Comparative Culture and Historical Study on Anti-legal Social Order in Russia

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1. Discovering "anti-legal" social order in RussiaIn the West, where "Positivierung des Rechts" (N. Luhmann) had been acomplished until the end of the nineteenth century, jurists-comparatists, for example R. David, have developed a tendency to regard social sphere, which is not regulated by positive law, as sphere of customary "law". However there was neither positive law nor customary law, but "pre-legal" or "anti-legal" order, i.e. social order formed by a kind of relative situation ethics, in pesant communities of the nineteenth century Russia. This "anti-legal" order became cinstitute a basic component of socio-political, or so-called "legal" order of the soviet socalism.The problem of non-legal order first was mentioned by J. Carbonnier and Ichiro Kitamura with the term "non-droit".2. Overcoming the M. Weber's sociology of lawM. Weber in his "Sociology of Law" dealed "anti-legal" social order in russian pesant communities as "status law" (Sonderrecht). Weber's sociology of law nowadays may be criticized from the viewpoint of methodology of law as a kind of "reversed orientalism".3. Discovery of "anti-legal" Russia by J.-J. RoussseauRousseau in his "Socal Contract" wrote : "Russia shall never be civilized" (Book II ch.8).His argument may be newly interpreted from the viewpoint of avove-mentioned "anti-legal" social order in Russia.