Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

However, the sixtieth volume of the Law in Eastern Europe series, at last, is ready to go. Indeed, it has been no small undertaking to bring together the scholars and practitioners whose works are reproduced herein. Furthermore, my own optimism has also been a factor in this process, prompting me in the past to wrongly conclude that the end of the road was right around the corner. This was only heightened by the

“ITmirage”: all the wonderful electronic tools which increasingly fill our places of work easily fortify an expectation that publication deadlines will bereachedmuchquickerthaninthepast—whenwewerelimitedtopaper and linotype. But as Hans Ulrich Gumbrecht has argued,4 the time that we appear to save by using a new generation of electronic tools is, by and large,ephemeral;asthenextgenerationofseeminglymoreefficienttools are offered to (imposed upon) us, they usually turn out to have a learning curve no shorter than the last.

Thereis,however,morethanthesizeoftheeditorialeffortforamultiauthor, multi-jurisdictional volume, the influence of editorial optimism, or the appearance of technical transformation.An additional factor which represents a (if not “the”) major cause of this regrettable delay has been the financial crisis afflicting the University of Leiden—and, in particular, the Law Faculty—from the mid-1990s onwards. True, other universities in The Netherlands have also suffered declines in funding for research and education, and other faculties in Leiden have also been struck hard by budget cuts. But the solution designed to meet this crisis—in the par- ticular institutional framework in which the Institute of East European

LawandRussianStudieshadbeenanchoredinLeiden—hadanespecially devastatingeffectontheInstitute(andonitsscholarlyLeidensisters).At theendofthe1990swhenstatefinancingfor“non-essential”researchand teaching in the Leiden Law faculty was whittled down to near—and, at thebeginningofthe2000s,finallyreachedabsolute—zero,theInstitute’s research and publication activities were faced with liquidation.

Yet the storm—which these developments had wrought upon the Institute—hasbeenweatheredandothershoreshavesafelybeenreached. In doing so, we havekept our link with Leiden; this is reflected,inter alia, in the Leiden name on the preliminary pages of the present series (and of ourquarterlylawjournalReview of Central and East European Law).Forfive decades, the Institute has been firmly grounded in Leiden, and I believe that it is only appropriate to continue to honor that tradition even though circumstances have changed fundamentally.

But these changes also have their positive side: for the past four years, the Institute has been afforded welcome financial and academic support

4“‘Latency’:HowAretheYearsFollowingtheEndofWorldWarIIPresentedtoUs?”,

Public Lecture at Smolny College, St. Petersburg, 31 March 2008.

by the faculties of law of the University of Trento and the University of Graz as well as by the European Academy (EURAC) of Bozen/Bolzano.

The authors of this volume have been informed about the delay in its publication and its causes as well as the efforts of this Northern Italian/

Southern Austrian consortium to bring our work to its successful conclu- sion; it is only fitting that the readers of our series also be extended the same courtesy.

* * *

To the scholars and practitioners whose words were heard by those in attendance at our Leiden conferences and whose works can now also be studied by the readers of this volume, once again my heartfelt thanks for your contributions and your patience. Where necessary, the works contained herein have been revised by the authors; others remain in their original conference versions. We have left the decision in this matter to the authors themselves.The difference in timeframe between these two sets of articles should be readily apparent to the reader.

The two broad themes, mentioned above, formed the framework for the last duo of Leiden conferences. However, as the reader will observe, wehavetakenamiddle-of-the-roadapproachtofittingtogetherthecon- ference contributions within this framework. On the one hand, we could have simply invited the authors to publish their most recent research in the field. In such a case, the interest for the reader would be primarily focused on the author. On the other hand, we could have commissioned specificarticleswithnarroweditorialspecificationsforeachoftheconfer- ence themes and only published those submissions which conformed to such standards. In this case, the conference theme would be the beacon for the reader.The former approach would have been quicker; the latter, certainly more time intensive.

Our compromise approach should allow both authors and themes to shine.Yet, I am aware that this has produced coverage of the 1998 and 2003 themes which is more diffuse in nature than might have been the case if wehadfine-tunedtheworksoftheauthorssothateachchapterprecisely dovetailed with the next. This may be a downside for some readers; the upside is that s/he can benefit from the intellectual filter of each author, from her (or his) individual view of the conference themes.

Naturally,subsequentlegislative,judicialandotherdevelopmentswill (tend to) confirm or disprove some of the arguments elaborated on the pages of this volume.Yet, the thinking which is reflected here continues to be of value for those seeking to more fully understand current develop-

ments in Russian law in particular and society in general. First of all, this value is in the historical perspective from these contributions; a view of some of the milestones of the late 1990s and early 2000s along the road towards reintegrating private law in the domestic (and regional) legal, economic, and social systems. That alone, it seems to me, recommends this work to the reader. However, these works represent more than con- sideration of the recent Russian and East European past—as important as that is in such turbulent times as these.

It is a sad note to have to sound by mentioning that two of the contributors to this volume have passed away after the 2003 Leiden conference: Professor Dietrich Loeber and Dr. Ger van den Berg.5 But I believe that their work—as well as that of all the other contributors to this volume— willcontinuetohelpshapetheideasofothersandinfluencedevelopments in the region. This is the second “value-factor” in this collection.

There is no better guide to future trends in this field (and surely of others) than to have access to the ideas of those who have been keen observers of—and, often, key participants in—major legal reforms of the recent past. These should be of additional interest to the reader, as in the present case, when the persons generating these ideas are both from Russia and from the “far” abroad.

* * *

In addition to the contributors to this work, I should like to thank my academic colleagues at the Institute of East European Law and Russian

Studies—Professor Ferdinand Feldbrugge, Dr. Rilka Dragneva, Dr. Joop de Kort, Dr. Hans Oversloot, Dr. Wim Timmermans and Mr. Ruben

Verheul—for their participation in and support for these conferences.

In addition, no small amount of time and energy has been expended in taking the contributions of our Russian colleagues and transforming them into precise legal English so as to reflect the care with which they were written in legal Russian. This effort has benefitted from the work of Mr. Curtis Budden for which I am grateful. Professor Feldbrugge has a special place in this conference and, naturally, in the Institute as its second director and Professor of East European Law. I will offer the reader a few thoughts about this special place below; however, I would like to extend another word of gratitude to him here for also providing me with much-needed assistance in translating into English a number of the contributions contained in this volume. Translating poetry is a dif-

5See F.J.M. Feldbrugge, “In Memoriam Ger P. van den Berg” and “In Memoriam Dietrich André Loeber”, 29 Review of Central and East European Law 2004 No.3, 429-430 and 431-432 respectively.

ficult task; but it seems to me that the translation of legal writing is a no less difficult one since, after all, the interpretation of law is much more of an art than it is a precise science—the protestations of our colleagues

(especially those in the great European Legal Space) who love to call it “legal science” notwithstanding.

The assistance of our Leiden administrative associates of the Insti- tute in the 2003 convocation—Ms. Esther Uiterweerd, Ms. Atie Breu- gem, and Ms. Sheena Elder—is also hereby acknowledged. In the period since that time, as I have highlighted above, the work of the Institute has benefited substantially from the remarkable interest in comparative law in Northern Italy and Southern Austria: at the Universities of Trento and of Graz as well as the European Academy Bozen/Bolzano (EURAC) and its Institute for Minority Rights—and from the support of Profes- sors Roberto Toniatti and Luca Nogler (Dean and Director of the Trento Law Faculty, respectively) and of Professor Josef Marko (Director of the Institute for Minority Rights in Bozen/Bolzano). I owe a special word of thanks to Ms. Alice Engl and her colleagues at EURAC for their untiring effortsinissuingseveralvolumesinourseriesandfouryearsofourjournal in general and, in particular, for helping me to finally push this volume across the finish line. Likewise, I am indebted to Dr. Francesco Dalba, a Research Fellow of the Institute (Trento), for his invaluable efforts in preparing this work for publication. Finally, a number of organizations and institutions have provided financial support for the Leiden conferences of which the proceedings in this volume are the scholarly fruits: we are grateful to them for their encouragement and assistance. Their names are indicated on a separate page of this volume. In 2008, Koninklijke Brill

NV has celebrated its three hundred and twenty-fifth anniversary; our collective congratulations to Brill and appreciation to our publisher, Mr.

PeterBuschman,andhiscolleaguesatMartinusNijhofffortheircontinued guidance and support.

focusing on domestic private-law problems in their national, regional and international contexts.

Several contributors to this volume have been participants in this unique project. The second event to which the 2003 Conference was dedicated is this fruitful RF/NL collaboration. This also was the platform for the 1998 Conference on the impact of the new Russian Civil Code which is measured in the first part of this volume.

III. Honoring Professor Feldbrugge. The organizers of and participants in these two, most recent Leiden conferences gathered together to honor Ferdinand Feldbrugge, his scholarship as Professor of East European Law and his leadership as Director of the Institute; his seventieth birthday was the third event commemorated by the 2003 Conference.

A biographical sketch of his career has already been published in the first volume of this set.1 Nevertheless, I believe it appropriate to offer the reader a further perspective on the scholar, advisor, and friend that Professor Feldbrugge is for a wide circle of people; it with a great deal of pride and good fortune that I count myself among them.

During the more than three decades of his scholarly career, Professor

Feldbrugge’s activities in the primary fields of a university scholar—edu- cation, research and publication—have been exemplary. In the first area, he has stimulated law students to think about Dutch law (his first chair was as Leiden Professor of Introduction to Dutch Law) and, especially, about Soviet—and, later, Russian—law. He was also the visionary and mover for the creation of a Russian Area Studies (Ruslandkunde) program at Leiden University in the late 1980s. Students in this program have also gained much from Feldbrugge’s teaching.

The second field of a scholar’s endeavors—research and its dissem- ination—in Professor Feldbrugge’s case has a wide scope which can be observed in a bibliography of his publications.2 However, it is not only the variation and quantity of his output which are noteworthy. It is also the way in which he gently and yet clearly conveys his thoughts to the reader.

YetProfessorFeldbrugge’smanyeffortsintheseareashaveextended beyond his teaching and his own writing. He has been the academic super-

1G.P. van den Berg, “Forward”, in George Ginsburgs, Donald Barry and William B. Simons, (eds.), The Revival of Private Law in Central and Eastern Europe: Essays in Honor of F.J.M. Feldbrugge, in F.J.M. Feldbrugge, (ed.), Law in Eastern Europe, No.46, The Hague, London, Boston 1996, xv + 667 pages, xiii et seq.

2Anne Pries, “Bibliography of theWorks of Professor F.J.M. Feldbrugge, Commemorating his 25th Year as Professor of Law at Leiden University”, in The Revival of Private Law, op.cit. note 1, 573 et seq. Professor Feldbrugge has continued to publish since the compilation of this bibliography in the mid-1990s as noted in the main text below.

visor of several doctoral candidates who have successfully defended their dissertations in Leiden; it is again with pride that I am able to count myself among those who have profited from Feldbrugge’s invaluable counsel— kindbutalwaystothepoint—inthislastformallegofastudent’sjourney

(at least as measured in academic degrees). And he has advised many others who have also been engaged in putting their thoughts on paper for different purposes—in- as well as outside the classroom.

Furthermore, he has always taken great care to ensure that the publications of others in the field have been made accessible for as wide an audience as possible: he has enriched the Institute’s publications by continuing, as well as significantly adding to, the work begun by the first

Leiden Professor of East European Law, Zsolt Szirmai (1903-1973). The present series was started by Szirmai (the first volume of which was pub- lishedfivedecadesago).AfterSzirmai’spassing,Feldbruggetookoverthe serieseditorshipand,also,foundedaquarterlylawjournal(begunin1975). The series and the journal were both unique when they first appeared in print. In the 2000s, Law in Eastern Europe and the Review of Central and East European Law continue to enjoy a wide circle of respect and interest despite a field that is now much noisier than it was in those early years; in recent years, it has become filled with voices from a multitude of new sources—both hard copy as well as electronic; from the “West” as well as from the “East”. This reference to these new resources is not meant to soundanoteoflamentatanylossoftheunique“brand”fortheInstitute’s publications; such competition in the marketplace of ideas is only as it should be.

InadditiontothedutieswhichhefulfilledinhiscapacityasProfessor of East European Law, Feldbrugge kept the Institute library in its premier place as he performed the duties of Institute Director. His successful efforts at lobbying—a word not likely to have been used then but which succinctlyencapsulatesthistask—withtheLeidenUniversityadministra- tionenabledtheInstitutetopreserveitsuniquedocumentationaswellas researchcharacterforsuchalongtime.And,ashebroadenedtheoffering oftheInstitute’spublications,hewidenedthecircleoftheircontributors.

He also orchestrated the periodic conferences held in Leiden; and when conditions permitted, he expanded these encounters to include leading

scholars and practitioners from the “East”. In the old days, conferences in Leiden had been held among Western European and North American scholars; the podium and audience were bereft of Soviet citizens.3 But as soon as circumstances changed, Professor Feldbrugge arranged for a number of superb lawyers from the former USSR to participate in the Leiden conference in the 1990s.4 All of which has added to the attractiveness of the Institute as a leading center for research and for the exchange of ideas.

During the Cold War, there was very little accurate information and few reliable analyses from non-Soviet sources dealing with law and society in the Soviet Union despite the need for as much light as possible in those dark times.5 For this reason, the achievements of Professor Feldbrugge have been more valuable for legal scholars and practitioners in The Neth- erlands and abroad than would be the case in a “normal field”. And, for muchthesamereason,thebeneficiariesofhisworkcanbefoundnotonly in the field of law.They are also in political science and economics since the slogan “law is politics” certainly applied to the USSR, and the link between “law and economics” in the Soviet system was clearly fundamental (although the phrase was never used, as such, to link the two together as is now popular in other jurisdictions, most of all in the US).

While the scene has changed in Russia and the region after 1991, these changes have not taken politics or economics out of law—except perhaps in the hearts of the diehard sectionalists who firmly believe that law is a world unto itself. Thus, it is that the reach of Feldbrugge’s work continues to extend beyond the “mere” boundaries of law.

It was also for those interested in other disciplines, not only for those reading law, that Feldbrugge published a major work on Samizdat and Political Dissent in the Soviet Union (Leiden 1975). The research for that volume was carried out under a fellowship which he had been awarded by

TheNetherlands’InstituteforAdvancedStudies(NIAS).Andaddressing

3It could not have been any different in those days. The exception to this rule was to be seen in the case of a few lawyers who had emigrated from the USSR and, later, travelled to the Leiden conferences from their new residences. But while they brought with them a vision of the USSR different than that of (most of) their col- leagues inWestern Europe or NorthAmerica, their views were naturally also quite different from those which would have been aired at such conferences by scholars and practitioners permanently residing in the Soviet Union.

4I am pleased to note that this tradition was continued at the second and third Leiden private-law conferences.

5This does not speak to the question of the accuracy of information and reliability of analysis dealing with Soviet law from Soviet sources.

a similarly wide audience was also a goal in his writing of numerous entries for, and in editing, an Encyclopedia of Soviet Law.6

The significance of his work for these diverse communities has only increased in the post-Soviet period; now, there is a real chance to work closely with one another in identifying and attempting to solve (un)common problems.

After he became Emeritus Professor in 1998, Feldbrugge has continued his scholarly work, witnessing his dedication to the field at a point in a remarkable career at which many would be expecting to leave their work behind them.7 He had already been honored in 1993 by the Leiden Law Faculty with its E.M. Meijers Medal upon the occasion of his sixtieth birthday and twentieth-fifth year as a Leiden professor of law. In further recognition of his extraordinary achievements and dedication to education, research, and community service, Feldbrugge was made a Knight in the Order of The Netherlands Lion (Ridder in de Orde van de Nederlandse Leeuw) at the third Leiden Conference in September 2003.

However, there are three further facets ofFeldbrugge’sscholarlyendeav- ors which should also be highlighted here. Once again, it is not only jurists but, also, political scientists (and politicians) as well as economists (and businesspeople) who form the audience for these additional activities.

(A)In 1974, Feldbrugge was present at the creation—as one of the co- founders—of the International Council for Soviet and East European

Studies (later, the International Council for Central and East European Studies [ICCEES]). He was both a member of the ICCEES Executive Council and ICCEES President. In addition to being an important multidisciplinary network for scholars and students from around the world in the diverse fields that make up Central and East European studies, ICCEES has hosted a worldwide conference every five years since the mid-1970s. A number of the contributions to these conferences, dealing with law in Central and Eastern Europe, have been published over the years in the present series.

(B)For two years in the late 1980s, Feldbrugge was Special Advisor on

Soviet and East EuropeanAffairs to the Secretary-General of the North

AtlanticTreaty Organization in Brussels.The importance of well reasoned advice to the NATO Secretary-General during the tumultuous years of

6The second, revised edition is: Encyclopedia of Soviet Law, in F.J.M. Feldbrugge, (ed.), Law in Eastern Europe, No.28, Dordrecht, Boston 1985, xix + 964 pages.

7The most recent of his works is a monograph entitled Law in Medieval Russia, in William B. Simons, (ed.), Law in Eastern Europe, No.59, Leiden, Boston 2008, xxvii + 334 pages.