Intro_continental_legal_science [Unlocked]

Questions

1)How did the advanced of the ‘hard’ science contribute to the rise of legal positivism?

2)What does ‘exegesis’ mean?

3)How did the main goals of the School of Exegesis in France differ from the legal science of ancien régime?

4)Why was Napoleon I upset about the first commentary on the French Civil Code?

5)How long did the School of Exegesis dominate the French legal science?

6)What was the School of Exegesis criticised for?

7)Who were the Pandectists?

8)How were the Pandectists connected with the Natural Law and the Historical School?

9)What does Begriffsjurisprudenz mean?

10)How Puchta influenced Savigny’s late work?

11)Was the science of the Pandectists politically neutral?

12)Why did Jhering, Gierke, Marx, and Menger criticise the Pandectists?

13)How influential were the Pandectists in Germany and abroad?

14)Why did both the school of exegesis and the Pandectistics fall within the category of ‘legal positivism’?

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Topic 10. Emergence of Russian legal science under European influence

Topic outline

French and German spheres of influence in Europe. Reception of the French Civil Code and the spread of German Pandectist learning in the 19th century.

Beginnings of legal science in the Russian empire in the second half of the 18th and early 19th century. The influence of natural law and enlightened ideas. Codification projects of Mikhail Speransky <Михаил Спе р анск ий>.

Establishment of legal education on the basis of study of Roman law under Nicolas I. The conservative ideology of Official Nationality. The impact of the German historical school. Russia’s first students at the university of Berlin. Savigny’s pupils in Russia. Foundation of the new chairs for legal studies at the universities of the Russian Empire. The science of statute interpretation: its features and limitations.

The age of the Great Reforms and its impact on legal education. Transition from the science of statute interpretation towards the science of law. German Pandectism and its influence on Russian legal science and legal education. Study of the foundations of the law. Russian seminar on Roman law at Berlin university (1887–1896). Development of the sciences of state and private law. Scientific critique of the positive law. Academic contribution to the codification projects in the

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Russian Empire.

Denial of the ‘bourgeois legal science’ in Russia after the October revolution of 1917.

Excerpts from Readings

French and German spheres of influence in Europe.

Glenn P.H. Legal traditions of the world: sustainable diversity in law, p. 166.

You really can’t get away from the idea that the civil law tradition is somehow associated with dominance. The Romans dominated, then the national civilians dominated… then the world became a zone of influence of civil laws, as the colonization process occurred. (So the civil laws of Europe became dominant, or extremely influential, in all of Latin America, Africa, Eastern Europe and Russia (before, and even during, socialist law) and exercised more limited but still important influence in Japan, China, and South-East Asia.)

… So we should probably, for this reason alone, start thinking about the common law and the civil law as representing some of the same ideas, compared with other traditions. We can then talk about a universalizing Western law…

Giaro T. Legal tradition of Eastern Europe // Comparative law review, 2011 Vol. 2, № 1, p. 16–19, 22.

V. The Long 19th Century.

During this period, stretching from the French Revolution to the First World War, a decisively stronger inclusion of Eastern Europe into the pan-European system of national legal orders took place. As early as the end of the 18th century… Poland, Hungary and Rumania took pride in enlightened codification projects similar to the already promulgated law codes of Bavaria (1756), Prussia (1794) and Austria (1797), whilst

other Eastern European countries, such as Russia under Catherine II 212

the Great (1762–1796), at least developed a clear consciousness of the need for reforming their national law. In this case the need was great, because prior to the 19th century, which brought an extensive transfer of civilian tradition to Eastern Europe, no learned law, no juristic literature and no juristic profession were known throughout Russia and Southeastern Europe. Only in the subsequent period new universities were founded there, whereas the old ones, which already existed in East Central Europe, were revitalised.

The civil law codifications of the 19th century, regarded as the signature of continental legal history, were transferred to the East contemporarily or slightly later with respect to the date of their promulgation in the West. Especially the anti-feudal Napoleonic legislation had immediately a great propagandistic impact and a broad leveling effect on the whole of Europe…

… It is noteworthy in this connection that western legal development was always far more continuous in nature, the civil codes merely constituting its organic crowning, whereas in the East the borrowed or imposed codification, or even only a doctrinal reception of western law, came as a deep shock. In consequence, contemporary legal culture of Eastern Europe, in private as well as in public law, hardly contains national elements which go back to earlier times than to the 19th century.

In Russia, Greece and Hungary the reception of western statutes and doctrines during the 19th century was opposed by local conservatives…

… the non-reception of Roman law was supplied in Eastern Europe already during the long 19th century, even if this law arrived in the East under the modern form of western codes and legal doctrines.

Butler W.E. Russian law, in: Elgar encyclopedia of comparative

law, p. 630–637.

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Introductory notes.

The term ‘Russian’ in the field of comparative law has referred at various times narrowly to the law of Kievan Rus (9th–11th centuries), the whole of the territory that came to be known as Muscovy (11th– 16th centuries), the Russian Empire in its greatest territorial expanse (16th century to 1917), the former Soviet Union (1917–1991) and, officially, the Russian Federation from 1991 to the present. Insofar as ‘Russian law’ refers generally to the law in force on these territories, it encompasses a vast number of subsystems, including the customary law of hundreds of ethnic minorities, the influence of neighbouring peoples and kingdoms (Byzantium, Central Europe, Tatar-Mongol, Islamic, Scandinavia and Eastern, Central and western Europe), the legislation (broadly understood) of principalities, khanates and other entities on Russian territory, and the full range of sources of law from top to bottom of the Russian Federation.

Russian law and other legal systems.

The place of Russian law on the map of legal systems during the pre-revolutionary era (prior to 1917) has never been thoroughly or exhaustively determined by the science of comparative law. Superficially, the Russian legal system would probably have been placed within the RomanoGermanic family of legal systems, with which Russia felt and continues to feel a certain kinship.

During the Soviet era, the socioeconomic, legal and political transformations collectively introduced in Soviet Russia were regarded by many comparatists as sufficient to justify classifying the Soviet Union, together with other countries in which communist regimes had come to power, as a separate and distinct family of legal systems called ‘socialist legal systems’.

With the demise of the Soviet Union and the market-oriented law reforms… most Russian comparatists categorize Russia today as a ‘transitional legal system’, together with the other former Soviet republics, en route from the socialist family to a destination i.e.

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uncertain.

Influences of foreign law on Russian law.

Although the definitive history of the development of Russian law remains to be written, there is ample influence of contact between the legal systems and cultures of Kiev Rus and Muscovy, on one hand, and neighbours near and far on the other. Russian treaties with Byzantium of the 10th century give evidence of influences Byzantine and Scandinavian, and perhaps Slavonic Balkan territories. Textual analysis of later documents (such as contracts inscribed on birchbark) discloses foreign influences via traders and merchants, and an examination of major statutes and charters indicates that the Tatar domination of Muscovy left an imprint on the language and concepts of administrative and criminal law and that Muscovite legislative draftsmen were familiar with enactments emanating from Lithuania, Poland, Scandinavia and other realms and principalities.

Peter the Great, as part of his westernization policies, encouraged the adaptation of foreign legal institutions and concepts, reaching as far abroad as France, Italy, Netherlands and England, among others. Catherine the Great was influenced by Montesquieu and Voltaire, conducting an extensive correspondence with the last, and by Sir William Blackstone, a translation of whose major work she commissioned.

Throughout the 19th century Russian legal statesmen followed the development of law and legal thought throughout Europe, including that of Jeremy Bentham (whose principal work on codification appeared in Russian translation before English). French and German codifications, among others, influenced Russian approaches, as did the Civil Code of California (translated into Russian in full). Scottish enlightenment thought entered Russia at an early stage through the studies in Glasgow of <Semyon> Desnitskii (Де сниц к ий, d. 1789) and <Ivan> Tret’iakov (Тр е ть я к, оd.в1779); upon returning home to Russia they accepted

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appointments at Moscow University and published influential works opposing the German natural law school predominant in Russian universities at the time.

Foreign professors of law did take up service in Russian universities from the 1720s onwards, initially in Moscow and St Petersburg and later in Kazan, Odessa, Kiev and, especially, the Baltic regions. Throughout the pre-revolutionary period they were an important component of Russian legal education.

Beginning of legal science in Russia.

Butler W. Russian Law in: Elgar encyclopedia of comparative law. 3d ed. Oxford, 2009, p. 28–35.

Peter I had set in motion the measures required to found the Academy of Sciences in Russia, which opened shortly after his death in 1725. Law was among the sciences to be pursued, and the Academy of Sciences was to serve simultaneously as a research and a teaching institution, an Academy and a university. The first appointee in law, J.S. Bechenstein (d. 1742) from Germany, offered lectures on natural law and politics but attracted no Russian students and left in 1735. C.F. Gross lectured at the same time on mural philosophy, using the Russian translation (1726) of Samuel Pufendorf’s ‘On duty of man and citizen’ made at Peter’s behest. …

Russian jurisprudential Roots.

Butler W. Russian Law in: Elgar encyclopedia of comparative law. 3d ed. Oxford, 2009, p. 38.

To say that the depths of the history of Russian legal doctrine remain unplumbed, is itself part of the legacy of the recent and remote past. Russian legal theory was in its infancy before the Revolutions of 1917, and the history of Russian legal theory even more so.

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Russian theorists looked principally to their contemporary European colleagues for inspiration, and to the classics of European political and legal thought in Russian translation. …

The fate of natural law in the Imperial Russia.

Poldnikov D. Legacy of classical natural law in Russian dogmatical jurisprudence in late 19th century, in: Journal on European History of Law. 2013. Vol. 4. №1. P. 72.

Jurisprudence as a distinct branch of knowledge began to take shape in Russia under the influence of the Western European classical natural law starting from the reign of Peter the Great (1682–1725). The tsar himself admired German doctrines of natural law, commissioned professors from abroad, and subsidized translation of treaties on natural law.

(In 1717 Peter the Great offered a position at the newly established Russian Academy of Sciences in St.Petersburg to the leading German natural law thinker of the age, Christian Wolff, who <upon some hesitation> turned it down.)

However, the fate of classical natural law in Russia was not fortunate. During the heyday of ius naturale in Europe, Russia was not ready to embrace this doctrine for a number of reasons, including the authoritarian governance, an estate-based society, the serfdom of the majority of the peasants, a predominantly subsistence economy, and the lack of universities. Moreover, the first professors of law were Austrians or Germans who knew as good as nothing about Russian law.

Developments of Russian law under Nicholas I.

Poldnikov D. Legacy of classical natural law in Russian dogmatical jurisprudence in late 19th century, in: Journal on

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European History of Law. 2013. Vol. 4. №1. P. 73–74.

In the 19th century, when new universities were founded, the first Russian professors took their chairs, more European literature was translated, and even the first project of the civil code was drafted, the ideology of natural law lost much of its appeal in the West and in Russia following the turmoil of the Napoleonic wars and the suppression of revolutionary movements by the Holly Alliance. In the reign of Nicholas I (1825–1855) the Russian government advanced the conservative ideology called ‘Official Nationality’ which supported the values of Orthodoxy, Autocracy, and Nationality in contrast to Western liberalism and individualism. Under the new University Charter of 1835 the teaching of natural law and moral philosophy was suppressed, and legal education was essentially limited to the study of positive statutes recently compiled as the Complete Collection of the Laws of the Russian Empire in 45 volumes and the Digest of Laws of the Russian Empire <Svod Zakonov> in 15 volumes. This change was backed up by the growing popularity of the Historical School under the leadership of F.C. von Savigny in Germany and the critical assessment of the classical natural law by Russian scholars.

Development in the first half of the 19th century.

Rudokvas, Kartsov. The Development of Civil Law Doctrine in Imperial Russia Under the Aspect of Legal Transplants (1800–1917).

The school of natural law was dominant in Russia throughout the whole of the 18th century. However, this current in Russian legal science suffered a drastic decline following Russia’s victory in the war against Napoleon. It was not only because of the reaction of government circles, who were afraid of the danger the natural law concept presented to the religious legitimation of the monarchical power. Educated people in Russia were also disillusioned by the rationality of the Age of Enlightenment after the terror excesses of the French Revolution, and became more receptive to romantic ideas of the

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historical school of law, formed in Germany by Friedrich Carl von Savigny. Also, the victory over Napoleon and Russia’s participation in the “Holy Alliance”, created at the Congress of Vienna in 1815, inspired patriotic feelings of many Russian jurisprudents to search for original principles of home law in its historical roots and sources. This gradual change of orientation, which took place in the 1830s, coincided with the preparatory work of the Statute Book and the Complete Collection of Laws of the Russian Empire, promulgated in 1832 with the expectation that a profound study of the history of Russian law could help in the better understanding of the actual law as is reflected in the paragraphs of the Statute Book.

At that turning point towards the study of a national legal history research done in Russia on this subject did not exist. A first step was to translate foreign books on Russian legal history into Russian. In 1835 the German work of Johann Philipp Gustav Ewers “The Oldest Russian Law in its Historical Evolution” (1826), translated into Russian by Ivan Platonov <Плато но>,в was published. In 1836 another book of a German author was presented to the Russian reader – “An Attempt Towards the History of the Russian State and Civil Laws” by Alexander von Reutz, translated by Thedor Moroškin <Мо р о шк ин>, a professor at Moscow University.

At the same time Russian jurists began to create their original literature, with the mission to be a manifestation of the spirit of the Russian historical schools.

<see the works of Alexander Andreevič Blagoveš čenskij (Благ о в е ще нск, 1804ий–1835) “History of the Methods of the Science of Legal Scholarship in 18th century”; Konstantin Alexeevič Nevolin’s (Не в о лин, 1806–1855)… book “Encyclopaedia of Legal Scholarship” … Anton Georgievič Stanislavskij (Станислав ск ий, 1817–1883) and others).>

Poldnikov D. Legacy of classical natural law in Russian dogmatical jurisprudence in late 19th century, in: Journal on

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