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Balance of Interests as a Principle of Civil Law: Some Aspects of Legal Consciousness

• Yury Alexandrovich SVIRIN Department Civil Procedural Law and Bailiff Organization Department, All-Russian State University of Justice, Moscow, Russian Federation
• Vladimir Viktorovich KULAKOV Department of Civil Law, Russian State University of Justice, Moscow, Russia Federation
• Alexandr Anatolievich MOKHOV Kutafin Moscow State Law University, Moscov, Russian Federation
• Sergej Nikolaevich SHESTOV Institute of Economics and Law, Academy of Labor and Social Relations, Sevastopol, Russian Federation
• Vladislav Petrovich SOROKIN Department of Civil Law and Process Ows, Academy of Labour and Social Relations, Moscow, Russian Federation

The research considers the category of reasonable balance of interests in the context of civil relations. The authors of the article highlight the need to restrict permissibility as a method of civil regulation aimed at protecting the rights and interests of the weaker party in some legal relations. A reasonable balance of interests is ensured by laws and agreements, whose conditions become the subject of a judicial dispute in the absence of a mandatory rule. The authors have analyzed judicial acts conditioned by the need to maintain a reasonable balance of interests. As a result, they have determined that the first condition for applying the fair balance principle is the equivalence of counter-performance in the absence of both excessive benefits and excessive losses for the parties. The second condition is the party-related division in some civil relations. The authors have concluded that the risks of negative consequences should not be borne only by the weaker party if the latter could not reasonably foresee the consequences upon concluding the relevant agreement. Methods. The study is based on the comparative analysis of the Russian scientific doctrine and judicial practice. The main approach to the analysis of the legal tools in question is the method of system analysis. In addition, the authors used the structural-functional method and general scientific methods of cognition. The study aims at determining the principle of a reasonable balance of interests in civil law, its essence, necessity and expediency in the system of law enforcement. The authors aim to define conditions for applying legal norms to achieve a reasonable balance of interests among all parties in disputed legal relations. Results. The study results let the authors claim that the risks of negative consequences should not be borne only by the weaker party if it could not reasonably foresee such consequences upon concluding the agreement and the imbalance of interests among parties in civil-legal relations is caused by the violation by one or another party of the principles of fair practice and reasonableness . Although a reasonable balance of interests is a counterweight to the principles of contractual freedom and free will, courts should apply it to ensure the right of justice.

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Hugo Dewar 1957

The Moscow Trials ‘Revised’

Source : Problems of Communism , Volume 6, no 1, January-February 1957. Scanned and prepared for the Marxist Internet Archive by Paul Flewers.

For many years Soviet propagandists and pro-Soviet Western observers presented ‘Soviet justice’ as a forward step in the advancement of legal science. Thus, the British jurist DN Pritt wrote, in a contemporary eulogy of the Moscow purge trials of the 1930s, that ‘the judicature and the prosecuting attorney of the USSR [Andrei Vyshinsky] have established their reputation among the legal systems of the world’. [1] Pritt was not at all disconcerted by the singular fact, unparalleled in Western jurisprudence, that the accused in the Soviet trials did not raise a finger to defend themselves, but instead confessed with seeming eagerness to the most heinous crimes. The Soviet government, he blandly stated, ‘would have preferred that all or most of the accused should have pleaded not guilty and contested the case’. [2]

The naïveté, or wilful blindness, of such statements has long been apparent. As early as 1937, an independent commission of inquiry conducted an exhaustive investigation into the Moscow trials of 1936 and 1937 and found them to be clear-cut travesties of justice. [3] The commission’s findings were bolstered by an ever-mounting accumulation of evidence regarding the methods employed to produce the victims’ obviously abnormal eagerness to sign their own death warrants.

Today not even the most naïve apologist can continue his self-deception. At the Twentieth Congress of the CPSU the myth was broken for all time when Nikita Khrushchev, in a secret report to a closed session of the congress, revealed the depths to which Soviet ‘justice’ had sunk:

Stalin originated the concept ‘enemy of the people’. This term automatically rendered unnecessary that the ideological errors of a man or men engaged in a controversy be proven... The formula was specifically introduced for the purpose of physically annihilating such individuals... [4]

It is significant, however, that, in denouncing ‘violations of socialist law’, Khrushchev made no direct mention either of the show trial as such, or of its exportation to the satellites. His remarks about Zinoviev and Kamenev and about the ‘annihilation’ of Lenin’s closest colleagues as ‘enemies of the party’ were furthermore clear attempts to restrict the discussion to ‘violations of socialist law’ in the period following Kirov’s assassination in December 1934 – to the great trials and purges of the 1930s. [5]

This effort is a transparent indication that the present collective leadership cannot make a decisive, radical break with their Stalinist past. It is to Stalin that the present Soviet leaders owe their positions, and it was during his reign that their methods of ‘governing’ and dispensing ‘justice’ were decisively moulded. That is why Khrushchev and his colleagues will not admit that the genesis of the Stalin-type inquisitorial trial goes much farther back than 1934, indeed, as far back as 1922.

The idea of exploiting the judicial trial of political opponents for the purpose of ‘educating’ the masses was first given concrete expression in 1922, when a trial of 22 prominent members of the Social Revolutionary Party was staged. At that time the technique of the show trial had not been perfected, and only ten police stooges consented to play the role of cringing penitents and government propagandists. At first, the state was content with this number and even permitted the rest to defend themselves stoutly. They openly proclaimed their political convictions and even refused to recognise the court. Just prior to the trial, the Bolsheviks entered into an agreement in Berlin with representatives of the international socialist movement by which several prominent socialists were invited to participate in the defence; and in the early stages of the trial they were very active on behalf of the accused. As the trial progressed, however, the intolerable contradictions between accepted conceptions of justice and a Soviet-sponsored political trial were revealed. Bit by bit the essential elements of the show trial, with which the world later became familiar, emerged.

The presiding judge struck the keynote for the proceedings by declaring that the court would be guided not by objective considerations but by the interests of the government. During the course of the trial Bukharin declared the Berlin agreement null and void, and this, coupled with the prosecution’s obstructive tactics, caused the foreign socialists to withdraw. Perhaps most important in the development of the show trial, however, was the first utilisation of the technique of agitating against the accused outside of court. Yuri Pyatakov, the president of the tribunal, spoke at one of the mass demonstrations, as did Bukharin, who applauded the role played in the trial by the ten who had ‘confessed’. [6]

In the course of the next few years the show trial was gradually brought to a high stage of perfection. ‘Evidence’ was manufactured and, by means of inhuman tortures, the accused were brought into court ‘prepared’ to cooperate in arranging their own destruction. During the course of the so-called Shakhty trial (1928), for example, a group of engineers, personifying the ‘bourgeois specialists’, took the blame for the country’s chronic economic ills and accused foreign ‘interventionist circles’ of directing their sabotage. [7] By 1930 the technique had been further perfected, and during the Industrial Party trial every single one of the accused confessed to ‘planned’ sabotage in drafting or implementing the First Five-Year Plan. One of the witnesses, brought in under heavy GPU guard, was Professor Osadchy, formerly a member of the CEC (Central Economic Council) of the Supreme Soviet, and assistant chairman of the State Planning Commission. Incredible as it may seem, Osadchy, who was one of the prosecutors at the Shakhty trial, confessed to having plotted with the very men whom he had sentenced to death in 1928! [8]

Stalin’s speech at the Sixteenth Congress (June-July 1930) gave at least the outward rationale for all the great Moscow trials. [9] His thesis was that whenever the contradictions inherent within the capitalist system grow acute, the bourgeoisie tries to solve them by turning on the Soviet Union. By the bourgeoisie Stalin meant primarily foreign nations, but his main purpose was to justify the purge of internal opposition to his rule. The vast international ‘plots’ which were uncovered regularly involved certain native Communists; often these were among the most celebrated of the revolutionary heroes, their ‘crimes’ consisting in their opposition to Stalin’s dictatorship. Without respect to their previous service, these men were condemned as saboteurs working in collaboration with the outside enemy to wreck the economy of the Soviet Union.

Thus, the Great Purge, as well as the thousands of unpublicised local purges, served the double purpose of removing those who opposed Stalin and of providing for the population an ‘explanation’ of the continuing low standard of living. Vyshinsky made the point in the following manner:

It is now clear why there are interruptions of supplies here and there, why with our riches and abundance of products, there is a shortage first of one thing and then of another. It is these traitors who are responsible. [10]

Vyshinsky also underlined the connection between the various trials. Stalin’s thesis had been proved, he said: all the trials had uncovered ‘systematically conducted espionage... the devilish work of foreign intelligence...’. [11]

Characteristically, although it was ostensibly against Stalin’s thesis and its implications that Khrushchev railed at the Twentieth Congress, his anger was aroused most of all by the fact that Stalin’s wrath had been turned against the party itself:

Using Stalin’s formulation... the provocateurs who had infiltrated the state security organs together with conscienceless careerists... [launched] mass terror against party cadres... It should suffice to say that the number of arrests based on charges of counter-revolutionary crimes had grown ten times between 1936 and 1937. [12]

Khrushchev summed up the Stalin era in anguished tones:

In the main, and in actuality, the only proof of guilt used, against all norms of current legal science, was the ‘confession’ of the accused himself; and, as subsequent probing proved, ‘confessions’ were acquired through physical pressures against the accused. [13]

Khrushchev’s speech is a masterpiece of hypocrisy. To be sure, of the 1966 delegates to the Seventeenth Party Congress (1934), 1108 were arrested on charges of counter-revolutionary activity. But Khrushchev well knows that it was not a question of ‘subsequent probing’: every leading Communist in the Soviet Union knew at the time what was going on. They were aware that the ‘confessions’ were shot through with contradictions and obvious absurdities; they knew that the trials were frame-ups.

As a matter of fact, Khrushchev’s speech itself corroborates our previous evidence that the Politburo was well aware of what was going on:

At the February-March Central Committee Plenum in 1937 many members actually questioned the rightness of the established course regarding mass repressions under the pretext of combating ‘two-facedness’. [14]

Khrushchev thus confirms that opposition to Stalin’s iron-heel policy was expressed even within the Politburo. People who had employed the most despicable methods against both non-party and party opponents began to voice ‘doubts’ when the police terror menaced them. Among those who ventured to speak up in 1937 was Pavel Postyshev, candidate member of the Politburo. Indeed, Khrushchev said that Postyshev expressed his doubts ‘most ably’, as did Stanislav Kossior, a member of the Politburo – both were liquidated. Other prominent Stalinist victims of the monster they themselves helped create were Vlas Chubar, Yan Rudzutak, Grigory Petrovsky and Robert Eikhe: all men of the Lenin era who had thrown in their lot with Stalin in his struggle for power.

How was it, then, that Molotov, Mikoyan, Voroshilov, Khrushchev and others survived? They saved themselves either by keeping their mouths shut or, where their closeness to Stalin made this impossible, by sedulously fostering the cult of the ‘brilliant leader’. Certainly Khrushchev was not unaware of what was going on. Kossior, for example, was purged in the Ukraine while he was closely associated with Khrushchev.

Without speculating about the possible splits and rivalries within the top leadership of the CPSU revealed by the varying degrees of vehemence with which individual Soviet leaders condemned Stalin’s ‘cult of personality’, the central goal of the leadership as a whole is perfectly obvious. Khrushchev and his supporters are vitally concerned with ‘rehabilitating’ the party and strengthening its authority vis-à-vis the police apparatus. The terrors of the Stalinist era left party cadres either demoralised and spiritless or, much worse, cynically and brutally opportunistic. In any event, the leadership felt that the support of the new generation of Communists – the managerial caste and the intellectuals – required assurances that the days of arbitrary terror were over. In Khrushchev’s words:

Arbitrary behaviour by one person encouraged and permitted arbitrariness in others. Mass arrests and deportations of many thousands of people, execution without trial and without normal investigation created conditions of insecurity, fear and even desperation. [15]

The exportation of the macabre and revolting confessional trial to Eastern Europe was never much of a success. The process that had transformed the CPSU into a terrorised and docile instrument of the leader took 14 years; in Poland, Bulgaria and Hungary it was telescoped into less than four years – somewhat longer in Czechoslovakia and Rumania. During this time the weak satellite Communist parties (only in Czechoslovakia could the Communists claim any sizeable following) were deprived of their ablest leaders. It was clear from the trials, moreover, that these leaders were imprisoned and executed because they attempted to stand up to the Soviet Union and that the leaders who remained were mere Soviet satraps. The confession trials of ‘national Communists’ therefore destroyed what little basis the Communist parties had for claiming to represent national interests, or even the interests of the industrial workers. At the same time, they failed dismally to destroy either national sentiment among the people or Titoist tendencies within the rank-and-file of the Communist parties.

Quite on the contrary, there can be no doubt that the confession trials in Eastern Europe played a great role in enhancing anti-Soviet feeling and in undermining the Communist parties’ faith in themselves. The enormous crowds that attended the reinternment of Rajk in Hungary after his posthumous rehabilitation were symptomatic of the anti-Soviet mood that had been generated by the ‘educational’ methods of Soviet-inspired ‘justice’. The bloodless revolt in Poland and the heroic uprising of the Hungarian workers, peasants and intellectuals were due in large part to the exposure of Soviet methods and aims which resulted from the export of the ‘modern inquisition’. The people of the satellite nations share with the Russian people a deep and bitter hatred of the secret police, and a deathless desire to end the insufferable horrors which the confession trial represented.

That the Soviet leaders were, and remain, keenly aware of this was implicit in their repudiation at the Twentieth Congress of the Stalinist inquisition and in the gradual steps that have been instituted to correct some of the more objectionable features of the police and judicial apparatus. They obviously are attempting to restore public confidence in a party and system that had become thoroughly and openly compromised. In so doing, however, they paradoxically underlined still further the bankruptcy of the system that claimed to have produced that ‘glorious workers’ paradise’, the ‘most advanced country in the world’, and they reveal nakedly their inability to cast off the imprint of this system of terror and ‘educational justice’.

1. DN Pritt, The Moscow Trial Was Fair (Russia Today, London, nd).

2. DN Pritt, The Zinoviev Trial (Gollancz, London, 1936).

3. This Commission was headed by the noted American philosopher, John Dewey. Its findings were published in two books: The Case of Leon Trotsky (Secker and Warburg, London, 1937); and Not Guilty (Secker and Warburg, London, 1938).

4. The Anti-Stalin Campaign and International Communism: A Selection Of Documents (Columbia University Press, New York, 1956), p. 13.

5. For a full discussion of these trials see this author’s The Modern Inquisition (Allan Wingate, London, 1953).

6. The most complete record of this trial is in VS Voitinski, The Twelve Who Are About To Die (Delegation of the Party of Socialists-Revolutionists, Berlin, 1922). The death sentences passed against the accused were never carried out.

7. No official records of this trial have been published. Of secondary sources, the best are HH Tiltman, The Terror in Europe (Frederick A Stokes, New York, 1932); and Eugene Lyons, Assignment in Utopia (Harcourt, Brace, New York, 1937), especially pp. 114-33.

8. Andrew Rothstein (ed), Wreckers on Trial (Modern Books, London, 1931).

9. Some of the sources on the most important Moscow trials are the following: on the 1931 Menshevik trial – The Menshevik Trial (Modern Books, London, 1931); on the 1933 Metropolitan-Vickers Industrial Company Trial – The Case of NP   Vitvitsky... [and others] Charged With Wrecking Activities at Power Stations in the Soviet Union (three volumes, State Law Publishing House, Moscow, 1933); on the 1936 trial – The Case of the Trotskyite – Zinovievite Terrorist Centre (People’s Commissariat of Justice of the USSR, Moscow, 1936); on the 1937 trial – Report of Court Proceedings in the Case of the Anti-Soviet Trotskyite Centre (People’s Commissariat of Justice of the USSR, Moscow, 1937); on the 1938 trial – Report of Court Proceedings in the Case of the Anti-Soviet ‘Bloc of Rights and Trotskyites ’ (People’s Commissariat of Justice of the USSR, Moscow, 1938).

10. Report of Court Proceedings in the Case of the Anti-Soviet ‘Bloc of Rights and Trotskyites ’, pp. 636-37.

11. Report of Court Proceedings in the Case of the Anti-Soviet ‘Bloc of Rights and Trotskyites ’, pp. 636-37.

12. The Anti-Stalin Campaign , p. 30.

13. The Anti-Stalin Campaign , p. 12.

14. The Anti-Stalin Campaign , p. 29.

15. The Anti-Stalin Campaign , p. 14.

Hugo Dewar Archive