Abstract
This chapter aims at examining the development in Imperial Russia of the scholarly debate about the concept of pravovoe gosudarstvo, usually understood as the counterpart of the notions of the rule of law and Rechsstaat. The time span taken into consideration covers the years following the judicial reform of 1865 up to 1915. In fact, the crucial moments of the debate came immediately before and after the introduction of the 1906 Constitution. Since the notion of pravovoe gosudarstvo is developed much more in the legal scholarship of the period, rather than in the practice of law, this chapter is based largely on the scholarly works of that time. Over time, however, the notion has aged and withered away. Even before it was fully developed in the political sphere, confidence in the Western model of a state based on the rule of law was undermined by new doctrines such as the sociological analysis of law and Marxist scientific materialism, which resolutely attracted the Russian intelligentsia at the turn of the century. The impossibility of setting the doctrinal concept of pravovoe gosudarstvo into action because of the fiasco of the 1906 Constitution, led to a rapid impoverishment of liberalism. At the turn of the century, the faith of old liberals, such as Boris Chicherin, in the pravovoe gosudarstvo was replaced by hopes for a state that was not only pravovoe, but also, and above all, fair (spravedlivoye).
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Notes
- 1.
See Otto Mayer, Deutsches Verwaltungsrecht 2 vols. (Leipzig: Duncker & Humblot, 1895–1896).
- 2.
For example, Walicki refers to rule of law, pravovoe gosudarstvo and Rechtsstaat as synonyms. See for example Andrzej Walicki, Legal Philosophies of Russian Liberalism (Oxford: Oxford University Press, 1987), pp. 366, 423–424.
- 3.
In his study of the notion of pravovoe gosudarstvo, Kotlyiarevskiyi, a major Russian liberal theorist, wrote: “Pravovoe gosudarstvo belongs to the world of ideas [otnositsya k miru idei]. It is an idée-force, and the dogmatic scholar is entitled to pay it no attention whatsoever. The dogmatic scholar feels rightly that if he starts to think about pravovoe gosudarstvo, he will inevitably be led into the sphere of morality, philosophy and history: somewhere beyond the boundaries of ‘yurisprudentsiya’ as such”. Sergeii Andreevich Kotliarevskii Vlast’ i pravo, Problema pravovogo gosudarstva (Moskva: Leman & Sakharov, 1915), p. 44. On Kotlyarevsky, see Randall Poore, “Sergei Kotliarevskii and the Rule of Law in Russian Liberal Theory”, Dialogue and Universalism, no. 1–2, 2006, p. 81.
- 4.
See Samuel Kucherov, “Indigenous and Foreign Influences on the Early Russian Legal Heritage”, Slavic Review, 1972, p. 2–23; Emile Haumant, La culture française en Russie (Paris: Hachette, 1913).
- 5.
Soviet hostility towards pravovoe gosudarstvo was rooted in the idea of rule of law as a typical element of bourgeois ideology. See Boris Mikhailovich Lazarev, Chto takoe pravovoe gosudarstvo? (Moscow: Znanie 1990).
- 6.
According to Leontovich, the history of liberalism in Russia is the history of law. See Victor Leontovich, Histoire du liberalisme en Russie (Paris: Fayard 1986). A prior edition in German appeared in 1957: Victor Leontovich, Geschichte des Liberalismus in Russland (Frankfurt am Main: Klostermann 1957). See also, Richard Wortman, The Development of a Russian Legal Consciousness (Chicago: University of Chicago Press, 1976).
- 7.
See Walicki “Legal Philosophies of Russian Liberalism”.
- 8.
Wortman notes that after the December uprising “the teaching of Natural law was banished from law faculties and the students were to occupy themselves instead with the mastery of details of Russian legislation”, Wortman “The Development of a Russian Legal Consciousness”, p. 43, n. 12.
- 9.
Walicki “Legal Philosophies of Russian Liberalism”, pp. 33 and ff.
- 10.
Walicki “Legal Philosophies of Russian Liberalism”, p. 153.
- 11.
Chicherin was conscious of the severance of his work from the spirit of the time and attributed it to the crisis of Russian legal consciousness. On Chicherin, see Gary Hamburg, Boris Chicherin and Early Russian Liberalism (Stanford: Stanford University Press 1992).
- 12.
Jan Gorecki, Sociology and Jurisprudence of Leon Petrazycki (Chicago-London: Urbana University Press, 1975).
- 13.
“In defining law as the enforceable minimum morality”, writes Walicki, “Soloviev was of course endorsing the use of external compulsion by the apparatus of the state. In doing so he was consciously challenging Tolstoy’s view that moral good is incompatible with the use of force. Without a socially enforceable minimum morality, he argued, all striving towards higher moral values would simply be impossible”. Walicki, “Legal Philosophies of Russian Liberalism”, p. 201.
- 14.
George Langrod and Michelina Vaughan, “The Polish Psychological Theory of Law”, in Joseph Wagner Wenceslaw (ed.), Polish Law Throughout the Ages (Stanford: Hoover Institution Press, 1970), p. 299.
- 15.
Gianmaria Ajani, “The Transplant of Vague Notions”, in I. H. Szilagyi and M. Paksy (eds), Ius Unum-Lex Multiplex-Festschrift in Honour of Zoltan Peteri (Budapest: Tarsulat, 2005), p. 17.
- 16.
The political documents of the liberal movement between 1902 and 1905—see, for example, the journal Osvobozhdenie edited by Struve in 1902—refer to pravovoe gosudarstvo as a concept not merely confined to the acknowledgement of civil rights, but also including institutional reforms, such as the supremacy of the representative assembly, the parliamentary control over government, the civil and criminal liability of civil servants for violation of the law, the independence of judges. See Vladimir Matveevich Gessen, “Teoriya pravovogo gosudarstva”, Politicheskiy stroy sovremennykh gosudarstv: Sbornik statey, vol. 1 (Sankt Petersburg: Izd. kn. P.D. Dolgorukova i I.I. Petrunkevicha pri uchastii redaktsii gazety “Pravo”, 1905), p. 135.
- 17.
Gosudarstvennaia Duma. Stenograficheskie otchety, II Duma (vol. 1, col. 107, March 1907) quoted in Peter Waldron, Tsarism and Civil Rights after 1905, working paper presented to the National Assembly for Soviet and East European Studies Annual Conference (New York: 1984).
- 18.
Marc Szeftel, The Russian Constitution of April 23, 1906: Political Institutions of the Duma Monarchy (Brussels: Librairie Encyclopédique, 1976).
- 19.
See the rules on the position of religious minorities (April 1905), the “temporary rules” on the right of association (March 1906), and the rules providing the abolition of preliminary censorship (1905–1906). See William Butler, Russian Law (Oxford: Oxford University Press, 1999), pp. 59 ff.
- 20.
Pavel Novgorodtsev, Krizis sovremennogo pravosoznaniya (Moskva: Tipolitogr. t-va I.N. Kushnerev i K., 1909).
- 21.
Aleksandr Dmitrievich Gradovsky, Gosudarstvennoe pravo vazhneishikh evropeicheskikh derzhav, 2 vols. (Sankt Petersburg: Tipolitorg M.M. Stasyulevicha, 1885).
- 22.
Pavel Novgorodtsev, “Krizis sovremennogo pravosoznaniya”.
- 23.
“Nineteenth-century legal positivists, such as Austin and Bentham, Pollock and Bryce, abandoned the idea of royal absolutism but remained faithful to the doctrine of stat e absolutism, transforming it into a doctrine of unlimited sovereignty, according to which the state, irrespective of its form, is the only source of law, wherefore its power cannot be legally limited. It is usually limited in practice by the balance of forces or by the power of tradition, but not by the rights of the individual […]. English jurists could afford to ignore the problem of the legal limits of state power, because the power of the British Government was limited by the facts of life and nobody felt threatened by it. Nevertheless, theories have their own autonomous logic and the logic of the English variety of legal positivism has been extremely dangerous and destructive”. This synthesis of Novgorodtsev’s opinion of the problem of the rule of law model is reported in Walicki, “Legal Philosophies of Russian Liberalism”, p. 313, with reference to the article by Pavel Novgorodstev, “Gosudarstvo i Pravo”, Voprosy filosofii i psikhologii, no. 4, 1904, p. 397 (emphasis added).
- 24.
Historical analysis leads Kistyakovskiy to deny the foundations of normativist theories. His idea is that the concept of “unlimited sovereignty” is relatively recent in that, in origin, law and the institutional forms of social organizations were two independent phenomena.
- 25.
Bogdan Kistyakovskiy, “Gosudarstvo pravovoe i sotsialisticheskoe”, Voprosii filosofii i psikhologii, no. 5, 1906, p. 469.
- 26.
Ibid., p. 470.
- 27.
Ibid., p. 486.
- 28.
Ibid., p. 492.
- 29.
Ibid., p. 498.
- 30.
Ibidem.
- 31.
Ibid., p. 506.
- 32.
See Mary McAuley, Human Rights in Russia: Citizens and the State from Perestroika to Putin (London-New York: I.B.Tauris, 2015), pp. 302 ff.
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Ajani, G. (2019). Russian Liberalism and the Rule of Law: Notes from Underground. In: Cucciolla, R.M. (eds) Dimensions and Challenges of Russian Liberalism. Philosophy and Politics - Critical Explorations, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-030-05784-8_2
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