Post-Soviet legal philosophies in Russia
(with some comments about
Soviet legal theory)
Dr. Mikhail Antonov
Associate Professor of Law Faculty of Higher
School of Economics – Saint Petersburg,
Director of Research Center for Legal
Argumentation, Executive Director of “Russian
Yearbook for Legal Theory”, Advocate
Guest lecture at
Law Faculty of
University of
Tartu, 9th of
November, 2012
The author’s position does not necessarily correspond to the official position
of National Research University “Higher School of Economics”
Brief overview of the principles of
Soviet legal theory
Ideological restrictions for reasoning about law
Broad philosophical reasoning about law had been condemned
by Lenin and other political leaders as hallmarks of the
decadent bourgeois legal science (designed to deceive the
working class and divert its attention from class struggle).
The new socialist legal science was to take only one aim
as its object: To help design the laws and decrees
that would implement the will of the working class (in fact, the
ruling elite). There evidently was no point for a lawyer to reason
about what exactly the will of the working class was and whether
it coincided with the will of the governing Soviet elites. So, sociological studies of law
were not required either in the atmosphere of the 30-50s. Neither the philosophical
ones, let alone recitation of the Marxist-Leninist philosophy.
Ideological constraints and instrumentalist approach: theory instead of
philosophy of law
 Philosophical background for each investigation had already been laid out in the
classics (those of Marx, Engels, Lenin, and Stalin), and legal scientists were thus
“exempted” from philosophical speculation and reflection: They were just
expected to apply the Marxist-Leninist dogma to legal reality. This explains why the
philosophy of law was completely displaced by the theory of law, which was
intended to have an exclusively instrumental function (the step prepared in the
prerevolutionary legal science but finally made only in 20s).
 The Soviet legal theory has been rich in ideas until 30-s, we do not describe this
period and just give a brief sketch of the later Soviet theory which has been quite
conceptually homogenous. We need this general characterization to explain the
contemporary development as almost all the Russian lawyers willingly or
unwillingly are still within the conceptual limits of the Soviet legal paradigm.
 The Stalinist regime could not tolerate intellectual diversity in any field of thought,
including legal philosophy, and dissenting theorists had to join the mainstream of
legal theory (formulated in 1938 by Vyshinsky). Many theorists (Pashukanis,
Stuchka among others) faced necessity to revise their “erroneous and deficient”
conceptions, although even this revision did not spare them from tribunals and
camps. The integrated Soviet legal ideology was summed up in 1938 during the
“Colloquium on Some Issues concerning the Soviet Science of Law and the State”.
The Soviet concept of law, debates about law after the ‘Thaw’
 “Law is an embodiment of the rules of behaviour which implement the will of the
ruling class—as well as an embodiment of the customs and rules of community
life—and which are laid down by lawmaking or are sanctioned through the state’s
authority, and whose implementation is guaranteed by the state’s coercive force,
designed to protect, consolidate, and develop such social relations and structures as
favour and serve the ruling class” - this definition of Andrei Vyshinsky, General
Attorney of Stalin, would persist as the indisputable benchmark in Soviet legal
science for many years to come. Only during Khrushchev’s Thaw could this
approach be challenged in some rather minor details.
 The 60s: Those who offered the “wide approach” to law, arguing that law cannot be
reduced to the state’s authoritative commands, and, on the other hand, those who
embraced a “narrow approach,” insisting that there is no law outside the rules and
regulations enacted by the state. The former were quite numerous and urged a
definition of law that would also take into account legal relations and the legal
consciousness, thus partly going back to the ideas of Pashukanis, Reisner, and other
thinkers of the 1920s.
 As sociology seemed to be compatible with Marxism oriented for an investigation of
social structures, socio-legal studies could begin to develop without going against
any ideological taboos after the Thaw opened way for discussions. So, the 1970s
saw quite much sociological research applied to law (particularly in criminology).
What has been changed with Perestroika in
legal thinking?
• Collapse of the
unified theory of law
• No reform of legal education
• Lack of coherent legal theories
• Practical requirements to legal theory to
be as simple as possible
• Gap between thinking about law and
working with the law
Collapse of the unified theory of law
 Perestroika meant a cardinal shift in ideology. The base of the Soviet legal theory was
Marxist social-historical theory and the Soviet ideology. Both have been discredited and
have fallen down, leaving no room for one “common” or “unified” theory of law which
explains everything about law as it did in the “good old times”.
 There has never been a program of reformation of the legal education (also of the style
of legal thinking) in the post-Soviet Russia. So, changing of the old Marxist legal theory
for the new ones turned out to be not an institutional project but many individual
initiatives. The old stereotypes and approaches to law (explicative schemes,
terminology) are still kept in the educational standards which are obligatory for the
most of the Russian universities (except several ones). The ideology of “modernization”
of the ruling party has no impact on the legal education and is reduced to change of
ideological devises.
 Compatibility with the legislation which still largely is based on the Soviet legal dogma
leads to reproduction of the older schemes under the new labels (the example of
“precedent” doctrine of the commercial courts which in fact means the conception of
“ruling instructions” known from the Soviet jurisprudence).
 There also can be stated reluctance of the practitioners and legislators to revise the
conceptual schemes as the legal technique is still based on them. Many lawyers are
missing about the loss of the “uniform legal theory” and require uniformity in thinking
about law arguing that stability of legal order depends on uniformity of conceptual
schemes (!?).
Style of theoretical thinking about law
 The “conceptions” we are going to analyze are not coherent bodies of doctrines and
ideas; in the most cases we have to deal with some bright ideas which are not
always coherently elaborated into theories. These bright ideas are the most
interesting phenomena in the nowadays Russian philosophy. In this sense the
“principal” authors (chosen for the presentation) are those who have offered some
bright and interesting ideas, even if we think that most of them did not succeed to
provide sufficient argumentation and to contribute to the worldwide debates about
law. So, we rather describe than explain the contemporary ideas, as explanation is
hardly possible for a not completed doctrine.
 In order to complete the analysis we offer some parallels between these ideas and
the conceptions of the Western authors. Most of the Russian theoreticians are now
aware (it was different in 80s) of affinity between their ideas and the conceptions of
the Western thinkers (mostly American ones).
 Why coherence is missing in conceptions? As one of the reasons can be mentioned
the discrepancy between the practical needs (predictable and clear schemes for
working with the law) and theoretical research (critics of the existing dogmas about
law), a synthesis between the both require long and hard research; good knowledge
of the Western legal philosophy. (As reasons for it can be proposed: the iron curtain
in the Soviet times, reluctance and inertia to revise the habitual ideas in the
nowadays).
A succinct analysis of concepts from principal
contemporary Russian authors of 90s (with
parallels with the ideas of Western legal thinkers)
Natural law theory of
Sergey Alekseev; other
iusnaturalist developments
in the Russian legal theory
Leonid Mamut and his
reciprocal theory of law;
affinity with Rawls’ theory
of procedural justice?
Libertarian theory of
law in Russia.
Vladik Nersesjants
and his school, its
relation to the
renewed natural
law school and the
American
libertarianism
Libertarian theory of law
Nersesjants was the founder and leader of the
most influential libertarian theoretical school in
the post-Soviet Russia. He based his conception of
law on formal objectivity of the principle of
“equity of equivalence”– independent individuals
have (and shall have – the descriptive and the
proscriptive here coincide) a quantum of liberty
which is just. Nersesjants was cognitivist and
believed in objectivity of values. He believed that
this equal and just quantum is established by law
which grants to subjects a possibility of social
action and thereby replaces arbitrary power of
each of them by legal power of all. Such equal
distribution of liberty among legal subjects reflects
the objective idea of justice which is binding per
se. Certain authors draw distinction between
types of understanding law, prove their unilateral
and incomplete character, and insist on the need
for an integral theory (Vladimir Grafsky), some
focus on dividing line which differentiate formal
justice from informal justice (Valentina Lapaeva).
The first analogy can be found as to
the ideas of Nersesjants is with
Radbruch’s ones; they really had much
in common, especially in their
experience and their objectives – to
overcome the unjust laws. Nersesjants
criticized Radbruch for putting law
above the law, but he was not well
acquainted with Radbruch (he stayed
rather with Hegel) and cited only
“Gesetzliches
Unrecht
und
Ubergesetzliches Recht“, sometimes
also
extracts
from
„Rechtsphilosophie“.
Nersesjants
seems to be even closer to Alexy who
puts stress on argumentative and
persuasive nature of law, its dual
nature and minimal reasonable
standards in law; this factually
characterizes also Nersesjants’ theory
even if the latter tries to overcome
dualism in law.
Some analogies between the
libertarian theory of law and the libertarianism in the US (1)
Speaking about legacy of Nersesjants and its
interpretation in the contemporary theory, it is
fruitful to compare this school with the
analogical American conceptions. The core
doctrine of the American libertarianism also
begins with the recognition that humans have
certain basic rights and that deprivation of
these rights is immoral, thence illegal. Among
these basic rights are the right to personal
autonomy and property rights, and the right to
the utilization of previously unused resources.
Objectivity of these rights (independence on
recognition by state) is in fact shared by
Nersesjants and his school, they also speak
about inalienable right to freedom and equity.
But in different terms, trying to avoid natural
law discussion and the dualism between
positive and natural law (this dualism is not
necessary, as shown by John Finnis).
Similarity can also be found with some
authors such as F. Hayek who praised the idea
of spontaneous order in social institutions.
His ideal of an individualistic, free-market
polity which would be self-regulating to such
a degree that it would not need state
coincides with the “civitarian order”
advocated by Nersesjants. But Hayek saw this
polity as a regulating idea to secure individual
liberty and does not negate state and its law
in the contemporary realities. Some of the
Russian libertarians are more radical, and (to
large extent) Nersesjants himself are rather
communitarian, they pay more attention to
equal measure of liberty for all than to
freedom of individual choice. They believe in
objectivity of liberty and are sure that it can
implement itself as a self-imposing social
regularity.
Some analogies between the
libertarian theory of law and the libertarianism in the US (2)
It is not individual reasonableness but
•
determinism of social organization and of
historical development which is guarantee for
self-implementation of liberty (here one can
find evident affinity with the Marxist social
philosophy). Some (V. Chetvernin) say that
state law is not true law at all, others hesitate
about this point. Another similar doctrine is D.
Friedman’s The Machinery of Freedom where
all goods and services including law itself can
be produced by the free market. Here
resemblance is more apparent: both schools
speak of objectivity of economical impact on
law. Though most of the Russian libertarians
after
Nersesjants
(who
stressed
interdependence between the “right law” and
private property) rather insist on a priori
character of legal principle of equal freedom,
than on deriving this principle from the
market economics.
Similarity can also be found with the
anarchism of Robert Nozick: the latter also
argues that justice is brought about by free
exchange among consenting adults and
from a just starting position, even if large
inequalities subsequently emerge from the
process. To be noted that the Nersesjants’
school does not concede to any
inequalities, as law ceases to be law when
it sets out or approves even possibility of
unequal legal status. If formal equality and
justice disappear from the law, it is not law
any longer. The “measure of freedom” must
be equal even in the process. In Russia the
most cited author of this trend is David
Boaz, he also belives that there is (and must
be) a natural harmony of interests among
peaceful, productive people in a just
society.
Natural law theories in 90s
•
In 90s there has been another tendency in •
Russian legal theory, a revival of natural
law. Such authors can be mentioned as
Sergey Alekseev who located the
existential mainstay of law in the idea of
human rights and depicts law as a system
of self-evident principles having binding
force because of their reasonableness
(thereby Alekseev tried to connect legal
theory with civil law – explaining policies,
soft law, arbitration);
Another interesting natural law
theory is that of Roman Livshits
who examined law’s integrative
function, understanding law as the
complex of all the mechanisms of
social control conducive to an
arrangement among interacting
individuals and groups united by a
common understanding of justice.
Both authors are today inactive, their iusnaturalist theories were severely criticized because of
lack of originality as compared with the classical authors (Grotius, Puffendorf, Leibnitz), but the
problematization of this issue in terms of personal rights, and in the context of universality of
development of mankind brings these theories close to the paradigm of thinking which
nowadays is distinctive for the Western (mostly Catholic) conceptions of natural law (Maritain,
Finnis, Grizes). Reasoning about natural laws requires a starting position (to be found in a
religion, in beliefs in reasonable and societal nature of humans), and as the contemporary
Russian authors (after Aleskeev and Livshits) are irresolute about this position, their
conceptions are lacking of coherence and generally amount to a panegyric for a given list of
rights – the lists differ from one to another author, which does not yield much credit to these
conceptions.
Reciprocal theory of Leonid Mamut as compared
with Rawlsean theory
 Leonid Mamut’s reciprocal theory can be seen as an attempt to understand law as
a set of relations of equal exchange with social wealth between members of
society. Paraphrasing Pashukanis’ ideas, Mamut argues that this exchange, in its
turn, becomes possible if there are reciprocal claims moved by members of society
pretending to get a part of social wealth which is necessary to continue social
activity of each of these members. This set of exchange relations and these
reciprocal claims form what Mamut considers to be law and what he strictly
differentiates from the law (a system of legislation).
 This conceptual experiment recalls John Rawls’ the original position where veil of
ignorance make people choose the best strategy for action. Both in fact stick to the
principle of average utility (to produce the highest level of utility averaged among
all citizens) which is counterbalanced by the principle of restricted utility (to
maintain a public agreement to maximize average utility).
 Rawls’ individualist position leads to the idea reflective equilibrium (explanation of
individual judgments by other’s beliefs and convictions), at the same time Mamut
is inclined to find an objective structure of legal relations in a society
independently on individual opinions and beliefs.
Theory of legal communication and
dialogical conception of law
Contemporary developments
of Saint-Petersburg School
Legal communication: the theory of
Andrei Poliakov, and the theories of
Jurgen Habermas, Werner
Krawietz, Mark Van Hoecke and
Lon Fuller
____________________________________
Dialogical conception of Ilya Chestnov,
the
critical
legal
studies,
and
postmodernist theories of law
Legal communication: theory of Andrei Polyakov and
theory of Jurgen Habermas
•
A. Polyakov’s conception
J. Habermas’ conception
Andrej Polyakov’s communicative theory of law
•
considers communication as a dynamic force
linking people together in society, working of this
force is mediated by texts (both written and
unwritten). If communication is structured by
correlated mutual duties and obligations, if it is
founded on the generally recognised texts, and if
it is coherently realised in social practice, then
such
communication
acquires
normative
dimension, and the mentioned texts are validated
as sources of law. Prof. Polyakov tries to get
sociological background for legitimating law
through communication, and provides for
conceptual links between the ideal structure of
communication and the social effect of legal texts.
The central task for Habermas is to
provide a normative account of
legitimate law – this is possible if
law secures the private autonomy
of those subject to it. This is
guaranteed by public autonomy,
i.e. political participation of citizens
in lawmaking: “only those statutes
may claim legitimacy that can meet
with the assent of all citizens in a
discursive process of legislation
that in turn has been legally
constituted”. Thus, Habermas stays
with the soft methodological
individualism.
Legal communication: theories of A. Polyakov, of M. Van Hoecke and
of W. Krawietz
 In the question about social and psychological origins of law Polyakov is apparently
with Vl. Soloviev and the Russian religious philosophical tradition of communitarism
(Sobornost’, Vseedinstvo) what he expressly recognizes stressing the particular
character of the Russian legal thinking.
 This cluster of ideas is closer to the position of Van Hoecke who sees law as a means
for human interaction which functions to order society and to facilitate human
interaction. For Van Hoecke law creates a framework for human communication, law
itself is also based on communication between individuals and groups. Here still Van
Hoecke and Polyakov diverge as to whether legal communication is a given social
structure or law is constantly renewed through individual actions of its participants
(the idea of deliberative communication ).
 Some resemblances can be found with Fuller’s conception (procedural morality
where law is understood as the enterprise of subjecting human conduct to the
governance of rules), but Polyakov (though he also sees law as always
unaccomplished project) is resolute to separate law from morals.
 The closest analogy can be found in Werner Krawietz’s conception which stresses the
societal, self-emerging nature of legal communication, and where the principles of
individuality and sociability seem to converge in the idea of structural coupling.
Dialogical conception of law by Ilya Chestnov
 Ilya Chestnov offers a dialogical theory of law positing three basic dimensions of
legal reality: legal rules, their perception in human cognition, and their
effectuation in human behaviour. These three dimensions are not a closed system
but rather form an open emerging system of interaction, reciprocity, and
synchronization, all of which attest to the dialogical nature of law. Law is rather
product of strategies than of a will.
 This view is compatible with R. Unger’s main ideas about law and with the basic
strands of other representatives of the CLS. The structure of the positive legal
order is based on a series of binary oppositions (individualism and altruism, etc.)
which need to be balanced. But if for the CLS judicial objectivity is impossible and
thus the law is indeterminate, Chestnov believes that the legal text can have
objective meaning (he shares some principles with sociolegal studies which are
used by him to substantiate objective character of law).
 Professor Chestnov underlines his affinity with the postmodernist legal thought,
especially with the ideas of the French school of postmodernist philosophy
(Derrida, Lyotard, Faucault), trying to connect this block of ideas with philosophy
of dialogue by the Russian philosopher Mikhail Bakhtin, and with the sociological
perspectives of legal studies which were discussed by the tutor of Chestnov – late
Professor Lev Spiridonov, one of the pioneers of sociology of law in the USSR.
Conclusion: the Soviet theory of law
 Under Soviet rule, legal theory mostly existed in isolation, through the action of an
ideological iron curtain that kept it forcibly cut off from the rest of the world. The
discipline became a mishmash of contradictory precepts and scattered idioms
sourced from the ‘classics’ (Marx, Engels, Lenin), stewing in their own juices and
seasoned with schemes and conceptions derived from prerevolutionary legal
science. This stew would take a variety of flavours and, in fact, was prone to many
terminological nuances understood to have far-reaching implications in the
intellectual debates of the time. But the inevitable ideological confines of MarxistLeninist social philosophy were such that nothing methodologically or conceptually
new could emerge. The trouble with this situation became apparent to legal
theorists even in the 1980s.
Conclusion: new Post-Soviet Philosophies
 Perestroika in the 1990s spurred a true flurry of intellectual activity among Russian
theorists of law, who rushed to package conceptions of their own. Some of these
theorists took into view the development of legal philosophy across the world and
unwittingly repeated the commonplaces: Their ‘new’ schemes therefore turned out
to be ineffectual, failing to contribute anything either original or useful to a
worldwide debate.
 The majority of legal philosophers instead chose not to stray from their course,
discarding the precepts of Soviet ideology but keeping the rest; thus working on
traditional Soviet dogmatic jurisprudence. This strategy is still apparent in most
textbooks on legal theory reproducing the theoretical schemes of the Soviet era
and investing them with new ideological content (human rights, freedoms,
democracy, etc.). As far as concerns theorists in the other camp, those who have
embraced the new, their numbers are growing; they are striving to keep pace with
the development of legal science across the world.