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Russian Law Journal

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Vol 5, No 4 (2017)
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https://doi.org/10.17589/2309-8678-2017-5-4

Articles

8-42 347
Abstract

International law can be viewed as a project of exclusion and inclusion of events and ideas into its  narrative. Some shake the pillars of international law, while others, influence its progressive  development. Widespread wars and revolutions and events and ideas behind them occupy special  place in this project: they expose irregularity in the system and at the same time may threaten its  existence. The immediate and long-term effects of such events on international law can only be  seen with a passage of time. The 1917 Russian Revolution marking its 100th anniversary this year  is an illustrative example to this statement. Though it did not end to be the event in international  law when the soviet law as predicted by some Soviet scholars replaced bourgeoisie law, it  significantly contributed to disseminate ideas that laid foundation of the general international law.  Though in post-revolutionary context Soviet Russia advanced different radical approach to  universal social and economic justice and criticized the pre-existing international law, international  law remained resistant to extremes and capable of encompassing constructive ideas. The most  spectacular example of this approach is Soviet attitude towards equality of states – one of the  main international law axioms and utopias and at the same time a cornerstone of Marxism- Leninism theory – and Russia’s early attempts to give it more precise legal meaning. This article  briefly describes the bumpy way that this principle undertook before the Russian Revolution, to  depict the background against which Soviet Russia started to advance its understanding of  equality, in some sense, picking up and developing the ideas of the 1789 French Revolution. It  further considers the meaning, that the early Soviet doctrine attached to equality and concrete  legal mechanisms through which the Soviet approach was translated into international law,  specifically focusing on the works of Vladimir Lenin. The article then studies the actual early soviet  international law practice, through the lens of predominant soviet theoretical approaches. Two conclusions are made: Marxism-Leninism had limited impact on the Soviet early practice of  international law (1) and inconsistent application of principle of equality in the postrevolutionary context should not lead to its complete disregard (2). To the contrary, it is here argued that the  Revolution has been influential in the democratization of international law by developing the  following legal dimensions of the equality principle. First, it restated equality in the terms of status,  meaning equality in acquisition and exercise of rights (1). Second, it helped to eliminate  “dual standards,” which meant the cases where a state could treat one state as dependent and the  other – as independent (2). Third, it projected the concept of states’ equal rights to nations and peoples (3). Finally, in the early Soviet Russia practice, the idea that states have equal rights  stopped to be confined to any group of states, as compared to international law at that time. To  the contrary, it implied equality between all states, even in relations between socialist and capitalist states, thus helping in long-term perspective to abandon “civilization test” (4).

8-42 178
Abstract

International law can be viewed as a project of exclusion and inclusion of events and ideas into its  narrative. Some shake the pillars of international law, while others, influence its progressive  development. Widespread wars and revolutions and events and ideas behind them occupy special  place in this project: they expose irregularity in the system and at the same time may threaten its  existence. The immediate and long-term effects of such events on international law can only be  seen with a passage of time. The 1917 Russian Revolution marking its 100th anniversary this year  is an illustrative example to this statement. Though it did not end to be the event in international  law when the soviet law as predicted by some Soviet scholars replaced bourgeoisie law, it  significantly contributed to disseminate ideas that laid foundation of the general international law.  Though in post-revolutionary context Soviet Russia advanced different radical approach to  universal social and economic justice and criticized the pre-existing international law, international  law remained resistant to extremes and capable of encompassing constructive ideas. The most  spectacular example of this approach is Soviet attitude towards equality of states – one of the  main international law axioms and utopias and at the same time a cornerstone of Marxism- Leninism theory – and Russia’s early attempts to give it more precise legal meaning. This article  briefly describes the bumpy way that this principle undertook before the Russian Revolution, to  depict the background against which Soviet Russia started to advance its understanding of  equality, in some sense, picking up and developing the ideas of the 1789 French Revolution. It  further considers the meaning, that the early Soviet doctrine attached to equality and concrete  legal mechanisms through which the Soviet approach was translated into international law,  specifically focusing on the works of Vladimir Lenin. The article then studies the actual early soviet  international law practice, through the lens of predominant soviet theoretical approaches. Two conclusions are made: Marxism-Leninism had limited impact on the Soviet early practice of  international law (1) and inconsistent application of principle of equality in the postrevolutionary context should not lead to its complete disregard (2). To the contrary, it is here argued that the  Revolution has been influential in the democratization of international law by developing the  following legal dimensions of the equality principle. First, it restated equality in the terms of status,  meaning equality in acquisition and exercise of rights (1). Second, it helped to eliminate  “dual standards,” which meant the cases where a state could treat one state as dependent and the  other – as independent (2). Third, it projected the concept of states’ equal rights to nations and peoples (3). Finally, in the early Soviet Russia practice, the idea that states have equal rights  stopped to be confined to any group of states, as compared to international law at that time. To  the contrary, it implied equality between all states, even in relations between socialist and capitalist states, thus helping in long-term perspective to abandon “civilization test” (4).

43-68 274
Abstract

Socialist legal theorists claimed they introduced a new paradigm of (criminal) law. To verify or  falsify this claim, the article is searching for specificities of socialist criminal law. Out of numerous  East-European countries, Czechoslovakia was taken as an example here. There, the new regime in  1948 had already simplified the entire criminal justice system. Other major changes, still  influencing the legal system in Slovakia (a descendant of Czechoslovakia) nowadays, include the  introduction of: lay judges, protective measures as new forms of sanctions, material understanding (dangerousness) of the criminal offense, and the increased role of public prosecution. On the other hand, since the 1960s, the formalistic approach to (criminal) law was adopted in Czechoslovakia, becoming a characteristic feature of criminal law in the whole Eastern Bloc, just  like in Western Europe. Therefore, it seems that despite some minor differences between socialist and capitalist criminal law, these do not actually represent contradictory paradigms of criminal law. Should any paradigm shift in its proper (Kuhnian/Foucaultian) meaning be seen in  the socialist countries, rather a more general paradigm shift might be proposed: the socialist  society could namely be seen as a potential precursor to a post-modern “control society” (replacing the previous “disciplinary society”), due to the omnipresent control by Communist Party structures.

69-92 370
Abstract

In the Russian Empire, family law did not constitute an independent area of law and was a part of  civil law. Family relations were handled by the church. Divorces were hard to get and disapproved  of by the church and society. The status of illegitimate children was disfavored; they were not  allowed to have the birth status of their mothers or her last name, to inherit the property of the  mother and her relatives, nor were their mothers and relatives allowed to inherit from them.  Illegitimate children had no right to the father’s financial support or property and could not inherit  from him. The Bolsheviks addressed the issue of family law immediately after coming to power in  1917. Their main goal was to repeal pre-revolutionary regulations and to discontinue the Russian Orthodox Church’s leading role in handling marriages and divorces. The first efforts undertaken by the Bolsheviks in the realm of family law were remarkably progressive, namely simplification of the procedures of marriage and divorce, providing women  with many rights that were non-existent before October of 1917, elimination of the concept of  illegitimacy, and granting the children of unmarried couples rights equal to those of children of  officially married parents. In 1920, Soviet Russia became the first state to legalize abortions. Sadly, most positive developments of the early Bolshevik years disappeared in the 1930s–1940s.  Family law followed the general pattern of escalation of repression and strengthening of regulations.

93-107 255
Abstract

The aim of this paper is to show how the Marxist conception of ownership was introduced in Poland  after World War II, and how it was then removed. The paper shows also to what extent the regulations introduced in Poland were different from the ones in force in the Soviet Union. In particular, the provisions of the Constitution of the Polish People’s Republic of 1952 and the Civil Code of 1964 are  elucidated. The author points out that contemporary Polish courts sometimes question the legal  meaning of some civil-law institutions from the period of 1944–1989.

108-128 337
Abstract

The article aims to describe the dynamics and characteristics of Russian law throughout 1905–1917  Revolutions. It considers how Russian law survived through the gradual breakdown of the autocratic  state. The resilience studies’ approach is introduced to the study of the continuity of the Russian legal  tradition. A fresh outlook of the resilience framework allows to answer the main research questions:  how did the legal system of the Russian empire lose its equilibrium in the beginning of the 20th  century and what resources were exploited in order to make Russian law work for the Soviet state and people?

129-150 423
Abstract

This article seeks to explain the enduring effect of the Soviet Union and its founding principles  upon arbitration in the former Soviet space. It does so by reference to the Soviet Union’s attitude  towards – and contribution to – the development of arbitration, analysed in three stages: pre- 1917, post-1917 and in the post-Soviet space. As part of that analysis the article considers what  rights were being arbitrated in the absence of private rights that would otherwise be readily  recognisable within an overtly capitalist jurisdiction. After analysing the Bolsheviks’ attitude to  arbitration, the article seeks to explain that a by-product of the distinctive goals of the USSR was a focus on arbitration as a mechanism for dispute resolution and to demonstrate how arbitration was a necessary component of the Soviet economy, developing as a tool through the arbitrazh tribunals and Moscow Convention 1972, both of which led to a two-track system which encouraged international arbitration but downplayed its significance at the domestic level. The article then  seeks to explain the impact of the Soviet Union’s approach to commercial arbitration upon modern  arbitration in the post-Soviet space. A study of Russia, the CIS and the former Republics  demonstrates the lasting impact of Soviet theory and practice on the post-Soviet arbitral environment.

151-192 259
Abstract

The article offers a comprehensive overview of academic views on the strategy and issues of the  legal regulation of the Soviet state standardisation system as it formed and evolved. The USSR had a ramified system of legislative acts and codes of practice that thoroughly governed all aspects of quality and safety assurance across all stages of the product lifecycle. They were collectively known as the state system of standardisation. Yet at the turn of the 21st century, this system was largely dismantled under the influence of economic liberalisation ideas, and its underlying documents lost their binding nature. Russia is currently phasing out of the so-called “market romanticism” period shaped by the idea of minimal state interference in the economy, when any imperative provisions of public law specific to the economy were perceived as administrative hurdles. We are witnessing the emergence of a new mechanism of state control over the Russian economy – one based on the principles of the optimisation of state regulation of economic activity. One of the manifestations of this process involves rebuilding the Russian standardisation system on a new footing. Making this process more effective calls for revisiting the Soviet experience and exploring both its strengths and pitfalls. The article looks into the origins of standardisation in Russia, the key milestones in the history of Soviet standardisation, and the relevant legal regulation. Particular attention is devoted to how state standardisation institutions were established and how changes in the system of state agencies having jurisdiction over the matters of standardisation have influenced the efficiency of this system. The distinguishing features of the Soviet standardisation system, compared to those of other countries, are identified for each stage of system formation  and evolution. A fair amount of attention is given to an analysis of the Soviet paradigm of state regulation of the economy, as well as its historical and ideological underpinnings and key aspects. The way standardisation has been influenced by this paradigm, along with other paradigms implemented in Russia in recent decades, is analysed. Correlations are drawn between  specific aspects of the Soviet paradigm of state administration of the economy, legal issues of  standardisation in the USSR and issues of Russian standardisation. The study was undertaken to  explore the idiosyncrasies of the Soviet standardisation system attributable to the specifics of the  entire economic, administrative, and legal system and ideology of the USSR. This will help identify  the positive aspects of this system that were undeservedly discarded upon the transition to the  new economic conditions, along with the unresolved legal issues that stand in the way of an effective standardisation system in the Russian Federation. The study explores standardisation  issues through a systemic and structural analysis of Soviet standardisation laws in conjunction with Russian and international legislation and practices. It incorporates a critical review of the major findings of academic and analytical studies focusing on standardisation issues. The study calls for  an integrated approach that is indispensable to exploring the conditions under which the Soviet standardisation system formed and evolved in conjunction with changes in the academic community’s perception of the legal nature of standards. A comparative law study of international  experiences concerned with the regulation of standardisation issues primarily focuses on the  legislation of the biggest economies. This made it possible to draw a general correlation between the evolutionary trends and specifics of the Soviet standardisation system and the corresponding  systems in these countries. The legalistic, systemic and structural, comparative law, and historical  law methods of study helped determine the optimal course for legislative improvements in this field.

193-212 377
Abstract

The article is a comparative analysis of the intellectual biographies and the creative heritage of two  thinkers, Pitirim Sorokin and Mikhail Reisner, who left a notable mark on 20th century legal,  sociological and philosophical thought. The choice of these personalities is largely due to their  diametrically opposed reaction to the 1917 revolutionary events in Russia, which decided their  destinies and had a direct impact on the nature and content of their theoretical research. The  article examines the facts of the thinkers’ pre-revolutionary biographies which preceded the  paradox of the choice made by each of them: Reisner’s gilded childhood and youth did not prevent  him from supporting the revolution, in spite of its horrors, while the poverty and adversities  suffered by Sorokin from an early age turned him into a tough and uncompromising opponent of  the revolutionary chaos and the Bolshevik reforms. The article pays special attention to the  theoretical difference between the thinkers’ positions as well as the philosophical ideas and moral  beliefs embodied in their legal and sociological conceptions. The role of the schools of thought in  the formation and development of their theoretical views, mindset and ideological attitudes is  traced. The strong connection between the scientific traditions and academic fields is shown and the magnitude of the influence of Reisner’s and Sorokin’s teachers and spiritual guides (Jellinek, Kovalevsky and others) is defined. Arguments are provided for the theses on the essential nature of influence of ontological assumptions and methodological preferences in the  scientific and theoretical formulations of Sorokin, who supported of the primacy of social reality,  and Reisner, who adhered to the primacy of unwritten law.  A common thread running through the  entire analysis is the theme of subsequent reflection over the country’s fate after, and the truth of,  the revolutionary changes by these two very dissimilar authors, who became contemporaries and  participants in one of the most significant events of the 20th century, an event changed the course of global history. Yet, both authors, whose contribution to the development of the sciences on  society and law is beyond any doubt, give substantial grounds for comparative analysis of their ideas, assessments and views. So different in their reaction to what was happening, in their young  years they were expecting the revolution with equal ardency, they were looking forward to the  destruction of the old world and the creation of a new, more rational and, of course, fairer society  in its place. Both of them were influenced by the ideas of European enlightenment during their  education, both were full of hopes for Russia’s progressive development. Both Pitirim Sorokin and  Mikhail Reisner would later give up most of the illusions of their youth, each of them would  overcome positivism in his own way and each of them would make his choice in favor of certain  ideals while having – certainly – to sacrifice the other ones. What would affect the choice of these  two outstanding scientists, what would predetermine their intellectual and value-related preferences? One might try to find the answer to this question both in the circumstances of their  destinies and in the peculiarities of their research biography.



ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)