Russia's Legal Trajectories

In 1983, a great legal scholar and a uniquely engaged expert on Soviet law began his controversial masterwork as follows:

This book tells the following story: that once there was a civilization called "Western"; that it developed distinctive "legal" institutions, values, and concepts; that these Western legal institutions, values, and concepts were consciously transmitted from generation to generation over centuries, and thus came to constitute a "tradition."¹

Our question for today's lively field of Russian law is, could we substitute the word "Russian" for "Western" and proceed to describe the dynamics and characteristics of a Russian legal tradition?

To do so, we must first have the confidence, as Harold Berman did, to challenge commonly held notions of what law is. The proposal to study a legal tradition recognizes both the plurality of understandings of law and the historical construction of all legal systems. What people regard as law in different times and places depends on particular, but often intersecting, cultural trajectories and particular, often intersecting, conjunctures of power.

Second, we must call into question, or at least set into a new context, many of the assumptions about Russian law that have underpinned intellectual, political, and scholarly discourse for at least two centuries. One of the most powerful of these lines of thought is the "not law" conceit, a repeated insistence that Russia did not have a strong legal culture and that "real law" existed only outside Russia in a place called "Europe" or the "West." Discourses about what law should be in Russia can be seen as part of Russia's legal tradition; as such, they have a place in our project. But our emphasis is on practices, on lawmaking and law using, rather than on theory and critique of Russian law.²

To uncover the "institutions, values, and concepts" (Berman's terms) of a Russian legal tradition, we must escape from the confines of comparative thinking and checklists of qualities presumed to constitute law. Most scholarly writing on Russian law reverts explicitly or implicitly to comparison with European developments and with "rule of law" as defined, insistently, in the aftermath of World War II. In this evaluative context, the salient questions for Russia become: did its legal history replicate or diverge from a European path, and did its legal system conform to the principles of Western legalism? Never mind that both notions—a European path and Western legalism—obscure the complexity and multiplicity of legal trajectories within Europe and the "West."

In this proposal, we attempt to start out afresh, looking at Russian law in intertwined spatial and chronological perspectives. Spatially, our approach is both more global and more local. Russia's geopolitical environment was indeed crucial for its legal tradition, but that location, we argue, was not uniquely European. Russia was from the beginning and is to this day in meaningful contact and interaction with cultures and polities to its east and south as well as to the iconized "West." It is imperative to enlarge the region of reference for Russian law beyond Europe. Where principles and qualities of law are concerned, we take a local approach and work outward, revealing those practices and habits of legal rule that emerged over time in what became Russia's political space. The lining up or checking off of these Russian legal traits against the attractive fiction of a universal "rule of law" is not our goal.

If the space of Russian legal development was Eurasian in the first place, and even transoceanic after Russian expansion and in the context of "international" law, what about time? Our approach intersects with recent studies of Russian law that challenge conventional assumptions about the uniqueness and/or backwardness of Russian law. But efforts to show that Russian law was on the same track as "other civilized states" or that in various aspects of law Russia was "ahead" of other societies put legal developments on a time line toward perfection that daily becomes harder to defend. Moreover, making judgments about being "ahead" or "behind" assumes that we agree on what constitutes improvement.³

The notion of...