Document Type

Article

Disciplines

International Law

Abstract

Soviet doctrine distinguishes between the system of legislation and the system of law. In Soviet legal terminology, "legislation" encompasses all normative acts, including those issued by administrative-executive agencies, while "laws" refers to normative acts adopted by the legislature. When the system of legislation is categorized according to legal importance, a hierarchy emerges with the Constitution at the top and normative acts of local executive committees at the bottom. Such a legal hierarchy assumes the subordination of normative acts of a lower level to normative acts of a higher level and, ultimately, to the Constitution as the normative act of the highest legal force. The Soviet Constitution is described appropriately, by its own subtitle, as "the basic law," and it is officially deemed the primary law for the system of Soviet legislation.

In contrast, the system of law is characterized by its objective structure. Each provision regulates a specific legal matter (such as property or crime and punishment) by a specific method (such as an agreement between equal parties or a command addressed by ruling agencies to subordinate persons). All legal provisions which regulate homogeneous matters by identical methods constitute a separate branch of law (such as civil law or criminal law). All the branches of law, taken together, form the system of Soviet law.

It is true that Soviet legal scholars differ immensely in their analyses of the system of Soviet law. Disputes arise not only over the characterization of various branches of law, but also over the enumeration of those branches. However, two tenets are unanimously accepted, despite their mutual incompatibility: all branches are equal and independent from one another, but the state law,' since it includes all of the constitutional provisions, is the leading branch of Soviet law. Thus, although only the system of legislation may be "vertical" and, consequently, hierarchical, Soviet scholars insert hierarchical elements into the system of law, which is "horizontal" by definition and, consequently, should preclude subordination of its various components. Although this conclusion is vulnerable as a matter of logic, it corresponds to Soviet practice. The "horizontal" system of Soviet law, based in principle on the rule of equality, nevertheless includes a group of provisions that plays a leading role and constitutes the main branch of this system. But there exist no serious reasons, except for purely formal ones, that allow such a role to be attributed to state law in general or even to constitutional law.

In the USSR, the Constitution does not function directly. Even constitutional provisions concerning the structure of the state system and the jurisdiction of state agencies cannot be reasonably applied without special normative acts which set forth in detail rights and duties as well as procedures to be followed by the Council of Ministers, by Ministries, and by State committees. In these cases, however, the situation is relatively tolerable: state agencies provided for by the Constitution have been created and function absent the promulgation of appropriate statutes. At the same time, a great many constitutional rules remain inoperative until "sub"-constitutional statutes are adopted.

For example, the Constitution in force, commonly called the 1977 Constitution, states that "[the actions of officials committed in violation of law, in excess of their powers, and impinging upon the rights of citizens may be appealed to a court in the procedure established by law." But this procedure has only been projected, not established, although almost ten years have passed since the adoption of the Constitution. Therefore, a court may not implement its constitutional jurisdiction. More precisely, it may only hear disputes enumerated in special statutes. But any disputes, such as those connected with mistakes in voter lists, are of no interest to aggrieved persons; not one has ever been initiated in Soviet history. And if the application of constitutional rules depends on the promulgation of "sub"-constitutional statutes, then it is not the former but the latter which forms the main branch of Soviet law. Only administrative law can constitute such a branch.

Soviet legal literature generally defines administrative law as a branch of Soviet law which regulates relations arising in the course of the administrative-executive activities of state agencies. Several articles of the Constitution include in the class of administrative-executive state agencies the USSR Council of Ministers, Councils of Ministers of union and autonomous republics, and local executive committees. Thus, all matters arising as a consequence of current activities of those agencies are regulated by administrative law. This means, first, that the volume of administrative law is greater than the volume of any other branch of Soviet law; and, second, that all other branches of Soviet law depend on administrative law at least to a certain degree in both lawmaking and law-applying activities.

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