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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.
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 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.
The present essay is a review of the 2018 book by Professor Cosmin Cercel Towards a Jurisprudence of State Communism. Law and the Failure of Revolution. In reviewer’s opinion, this book is a good contrast to the books and articles written in the first post-Soviet years in the Central European countries, when the intellectuals glorified the Western ideals and condemned the socialist past of their countries and the ideological legacy of the communist regimes. The focal point of the book under review is to rethink the history of authoritarianism in Romania through analyzing the formalist legal ideology that was utilized by communist regimes for their purposes. In author’s opinion, the ideas of Soviet jurisprudence do not significantly differ from the bourgeois discourse about law that characterizes the modernity. In the perspective of this discourse, the formal and procedural autonomy of legal rules (the regime of legality) is opposed to the substantial exceptions from these rules which are justified with references to higher values. These latter underpin the legitimacy of the laws. There were different versions of postulation of such values in the Western and in the communist legal theories, but all these versions are equally based on the same dualist paradigm of legal thinking.
The author contextualizes this analysis of the legal philosophy of the interwar period within a broader perspective of psychoanalysis. In his opinion, all the theoretical attempts to understand law through its connection with the state represented a kind of psychological defense of the classical jurisprudence against the revolutionary changes of the first decades of the XX century. These attempts are considered by the author as a function of psychoanalytical replacement and ousting of the historical facts from legal mentality, as far as these facts undermined the legal rationality and demonstrated the triumph of political violence over legal order. This semantic background was important for legal and political changes in the postwar Romania after 1945 — the wide discretional powers of the regime were justified with reference to the principle of exception which allows avoidance of rules in the name of people, country or state. This theoretical construction was largely utilized by the authoritarian regime which did not invent anything new but just followed the theoretical paths protracted in the interwar legal philosophy and theory.
This paper is a review of the 2018 book by Professor F. Feldbrugge "A History of Russian Law. From Ancient Times to the Council Code (Ulozhenie) of Tsar Aleksei Mikhailovich of 1649". The book features for its investigative profoundness and methodological correctness. It’s necessary to draw attention to the examination of the key concepts of legal language undertaken by Professor Feldbrugge for better understanding the medieval Russian law. The book also takes into consideration the differences that exist between medieval and contemporary legal thinking. It draws historical examples which illustrate that the work of medieval law in Russia is not understandable without considering the totality of normative mechanisms of Russian medieval society. Also, law cannot be detached from syncretic mentality of medieval men. Professor Feldbrugge relies on functional method, according to which law’s main hallmark is presence of established procedures of dispute resolution, and focuses his attention on legal documents.
The article analyzes the relations of the Russian Empire and Kazakhs in the early 1730s, i.e. at the initial stage of joining of the Kazakh Little Horde to Russia. This period is characterized by uncertainty in the relations of Russia and Kazakh vassals and the absence of purposeful Russia’s policy in the Steppe. One of consequences of such approach was an assault of Kazakhs at the beginning of 1732 on the diplomatic mission of Russian Colonel J. G. Gaerber on the way to Khiva and Bukhara. At first, the Kazakh rulers assigned the blame for the assault to their unruly subjects, but then made themselves responsible for it. The author supposes that this episode was one of the reasons for the
intensifi cation of the imperial policy in Kazakhstan and resulted in the establishment of Orenburg Expedition that received broad powers to interact with the Kazakhs. Gradual integration of Kazakhs into the political and legal area of the Russian Empire was realized within the process of frontier modernization, which led to substantial changes in political and social system of Kazakh society.
In 1877, Konstantin von Kaufmann, Governor-General of Turkestan, established municipal government in Tashkent, which implemented Alexander II’s reform of local government in the territories recently joined to the Russian Empire. The principles of the formation and activity of the Tashkent City Duma provoked contradictory opinions among contemporaries and later researcher. The author aims to analyse the terms of the development of local government in Tashkent, its correspondence with imperial principles and specific local features (based on centuries-old traditions of local government in Central Asia), and the evaluations of the adherents and opponents of Kaufmann’s project. In order
to achieve this goal, the author studies the position of the Turkestan governorgeneral, the legal institutions of local government in the Russian Empire in general and in Turkestan in particular, and opinions of contemporaries, i. e. Russian imperial officials, representatives of the Turkestan administration, and members of the Tashkent City Duma. Additionally, the author refers to works by Soviet, Russian, and foreign scholars in the 20th and early 21st centuries. The most criticised aspects of the reform are the disproportional representation in the City Duma of “Russian” and “indigenous” parts of the Tashkent population, the active intervention of the governor-general in the activity of the Duma, and his freedom in spending municipal funds on projects outside the competence of the local government. The author establishes that von Kaufmann’s reform was a declarative imitation in Tashkent of reforms implemented in European Russia. At the same time, he considered the City Duma an additional instrument for the realisation of his own projects in Tashkent and the Turkestan region in general, which was reflected in his Regulations, an “adaptation” of the City Code of 1870 to Central Asian realities. As a result, it is not surprising that the organisation and activity of the Tashkent City Duma during Kaufmann’s rule in Turkestan was criticised not only by central officials (who reacted negatively to Kaufmann’s activity from the very beginning), but also by the representatives of the Turkestan administration who had deep respect for Kaufmann.
The article aims to trace the evolution of the evaluation of the personality and activities of
K. P. von Kaufman, the first Governor-General of the Turkestan Region, in the Russian pre-revolutionary, Soviet
and modern historiography. Using the methods of political anthropology in the historical research allows a clear
understanding of why the first authors who wrote about Kaufman tried to idealize him and then transformed him
into a “sketchy” figure among the other heads of Turkestan administration who personified the successes of the
Russian Empire in the region. Analysis of specific features of the political situation and personal attitudes of some
authors towards the contemporary Turkestan authorities allows to clarify the reasons of the establishment of
Kaufman’s negative image in the beginning of the twentieth century as well as in the historical works of the first
decades of the Soviet period, the later “neutral” relation to him by historians and, at last, the attempts to “rehabilitate”
this statesman in the post-Soviet Russian historiographical tradition. The author finds that, despite the interest
Kaufman was paid since 1880s and up to the present day, his personality was rather contradictory and his activities
too large-scaled to create his general and unambiguous historical biography, especially keeping in mind the
changing attitudes towards Russian imperial policy in general and, particularly, its Central Asian direction.
The article is devoted to analysis the Russian imperial policy towards currency of two imperial protectorates in the Central Asia — Emirate of Bukhara and Khanate of Khiva at the beginning of the 20th century. The final aim of this policy was spreading or the Russian ruble circulation in these protectorates. The goal of the research is an evaluation on a base of this example the effectiveness of economical instruments of an advance of a continental empire into the Central Asia, clarifying the problems connected with attitude of local authorities and population to the Russian political, economical and legal values, i.e. level of acculturation of ruling elite and subjects of economic activity in Bukhara and Khiva. The ideas of different authorities of the Russian Empire on “monetary unification” of Russia and its protectorates are also analyzed as well as their contradictions during the process of development and realization of agreements on fixation of tan’ga’s rate of exchange toward the Russian ruble. The analysis is based on legal monuments, another documentary sources and notes of contemporaries
The present paper is a review of Everyday Law in Russia by Professor Hendley. The review underscores that Professor Hendley pays attention not only to the texts of positive law: she also examines how the law works in these countries, how it is utilized by legal actors and how it matters to them. Professor Hendley’s analysis includes a detailed empirical perspective of Russian law, which is always informed by relevant sociological data. Among these data are those collected by Professor Hendley herself during her numerous research visits to Russia. In this regard, her work is clearly distinguishable from the works of those Western scholars who propose educated guesses about Russian law without hardly ever visiting Russian courts and other places where Russian law is ultimately shaped and delivered to its recipients.