Intro_continental_legal_science [Unlocked]

elaborated concepts as an obstacle on the way to social progress. These processes in Russia were evidently parallel to the same discussions taking place in Germany at that period. More than that, the opponents of all parties were directly inspired by those ideas born in German jurisprudence.

Predominance of dogmatic science in Russia.

Muromtsev’s new theory met with strong reactions. … The professors of Roman law Dmitrij Ivanovič Asarevič (Азар е в ич, 1848– 1920), Kallinik Andreevič Mitjukov (Митюк о в, 1823–1885), and the professors of civil law Adolf Christianovič Holmsten <Го ль мсте>нand Semjon Vikientievič Pachman <Пачман > attacked Muromtsev’s views. They noticed his poor argumentation of the new theory, where only few concrete examples of presupposed social laws and of concrete phenomena of law determined by these were present.

In 1882 Pachman gave a report entitled “About a Modern Movement in the Science of Law” at the meeting of the Juridical Society of Saint-Petersburg’s. He stated the independent existence of constant legal principles, which lie at the base of every system of positive law, and which logically define its development as mathematical axioms similar to the development of mathematics. On the other hand, these logical predicates, which are the basis for the science of law, are irrelevant for sociology. In this way sociology should not consider them for its conclusions, but without this these conclusions have nothing to do with positive law, which is logically based on these fundamental principles… Pachman demonstrated that in the substitution of subjective rights by a category of protectable interests, Jhering and his Russian pupils misunderstood real life, taking the following example: when a court adjourns by someone’s claim, it never considers whether the claim is of real interest for the plaintiff. Pachman also stated that the new theory deprived the dogma of its legitimacy, and so threatened to totally eliminate it.

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The government did not have any sympathy towards these new ideas, and regarded the dogma based on Roman law as backbone of legal education. Governmental circles were afraid of the revolutionary impulses of the new movements in jurisprudence; it therefore preferred to encourage only a dogmatic type of law discourse which would be free of political allusions. In this way Roman law became a key discipline in the curriculum at faculties of law of the universities of Imperial Russia. For the preparation of professors of this discipline a special Russian seminary (institution) of Roman law, attached to the Faculty of Law of the University of Berlin, was organised in Germany <from 1887 to 1896>. The Russian government paid for the preparation of future Russian professors at this institution. Its alumni not only transported an excellent knowledge of Roman law to Russia, but were also acquainted with all types of its criticism in Germany.

<Ironically,> one of the best alumni of this institution <was> Leon Petražycky…

Interaction between legal science and legal practice.

… it is hard to dispute that the <elite> of academic jurisprudence had a rather modest influence on judicial practice, and its recommendations were called on only by supreme court instances, which translated the new ideas as precedents to courts of lower rank. The situation is comparable to that of late medieval England. There a group of jurist trained abroad in Roman law had limited opportunities to influence judicial practice through the case law of the Supreme Court instances. The parallel corresponds to the popular view of Russian law of the second half of the 19th century and of the first decades of the 20th century as a mix of statute and judicial law.

<Yet this interaction did not lack altogether>

The pre-revolutionary scholars noticed an evolution of the position of the supreme judicial instance <i.e. the Governing Senate, Пр ав ите ль ств ующийсе нат> on this topic. At first the Senate was

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sceptical about any doctrinal generalisations. It ordered lower courts to avoid terms borrowed from foreign academic jurisprudence. The Senate doubted the existence of a “so-called theory of law” (1891, decision No. 62). Later however, the Senate started to refer to opinions of Russian and foreign academic authorities in the field of jurisprudence, as well as to foreign legislations (1901, decision No. 45).

The Civil Cassation Department of the Senate positively treated the influence of civilian doctrine on judicial practice in the very first years of its activity. Courts were not inclined to reject the assistance of academic jurisprudence in the first ten to fifteen years after the implementation of Judicial Statutes in 1864. The textbook on civil law, compiled by D.I. Meier, with a Pandect law approach was replaced by the “Course of Civil Law” written by K.P. Pobedonoscev, designed for legal assistance…

However, during the conservative reign of Alexander III the Senate reluctantly resorted to civil doctrine. A decision of 1891 (No. 62) clearly expressed the refusal of assistance of doctrine… The Ministry of Justice continued to show concern for the theoretical training of judges…

Later the Civil Cassation Department treated the doctrine positively, though sometimes with restraint. It was directly specified in one of its decisions (1901, No. 45): “it was necessary for civilian authors to fill up the lacunae in law”. The Senate referred to works of lawyers such as D.I. Meier, K.P. Pobedonoscev and K.N. Annenkov. Sometimes before delivering the final decision courts consulted reports of experts by academic lawyers…

In some decisions in the period of 1900–1910, the Civil Cassation Department treated civilian doctrine as a high-grade source of law…

… the Senate considers it necessary to refer to the definition given to <a disputed> type of contract by the science of law <including the textbooks of Šeršenevič (“A Course of Trade Law”), Citovič <Цито в ич> (“A Textbook of Trade Law”), Endemann (Handbuch des

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deutschen Rechts), Levy Riesser (Lehre von Contocurrent)…

The practice of the Senate was also influenced by opinions of foreign civilians. <For example> the well-known doctrine of the French lawyer <Marcel> Planiole on bargains on a latent representative… was the basis for decision no. 33 (1912).

… The innermost but real influence of academic science on the Senate cannot be denied. Sometimes it had a negative effect, but it was not diminishing; on the contrary, it was growing…

There were many professors of law among the senators of the Department of Civil Cassation, for example, K.P. Pobedonoscev, S.V. Pachman, K.I. Mališev <Малыше в > and P.P. Citovič <Цито в ич>. A group of academic civilians, including the author of the most popular civilian reviews in scientific editions, М.М. Vinaver <Винав е >,р became senators after the February revolution of 1917. Many senators shared Senator A. Borovikovskij’s <Бо р о в ик о в>скbeliefий that legal education should be “an indispensable condition for a judicial status, and theory should help a court establish facts and facilitate the understanding of legal definitions”.

<...>

Nonetheless, Russian lawyers who were university professors were not completely unanimous in their estimation of the influence of civilian doctrine on practice of the Senate. <In a publication of 1914 the conservatively minded> А.М. Gulyaev <Гуля е >в believed that the Senate’s recognition of the influence of civilian doctrine, in particular the Western civilian doctrine, direct influence in references to scientific works or indirect influence in references to foreign legislations, destroyed the prestige of the instance of supreme cassation. “… The newest decisions of the Senate refer to Meyer, Pobedonoscev, Annenkov, Arendts, Puchta and Windscheid etc. Undoubtedly the authority of the decisions of the Senate could be raised, if they were based on materials of Russian legislation”.

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L.S. Tal’ <Таль>, another rather progressive jurist stated similar ideas… He was a convinced supporter of a close connection between civilian ideas and the cassation application of law. “It is impossible to carry out a definition of new legal concepts and legal principles, as required by the Statutes as a “disclosing of common sense of the law” without the help of science… But even L.S. Tal’ worried about the lack of critical attitude of the Civil Cassation Department towards legal constructions produced abroad. In his opinion such an attitude could lead to undesirable transplants hardly acquired by Russian law.

<Some members of the Moscow Legal Society argued that> The priority of doctrinal instructions by the Civil Cassation Department was put forward as a means to overcome the inconsistency of the practice of cassation. “The decisions of the Cassation Senate, explaining legal questions, are similar to the answers of Roman lawyers (responsa prudentium). Therefore they must not only interpret legislation, but also give a scientific explanation of the law. Such explanations should be obligatory non ratione imperii, sed rationis imperio” <i.e. by force of reasonableness>.

<...>

In volume Х of the Code, where civil legislation was set down, there were no common civilian principles… The initial origins of these innovations which were introduced into Russian civil law by the Cassation Senate show, that most of them were borrowed from civil doctrine. <including the German one>

… The supreme cassation instance transferred a number of norms developed by German Pandectism to Russia. Defining a custom, the Senate almost literally reproduced the norms formulated by the German historical school and as it was perceived later by Pandectism. The Senate’s definition (1878, No. 225), meaning opinio necessitatis, almost literally coincided with Bernhard Windscheid’s definition in § 15 of his manual of Pandect law. The Civil Cassation Department established a distinction between the concepts of legal ability and capacity, which

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corresponded to the distinction between Rechts- and Handlungsfähigkeit <legal ability and legal capacity>. As a result of the efforts of the Senate Russian civil law acquired the term“legal person” (1874, No. 597; 1880, No. 246), accepted by German jurisprudence.

… Later the Senate recognised the status of the legal person for target property known as Zweckvermögen in German jurisprudence: property and money funds. At last the Pandect theory of legal possession was reproduced in the project of the Civil Code: “possession is obtained by a receipt of property into the authority of a person because of the intention to own the property”. However Russian lawyers noticed that these paragraphs were not a result of simple borrowings of conclusions of Pandect doctrine… These conclusions gradually penetrated into Russian judicial practice on the basis of instructions to the Civil Cassation Department. In the Civil Code project these statements gained strict contours, which had not always been the main feature of cassation decisions.

Thus, the Civil Cassation Department was engaged, though without declaring it, in introducing of a number of achievements of the dogma of European private law, at first fixed in different WestEuropean codifications, into Russian legal practice.

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

After the Bolshevik revolution of 1917 <the plethora of Russian legal literature of the 19th and early 20th centuries> sank into oblivion, together with the old imperial (bourgeois) law.

Butler W. Russian Law. 3d ed. Oxford, 2009, p. 75.

Marx and Engels had comparatively little to say about law in their writings, and what they did say appertained principally to their larger critique of the society contemporary to them and their explanation of societal change. Law in effect was explained <to go>

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away. Future society, it was supposed, would administer itself without need of legal rules.

Those who came to power in October 1917… found no specific blueprint in the writings of Marx and Engels. … Law was <believed to be> policy as well as politics, whether one spoke of law <as a whole> or as a single legislative act <i.e. zakon>; it was the product of political process, it recorded a policy judgement or decision, and it transmitted that decision to whosoever it was addressed in the form of a normative rule.

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

<Already before 1917 many Russian adherents of the sociological school, like Muromtsev and Petražycky> 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 elaborated concepts as an obstacle on the way to social progress.

… the elimination of Roman law from the curriculum as a separate discipline, and the subjugation of dogma to communist ideology, which took place after the Bolshevik Revolution, was objectively prepared by all former evolution of legal theory in Russia.

Poldnikov D. Judicial Reasoning in a Codified System: Letter of Law vs. Legal Consciousness [forthcoming]

The elimination of the westernised legal science in the Soviet Russia was facilitated by the deeply-rooted disbelief of Russian people in the idea of rule of law.

Legal Nihilism in Russia.

Russian legal consciousness was essentially communitarian since more than 90% of the population of the Russian empire before the World War I lived in rural communities. The promising formation of

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civil society and the growth of intelligentsia ware not enough to attract the overwhelming majority of illiterate peasants to Western liberal values.

In general terms, Russian legal consciousness clearly distinguished a fair ‘law’ (Russian ‘pravo’) and an unfair ‘statute’ (Russian ‘zakon’). Unlike the Germans or the French, most Russian people were sceptical and suspicious about the positive law even in the end of the 19th century. This attitude is best confirmed by the following Russian proverb: “A Statute is like a weathercock: you can turn it anyway you like.” (Russian: “зак о н– что дышло …”) It alludes to different application of statues in the interests of the rich and the poor.

A fair law in Russian legal consciousness was perceived as a customary one based on justice. Statutes in action were viewed as limitations on this customary law and, by consequence, on justice, as a means to push forward the state ideology. Statutes, thus, were often perceived as unjust. It was a matter of pride for most Russian peasants not to deal with the state judicial administration, in capacity as plaintiff, or defendant, or witness.

Reinforced by the Bolshevik Ideology and Revolutionary Practice

After the Bolshevik Revolution in 1917 the administration of justice was totally subdued to political tasks and revolutionary causes. All western principles of judicial administration (together with the imperial legislation) were rejected because of their bourgeois nature and gradually replaced with the new revolutionary statutes.

This radical change, however, was not only due to the brutal force of the Bolsheviks. The emerging Soviet legal consciousness bore on the traditional popular concepts and beliefs being adapted to the new historical conditions. Speaking about legal argumentation, this half national and half Soviet legal consciousness authorized judges to bend formal legal rules in favour of higher and just goals.

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Giaro T. Legal tradition of Eastern Europe, in: Comparative law review, 2011 Vol. 2, No 1, p. 20.

… once <American Sovietologist and legal historian> Harold Berman extended the concept of western legal tradition not only to East Central Europe, but also to the communist Russia, … the European character of Soviet law became widely recognized. Given its recently discovered Romanist elements (see John Quigley, The Romanist Character of Soviet Law, 1992), Soviet civil law was undoubtedly part and parcel of the continental legal family or, in more metaphorical language, a chapter of western legal history.

Essential Readings

1.Butler W.E. Russian law, in: Elgar encyclopedia of comparative law, p. 630-641.

2.Butler W. Russian Law. 3d ed. Oxford, 2009, p. 3–88.

3.Rudokvas A., Kartsov A. The Development of Civil Law Doctrine in Imperial Russia Under the Aspect of Legal Transplants (1800– 1917) // Rechtwissenschaft in Osteuropa. Studien zum 19. und frühen 20. Jahrhundert. Sonderdruck. Frankfurt am Main: Klostermann, 2010, vol. 5, p. 291–333.

Supplementary readings

1.Ajani G. By Chance and prestige: legal transplants in Russia and Eastern Europe // The American journal of comparative law, 1995, vol. 43, № 1, pp. 93–117.

2.Borisova T. Legislation as a source of law in late Imperial Russia // Preprints of the HSE Series: Law, WP BRP 04/LAW/2012 <http://www.hse.ru/data/2012/03/01/1265644339/04LAW2012.pdf

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3.Borisova T. The Digest of laws of the Russian Empire: the phenomenon of autocratic legality // Law and history review, 2012,

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