Intro_continental_legal_science [Unlocked]

largely unarticulated. Sergey Muromtsev (Мур о мц е ,в Professor of Moscow Imperial University) was among the few who addressed the question ‘What is legal dogma? In his short article on this subject Prof. Muromtsev set out the goal of drawing the line between the art and the science of jurisprudence.

From the outset, the reader is offered the definition of dogma as a systematic description of the positive legal principles in a given jurisdiction and time. Dogmatic description aimed at presenting the Law as a coherent body of rules by describing, defining, systematizing, and generalizing. This type of dogma is very similar to the meaning given to dogma by Azo many centuries before (see above), although there was a significant difference with the view of the medieval glossator. According to Prof. Muromtsev, this kind of description had nothing to do with disciplinary legal studies. Even dogma as legal art aimed at solving practical issues and systematizing the rules of law. Dogma served as the lawyers’ professional handbook and could be regarded as a proof of the professional status of jurisprudence.

Also, S. Muromtsev emphasised the difference between legal theory and legal dogma. While the former claimed to formulate more abstract concepts, the latter was to provide lawyers with a set of rules and definitions that would instruct them in resolving legal cases.

3.3. Dogma and History of Roman Law

Russian professors of the pre-revolutionary time followed the general trend of maintaining the conceptual link between dogma and the Roman law. By the 19th century this link was well established in German legal science which should be credited with producing the phenomenon of the modern Roman law mentioned above. In this view the Corpus Iuris of Justinian was famously regarded as a subsidiary source of the German private law. The binding force of the Corpus Iuris favoured the dogmatic approach and diminished the importance of historical study of its content.

A similar split between dogmatic and historical approaches can be 230

traced in Russian legal. Although the studies in Roman legal history had appeared, their main purpose was to provide the traditional research with additional examples and remarks. Dogma and legal history were believed to serve different purposes. In the words of Prof. David Grimm, legal dogma analysed legal institutes at a given period of time in order to reveal their normative essence. On the contrary, legal history studied the evolution of legal institutes through several periods of time.

The split between dogma and legal history in the case of Roman law was institutionalised by introduction of two separate courses in the pre-revolutionary university curriculum, i.e. the History of Roman Law and the Dogma of Roman law (or the system of ‘modern Roman law’). The purpose of the “Dogma” course is best illustrated by the opinion of German leading Pandectist Heinrich Dernburg, cited (and shared) by Prof. Grimm: ‘Pandekten aim at presenting a general theory of civil law. They serve this purpose by stating ‘gemeines Recht’ <common law>, because the latter is based on Roman legal tradition which lays the foundation for our contemporary civil law’.

Legal science of Konstantin Pobedonostsev.

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. 74–80.

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.

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Many researchers called attention to the influence of the German Historical School and the Pandectists on the style of legal studies in Russia.

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2.1. < Pobedonostsev’s> extraordinary personality

Konstantin Petrovich Pobedonostsev (По бе до но сц, е1827в – 1907) was an outstanding Russian statesman, practitioner, and scholar in the second half of the 19th century. He is better known and remembered as an ultra-conservative statesman. In their memoirs Pavel Milukov <Милюк о в>, the leader of the Constitutional Democratic Party, and Maurice Paléologue, French diplomat and ambassador in Russia during WWI, called him ‘Russian Torquemada’. He became the symbol of the counter-reforms in Russia undertaken as a response to the assassination of Alexander II on March 1, 1881. General public may have a clearer picture of him thanks to the character of rigid and conservative husband of Anna Karenina in Leo Tolstoy’s great novel who was arguably inspired by no other than Pobedonostsev. Historians generally subscribe to this profile, although not unanimously.

Pobedonostsev’s curriculum vitae is impressive. From 1874 he was the long standing member of the State Council of the Russian Empire, in 1880 he was appointed as head of the Holy Synod of the Russian Orthodox Church (its supreme administrative governing body). From 1881 until the outbreak of the first Russian revolution in 1905 he was the power behind the throne of Alexander III and Nicholas II…

Pobedonostsev’s scientific convictions began to take shape at the prestigious Imperial School of Jurisprudence, where he studied in 1841–1846. The School was founded in St. Petersburg in 1835 with the mission to prepare young Russian noblemen for public services. Legal education was at the core of its curriculum which was based on the ideas of German Historical School.

From 1859–1865 he was a part-time lecturer in civil law and civil

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procedure at Moscow University, praised by students and colleagues for a clear exposition and a practical perspective on legal matters…

He was an admirer of both the German Historical School and the French School of Exegesis. In particular he praised Savigny’s “System of modern Roman law” for its theoretical consistency and the commentaries of the French School of Exegesis on the positive laws for their clear and concise style. However, he persistently called attention to the specificity of Russian laws and Russian legal history. He recommended law students to begin with the study of national legal history and set the pattern by being very knowledgeable about Russian laws and their historical development.

Alongside legal history, a comparative approach stood at the core of Pobedonostsev’s methodology. Studying the laws of the leading nations of his time together with their Roman background was indispensable to reveal the essence of legal institutions, as well as various flaws in Russian legislation enabling its critical assessment de lege ferenda. This academic program was carried out extensively in Pobedonostsev’s principal work – Course on Civil Law.

2.2. Introducing Pobedonostsev’s Course on Civil Law

Pobedonostsev’s unique practical experience, academic creed, accompanied by diligence and persistence, allowed him to design and accomplish the first comprehensive dogmatic course on Russian civil law. It took him more than two decades to publish his magnum opus – "Property rights" (vol. 1, 1868), “Family law and succession law” (vol. 2, 1871), “Contracts and obligations” (vol. 3, 1880), all three were published in St. Petersburg, including the complete three volume set in 1896.

On the occasion of Pobenonostsev’s death in 1907 the newspaper “Russia” wrote that his Course on Civil Law firmly established Russian national jurisprudence of civil law, since all previous literature on this subject either plainly echoed Western European publications or narrated civil laws without due explanations or lamely adopted European general

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theories of civil law.

Professor of civil and commercial law Gabriel Shershenevich praised Pobedonostsev’s ability to maintain and reason his own independent interpretation of the civil laws, and compared him with Roman lawyers, known for their unwillingness to generalize or to give broad definitions, for their outstanding accuracy in describing case circumstances and consistency in resolving legal issues on the basis of the established tradition.

The Course on Civil Law was praised by practitioners of law and quickly became a work of authority in Russian courts, including the Governing Senate of the Russian Empire. Therefore, it gave an accurate image of the predominant doctrines of Russian civil law towards the end of the 19th century…

… <as for the methodology> In the introduction to the Course, <Pobedonostsev> clearly indicated his intention to prepare a dogmatic work with a comprehensive exposition of the basic matters of civil law by comparing Roman, French, German laws in order to give the reader a full picture of the legal matter under examination before moving on to expose the corresponding provisions of Russian positive laws. The latter were treated through the prism of their historical development.

This combination of dogmatic, comparative and historical methods, in Pobedonostsev view, should enable any reader to see similarities and differences, correspondences and discrepancies between Russian and Western European laws. In addition, such an approach should facilitate the gap filling and critique of Russian positive laws (i.e. the Digest of Laws) which Pobedonostsev regularly reprimanded for their general inconsistency, multiple out-of-date regulations, and lacunas… In the introduction to the third volume he mentioned the lack of ‘classical’ legal knowledge (‘classical foundations’) at the time Russian laws were drafted and enacted. By ‘classical’ he understood Roman law in its 19th century interpretation through the joint efforts of the Historical School and the Pandectists in Germany.

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Contribution of Shershenevich.

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

Only Šeršenevič’s <textbook on civil law> was as popular with students <as the textbooks of Meyer and Pobedonostsev>, being republished eleven times before 1917; its last pre-Revolutionary edition was published in 1914. Šeršenevič tried to merge Western legal scholarship with the national civilian tradition, which had already been formed in the decades following the judicial reforms of 1864, and therefore his manual became more useful to the needs of theoretical training of lawyers in civil law matters. Šeršenevič was inspired by the ideas of Jhering and by new economic and social ideas, and was therefore more open in his treatment of legal dogmatic than his colleagues who were influenced by German Pandectism or by national romanticism.

Opposition to German (or Western) influence.

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

… in 1875 a discussion took place on the publication of the Russian translation of Savigny’s book “Law of Obligations”… The editorial board of the <authoritative> Judicial Bulletin… <published the following> editorial commentary:

“Thus while pointing out the obsolescence of our Civil Code <i.e. Svod Zakonov> which is not already in accordance with the requirements of life, and comparing the actual state of our legislation with that of Germany at the moment of its almost total reception of Roman law regulations, the author thinks that there is not any alternative for us except the same almost whole reception of Roman law

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rules developed and adapted to the contemporary evolution of civil law relations by actual German legislation. It is hardly possible to accord with this statement. While admitting the indisputable importance of Roman law studies for understanding national legislation…

… If we admit that Savigny is right that law is mainly a historical and national principle, it is certainly of no use arguing in favour of the possibility and purposefulness of transplanting to our soil foreign legislation without taking into consideration the profound difference between our life and that of Western Europe, whose historical evolution went an absolutely different way.

Incidentally Russian legal history provides few examples of such a transfer of particular institutes of West European legislations. We think that the need which is revealed to give up such experiments very soon must be a warning to us of their reiteration… But it is hardly possible to attach any other importance to Roman law: it remains for us a foreign law despite of its wealth of principles, while law must be first of all a product of national life.”

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There were many jurists, who tried to find a vital alternative to the dominance of German Pandektenrecht in Russia by collecting and systemising customary law of Russian peasants. This was a new edition of the old concept of the historical school, with its admiration of customary law as a reflection of the <national spirit>.

However it always turned out, that in the systematising process o the same concepts of <legal science of the Pandectists> had to be applied in collecting the material of customary law. Besides, it was evident, that the legal consciousness of the rural population… had nothing to do with the problems of society, which was in the course of transition from patriarchal and agricultural economic structures to the industrial economy of the free market, accompanied by urbanisation and an atomisation of society…

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Discussion about codification of Russian civil law.

It was thought that it would be better to present a new codification of civil law, where all new progressive ideas should be reflected as peculiarities of a Russian legal consciousness. In this period the preparatory works for codification were started.

In the new intellectual context the role for the development of law of Roman law studies and historical studies of law in general was to be revised. The future code was regarded as a closed interpretative space. Roman law or any other historical material had to lose its role of a thesaurus from which models of argumentation and interpretation of actual law could be derived.

Only a few were willing to absolutely abandon Roman law studies in the law discourse, since their real value as a laboratory of jurisprudence was evident. All its branches offered rich material for further analysis. Different types of “separate ways of thought” of Roman law and contemporary law were proposed…

<sociological approach was one of these alternatives>

Sociological legal thought in Russia.

In the second half of the 19th century sociology was increasingly popular, noticeably also in Russia. As a view was formed that legislation should be created on the basis of the understanding of objectively existing laws of social life. This artificial view presupposed a disaccord with the existing dogma of civil law, based on the logical systematisation of Roman law texts, to the mainstream of a progressive development of social life…

The intellectual atmosphere in Russia in the last decades of the 19th century was favourable to abandoning the old dogma of law taken

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from Germany based on the sources of Roman law.

The formation of these ideas was inspired by fresh and original conceptions brought forward in Germany by Rudolf Jhering. He was impressed with the positive reception of his theories by Russian civilians that he wrote in one of his letters that in Russia his ideas had received the warmest welcome. The most prominent adherent of Jhering in Russia was Sergej Muromtsev <Мур о мц е >,в Professor of Roman Law at Imperial Moscow University. He openly called himself “Jheringianist”….

<Muromtsev> was not inclined to regard all legal development as an unconscious process. To his mind, the Romans might agree, motivated by policy, to establish a new institution or to observe a new rule. In some matters where others normally assumed evolution without conscious innovation, Muromtsev assumed changes, which must be reflective to a large degree… From his point of view, institutions come into existence and rules are established because they have a social advantage.

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His most famous was his new manual of Roman law, entitled “Civil Law of Ancient Rome”.

in this book Muromtsev emphasised the universal side of legal evolution and saw the significance of Roman law in the great place, which law occupies in the legal history of the world…

…everything expressly national in Roman law, and not contained in other systems that cannot be utilised in a comparison, had but a secondary interest for Muromtsev…

…For Muromtsev, as for his German teacher, legal history should not be merely descriptive. It should content itself with telling what had happened and what changes occurred. It should discover the reason of the facts described and the forces that underlie and determine

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changes… It should be history of the evolution of law.

… He saw the practical purpose of such a historical study in finding out social laws, which are reflected in the formation of some basic principles of law…

The understanding of social laws, which had determined the existence of some legal phenomenon, can help to separate those other phenomena, which are occasional and useless…

<According to Muromtsev> the dogma of law should be verified by legal science, which is a part of sociology. For him the dogma itself was not a science, but some kind of <legal> art – ars juris. The dogma of law is nothing more than a play on words, which has only conventional causality. As such it is valuable, but it should be subjugated to sociology as the true science.

<Thus> Roman law studies <for Muromtsev>… were merely a retrospective sociology of law for him, and as such useful for students, giving them a better understanding of the mechanism of formation of law, caused by factors of social and economic development.

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Leon Petražycky (Пе тр ажиц к ий, 1867–1931)… published a series of articles after his return to Russia, where he formulated a new system of legal science. There a very modest role was reserved for the dogmatic of law, and the role of Roman law studies should differ a lot from that role, which they then played in contemporary legal studies.

Muromtsev and Petražycky both proposed to substitute the study of the system of Roman law in the curriculum by a general theory of civil law, which should be the doctrinal background for legislation and for dogma as the art of its exegesis.

They criticised dogma as a science, based on a logical analysis of sources of Roman law, formed part of that mainstream, which was orientated to eliminate dogma and the dominance of its historically

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