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This essay examines methodological nuances connected with historical research of Russian law. These nuances are studied against the backdrop of two books published respectively by Professor Ferdinand Feldbrugge and Professor William Pomeranz on Russian legal history. The methods employed by these authors reveal specific features of Russian legal language and mentality which can be helpful in explaining the dissimilarities between legal and political developments in Russia and the West. They place particular emphasis on the development of legal language and productively analyze many current issues of Russian law through the lens of history of concepts. These books are evaluated as important contributions to comparative analysis of Russian and Western legal cultures. The key events of Russian legal history are considered in a perspective that sheds light on the current challenges faced by Russian law.
Objective: A study of the Golden Horde historical sources of the midfourteenth century containing information on the history of law and trials in the Golden Horde, providing a comparison of the actions of the Golden Horde authorities with similar actions taken in other countries of that time. This includes a general assessment of the standards of the Golden Horde proceedings in the period under study.
Research materials: The Golden Horde historical sources, namely, legal documents from the so-called “Venetian collection”, along with other sources from the fourteenth and fifteenth centuries related to the proceedings of damages at the international level, including acts of the Venetian colonies of the Black Sea and medieval Rus’ian charters.
Novelty of the research: This study is the first attempt both at a historical and legal analysis of the Golden Horde sources containing information about trials, as well as a comparative analysis of the actions of the judiciary at different stages of civil litigation which included international participation in the Golden Horde and contemporary states.
Research results: The author reconstructed the main stages of the civil process in the Golden Horde (from filing a lawsuit to a court decision) and revealed the specifics of a particular case in connection with the participation of a foreign element, in addition to its public and legal nature (the lawsuit was not against private individuals, but against the state, i.e. the Venetian Republic). The author established that all procedural actions performed by the Golden Horde authorities in the course of the proceedings, as well as those to ensure the enforcement of the decision, had analogues in the procedural practice of other states that had interests in the Black Sea in the fourteenth and fifteenth centuries. Accordingly, the author concluded there existed a high level of judicial practice in the Golden Horde, including elements which derived from foreign experience.
The book analyzes the legal aspects of the interaction between the Russian empire and the states of Central Asia since the early 18th century to 1917. The author describes the main stages of Russian influence on the legal development of the Central Asian khanates, outlining the main directions of this influence. He focuses on the ways and methods of the Russian legal policy employed in the Central Asian khanates placed under the Russian protectorate. He also explores the problem of the Russian legal policy implemented in the Central Asian regions with special legal status as well as under conditions of martial law, revolutionary situation, etc. The research undertaken by the author allows understanding of the historical experience of the integration within the Eurasian space of which the next stage is being actively realized today as well as evaluating the efficiency, strengths and weaknesses of the legal means of this integration in the 18th through the early 20th centuries. The book is designed for specialists in the fields of history of state and law, Russian history, Eastern studies, political science, as well as for undergraduate students majoring in the aforementioned specialties.
This paper focuses on the evolution of Russian legislation, political thoughts and public administration as for corruption and anti-corruption measures in the exercise of public functions.
This paper analyzes the cultural constraints imposed in the Russian legal system by the prevailing social philosophy, which is characterized by a significant degree of religious conservatism and communitarianism. This conservatism is predictably opposed to sexual minorities and to those who want to defend or justify them. The author concludes that this philosophy strongly affects decision-making in Russian courts, and can sometimes overrule the provisions of the Russian Constitution and the laws that formally grant protection to sexual minorities. In turn, this conservative social philosophy and communitarian morality are based on religious patterns that are still shaping the mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and other actors in the Russian legal system, who to some extent are subject to the general perception of what is just, acceptable, and reasonable in society, and are factually bound by this perception.
One of the main ambitions of the Russian Constitutional Court from the moment of its establishment has been to work as an intermediator between Russian law and the Western legal tradition, reshaping the former by bringing it closer to the latter. Such a role gave to the Court a justification for its existence in Russian law where this Court has never had any real power of constitutional control over the political authorities and their enactments. Human rights have been an important topic in these intermediating activities of the Court which actively utilised the human rights language to change the statist perspective common to Russian legal education, scholarship and practice of law. The topic of human rights turned out to be of great importance for the self-legitimation of the Court in Russian law and for aligning Russia with the European legal standards. Changes in the state ideologies in the 2000s involved for the Court the need to reconsider its approaches and to employ more conservative interpretations of human rights. After a number of discrepancies with the European Court of Human Rights, the Venice Commission and other European institutions, the Court increasingly relied on exceptionalist argumentation. In author’s opinion, with this the Court not only abandons its original function in the Russian legal system, but also could lose its institutional niche in Russian law. Assuming to have the sovereign power of exception, the Court could enter into an indirect normative conflict with the presidential power.
Lawyers work with statements about verisimilitude of factual statements, while trustworthiness of these statements is evaluated against the backdrop of coherence of factual descriptions. A correct conclusion in law means a consistent reconstruction of normative meanings in the way that fits best the normative system and that allows to cogently subsume factual states of affairs under the established normative meanings.
There are two traditions of determining the foundation of legal validity – metaphysical and anti-metaphysical. At the beginning of the 20th century the anti-metaphysical tradition was supplemented by psychological realism, which was developed in the framework of the Uppsala School and the psychological school of Leon Petrażycki. It is possible to trace the common line of reasoning on the problem of legal validity within Continental or psychological legal realism: from Petrażycki (and his students) and Axel Hägerström (and his students, including Alf Ross) to Enrico Pattaro. Psychological legal realism is an approach to law that can be characterized by 1) an orientation toward the study of law in the context of facts of psychophysical reality; 2) the idea of the psychological nature of law; 3) recognition of the authoritative-mystical nature and objectification of legal experiences; 4) the irreducibility of law to the behavioral aspect; etc.
The term “Uppsala School of Legal Realism” denotes the theoretical legal position of scholars from Uppsala – Hagerström and his most faithful students, Anders Vilhelm Lundstedt and Karl Olivekrona – within the framework of a broader Scandinavian legal realism as part of the continental realistic tradition. The philosophical foundations of the Uppsala School of Legal Realism include: rejection of subjectivism and metaphysics, naturalism, non-cognitivism. This school paid special attention to questions about the possibility of scientific knowledge about law, the construction of a value-neutral theory, and the search for reliable methodological foundations for the science of law. The revolt against subjectivism and metaphysics led to the assertion that there is – and can be the subject of scientific knowledge – only one reality, namely spatio-temporal, psychophysical. Since legal concepts do not directly correspond to the facts of such a reality, they are considered as illusions and even magical formulas, which, however, are based on actual psychological facts and have an effect on people's consciousness.
In the framework of the Uppsala School from a realistic point of view law appears as a machinery of coercion, as a factual order based on the organized social force. Within that order the rules of law are independent imperatives and motives of behavior, which have a suggestive, binding effect on the consciousness and behavior of people. The validity of law is determined by the power of organized social coercion and is regarded as a complex phenomenon of the people’s inner world. As a complex psychical fact, legal validity is considered a psychological self-binding engendered by the physical coercion machinery in action and the influence of cultural, social and even biological factors.
The history of Mongolia in the 17th – early 20th centuries is covered mostly in the notes of Russian travelers and
scholars, whereas their Western colleagues did not visit the country often. That is why their information on different
aspects of the life of Mongols including its political and legal culture is of great value. The author analyzes the notes
of Western travelers who visited Mongolia during different periods of its history and for different purposes – missionaries (T. Pereira, J.-F. Gerbillon, R.E. Huc and J. Gabet, F.A. Larson, etc.), diplomats (L. Lang, J. Bell, G.J. Unverzagt, C.F. de Bourboulon, W.W. Rockhill, C.W. Campbell, etc.), scientists and technicians (R. de Batz, S. Hedin, etc.), travelers (A. Michie, V. Megnan, etc.). The author deals with the information on important stages of Mongolian history: from its submission to the Qing Empire until the pre-revolutionary situation resulted in the foundation of an independent state. There are materials on political structure and legal relations of Mongols more or less included in all analyzed notes. Depending on purposes of visit to Mongolia and personal characteristics (such as position, level of education, etc.), each traveler paid more attention to specific features of political or legal life of Mongols. The question of Western (Europocentriс) view on the Mongol state and law is also considered in the article.
There is an analysis of the legal support of the integration of Turkestan region into the space of the Russian Empire during the administration of the Konstantin von Kaufman.
The article is a study of specific interaction between regional administrations of the Russian Empire which
participated in the accession of Caspian Sea regions of Central Asia to Russia — Caucasian namestnichestvo
(region ruled by governor general), Orenburg Governor-Generalship, Turkestan Governor-Generalship. The
author finds that the effectiveness of Russian imperial policy in Central Asia depended in many respects on the
personal relations of regional rulers, their ambitions and pretensions on the key role in the realization of this policy.
Orenburg governor general N. A. Kryzhanovskiy understood that the role of his region in the accession of Central
Asia to Russia was quickly diminishing, while Caucasian governor general Grand Prince Mikhail Nikolaevich and Turkestan governor general K. P. von Kaufman, on the contrary, competed for leadership in the accession of
the Eastern Caspian region to Russia and didn’t want to concede; their conflicts resulted in actions contradictory
to the position of the neighboring region and, finally, in weakening of the position of Russia among Turkmen. At
the same time state authorities didn’t stimulate the confrontation of the regions (as some researchers suppose), but
attempted to coordinate their actions to change them into partners.
The article is devoted to analysis of status of the Kazakh Khanate as it was reflected in the Russian diplomatic documents of the end of 16th — beginning of 18th centuries. Russian authorities tended towards consider the Khanate as vassal state and fixed it in entitling of Kazakh rulers, classification of their domains, imagination of their rights and obligations towards suzerain. Meanwhile the indepth study of diplomatic documents convinces us that in actual fact the Kazakh Khanate was not a vassal of Moscow and its rulers intended to develop equitable relations with Russian monarchs. Only forming of the Russian imperial ideology at the beginning of the 18th century resulted in substantial changes of the format of Russian-Kazakh relations.
The article is devoted to problems of describing the role of church and ecclesiastical law in teaching of history of state and law of Russia according to modern manuals and textbooks. The author supposes that this information is quite short and lapidary for understanding by students some specific features of development of the Russian state and law during different historical periods. The author compares modern manuals with the ones of the second half of 19th — first half of 20th century and concludes that situation was differ earlier and previous authors of manuals considered church and ecclesiastical law as an integral part of the system of Russian state and law. The author suggests improving of the situation by including into educational course some aspects of interaction of church and state and influence of ecclesiastical law on the “secular” one. To perform that it makes sense to use not only previous manuals and textbooks but also modern research works.
The article is devoted to analysis of notes of Russian travelers to Mongolia as a source on legal situation in this country during 18th — first half of 19th c. Until now these texts were used mainly as a source on political or economic history as well as on ethnology of Mongols but far less as one on legal history of this people. Indeed, the information on legal realties of Mongolia is rather fragmentary and lapidary as the travelers didn’t have a goal to describe state and law of Mongolia. Nevertheless, this information is of great interest and value as it allows us to give a notion on real legal situation, legal relations realized in practice — in contrast to survived written legal monuments (codes) of Mongols from this period: travelers could observe such legal practice and even participate in the legal relations among Mongols.
The source base of research are notes of travelers who visited Mongolia since the beginning of the 18th c. to 1850s. There were diplomats (ambassadors and their companions), couriers, intelligence officers, tradesmen and scientists. Depending on goals and objectives of their trips they interested in different aspects of Mongolian legal realties, so the comparative analysis of their information allows to present different aspects of legal life of Mongols. The study of travelers’ notes from the legal anthropology point of view (basing on works of N. Rouland, A.I. Kovler, V.V. Bocharov) presumes analysis positions of their authors, reasons of their interest to specific field of law as well as Mongols’ attitude to law and order, legal rules, will of Mongol and Manchu authorities, etc.
Analysis of Russian travelers’ notes in combination with legal monuments allow to understand better specific features in legal development of Mongolia in the turning-point period of its history: just at this time there was activated the policy of the Qing Empire to transform Mongols from autonomous vassals to complete subjects with disfranchisement, performance of duties and obligations and further closing in status with other categories of subjects (as Chinese, etc.).
Also these notes are examples of basic stage of Russian practical-oriented legal anthropology which differed from the western one by attempting to study and understand the law of “traditional” societies without disregard of the Europocentrism.
The punishment of powerful leaders of Kiyat-Jurkin tribe Sacha-Beki and his brother Taychu by their relative Chinggis Khan was fixed in many sources (Mongolian, Chinese, Persian). Their analysis allows to find differences not only in factual, but also in ideological aspect. As a result, in earlier sources execution of relatives by Chinggis Khan is covertly blamed, whereas in works of imperial and post-imperial periods his decision is treated as a legal punishment of traitors by supreme ruler. Modern scholars also explain deed of Chinggis Khan in different ways. Some of them consider the punishment of Kiyat-Jurkin leaders as an example of his blood-thirstiness and intention to rid himself of powerful claimants to the throne. Others suppose that Sacha0Beki and Taychu were adherent of “old regime” who
resisted imperial ambitions of Chinggis Khan. In many respects these differences caused by different appraisals of Chingiis Khan deed in the sources. To author’s opinion, the punishment of Sacha-Beki and Taychu became a first step in forming of khan’s judicial field as a possessor of power during the process of development of new, imperial state ideology. Analysis of sources allows to make some observations on initial stage of court and procedure in the Mongol Empire which combined elements of traditional and imperial law.