; it is defined so that it cannot reach home. Socialist law is by construction socially conditioned, therefore not positivist, therefore exempt. Tumanov is even aware of how this looks from the other side — he notes that a Kelsen would call any such "meta-juridical, non-legal factor binding the legislator" a smuggled natural law — and he simply denies the charge.
The remarkable thing is that his own cited opponents put the reflexive question directly to him, and the book records the refusal in the open. Kelsen — the single most-cited author in the book — had done more than raise it: in The Political Theory of Bolshevism (1948) and The Communist Theory of Law (1955), both of which Tumanov cites, he had turned the whole positivist apparatus on Soviet law and pronounced it exactly the class-command jurisprudence that a Marxist "unmasking" of law logically produces once it holds power. The challenge, in other words, sat inside Tumanov's own bibliography, framed by the very thinker he reads most closely. He answers it not by meeting the argument on the Soviet record but by re-stating the doctrine. "Some Western writers," he acknowledges, argue "that, whereas the views held by Marx himself and the Soviet theory of law in the 1920s differed from positivism, in later years Soviet theory switched to positivism." That is exactly the reflexive identification — that Soviet law under Stalin became the very command-positivism the book condemns in the West. Tumanov's answer is definitional: "the Soviet theory of law has never departed from the Marxist thesis that law is always socially conditioned." The possibility is raised, by name, from the literature he has read, and closed by assertion.
And then comes the passage that makes the whole thing unmistakable, because here Tumanov is not evading the Soviet record but confronting a piece of it. Writing of the fate of the early Soviet jurists, he notes that "in the 1920s, Pashukanis, Stuchka and other Soviet jurists devoted much of their writing to analyses of the interrelationship between 'mode of production, economic system and law.'" Then: "Towards the end of the 1930s, however, the views of these writers were savagely attacked by Vyshinsky," so that Soviet legal theory took on "a somewhat one-sided nature." Vyshinsky's 1938 definitions of law, lacking "any reference … to Soviet law being conditioned by material factors," "did lead to justification of voluntarism in law-making." "Later," Tumanov adds, "this view was subjected to criticism in Soviet writing on the subject."
Read carefully, this is an extraordinary sentence, and not for what it says. Andrei Vyshinsky was the Procurator-General of the Moscow Trials — the man whose courtroom was the living demonstration of law as the naked will of the ruling apparatus, and whose doctrine — law as the aggregate of rules of conduct laid down and enforced by the state — is the crudest command-positivism the book spends four chapters condemning in the West. Yevgeny Pashukanis, the outstanding Soviet legal theorist of the 1920s and the great exponent of the withering-away of law — the very thesis Tumanov himself endorses elsewhere in this book — was not "savagely attacked" in a review. He was denounced as an enemy of the people, arrested in January 1937 and shot that September. Stuchka died in 1932 and so was merely erased; Pashukanis was killed. Tumanov renders a physical liquidation as a doctrinal "attack," a bullet as "one-sidedness," and the post-1956 rehabilitation of the murdered man's ideas as "criticism … in Soviet writing on the subject." The single Soviet figure who most perfectly instantiates the positivism the book exists to expose is named, faulted for "voluntarism" — and then quarantined from the category, his fate unspoken.
Set beside this the book's one sustained argument about legality under tyranny, and the point sharpens further. Against the natural-law revival — which arose in Germany precisely because positivism's "the law is the law" had left jurists defenceless before Nazi statutes — Tumanov defends the positivist's core. The state's monopoly of law-making, he insists, is a "regularity"; the natural-law alternative of a judge empowered to refuse an unjust statute would only "open the floodgates to arbitrary action by the courts." Better that "the positivist approach obliges the legislator to act in compliance with the articles of the Constitution … shirk his constitutional duty he cannot." He concedes, almost in passing, that "we would naturally pay tribute to judges if they refused to follow the terrorist laws of the fascist regime" — and then argues that the safer path is fidelity to enacted law and to the Constitution. This is written by a jurist of the state whose Constitution of 1936 coexisted with Article 58 and the camps, and it never occurs to the argument to ask what "compliance with the articles of the Constitution" secured for a defendant in Vyshinsky's dock. The class analysis of legality stops at the Soviet border as if at a customs post.
What the book does not contain is, in 1974, the finding. "Human rights" appears in these pages only as theory — Tumanov assures the reader that under Marxism "the nearer we get to communism, the more the rights and freedoms are extended," and that the withering-away of law will bring "maximum extension of human rights and freedoms." Of the human-rights movement then being crushed a few miles from the Institute where he worked, there is nothing. Solzhenitsyn: absent. The Chronicle of Current Events: absent. Punitive psychiatry: the word "psychiatry" occurs once, and it is Freudian jurisprudence in the West, not the Serbsky Institute. The dissent trials, the article-70 and article-190 prosecutions for "anti-Soviet agitation" that were the actual practice of Soviet legality in the year of writing: not a line.
These are not anachronistic absences of the kind this series is careful not to bank — things that had not yet happened and could not have been named. They had all happened, by 1974, and were the international news of the day. The author had the facts and a professional reason to engage them, and the book closes instead on triumph: "The steady progress made by socialist law has deepened the crisis currently experienced by its bourgeois counterparts." The silence is chosen, and it is the exact silence the reflexivity test predicts. A jurisprudence that can see the class content of an American loyalty statute and cannot see the Serbsky Institute is not short of analytic power. It is short of permission.
The answer the book cannot give had been in print for thirty-eight years, from within Marxism, when Tumanov wrote. In The Revolution Betrayed (1936), completed in the very months of the first Moscow Trial, Trotsky read the 1936 Constitution — the document Tumanov's "socialist law" rests upon — as the juridical self-portrait of a bureaucratic caste. The new constitution, Trotsky wrote, works "by juridically reinforcing the absolutism of an 'extra-class' bureaucracy," and so "creates the political premises for the birth of a new possessing class"; its "return … to the system of bourgeois democracy" was "a matter … of juridically liquidating the dictatorship of the proletariat"; and beneath the proclaimed equality, "the equality of the rights of workers and peasants means, in reality, an equal lack of rights before the bureaucracy" (ch. 10, "In the Mirror of the New Constitution"). Where Tumanov derives socialist law's innocence from its being "socially conditioned," Trotsky supplies the missing content of that conditioning: a law that protects "the town house of the bureaucrat, his summer home, his automobile" under a "socialist" slogan, and a GPU that "will find adequate grounds in the new constitution" to send a dissenter "to one of the innumerable concentration camps." That is the class analysis of Soviet law that Tumanov's own method demands and his own position forbids.
And the contemporaneous reply was arriving weekly. Across 1974 the Fourth International's press, Intercontinental Press, tracked precisely the reality Tumanov omits: "Solzhenitsyn's 'Gulag Archipelago'" on the cover of the first issue of the year (vol. 12, no. 1, 14 January 1974); "Yevtushenko's Defense of Solzhenitsyn" in the issue of 4 March; and, in the following weeks, the campaign around Leonid Plyushch, "feared to be near death in a psychiatric prison-hospital," together with continuous coverage of Vladimir Bukovsky, the Sinyavsky–Daniel precedent of 1966, and the Chronicle of Current Events. It is worth being exact about what this does and does not establish: the Fourth International did not answer Tumanov's book — there is no evidence it registered the book at all — but it answered, in real time, the object the book calls "the steady progress … of socialist law." The two texts describe the same legal order in the same year and do not overlap at a single point.
The deepest thing to say about Contemporary Bourgeois Legal Thought is not that it is crude — it is not — but that it is the reverse. It is a skilled jurist's demonstration of exactly the instrument this series most respects: the question of whether a legal theory, for all its formal rigour, quietly implicates or quietly excuses the actual state and the actual class whose law it is. Tumanov asks that question of Kelsen and Stammler and Hart with real force, and gets real answers. He simply never turns it around. The one theorist in the book who built a whole jurisprudence out of law-as-the-command-of-the-ruling-apparatus, and who prosecuted men to death on that theory, is a Soviet citizen named Vyshinsky, and about him the analysis falls silent at precisely the moment it should have spoken. A reader can learn a great deal here about the mystifications of bourgeois law. What the book cannot teach — what, in 1974, it was built not to teach — is that the categories it wields so well were made to cut in both directions.