Between Exception and Normality: Schmittian Dictatorship and the Soviet Legal Order

• Published date: 01 June 2022
• Author: Anna Lukina
• Date: 01 June 2022
• DOI: http://doi.org/10.1111/raju.12355

Ratio Juris. Vol. 35 No. 2 June (139–157)

Between Exception and Normality:

Schmittian Dictatorship and the Soviet

Legal Order

ANNA LUKINA*

Abstract. This article addresses Schmitt’s concept of sovereign dictatorship— a departure from

the normal legal order aiming to bring about a new mode of legality— as applied to the Marxist,

and then Soviet, “dictatorship of the proletariat.” Unlike Schmitt, Marx and Engels, as well as

Soviet legal theorists, saw the space for law even while aiming to dispense with the legal form

on the road to communism. This is best explained by Schmitt’s failure to recognize the impor-

tance of legal systems not only for controlling social conflict, but also for coordination, the need

for which does not disappear in extraordinary circumstances.

1. Introduction

For most of us, law is a palpable presence in the way we organise politically. But

can it be otherwise? To the present day, Carl Schmitt’s writing on law and the state

reinvigorates discussions about their nature and their relationship to each other. One

of the biggest achievements of Schmitt’s scholarly output is explaining both the pos-

sibility and the indispensability of a functioning state without a legal system. The

legal order, according to Schmitt, is not constitutive of the state, but subordinate to it

and highly contingent on the circumstances in which the sovereign finds themselves.

In emergency situations, such as the need to defend the current legal order from de-

struction or to effect a transition to a new legal order, it can be necessary to act above

the law.

Schmitt’s approach is, ultimately, sociological and draws from concrete legal

orders, ranging from the Roman Empire to the Weimar Republic. Thus, it is appro-

priate to focus on Soviet law as another site of Schmittian enquiry, a site largely

neglected in the secondary literature. Schmitt briefly mentioned communist legal

systems first in Dictatorship (1921) (Schmitt2014, xxxix, xli, 179) and later in Theory

of the Partisan (1963) (Schmitt2007, 33– 6, 38). Marxist teaching on law and its im-

plementation in the Soviet state were, to him, yet another example of how the state

can exist without law.

As Marx said in his Critique of the Gotha Programme (1870),

© 2022 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

* This article was initially written as part of my LLM studies at Harvard Law School. I thank my

supervisor, Professor Adrian Vermeule, for his guidance and advice, as well as other friends

(and enemies) for motivating my project. I am also grateful to the Ratio Juris production team for

their exceptionally thorough editing of my original text. Any mistakes remain my own.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,

which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial

and no modifications or adaptations are made.

Anna Lukina

140

Ratio Juris, Vol. 35, No. 2

[b]etween capitalist and communist society there lies the period of the revolutionary transfor-

mation of the one into the other. Corresponding to this is also a political transition period in

which the state can be nothing but the revolutionary dictatorship of the proletariat. (Marx1989, 95;

emphasis in the original)

While Schmitt conceived of this dictatorship as (i) an extralegal transition to (ii)

a nonlegal order, Marx, Engels, and their intellectual heirs had to adjust this as-

piration to the practical demands of a revolutionary state. As such, they had to

mitigate this rejection of legality by opening up some space for law at both stages

(i) and (ii).

This trend, culminating in a return to the Rechtsstaat in both Soviet practice

and theory in the early 1930s, was a product of a certain difficulty with Schmitt’s

account of sovereign dictatorship. I argue that Schmitt conceived of legal rules as

only tasked with mediating social conflict by encouraging or proscribing certain

behaviour. While this is definitely a part of the function of law, legal norms are

also indispensable for coordinating behaviour, which makes them hard to cast

aside even if one actively seeks to step away from the constraints and demands

of the legal form. This was particularly important for Soviet legal theorists, who

confronted the need for coordination firsthand by having to build a new social

order.

2. “Proletarian Dictatorship” in Schmitt’s Political Thought

2.1. Schmitt’s View of Legality

In order to understand Schmitt’s concept of dictatorship, one needs to survey his

view of law, the most complete synthesis of which can be found in On the Three

Types of Juristic Thought (1934) (Schmitt2004). He contrasts his preferred mode of

thinking— concrete- order thinking (konkrete Ordnungsdenken)— with its counter-

parts, normativism and decisionism. Normativists conceive of law as a system of

rules that apply to conduct independently of it (ibid., 48– 9). A perfect example

is Kelsen’s “pure theory of law” (ibid., 133, n. 8), which Schmitt himself took on

repeatedly in his work (Lindahl2015, 39– 45). The decisionist approach sees the

foundation of law as an act of will of a sovereign authority. Law consists of small-

scale decisions and cannot be accounted for in a systematic impersonal way as nor-

mativists conceive it (Schmitt2004, 59– 60). Schmitt(2004, 61– 2) cites Hobbes(1909,

143), for whom all laws were essentially decisions of the sovereign, explained by

reference not to a higher- order norm, but to that ruler’s authority. A more mod-

ern equivalent would be legal realism, which eschews the significance of legal ra-

tionality in judicial decisions and conceives of them on their own (Cohen1935).

The sociological approach underpinning concrete- order theory connects the

system- thinking of normativism with the realism of decisionists. According to

Schmitt(2004, 54), a legal order is a product of specific circumstances requiring

joint action akin to similar orders such as marriages, families, churches, and ar-

mies. In Lindahl’s formulation, it provides a framework for collective action when

it is needed, joining separate agents by imposing different, but interconnected,