The Emergence of the Sociologiсal Theory of Law in the USSR]

ВЕСТНИК ПЕРМСКОГО УНИВЕРСИТЕТА. ЮРИДИЧЕСКИЕ НАУКИ 2017 PERM UNIVERSITY HERALD. JURIDICAL SCIENCES Issue 35

Information for citation: Finogentova O. E., Tokarev V. A. Zarozhdenie sotsiologicheskoy teorii prava v SSSR [The Emergence of the Sociologiсal Theory of Law in the USSR]. Vestnik Permskogo Universiteta. Juridicheskie Nauki – Perm University Herald. Juridical Sciences. 2017. Issue 35. Pp. 16–32. (In Russ.). DOI: 10.17072/1995-4190-2017-35-16-32.

UDC 340.13 DOI: 10.17072/1995-4190-2017-35-16-32 

THE EMERGENCE OF THE SOCIOLOGIСAL THEORY OF LAW IN THE USSR

O. E. Finogentova Immanuel Kant Baltic Federal University 14, A. Nevskogo st., Kaliningrad, 236016, Russia ORCID: 0000-0001-5281-5517 ResearcherID: Q-8256-2016 e-mail: [email protected]

V. А. Тokarev Samara State Regional Academy (Nayanova) 196, Molodogvardeiskaya st., Samara, 443001, Russia ORCID: 0000-0003-4568-9764 ResearcherID: S-4989-2016 e-mail: [email protected]

Introduction: the article is devoted to the analysis of the genesis of the Soviet theory of law, in particular, of the sociological concept of law by P. Stuchka. In this regard, the relation of jurisprudence with other social sciences, such as philosophy, political science and sociology, acquires particular importance. Special attention is paid to the attempts of reconciliation of Marx’s concept of withering away of the state and the law in a communist society with the reali- ties of the young Soviet state. Purpose: to form a concept of prerequisites and peculiarities of formation of Russian legal theory in the 1920–30s. Methods: theoretical methods of formal and dialectic logic have been applied. Results: the analysis shows that in their attempt to reconcile Marxist theory with the reality and inner logic of the law the Soviet jurists relied on the achievements of pre-revolutionary Russian legal theory, primarily a sociological theory of law. In addition, the relative epistemic pluralism of social sciences in the first decades of the Soviet regime allowed them to elaborate original concepts, for example, the concept of codification. Conclusions: the Soviet theory of law in its early stages faced the problems of determining the essence and the content of law, and of the relationship between the law, state and society of a new type. The problems were caused by the dominant ideology of Marxism-Leninism and epistemological obstacles in legal knowledge. The attempts to solve these problems undertaken by the Soviet jurists are of great interest to modern legal theorists who are in search for appropriate methods of legal research.

Keywords: legal epistemology; Marxism; legal reality; natural law; positivism; sociological theory of law; revolutionary law; dictatorship of the proletariat

 Finogentova O. E., Tokarev V. A., 2017 16 The Emergence of the Sociologiсal Theory of Law in the USSR

Information in Russian

ЗАРОЖДЕНИЕ СОЦИОЛОГИЧЕСКОЙ ТЕОРИИ ПРАВА В СССР

О. Е. Финогентова Доктор юридических наук, профессор кафедры теории и истории государства и права Балтийский федеральный университет им. Иммануила Канта 236016, Россия, г. Калининград, ул. А. Невского, 14 ORCID: 0000-0003-4568-9764 ResearcherID: Q-8256-2016 e-mail: [email protected]

В. А. Токарев Кандидат юридических наук, зав. кафедрой истории государства и права Самарская государственная областная академия (Наяновой) 443001, Россия, г. Самара, ул. Молодогвардейская, 196 ORCID: 0000-0001-5281-5517 ResearcherID: S-4989-2016 e-mail: [email protected]

Введение: статья посвящена исследованию генезиса советской науки теории права, в част- ности анализу социологической концепции права П. И. Стучки. В связи с этим вопросы взаимосвя- зи правоведения с другими общественными науками – философией, политологией, социологией – приобретают особое значение. Отдельное внимание уделяется попыткам примирения основопо- лагающего тезиса марксизма об отмирании государства и права в коммунистическом обществе с реалиями молодого советского государства. Цель: сформировать представление о предпосыл- ках и особенностях формирования отечественной юридической науки в 20–30-е гг. XX в. на основе анализа основных проблем, поставленных и решаемых ведущими советскими юристами. Мето- ды: теоретические методы формальной и диалектической логики. Результаты: анализ показал, что в своем стремлении примирить положения марксисткой философии с реальностью и внут- ренней логикой права советские юристы опирались на достижения отечественной дореволюци- онной науки, прежде всего социологического направления в правоведении. Кроме того, характер- ный для первого десятилетия Советской власти относительный эпистемологический плюрализм в общественных науках позволил им разрабатывать оригинальные концепции, например, кодифи- кации. Выводы: советская наука теории права на этапе своего становления столкнулась с про- блемами определения сущности и содержания права, специфики его взаимоотношений с государ- ством и обществом нового типа, которые были обусловлены как господствующей идеологией марксизма-ленинизма, так и характерными для юриспруденции эпистемологическими препят- ствиями к познанию права. Попытки решения этих проблем, предпринятые советскими учеными, представляют несомненный интерес для современных теоретиков права в перспективе поиска адекватной методологии правовых исследований.

Ключевые слова; юридическая эпистемология; марксизм; правовая реальность; естественное право; позитивизм; социологическая теория права; революционное право; диктатура пролетариата

Introduction ciety. At the same time, in fact, this model seems to Contemporary representatives of legal episte- be not only abstract due to the nature of instruments mology point at three impediments faced by jurists it is created, but also idealistic, because it bears the in studying law. The first one is a false clarity of impress of certain ideology. Finally, separate study- subject matter that turns into misconception, when ing and also teaching branches of jurisprudence at under the slogan of direct recourse to legal experi- law departments lead to a gap between them and ence between the legal reality and scientist is being other sciences, which lawyers attempt by the so- set a kind of screen of concepts and categories called “interdisciplinary approach” [36, pp. 37–68]. which, finally, become a true object of study. The Reasons why lawyers make sure of their sub- second impediment is that legal science, being ject matter clarity are not hard to plumb. Positiv- formed in such a way, functions as a social life re- ism, which took a strong position in the 19th cen- vealing, not explaining or even describing it, but tury and then developed in different variations representing a defined model of relationship (especially rapidly in our country for a variety through categories and concepts in a particular so- of reasons), extols the experience as a reliable

17 O. E. Finogentova, V. A. Tokarev reference point in understanding the legal reality. Rules of juridical discourse formation turn out to be Moreover, legal knowledge in the sight of positiv- more meaningful for a positivist than the actual set ists is nothing short of quintessence of legal experi- of legal norms, as legal reality can be subjected to ence gained in the society. Actually, the direct legal the idea of it through universal concepts and cate- experience in their research is replaced by meta- gories of legal science. Researches of positivists physical mediation or as Karl Marx, who criticizes focus on signs of presence of a particular law in Hegel’s legal philosophy, puts it – “logical, panthe- social life, then on the law itself, or more precisely, istic mysticism” [13, vol. 1, p. 224]. As a result of on rules of law, but almost never lay emphasis on this, categories and concepts become a separate law as a system. It is enough to see that the law ex- entity putting on the back burner real legal entities. ists and its force is unpreventable, and the juridical Getting involved in this game, the jurist risks to science services as a constant reminder of this. Sci- forget that concepts and categories are secondary, ence should not simply explain, but justify the ex- because they serve the cognitive process as acces- istence of law and the particular form of the state. sorial instruments, whereas the primary focus is on Legislation and juridical science impose a particu- the legal reality in which a juridical entity tries to lar model of legal reality on the subject. As foreign find responses for questions about the freedom and lawyers note, when a legal process begins, the sub- justice. Meanwhile, if the legal reality does not fit ject undergoes symbolic violence in accordance the “Procrustean bed” of legal science, positivists with current legislation and dominant ideas of law try to make it fit a pre-existing framework that giv- and state, which becomes real in the course of time en a priori, chief among which is the postulate of [26, p. 142]. justice universalism. It is a magic word – “justice” The role and influence of a particular legal – admits variety of use cases without any time or conception on the public life are weakened or space limitation. Thus, during the period of the strengthened, also concepts can displace each oth- New Economic Policy (NEP) Soviet jurists tried to er (for example, natural law doctrines were dis- bring together fundamental principals teachings of placed by legal positivism in the second half of the Karl Marx and Frederich Engels about justice and 19th century – first half of the 20th century), but state with the social, economic and political reali- fundamental principles are kept and put into prac- ties of the first post-revolutionary decade by offer- tice under appropriate conditions. However, one ing them new, adequate terminology. According to must remember that attempts to implement politi- the known British historian of political and legal cal and legal doctrines, as a rule, do not bring the doctrines John Kelly, who analyzes that era, “The results their creators expected. The future of official theory used for explaining this perpetuation Marxian doctrine of law and state in Soviet Russia of bourgeois forms was that the new legal order was not an exception. This article focuses on the was indeed the expression of the interest of the analysis of problems associated with comprehen- dominant class; but this, of course, was now the sion and transformation of the domestic legal doc- proletariat. And this legal order would be operated trine of 1920s–1930s, first of all, by Peter Stu- in the light of that class’s overriding objectives and chka. It consists of three parts, in which are con- destiny. This general position was stated as early as sidered features of Marxian approach to the es- 1921 by the People’s Commissar for Justice in the sence of the state and law, the post-revolutionary first revolutionary government, lawyer Peter Stu- concept of the state and law, as well as the histori- chka (1865–1932); he summarized it in 1928 in a cal background for development of sociological formula stating that Soviet law maintained by the theory of law in the USSR. state during the period of transition was bourgeois I. The Marxian Approach to the Definition law minus the bourgeoisie” [32, p. 372]. of the Essence of the State and Law The model of legal reality proposed by positiv- The cornerstone of Marxist theory of ists is a set of judgments about it, interrelated and communist society is the concept of the subject to rules of their statement and evaluation. withering away of such social institutions as

18 The Emergence of the Sociologiсal Theory of Law in the USSR state and law. The need for them will disappear as sion of “natural right” – “a revolutionary right, soon as the class division of society is gone. At the some kind of super right of the proletariat to fun- same time, one of Marx’s biographers notes, “The damental world remaking”. What is more, Marxists promise of lack of law”, leading to a “perfect jus- comprehend law not in the strict legal sense and tice”, was correctly interpreted by Hans Kelsen as not even in the sense of the right of power, but in a “utopian prediction” [34, p. 78]. Since each type of broad sense i.e. as “validity, propriety” of certain state corresponds to a particular type of law, the actions that have “valid cause” [2, p. 480]. The latter, generally understood by Marx and Engels as Marxist “natural law” has an incontestable prima- a historically transient phenomenon in which socie- cy over positive law and so legitimates abuses of ty is only interested at a certain stage of its devel- it. Let us note that foreign experts in history of opment, will just wither away with withering away legal thought of the Soviet period also agree with of the state. Marxism does not leave a place for the Sergey Alekseev’s opinion. For example, law in the future communist society, where, as the Fr. J. Goman notes, when analyzing Peter Stu- French jurist Francois Terre said, “The disappear- chka’s conception of law in the article “Soviet ance of law follows withering away of the state” Theory of Law” (1965), “He thought that there [38, p. 155]. was "natural law" growing out of social inter- It should be emphasized that Marxism did not course. This "natural law" had precedence over define and research the problem of the essence of "artificial law" consisting of statutes and govern- law beyond its socio-economic nature. According mental decrees” [31, p. 405]. to Marx and Engels, law is a part of a superstruc- Practical implementation of the Marxist doc- ture over the economic basis and it is of a minor, trine about law and state led to violation of legal derivative character. As the Australian law profes- norms and establishment of dictatorship, whereas sor Augusto Zimmerman notes, “Marx considered its essence – withering away of law and state – was that there can be nothing intrinsically good in the changed. The period of Lenin’s leaderism was existence of law. Arising from the conflict be- characterized by a certain romantic attitude, high tween social classes as the need to control such a communistic ideals, while the period of Stalin’s conflict, positive laws would cease to exist with regime was connected with creation of the totalitar- the final advent of communism” [42, p. 20]. Ac- ian government system, in which the personality, cording to Augusto Zimmerman, Marxism de- contrary to Karl Marx’s expectations (as they were scribes and explains legal reality limiting it by cer- expressed, for example, in the article “On the Jew- tain economic relations, using concepts and cate- ish Question” [13, vol. 1, p. 406]), did not gain all- gories of the class struggle, formation and eco- round development, being only a small screw in the nomic determination of social phenomena. In gen- huge state machinery. In the Soviet state took place eral, exaggeration of the role of the class begin- a deviation from one of the basic provisions of ning in the process of law formation and develop- Marxist legal philosophy, namely extolling the ment is a characteristic feature of Marxism. Ac- state’s role, bringing it to the absolute. On the con- cording to its theorists, class contradictions act as trary, according to the basic provisions of Marxism, a “firing trigger” in case of law aborning and a the “semi-state”, which was planned only for a catalyst of social progress on the whole. The de- transition period, did not assume availability of ei- terministic approach of Marxists to understanding ther permanent administrative machinery or regular features of society development and its structural army. Amendments were also made in the idea elements actually prevented evolution of social about withering away of law. Vladimir Lenin mechanisms that were aimed at improving legal claimed: “Without falling into utopianism, it is im- norms and juridical tools. possible to think that, having overthrown capitalism, For example, professor Sergey Alekseev makes people learn right away to work for society without an interesting comparison between natural and legal any rules of law; besides, cancellation of capitalism ideas and the Marxist legal philosophy. According does not provide any economic prerequisites for to him, despite contradictions between them and such change straight away” [12, vol. 33, p. 95]. apparent lack of common denominator, the central Considering law under socialism as a tempo- concept in Marxist philosophy becomes a new ver- rary phenomenon, whose existence in society was

19 O. E. Finogentova, V. A. Tokarev caused by a number of objective circumstances, he does not acknowledge law as possessing inde- meant bourgeois law. In his opinion, “in the early pendence and internal logic, substituting them for phase of communist society (which is usually political expediency. The reason for such attitude named socialism) the bourgeois law is cancelled not toward the law was given by authors of “Manifes- completely, but only partially, exclusively in rela- to of the Communist Party” themselves. As is em- tion to capital goods” [12, vol. 33, p. 94]. phasized by the British professor Hugh Collins, The place and role of the law, public order and since the destiny of humankind was considered to judicial system in the state of the “proletarian dicta- lie in the emergency of lawless communism, law torship” under construction relied on Lenin's doc- was interpreted as not encompassing any universal trine about the state and class struggle, which legit- values or principles, but rather representing a tran- imated the establishment of the political domination sitional device that merely illustrates “the course of the proletariat in the form of its dictatorship, i.e. of political struggles and the evolution of social the power based directly on the armed force of formations” [25, p. 9]. masses and not being shared with anybody else. Thus, the essence of the matter lies in merging Insofar as the proletariat was the unique legitimate of Marx’s ideas about the state and law, about power holder, its dictatorship could not be limited communist society with the etatism policy, but not by the formal law, and the use of violence was le- in change of reference points and exaggeration of gitimate and necessary. This provision became the the role and value of the state. In other words, there key, once and for all determining the Bolsheviks’ was no substitution of Marxist legal philosophy for relation not only to the system of power on the the state ideology glorifying the power but etatism whole but also to its core components – to the right of utopian philosophy of communism. It led to and the law. As Francois Borella notes concerning creation of a specific system of “double-level law” the legal nature of the proletarian dictatorship, “The (Sergei Alekseev), in particular, to coexistence of single party, avant-garde party and its leader deal positive law, which contained provisions quite pro- with an unresolvable question of liberal democracy: gressive for that time, and “revolutionary law” with do people manage itself when the majority actually higher priority. controls them? The answer is obvious: the people The Soviet Constitutions, providing personal are this party and its leader” [23, p. 109]. rights and ensuring their observance, thereby were Another fundamental provision of the Bolshe- creating the illusion of the legal, but in practice vik law conception is interdetermination of law, these norms were not implemented. “On the con- state power and policy. In the view of the foreign trary, others aspire, following Karl Marx’s legal ideology expert Paul Hirst, “Socialism means thought, to the temporary establishment of dicta- nothing when it is not the legal ideology: a dis- torship of the proletariat in order to reach the course that directs policy to creation of certain communist society, in which freedom, equality forms of social relations in certain ways; a dis- and real democracy would be guaranteed. Their course that can create and assess political situations purpose is democratic, as opposed to the proletari- (in context of definite purposes)” [30, p. 8]. The an dictatorship”, – the French lawyer Marie-Anne classical idea gained new content in Lenin’s inter- Cohendet notes [24, p. 151]. The declared princi- pretation because the right and the law gained offi- ple of socialist legality was the chimera covering cial recognition as the tool of the state policy. In arbitrariness and violence. As Sergei Alekseev 1916 Vladimir Lenin wrote in the article “A Carica- notes, the concept of “revolutionary law” means ture of Marxism and Imperialist Economism” that “something more than just consciousness and rep- the law is a political aspect and also a policy [12, resents something like revolutionary natural law”, vol. 30, p. 99]. Indeed, policy has been and remains although it is closer to the concept of “legal con- a component of the state lawmaking activities, and sciousness”, i.e. to personnel subjective percep- laws are its concentrated term, but in the context of tions of “the real, desirable and admissible law”. “policy – law”, from the Bolsheviks leader’s point “Revolutionary law” is actually beyond the con- of view, policy prevails over the law, therefore the cept of “legal consciousness” because it allows latter becomes a back-up tool of policy. In fact, he for “something that positive law systems do not

20 The Emergence of the Sociologiсal Theory of Law in the USSR allow, as well as does not any consciousness con- science to move beyond the Marxist foundations taining the category of “law” in its strictly legal and the theory of revolutionary violence, making meaning – direct, uncontrollable, boundless and it impossible to establish any consistent concept mass violence” [2, pp. 482–483]. The impossibility of law, free from ideology of class struggle. Re- to implement in practice progressive principles and duction of law cognition to law negation would norms of Soviet law is related to the fact that the lead to serious negative implications, the most leading element of the current legal system proved important of which would be the legal nihilism, the so-called “revolutionary law”, which gave free which quickly formed in the Soviet society. Di- rein by positive law to the leader and party nomen- rected against bourgeois law at first, it also ex- clature to act at their own discretion. tended to socialist law, which the Soviet lawyers Positive law was necessary for the Bolshe- gave a secondary role in management of society viks to justify their decisions and undertaken ac- and state. At the same time, extra legal mecha- tivities, so it performed rather a decorative role. nisms of coercion were supposed to become the Thus, according to Alexandr Goykhbarg, “It main methods of public administration. would be a good thing to rise out the word "law" Therefore, the Soviet ideologues aspired to if we could replace it with another one” [4, p. 4]. change existing ideas about law in the domestic However, the replacement of positive law with pre-revolutionary science, abandoning the classi- revolutionary law was implemented, and as a re- cal concepts of the essence of law, more precisely, sult Soviet law constituted a legal system with focusing on the role of the state compulsion in the “revolutionary law” as its dominating principle. mechanism of legal regulation of social relations. However, it lacked an adequate understanding, The well-known party and government leader Ni- which resulted in emergence of a number of orig- colai Bukharin considered that coercion must be inal legal concepts in the first decade of the Sovi- transferred to “working people and the ruling class et power. The famous French law theorist and his- itself, because it still bears the stamp of the com- torian of politico-juridical doctrines Michel Villey modity-capitalist system” [3, pp. 140–141]. In his wrote in the mid-1960s about what had happened to opinion, only proletarian coercion in the form of the Marx’s “state and law” doctrine: “It is neces- “shootings and labor duties” was the effective sary to agree with the Marxists that in our legal phi- method that would allow for producing the com- losophy insufficient attention is paid to Marx’s doc- munist society “from the materials of the capitalist trine. We raise a lot of noise around a particular era” [3, p. 146]. The legal violence was declared school exercise applying popular philosophical to be a basic method of the new social system concepts to the law, which are just variations on the formation. same theme, whereas the revolutionary force, After the revolution, law was declared by half which Marx tried to give our legal thought, still of the Soviet Marxists an empty, illusory ideologi- remains little-studied” [39, p. 329]. cal form. For example, the People’s Law Commis- II. Post-Revolutionary Legal Concepts sar of the Russian Soviet Federative Socialist Re- public (RSFSR), Procurator of the RSFSR – Dmit- To begin with, all of post-revolutionary con- riy Kursky claimed the abolition of old law on the cepts of law relied on Lenin’s postulate about the ground that “abolition of all norms of bourgeois impossibility to change the world and build com- law is a sole guarantee of justice for urban and munist society without violence. From this idea agri-proletariat and the poorest peasants” follows: the necessity of theoretical justification [11, p. 38]. According to Mechislav Kozlowsky, of the proletarian dictatorship, the search for pos- “the revolution creates a special, unprecedented sible forms of law accommodation in the Soviet law – proletarian law, which is still law, but in the reality, the negation of law objective nature and sense of its being an instrument of suppression for meaning, as well as the rationale for the tempo- minority opposition by working classes” [8, p. 24]. rary nature of law under socialism. Such narrow Finally, Nicolai Krylenko admitted coercion, bounds, of course, did not allow the Soviet legal

21 O. E. Finogentova, V. A. Tokarev if exercised by the state, as an exploitation; for this and labor distribution among the members of socie- reason he considered that both Soviet law and ty. This particular idea will further lead to the bourgeois law were exploitative. Therefore, he con- emergence of the proletarian law concept, which cluded that one of the tasks of socialist construction will be perceived as the only allowed instrument to should be winding down of the legal form of the achieve the dictatorship of the proletariat, “at the Soviet state [10, p. 33]. same time accepted by and subordinated to the Par- During the first years of the Soviet system, ty’s policy” [33, p. 142]. This concept will serve as fight against the legal world-view as a remnant of a methodological basis for the incipient Soviet ju- bourgeois ideology becomes the central idea of So- risprudence and legal ideology. viet jurists. For example, Vladimir Adoratsky For the French legal sociologist Jean Carbonni- claims that legal thinking is unscientific, and law er, “Marxism came to some legal optimism, to and state don not represent independent entities be- recognition of the necessary to preserve law, at least cause “these ideas are only links in a chain of the as a form. Thus, from Marxism were excluded the process of public life. The phenomenon itself, provisions that lawyers and also sociologists of law which lurks under this idea, under this appearance, who came out of the legal environment were repelled is power, armed force” [1, p. 32]. The graduate of by” [7, pp. 125–126]. However, the methodological the Law Faculty of St. Petersburg University and monopolism and cruel ideological control existed in ex-privatdocent in the Civil Law Department Alex- the Soviet science for a long time, which resulted in ander Goykhbarg emphasizes, “Any conscious pro- the development of competing areas of law and even letarian knows … that religion is opium for the liquidation of their representatives. In the mid-1930s, people. But it is rare who … realizes that law is various forms of symbolic violence, which kept even more poisoning and stupefying opium for the within scientific discussions concerning legal theo- same people” [4, p. 3]. According to professor of rists, will be replaced by real violence. the Petrograd University Michael Reysner, “if law Nevertheless, in the history of Soviet law is not "opium for the people", then, in any case, it is there was a period of an open scientific discussion, quite dangerous medicine” [17, pp. 35–36]. when questions of understanding of the role and Soviet jurists needed to bring into compliance place of law in society were decided in the course the theoretical construction of classics of Marxism of scientific disputes. This period falls on the about the role of law in the future state structure years of the Soviet government formation (1920– and the practice of socialist construction. Howev- 30s), which are characterized by the coexistence er, the first months of the Soviet state existence of several various directions of legal conscious- clearly disproved this idea. It was impossible to ness relying on schools of law which had devel- return life of society into the normal track, espe- oped in the pre-revolutionary jurisprudence. For cially, to construct a new social structure without example, Michael Reisner, Jakub Magaziner, rules of law. Facing serious problems in the Soviet Evgeni Engel, Ilya Ilyinsky in their works devel- state creation and realizing that these can only be oped ideas of the psychological school of law, solved through the establishment of effective legal whose founder was Lev Petrazhitsky. The positivist regulators, they understand the fallacy of Marx’s direction of law actively developed by such scien- idea about withering away of the law and the state tists as Nicolai Krylenko, Mechislav Kozlowsky in the early stage of the communist society for- Sergei Kotlyarevsky, Edward Pontovich, Vsevolod mation, its contradiction to the logic of society Durdenevsky, Leo Uspencky and others. Sociologi- development. cal school of law, at the origins of which stood Nico- On the grounds of political expediency and the lai Korkunov, Maxim Kovalevsky, Sergei necessity to deal with the difficulties arising in the Muromtsev, was followed by Peter Stuchka, Evgeni course of the state building due to the anarchism Pashukanis, Alfred Stalgevich, Alexander Goy- and lack of organization, they make a conclusion hbarg, Jacob Kantorovich, Samuel Asknaziy. It that in the early phase of communist society the should be noted that the sociologic school of legal “bourgeois law” is to be nullified only partially. In science initially received the official support from its other part law remains the regulator of products the highest bodies of the Soviet power, and ideas of

22 The Emergence of the Sociologiсal Theory of Law in the USSR its followers were embodied into such an important Workers’ and Peasants’ state a special legal order, document as “The Guiding Principles of the Crimi- under which he meant, as well as other soviet law- nal Law in the RSFSR” of December 12, 1919. yers, limiting and submitting of rights of all social However, in spite of the variety of legal con- strata to interests of the proletarian dictatorship. cepts, theories and schools, they had a common The jurist also recognized activities of revolution- ground – denial of the objective nature and sense of ary people’s courts as a law-making source, claim- the law, its essence and underlying logic, as well as ing that “in their main activity – criminal repression justification of the proletarian dictatorship. As Ilya – the national court is absolutely free and is gov- Ilyinsky claimed, “Law and legalism are slightly erned first of all by the sense of justice” [11, p. 47]. dated slogans in the era of the dictatorship of the So why did the sociological direction in juris- proletariat” [6, p. 16]. Instead of law, it was pro- prudence get official recognition of the country’s posed to rely on the “revolutionary legal conscious- leaders in the first years of the Soviet power? On ness”, “revolutionary legality”, “rights of the work- the one hand, this is due to the fact that sociologism ing and exploited people”, non-legal regulators of of Marxist jurisprudence is determined by historical people’s behavior – technical standards, organiza- materialistic postulates of the Marxist doctrine of tional rules and others, which, in the opinion of the society, law and state [35, p. 295] On the other Soviet jurists, matched “the highest ideals of com- hand, if the state and law are destined to die in the munism” and “aspirations of people and workers”. very near future, then it is obvious that these social Gradually, the initial idea of “proletarian institutes will give place to others, determined by law”, as law of an essentially new, highest type, specific features of the new type of society. Ac- distinct from all the types that existed earlier, cording to George Hampsch, “As the historical cy- transforms to the doctrine of socialist law as a cle is completed and man once again finds himself special type. It will give a chance to the Soviet living in a classless communist society, the law and jurisprudence to reconcile the Marxist thesis about state constraint will have withered away. Only mo- withering away of the state and law with reality rality and social customs will then regulate the rela- and also to expand it with the theory of socialist tionships of communal life” [28, p. 536]. Mean- law. At the same time, it is ideology that will be while the greatest interest in these regulators of the main law formation factor, which will lead people’ behavior was shown by sociological theo- Soviet jurisprudence to undervaluation of the ob- ry of law via a number of outstanding foreign and jective law formation factors, ideologization and Russian pre-revolutionary lawyers. At last, it idealization of legal and social norms, nullification should be remembered that law of the transition of the social content of law, and substitution of period, in the opinion of the Soviet leaders, had to “law formation” for the concept “lawmaking”. accomplish one important function among other Dmitriy Kursky, who was the active developer things, namely educational function. As James and supporter of the concept of proletarian law, Hildebrand notes, “The Soviets acknowledge that considered that the new communistic law should their domestic law and legal institutions have an not protect and recognize individual rights and lib- educational role to perform in the molding of the erties because it expresses interests of the proletari- character of the Soviet people. The sociological at. Along with it, he claimed, “The dictatorship of task of Soviet law is to educate not only the im- the proletariat can recognize interests of its own mediate parties to a particular dispute, but also the class only; the authentic leader of such dictatorship spectators, the participating public, and society as is all the class in general, i.e. workers and the poor- a whole to be the kind of "new Soviet man" which est peasants organized in the Communist Party and the socialist state is seeking to develop” Councils; an individual, double so a public individ- [29, pp. 225–226]. ual is always an executor, even when he is the most responsible organizer” [11, p. 41]. Emphasizing the III. Renascence of Sociological Theory of Law fact that the Soviet power had destroyed the bases A distinctive feature of the sociological direc- of the institute of bourgeois law (namely, the old tion in jurisprudence, which emerged in Europe state, the bond family and private property) Dmitriy in the second half of the 19th century, was re- Kursky deemed it necessary to establish in the search into relationships formed in society and

23 O. E. Finogentova, V. A. Tokarev only formalized by the state. For example, George creation would be the only legal theory” [9, p. 92]. Gurvich claimed that Leon Duguit “continued and Nicolai Korkunov developed an idea of “subjective applied to his day researches of theorists who realism”, as opposed to the extremes of stereotyped pointed out at existence of the social mechanism of individualism, which reduced society to a sum of legal regulation as opposed to the state (especially individuals, and also of the ethical theory of Hegel, the historical school of lawyers and Pierre-Joseph dissolving the personality in society and state. He Proudhon)” [5, p. 659]. We would like to empha- believed that society represented an objective order, size that the idea of property “socialization” devel- whereas the personality was an “extra independent oped in the writings of Leon Duguit was reflected source” that kept “its self-independence and special in fundamental laws of Germany (1919, 1949) and purposes that were neither merging with the public Japan (1947). ones nor subordinated to them” [9, p. 276]. In con- The sociological school of jurisprudence arose formity with such views toward society and the sta- and formed as an independent direction of legal tus of an individual in it, the pre-revolutionary law- consciousness from strong criticism of Legalism. yer noted that law was necessary for providing or- However, in the context of methodology, sociologi- der in the event of conflict of interests through their cal legal consciousness remained under the positiv- differentiation, i.e. fixation of the limits within istic legal tradition, as this area of expertise did not which the interest could be implemented (law) and go beyond empirical analysis. Law was considered the corresponding limitations in relation to the other by them as the fact of social life, but not as a sys- interest being in conflict with it (duty). tem of regulatory prescriptions of the government. Unlike moral, law as Nicolai Korkunov be- The main task of the sociological direction in juris- lieved, did not give a criterion for evaluation of prudence, according to its supporters, is to deter- interests in terms of right and wrong, but set lim- mine how effective legal regulations in a particular its for implementation of the interests, established society are, i.e. instrumental analysis of law. At the certain laws and duties for participants’ of social same time, various currently existing concepts of relations. At the same time, he rejected the idea of sociological legal consciousness can consider as the legal positivism that legal relation was derivative, basis of law actual rules of conduct developing in automatically derived from the legal norm pub- social unions, legal precedents, juristically protect- lished by the legislator. He also emphasized that ed order of things, forms of differentiation between subjective law preceded objective in historical social interests, etc. Criticizing the legalistic ap- sequence. Nicolai Korkunov noted, “Historical proach to analyzing legal phenomena and process- evolution always begins with the specific, but not es, representatives of the sociological direction in with the general. Therefore, separate subjective jurisprudence do not propose any accurate criteria laws are created earlier than the general norms with the help of which it would be possible to iden- regulating them” [9, p. 155]. However, after rules tify which social norms formed as a custom are of of law have developed, they determine subjective the legal nature and can be regarded as a source of laws. law, and which refer to the sphere of morality, reli- According to another representative of the na- gion, some business routines. tional pre-revolutionary jurisprudence – Sergei In pre-revolutionary Russia, Nicolai Korkunov, Muromtsev, the term “life of law” is wider than Maxim Kovalevsky and Sergei Muromtsev adhered legal norms, “Instead of a set of legal norms, by to the sociological type of legal consciousness. Ac- law is meant a set of legal relations (legal order)” cording to Nicolai Korkunov, “Jurisprudence [14, pp. 47–48]. Therefore, definition of law should be turned to study law in real life and in should be based on the legal relationship, but not progress, but not turn into "the servant of legisla- on a legal norm coming from the state. Moreover, tion"”. Opposing the identification of law with the Sergei Muromtsev deemed it necessary for a law- statute law, he claimed: “If law and the statute law yer, and especially for a judge, to move beyond were identical, then the existence of legal theories the formal side of law enforcement, because in- would be unclear… If a regulation became legal terpretation of law always assumes its transfor- only due to its taking a form of law, theory of law mation.

24 The Emergence of the Sociologiсal Theory of Law in the USSR

Criticizing dogmatic application of legal norms functions developed by Leon Duguit to the legal and considering the reference to the “spirit” of law reality. to be not more than an empty phrase, the scientist Soviet jurisprudence was characterized by the- tried to bring in the theory of law enforcement such oretical-methodological dogmatism, which eventu- criteria as legal precedents, judicial opinion, social ally led to its crisis and search for new types of le- legal consciousness, justice, etc. He noted in the gal consciousness in the recent past. However, in work “What Is Legal Dogma?” (1884), “Expedien- 1920–30s there was quite a wide range of various cy of the decision or the norm prompted by crea- legal concepts. Peter Stuchka called this period the tivity is determined by criterion which is based not period of “fight for law”, “civil war” at the legal only on the facts of law, but equally on the facts of front [19, p. 5], when theories alternative to the le- economy, morality, religion, etc. … The less lawyer galistic approach to defining law, its essence, place refers his creative work to the special juridical and role in society are formed. The concept of law sphere, i.e. to the sphere of already developed and as order of social relations proposed by Peter Stu- generally acknowledged legal ideas, the more orig- chka, and still drawing attention of foreign lawyers, inal and fruitful it is” [15, pp. 31–32]. was formed under the influence of the sociological Thus, representatives of the sociological direc- direction in jurisprudence developed by representation in Russian pre-revolutionary juridical science tives of pre-revolutionary law. Moreover, as we made attempts to reveal the social nature of law, noted above, this direction of the general theory rejecting legal etatism which understood law as any was closer than others to Marxism. declaration of the sovereign’s will. In addition, their One of the key provisions of Peter Stuchka’s concepts developed within positivism, denying the concept is the thesis about identity between func- possibility of cognition of the noumenal essence of tions of the proletarian state and law. In his opinion, law and based on statements that science can only they constitute elements of the uniform mechanism establish empirical connection between phenomena. of class violence. At the same time, the state is an Rejecting the idea of “natural law” as the abso- establishment of organized violence, and law is un- lute law, eternal and invariable in its essence, sup- derstood as the corresponding rules, an order of this porters of sociological legal consciousness put em- violence. Thereby, any independent role of law, phasis on studying legal dynamics, i.e. conditions which completely submits to the state, is denied. of origin and development of legal relations preced- Most of the Soviet lawyers (Peter Stuchka’s con- ing norms of state law. They considered law to be a temporaries) claimed that the state as the political social phenomenon caused by various factors, in- organization of the proletariat and its allies in cluding historical, socio-economic, political, cultur- class struggle had to exist during the transition al, psychological, national, etc. from capitalism to communism, whereas law was Certainly, it is necessary to recognize obvious a phenomenon alien to socialism; therefore, it merits of the sociological law theory in the devel- would die off with the bourgeois state. About this opment of new methodological approaches to period Peter Stuchka will write later, “In our coun- studying the subject of jurisprudence. The socio- try it was generally accepted to regard law just as logical conception of law allows one to understand a counterrevolutionary, at best anti-revolutionary nuances of many-sided and complex social life, to element, as an anarchy force delaying any revolu- predict the nature of possible changes in social tion” [19, p. 131]. relations, in the way of social life, and to adjust Relying on regulations of Marxist theory about relationship between people, stabilizing the public the economy-related law, Peter Stuchka, as well as order. The theory of solidarism underlies the poli- his colleagues, believed that withering away of law cy of so-called “social collaboration”, which was is inevitable. During the proletarian revolution it is actively introduced by different political forces. completely destroyed, “deposited to the archives Let us notice that in the 1920–30s Soviet jurists of history”, because “the proletariat, who had won (Alexandr Goykhbarg, Jakub Kantorovich, Samuel the power during the October Revolution, broke Asknazy, etc.) tried to apply the theory of social the bourgeois state apparatus, serving to oppress

25 O. E. Finogentova, V. A. Tokarev working masses, with all its authorities, army, po- claims that this regulatory legal act is a “the bour- lice, court and church. We hardly need to mention geois code” under the control of “socialist planning that the same fate came to all codes of bourgeois of the working class” [19, p. 593]. It should be not- laws, all the bourgeois law as a system of regula- ed that Peter Stuchka was not alone in this view: tions supporting the balance of interests of social the idea that law having the bourgeois nature is strata for the benefit of bourgeoisie” [19, p. 131]. forced out by the plan as a socialist means, got It is easy to notice signs of legal nihilism in Pe- widespread in Soviet jurisprudence, reflecting ideas ter Stuchka’s views on law – he denies value of law of many scholars about the law and socialism es- and raises the question of “cultural revolution” in sential incompatibility, and also impossibility of jurisprudence. Considering that law, in contrast to juridification of socialism and socialization of law. culture, should not go into the future society, the Like most of his colleagues, Peter Stuchka consid- Soviet lawyer, in fact, leaves it aside culture as ered law of the Soviet state mainly bourgeois, and something sick and obsolete. However, Peter Stu- on this basis drew a conclusion that law slowed chka’s legal nihilism slightly softened in the course down building of communism. At the same time, he of time. Once it becomes clear that in the near term contradicted himself when admitted the “necessity no withering away of the state and law is expected, and peculiarity of Soviet law” provided by the fact he moves away from his radical ideas previously it was “proletarian law”. He claimed that during the formulated, and considers the necessity to improve transition period after the proletarian revolution it Soviet law through codification. was impossible to go without the new law, the law During the period of NEP (1921–1928), Peter which could adopt particular elements of bourgeois Stuchka put forward an idea of limited reception of legal culture. bourgeois private law, i.e. reception that was within Moreover, it was Peter Stuchka who offered the framework of the socialist state ownership, dic- the first definition of law in Soviet jurisprudence, tatorship of the proletariat and class interpretation which was sociological by character. It received of law. Of course, NEP was a compulsory and tem- the official consolidation in “The fundamentals of porary measure that had been caused by the deep criminal law of the RSFSR”, which were intended economic crisis, which had broken out as a result of for national courts. According to this definition, the Civil War, external intervention and policy of “law is the system (or an order) of public relations ‘War Communism’. Any elements of capitalist corresponding to the interests of the ruling class economy allowed in planned economy were fol- and protected by its (i.e. this class’s) organized lowed by the active constraint of private commerce force” [18, p. 44]. However, terms used here, such and consequent changes in bourgeois law. as “system”, “order” and “form” were deprived of The political necessity compels Peter Stuchka, juridical specificity, which led to the identification who previously declared fast and complete wither- of law with production and economic relations. ing away of law, to begin development of the “pro- Considering a set of legal norms as a certain as- letarian law” concept. The lawyer explains the ex- pect of law and claiming that the essence of law pediency of developing this sort of law by the ne- consists in legal relations, Peter Stuchka regarded cessity to overcome law in principle and move them not as a form of production and exchange “from law of the socialist building period to non- relations, but relations themselves, arranged in a law, to absence and disappearance of any kind of special way. law as unnecessary” [19, pp. 520–521]. In other Such definition of law gave a chance to words, law under socialism remains bourgeois be- Peter Stuchka’s critics to reasonably reproach cause of immature legal consciousness of public, him for the identification of law with economic and it constitutes an institution which thwarts the relations, and for its dissolution in economics. progress of communism. However, according to However, the question of the ratio between law Peter Stucka, at that point in time it was impossible and economics was raised and solved by to do without law. the scientist at a higher level than his oppo- From this perspective, he identifies even nents tried to present it. Considering public RSFSR Civil Code of 1922 with bourgeois law and relations as the basis of law, Peter Stuchka

26 The Emergence of the Sociologiсal Theory of Law in the USSR noted: “…Not relations themselves are identical expression of law: one concrete and two abstracе. with law in general…a number of additional signs The concrete form is not super-structural but basic are required in order to recognize them as legal”. nature and completely matches economic relations Further he explains that considering the system or (for example, a right of use, a right of disposition, order of public relations, he meant “… a certain etc.). The abstract forms of law, which are ex- form of their organization” [20, p. 13]. pressed in regulations and legal ideology, are of the Moreover, he was accused of sympathies for super-structural nature. Thus, legal consciousness bourgeois sociologism. Answering the opponents, and legislation represent a form of law, whereas Peter Stuchka wrote that from the moment the soci- social relations are its content. Developing this ological direction emerged in law, “…it was firmly thought, Peter Stuchka noted, “It was to a consider- settled that law is exactly the system of social rela- able extent bourgeois legal consciousness that was tions” [18, p. 44]. He emphasized the importance in disguise of revolutionary or socialist legal con- “…of the valuable acquisition which was brought sciousness, because any other kind of legal con- by sociological school of bourgeois lawyers … that sciousness just did not exist neither in "nature", nor law is not just a set of norms …, but is a system in human consciousness” [20, p. 104]. In primitive itself, an order of social relations itself” [18, p. 44]. society, there was no state and law as means of Not denying the influence of Nicolai Korkunov, production were generalized. At the following stag- Sergei Muromtsev and Rodolph Iyering on his con- es of economic growth (i.e. slave owning system, cept, the Soviet lawyer noted, “…Of course, it was feudal society) took place a gradual divergence be- so, but I borrowed from them only results of their tween the abstract and concrete forms; the conflict research, but not bourgeois attributes of their sci- between the new material relations and the obsolete ence” [20, p. 90]. Certainly, such declaration meant legislation came as a result of bourgeois revolu- that his own concept of law, based on Marxist ide- tions; and due to the proletarian revolution there ology, still remained within the sociological type of occurred rapprochement between forms of law legal consciousness. based on the material and formal equality, and sub- Holding a number of important positions sequent integration of these forms under com- among which there was People’s Commissar for munism. According to Peter Stuchka, it is their in- Justice and Chairman of the RSFSR Supreme tegration that would lead to the complete withering Court, Peter Stuchka, paid much attention to revo- away of the state and law. lutionary legality, also defining it from the perspec- Throughout his academic career, Peter Stuchka tive of sociological jurisprudence. “Revolutionary hesitated in solving the problem of what should be legality” meant for him a political regime of the understood by law – the “system (order)” of social proletarian dictatorship in conditions of radical relations or “the system of norms (laws)” which social changes and civil war. On the one hand, it established, regulated and protected the order of implies limited use of the pre-revolutionary legis- social relations. In the last years of his life, he tend- lation, on the other hand – possible deviation from ed to the interpretation of law as a means of class the Soviet government decrees in the interests of domination. In his opinion, legal norms were a re- the revolution, and use of the party directives and flection of material relations prevailing over the standards of mass behavior by the court. Accord- legal form. Relying on the idea of class interest, ing to Peter Stuchka, Soviet courts (mostly non- Peter Stuchka claimed that class relations reflecting professional courts) were supposed to consider class interests were primary while legal rules and cases guided by the principle of political expedi- laws issued by the state were secondary. If social ency, in the name of the revolution development and production relations were basis of law, then in and with the aim of supporting revolutionary the young Soviet state law was supposed to be legality. given the leading role, expressed in fixing new Within Peter of Stuchka’s concept, the coer- social relations and assistance in their develop- cion proceeding from the ruling class is recognized ment. According to the Soviet lawyer, “The one who as the most important sign of law whereby social understood that property, inheritance, act of purchase relations are protected. There are several forms of and sale are nothing more than legal relations,

27 O. E. Finogentova, V. A. Tokarev and thus are forms of social relations, will under- acknowledge as scientific achievements. His great stand the social relations which are concealed be- merit is that he did not reduce law only to norms. hind any valid legal article of the law” [20, p. 11]. Considering it as a complex social phenomenon, In this case the law, as it is one of methods of orga- Peter Stuchka distinguished particular forms of its nized mass effect of the state, is necessary only for expression and implementation, namely legal rela- the period of the state existence. tions, rules of law and legal consciousness. Moreo- At the same time, Peter Stuchka rejected the ver, despite all its drawbacks, Peter Stuchka’s soci- will theory of law, considering it close to idealism. ological theory of law had the followers, and it be- In his opinion, the term “will” has a number of var- came a source of the ideas based on which the inte- ious meanings, and thus it turns into the word either grative theory, reflecting the new type of legal con- unclear, or causing mess in understanding of the sciousness, was later formed. Nevertheless, accord- most serious problems [23, p. 505]. On the contra- ing to Robert Sharlet, “By the late twenties, ry, according to the scientist, the being determines Pashukanis and his school, supported by the party consciousness and the manifestation of material through the Communist Academy, had come to being is class interest, which is the cornerstone of dominate the intellectual apparatus of the legal cul- will, forming the social relations. As he noted in the ture” [37, p. 161]. third volume of “Encyclopedia of State and Law”, Creative development of Soviet jurisprudence “To clean the sphere of law off any idealistic rem- was interrupted in 1938, when the definition of law nants, including those of psychological or just con- given by Andrei Vyshinsky was acknowledged as tentless phraseological character, will theory of law the only one true. According to him, law is “a set of should be replaced by the interest theory (namely rules of conduct expressing the will of the ruling class interest), until a better substitute is found” class and established legislatively, and also customs [21, p. 507]. In fact, here Peter Stuchka agrees with and rules of common living authorized by the gov- Rodolph Ihering, calling him the most courageous ernment, application of which is provided with the and frank representative of bourgeois legal science, state compulsory force for the purpose of protec- not least because he marked out in law the dominat- tion, consolidation and development of social rela- ing interest, protected by means of compulsion. tions and orders, profitable and acceptable for the In general, during all his academic career Peter ruling class” [16, p. 37]. Thus, legalistic positivism Stuchka was in search for new ways of scientific gained recognition as an official doctrine. However, research. Clearly understanding the imperfection of Andrei Vyshinsky’s concept of law came under fire what had been done by him, he appealed for further from the Western, first of all American, representa- creative scientific research. In 1933 Peter Stuchka tives of jurisprudence. For example, in the article published the article “My Way and My Mistakes”, “The Soviet Concept of Law” (1938) Vladimir in which he considered all the way of his scientific Gsovsky claimed, “Consequently although now the research, summed up the results of his work. For soviet jurists wish to use the traditional legal con- instance, he wrote, “It is possible to formulate the cepts, they are still in pursuit of the particular pur- concept of law in a more perfect way, of course. pose of "class justice" which is not germane to Words "system or order" should be more empha- these concepts, and they are not prepared to in- sized or replaced by another word which would scribe on their banner the real supremacy of law more clearly indicate the person’s conscious partic- and rights. They take the body of traditional juris- ipation in the establishment of this "system or or- prudence but repudiate its soul” [27, p. 43]. der"” [19, p. 58]. As Peter Stuchka admitted, before Other concepts which made attempts to recon- the article was written he had begun to replace in cile the doctrine of Karl Marx and his followers his researches the term “system” by “a form of or- with the Soviet reality were declared harmful and ganization of social relations”, i.e. relations of pro- wrong. For this reason, as foreign jurists note, the duction and exchange. satisfactory Marxist legal theory could not be creat- Despite strong criticism by representatives of ed for a long time [36, p. 74; 40, p. 27; 41, p. 357]. Soviet jurisprudence, the definition of law proposed For several decades between the legal reality and its by Peter Stuchka and his researches should be researcher there was an impenetrable screen of

28 The Emergence of the Sociologiсal Theory of Law in the USSR concepts and categories that bore a stamp of the itance’); but then those not only acquire an inde- ruling ideology and disfigured ideas of law and its pendent meaning, but are explained through other role in people’s lives. concepts and categories. For example, exchange is regarded not as a fact of social life but as a “con- Conclusions tract”, the “meeting of partners’ minds”. Represen- For the long time that jurisprudence has been tation of social life proposed by legal science ex- existing, there has been formed a special language plains and defines itself through concepts and cate- of law, which is, actually, a language of the legal gories, rising ideology up to the level of science phenomena researcher. The jurist mediates between and legitimizing emergence of legal norms by ref- the legal reality, i.e. social experience, and the sub- erence to the “idea of law”. In other words, repre- ject wishing to comprehend the experience ob- sentation of society posed as the legal reality and tained. The emergence of positivism, as well as jus meeting demands of particular social groups should naturalism, which is in the same way not free from not be correct – it should be useful. Not incidental- legal fetishism (in the former case – formal, in the ly, the well-known lawyer Sergei Alekseev and for- latter – substantive), was due to the desire to find a eign lawyers have found similarities between the benchmark for the intelligent positioning and orien- theory of “natural law” and the Marxist theory of tation in the legal reality. Thus, the place of the the state and law. theological worldview, which used to denote this The concept of epistemological deterrent is bor- benchmark on the other side of the real world, pri- rowed from philosophy, where it is used for designa- marily occupies metaphysical philosophy of law, tion of real and objective deterrents on the way of handling the concepts of nature and mind, which is scientific cognition, which are determined by the then replaced with positivism under the slogan of social and historical context of a scientist’s work. In direct appeal to experience. Renouncing abstract relation to deterrents on the way of cognition of law, concepts and categories of the “natural law” school, it is necessary to take account of features of the positivists take a function of providing intellectual whole complex of institutions under which law is advance in the legal reality for both an ignoramus formed, implemented, taught and studied. This mate- and a practicing lawyer. In this regard, worth con- rial – the “historical continent”, in the words of Karl sidering are goals pursued within this function and Marx – must be critically comprehended by lawyers the ratio between the legal reality and social life. In in terms of understanding law that is free from legal other words, it should be asked: Does legal positiv- fetishism and implicates formation of legal science ism explain or excuse phenomena under the pro- as an essential part of the single “historical conti- posed legal reality? Is scientific research not re- nent”. As noted by Louis Althusser, “Marx founded placed with ideology? Is there substitution of no- a new science: the science of social formations in tions, as it was in the Soviet Russia, initially in a history or the science of history…Now, when we soft manner and then, after 1938 in a hard and for- have determined it, we can say that the history of mal manner? sciences detects the existence of large specific conti- Posing the questions in this form, we find a de- nents. They are: the Continent of Mathematics (dis- terrent on the way of comprehending law which is covered by the ancient Greeks); the Continent of called by the French expert of Marxist legal theory, Physical nature (discovered by Galileo); and the Michel Mialle, “legal idealism” [36, p. 49]. Despite largest one – the Continent of History (discovered by dissociation of legal positivism from the jus natu- Marx)” [22, p. 52]. It might be useful to study the ralism, they have a lot in common. Besides the le- heritage of Soviet political and legal thought for gal fetishism temptation, their representatives opt those who travel across the Continent of History. for ideological abstraction to the disadvantage of scientific, i.e. in favor of representation to the dis- References advantage of explanation. At first, concepts and 1. Adoratskiy V. O. O gosudarstve (k voprosu o categories are only used by them to define new metode issledovaniya) [On the State (to the phenomena arising in various spheres of social life Question of Research Method)]. Moscow, (‘contract’, ‘state’, ‘freedom’, ‘property’, ‘inher- 1923. 97 p. (In Russ.).

29 O. E. Finogentova, V. A. Tokarev

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