evolution of representations about sources of law in domestic jurisprudence XIX - the beginnings of the XX-th centuries

Consideration of essence of sources of law is an indispensable condition of its studying in any context. In this connection, they appear in the centre of attention of the Russian researchers from the moment of origin of applied and theoretical researches of state-legal institutes in the end of XVIII - the beginning of XIX centuries In a home state and right science the opinion is standard, that at studying of history of law it is necessary

To consider representations of pre-revolutionary lawyers and at the same time to analyze system from positions of modern jurisprudence. Characteristic line of studying of sources of law in pre-revolutionary Russia was close interaction of an istoriko-theoretical context of such researches with applied. It has been connected by that the first representations about essence of sources of law developed among the people directly connected with their edition. Therefore various legal concepts directly influenced understanding of essence of sources of law, and, accordingly, character of their application in practice.

In carrying out of ordering of the legislation in the beginning of XIX century the historical school of the right dominated. In the foreword to Full meeting of laws of Russian empire 1832 [61], M.M.Speransky especially marked huge value which legalisations and certificates of application of the right for a historical science as they reflect a condition of legal culture of a society during the various periods of time have and, thus, are a basis of studying of history of the home state and the right. According to M.M.Speransky, «it is known, that laws represent, so to say, an internal life of the state. In them it is visible, as moral and its political forces developed, formed, increased and changed. Hence, the state history, without knowledge of laws, cannot have neither clearness, nor reliability as, on the other hand, laws without history often happen are unintelligible» [62]. That is, the source of law acts for descendants «as a monument of that century» when it has been created, and is the main source of knowledge of the state, including «of its public customs civil his life» [63].

Despite strong influence of the western school, the legal doctrine was generated in Russia in a distinct from European, specific kind.
Foreign practice of judgement of the right has received the development through a prism of own historical experience of Russia. Heightened interest to a problematics of sources of law in working out and the edition of Full meeting of laws has been caused, in particular, by domination of the historical school proving legalisation of traditional laws and orders, autocracy strengthening. Within the limits of the given concept application of legal custom as basic source of law for the majority of the population admitted necessary, subsidiary in relation to it were perceived the law and «uchene zakonovodtsev», that is the legal doctrine, necessity of which direct application not only in church, but also in secular legal relations proved one of the main ideologists of historical school K.A. nevolin. It long time was trained in Europe at F.K. Background Savini, G.Gugo who was the basic follower - the founder of historical school. Having returned to Russia K.A.nevolin mentions also other western ideas. So, it the first in the Russian legal literature enters concept of "a civil society». At this K.A.nevolin develops Aristotle and Gegel's [64] ideas, partly G.F.Puhta's considering necessary to adjust development of the right with trends of the people ideas.

The code of laws of Russian empire became result of the second stage of codification and has tested a little smaller influence of the historical school, rather than Full meeting of laws. At this time in a basis of legal technics and pravotvorcheskoj experts the is conservative-autocratic doctrine lays down. It has arisen from ideas of historical school, but in a basis pravoponimanija in it the autocratic will lays. In certain degree the is conservative-autocratic doctrine has been realised in the concept of formation of the Russian legal system. Ideologists of is conservative-autocratic school became M.N.Katkov, K.P.pobedonostsev,
L.A.Tikhomirov, etc. Subsequently, having got under influence of the legal positivism, the given legal doctrine became one of its directions - so-called etatistsky positivism.

Feature of carrying out of legal reforms in pre-revolutionary Russia was indispensable modernisation of the juridical education and bodies of university management. So, the University charter 1804 [65] provided a wide university autonomy. At the head of universities there were Councils of professors which selected rectors, knew replacement of chairs, established the schedule of educational process. Council of professors played a role of the Academic council and a university court. Besides, universities supervised over initial and average educational institutions, and also knew censorship questions. The charter 1835 [66] published right after of occurrence of the Arch, fixes management of universities to trustees of the educational districts accountable to the Ministry of national education. After election of rectors, their nominees came under now to the statement the emperor, posts of professors were displaced only after the statement with trustees of university districts. Thus, universities have lost the autonomy, and councils of professors have lost independence both in educational, and in scientific questions.

Soon after the Arch edition there is a displacement of legal thought towards natural death school. This direction has started to develop in XVIII century, and has gained the greatest distribution to 1830th the Basic representatives of the is natural-legal concept were N.A.Berdjaev, A.P.Kunitsyn, B.A.Kistjakovsky, I.A.Pokrovsk, E.N.Trubetsky, V.M.Gessen, N.I.Palienko and others. Received a new coil of development the is natural-legal concept aspired to release the right from it
Authoritative political cover and to put in its basis moral installations of the person. According to supporters of this school, the right should be based on norms of justice and the morals operating individually in each concrete case, instead of on unitary fixed positions of the law [67].

In process of weakening of positions of the is conservative-autocratic doctrine the quantity of laudatory responses about the Arch from party K.P decreased. pobedonostseva and other conservatives, also the share of critiques in its address increased. So, as a result of application of positions of the Code of laws in practice, became obvious kazualnost the majority of formulations and neudachnost the principle of formation of the Arch constituted of the isolated and out-of-date legislation XVIII - the beginnings of XIX centuries Some lawyers, including P.P.Tsitovich, spoke against class character of many positions of the Arch [68].

Pre-revolutionary researchers of the Arch marked essential blanks in section of the civil legislation: absence of some norms about wills, about guardianship, about the rights and duties in brachnoyosemejnyh relations, about easements, about the loan, about the power of attorney etc. In section of criminal laws there were not settled the relations arising from police and financial infringements, etc. [69].

There were and at all radical opinions that Arch creation was erroneous. Known jurist K.D.Kavelin wrote, that the first part of volume H of the Arch «under the maintenance Much more belongs to history of the legislation or even to archeology, than to jurisprudence» [70]. On the structure the Code of laws lagged behind the front lines of the western standard
Legal acts, strongly conceding to the Civil code of France [71], German [72] and Austrian ulozhenijam [73].

However it is necessary to consider, that during this period the domestic legal thought tested obvious western influence, the European right was overestimated and practically was not criticised. Also influence of the Code of laws on legal system development was strongly exaggerated, as for 83 % of the population [74] (basically, peasants [75]) the basic source of law was the custom, frequently, having the big validity, rather than the law.

Thus, almost right after the edition the Arch became object of discussions and polemic discussions and as a result has urged on development of domestic legal thought, and lacks of its structure and the internal logic became an occasion to perfection legal and pravotvorcheskoj the technician.

The religious-legal concept was logic continuation of ideas of the natural death. In given a case, not personal morals, but the divine law and the feelings of justice based on belief and love to near become criterion of correctness of the legal rule. The basic followers of the given school were V.S.Solovev, E.N.Trubetsky, I.V.Mihajlovsky. Supporters of a substantiation of idea of the natural death on metaphysical preconditions were B.N.Tchitcherin, B.A.Kistjakovsky, E.V.Spektorsky.

The school of the natural death throughout the development repeatedly that got weight in legal circles was exposed to the most ruthless criticism. So, in last quarter of XIX century the natural death loses the historical value, and on change to it positivism comes. As well as other legal concepts it have been apprehended a little bit later, than was extended in Europe, and was formed in Russia taking into account already developed sights at system of sources of law and pravoprimenenie. Legal positivism has arisen in O.Kont's politiko-legal doctrine and was based on Roman Law principles. For positivists the source of law is "positive", that is the real-life standard legal act, and is right there is a set of such instructions. That is statement of a question on justice of rules of law, their social nature or presence of the certain natural deaths which are not demanding standard fastening, is not correct within the limits of the given doctrine [76]. Positivism has received development in the countries of a continental legal family. At first it has proved within the limits of the is conservative-autocratic concept - etatistsky positivism. However soon the prevailing status its other form - normativizm starts to possess.

Normativisty proved possibility of that the right proceeded not only from the autocratic power. There are offers about vsesoslovnosti vessels, equality of all before the law, government representative bodies. Ideas normativizma in Russia adhered to G.F.Shershenevich, P.I.Novgorodtsev, D.D. The Grimm, N.K Rannenkampf, E.V.Vaskovsky, M.N.Kapustin, etc. In a domestic science of idea of positivism naturally developed during legal system formation on Austro-German and French samples, to get they began especially actively to Russia in 1840th, and by 1860 years school positive
The rights left on in the lead positions in a science, definitively having replaced on this field the is natural-legal concept.

As a result positivism has influenced carrying out of the judiciary reform of 1864: besides democratic transformations it has granted a new push to branch division of the right. So, the laws accepted with participation as the emperor, and other higher state bodies on the one hand gain in strength, with another - there are new sources of law the attention to the question on legal (judicial) precedent, in particular, has been brought.

Legal reform traditionally comprised changes of system of higher education. In 1863 there was a new University charter [77], on which all five existing universities (Petersburg, Moscow, Kiev, Kazan, Kharkov) have again received an autonomy which was even more considerable, than under the Charter of 1804. Rectors and professors got out and appointed now universities independently, thus the quantity of regular professors has increased in 1,5 times. Four faculties which the university has been obliged to have have been a little changed and established in a following kind: istorikoyofilologichesky, physical and mathematical, legal and medical faculties, introduction of new disciplines and opening, in this connection, new chairs also have been provided. Council of professors again found former value and became a principal organ regulating all university activity. The university court has been restored, the Charter increased monetary salaries to professors and teachers.

At the same time reform remained not finished. In particular, volost courts continued to judge peasants according to the customs [78] which had the big validity, rather than laws [79]. That is the most part of inhabitants
Empires remained out of a legal field generated by the Code of laws of Russian empire and Judicial charters 1864 [80].

Originally ideas about society as the basic source of formation of the right have arisen within the limits of positivism. So there was a concept of sociological positivism. P.L.Lavrov [81] became one of ideologists of such approach to the right nature.

In the end of XIX - the beginning of XX centuries legal positivism has undergone to a criticism wave, to the detriment of ideas developing in Russia of "the revived natural death» and the psychological concept.

During curling of democratic transformations in the end of XIX and the beginning of the crisis period in history of Russian statehood and the Russian public sense of justice as a whole, there is a phenomenon of "the revived natural death». The natural death school revives in connection with attempt to approve perceived absolute the moral beginnings in a positive law and to stabilise system of social regulation, to fall outside the limits dogmatic, historical and sociological jurisprudence which were generally empirical and indifferent to aktsentuatsii the valuable bases in the right, with aspiration to formation of complete theoretical sense of justice through a philosophical reflexion of jurisprudence and by means of absolute idea of the right to legitimation, the justification evolutionary

3 changes of operating legal system [82].

During this period, during the governmental reaction, in 1884 the new University charter [83] operating till 1917 has been published. It abolished again a university autonomy, and also limited population access to higher education. Especially dangerous was considered to suppose to
To universities of representatives of deprived classes as it led to freethinking development in student's circles. In this connection, the new Charter raised a tuition fee in average and higher educational institutions.

The sociological concept becomes alternative to "the revived natural death». One of its main ideologists, N.M.Korkunov in «Lectures on the general theory of law», having investigated various treatments of the term "source of law", suggested to understand it in technical sense, and also to distinguish from the source of law as means of knowledge or a historical monument. In technical sense it has defined sources of law, how «forms obektivirovanija the legal rules, their compulsions serving by signs in the given society and at present» [84]. That is, despite a withdrawal from positivism, adherents of sociological school understood sources of law exclusively in formal sense while followers of the is natural-legal doctrine spoke about sources of law in ideal sense.

The sociological school learns, that the law or custom in itself "do not make" the right. It is created by the people. Thereby the old Roman idea has been revived: definition of sources of law through pravotvorcheskie forces. N.M.Korkunov has offered division of the right on public and private depending on that on whose protection of interests it is directed. For it the object of legal regulation, as for normativistov, and not the subject of law-making, as for estestvennikov was primary not. For N.M.Korkunova at the heart of the right social interest lays, and the right urged to satisfy it. M.M.Kovalevsky was one more active follower of sociological school, it has adopted N.M.Korkunova's many ideas and continued to defend them in the works in 1910th years. He paid, in particular, attention that the right is formed by all participants of public relations in the state, thus everyone pawns in it the interest.

Thus, the system of sources of law as a whole is formed by public will.

One more concept which has received popularity in the beginning of the XX-th century, the psychological school became right. The basic followers - L.I.Petrazhitsky, S.A.Muromtsev. She has in many respects inherited ideas of the sociological approach, riderzhivalas formal normativistskogo understanding of the source of law, however the main basis of the right represented psychological features of people, whose interests it protects. In particular, L.I.Petrazhitsky has designated sources of law the term «the standard facts», that is the particularly "actually fixed standard instructions. The human motivation, in its opinion, exists in two forms - teleologic (it is based on correlation of the behaviour with behaviour of other people) and self-sufficing or standard (is based on belief in unconditional self-sufficing value of certain behaviour as that, without orientation to someone's opinion). As writes E.V.Timoshina, the methodology of sotsiologo-legal knowledge offered L.I. Petrazhitsky, considered a social reality as «having konstituirovannyj character - a product of emotionally-intellectual motivational processes mediated by language in consciousness of the subject» [85], that is as object of constructive activity of human consciousness. The concept had many supporters: as wrote A.A.rabbit «a current Petrazhitsky very quickly has won to itself almost a general recognition and has occupied rather steady and strong position in a modern science» [86].

Feature of all currents set forth above consisted that they not simply placed emphasis on any parties of the right, and aspired
To describe it in all integrity, to create a certain legal absolute. Each concept understood the right in own way, raznilis accordingly both opinions on a place and a role of various sources of law in legal activity. Such situation is rather typical for formed own scientific thinking. According to research of the representative of the Russian pre-revolutionary jurisprudence of A.A.rabbit, in domestic law history periodic change of two basic currents "is evident". Representatives of the first - bulgaristy [87] - approved, that is right precisely follows formal instructions of a source, according to traditions of the Roman Law. Followers of the opposite concept - martinisty [88] - understood the right as the system adapting sources to practical application, that is the different interpretation of legal acts and their free adaptation to spirits of the times supposed. The given current is based on a dissatisfaction with a current condition of the right. Martin's followers shared on supporters of the ideological approach and zhitejsko - practical. The first has found the realisation in school of the natural death, the second - in doctrine Ieringa which had distribution in the end of XVIII century. The concept bulgaristov was shown at historical school and


Positivism [89].

The judiciary reform of 1964 became considerable step on a way of development of domestic legal thought. At this particular time, in second half XIX - the XX-th century beginning, sources of law become the isolated subject of scientific researches. The legal schools representing various types pravoponimanija, become a theme of legal disputes and debates.

During this period the Russian scientists have apprehended concern of German jurists of that time, connected with the tendencies which have arisen in a science, to reduce all right to one source and «to subordinate its idea of the solving
To force of casually formed majority »[90]. An abundance of legal schools, including such as the is natural-legal, historical school of the right, Marxism, legal and sociological positivism, have resulted, according to V.V. Lazareva, to occurrence in Russia in second half XIX century of the neoliberal integrated politiko-legal doctrine [91]. In particular, G.F.Shershenevich divided legal philosophy, theory of law and the encyclopaedia of the right, B.N.Tchitcherin allocated history of law, theory of law and policy of the law in jurisprudence, and A.S.Jashchenko suggested to synthesise L.I.Petrazhitsky's subjectively - individualistic theory of law, sotsialnoyoobektivnuju G.F.Shershenevicha's theory and V.S.Soloveva's legal philosophy. The beginning of integrated jurisprudence [92] was as a result necessary.

Thus, born on a history and jurisprudence joint, the Russian istoriko-legal thought was formed as at the expense of aspiration traditional for Russian historians to judgement and criticism of carriers of the historical information, that is in this case - sources of law in formal sense, and at the expense of attempt of reconsideration of the right in its historical sources.

The pluralism of legal concepts of XIX century and their serial influence on formation of legal system of Russian empire, should be considered at carrying out of any istoriko-legal researches of the given period, and with caution on that legal concept in which frameworks there lives the researcher. So, the known Soviet and Russian historian of the right professor O.I.Chistjakov in the foreword to the fundamental edition of acts H-HH the centuries, undertaken in 1984-1998, concerning value of sources of law and their place and a role in studying of social and politiko-legal development of the country fairly underlines, that
«The main object of studying for the historian of the right is the law, the standard and other legal acts which have left in the past. Under the legislation it is possible to judge the most different parties of a public life, the state activity» [93].

Now the legislation is considered as the basic source of law of Russian empire XVIII - the beginnings of XX centuries that is a consequence of prevailing influence of positivism in modern jurisprudence. At the same time, in our opinion, the concept of the source of law of pre-revolutionary Russia not only was not settled by norms of the law, but also tested on itself bolshee influence of ideas is natural-legal and other concepts, rather than today. At studying of sources of law of that epoch, the given fact cannot be ignored. As scientist-theorist A.A.Afanaseva fairly notices, at legislation studying as the source of law of Russian empire «it is necessary to consider it in three cuts: as a source of formation of the is standard-legal information; as the form of expression of is standard-legal instructions; as a knowledge source politikoyopravovyh the phenomena» [94].

Thus not only the source of law is capable to inform the researcher the information on a society in which it has arisen, but also on the contrary, studying of the sociopolitical phenomena of the certain period allows us to show deep essence of the legal phenomena, to reach the right bases. It is necessary to understand as the primary philosophical bases of the right not concrete historical determinants of occurrence, evolution and functioning of legal systems and national legal systems, and the determinants (determinants) concluded in the logician of public history, in character of those steady socially-natural and social communications, which with a view of a survival, and also development of society and human
Individuals should be supported by subjects, including legal means. Socially significant dependences and interactions concern such communications between a society and the nature, the person and a society, the person and the nature, between various societies (countries), the social associations operating structures and other participants of public relations, some interpersonal dependences.

Therefore the researcher, studying sources of law, analyzes their legal essence not so much, how many to aspire to reveal through it pravoobrazujushchie socio-economic factors. Thus, the researcher should work with the source of law, both in legal, and in material and ideal senses. That is, it is necessary to reveal communication of the right with public relations, since that moment when arising legal relation is in sinkretizme with other social institutes and up to its formal fastening.

Studying the social phenomena preceding creation of the rule of law, it is easy to track, as as a result of their adjusted, combined action there is new socially significant phenomenon which cannot be reached at level of their separate elements, that is is observed sinergichesky effect in right formation. Such approach in methodology and epistemologii studying of legal sources has received the name of the sociological concept. It ascends the sources to pre-revolutionary school of sociological positivism and studies the law, as result of influence of set of social factors on a society.

In a basis of formed legal system of Russian empire the diversified kinds of the sources of law which parity on a validity depended on subjects of legal relations have laid down. Therefore sources of law of Russian empire can be considered only in
Bodies of laws, legal customs, church canons, international treaties.


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A source: BOTANTSOV John Vladimirovich. EVOLUTION of SYSTEM of SOURCES OF LAW of RUSSIAN EMPIRE (1832-1917). The DISSERTATION on competition of a scientific degree of the master of laws. St.-Petersburg - 2017. 2017

More on topic evolution of representations about sources of law in domestic jurisprudence XIX - the beginnings of the XX-th centuries:

  1. the characteristic of sources of law of Russian empire XVIII - the beginnings of XIX centuries
  2. the Appendix 7. The comparative table of textbooks on general and domestic history of the Russian classical grammar schools of second half XIX - the beginnings of XX centuries
  3. § 1. Development of methodology of the right and istoriko-theoretical crisis of jurisprudence of second half XIX - the XX-th century beginnings: the right encyclopaedia, legal philosophy and the general theory of law
  4. Chapter 1. Value of humanitarian subject matters in the maintenance of domestic classical gymnasia formation for formation of historical consciousness of pupils of second half XIX - the beginnings of XX centuries
  5. 2.2. Evolution of the maintenance of historical study of local lore as a condition of formation of historical consciousness in classical gymnasia formation of second half XIX - the beginnings of XX centuries
  6. Chapter 2. Perfection of the maintenance of historical consciousness of grammar-school boys in a domestic classical grammar school of second half XIX - the beginnings of XX centuries and its value in a present context
  7. ZUBAREV Natalia Nikolaevna. FORMATION of HISTORICAL CONSCIOUSNESS of PUPILS In the DOMESTIC CLASSICAL GRAMMAR SCHOOL of SECOND HALF XIX - the BEGINNINGS of XX CENTURIES the DISSERTATION on competition of a scientific degree of the candidate of pedagogical sciences. Tver - 2016, 2016
  8. Zubarev Natalia Nikolaevna. FORMATION of HISTORICAL CONSCIOUSNESS of PUPILS In the DOMESTIC CLASSICAL GRAMMAR SCHOOL of SECOND HALF XIX - the BEGINNINGS of XX CENTURIES the dissertation Author's abstract on competition of a scientific degree of the candidate of pedagogical sciences. Tver - 2016, 2016
  9. § 4. Value of domestic constitutionalism of second half XIX - the beginnings of the XX-th century for modern Russian statehood
  10. a question historiography. Sources of research of transformation of a common law of Dagestan in first half XIX centuries