Publications

Research objectives: The goal of the article is a comparative analysis of information recorded by John of Plano Carpini on Mongolian and Mongol Empire law, along with other sources on the Mongolian law and legal traditions aimed at determining the objectivity of diplomat’s materials and observing the evolution of traditional law of the Mongols. Research materials: Verification is carried out on the basis of the work “The Story of the Mongols Whom We Call the Tartars” by John of Plano Carpini, making comparisons with the corpus of other historical sources, including travelers’ notes and historical chronicles by authors of the medieval and modern eras, as well as materials of ethnographic research on the legal traditions of nomadic peoples of Eurasia. The novelty of the study: The presented article is the first attempt to compare the information of John of Plano Carpini on the customary and imperial law of the Mongols with other sources on Mongolian law to observe certain legal traditions of the Mongols and the evolution of law among the Eurasian nomads. Research results: The author has found that the majority of information from John of Plano Carpini on Mongolian law in the middle of thirteenth century can be characterized as objective as it is confirmed by the data from independent sources dating from the thirteenth to nineteenth centuries. These include testimonies of other foreign travelers who visited Mongolia in different epochs, medieval historical chronicles, studies resulting from ethnographic research, etc. Besides that, the value of the information of the diplomat is emphasized within the context of comparative legal research on the history of the state and law of the Mongol Empire and Chinggisid states.

The article presents the characteristic of the unfinished and unpublished work Travel Sketches: “A Tourist’s Notes” by Sh.M. Ibragimov (1841–1891), housed at the Archives of the Orientalists of the Institute of Oriental Manuscripts of the Russian Academy of Sciences (Ф. 33. Оп. 1. Ед. хр. 225). The authors attempt to show the value of “A Tourist’s Notes” as a source on the history, historical geography and ethnography of the Turkestan Region. The text of the “Notes” also contains information about some aspects of Russian politics in Central Asia and its perception by the local population. It was prepared by a very competent, well-educated and very observant author, a member of the Russian imperial administration in Turkestan. At the same time, due to his ethnic background and religious affiliation, the author was close to the local population. The article describes Sh.M. Ibragimov as a statesman and Orientalist, analyzes his role in the history of Russian Turkestan and Russia’s relations with the Islamic world in general, as well as his contribution to the Russian Oriental studies.

Introduction. The article examines a yarliq from Dastur al-Katib (14th c. CE) and attempts to an insight into the principles of using the Mongol language in the 13th–14th century Persian records management system. Goals. The study provides an interdisciplinary analysis of the historical monument — a yarliq appointing a bakhshi (senior scribe) included in Dastur al-Katib fi Tayin al-Maratib (A Scribe’s Guide to Determining Ranks) compiled in the mid-14th century by Muhammad ibn Hindushah Nakhchivani, a financial statesman under the late Hulaguids and early Jalairids. To facilitate this, the paper shall: 1) translate the examined document into Russian, 2) characterize the latter as a valuable source on history of state, law and chancellery culture of Mongol Iran, 3) analyze the yarliq as an official act and a source of law, 4) identify the legal status of the Mongolian language in 13th–14th century Iran. Materials and methods. The study explores the yarliq proper and other materials of Dastur al-Katib, additional medieval sources on Mongol Iran and Genghisid states, including works by Rashid al-Din, Wassaf, etc., official documents of Genghisid chancelleries. The work employs a series of historical and legal research methods, such as those of source criticism, diplomatics analysis, comparative historical research, formal legal approach, historical legal and comparative legal analyses. Results. The paper introduces the yarliq appointing a secretary (bakhshi) from the medieval Persian treatise titled Dastur al-Katib into Russian-language scientific discourse and supplements it with a detailed interdisciplinary analysis. The work clarifies specific features of a bakhshi’s legal status as a senior scribe responsible for translating official edicts from Persian into Mongolian, his functions, rights, requirements for candidates. An attempt to identify the person to have been appointed scribe therein was made. Conclusions. The works concludes Mongolian had a status of the official language in records management system of Iran throughout the late 13th and 14th centuries, the former having been extensively used by nomadizing subjects of Hulaguid and Jalairid Ilkhans, including top-rank executives of Mongolian descent. This was reflected in the appointment of a special official responsible for articulating legal and other documents into Mongolian for nomadic elites and warlords. However, to extrapolate this conclusion onto other Genghisid states it is necessary to compare the researched document and additional information on Mongol Iran with similar sources from other heirs of the Mongol Empire, such as the Golden Horde, Chagatai Ulus, etc.

The article is an analysis of judicial activity of Chinggis Khan towards persons who entered his service under different circumstances. Analysis allows to state that Chinggis Khan not always used the same criteria taking his decision on the reward for loyalty and punishment for treachery. Authors attempt to explain the reasons of taking one or another decision by Chinggis Khan and clarify their correlation with political ideology formed by him during the establishing of the Mongol Empire. Besides, it seems that the analysis of specific cases could help trace the process of forming the system of khan’s court which foundation was laid by Chinggis Khan just during the period of the unification of Mongol tribes at the initial stage of creating of his empire. The source base for the research includes medieval historical works: “Secret history of Mongols”, “Sheng-wu qin-cheng-lu”, Compendium of chronicles” by Rashid ad-Din, “Yuan shih”, “Altan Tobchi” by Lubsan Danzan and some others. Positions of different scholars on decisions of Chinggis Khan are also taken into account.

It is believed that respect of traditional values ​​contributes to the promotion and realization of human rights and fundamental freedoms. However, in this article the author substantiates the fundamental conflict between the concept of human rights and traditional values. This conflict potential is due to the following aspects: the idea of ​​a person, the interpretation of values, the priority of the individual or the collective, the understanding of freedom, the definition of the good and the evil.

Russian tsar Peter I the Great, who is primarily known for his Eurocentric reforms, was dealing with “Oriental” problems as well. One of those problems was organization of a trading company for Russia-China trade conduction. Though such company was not established during the reign of Peter I, certain undertakings were made nevertheless. The purpose of the current paper is to find out legal principles on which organization of such company had to be based on. This research is dedicated to the 350th anniversary of Peter I.

The building of the Soviet state began with the construction of new legal norms in the field of copyright: it abolished the inheritance of copyright, the state could nationalize any works. However, discussion accompanied the introduction of these norms in the ruling circles. In December 1917, there were still proposals to save the inheritance of copyright by reducing the term of their protection. Decrees 1917–1918 allowed the nationalization of works and eliminated the inheritance of copyright as well. After the author’s death, the work became a public domain. The nationalization of works pursued several tasks: first, the expansion and revitalization of publishing; secondly, the reduction in the cost of printed products; third, improvement of the cultural level of Soviet citizens. Soviet literature emphasized that the first decrees on copyright contributed to the release of authors who fell into material dependence on publishing houses. The state regulated the amount of minimum remuneration for the author. Contracts for which the exclusive rights to the publisher passed for an unlimited period, were recognized invalid. At the same time, in practice, there were also negative implications. The monopolization of the publication of works of Russian classical literature, notes and archives, textbooks deprived private publishing houses of a large number of orders, that led to their closure. The seizure of the rights to individual works by the state actually destroyed the author’s exclusive right to his creation: the author could not use his own result of intellectual activity at his own discretion. The construction of free use of the result of intellectual activity with the obligatory payment of the approved remuneration to the state replaced the exclusive right after the death of the author. The rights to works that were not subject to nationalization could be freely expropriated subject to certain conventions, that is, with respect to them, the author retained the exclusive right. By monopolizing works endowed with cultural value, the state set for them an obligatory ideological criterion: educational and agitational character. In such regulation of copyright relations you can notice an ambiguous situation. On the one hand, there is a devaluation of the author’s works, a restriction of his rights in relation to his own creation, a diminution of his economic interest. On the other hand, the state has to respond in this way to the urgent need for serious cultural education of workers and peasants, to terminate the already established relations between authors and publishers and to provide authors with minimal guarantees of receiving remuneration.

The article is an analysis of history of the trial of Kazakh sultan Barak executed by four biys (people’s judges) in 1748. This case was not studied in details before, especially by historians of law. Meanwhile, it is a striking example of the crisis of the khans’ justice in the Turkic-Mongol states including the Kazakh Steppe as it was an offence against the principle of exclusive jurisdiction of ruling family over khans and sultans — direct descendants of Chinggis Khan. There is a retrospective historical and legal analysis of trials over members of Chinggisid dynasty in the Turkic-Mongol states. The article clarifies the reasons of gradual decline of khans’ justice system in the Mongol Empire’s and the Golden Horde’s successive states (including Kazakh Khanate and Kazakh zhuzes of 17th–18th centuries). The author analyses the situation in the Kazakh Steppe of the first half of the 18th century which prompted the sultan Barak to appeal to the biys’ court and not khans’ or sultans’ one. The paper also contains the formal legal analysis of this case in biys’ court (its membership, decision and its consequences). Primary sources are historical chronicles of the Medieval and Modern Ages as well as official documents of the Russian Empire which reflect substantial transformations in the political and legal life of the Kazakh Hordes (Zhuzes) in the first half of the 18th century including traditional institutions of power, administration and justice which were succeeded by the Kazakh Khanate from the Golden Horde.

This paper has two aims: to compare the current trends in the development of the law and the state in Russia with the criteria of progress put forward by P.A. Sorokin and S.S. Alekseev; determine the position of the theory of law and state and identify the main trends in its development. Based on the postclassical methodological approach underlying the communicative theory of law, the author comes to the conclusion that the current trends in the development of the law and the state in Russia are far from to be characterized as progressive, according to the chosen criteria. To develop it in the direction of progress, the state needs to build a dialogue symmetric communication with society, based on the principle of mutual recognition. The theory of law and state, frozen in a positivistic approach, is proposed to be developed towards a sociological-communicative direction – the study of law and the state as complex, multidimensional phenomena, the central subject and purpose of which is a person with dignity and mutual rights and obligations.

Globalization is not a descriptive term to depict the contemporary realities of law; it works mainly as a regulatory conception to affirm certain regularities of social evolution to be respected by scholars, lawyers, and politicians. The reflections about law in the era of globalization do not represent law as it is, but rather prescribe which law is needed for mankind to meet the perils of our changing times. Unanimously rejecting the Hobbesian model, the pluralists depict human societies as self-organizing entities capable of producing their own autonomous regulation, independent of the will and discretion of particular individuals. The phenomena summed under the title of legal pluralism have neither historical nor social originality as such. Legal pluralism does not reveal new social laws or regularities, it does not provide new explicative schema (rather it merely changes the words in the older schema), and the challenges of globalization are only relatively new. Rather the reality referred to through these terms outlines a renewed intellectual climate which offers new axes for discourses. From this point of view, the problem of legal pluralism, and the issue of globalization are not devoid of scientific interest, and discussions on this matter can effectively contribute to the progress of social knowledge. But, in all probability, one cannot reasonably expect that from replacing terms and factual data one can gain innovative knowledge about the interrelation of law and society.

This volume examines the elements of formalism and decisionism in Russian legal thinking and, also, the impact of conservatism on the interplay of these elements. The actual conservative narratives, about the distinctiveness of Russian law, reveal certain features of the intellectual culture that is transmitted in legal education, scholarship and practice. These narratives are based on the idea of sovereignty understood as legal omnipotence of the state. References to sovereignty justify the requirement of legality in the sense of fidelity to the letter of the law. They also often serve as a rationale for crafting exceptions to constitutional non-discrimination principles as they are applied to political, religious, sexual and other minorities.

This chapter examines how Russians justify wars in the post-Soviet era. As will be shown, the Russian philosophical tradition developed somewhat differently from that of the West. Neither in Imperial Russia, nor during the Soviet period, did secular writers pay much attention to issues related to the justification of war. Meanwhile the Russian Orthodox Church tended to view war as an occasionally necessary lesser evil, not as something which can be characterized as ‘just’. Since the collapse of the Soviet Union, political leaders have tended to adopt a Realist approach and to frame war in terms of security rather than justice. Church leaders and secular intellectuals have on occasion referred to Russia’s wars as 'just' and made some reference to Western just war principles, but they have not for the most part endorsed those principles fully. It remains to be seen whether Russian thought on this issue will converge with that of the West or diverge further from it.

This paper studies the development of economic analysis of law in Soviet and Russian law, and a number of factors influencing this development. In Soviet law, the influence of economics on law was theoretically conceived in terms of Marxist dialectics of basis and superstructure. When Russia left the USSR in 1991, judges had to evaluate whether application of Soviet legal rules would make sense or whether there were compelling economic reasons to decide cases otherwise. The privatization and other economic reforms of Yeltsin’s Government were carried out  with the help of rather inconclusive and inefficient legislation. In the 2000s, the economic analysis of law gained momentum in Russian law: an entire branch of the judiciary (commercial or arbitration courts) supported its application. After the Higher Commercial (Arbitrazh) Court was disbanded in 2014, Russian law is becoming formalistic again; references to economic analysis of law are rare both in case law and in legal scholarship. The author explains this development in the prism of the governmental centralization policies which imply that judges shall be guided only by the sovereign (state) will, without attempting to reinterpret or cast doubts on this will from the standpoint of economic rationality or from other standpoints.

In secular societies, the principle of rule of law implies that churches and other social institutions may not assert themselves as above the law or replace the official law1 with their moral or canon rules. Abiding by this principle is a problem not only for the Russian Orthodox Church, but also for many other religious denominations that historically have carried considerable sway over social and political life in their countries by way of their “moral entrepreneurship” and that are now reluctant to cede that influence.