Law's Authorizations and Rule of Law Ideals: Lessons from Russia (original) (raw)
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Kritika: Explorations in Russian and Eurasian History, 2018
In 1983, a great legal scholar and a uniquely engaged expert on Soviet law began his controversial masterwork as follows: This book tells the following story: that once there was a civilization called "Western"; that it developed distinctive "legal" institutions, values , and concepts; that these Western legal institutions, values, and concepts were consciously transmitted from generation to generation over centuries, and thus came to constitute a "tradition." 1 Our question for today's lively field of Russian law is, could we substitute the word "Russian" for "Western" and proceed to describe the dynamics and characteristics of a Russian legal tradition? To do so, we must first have the confidence, as Harold Berman did, to challenge commonly held notions of what law is. The proposal to study a legal tradition recognizes both the plurality of understandings of law and the historical construction of all legal systems. What people regard as law in different times and places depends on particular, but often intersecting, cultural trajectories and particular, often intersecting, conjunctures of power. This article derives in large part from a series of workshops and seminars held at the Wissenschaftskolleg zu Berlin in 2016 and 2017. We express our deep gratitude to the Wissenschaftskolleg's administration for supporting our project, "Russia: The Rule of Law in Question," and to the over 60 specialists-historians, legal scholars and practitioners, anthropologists , and sociologists, from nine countries-who participated in our discussions in Berlin.
Russian Society and its Civil Codes: A Long Way to Civilian Civil Law
Journal of Civil Law Studies, 2013
comparative law, I was not surprised when my American colleagues asked me numerous questions about Russian law. However, the main question-to which legal family/system/tradition does Russia belong-is not an easy one to answer. The problem is that, even after the fall of the Soviet Union and substantial reforms to Russian law, comparativists (both Russian and Western) are indecisive about placing Russia within the legal tradition of civil law and continue to consider it as a legal tradition sui generis. In my opinion, this approach is the result of the power of historical tradition. The expulsion of the Soviet Union from civilian legal tradition was done in 1950-1960s by Pierre Arminjon, Boris Nolde and Martin Wolff in their Traité de droit comparé, 1 on one side, and by René David in his Les grands systèmes de droit contemporains: (droit comparé), 2 on the other. I will not go into the details of why the scholars decided to classify Soviet law as a separate legal system, but the main points for distinction were divergent economic and political orientations, dissimilar social values, differences in property, labour, and contract law. Briefly, scholars were looking more for dissimilarities than similarities between Russian and Western law and, definitely, found enough of them to put Russia outside civilian legal tradition. This attitude of looking at how Russian law is different from civilian systems continues to persist today. In this article, by presenting a survey of the history of civil law codification in Russia, with a special emphasis on property law as the most peculiar part of Russian law, I will try to show that, first, Russia (even in Soviet times) has always belonged to civilian legal tradition. It is obvious that the country was directed by divergent 1.
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Eugene Kamenka was a distinguished historian of ideas, and my primary connection with him-as a doctoral student in his Unit under his supervision-was in that field. However, while I hope it is not totally empty of ideas, this article has nothing to do with their history. Still it is concerned with two areas of deep interest which we shared, and about which he taught me much. The first interest is politico-geographical: Eugene's life was profoundly affected by the Bolshevik Revolution, and shaped by its aftermath. That fed his lifelong interest in Marxism, in communism, and-in his last years-in post-communism. routes proportions gardees and indirectly, the same is true of me. Secondly, my first intellectual connection with Eugene had to do not with history of ideas but with law, which was one of his dominant interests during his life with Alice Tay. Eugene taught me jurisprudence, in fact, before he introduced me to the history of ideas. Among the things he taught, and about which he and Alice wrote extensively, was that legal orders are not simple or neutral instruments available for use and deployment whatever one's chosen purposes. Rather, particular orders at
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Acta Juridica Hungarica, 2013
The fate of Marxism in the Soviet Union and the people's democracies as the former's extension owing to post-WWII occupation was from the beginning sealed by Bolshevism, that is, the politico-ideological domination and use of the scholarly domain as well, made to self-close in a merely justifi catory role. There may have been attempts at opening, even if only conceivable within-i.e. preserving at the same time-this framework function. In the present conspectus, the limiting positions are occupied by the Soviet Union and the German Democratic Republic, completed by after-1968 Czechoslovakia, as well as Yugoslavia and pre-1968 Czechoslovakia, representing the substitute-to-religion dogmatic side, exclusively politically motivated in the former and subordinated to a humanising tendency in the latter case, on the one hand, and Poland, dedicated to a purely analytical approach, in which Marxism has simply no relevance, on the other. Hungary, treated in an earlier paper by the author, was in-between, taking Marxism seriously but mostly as a methodology, and thereby able to foster live debates. All that notwithstanding, there has been quite a few progressive moves also in Romania and Bulgaria in this specifi c academic fi eld. Turning topoi of the discussions were, chronologically but recurrent transubstantiatedly, the exclusivity of Vyshinsky's socialist normativism, the consequences ensuing from the law's superstructural nature, the discontinuity vs. continuity of law in historical development, and, in the background, the dilemma of the ontological/epistemological understanding of Marxism, the latter standing for a rigid Leninist reducibility of law to its material substratum as the product of sheer refl ection, and the former enabling to develop the law's relative autonomy as in Lukács' posthumous ontology. On the fi nal analysis, all these forced paths made a whole region's efforts to be belated as compared to international developments, the fact notwithstanding those outstanding achievements were born especially on the fi elds of legal ontology and sociology, as well as the legal methodology and particularly that of the comparison of laws.
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