Academic journal article Journal of Social History

Communist Custodial Contests: Adoption Rulings in the USSR after the Second World War

Academic journal article Journal of Social History

Communist Custodial Contests: Adoption Rulings in the USSR after the Second World War

Article excerpt

The Bolshevik regime outlawed adoption in 1918, but adoption re-entered the legal code in 1926. [1] The basic adoption laws of the Soviet Union remained unchanged until 1968--and even then kept much of their original essence--but the nature of adoption shifted profoundly from a stopgap policy in the struggle against massive child homelessness (besprizornost') [2] to an alternative means for creating stable families. Soviet adoption laws and their practice evolved in tandem with the historical development of the USSR; revolution, civil war, industrialization, collectivization, the purges, the Second World War, and de-Stalinization all made their mark. But most striking is the civil judiciary's evolving commitment to get things right: that is, to arrange custodial and financial matters so as to address the best interests of children. Though this precisely reflected the letter of the law, which stated plainly, "Adoption is permitted exclusively in the interests of children," [3] it is still noteworthy that judge s, legal experts, and child welfare workers often pursued the spirit of the law as well. Their enthusiasm attests to the existence of a viable legal culture in Soviet society--at least when it came to family practice that did not threaten political and ideological imperatives. [4]

Until the 1960s, Western scholarship primarily dismissed the Soviet legal system as another arm of the monolithic, totalitarian state. With his 1963 work, Justice in the U.S.S.R.: An Interpretation of Soviet Law, Harold Berman attempted to revise this view. While admitting that the law usually bowed to doctrine and politics, Berman demonstrated that there was in fact more to Soviet law than initially met the eye: it was not historically constant, it was capable of reform, and its practice did not always adhere to official socialist precepts. [5] Though legal sources therefore hold tremendous potential for Soviet social history, historians have not yet tapped the records from actual judicial practice in the USSR. A review of adoption decisions, for example, confirms Berman's general impression, highlighting the gaps and convergences between socialist theory and judicial practice.

This essay will evaluate the civil judiciary's understanding of what constituted a child's best interests through the prism of higher-court rulings on adoption cases. [6] I am drawing here primarily on descriptions of the adoption contests that came under review by the Supreme Court of the USSR (Verkhovnyi Sud SSSR) from 1942, early in the Soviet Union's participation in World War II, until 1964, the fall of Nikita Khrushchev. [7] I have chosen this particular period for several reasons. First, Soviet family law did not begin to take shape as a systematic discipline until just before the war. [8] Second, contests over adoption during those twenty-two years were particularly thorny as a result of wartime upheavals; it took the war to spawn custodial battles complicated enough to reach the Soviet Union's highest courts on a regular basis. Third, this period spanned three distinctly separate eras of Soviet history: one marked by relative liberalization (1942-45), one that saw a renewed clamp down on society (19 46-53), and a final one characterized by Stalin's death and de-Stalinization (1953-64). Finally, adoption came into its own during the war. Between 1941 and 1945, some 200,000 children in the Russian Federation alone were adopted. [9]

Supreme Court decisions appeared fairly regularly in the publications Sovetskaia iustitsiia (Soviet Justice), Sudebnaia praktika Verkhovnogo Suda SSSR (The Legal Practice of the Supreme Court of the USSR), Biulleten' Verkhovnogo Suda SSSR (The Bulletin of the Supreme Court of the USSR), and Biulleten' Verkhovnogo Suda RSFSR (The Bulletin of the Supreme Court of the RSFSR). These journals reconstructed the rulings and the grounds on which they were based at every step of the judicial ladder. Narratives in the legal journals reveal the details of each case, how and why the lower courts ruled as they did, and the higher court's (stated) objections to prior decisions. …

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