Law and the Christian Tradition in Modern Russia
edited by Paul Valliere and Randall A. Poole
This volume is part of a fifty-volume series on “Great Christian Jurists in World History,” presenting the interaction of law and Christianity through the biographies of 1000 legal figures of the past two millennia. Commissioned by the Center for the Study of Law and Religion at Emory University, each volume in this series focuses on a specific country, region, or era, and it samples the life and work of a score or more of its greatest legal minds over the centuries. These legal minds include not only civil and canon lawyers and judges but also theologians, philosophers, and church leaders who contributed decisively to legal ideas and institutions, or who helped create landmark statutes, canons, or cases. Thus, familiar Christian jurists like Gratian, Grotius, Blackstone, Kuttner, and Scalia appear in this series, but so do Augustine, Isidore, Aquinas, Calvin, Barth, and Romero. This biographical approach is not intended to deprecate institutional, doctrinal, social, or intellectual histories of law and religion, nor will it devolve into a new form of hagiography or hero worship of dead white males. It is instead designed to offer a simple method and common heuristic to study the interaction of law and Christianity around the world over the past two millennia.
Columbia University Press opened this series in 2006 with a three-volume work on Modern Christian Teachings on Law, Politics, and Human Nature, featuring thirty modern Catholic, Protestant, and Orthodox Christian figures. Cambridge University Press has new titles on great Christian jurists in the first millennium, as well as in English, Spanish, French, Lowlands, and American history. Routledge is taking up the Italian, Nordic, Russian, Welsh, and Latin American stories; Mohr Siebeck the German story; Federation Press the Australian story. Forthcoming titles will cover great Christian jurists in the history of Scotland, Ireland, Austria, Switzerland, Greece, Poland and various countries and regions in Eastern Europe, central Eurasia the Middle East, Africa, and Asia.
A Russian Conception of Legal Consciousness
This article is an abridged version of the introduction by Randall A. Poole.
Harold J. Berman (1918–2007) was the intellectual architect of the modern field of law and religion. He was also one of the great scholars of Russian law. In Justice in the U.S.S.R., he wrote: “Law is a monument of history, constructed over many centuries. . . . Law is more than rules; it is the legal profession, the law schools, the technique and tradition of judging, administering, and legislating. Law is also the sense of law, the law-consciousness, of the people” (p. 187). Here he identified the research area in which his contributions would be most renowned: legal consciousness in its historical development. Berman believed that a robust legal consciousness had to involve “man’s whole being” or, in short, faith (p. 9). According to him, religion and law share four elements: ritual, tradition, authority, and universality (p. 159). The fourth element is “the claim to embody universally valid concepts or insights which symbolize the law’s connection with an all-embracing truth” (p. 9).
This suggests a connection with the theory of natural law, an idea which has had very different meanings over the centuries, but which has tended toward normative identification with the very principle of justice and with the morality inherent in the idea of law. Possibly natural law might stand on its own, or rather on the grounds of morality and reason alone, without religious sanction. Berman noted that in fact this ambition to autonomy was characteristic of modern natural-law theory. But he was skeptical. More viable, he thought, was a legal consciousness in which law “as man’s sense of the just” drew on religion “as man’s sense of the holy” (pp. 13-14, 19).
A very similar conception of legal consciousness was advanced by the Russian legal philosophers featured in the present volume. Legal consciousness was a central concept for Boris Chicherin, Vladimir Soloviev, Pavel Novgorodtsev, Sergei Kotliarevskii, Nikolai Alekseev, and Ivan Ilyin.1 The first three of these thinkers are the subject of separate chapters in Andrzej Walicki, Legal Philosophies of Russian Liberalism (Oxford: Oxford University Press, 1987). This book, a work of profound analysis, interpretation, and insight by an eminent historian of ideas, served as a source of great inspiration for the editors and contributors to the present volume. These six legal philosophers were also religious thinkers (predominantly so in Soloviev’s case) who believed that Christianity could help remedy what Novgorodtsev diagnosed as the “crisis in modern legal consciousness” by reorienting that consciousness toward the supreme value of law: the sacredness of the human person. For them, the rule of law depended ultimately on a legal consciousness that was nourished by both a deep moral sense and faith. As philosophical idealists, they were committed to natural law, following their predecessor Aleksandr Kunitsyn (who is also the subject of a separate chapter in our book). As Christian theists, they believed that the moral norms of natural law (human dignity and human rights) entailed, and were grounded in, a transcendent ontological reality — God.
Natural law exemplifies law in its pure form because it is upheld by consciousness (moral respect and religious reverence), not by coercion. The more closely positive law approximates natural law (which approximation is legal progress), the less positive law will need to rely on the threat of coercion. The general tendency of Russian philosophy of law as represented in this volume was to deemphasize coercion in favor of consciousness, but there was debate among the jurists over the proper relationship between law and morality and over the justification for the use of force. Like natural law, though perhaps not as pristinely, canon law and international law also exemplify the pure form of law. A distinctive feature of our book is its attention to natural law, canon law, and international law.
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In the West, the development of the type of legal consciousness that could support the rule of law has a long history and deep religious roots, going back to the classical era and to the early and medieval Christian periods. In Russia, this development occurred much later, beginning with the Enlightenment in the late eighteenth century but not reaching maturity until the middle third of the nineteenth century, on the eve of the Great Reforms. Even then, the resulting legal consciousness was cultivated by only a relatively small group of jurists, enlightened bureaucrats and reformist officials, professors, and other professionals. No one contributed more to the (eventual) emergence of a Russian legal ethos than Mikhail Speranskii (1772–1839). When Nicholas I (1825–1855) established a new branch of his own chancellery, the Second Section, to complete the work of preparing a new law code (the last having been issued in 1649), he placed Speranskii in charge. Speranskii’s jurisprudential philosophy was informed by his Christian universalism. As the distinguished historian of Russian law, Vladimir Tomsinov, states in Chapter 3 of this volume, Speranskii believed “that the Christian religion, state power, and legal culture have a common purpose — to strengthen, support, and preserve the humanity of human beings, to preserve universal spiritual values and the social norms that correspond to the essential nature of human beings” (p. 67). Tomsinov argues persuasively that it was Speranskii’s faith, genius, and determination — more than any other factor — that brought the codification project to success, resulting in the Complete Collection of Laws of the Russian Empire and the Digest of Laws of the Russian Empire (1828–1833). It was an enormous accomplishment.
Codification was one of two prerequisites which Speranskii thought essential for the further development of Russian jurisprudence. The other was legal education. In 1835 there were two significant developments. First, the university law curriculum was revised to emphasize the teaching of Russian law, based on the new Digest of Laws. The university statute also formally ended the teaching of natural law as a separate discipline, replacing it with the study of jurisprudence as a specialized science, an independent scholarly discipline emphasizing the history of law, including Roman law. Second, a new elite (noble) institution was established: the Imperial School of Jurisprudence.2Vladimir A. Tomsinov, Iuridicheskoe obrazovanie i iurisprudentsiia v Rossii vo vtoroi treti XIX veka, Uchebnoe posobie, 2nd ed. (Moscow: Zertsalo-M, 2015), 33, 47–61, 173–193. Its graduates numbered (according to Tomsinov’s count) 684 by May 1866, when the Judicial Reform of 1864 came into effect. “They injected,” he concludes, “a spirit of truth and justice into Russia’s judicial system, thereby assuring the success of the judicial reform carried out by Speranskii’s student, Alexander II” (p. 90). (Speranskii had served as one of the tsarevich’s teachers from October 1835 to April 1837.)
Beginning in the 1840s, graduates of the university law faculties and of the Imperial School of Jurisprudence (pravovedy) staffed the Ministry of Justice and other parts of the government. Russia’s defeat in the Crimean War (1853–1856) precipitated a “crisis of autocracy” that gave them the opportunity to transform the Russian court system. The Judicial Reform of 1864 was the most comprehensive and far-reaching of the Great Reforms. It provided for a system of independent civil and criminal courts, open adversarial trials, a jury system, autonomous regional bar associations, and judges with lifetime tenure. In short, the reform established an independent judiciary — which made it fundamentally incompatible with autocracy. For this reason, Jörg Baberowski has written, “The 1864 judicial reform created Russia’s first constitution…. At least de jure, Russia was transformed into a state under the rule of law on the European model” (p. 344). The reform provided the institutional framework (legal institutions and court procedures) for the development of civil society and the rule of law. Previously, the courts had merely enforced statutory law; now they were empowered to interpret law, which made them a source of law.
As Baberowski aptly puts it, “the task of the judicial reform was to make universal the legal consciousness of the enlightened officials” (p. 347). To accomplish this task, the reformers placed great hope in the jury system, which they saw as a school of citizenship. Surely it would turn “peasants into citizens.” Anatolii Koni, Russia’s best known jurist, lent his eloquence to these hopes. He is the subject of Chapter 7, by Tatiana Borisova. She shows how Koni’s “civic hagiography” celebrated the heroes of the new courts who worked tirelessly for justice in Russia. They and Koni himself understood justice as pravda, with all its popular and religious inflections. Koni related it especially to Christian love, mercy, and reconciliation. He rejected the view that the new courts, which drew heavily on Western models, were too advanced for Russia. Rather, he was confident that they would provide the necessary juridical form, and pravda the necessary moral-religious content, for the further development and expansion of Russian legal consciousness.
The hoped-for universalization (or popularization, in a sense) of the legal consciousness of Russian jurists was not achieved. Why not, and whether it might have been, is one of the fundamental questions of Russian history. Richard Wortman maintains that “although the development of a consciousness of the transcendent importance of the law was of great significance for its own time and subsequent decades, it encountered formidable and eventually insuperable obstacles, and its rise appears more of a glorious but tragic episode than a central trend of Russian history” (p. 6). The main “formidable and insuperable” obstacle was the autocracy itself, Wortman argues. Any possibility of establishing a law-based government under Alexander II all but vanished under Alexander III (r. 1881–94) and Nicholas II (r. 1894–1917), as Russia’s last two tsars cultivated a profoundly illiberal “scenario of power.” They were advised by Konstantin Pobedonostsev, chief procurator of the Holy Synod from April 1880 until October 1905. A nuanced and balanced portrait of him (no mean task) is presented in Chapter 5, by Gregory Freeze.
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The tsarist autocracy may have been able to limit the expansion of Russian legal consciousness, but it could not prevent its deepening. There was a certain logic in this: faced with the external constraints of the autocracy, Russian legal consciousness developed internally. Our volume demonstrates that the deepening of Russian legal consciousness was conspicuous in three areas: international law, canon law, and the religious-idealist philosophy of law (focused on natural law). In these areas, a distinctive Russian conception of legal consciousness took shape.
Vasilii Malinovskii helped to lay the foundations for the development of international law in Russia. He is the subject of Chapter 2, by William E. Butler. The remarkable extent of that development is clear in Vladimir Tomsinov’s portrait of Leonid Kamarovskii in Chapter 8. Kamarovskii was a professor in the law faculty of Moscow University, where he served for thirty-eight years. A person of deep faith, he believed that “Christianity is the most sublime teaching of peace the world has ever known.” His vision was of an international order transformed by that teaching. In 1909, Nicholas II appointed him as the Russian delegate to the Permanent Court of Arbitration in the Hague. Ten years earlier, F. F. Martens (1845–1909), another eminent Russian figure in international law, had drafted the Martens Clause of the 1899 Hague Convention with respect to the Laws and Customs of War on Land. In chapter 13, Martin Beisswenger examines the further linking of Christianity and international law through Nikolai Alekseev’s active involvement in the ecumenical Life and Work movement of the 1930s. Alekseev emphasized the positive role that religion and the churches could play in the search for international peace and security.
Two chapters of our volume are devoted to canon law — Chapter 1, by Paul Valliere, and Chapter 10, by Vera Shevzov. The golden age of Orthodox legal studies, as Valliere puts it, was the second half of the nineteenth century and the first two decades of the twentieth. The Russian Orthodox Church long had been subordinated to the tsarist state through the Holy Synod, in violation of its canonical order and liberty. The desire to rectify the canonical order was one of the main reasons that Russian canon-law studies experienced a remarkable upsurge in the period following the Great Reforms. The outcome of the deepening of canon-law consciousness was momentous: the All-Russian Council of Moscow of 1917–1918, which Valliere characterizes as one of the great church councils in the history of Christianity.
Six chapters of our book follow the development of Russian religious-idealist philosophy of law by focusing on some of its main figures: Boris Chicherin (Gary M. Hamburg), Vladimir Soloviev (Paul Valliere), Pavel Novgorodtsev (Konstantin M. Antonov), Sergei Kotliarevskii (Randall A. Poole), Nikolai Alekseev (Martin Beisswenger), and Ivan Ilyin (Paul Valliere). For all of the differences among this extraordinary group of thinkers, they were “religious idealists” in the same basic ways.
First was their idealist conception of human nature. They understood the quintessential human capacities to be reason and free will. Chicherin defined reason as consciousness of the absolute, not in a specifically Hegelian sense but rather in the general sense that reason is the capacity to recognize or posit absolute ideals. Through free will, human beings are capable of self-determination according to these ideals. Kant called this dual capacity “practical reason” (he also referred to it as autonomy). In their idealist conception of human nature, Chicherin and Soloviev closely followed Kant (though not only him), and in this crucial respect the other four Russian philosophers discussed here followed Chicherin and Soloviev. Second, the group as a whole held that reason and free will are the grounds of human dignity and of natural rights — that they are what make us persons. All six Russian philosophers were, in this sense of the word, personalists. Third, all thought that their idealist, personalist conception of human nature refuted naturalism and had metaphysical implications, which (fourth) they understood in terms of Christian theism. Hence, their “religious idealism.” In individual ways, it was both a source and confirmation of their faith.
Chicherin and Soloviev laid the foundations for the “Moscow school” of the Russian philosophy of law. The final four chapters of this book are devoted to the school’s most outstanding jurists. Pavel Novgorodtsev’s theory of natural law was central to the school’s religious-idealist conception of legal consciousness. In 1902, proclaiming Kant’s kingdom of ends to be “the supreme good of the moral world,” Novgorodtsev defined natural law as “a norm and principle of personhood.” He wrote of “the absolute foundation of natural law that is revealed to us in the moral idea of personhood” and of the way that the modern conception of natural law limits state power by “the idea of the inalienable rights of the person.”3 P. I. Novgorodtsev, “Ethical Idealism in the Philosophy of Law (On the Question of the Revival of Natural Law),” in Problems of Idealism: Essays in Russian Social Philosophy, ed., trans., and intro. Randall A. Poole (New Haven: Yale University Press, 2003), 274–324, here at 305, 303, 313. Toward the end of his life he made it more explicit that the “moral idea of personhood” entailed, for him, Christian personalism. His colleague Sergei Kotliarevskii similarly stressed that the type of legal consciousness capable of sustaining the rule of law had to draw its strength from a religious reverence for human dignity. Novgorodtsev’s students Nikolai Alekseev and Ivan Ilyin concurred. Like his teacher, Ilyin wrote a major treatise on the concept of legal consciousness, which he closely related to the idea of natural law. All four philosophers recognized that natural law rests ultimately on faith since personhood itself, in its self-determination by and aspiration toward the absolute ideal, transcends the natural world. Their faith was centered in the sacredness of the human person — the luminous core of the Russian conception of legal consciousness. ♦
Randall A. Poole is Professor of History at the College of St. Scholastica and a Fellow of the Center for the Study of Law and Religion at Emory University. His most recent book is The Oxford Handbook of Russian Religious Thought, co-edited with Caryl Emerson and George Pattison.
Poole, Randall A. “A Russian Conception of Legal Consciousness.” Canopy Forum. October 29, 2021. https://canopyforum.org/2021/10/29/a-russian-conception-of-legal-consciousness/