Comparative Legal Culture Research on the History of Constitutionalism : Sovereignty and Ownership in Russia and the West

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The major portion of written law in Imperial Russia was formulated as The Russian Imperial Law. Code (svod)' in the first half of the 19th Century. Although the terminology in the legal codeborrowed largely from French and German law, its conceptual structure was different. This fact is clearly revealed in the pluralistic system of owner ship institutions (in the code the institution of 'state ownership', so to say quasi-public law institution which grew fat later under the socialist system, and the 'private' and many other ownership institutions came to coexist) and the autocratic and unlimited' character of the monarch's authority. The logical structure of this written law is qualitatively different to the peculiarly Western European concept ofownership('la garantie des droits') and political power ('Ia se'paration des pouvoirs'), so ideally and combinably expressed in Article 16 of the French Declaration of Human Rights, to the extent that it does not have the capacity to develop th … More ese concepts (it has the structure of what David terms 'law of administration').Such development was suppressed by 'the yoke of the Tartars' for two and a half centuries, as were non-Western characteristics conceived externally to Russian law, such as the tradition of Cannon Law in the Latin Church and thelegacy of Southern European classical anti-quity, especially the legacy of Roman law. Socialist law was formulated within the lineage oftraditional Russian low.The problem is, however, not only that the structure of the legalorder to be found in written law possesses 'administrative' characteristics. The peasants who made up over ninetypercent of the Imperial Russian population, lived under communalcustoms which had a character of compulsory ('leiturgisch' according to M.Weber's terminology) organisation and the selfish ('unlimited') jurisdiction of the local nobility, as demonstrated by the reality of the Peasant Court set up con-currently with the liberation of peasants in 1861. These communal customs are often referred to by Russian academics and Western scholars as 'customary law' or 'popular law', but as shown by a survey into the actual conditions of the work of the Peasant Court, inreality it did not exceed the norms of a non-legaland non-positivetype of situation ethics (in this way it corresponds to **(qing-li), i.e. 'human sense and reason' found in traditional Chinese law). In other words, written law as 'law of administration' and the legal'vacuum' (order outside of the law)found in Imperial type of society coexisted. The socialist system of quasi-public ownership institutions and Communist Party dictatorship (denial of popular sovereignty on the facts), accorded with this traditional structure of Russian social order.The popular viewpoint held by comparative legal scholars that Sovietlaw and subsequently today's Russian law, falls within the Continental law genealogy, is but one aspect of the state of affairs hinted at in the social order of Russia. Nowaday, we can clearly no longer regard Soviet law characterised as mere 'socialist law' as being a abolition form of capitalist law ('Western modem law). Moreover, viewed from the above angle, the current state of Russian law also suggests the need for a major reconsideration of the extant legal systems theory framework. Less