The History of Liberalism in Russia

Chapter 3

38 Speransky, the man who codified Russian law, held views—as indicated above —that were very close to those of his older contemporary Mordvinov. The most extensive exposition of his ideas is probably contained in the paper called “Introduction to the Codification (Ulozhenie) of the Laws of the State,” presented to Alexander I in 1809.1 Here Speransky not only deals with specific, concrete problems of the structure of the state and the law, but bases his views on the theory and philosophy of law. Speransky points out that the vital forces in the state—in the final analysis the intellectual and physical powers of human beings (“Introduction,” pp. 4ff)— can occur either in a concentrated, centralized form or be divided among individuals . In the first situation, he says, they create the power of the state and its political authority, in the second the rights of the subject: “If the authority of the state were unlimited, were the powers of the state to be centralized to such a degree (i.e., absorbed to such an extent by the state) that its subjects were left without rights, then the nation would be in servitude and the government despotic” (ibid., p. 5). In his view, this servitude can have two forms or exist on two levels. The first, worse form not only excludes the subject from any role in the state but also robs him of his rights regarding individual freedom and property (ibid., p. 6). The second, milder form also excludes the subject from a role in the state, but does confer rights as regards subjects’ individual freedom and property. In this milder chapter 3 Speransky The 1809 memorandum—The State council— The 1803 memorandum—K Poznaniiu Zakonov— The evolution of Speransky’s views speransky • 39 case, while the subject does not therefore enjoy political rights, he is accorded civil rights (ibid., p. 6). The existence of individually held civil rights and an autonomous sphere of relations based on private law, that is, of a civil society, means that freedom, within certain limits, exists in the state. This freedom, however, is not sufficiently safeguarded and can easily be flouted: “Civil rights can no doubt exist without political rights, but in such circumstances the maintenance of these rights cannot be assured” (ibid., p. 6). Speransky goes on to explain that in order to protect these civil rights against violations by the state, it is necessary to embed them in a basic law, in a political constitution. Civil rights must be included in the state constitution “in the form of direct consequences for civil society arising from political rights.” Citizens must be granted political rights, whose exercise enables them to protect their civil rights, their civil liberty (ibid., p. 6). Thus, Speransky is convinced that civil rights, civil liberty, are not sufficiently protected by the existence of civil legislation (civil law). Civil laws without constitutional guarantees for civil rights and freedoms are impotent and therefore superfluous: “What purpose is served by laws regulating property relations between private individuals, if the concept of property itself (here surely meaning private property in a general sense) has nowhere been clearly set out? What is the point of civil laws if their ‘tablets of stone’ can break at any time on the rocks of the autocracy?” (ibid., p. 16). Also: “For example, a sales contract is a civil right. However, what security would this right have, if political legislation did not generally stipulate that all property is inviolable?” (ibid., p. 6, n. 2). It was precisely this requirement to consolidate civil society that justified the necessity of putting the state on a firm constitutional basis, and this was precisely the inspiration for Speransky’s plan for reforming the state. It also determined the basic premise behind the reform that now consisted of “establishing and basing the hitherto autocratic state on inviolable law” (ibid., p. 18)—that is, to enact a constitution, which would act as an absolute guarantee of civil liberty. Speransky ’s idea of basing political authority on lasting principles, of putting the state on a solid constitutional foundation and thereby giving it definite constitutional limits—that is, channeling the stream of its activity between the solid embankments of the law, comes from the desire to establish a secure basis for civil rights and liberty in the state’s constitution, to anchor civil society safely within it. The history of Russian law also confirms that the idea of a constitutional state is inseparably bound up with...