Intro_continental_legal_science [Unlocked]

European History of Law. 2013. Vol. 4. №1. P. 72.

In the course of the modernization of the Russian Empire after the defeat in the Crimean War (1853–1856) the imperial government under tsar Alexander II undertook a series of reforms in the 1860s and 1870s. One of them introduced the staple Western European rules of judicature and so created a demand for skilled lawyers. This demand led to the emergence of western-like jurisprudence, which was most sophisticated in the domain of civil law as this was the most susceptible to foreign influences and the most urgent for developing a capitalist economy. The trend carried on until the Bolshevik revolution of 1917, which led to elimination of capitalism and the so called ‘bourgeois’ jurisprudence in Soviet Russia.

… during the relatively short period from the 1860s to 1917 Russian legal thought developed so intensively that it laid the foundations of modern national jurisprudence, including that of Russian civil law. Its legacy was clandestinely leaned on in matters of legal education in Soviet times and has become an object of admiration in contemporary Russia.

The jurisprudence of this golden age was to a large extent dogmatic, that is concerned with interpretation and systematization of the positive law embodied in the Digest of Laws of the Russian Empire. Many researchers called attention to the influence of the German Historical School and the Pandectists on the style of legal studies in Russia.

‘Zakonovedenije’ instead of legal science.

Poldnikov D., Dmitry Ivanovich Meyer (1819–1856) Russkoye Grazhdanskoje Pravo (Russian Civil Law) (forthcoming)

<Since early 1830s> Russian civil legislation was collected in the recently enacted The Digest of the Laws of the Russian Empire (Svod Zakonov, 1st ed. 1832, 2nd ed. 1842). Unlike modern European

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civil codes, it did not introduce liberal values, nor reject feudal institutions (such as estates or serfdom), nor offer a clear system of private law. Russian legal science (zakonovedenije) was largely identified with knowledge of Svod Zakonov. Legal education was focused on reading, learning by heart, and scholastic exegesis of legal statutes. So did the literature for the students of law (e.g. Alexander Kranihfeld <Кр анихфе ль д>, An Essay on Russian civil law, 1843; or Fyodor Proskuryakov’s <Пр о ск ур я к>оTextbookв for study of Russian state, civil, criminal, and administrative laws, 1854). Only in the late 1830s this situation began to change, mainly, due to the influence of German legal science. The first historical commentaries on Svod Zakonov followed (e.g. Konstantin Nevolin’s <Не в о лин> History of Russian civil laws, 1851).

The influence of Savigny’s historical school of law.

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

Russia did not escape the influence of Savigny’s historical school of law during the first half of the 19th century. The government encouraged the dissemination of this school at universities of the Empire, to put an end to a widespread tendency to study law from the natural law theory point of view. The Russian government encouraged during the 1830s a group of Russian students to study law in Germany under the supervision of that same Savigny. After their return to Russia, these Russian pupils of Savigny did much to promote the methods of the Historical School in Russian law studies.

However, the immediate effect of this strategy differed much from its consequences in Germany…. Owing to the fact that Roman law had never been directly applied in Russia, is the reason why Russian lawyers, from the moment when they were acquainted with the methodology of the historical school avoided the usus modernus Pandectarum and applied its methods to the study of the historical roots

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of Russian legislation. The study of the history of law in Russia of that time was therefore similar to the historical school in Germany, as shows < Karl> Eichhorn’s (d. 1854) Germanistic methodological point of view. Besides, the peculiarity of the situation in Russia consisted of the fact, that the academic study of law did not serve any practical purpose, since until the court reform of the 1860s, jurisdiction was normally exercised by personnel, who did not have any regular education at the universities, and were trained in law only by their practical experience which they had obtained in course of their practical work as clerks of lower rang. In addition, courts were formally obliged to apply positive law only understood in a literal sense, without any analogies or the filling up of lacunae. Therefore the courts applied the concept of a strictly mechanical decision-making, whilst judges in principal were not interested in the existence of doctrine, which would only be elaborated on a high level of conceptualisation of law. Therefore the great majority of Russian legal studies of this period were devoted to purely historical scholarship…

<see the works of

Thedor Lukič Moroškin (Мо р о шк ин, 1804–1857) – professor at Moscow University – “About Possession According to the Basic Principles of Russian Legislation” (1837)

Nikolaj Thedorovič Roždestvenskij (Ро жде ств е нск, ий1802– 1872) “Encyclopaedia of Legal Scholarship”

Nikolaj Vasil’evič Kalačov (Калачо в , 1819–1885)

in the second half of 19th century

Dmitrij Ivanovič Meier (Ме йе ,р1819–1856)

Semjon Vikentjevič Pachman (Пахман , 1825–1910)

Ivan Egorovič Engelmann (Энг е ль ман, 1832–1912)

Michail Michailovič Michailov (Михайло в, 1827–1891)

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Nikolaj Lvovič Djuvernua (Дюв е р н уа, 1836–1906)

and others>

<multiple works of the historical school in Russia revealed substantial interest of Russian scholars both in studying public and private law>

The Great Reforms in 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. 73–74.

In the Age of the Great Reforms (1860–1870s) under Alexander II (1855–1881) Russian judicature was substantially westernized. The four Regulations of 1864 introduced such staple principles of modern European judicature as judicial monopoly on law enforcement, the principle of equality of the parties involved; public hearings, jury trial; and the institution of a professional advocate. To support these institutional changes, some efforts were made to modernize, or in fact to establish a proper national jurisprudence, including that of the civil law. All this happened under the decisive influence of the German Pandectists, advocating the study of positive law…

Necessity to develop Civil Law Doctrine in Russia after the “Great Reforms” of the 1860s.

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

The judicial reform of 1864 radically changed the situation in Russian jurisprudence. The new Judicial Statutes provided the courts with the power to also decide in case a norm of positive law did not exist; applicable under the circumstances: a judgment should contain a presentation of its motives. Now judges, prosecutors and lawyers were formally required to be graduates in law, and for parts of

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proceedings in civil procedures they should be capable to argue their positions in litigation with logical arguments, since civil procedure became competitive and public. All this presupposed a capacity of doctrinal analysis of positive law. A judge also had to demonstrate his competence in the appreciation of the argumentation of both involved parties.

These new circumstances required the systematisation of positive law and the formation of its dogmatic framework, which then could guide a practitioner, who wanted to find a perfect solution in the application of the legislation in a complicated case.

Attempts to respond to this challenge which were only based on logical interpretation of the law text turned out to be unsuccessful, since the basis, the Statute book of Russian Empire (Svod Zakonov in Russian), was contradictory, casual and full of lacunae. Previous antiquarian studies of Old Russian laws, also lacked generalisation, and only had a descriptive character. Moreover, the same Russian laws of previous centuries were full of legal transplants, which had been transferred to Russian law in different times from abroad without taking their systematic context into consideration.

Therefore, endeavours to form a dogma of original national law by locating its supposed historical backbone were in vain since there was no such backbone…

Owing to the fact that connection between the text of the Russian Statute Book and its so called historical roots was only formal and inconvenient, Russian jurisprudence began to form a doctrinal background of Russian civil law on the basis of German Pandect law. Perfect solutions of doctrinal problems could not be obtained through an analysis of the national legal material, but found in the sources of Roman law and in German manuals of law. Gradually a dogma of law emerged in Russia in the late nineteenth century, closely connected with German Pandectism, regarding Roman law as if it was applied in Russia as a subsidiary source of Russian law…

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German Rechtswissenschaft <legal science, conceived by F.C. von Savigny as a great and complicated building, in which the concepts of law (Begriffe) served as bricks>, based upon Roman law studies, was accepted in Russia as the dogma of law <since the mid-19th century>.

The leading textbooks on Russian civil law.

None of the new <textbooks> could quite compete in popularity with those of Meier <Ме йе >р and Pobedonoscev <По бе до но сц>,е в whose books were republished in Imperial Russia many times. Pobedonoscev’s book was republished five times (the last preRevolutionary issue came out in 1896) and that of Meier – for ten times (finally in 1914). Only <Gabriel> Šeršenevič’s <Ше р ше не в >ичmanual was as popular with students, being republished eleven times before 1917; its last pre-Revolutionary edition was published in 1914.

Dmitry Meyer and the foundations of Russian legal science.

Poldnikov D., Dmitry Ivanovich Meyer (1819-1856) Russkoye Grazhdanskoje Pravo (Russian Civil Law) (forthcoming)

The contribution of Dmitry Meyer <Ме йе >р is of particular importance for the foundation of Western-like legal science in Russia.

Meyer was born on 1 September 1819 in St. Petersburg (Russia) into the Russified German family (therefore his German name— Dietrich Johann Meyer) and died in St. Petersburg on 18 January 1856. Meyer studied Russian legislation at the Principal Pedagogical Institute in St. Petersburg from 1834 to 1841. In February 1842 the Ministry of Public Education sent him, as a promising student, to pursue his legal studies in Germany. At Berlin University Meyer fell under the particular influence of Georg Puchta whose lectures transformed Meyer’s vision of private law as a product of national spirit, and legal science as a means to make sense of it.

<Upon his return to Russia he was appointed to the university of

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Kazan.> In Kazan Meyer replaced the predominant scholastic readings of positive legislation with reflections on basic legal principles and the general system behind the positive statutes with the help of the historical and comparative methods. Also, he established one of the first legal clinics in Russia. Meyer’s active liberalism led to his acquaintance with such free-thinkers as Vissarion Belinsky, Nikolay Chernyshevsky, and young Leo Tolstoy. In 1855 Meyer took up professorship at St. Petersburg University only to succumb suddenly to tuberculosis few months later.

Meyer published few works during his life. Most notable are ‘The ancient Russian law of pledges’ (1855, his doctoral thesis of 1848), ‘On legal fictions and presumptions in Roman and Russian law’ (1853), and ‘Legal studies on the trade customs in Odessa’ (1853). It was the posthumously published course of lectures Russian Civil Law that won Meyer fame as the founder of the Russian science of civil law.

‘Russian Civil Law’ is in fact the lecture notes more or less accurately taken from Meyer by his students in Kazan University in the late 1840s and early 1850s. Following his sudden death, one of his students Alexander Vitsyn (Виц ын, later professor of St. Petersburg University) carefully compiled and edited these notes to publish them…

<Similar to standard German textbooks on the Pandects> ‘Russian Civil Law’ is arranged into two parts. The general part comprises basic concepts of civil law, its sources, and an outline of the system of legal institutes. The specific part deals with property rights, obligations, family laws, and succession law.

<...>

According to the majority opinion of pre-revolutionary and contemporary Russian scholars, Meyer’s book laid the foundation of the Russian science of civil law and made it an indisputable part of the civil law tradition.

Meyer’s book facilitated this transition by offering a new vision

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of the science of civil law, by redefining its relation to the positive laws and to legal education. In his words, ‘the ultimate aim of legal science was not to study the positive statutes but to understand the laws of real life’ (i.e. people’s customs and beliefs) with the help of dogmatical exegesis, historical and comparative study, and state the doctrine in clear and elegant style. It is for legal science to define the scope of civil laws, put them in order and, if necessary, amend it even praeter legem <by filling gaps in the law> or contra legem <deciding against the letter of the law> according to supra-legal principles (national spirit, justice, rationality etc.).

According to Meyer, civil laws were there only to ‘define the measure of freedom each individual had to enjoy the things and the actions of other individuals in order to satisfy one’s own needs’. Thus, the scope of civil law and of its science should be limited to proprietary rights on things and actions, excluding all family relations (as part of canon law) and parents’ authority (as part of public law). Yet, in his lectures he dealt with both institutes as a matter of positive civil law in Russia.

The disorder of civil law in Svod Zakonov prompted Meyer to arrange its institutes into general and specific part. Although such a division had been introduced earlier by a professor of Moscow University Fyodor Moroshkin <Мо р о шк ин> in his lectures published only in 1861, Meyer excelled him in coherence and elegance of the systematic exposition.

In his treatment of specific legal institutes, Meyer did not hesitate to interpret them contra legem citing Roman law or modern European codes in support. For example, he drew a clear distinction between property and possession as a factual relationship, while Svod Zakonov used the terms ‘proprietor’ and ‘possessor’ inconsistently and protected the possessor as if he were proprietor. Similarly, he defined sale of goods as a contract, a legal means to establish obligation, while Svod Zakonov treated it as a means to acquire property. Meyer’s criticism about the outdated Russian positive legislation led him to promote

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liberal values (inter alia the equality of all people before the civil law) and openly denounce serfdom.

In addition to the new vision of legal science and civil law, the book established an interaction between Russian legal science and legal education. The former should enable the latter to critically evaluate the statutes and resolve practical issues.

Meyer’s book was published on the eve of the Great liberal reforms in Russia in the 1860s. Although its direct influence on the courts of the Russian empire was not obvious, the book quickly became indispensable in legal education and legal science. The book remained unsurpassed in terms of a clear theoretical exposition of the civil laws of the Russian empire. (Although, lacking the comprehensiveness of Konstantin Pobedonostsev’s <По бе до но сц> еCourseв on Civil Law who stuck close to Svod Zakonov.) It had a great methodological influence on Russian lawyers between 1860s and 1910s, including Yury

Yet, the book deserved its share of criticism. It was said that Meyer <Ме йе >р narrowed the sphere of civil law to proprietary rights only, that he drew too much on the system of (modern) Roman law and oversimplified the system of Russian civil law, that he unevenly treated its legal institutes with a clear bias towards property law and obligations at the expense of family law, succession law, and land law. A more detailed examination might reveal dubious interpretation of the statutes. Although, given the book’s complicated editing history, it is not always clear who was to blame – the author himself, the students who took notes from him, or one of the later editors.

After the Bolshevik revolution of 1917 Meyer’s book sank into oblivion, together with the old imperial (bourgeois) law. Only the revival of civil law tradition in Russia after 1991 restored the book’s reputation as the starting point of the Russian science of civil law. At

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the same time, no matter how revered, Meyer’s book is no longer cited by lawyers dealing with issues of contemporary Russian civil law, given the differences in pre-1917 and post-1991 legislation and legal doctrines.

Legal science and dogma in Russia.

Poldnikov D. Dogma and Legal History in Russian Science of Civil Law // Journal on European History of Law. 2011, №1, p. 63– 64.

3.2. Dogma in Russian pre-revolutionary legal thought

The beginnings of the Russian legal science can be traced back to the Western European universities, mainly the German-speaking ones. This is why dogma became predominantly associated with the so called modern Roman law (heutiges Römisches Recht), one of the major courses of the university curriculum of those days. Professors lecturing on the Dogma of Roman law understood dogma as ‘the systematic teaching on legal institutions and concepts which generalizes specific social relationships’. According to Prof. David Grimm (Гр имм , St. Petersburg’s Imperial University), such dogma reflected the essence of legal science which by its definition studied ‘not the social relationships as such, but the abstract types thereof’. By grouping such abstractions into legal institutes, dogma created the object of the legal science itself!

In Prof. Vasily Efimov’s <Ефимо в > view, dogma ‘elaborated on legal principles in order to explain all sorts of legal phenomena’. And in doing so ‘it prepared remedies for social maladies’, much like medicine assisted doctors in prescribing drugs. The authoritative character of dogma was a natural consequence of dogma serving as a framework for legal practice.

Both D. Grimm and V. Efimov considered dogma in relation to Roman law. A clear majority of Russian academics of that time shared this approach, whereby the meaning of dogma in legal theory remained

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