Author: Vladimir Karpets

Translator: Yulian Orlov

 Zavtra no. 27 (920), 6 June 2011

Neither in Soviet times nor today has our government learned to “speak Russian” (and the origins of this event lie in the 17^th-18^th centuries). This is the root cause of its deep inconsistencies with the elements of Russian life that have encompassed the entire history of the last few centuries. We will not mince words: when at the House of Soviets in 1993 General Makashov yelled “there will be neither mayors nor peers, nor…!”, he was very much right in essence, if not so much in form [1]. The problem is not with “Soviet” structures (as even seemed to be the case in 1993) but in the great difference between the thousand-year (and even older) paradigm of Russian statehood and the Euro-Atlantic political-legal system that was forced upon us after 1991.

The term “reception of law” is commonly used in historical legal science to name the adoption of Roman law and its separate postulates in medieval Europe, an event which led to the formation of modern European law. This was a natural and organic progress, seeing as Roman and European law (as well as the Western-European model of state) were formed under conditions in which property was considered to have primacy over the state. We also had a “reception of law” – an alien law. This process began roughly in 1987 and ended with the adoption of a European-style Constitution in 1993. However, immediately after this “reception”, a flagrant discrepancy between legal forms and “real life” was found, which led to “legal anarchy” on the one hand and “legal nihilism” on the other [2]. The discrepancy between the “law” and “concepts” is a clear marker of our lives. Turning the Russian man into a “law-abiding taxpayer” in the Western sense of the term is just as much a utopia as “communism” was.

A system of law springs forth from organic, popular experience [3]. The eminent Russian legal scholar N. N. Alekseev (1879 – 1964) pointed to an “internal, organic fusion of rights and duties.” Within it, the law is saturated, so to speak, with duty and duty with law. Whereever there is a law that is separate from duty and a duty that is separate from law, we see that what could best be described by the term “legal duty” [4]. Such a fusion was upheld by some representatives of the German organic school. In Russia, it was developed by the Slavophiles [5]. It was favoured by Dostoevsky and written about by P. I. Novgorodtsev, who was partial to the same line of thought [6]. This is what S. L. Frank implies when he says that “no human right has an immanent moral force” [7]. It is interesting that a lot was written about the “unity of law and duty” in Soviet times; however, Marxist scholasticism destroyed the beginnings of an organic philosophy of law.

The concept of “legal duty” by itself can also be used to found a theory of state and law, above all one of the Russian state. Had this road been taken during the process of the abandonment of communist dogma at the end of the ‘80s, we would have succeeded in avoiding many disturbances. Instead, we saw a recycling of the “division of powers”, the “Rechtsstaat [8]”, “civil society” etc., which have no correlation whatsoever to historical reality or even the classics of political-legal thought, including Aristotle, who said: “power is unified and monadic, it cannot be separated: power either is, or it is not.” If government (including local self-government) is divided, we must use this as our starting point, not something else. “Civil society” is purely “cosmopolitan”, “bourgeois”, it has no place for farmers, soldiers, or craftsmen. The “Rechtsstaat” is drivel, as law as such can only be confirmed by a state.

Property holds precedence in Europe. This is the European and later the American path. On the Russian developmental path of state and law, authority always holds precedence over property. It cannot be any other way on our vast expanses. Russia’s historical experiences attest to a practically unchanged system of state structure, a system that has only changed its “signs and leaders.” Short periods of chaos and collapse are capped off by the return of a strong, individually led government [9] that is supported by the military-draft estate; however, this government is successful only when it accounts for the demands of the worker estate over the head of a “bureaucratic mediastinum.” In the opposite case, Russian governmental structures begin to rot and lose their grip on power. A new time of troubles begins.

“In the Muscovite state, political order was founded on an apportionment of duties, not equal rights between all classes.” – N. N. Alekseev wrote. – “The theory of natural law is entirely alien to our history, as well as ideas about the state as a trading company founded on a multitude of independent and unrelated property owners… We did not develop in ourselves the Western technique of executing of negative and conditional duties, we have not been firm in our respect for property or in our execution of agreements; at the same time, however, we have not developed our own system of law in the direction of principles of legal duty and we have even lost much of what was established in the Muscovite era. We were supposed to turn into a society of property holders and our state into a system of rule based on free contracts. However, our people did not accept this program.”

Today, we must above all else engage in a “correction of names.” If we do not understand our state-legal “affinity” and if we do not give it a name, we will finally lose our statehood, and finally ourselves as a people with it.

 

Translator’s notes:

[1]: Albert Mihailovich Makashov (b.1938) is a former Soviet colonel general and opposition politician. He has been put forward multiple times as a candidate for the post of president of the Russian Federation. The event referred to here is the September 1993 political confrontation between then President Boris Yeltsin and the Russian parliament. Yeltsin attempted to rewrite the constitution to give himself more power, as well as dissolve the country’s legislative branch (then still called the Congress of People’s Deputies and the Supreme Soviet). Both institutions refused to acknowledge the president’s actions as legitimate and moved to impeach him, declaring then vice-president Aleksandr Rutskoy to be acting president. The situation deteriorated even further in October, and large-scale street fighting between supporters of the Soviet and police and military forces broke out. On October 4, Yeltsin ordered the Russian Army to storm the Russian parliament building and arrest the ringleaders of the resistance. All in all, at least 187 persons were killed during the fighting in Moscow. It is interesting to note that many future Eurasianists participated in the defence of the Russian parliament building (most notably Aleksandr Dugin) or the street fighting on the side of various opposition movements.

[2]: “Legal anarchy” refers to a climate of extremely loose legislation and heavy abuse of the law by all members and institutions of society. Russia lived through such a period during the 1990s and early 2000s. “Legal nihilism” refers to a climate of silent deference of weaker members of society to members holding power over them because of their legal dominion. Such a situation arguably developed during Putin’s second term and continues to this day.

[3]: The Russian word used here, pravo (право) can simultaneously mean “law”, “right”, or “legal system” and cannot be accurately translated in this context. I have substituted “system of law” as the word’s closest English-language analogue.   

[4]: The Russian word pravoobyazannost’ (правообязанность) does not have an analogue in English. A very direct translation would be “legal dutifulness”; however, to preserve the flow of the text, I have chosen to translate it here simply as “legal duty”.

[5]: The German organic school was a movement in legal philosophy that originated with the work of Karl Christian Friedrich Krause (1781 – 1832), whose philosophy (later nicknamed “Krausism”) was largely overshadowed by Schelling and Hegel. The main takeaway of his teachings is that rights and the law must embrace the existence of nature, humanity, and reality. The Slavophiles were a movement of predominantly Russian social, political, economic, and cultural thinkers. One of the main points of their thought was sobornost’ (соборность), which posits that man can only become what he is through cooperation and in a community, as opposed to the Western view of man becoming what he is through developing his individuality.

[6]: Pavel Ivanovich Novgorodtsev (1866 – 1924) was a legal scholar, philosopher, and liberal politician. A long-time member of the constitutional democratic (Kadet) party, Novgorodtsev fought with the whites in the Russian Civil War and was eventually forced to leave the country. His main work is History of the Philosophy of Law, which has not been translated to English.

[7]: Semyon Lyudvigovich Frank (1877 – 1950) was a Russian Jewish philosopher who later in his life converted to Christianity. In his work, he mainly sought to synthesise rational and religious modes of thought. Several of his works have been translated into English. 

[8]: Rechtsstaat is a German concept that can best be translated as a “state founded upon law”; that is to say, a state that derives all its authority from the law and never abuses or oversteps any laws.

[9]: The Russian word used here (единоличный) only has the meaning of “individual” in a non-direct sense and does not imply that the state is somehow individual among other states; rather, it means that the state is ruled and led by a single person.