The Emergence of the Legality Tradition in Russia, 1800-1918 ______Tatiana Borisova
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The Emergence of the Legality Tradition in Russia, 1800-1918 __________________________ Tatiana Borisova ACADEMIC DISSERTATION To be presented, with the permission of the Faculty of Law of the University of Turku, for public examination in the DataCity Auditorium on 16.12.2016, at 12.15 University of Turku Faculty of Law Subject: Legal History Doctoral Program in Law Supervised by: Prof. Mia Korpiola, University of Turku Reviewed by: Prof. Jukka Kekkonen, University of Helsinki Dr. Michel Tissier, University of Rennes 2 Opponent: Dr. Michel Tissier, University of Rennes 2 Table of Contents 1. Introduction 1.1. Why history of the local legality conceptualization matters? 1-3 1.2. Historical overview of the development Russian legality tradition, 1200- 1917, 3-12 1.3. Research purposes, object and methodology, 12-14 1.4. What do we already know about the tradition of Russian legality and why bother? 14-20 1.5. Theoretical framework, 21-25 1.6. Methodology, 25-27 1.7. Possible methodological limitations, 27-28 1.8. Research outline, 28-33 1.9. Overview of the thesis' statement, 33-34 1.10. Acknowledgements, 34-35 2. Chapter I Russian National Legal Tradition: Svod versus Ulozhenie (“Russian National Legal Tradition: Svod versus Ulozhenie in Nineteenth–century Russia”, Review of Central and East European Law 33:3 (2008), 295–341) 2.1. Introduction 296 2.2. Codification as a matter of politics and fashion, 296-301 2.3. The national versus the rational approach to codification, 301-314 2.4. Svod versus Ulozhenie, 314-319 2.5. The invention of the Russian legal tradition in the form of Svod, 319-327 2.6. Conclusions, 327-341 3. Chapter II The Digest of Laws of the Russian Empire: The Phenomenon of Autocratic Legality (“The Digest of Laws of the Russian Empire: The Phenomenon of Autocratic Legality,” Law and History Review, 30:3 (2012), 901–925) 3.1 Emergence of the Digest, 904-915 3.2 Legalistic challenge to the Digest, 915-925 4. Chapter III Legislation as a Source of Law in Late Imperial Russia (“Legislation as a Source of Law in Late Imperial Russia,” in From the Judge's Arbitrium to the Legality Principle: Legislation as a Source of Law in Criminal Trial, (eds. George Martyn, Anthony Musson, and Heikki Pihlajamäki), Comparative Studies in Continental and Anglo-American Legal History 31 (2013), 295-315) 4.1. Introduction, 295- 296 4.2. For whom laws were published? 296-304 4.3. Emergence of a legal community and a change in the procedure of law publication, 304-314 4.4. Conclusions, 314-315 5. Chapter IV The Legitimacy of the Bolshevik Order, 1917–1918 (“The Legitimacy of the Bolshevik Order, 1917–1918: Language Usage in Revolutionary Russian Law,” Review of Central and East European Law, 37:4 (2012), 395-419) 5.1. Introduction, 396-398 5.2. Legitimacy of power after the February revolution, 398-400 5.3. October 1917: the problem of legitimacy, 400-405 5.4. The language of revolutionary legislators, 405-414 5.5. Formalism as an instrument, 414-417 5.6. Conclusions, 417-419 6. Conclusion 6.1. Methodological contribution, 1-3 6.2. Empirical conclusions, 4-15 6.3. Legality tradition and current legal agenda, 15-19 6.4. Contribution to history and policy studies, 19-20 7. Errata List 8. Bibliography ISBN 978-951-29-6682-0 1. The Emergence of the Legality Tradition in Russia, 1800-1918 1.1 Why history of a domestic legality conceptualization matters? Although our general views and expectations about the world are becoming more global, legal cultures are still very contextualized. Essentially one needs to look at the legal, political and social history of any particular state in order to understand its concept of legality. In my thesis I use the example of Russia to demonstrate that the national historical heritage forms a mindset for the conceptualization of legality, that is, establishes a particular pathway of legal thinking. By the Russian conceptualization of legality I mean the set of ideas and practices which reveal the lawmakers' understanding of law and its functions. In this dissertation I study how these ideas and practices emerged and developed within the political and legal elites in late imperial to early Soviet Russia and how they were conceptualized as an official tradition of legality. This official tradition of legality is a set of expectations of the rulers and law-makers about two interrelated issues: what the law should do and by what means. I approach these questions by looking at the development of techniques of law-making and systematization of law, which were considered as the basic requirements of Russian legal order. My dissertation seeks to demonstrate that these techniques derived from the political and social conditions of the Russian autocratic regime and appeared to be very persistent despite significant changes during late imperial and early Soviet times. Moreover, it seems that there is a remarkable continuity in the debate on the essence of Russian law which bridges past and present. One of the pillars of this historical bridging is the public discussion reflecting an ideological clash between two opposite approaches to law and legality. 1 The universalist/liberal approach, emphasizing the normative meaning of law, is confronted by a traditionalist/conservative approach, for which law serves as a means to protect national traditions and current political interests.2 The clash of the two approaches is articulated in 1 The historical parallels in relation to contesting views on legality in the times of the late Russian empire and collapse of the USSR and emergence of the Russian Federation were problematized by both legal historians and legal scholars in the 1990s. See, for instance: William G. Wagner, “Civil Law, Individual Rights, and Judicial Activism in Late Imperial Russia”, in Peter Solomon (ed.), Reforming Justice in Russia, 1864–1996: Power, Culture, and the Limits of Legal Order (M.E. Sharpe, New York, 1997), 36, S.S. Alekseev, Voskhozhdenie k pravu: poiski i resheniia (Norma, Moscow, 2002, 2nd ed.), 582-594. 2 See the public debate of March 2015 on the role of law in Russia presented by a liberal newspaper Vedomosti: Nikolai Epple, Boris Grozovskii, “Rossiiskaia pravovaia i kommunikativnaia katastrofa” Vedomosti (24 March 2015), available at http://www.vedomosti.ru/newspaper/articles/2015/03/24/ot-redaktsii-ne-dogovoritsya The debate covers an exchange of publications between Novaia Gazeta (Elena Luk'ianova, “O prave nalevo” Novaia Gazeta (19 March 2015) available at http://www.novayagazeta.ru/politics/67715.html and official Rossiiskaia Gazeta (Valerii Zor'kin, “Pravo i tolko pravo” Rossiiskaia Gazeta (23 March 2015) available at http://www.rg.ru/2015/03/23/zorkin-site.html 1 the contrast between two slogans: 'verkhovenstvo prava' (the Russian analogue of 'rule of law') versus 'diktatura zakona' (dictatorship of law).3 Both approaches claim to speak in the name of the people, who need to be protected by law, but with a radically different focus. The first approach underlines the need to protect individual rights (pravo) and freedoms which are being constantly challenged by the state, while the second stresses the value of public order and the state's interests, stipulated in legislation (zakon).4 In a more general perspective, the first approach underlines the universal values of human rights protected by law, while the second approach stresses a positivist vision of law without the normative connotations of the human rights or natural law doctrines. Since the late eighteenth century, opposition of the two approaches has taken the form of political discussion. In recent years the traditionalist approach has dominated Russian policy, while values of the universalist approach, the rule of law and natural law, have been severely criticized by the Russian authorities and official media as instruments of the political struggle in international relations.5 At the same time, since the beginning of the twenty first century, Russian policy-makers and lawyers have tended to use the 'dictatorship of law' approach as an alternative to the universalistic perspective, which was dominant in 1990s.6 To support this re-evaluation, the national political, social and legal traditions have been used to question the practical relevance of 'western' natural law discourses.7 This recent turn from a universalist to a traditionalist approach has been supported by appeals to Russia’s great and unique history.8 Thus, since the emergence, transfer and transformations of 'traditional' values and ideas are historical processes, a historical perspective of the Russian legal tradition needs to be analyzed. In practice, this clash of two visions on the nature of law is revealed both in law-making and court practice. Practitioners, beginning with the judges of the Constitutional Court, use Russian 3 V.S. Nersesiants, Pravo i zakon (Moscow: Nauka, 1983), V.V. Lapaeva, “Osnovnye tipy pravoponimania”, in V.M. Syrykh (ed.) Problemy teorii gosudarstva i prava (RAP, Moscow, 2008), 41-76. 4 Like in other languages (e.i. French, German and Dutch), in Russian there are two words for the English 'law': 'zakon' is a narrower term, meaning 'legislation', while 'pravo' is a more general concept close to 'right.' 5 Valerii Zor'kin,“Verhovenstvo prava i imperativ bezopasnosti”, Rossiiskaia gazeta (16 May 2012). 6 Pamela A. Jordan, Defending Rights in Russia: Lawyers, the State and Legal Reform in the Post-Soviet Era (University of British Columbia Press, Vancouver, 2005). 7 See for instance the appeal of a general meeting of Novgorod region Chamber of Lawyers “Obrashchenie obshchego sobraniia advokatskoi palaty Novgorodkoi oblasti o sostoianii zakonnosti v sfere ugolovnogo sudoproizvodstva na territorii Novgorodskoi oblasti ot 27 marta 2015 g.” Available at http://www.apno.natm.ru/Lists/List/DispForm.aspx?ID=291&Source=http%3A%2F%2Fwww.apno.natm.ru%2Fdefault .aspx 8 Zor'kin op.