Pandectistic legal thought during the time of transition from Czardom to Soviet Russia. Contemplations on incorporating the Russian perspective into the study of Roman law

Abstract

Research on the history of Roman Law in Russia does not only contribute to the knowledge of Russian private law history, but can also be of value for the understanding of Roman Law itself. The account of its historical influence on Russian law and its reception in Russia can induce a reflection on the perception held by those jurists whose perspective of Roman Law - as they were almost completely unaffected by its long-lasting reception in Western and Central Europe – is different. An investigation into the nature of this perspective requires first and foremost an examination of the peculiar reception of Roman Law in Russia. This includes an analysis of the continuance of Pandectistic Legal Thought after the Socialist October Revolution of 1917. Although the law was also one of the objects targeted for radical change, in fact in a lot of respects it remained untouched. Therefore, this development can be considered not only with respect to discontinuity, but also from the perspective of continuity in legal thought. In July of 1922 a committee on the codification of the civil law was set up, directed by Vasilij Krasnokutskij. This jurist is hardly known today because his relevance in regard to the drafting process has continuously been downplayed by Soviet scholars. Nevertheless, he can serve as an example of how the committee, when drafting the code, resorted to some texts based on Pandectistics and, thereby, to the Romanist tradition. A professor in Czarist Russia, Krasnokutskij was an expert on Baltic and Polish regional law (Partikularrecht), which were two private law systems within Czarist Russia eminently akin to Roman Law. Additionally, in the Soviet epoch he published several works on Roman Law. Consequently, Krasnokutskij can - with some reservations - be identified as a "Romanist." The main objections to the committee's draft were directed at its allegedly "bourgeois" character and a perceived insufficiency of provisions allowing for state intervention in the code. In order to meet the concerns, the Bolshevik jurist Aleksandr Gojchbarg was entrusted with the revision of the Krasnokutskij draft. As a consequence, the Civil Code which became effective in 1923 does show certain important elements characteristic of Socialist Legal Thought. But a closer inspection reveals that these cannot be qualified as the outcome of the consistent application of a carefully designed Socialist concept of civil law, but rather as evenly distributed fragments of Socialist Legal Thought blending in with the pre-existing body of law resulting in what later appeared to be an independent Socialist version of civil law. Despite these corrections the influence of the civil law tradition specific to Western Europe still remains clearly discernable in the code. It is based on civil law systems which had already been in existence, namely both pre-revolutionary civil law drafts and the German Civil Code. As Krasnokutskijs' example shows, one of the main reasons for the impact of Roman Legal Thought on early post-revolutionary Russia can be found in the continued influence of certain jurists. Those jurists who were able to stay in the country after the demise of Czardom and participate in the building of the new legal order had studied their subject under the mediate influence of German Jurisprudence at the universities of Czarist Russia. They passed on a specific kind of legal reasoning which had been derived from the legal positivism of the second half of the 19^th century and originated in Pandectistics itself.