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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.
Symphony as a legal concept was formulated in Late Antiquity by Justinian I, a famous Byzantine Emperor, in his Novella 6 of 535 C.E., and it is readily utilized by the post-Soviet Russian Orthodox Church as the model of ideal church-state relations even at present. The question we ask in this article is if this model, in the manner it was laid down in the policy documents of the Russian Orthodox Church, is compatible (and, if so, to what extend) with the principle of the rule of secular law. This problem will be analyzed in the present paper on the example of the Church’s attitude toward the constitutional principle of secularity and separation of state and church. In Russia, this principle from Article 14 of the Constitution in fact collides with the church-supported tradition of their “harmonious cooperation” which is called “symphony of powers.”
The book is the first research in the Russian scholarly tradition of accounts, notes and memoirs of Russian and Western travelers who visited Mongolia in 17th to early 20th century as a sources on traditional state and law of the Mongols. The authors of notes were diplomats and intelligence officers, scientists and merchants, missionaries and even “extreme tourists.” Using their notes gave an opportunity to form a view on different aspects of power and legal relations in Mongolia. Diverse goals of trips to Mongolia caused visits of foreign contemporaries to various regions of Mongolia at different stages of their political and legal development. The analysis of that sources allows to create the “legal map” of Mongolia during the period of independent khanates and under the power of the Manchu dynasty of Qing including specific features of the legal status of the Northern Mongolia (Khalkha), Southern (Inner) Mongolia and the Zunghar Khanate which was independent state till the mid of the 18th c. The research is based on the analysis of about 200 texts written by travelers as well as on additional materials on history of foreign travels to Mongolia, on persons of travelers themselves. This approach allowed to form an impartial position on the notes and to analyze them critically.
The book is designed for specialists in the field of history of state and law, comparative legal studies, legal and political anthropology, historians, mongolists, specialists in source study, political scientists and ethnographers. It also could be an additional material for students who study these specialties.
The article analyzes specific cases of making court decisions by the rulers Central Asian states on the basis of sources which were either unrelated to the basic legal system of their state or were not sources of law. The author characterizes cases from the Bukhara Khanate of the 16th and 17th centuries and from the Kazakh Steppe of the first half of the 19th century. He finds that rulers used such sources of their court decisions to demonstrate their political position for their own subjects or rulers of neighboring states.
The conception of the outstanding Russian jurist Nicholas Timashev is usually referred to by researchers of political and legal ideas in the field of sociology of law. Timashev usually refers researchers of political-legal ideas to the field of sociology of law. However, this classification narrows the prospects that this concept offers in terms of a pluralistic approach to law - here sociology is only one of the many perspectives for analyzing law, along with psychology, political science, ethics, and other social sciences. In this paper it is argued that Timashev's concept represents one of the most original legal-theoretical constructs of the twentieth century. For a variety of reasons, Timashev did not position this concept in the field of legal theory or philosophy of law. The title of his main work ("Introduction to the Sociology of Law") does not correspond to the content of this work, in which important problems of theoretical jurisprudence are discussed, and in which Timashev tried to formulate a methodological basis for the discussion of additional aspects (collective psychology, ethnology and anthropology, ethics, etc.) of these problems of legal theory.
This paper considers the methodological foundations of Hans Kelsen’s conception of justice. As well, the author examines connecting links between this conception and the key ideas of the pure theory of law. The author’s attention focuses on the critical remarks that are typical for disapproval of Kelsen’s theory in Russian jurisprudence. The paper argues that the pure theory of law is far from denying that law can be considered as a social phenomenon and that there is a connection between moral convictions of legal subjects and how they behave themselves in processes of creation and application of law.
The article is an analysis of the report of Ivan Unkovskiy, the ambassador of the Russian Empire in the Zunghar
Khanate in 1722–1723 devoted to the Oyrat trial with the participation of members of the Russian embassy.
This text allows author to reconstruct the basic elements of the judicial proceeding in the Zunghar Khanate including
its stages, status of participants, methods of gathering and evaluation of evidences, etc. This case also gives an opportunity for the comparative legal analysis of specific case and rules of court proceeding in the Oyrat law, especially in the code of laws Ikh Tsaaz (“Great Code”) of 1640 and two edicts of Galdan Boshughtu Khan of 1670s which supplemented it. Besides that, the specific feature of this case is a participation of foreigners in the trial. It allows to clarify the reasons of privileged status of Russian participants in contrast to less capable one of foreign subjects who also were under trial in the Zunghar Khanate.
In his monograph The Burden of the Empire. The Administrative Policy of Russia in Central Asia. Second Half of the 19th Century, D. V. Vasilyev analyses imperial Russian policy in the region, focusing on the administration of the steppe provinces and Russian Turkestan between 1865 and 1891. This approach allows the author to observe the evolution of views of the central and regional authorities responsible for the administration of these regions and compare broader imperial policy. The monograph is innovative, as it provides a parallel examination of Russian policy in the steppe provinces and in Russian Turkestan, with the author analysing draft regulations in chronological order. The measures taken to adapt the administrative system in both regions are considered at specific stages of their development. Vasilyev refers to new archival materials, which should be of interest both to researchers of the imperial Russian policy in Central Asia and specialists in the administrative and legal history of the Russian state. Careful and
comprehensive analysis of the sources offers the reader an informed perspective on these documents and makes it possible to trace specific aspects and changes in imperial policy.
This article analyzes the origins of the concept of symphonia, its historical development, and its utilization by the Russian Orthodox Church as a normative ideal for church-state relations. In various historical contexts, this concept has referred to different normative requirements; it relied on different paradigms in Byzantium and in medieval Russia and it acquired new meanings in Imperial Russia. The reinterpretations of this concept by the Russian Orthodox Church in order to legitimize its position in the political life of contemporary Russia take this concept far from its original meaning. Using methods from the history of concepts of, among others, Reinhart Koselleck and Quentin Skinner, the author considers how the semantic transformations of symphonia in modern contexts by the Russian Orthodox Church lead to a hollowing of this concept. This conception is hardly reconcilable with the normative logic of the actual Russian political and legal systems.
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.
This contribution analyses the features of Russian legal culture that – in the author’s opinion – prevent this culture from acceptance of human rights in their liberal reading. These features are examined through the lenses of the conceptual history. The positivist intellectual tradition of conceptualising law in terms of state power led to the priority of state commands over natural rights: the former define the extent to which the latter are legal. With this, human rights defined by the international community or by civil society cannot work as checks and balances against the state and its arbitrary power. This perception of rights fits the political autocracy very well, which is conceptualised in Russian legal scholarship in terms of sovereignty. The author argues that sovereignty, as it is perceived in the epistemic community of Russian lawyers, conceptually excludes the priority of human rights. Because of this, the argument of sovereignty unsurprisingly became one of the cornerstones of the current ideology in Russia, and continues to feed interpretative controversies about human rights between Russian and other epistemic communities.
This paper deals with the book "The Art to Be a Jugde" by the Canadian author Louis Le Bel. This author demonstrates that judicial decision-making cannot be taken as a mechanical one - a judge has to understand the nature of the contentious situation and to evaluate consequences of her decision not only for the parties to the process but also for the entire society.
The article is a survey of the Russian translation of “Laws of the Great Ming dynasty” in four volumes published since 1997 to 2019. The introduction of this legal monument to the Russian scientific society is of great importance as it substantially expands contemporary idea on Chinese traditional legal system and meets a lack in the
history of law of China in 14th–17th cc.
To survey the legal monument there special legal scientific methods were used. Historical legal approach allowed to trace the creation and acting of this codification in the specific historical circumstances, value its urgency for the epoch of Ming dynasty (1368–1644). Comparative legal method gave an opportunity to compare this legal monument with other codifications of traditional Chinese law since the ancient times to the legislation of Qing, last dynasty of the imperial China (1644–1911). Formal legal approach provided the analysis of the legal technique of the document, specific features of its structure and content, characteristic of legal terminology, etc.
The analysis allowed to appreciate the “Laws of the Great Ming dynasty” at its high value as a source on history, state and law of medieval China. It had similarities and differences with other sources of traditional Chinese law. Besides, it is of great importance for the further development of legislation of imperial China.
The codification is an important document on statehood and law of the Ming China as it contains valuable information on power system and competence of authorities, basic fields of legal relations in the medieval Chinese society. Its structure is traditional (based on the example of codification of Tang dynasty, 618–907), at the same time it
has larger volume and regulates new fields of legal relations, takes into account changes in the internal and externaln status of China after the expelling the Mongolian Yuan dynasty (1271–1368) and foundation of “national” Ming dynasty. Some principles of domestic and foreign policy of Qing dynasty were legally fixed during the epoch of Ming.
The analyzed legal monument is of great interest for researchers of the history of China, its state and law. In fact, each chapter as well as specific articles and supplement statements could be a subject of investigation. “Laws of the Great Ming dynasty” also could be used by lecturers of history of state and law and for students who study this
Abstract: Research objectives: This article contains a characteristic of the jurispru-dence in the Golden Horde (Ulus of Jochi). The author considers basic stages of develop-ment of the Golden Horde’s jurisprudence and uncovers its scholarly centers located within its territory.
Research materials: This research was carried out on the basis of the classical and most recent works on the history of the Golden Horde and its specific aspects (including those that began to be studied by specialist only recently). It was also based on the sources including those which were introduced into scholarly circulation relatively recently; for example, works of medieval eastern authors that were not previously known to a wide range of researchers or were not typically employed as sources on the history of the Golden Horde.
Novelty of the research: Following the example of specific scholars (specialists and lecturers in law), the author characterizes basic directions of the development of the Golden Horde’s jurisprudence, while analyzing academic contacts of the Golden Horde’s scholars and the process of “academic mobility”. Also, the author pays attention to the Golden Horde rulers’ support of jurisprudence and the reasons behind its flourishing in the first half of the fourteenth century and its decline by the beginning of the fifteenth century.
Research results: The author has found that the Golden Horde’s jurisprudence was undoubtedly part of jurisprudence of Islamic Eurasia in general, but at the same time had specific “Golden Horde” features. These determined the basic stages and directions of its development and even had an influence on the life and activity of specific scholars. It pro-vides justification to speak of the original character of the Golden Horde’s jurisprudence and perspectives in regard to its further research: the study of the Golden Horde’s written monuments (legal and non-legal), biographies of specific scholars, etc.