Fundamentals of the Legislation of the Union SSR and the Union Republics in the Centralization of the Legislative Space of the USSR (the Second Half of the 1950s - 1970s)

Kodan Sergei Vladimirovich Doctor of Law Honored Lawyer of the Russian Federation; Chief Scientific Associate, Department of Scientific Research Governance; Professor, Department of Theory of State and Law, Ural State Law University 620137, Russia, Sverdlvskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21, of. 210 svk2005@yandex.ru Other publications by this author

The formation of a single legislative space in a complexly organized state – in an empire or federation - has always faced the supreme state power. This problem was not spared by the Soviet socialist federative states – first the RSFSR, and then the USSR. A characteristic feature in the development of the USSR was a political and legal phenomenon that can be described as "Soviet legislative federalism", which was characterized by the presence of a two-level system of legislation consisting of all-Union (national) and republican (federal subjects) legalizations. Accordingly, the creation of a single legislative space in the USSR was a politically and organizationally urgent task facing the Communist Party – the RCP(b)-the CPSU and the Soviet Union State – the USSR. These issues were resolved through a well-known and proven technical and legal means – codification of legislation with active use in the second half of the 1950s - 1980s. Fundamentals of the legislation of the USSR and the Union Republics in conjunction with the codification of the laws of the Union republics.Within the framework of this article, we will focus on the place and role of the Fundamentals of the legislation of the USSR and the Union Republics as a political and legal instrument and the type of codified acts that were used in the second half of the 1950s - 1980s to ensure a unified legislative space in the USSR.

The formation and maintenance of the functioning of the unified legislative space of the USSR in 1922 – in the early 1980s was the focus of attention of political and power structures – the party and the state at the level of the USSR.

With the formation of the USSR, the issues of coordination and unification of the legislative array of the Union state were put forward among the priorities in terms of their political and legal significance. And although the Soviet republics that became part of the USSR earlier, before joining the Union state, were guided and basically copied the state structures and legislation of the RSFSR, their legalizations contained many local features that reflected the specifics of the organization of power and legal regulation in state-national entities - now republics within the USSR.At the heart of building "legislative federalism" was the idea of creating a legislative system through the organization and coordination of an array of legalizations at two levels – union and republican.

 At the same time, the idea itself was not new - even in the Russian Empire there was a level of general imperial laws and local legalizations and, accordingly, it was created and functioned since the mid-1830s. The Code of Laws of the Russian Empire and work was carried out on the preparation of codes of laws of individual national regions ^[9]. And although the codes of local laws were not created, the problem itself remained. Accordingly, the levels of national (federal) and local (republican) legislation were maintained in the USSR.

The codification of legislation, already proven and justified in 1917 – 1922 in the creation of a unified legal space and legality in the RSFSR, was a sought-after experience and model for building legal regulation and streamlining the legislative array in the USSR ^[2]. The systematization of legislation as a kind of legal activity was expressed in carrying out work to streamline the existing regulatory legal acts and aimed at giving the legislative array an orderly and clearly structured character, it was combined with solving problems related to the development of the state legal system of Soviet society ^[8]. This work in the USSR took place under the leadership and direct participation of the central and republican party bodies - the Central Committee of the CPSU (b)-the CPSU and the Central Committee of the Communist Parties of the republics subordinate to it. The latter, through the legislative activity of the Soviet state in the person of the supreme state authorities of the USSR and the Union republics, legalized and enforced through laws and legal acts the ideological attitudes and political decisions of the Communist Party.

It is characteristic that the separation of two levels of laws in the USSR was determined by the Treaty on the Formation of the USSR in 1922.. It established that "the following subjects of competence are subject to the jurisdiction of the Union of Soviet Socialist Republics, represented by its supreme bodies: "general Union legislation on resettlement" (item "sch"), "establishment of the foundations of the judicial system and judicial proceedings, as well as civil and criminal Union legislation" (item "o"); "establishment of basic labor laws" (item "p"); "basic legislation in the field of union citizenship with respect to the rights of foreigners" (item "f").

The subsequent constitutional registration of the USSR preserved the approaches of the Treaty on the Formation of the USSR of 1922 to the organization of the legislative space of the Union state. The Constitution of the USSR of 1924 included the provisions of this in its composition and in Article 1 retained the former competence of the USSR in the field of legislation. The same trend was left by the Constitution of the USSR of 1936 – in Article 14 it was stated that "the Union of Soviet Socialist Republics, represented by its highest authorities and public administration bodies, are subject to" respectively in paragraphs " f) the establishment of the fundamentals of labor legislation; x) legislation on the judicial system and judicial proceedings; criminal and civil code; c) laws on union citizenship; laws on the rights of foreigners."

In the period after the creation of the USSR and until the mid-1950s, the issues of maintaining the legislative unity of the USSR were certainly in the field of attention of the party and the state. After the adoption of the Constitution of the USSR in 1924, the commissions of the Presidium of the CEC and the Council of People's Commissars of the USSR prepared drafts and in October of the same year the CEC of the USSR approved as all-Union laws the Basic Principles of criminal legislation of the USSR and the Union Republics; the Foundations of Criminal Proceedings of the USSR and the Union Republics and the Regulations on Military Crimes ^{[13, pp. 169-207]}. Work on the preparation of codified acts of a union-wide nature was carried out before and after the Great Patriotic War, but many of the projects created did not receive legislative recognition ^{[20, pp. 259-392]}. A new stage in the development of mechanisms for ensuring the unity and centralization of the legislative space of the USSR is associated with the second half of the 1950s.

The codification of the legislation of the USSR and the Union Republics in the second half of the 1950s — 1980s was initially associated with ideological and political transformations after the Twentieth Congress of the CPSU (1956). The decisions of the latter were aimed at overthrowing the "cult of personality" of I. V. Stalin and proclaiming a course to return to "Leninist principles"the development of various spheres of life of Soviet society, the expansion of the sovereignty of the Union republics, the strengthening of democratic centralism and the increase in the level of socialist legality.

In line with the decisions of the XX Congress of the CPSU, on February 11, 1957, the Supreme Soviet of the USSR adopted the law "On attributing to the jurisdiction of the Union Republics legislation on the establishment of courts of the Union Republics, the adoption of civil, criminal and procedural codes". It determined – "To refer to the jurisdiction of the Union republics the legislation on the structure of the courts of the Union republics and judicial proceedings, as well as the adoption of civil and criminal codes, while maintaining the jurisdiction of the USSR the establishment of the foundations of legislation on the judicial system and judicial proceedings, the foundations of civil and criminal legislation" (art. 1). The law also determined – "To state paragraph p. "x"Article 14 of the Constitution of the USSR as follows: "x) establishment of the foundations of legislation on the judicial system and judicial proceedings, the foundations of civil and criminal legislation"" Article 2). This law, with the amendment of the provisions of the USSR Constitution of 1936, brought the Foundations of the legislation of the USSR to the level of practically constitutional legislation. A.V. Mickiewicz notes on this occasion: "The Constitution of the USSR and the Constitutions of the Union republics determine the main line of distribution of competence between the subjects of the Soviet Federation. But the constitutions cannot solve all the issues of the distribution of competence in the field of legislation between the USSR and the Union republics. These issues are resolved by the Union Bases of legislation" ^{[14, p. 66]}.

Since the second half of the 1950s, in fact, a course was taken for the complete codification of the sectoral legislation of the USSR with the construction of two levels of codified acts - the Fundamentals of the legislation of the USSR and republican codes. At the same time , it is necessary to take into account the preservation of continuity with the previous stages of the development of Soviet legislation and even, by pre-revolutionary practices of ordering legalizations ^[4].   

The political and legislative decisions of the CPSU and the Soviet state distributed the levels of legislative powers between the USSR and the Union republics and outwardly somewhat expanded the legislative rights of the latter. But at the same time, for the party and state authorities, the problem of centralization and ensuring the unity of the legislative system in the USSR certainly remained a priority. For all the "political arguments" of the CPSU and the Union State about the "expansion" of the competence of the Union republics, there was really no question of transferring powers to them for the development of the main branches of legislation. After the adoption of these amendments to the Constitution of the USSR in 1936, an unambiguous approach to the two–level codification of sectoral legislation was determined, determining the existence of a subordinate system of codified acts at the levels of "union - Union republics".  With this approach, the Fundamentals of the legislation of the USSR acted as "a tool that, without detracting from the formal independence of the Soviet republics in the field of codification, could significantly limit the flight of imagination of republican legislators" - rightly emphasizes A. A. Petrov ^{[15, p. 20]}.

The legal nature of the Fundamentals of the legislation of the USSR and the Union Republics shows their place and purpose in the legal policy of the Soviet state and characterizes this type of legislative acts in several projections. The latter allow us to focus on the essential characteristics and features of the Fundamentals of the legislation of the USSR as the main instrument of centralization and ensuring the legislative unity of the USSR ^[7].

The fundamentals of legislation ensured the unity of legislative regulation in the USSR, their purpose was to exclude "the parallelism of the federal legislation and the legislation of the constituent parts of the federation" and, accordingly, "the foundations cement the unity of the all-Union and republican legislations" - emphasizes L. S. Zivs ^{[6, p. 91]}. At the same time, the foundations also contained a fairly large number of general norms that limited the possibilities of the republican legislator in the independent legal regulation of public relations.

The fundamentals of legislation in the hierarchy of legislative acts in the USSR occupied the second place after the Constitutions of the USSR and stood out as a special type of union laws ^{[16, p. 130-149]}. This was manifested in the fact that the Union laws, "having greater legal force than the corresponding republican laws and codes, create a legal basis for them. In the republican laws and codes, the general provisions of the Fundamentals of Legislation are reproduced, individual provisions are specified  The foundations, the norms reflecting the specifics of the republics and their competence are established," Yu. A. Tikhomirov notes ^{[19, p. 56]}. Accordingly, there were peculiarities in the preparation, adoption and entry into legal force of the Union bases of legislation.  The publishing house "State Publishing House of Legal Literature" / "Legal Literature" periodically published separate editions of the fundamentals and collections of these types of laws under the general title "Fundamentals of Legislation Of the USSR and the Union Republics".

The fundamentals of legislation acted as codification acts and were recognized among them as "the most important", since at the level of the USSR they went, as A. L. Makovsky notes, "along the path of concentrating all the norms of each branch of legislation in one internally systematized act" ^{[12, p. 178]}. The use of this form of codification meant "establishing in almost every act adopted in the form of Foundations its priority over other laws of the USSR and codified acts of the Union republics" - emphasizes A. A. Petrov ^{[15, p. 21]}.

The fundamentals of legislation determined the levels of sectoral legislation in the USSR according to the scheme "union foundations - the Code of the Republic", which were "organically interconnected". In this bundle, the fundamentals of legislation "lay the fundamental basis for the codification of this branch of law, and codification begins with them. Republican codes complete the codification of the branch of law. Ultimately, the Fundamentals (Basic Principles) and the republican codes act in unity, in combination," S. S. Alekseev notes ^{[1, p. 257]}.

The fundamentals of legislation determined the beginnings of the regulatory content of branches of legislation in the USSR, since, as A. V. Mickiewicz notes, "the most important principles and institutions of this branch of law are fixed, from which all subsequent legislation of the USSR and republics, all by-laws developing this area of legislation should proceed" ^{[14, p. 68]}.

These characteristics determined the special importance of the Foundations of the legislation of the USSR in ensuring the unity and centralization of the legislative space in the USSR. But their appointment was certainly not limited to this – the preparation and publication of the Union bases of legislation and republican codes contributed to the modernization of the country's legal system, filling gaps in legal regulation and ensuring socialist legality and law and order. At the same time, the course of codification works with the involvement of leading jurists influenced the development of legal science – in research practices, the history and forms of systematization of legislation were studied, the problems of the relationship between the legal system and the legislative system, the legal technique of systematization of legalizations, etc. were analyzed. Based on this research experience, an array of scientific papers and scientific and practical comments appeared, which gave a new impetus to the development of theoretical and applied foundations for the systematization of legislation in the USSR-RSFSR ^[17;18].    

The work on the codification of all-Union legislation in the second half of the 1950s - early 1980s was mainly concentrated under the leadership of the Legal Commission under the Council of Ministers of the USSR, which combined the main functions of state bodies in this area. In the course of its work, the problems of the system of Soviet legislation, general parameters and principles of the latter's construction, and drafts of codified acts were discussed. Since November 1956, this commission has begun work on the preparation of projects  Fundamentals of the legislation of the USSR. The first drafts of the fundamentals of criminal legislation and legal proceedings were prepared, on the basis of which the procedure was tested and experience was accumulated in working out and approving documents. For project work, employees of various central state bodies were involved – the USSR Prosecutor's Office, the Ministry of Internal Affairs, etc. The best scientific personnel of research institutions and universities of the country were also involved in the work. The journals "Soviet State and Law" were involved in the publication and discussion of the projects  and "Socialist legality". Subsequent drafts of the fundamentals were prepared and discussed according to the scheme worked out by the commission ^{[20, pp. 314-315]}. In the Union republics, draft codes were prepared in the relevant departments of the apparatus of the Supreme Soviets with the methodological assistance of the Union state authorities and research institutions.   

In December 1958, the Supreme Soviet of the USSR adopted: The Fundamentals of Criminal Legislation of the USSR and the Union Republics; the Law on Criminal Liability for State Crimes; the Law on Criminal Liability for Military Crimes; the Fundamentals of Criminal Proceedings of the USSR and the Union Republics. Fundamentals of legislation on the judicial system of the USSR and the Union Republics, Regulations on military tribunals. It is characteristic that already in the Law of the USSR "On the approval of the Fundamentals of the criminal Legislation of the USSR and the Union Republics" of December 25, 1958, Article 4 prescribed – "Instruct the Supreme Soviets of the Union Republics to bring the legislation of the Union Republics in line with the Fundamentals of the criminal legislation of the USSR and the Union Republics." At the same time, Article 2 of the Fundamentals – "Criminal Legislation of the USSR and the Union Republics" - clearly stated – "The criminal legislation of the USSR and the Union Republics consists of these Fundamentals defining the principles and establishing general provisions of the criminal legislation of the USSR and the Union Republics, Union-wide laws providing for responsibility for individual crimes, and criminal codes of the Union republics. All-Union criminal laws define responsibility for state and military crimes, and, if necessary, also for other crimes directed against the interests of the USSR."

At the same time, it should be noted that the codification of the Union laws that began was initiated precisely from the sphere of criminal law policy and regulation as the most actively used in the repressions of the Stalinist regime. This draws the attention of the well - known Russian jurist academician V. N. Kudryavtsev - "The Communist Party and the Soviet Government pay unflagging attention to the strengthening of socialist legality. As you know, during the cult of personality, as a result of the hostile activities of the criminal gang of Beria and his agents, serious violations of the rule of law were committed, from which many honest communists and non-party Soviet people suffered. These violations were uncovered by the Central Committee of the CPSU and liquidated by the organs of Soviet justice under the leadership of the party. The adoption of new criminal legislation also aims to eliminate those gaps and inaccuracies in criminal laws that could serve as a loophole for violators of socialist legality, exclude any possibility of an indefinite, unclear interpretation of the provisions and norms of criminal law, further strengthen the guarantees of personal inviolability and protection of the rights of Soviet citizens" ^{[11, p. 7-8]}.

On the basis and in accordance with the Fundamentals of the Criminal Legislation of the USSR and the Union Republics, the republican criminal legislation was codified – in 1959-1961, the criminal and Criminal procedure codes of the Union republics were adopted. The Criminal Code and the Criminal Procedure Code of the Uzbek SSR and the Kazakh SSR were the first to follow. In the RSFSR , the Criminal Code and the CPC were adopted on October 27 , 1960 . At the same time, we note that the Criminal Code of the RSFSR, approved by the Law of the RSFSR of October 27, 1960, in Article 2 - "The Criminal Code of the RSFSR and the All-Union criminal legislation" – defined the main issues of the correlation of the Foundations of the criminal legislation of the USSR and the Criminal Code of the RSFSR - "The Criminal Code of the RSFSR proceeds from the principles and general provisions established by the Foundations of Criminal Legislation Of the USSR and the Union Republics". Accordingly, "all-Union laws on criminal liability for state crimes and for military crimes, as well as all-Union laws defining responsibility for other crimes directed against the interests of the USSR, are included in this Code. Prior to the inclusion of All-Union criminal laws in the Criminal Code of the RSFSR, they are applied directly on the territory of the RSFSR."

These approaches, tested in the field of criminal and criminal procedure legislation, were used both in the preparation of the foundations and in other branches of legislation and in the creation of codes of the Union republics corresponding to them, taking into account the specifics of legal regulation. For example, the Fundamentals of Civil Legislation of the USSR and the Union Republics in Article 3 – "Civil Legislation of the USSR and the Union Republics" - defined – "In accordance with these Fundamentals, civil codes and other acts of civil legislation of the Union Republics regulate property and personal non-property relations, both provided for by the Fundamentals and not provided for by them."

In subsequent years, a large amount of work was carried out at the Union and republican levels to codify industry legislation. The Fundamentals of the legislation of the USSR and the Union Republics were adopted: civil proceedings - 1961, civil - 1961, on marriage and family - 1968, land - 1968, on health care - 1969, correctional labor - 1969, on labor -1970, water - 1970, on public education - 1972, on subsoil - 1975, forestry - 1977, on administrative offenses - 1980, housing - 1981. The branch codes corresponding to the specified fundamentals of the legislation of the USSR were adopted in the Union republics as well. At the same time, we note that the last project in the history of the creation of this type of acts in the USSR was the initiative project "Fundamentals of legislation of the USSR and Republics on culture" ^[5]. At the Union level, codified acts were also adopted on the exclusive subjects of the USSR (without adopting the fundamentals of legislation) – the Customs Code (1964) Code of Merchant Shipping (1968), Air Code (1983). 

As a result, in the second half of the 1950s - early 1980s, a two–level system of legislation was built. In it, the Fundamentals of the legislation of the USSR contained the fundamental legal provisions for a specific branch / sub-branch of legislation. Accordingly, the republican codes had to rely on the regulatory bases of the Union acts and specify them in the appropriate sphere of legal regulation, taking into account local peculiarities. Thus, the Union-Republican codification of legislation in the USSR during this period was the main tool in ensuring the legislative unity of the USSR. At the same time, the codification of Soviet legislation itself "was distinguished by a systematic approach, thanks to which it acquired a complex character. The genuine modernization of Soviet legislation during this period contributed to overcoming the most odious totalitarian features of the legislation of the 30s - mid-50s while preserving the communist ideology," notes N. I. Biyushkina ^{[2, p. 3]}. At the same time, it should be noted that the codification of the All-Union and republican legislation, which was mostly completed by the beginning of the 1970s, summed up a peculiar result of the formation of the legislative system  The USSR and the formation of "legal federalism" in the USSR, which has been developing for 50 years ^[18].   

The adoption of the Constitution of the USSR in 1977 formalized the process of centralization of the legal space of the USSR completed by that time through the codification of the main branches of legislation of the USSR and the Union republics. The Constitution, in paragraph 4 of Article 73, determined that "the Union of Soviet Socialist Republics, represented by its highest state authorities and administration," belongs to "ensuring the unity of legislative regulation throughout the USSR, establishing the foundations of legislation of the USSR and the Union Republics." Thus, the fundamental importance of legislative unity as one of the main elements of maintaining the state unity of the USSR as a whole was constitutionally recognized. We emphasize that the specified provision  The 1977 Constitution of the USSR meant the constitutional formalization of the principle of unity of legislation as one of the fundamental principles of Soviet federalism.* * *

So, in the second half of the 1950s - 1980s, a two-level system of legislation was built in the USSR. In it, the Fundamentals of the legislation of the USSR contained the fundamental provisions of sectoral legislation. Accordingly, the republican codes have specified the provisions in the relevant area of legal regulation, taking into account local peculiarities. This system of organization of the legislative array of the USSR was enshrined in the Constitution of the USSR in 1977 . Thus, the Union-republican codification of legislation in the USSR during this period was the main tool in ensuring the legislative unity of the USSR and formed the basis for the next stage of its development – the creation of the Code of Laws of the USSR and the codes of laws of the Union republics.