to speak of the terror only in the abstract, disassociating himself from individual acts of terrorism, the murders in the basement of the Lubianka and in all the other basements.… Lenin kept himself so remote from the terror that the legend has grown up that he took no active part in it, leaving all decisions to Dzerzhinskii. It is an unlikely legend, for he was a man constitutionally incapable of deputing authority on important matters.13
In fact, all decisions bearing on this matter, whether they concerned general procedures or the execution of important prisoners, required the approval of the Bolshevik Central Committee (later the Politburo), of which Lenin was the permanent de facto chairman.14 The Red Terror was Lenin’s child, even if he desperately tried to deny parenthood.
The guardian of this unacknowledged progeny was Dzerzhinskii (Dzier-zyński), the Cheka’s founder and director. Almost forty at the outbreak of the Revolution, he was born near Vilno into a patriotic Polish gentry family. He broke with his family’s religious and nationalist heritage and joined the Lithuanian Social-Democratic Party, turning into a full-time revolutionary organizer and agitator. He spent eleven years in tsarist prisons and on hard labor. These were harsh years, which left indelible scars on his psyche, developing in him an indomitable will as well as an unquenchable thirst for revenge. He was capable of perpetrating the worst imaginable cruelties without pleasure, as an idealistic duty. Lean and ascetic, he carried out Lenin’s instructions with a religious dedication, sending “bourgeois” and “counterrevolutionaries” before firing squads with the same joyless compulsion with which centuries earlier he might have ordered heretics burned at the stake.
100. Feliks Dzerzhinskii.
The first step in the introduction of mass terror to Soviet Russia was the elimination of all legal restraint—indeed, of law itself—and its replacement by something labeled “revolutionary conscience.” Nothing like this had ever happened anywhere: Soviet Russia was the first state in history formally to outlaw law. This measure freed the authorities to dispose of anyone they disliked and legitimized pogroms against their opponents.
Lenin had planned it this way long before he took power. He believed that one of the cardinal mistakes of the Paris Commune had been its failure to abolish France’s legal system. This mistake he meant to avoid. In late 1918, he defined the dictatorship of the proletariat as “rule unrestricted by any law.”15 He viewed law and courts in the Marxist fashion as tools by means of which the ruling class advanced its interests: in “bourgeois” society, under the guise of enforcing impartial justice, law served to safeguard private property. This point of view was articulated in early 1918 by N. V. Krylenko, who would later serve as Commissar of Justice:
It is one of the most widespread sophistries of bourgeois science to maintain that the court … is an institution whose task it is to realize some sort of special “justice” that stands above classes, that is independent in its essence of society’s class structure, the class interests of the struggling groups, and the class ideology of the ruling classes … “Let justice prevail in courts”—one can hardly conceive more bitter mockery of reality than this.… Alongside, one can quote many such sophistries: that the court is a guardian of “law,” which, like “governmental authority,” pursues the higher task of assuring the harmonious development of “personality” … Bourgeois “law,” bourgeois “justice,” the interests of the “harmonious development” of bourgeois “personality” … Translated into the simple language of living reality this meant, above all, the preservation of private property …16
101. Fannie Kaplan.
From this premise, Krylenko concluded that the disappearance of private property would automatically lead to the disappearance of law: socialism would thus “destroy in embryo” the “psychological emotions” that made for crime. In this view, law did not prevent but caused crime.
Of course, some judiciary institutions would have to remain during the transition to full socialism, but these would serve the purposes not of hypocritical “justice” but of class war. “We need the state, we need compulsion,” Lenin wrote in March 1918. “The organs of the proletarian state in realizing this compulsion are to be Soviet courts.”17
True to his word, shortly after taking office, Lenin, with a stroke of the pen, liquidated Russia’s entire legal system as it had developed since the reform of 1864. This he accomplished with the decree of November 22, 1917, released after prolonged discussion in the Sovnarkom.18 The decree in the first instance dissolved nearly all existing courts, up to and including the Senate, the highest court of appeals. It further abolished the professions associated with the judiciary system, including the office of the Procurator (the Russian equivalent of the Attorney General), the legal profession, and most justices of the peace. It left intact only the “local courts” (mestnye sudy) which dealt with minor offenses.
The decree did not explicitly invalidate the laws on the statute books—this was to come one year later. But it produced the same effect by instructing judges of the local courts to be “guided in making decisions and passing sentences by the laws of the overthrown government only to the extent that these have not been annuled by the Revolution and do not contradict the revolutionary conscience and the revolutionary sense of legality.” An amendment clarifying this vague provision specified that those laws were annulled which ran contrary to Soviet decrees as well as to the “programs-minimum of the Social-Democratic Labor Party and the Party of the Socialists-Revolutionaries.” Essentially, in offenses still subject to judiciary procedures, guilt was determined by the impression gained by the judge or judges.
In March 1918, the regime replaced the local courts with People’s Courts (narodnye sudy). These were to deal with every category of crime of citizen against citizen: murder, bodily injury, theft, etc. The elected judges of these courts were not bound by any formalities concerning evidence.19 A ruling issued in November 1918 forbade judges of People’s Courts to refer to laws enacted before October 1917; it also absolved them further from having to observe any “formal” rules of evidence. In rendering verdicts, they were to be guided by the decrees of the Soviet Government and, when these were lacking, by the “socialist sense of justice” (sotsialisticheskoe pravosoznanie).20
In line with the traditional Russian practice of treating crimes against the state and its representatives differently from crimes against private persons, the Bolsheviks concurrently (November 22, 1917) introduced a new type of court, modeled on a similar institution of the French Revolution, called Revolutionary Tribunals. These were to try persons charged with “counterrevolutionary crimes,” a category which embraced economic crimes and “sabotage.”21 To give them guidance, the Commissariat of Justice, then headed by Steinberg, issued on December 21, 1917, a supplementary instruction, which specified that “in setting the penalty, the Revolutionary Tribunal shall be guided by the circumstances of the case and the dictates of revolutionary conscience.”22 How the “circumstances of the case” were to be determined and what exactly constituted “revolutionary conscience” was left unsaid.* In effect, therefore, the Revolutionary Tribunals, from their foundation, operated as kangaroo courts, which sentenced defendants on the basis of a commonsensical impression of guilt. Initially, the Revolutionary Tribunals had no authority to mete out capital punishment. This situation was reversed with the surreptitious introduction of the death penalty. On June 16, 1918, Izvestiia published a “Resolution” signed by the new Commissar of Justice, P. I. Stuchka, which stated: “Revolutionary Tribunals are not bound by any rules in the choice of measures against the counterrevolution except in cases where the law defines the measure in terms of ‘no lower than’ such punishment.” This convoluted language meant that Revolutionary Tribunals were free to sentence offenders to death as they saw fit, but were required to do so when the government mandated such punishment. The first victim of this new ruling was the Soviet commander of the Baltic Fleet, Admiral A. M. Shchastnyi, whom Trotsky accused of plotting to surrender his ships to the Germans: his example was to serve as a lesson to the other officers. Shchastnyi was tried and sentenced on June 21 by a Special Revolutionary Tribunal of the Central Executive Committee, set up on Lenin’s orders to try cases of high treason.23 When the Left SRs objected to this revival of the odious practice of the death penalty, Krylenko replied that the admiral “had been condemned not ‘to death’ but ‘to be shot.’ ”24