“What happens to human rights when ‘the human’ is understood to be a work in progress?”
“What happens to human rights when ‘the human’ is understood to be a work in progress?” asks Benjamin Nathans in “Soviet Rights-Talk in the Post-Stalin Era,” in Human Rights in the Twentieth Century. To answer this question, Nathans looks to the different constitutions of the Soviet Union through time in a way that is remarkably free of moralizing or philosophizing on the Soviet Union’s illiberality yet recognizes that the Soviet Union self-consciously avoided the liberal paradigm. Nathans seeks to “grapple with the histories of rights in non-Western environments” without viewing rights as “an American (or Western) export product.”
The state-sponsored violence of the first decades of the Soviet Union is well documented, yet this violence and a developing rights discourse are not mutually exclusive. As Nathans writes, “however corrosive the early Bolshevik stance may have been for law as a moral or political value, subsequent developments made ‘legal nihilism’ seem less and less useful as a description of either theory or practice in the Soviet Union.”
Nathans explicitly rejects the dismissal of “Soviet rights-talk as a fiction or public relations exercise or symptom of false consciousness,” and instead looks to Soviet Constitutions and the debates surrounding them to deconstruct the meaning and use of rights in the Soviet Union. Nathans charts the evolution of rights-talk in the Soviet Union, portraying not the masses of faceless, rights-stripped oppressed under totalitarian rule, but a nuanced and changing conversation about the role of the citizen, the subject, the law, and the state “within the Soviet project of building a new kind of society and a new kind of person, a project that helped define, in ways both intended and unforeseen, the history of human rights in the twentieth century.”
Here I limit my focus to only the first period described by Nathans in order to connect his work to other work on the early Soviet period and for length constraints, but my scope should in no way suggest that this brief period could contain Nathans’s full analysis or even begin to fully communicate the rich evolution of rights discourse he portrays.
Lenin and the 1918 Constitution
Rights-talk in the Soviet Union was from the beginning intended to be a radical departure from the liberal rights-talk of Western tradition. First, Nathans notes, “The surprising prominence of rights in Soviet legal discourse is but one facet of the larger about-face regarding the anticipated withering away of the law and the state under socialism.” However, the importance was not in the rights as enumerated – Nathans calls them the “classic freedoms of conscience, expression, assembly, and association” – but the tools the state offered to certain citizens to realize these rights in practice. Rights, or “real freedom,” depended on “certain economic preconditions,” and could be used by the state as a “weapon against political opponents.” Furthermore, rights were explicitly granted by the state to “toilers” with the reciprocal expectation that the toiler, by laboring would fulfill his end of this rights bargain.
This shows not a negation of rights, but an inversion of the liberal understanding of rights as a tool of the people to negotiate dealings with the state (perhaps, at times, an illusion), and instead demonstrates the organization of rights around an idealized proletarian-state continuum. Nathans points to a “striking vestige of ancien régime estate privilege” in the Constitution’s reservation of the “honorable right of bearing arms in defense of the revolution” to “toilers.” Ideally, other groups would perform separate duties, but in practice, the “heat of civil war” led the Red Army to draft anyone and everyone, even former officers of the tsar.
There is a subtle difference, though, between what Nathans sees as a structural and rhetorical use of an “inherited language of rights” and what Jane Burbank calls “thinking like an empire” in her chapter, “Thinking like an Empire: Estate, Law, and Rights in the Early Twentieth Century,” in the edited volume Russian Empire: Space, People, Power, 1700-1930.  In Burbank’s analysis, “the new Bolshevik government of Soviet Russia reintroduced the estate principle by making class membership a source of rights, duties, and claims upon the state,” specifically because of a deeply-ingrained, perhaps inescapable, way of thinking as imperial subjects. She writes, “Imperial Russia created not just estates (sosloviia) but soslovnye liudi – estate minded people. An egalitarian evolution before and after 1917 was hindered by the long-term practice of group-defined access to group-defined rights and duties.”
Though Nathans does not directly address Burbank’s assertion of the roots of this ancient régime throwback, his use of the term “neo-corporative” instead of “corporative” suggests that he sees the rights outlined in the 1918 Constitution as an inheritor and resculptor of estate-based ideology but also as something new, constructed from an outspoken socialist critique of law and crafted “in a country that understood itself as the laboratory of the future.” The language of rights in this first constitution were purposefully “inverting the pre-revolutionary social hierarchy” and acting as an “undisguised political instrument.”
Thus, a crippling inability to escape estate-based thinking did not hold Russia back from an egalitarian evolution as Burbank suggests. Instead, the Soviet legal space was constructed in a completely different context that intentionally used law as a tool of the state and defined access to rights through the carefully theorized economic framework of a socialist worldview.
[Continued in: The Evolution of Soviet “Rights-Talk,” part 2: Stalin and the 1936 Constitution]
 Benjamin Nathans, “Soviet Rights-Talk in the Post-Stalin Era,” in Human Rights in the Twentieth Century, ed. Stefan-Ludwig Hoffman (New York: Cambridge University Press, 2011), 169.
 Ibid., 168.
 Ibid., 188.
 Ibid., 169.
 Ibid., 169-170.
 Ibid., 170.
 Nathans, “Soviet Rights-Talk,” 170; Jane Burbank, “Thinking like an Empire: Estate, Law, and Rights in the Early Twentieth Century,” in Russian Empire: Space, People, Power, 1700-1930, ed. Jane Burbank, Mark Von Hagen, and Anatolyi Remnev (Bloomington; Indianapolis: Indiana University Press, 2007), 196.
 Burbank, “Thinking like an Empire,” 196.
 Ibid., 212.
 Nathans, “Soviet Rights-Talk,” 167.
 Ibid., 188.