Post-Soviet legal philosophies in Russia (with some comments about Soviet legal theory)

1. Post-Soviet legal philosophiesin Russia (with some comments about Soviet legal theory) Guest lecture at Law Faculty of University of Tartu, 9th of November, 2012 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 The author’s position does not necessarily correspond to the official position of National Research University “Higher School of Economics”

2. 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.

3. Ideological constraintsand 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”.

4. 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 and 1980s saw quite much sociological research being applied to law (particularly in criminology).

5. 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

6. 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 (!?).

7. 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).

8. A succinct analysis of concepts from principal contemporary Russian authors of 90s (with parallels with the ideas of Western legal thinkers) Libertarian theory of law in Russia. VladikNersesjants and his school, its relation to the renewed natural law school and the American libertarianism 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?

9. Libertarian theory of law 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. 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).

10. 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.

11. 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.

12. 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.

13. 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.

14. Theory of legal communication and dialogical conception of law Legal communication: the theory of Andrei Poliakov, and the theories of Jurgen Habermas, Werner Krawietz, Mark Van Hoecke and Lon Fuller Contemporary developments of Saint-Petersburg School ____________________________________ Dialogical conception of Ilya Chestnov, the critical legal studies, and postmodernist theories of law

15. Legal communication: theory of Andrei Polyakov and theory of Jurgen Habermas A. Polyakov’s conception J. Habermas’ conception 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. • 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.

16. 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.

17. 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).

18. 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 Marxist-Leninist 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.

19. 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.