Legal thought and practice of legislative regulation of public life in Russia originate in the period of the formation of Kievan Rus. The first stage in the development of jurisprudence in Russia was determined by religious and symbolic thinking based on spiritual syncretism (unification of sometimes incompatible elements), which combined pagan and Christian views. The first monuments of Russian philosophical and legal thought -
"Sermon on Law and Grace" by Metropolitan Hilarion (mid-11th century),
"The Tale of Bygone Years", Nestor the Chronicler
"Instruction" of Prince Vladimir Monomakh,
"The Tale of Igor's Campaign" (XII century),
"The Prayer of Daniel the Sharpener" (XII-XIII centuries).
They discussed the origin of the Russian state, the foundations of the legitimacy of power, forms of government and attitudes towards the subjects. The main ancient Russian source of secular law is Russkaya Pravda (known in three editions of the 11th-13th centuries).
The history of the formation of law in Russia, as in other countries, was determined by various features of the national culture, psychology and religion of the peoples who inhabited it. For Eastern societies, for example, it is typical that people constantly correlate their own legal ideas with ancient customs, traditions, and behavioral habits. The possibilities of manifestation of the individual originality of a person depended and still largely depend on gender, age, and place in the system of tribal ties. Among peoples belonging to the Western type of culture, to traditions based on the values of Catholicism, the attitude to law is largely determined by respect for written laws with their characteristic tendency towards greater freedom of economic and political human activity.
The attitude to law, to the implementation of legal norms and principles, characteristic of the East Slavic, in particular Russian, peoples, is marked by a significant originality. Since the time of Metropolitan Hilarion's Sermon on Law and Grace, Russian Orthodoxy has placed the religion of grace above the religion of law. The best Russian rulers tried to follow first of all moral laws the commandments of Holy Scripture. Written law was valued less than the moral law living in man and society. The underestimation of written laws also had a downside: attempts to strengthen the rule of law, undertaken in different periods of Russian history, ran into distrust of the broad sections of the people in what seemed to them legal chicanery.
As for the actual legal norms that regulated social relations in Russia, before the Mongol-Tatar invasion, they basically corresponded to those contained in various European medieval truths (Alemannic, Salic, Russian).
The Mongol-Tatar yoke, the trials associated with it, made the main topic of reflection for both the people and its educated representatives the topic of Russian statehood, its preservation (“The Word about the destruction of the Russian land”, XIII century; “Zadonshchina”, XIV-XV centuries; “ The legend of the Mamaev battle, 15th century, etc.).
In the struggle for the unification of the Russian lands around Moscow, the theory of the succession of the great power of the Russian state from Byzantium arose and gained popularity (the idea of Moscow as a “third Rome”, developed in the writings of Philotheus). Later, the theoretical substantiation of the legality of the ruling dynasty, the idea of absolute autocracy (Ivan IV, I. S. Peresvetov) and estate-representative monarchy (Maxim Grek, Andrei Kurbsky), problems of relations between state and church authorities (Josephites, non-possessors ).
In 1497, during the reign of Ivan III, the first legislative code was adopted Russian state- Sudebnik.
It was created on the basis of the analysis and rethinking of the norms of Russian Truth, the Pskov Judicial Charter, princely charters, laws of the Grand Duchy of Lithuania, codes of other countries. The contents of the Sudebnik were mainly the norms of criminal and criminal procedural law. Crime was defined by the concept of "dashing deed". A developed system of property crimes was recorded: robbery, tatba, extermination and damage to other people's property. Punishments were established for crimes against a person: murder, insult by action and word. The Sudebnik of 1497 testified to the emergence of a single state with uniform laws, a vertical structure of the judiciary. Its norms were based on the principles of Christian morality and were aimed at protecting public order, human personality, property rights throughout the Russian state.
By the beginning of the XVII century. on the eve of the Time of Troubles, the question of choosing between a class-representative monarchy and unlimited autocracy acquired great importance. By the middle of the XVII century. the idea of a class-representative monarchy lost its appeal, and theories that substantiated the need to assert the absolute power of an enlightened monarch (Simeon Polotsky, Yuri Krizhanich) came to the fore.
In 1649 the Zemsky Sobor adopted legal document great importance -
Cathedral regulation.
It is characteristic that when compiling it, the opinion of not only the highest nobility, but also the petitions of elected zemstvo people - nobles and townspeople (townspeople) was taken into account.
The Council Code of 1649 consisted of 25 chapters and 967 articles. Chapters 1–9 contained norms state law; chapters 10-15 - the charter of the judiciary and legal proceedings; chapters 16–20 were devoted to real right; chapters 21–22 were the penal code; chapters 23-25 made up an additional section (about archers, about Cossacks, about helmsmen).
This legal document had an incomparably more complete legal content in comparison with the Sudebnik of 1497. The norms presented in it regulated all aspects of the social, economic, and political life of Russian society. Many of them remained in force until the first third of the 19th century. codification (reduction into codes) of laws Russian Empire.
During the reign of Peter I, the absolutist ideology was further developed (Feofan Prokopovich, 1681–1736). It was based on the notion of the "common good", the means of achieving which was recognized as absolute monarchical power. Later, V. N. Tatishchev (1686–1750), who spoke in favor of limiting the supreme power, made a great contribution to the justification of the theory of the “common good”.
Significant changes made to the system government controlled(declaration of Russia as an empire, establishment of the Senate, collegiums, Synod, strengthening of the bureaucracy, introduction of a new territorial administration, the adoption of the Table of Ranks), testified to the approval of absolutism. By the reforms of Peter I, the population of Russia was divided into four estates: the gentry (nobility), the clergy, the bourgeoisie and the peasantry, as well as the taxable and non-taxable population. Peter I united the peasants and serfs into one peasant estate, imposing an increased tax on it. The household tax (from each yard) was replaced by a poll tax (from the soul of the “male sex”). Tens of thousands of peasants and craftsmen were driven to the construction of the northern capital - St. Petersburg, the fleet, the Ural mines and factories.
Table of ranks
(1722) allowed representatives of the lower classes to move up the career ladder, to receive personal and hereditary nobility for good service.
In the second half of the XVIII century. serfdom reached its peak in Russia. During the years of the reign of Catherine II and Paul I, about one million state black-mowed peasants were distributed to the landowners. The position of serfs was not much different from that of black slaves in the United States. The size of corvée and dues were not determined by law. The landowners were free to punish the peasants as they saw fit. Rods, batogs, whips were used, torture was practiced. The complaint of the peasants against the landowner was recognized as a crime. Much depended on the moral qualities of the serf owners: some peasants lived more or less tolerably, while others, like Saltychikha, known for her sophisticated cruelty, mocked defenseless farmers and courtyards. The peasant uprisings of the 18th century, the formidable Pugachevshchina - an undoubted consequence of arbitrariness and violence on the part of the landowners and the authorities.
The development of legal concepts in the second half of the XVIII century. was influenced by the ideas of the Enlightenment. This influence has been mixed. On the one hand, it was reflected in the views of Catherine II, who corresponded with Voltaire, received D. Diderot in St. Petersburg and recognized herself as a student of the Enlightenment philosophers. Speaking for the achievement of the common good, for strict observance of laws, the empress considered it necessary to preserve autocracy, serfdom, and the privileges of the nobility. On the other hand, the ideas of European philosophy influenced the development of the ideology of enlightenment in Russia, its representatives were N. I. Novikov (1744-1818), Ya. P. Kozelsky (c. 1728 - c. 1794) and others.
Russian enlighteners advocated limiting autocracy, softening or abolishing serfdom.
Subsequently, Russian educational legal thought developed in the spirit of improving ideas natural law who recognized certain human rights inherent in nature itself, independent of social conditions. In works
A. N. Radishchev (1749–1802), the ideas of natural law were comprehended from a radical position.
The sovereign's injustice gives the people, his judge, the same and more right over him as the law has over criminals. (A. N. Radishchev).
Other thinkers (primarily jurists of the late XVIII - early XIX in. S. E. Desnitsky, A. P. Kunitsyn) tried to adapt the ideas of natural law to the realities of autocratic rule. The same position was typical for the creator of the "History of the Russian State"
N. M. Karamzin (1766–1826). Attempts to transform the first years of the reign of Alexander I, the reform projects of M. M. Speransky were largely prepared by these ideas.
Questions for self-control
1. What factors influenced the process of formation of law in the Russian state?
2. What role in the development legal system played in our country Orthodoxy?
3. Describe the most important monuments of the state-legal thought of Russia - Russia in the XI-XVIII centuries.
4. What are the structure and content of the Council Code of 1649?
5. What changes in the state-legal system took place during the reign of Peter I?
6. What directions were formed in the social thought of Russia in the second half of the 18th century?
It is interesting
The Council Code of 1649 established penalties for the following types of crimes:
Crimes against the church (blasphemy, seduction to another faith, etc.);
State crimes (actions and even intent against the person of the sovereign or his family, rebellion, conspiracy, treason, etc.);
Crimes against the order of government (sneaking or false accusation, counterfeiting, malicious failure to appear in court, etc.);
Crimes against deanery (sale of stolen property, maintenance of brothels, harboring fugitives, etc.);
Malfeasance(injustice, covetousness, forgery in service, etc.);
Crimes against a person (murder, mutilation, beatings, defamation, etc.);
Property crimes (tatba, robbery, robbery, fraud, arson, etc.);
Crimes against morality (disrespect by children of parents, refusal to support elderly parents, pandering, etc.).
Old Russian legal terms
Verv is a territorial community, a body of peasant self-government.
Vira - in Russian Pravda, a punishment in the form of a fine for murder (half-vira was prescribed for mutilation, grievous bodily harm).
The cry, the set, the persecution of the trace are the stages of the ancient Russian trial.
Purchase - a person working in the household of a feudal lord for a "kupa" - a loan (in the form of land, livestock, money, grain, etc.).
An outcast is a community member, expelled from the community and deprived of its patronage.
The stream and plunder is the highest measure of punishment according to Russian Truth. It was appointed for murder in robbery, arson, horse theft and consisted in the confiscation of property and the extradition of the criminal together with his family "head", i.e. into slavery.
Sale - in Russian Pravda punishment in the form of a fine for crimes against person and property.
Serfs and servants are slaves, primarily captives, as well as those who fell into slavery for debts, the commission of the most dangerous crimes, etc.
Outstanding Russian thinkers and jurists
(end of the 10th - beginning of the 11th century - c. 1054/1055) - Metropolitan of Kyiv (since 1051), writer and thinker, master of solemn eloquence, author of the Sermon on Law and Grace. According to Hilarion, each nation is destined to go through two stages: the era of slavery (law) and liberation (grace, i.e. Christianity). Hilarion believed in the great destiny of the Russian people. “Legality” in the “Word…” is identified with national egoism, “goodness” with Orthodox virtues. Metropolitan Hilarion's "Word" is imbued with ideas of national independence.
Yaroslav the Wise
(c. 978-1054) - Grand Duke of Kyiv. Under him, Russkaya Pravda was compiled - the first code of private law in Russia.
Peter I the Great
(1672-1725) - Tsar, since 1721 - Emperor. Carried out public administration reforms. He adopted important decrees and laws, some of which he composed with his own hand.
Desnitsky Semyon Efimovich
(c. 1740-1789) - scientist, lawyer, full member Russian Academy sciences, the first Russian professor of law. He did a lot for the development of the "legal worldview" in Russia. His legal concept closely related to moral philosophy.
Catherine II
(1729-1796) - Empress (since 1762). Participated in legal reform in Russia. Author of the "Instruction" of the Legislative Commission (1766), which formulated some principles legal policy and the legal system, contains borrowings from the treatises of Montesquieu, Beccaria, Diderot and D "Alembert. The "Instruction" declared the freedom of citizens, the principle equal responsibilities all in the face of state power, it was argued that laws should be few and they should remain unchanged, and the legal system should be stable.
Radishchev Alexander Nikolaevich
(1749-1802) - writer, political thinker. In "Journey from St. Petersburg to Moscow" he spoke out against autocracy and serfdom. He was imprisoned in the Peter and Paul Fortress, then sent into exile. Upon his return from exile, he worked on the Law Drafting Commission. He was a follower of the ideas of Locke, Helvetius, Diderot, Rousseau. He considered the realization of natural human rights as a condition for the public good.
We learn to defend our rights. Information for reflection and action
He should not expect the first blow from his opponent, because through such a first blow such a thing can happen that he will forget to resist
(from the "Military Articles" of Peter I).
If, as I walk towards me, a villain attacks me and, raising a dagger over my head, wants to pierce me with it, will I be considered a murderer if I warn him of his crime and throw him lifeless at my feet?
(from "Journey from St. Petersburg to Moscow" by A. Radishchev).
Topics for abstracts and discussion
1. Historical roots of democracy in Russia.
2. Why was the right of conscience and truth placed above the law in Russia?
The practice of legislative regulation of domestic public life originates in the period of the formation of Kievan Rus. The first stage in the development of jurisprudence in Russia was determined by religious and symbolic thinking based on spiritual syncretism (unification of various elements, sometimes incompatible), based on a combination of pagan and Christian views.
The first monuments of Russian philosophical and legal thought are Metropolitan Hilarion's "Sermon on Law and Grace" (mid-11th century), "The Tale of Bygone Years", "Instruction" by Prince Vladimir Monomakh, "The Tale of Igor's Campaign" (XII century), " Prayer of Daniel the Sharpener" (XII-XIII centuries). These works discussed (or comprehended) questions about the origin of the Russian state, about the legitimacy of the existing government, about the forms of government, about the relationship between rulers and subjects.
The main ancient Russian source of secular law is Russkaya Pravda (XI-XIII centuries).
The history of the formation of law in Russia, as elsewhere, depended on the peculiarities of the national culture, psychology and religion of peoples.
In the East, for example, it is customary to measure legal ideas to a very large extent with ancient customs and traditions. The possibilities of a person's self-manifestation depended (and still largely depend) on gender, age, and family ties. Among peoples who were strongly influenced by Western culture, based on the postulates of the Catholic and Protestant religions, the attitude to law was largely determined by the content of written laws, which gradually freed a person more and more in his economic and political activities. The Slavic peoples, in particular the Russians, were to some extent characterized by an intermediate position in the implementation of legal norms and principles.
The best Russian rulers tried to follow, first of all, the moral laws of the Holy Scriptures, and not written laws. Perhaps that is why attempts to strengthen the rule of law, undertaken in different periods of Russian history, often ran into distrust of the broad sections of the people in legal "chicanery."
Legal regulations, regulating social relations in Russia, before the Mongol-Tatar invasion were generally close to those recorded in various Western European early medieval truths (Alemannic, Salic, etc.).
After the conquest of the Horde, one of the main topics of reflection of Russian writers was the fate of the national state (“The Word about the destruction of the Russian land” (XIII century), “Zadonshchina” (XIV-XV centuries), “The Tale of the Battle of Mamaev” (XV century) ).
During the period of Moscow centralization, the theory of the succession of the great power of Moscow from Byzantium (the idea of Moscow as the Third Rome, first formulated by the monk Philotheus) becomes relevant. Concepts are also being developed to substantiate the legitimacy of the ruling dynasty, the idea of absolute autocracy (Ivan IV, I.S. Peresvetov), the idea of a class-representative monarchy (Andrey Kurbsky). There are disputes about the relationship between state and church power (Joseph Volotsky, non-possessors).
In 1497, during the reign of Ivan III, the first legislative code of the Russian state, the Sudebnik, was adopted. It was created on the basis of rethinking the norms of Russian Truth, the Pskov Judicial Letter, oral letters of the princes, the laws of the Grand Duchy of Lithuania, and the codes of other countries.
Sudebnik marked the emergence of a single state with uniform laws, a vertical structure of the judiciary. Its norms were aimed at protecting the state order, property rights throughout the state.
By the beginning of the 17th century, by the time of the Time of Troubles, the problem of choosing between an estate-representative and an unlimited monarchy was becoming of great importance. By the middle of the XVII century. the idea of a class-representative monarchy has already experienced its culmination, and adherents of enlightened absolute monarchical rule (Simeon Polotsky, Krizhanich, and others) come to the fore.
In 1649, under Tsar Alexei Mikhailovich, after (and partly as a result of) the rebellion of the townspeople, a legal document of great importance was adopted - the Cathedral Code. It is characteristic that when compiling it, not only the opinion of the highest nobility was taken into account to a large extent, but also the content of petitions filed by elected zemstvo people, i.e. opinion of quite wide social circles.
The Cathedral Code of 1649 consisted of 25 chapters and 967 articles. They contain the norms of state law, the charter of the judiciary and legal proceedings, the norms of property and criminal law, as well as a description of the status of various classes: peasants, townspeople, archers, Cossacks.
This legal document had an incomparably more complete legal content in comparison with the Code of Laws. The Cathedral Code regulated all aspects of the social, economic, and political life of that time.
The ideology of enlightened absolutism (Feofan Prokopovich, Tatishchev) grew stronger during the reign of Peter I. This ideology was based on the idea of the “common good”; means of achieving it was declared government.
Significant changes at the beginning of the XVIII century. were introduced into the system of public administration (the Senate, boards, offices, provincial administration, city administration, new courts, etc.).
The reforms of Peter I formalized the division of the entire population of Russia into four main estates: the gentry (nobility), the clergy, the petty bourgeoisie and the peasantry, as well as the taxable and non-taxable population. The Table of Ranks was adopted (1722). This legal act allowed representatives of the lower classes to move up the career ladder, to receive for good service, first personal, and then hereditary nobility.
In the first decades of the 18th century dependent peasants and serfs finally merged into one peasant class, taxed. The tax on every household was replaced by a tax on every male. Tens of thousands of peasants and craftsmen were forcibly driven to the construction of the northern capital, the fleet, the Ural mines and factories. By the middle of the XVIII century. serfdom finally took shape. During the reign of Catherine II and Paul I, about 1 million state (black-eared) peasants were distributed to the landowners. The position of the landlord peasants differed little from that of the slaves. Much, however, depended on the moral qualities of the owners of serfs: some peasants lived quite tolerably, while others inhumanly mocked the defenseless farmers and courtyards.
The size of corvée and dues before the reign of Paul I were not determined by law. The landowners could punish the peasants as they saw fit. Rods, batogs, whips were used, torture was practiced. Peasant uprisings in the 18th century were the result of arbitrariness and violence of those in power.
From the second half of XVIII in. the development of Russian socio-political and legal thought was largely determined by the controversy between adherents of the ideas of the Enlightenment and supporters of protective concepts. Interestingly, Catherine II herself tried to use the enlightening ideas of natural law and social contract to solve protective tasks, which in the policy of enlightened absolutism were fancifully combined with reformist tasks.
Many thinkers (first of all, lawyers of the late 18th - early 19th centuries: Desnitsky, Zolotnitsky, Kunitsyn, Shchad, Solntsev, Lody, Filimonov and others) tried to adapt enlightenment ideas to the realities of autocratic rule.
In the first half of the XIX century. absolutism in Russia reaches its apogee. The monarch, especially during the reign of Nicholas I, concentrates all state power in his hands. His personal office becomes one of the most important governing bodies.
The systematization of legislation serves to strengthen the feudal-serf system. Despite its feudal character. The code of laws of the Russian Empire is a great achievement of legal thought.
Second half of the 19th century marks significant changes in the social and state system. The reform of 1861, having freed and robbed the peasants, opened the way for the development of capitalism in the city, although it placed certain obstacles in its path. The peasant received just enough land to tie him to the countryside, to restrain the outflow of the labor force needed by the landowners to the city. At the same time, the peasant did not have enough allotment land, and he was forced to go into a new bondage to the former master.
The development of the basis could not but influence the superstructure. Russia is taking a decisive step towards transforming the feudal monarchy into a bourgeois one. Judicial reform pursues quite consistently the bourgeois principles of the judiciary and process.
In the development of law, certain shifts are also noticeable, although smaller ones. Zemstvo and city, as well as judicial reforms led to a significant development of such a sub-branch of law as suffrage. The peasant reform dramatically expanded the range of civil rights of the peasant, his civil capacity. Judicial reform fundamentally changed procedural law Russia.
State and law of Russia at the beginning of the 20th century. develops under the sign of revolution. One of its consequences was a new step towards the transformation of the feudal monarchy into a bourgeois one. Some kind of constitution is being published in Russia.
The revolution forced tsarism to give the people democratic rights and freedoms. There is freedom of the press, assembly, political organizations. Based on this, there political parties, come out of the underground previously created.
First World War made some changes to state machinery and the law of the Russian Empire, but they were not fundamental and even somewhat significant.
The Soviet state and law arose as a result of the Great October Revolution. The emergence of a new state also predetermined the emergence of the corresponding law. Its branches began to take shape, creating together a new system of law. A certain milestone in the process of legal construction was the adoption of the Constitution of the RSFSR of 1918, which became not only the first Soviet, but also the first Constitution in the history of Russia.
In the years civil war the legal system is being strengthened. As a matter of fact, even three types of legal systems are being formed - the socialist, the people's and the specific system of the Far East. For all their imperfections, they ensured both the victory over the enemy and the conditions for the development of Soviet law.
Soviet Union, organized by four republics, did not stop in its development. Already in the 20s. the number of its members reached seven. The development of Soviet law was also marked by important events. Legislation has been codified, it is formalized into a clear system of codes. Along with the development of republican law, all-Union legislation arose and gradually expanded. Improvement of legislation contributes to the strengthening of the rule of law.
In the 1930s, the state mechanism developed inconsistently. The USSR Constitution of 1936 proclaimed a more democratic than before order of formation and activity government agencies. However, these declared democratic principles often ignored, their meaning distorted. During this period, there is a contradictory development and Soviet law. Measures are being taken to strengthen the rule of law and, at the same time, favorable conditions are being laid in criminal and criminal procedural law for possible mass lawlessness. Branches of law related to the economy are brought into line with the principles of a planned, market-free economy. Increasing role coercive measures in labor, collective farm, even family law.
Great Patriotic War became an event that subjected the entire social and political system our country. However, Soviet law has not undergone fundamental changes. Most of the legal novels were caused by the military situation, and they died out after the war. The greatest changes, preserved in the post-war period, concerned only family law and partly financial.
In the mid 50's - mid 60's. development of law is characterized by a new broad codification of legislation. All-Union Fundamentals are published various industries law, as well as the codes corresponding to them in the union republics.
The most important event is the restoration of legality in the activities of bodies state security. The mass rehabilitation of people who were unreasonably repressed in the Stalin years began. Conditions are being created that guarantee the impossibility of repeating lawlessness.
In the 70s, there were no special transformations in the state, except for those that followed from the adoption of the new Constitution.
As for law, it has also changed little in content, but noticeable transformations are taking place in the form of law, they are characterized by the apogee of codification, the Fundamentals of specific branches of law, codes in the republics and the Union are being created en masse.
In the mid 80s. under the influence of certain objective and, mainly, subjective factors, the development of socialism in our country stops. The development of capitalism leads to a natural change in the type of state. The Soviet system is abolished. The idea of separation of powers is being implemented. In Russia, a form of a presidential republic is being established with enormous rights for the head of state, making him look like an absolute monarch.
Law is also changing. AT constitutional law some fruitful reforms are being carried out. A multi-party system is being recreated, and the proclaimed earlier democratic freedoms are becoming more or less real.
Relationships in civil law private property to the means of production. In family law, the institution of the marriage contract appears. Labor law is forced to respond to new conditions that are developing in industry - unemployment, etc. Difficult tasks have to be solved by criminal law, as well as criminal procedural law. Crime is on the rise in the country. Detention centers and prisons are overcrowded with such a number of prisoners as has not been seen since 1937.
In Russia, written monuments of law appeared rather late - statehood in Russia arose in the 9th century. The first entry - 11th century - Russian Truth. Law for a long time had a casual character - in fact, we see not only a record of customs, but also precedents, exemplary cases. Until the 19th century there is not a single legal definition. That is, monuments of law without a common part. The first definitions that were recorded in the sources of law refer to the code of laws of the Russian Empire, adopted in 1835. For the first time the concept of "crime", "property right" is given. Relations about property have existed since the time of Russkaya Pravda. But the theoretical record was missing.
Until 1835 there was no division into branches of law. All law was intersectoral - there was no clear division into branches of law, there was no difference between procedural law and substantive law.
Applied, practical nature of law. The legislator wanted to legitimize all relations so that the judge could resolve this or that situation. Traditionally, in the era of absolutism, the will of the king was considered law.
The law could not be otherwise - in Russia only service people were engaged in law-making, who, creating the norm, proceeded from applied goals - how they can be used in practice. Lawyers were missing.
Theoretical jurisprudence begins to develop from the 18th and 19th centuries. Semyon Efimovich Desnitsky, Tretyakov, Zolotnitsky, Goretsky, Gessen, Solovyov, Togantsev, Trubetskoy, Novgorodtsev, Ilyin, Petrozhitsky, Korkunov, Shershenevich.
The Soviet period - first of all, with the emergence of the Soviet state, all the first regulatory legal acts were of an extremely indicative nature. In the first days of Soviet power, norms relating to state law were issued. Many norms were contained in the decrees of the Soviet government. For a long time the Council of People's Commissars was engaged in law-making. The Constitution of 1918 clearly delimits the implementation of the legislative function - the Congress of Workers, Peasants, Soldiers' Commissars and its Central Executive Committee. In 1922-23 in the USSR, law is being codified - sectoral differentiation - codes have been created. Appears even land code. Before the revolution, all relations regarding land belonged to the sphere civil law.
The history of state and law studies the entire process of the emergence and development of the state and law in historical reality, chronological sequence.
Historical approach to all phenomena: all phenomena are studied from the moment of occurrence. Historicism method differs very significantly from the logical method of research used in the theory of state and law. The logical method studies the general patterns of development. Along with the historicism method, the chronological method is used - i.e. movement of phenomena in time. Comparative historical method , involving a comparison of indicators of the same order (feudalism in Russia and feudalism in Europe); the purpose of the method is to establish common and special features. Statistical Method - is very important - it reveals the patterns of certain processes associated with the presence of mass indicators (participation in elections, losses in the war, etc.); shows the dynamics of development, the method should be devoid of tendentiousness, political predestination. Retrospective method - based on a comparison of contemporary phenomena with the phenomena of the past (the legal status of Soviet peasants and the legal status of the Council Code of 1649). Synchronous method - simultaneous consideration of events (1649 - the transition in Russia to absolutism, in England - a revolution).
The principles on which the study of IGPRF should be based:
Objectivity
Concretization of each fact
Comprehensive study of the phenomenon
Approaches :
Idealistic approach - the development of the idea affects the development of society. Hegel's idea of justice reaches its apogee in the Romano-Germanic civilization, Hegel argues in the spirit of the Aryan people. The entire social trend in Russia in the 18th century was divided into 2 branches: Westerners and Slavophiles.
Marxist approach . The essence is the doctrine of the historical type of the state. The idea of Marxism is that all historical changes in society are carried out as a result of the class struggle. Private property is born, tribal communities are destroyed, neighboring territorial communities appear, families are separated, surpluses appear that need to be protected ->> the state.
Civilization approach . Toynbee, Danilevsky. Slavic civilization. Attracts the idea that man is the subject of all transformations, man is the goal of society. Civilization is an object of knowledge. Proponents of the approach stated the fact of the diversity of the historical process.
Eurasianism . Shakhmatov, Ilyin, Vernadsky. Zinoviev wrote: "Russia will never become part of the West; what fate awaits her in the sphere of Westernization - Hitler once said and showed this." In fact, Zinoviev expresses the point of view modern man with which the first Eurasians were not familiar. Thus, they have 2 explanations: either Russia is part of a single path of human development (cosmopolitan direction); either humanity is not united, peoples have different destinies, the asynchronous nature of development, civilizations develop, die, other civilizations come, which leads to the fact that sooner or later the destruction of civilizations will occur if each nation considers national interests to be dominant. That is, globalization is inevitable.
The history of our state has always developed in the context of the western and eastern beginnings.
Nikita Kolokolov, doctor legal sciences, Professor of the Department of Judicial Power and Organization of Justice, National Research University - Higher School of Economics, Moscow.
Law is a social and legal phenomenon. Understanding its essence is impossible without simultaneous analysis of such complex categories as legal consciousness and the state. At the same time, it should be emphasized that these categories exist only in dynamics, the parameters of which are continuously set by many factors. The most important of them is the place of the state and the law of a particular nation in the global world.
From inception to the 19th century
If the history of the Russian state and law has a little more than a thousand years, then the age of similar civilizational manifestations of mankind is approaching five thousand years. In other words, by the time when the map of Eastern Europe appeared Ancient Russia, in the neighborhood, more than one powerful state managed to arise, or even die. However, in nature, nothing disappears without a trace, the monuments of law created by our former near and distant neighbors, having become an invaluable asset of earthly civilization, were inherited by many, far from always grateful descendants.
As is known, Russian statehood originated in the 6th-7th centuries on the paths "from the Varangians to the Greeks" and "from the Varangians to the Persians." It was then that the Slavic peoples first absorbed the basics of European legal culture, based on the "bastion" of Roman law. More than a thousand years have passed since the baptism of Russia. It is generally recognized that the spread of the ideas of orthodox Christianity to its peoples largely predetermined the course of the further development of the state.
Nowadays, the adoption of Christianity by the Slavs as the main ideology is rightfully recognized as a key component of the flourishing of our statehood. At the same time, the fact is overlooked, and even hushed up, that along with Orthodoxy, Ancient Russia, and then the state of Moscow, incorporated many norms of the unique law of Byzantium, primarily public law, into their legal systems.
Unfortunately, the course of our development in the bosom of European legal culture was interrupted for three centuries by the Tatar-Mongol invasion. The actual loss of independence by Russia in the 13th-15th centuries not only contributed to the conservation of long-obsolete legal ideas, but also to a certain extent transformed the regime of state government along the lines of militarily effective Eastern despotisms, prevented the perception of the latest achievements in the field of legal construction, which were most widely used in Europe. For example, we are unaware of the Magdeburg Law, which played an important role in the West in the formation of an independent urban population.
It was only at the end of the 16th century that our society began to return to the bosom of European, including legal, culture. This process, for many reasons, was extremely slow, and sometimes painful, the war between Westerners and Slavophiles continues to this day. Moreover, most of the population of the state was actually excluded from this process, because until 1861 serfdom existed in Russia. By this time, modern legal systems had already developed in most European countries. History itself has set a goal for Russia - to accept as soon as possible all the best that has been created by mankind in the field of state-legal construction by this moment.
Many of the tasks that then faced our people were solved within the framework of the Great Judicial-Legal Reform of 1864. And Russia received a truly advanced judicial system for those times, as well as corresponding to the best world standards. procedural law. The golden age of the Russian legal profession began its countdown.
Information technology age
Unfortunately, the artificial conservation of the autocracy in its almost absolutist version did not allow us to complete much of what was planned in the legal construction. Russia, in particular, entered the 20th century without civil law meeting the requirements of the time. The main thing is that by this time it was not possible to form any significant social stratum - a group of classes that would be interested in the evolutionary progressive development of our society. In 1917, the revolutionary ideas of quasi-communism, brought in from outside, prevailed. For a long 70 years, Russia was once again torn out of the pan-European civilizational process.
history Russian law usually divided into three periods: pre-Soviet, Soviet and post-Soviet. Each of them has its own achievements in the field of legal construction. In this regard, the Soviet period was no exception. For example, October Revolution destroyed the division of society into estates that had survived from the time of feudalism, equalized the rights of men and women, and resolved many issues labor law, social security. Let's also not forget that it was under Soviet rule that Russia received, albeit largely formal, but the first constitution and universal suffrage. At the same time, the communist ideology regarded the state and law as instruments of oppression of the working classes, whose days were numbered.
Naturally, life behind the Iron Curtain could not last forever, new information technologies of the 20th century quickly swept the concept of utopian communism into the basket of history, Russia once again returned to the bosom of European civilization.
This process began with the consistent incorporation into our legal system of generally recognized norms and rules:
- On July 5, 1991, the Supreme Soviet of the USSR adopted Decree N 2304-1, according to which our state acceded to the Optional Protocol to the International Covenant on Civil and Political Rights;
- On October 22, 1991, the Supreme Soviet of the RSFSR, noting the need to bring the country's legislation in line with the best world standards, adopted the Declaration of the Rights and Freedoms of Man and Citizen;
- On December 12, 1993, the Constitution of the Russian Federation was adopted by popular vote, in accordance with Part 4 of Art. 15 of which generally accepted principles and norms international law and international treaties RF are integral part its legal system.
The list of such acts can be continued for quite a long time. Naturally, the mere introduction of generally recognized legal standards to include Russia in the global legal space was clearly not enough. As in the middle of the 19th century, at the end of the 20th century, the question of carrying out the second total legal reform was again on the agenda. Since the law itself cannot develop, it was a question of reforming the entire state, primarily its judicial system, since it is the judges who are able to fill the formal legal constructions with the necessary content.
CHAPTER I. THE RISE OF LAW. SOURCES OF RIGHT
§ 1. Sources of law IX-XV centuries.
There are many theories where law is defined according to their own premises and justifications. However, we will proceed from the fact that law is a set of norms aimed at regulating the social and individual activities of people.
The role of law in the period of the "calling" of the Varangians
The Eastern Slavs, like most peoples, considered law to come from God. The Christian peoples of Europe (France, England, Germany, etc.) have the same verbal designation right side bodies and rights as aggregates legal norms or has the same meaning. According to traditional beliefs, a bright angel resides behind the right shoulder of a person, and a demon behind the left. Therefore, in ancient times, law was given great importance as a legal and moral phenomenon. Calling on the Varangian princes, the Slavs were looking for "a prince to own us and judge by right." Law is understood in two ways. First, as a legal basis legal court, secondly, as the legal position of the prince himself, the supreme power. Such an interrelation of law and power is possible with the expansion of state customs and traditions.
Role of custom and customary law
In the first millennium of our era, customs were formed among the Eastern Slavs, that is, stable rules of behavior. Gradually, part of the customs began to be provided with mandatory enforcement by tribal bodies and communities and acquired the qualities of customary law. In the period of military democracy, this is blood feud for the murder of relatives, methods of marriage and the order of inheritance, expulsion from the community for breaking the peace. Part of the norms of customary law was fixed in the state written legislation, revealing greater vitality, part of the modification
prohibited or prohibited by law. Blood feud, for example, was banned in the 11th century.
The weaker was the influence of the state, the more active was the customary law. Some elements of customary law survived in the peasant environment until the 19th century.
Treaties between Russia and Byzantium. "Russian law" and pagan legislation
The establishment of the Rurik dynasty in 862 marked the beginning of the systematic legislative activity of the princes, especially in the criminal and administrative-financial spheres. The annals contain information about Oleg's law-making after 882, "charters and lessons" were published by Olga during the reforms of the middle of the 10th century. At the end of Hv. Vladimir I discussed the charter on land use with those close to him. However, such statutes, which were apparently collections of several articles, have not reached us. But there are direct indications of the existence in the tenth century. "Russian law" in the treaties of Russia with Byzantium. These treaties were concluded in the 9th-10th centuries, when Russia had extensive trade and diplomatic contacts with the Eastern Roman Empire to resolve issues related to the definition of the rights and jurisdiction of Russian subjects on the territory of the empire.
There are four such treaties in various chronicles. Most scholars consider the treaty of 907 to be a false compilation of the treaty of 911. The treaty of Svyatoslav of 971 was concluded by the prince in the difficult conditions of a military siege in the city of Dorostol, is entirely devoted to issues of diplomacy and peace and is short in content. But the treaties of 911 and 944. represent monuments of highly developed law. They regulate relations between the parties in cases of murder, theft, and other crimes, establish a procedure for compensation for losses, rules for trade, inheritance, ransom of prisoners. The texts indicate (Article 5 of the Treaty of 911, Article 6 of the Treaty of 944) the existence of a “Russian law” and a Russian “charter and law”, on the basis of which the legislator allows controversial situations. These norms were subsequently used to develop the Russian Truth. Researcher M.B. Sverdlov found in its composition more than a dozen articles dating back to the ancient "Russian law".
The legislation of the pagan period with the adoption of Christianity turned out to be largely unsuitable. Christian law judged murder, assault on a person, family offenses, etc. differently. However, pagan law could not die out quickly, and the state power for a long time maneuvered in law enforcement.
telnoe activity, avoiding reasons for social conflicts. Pagan sacrifices (there is reason to believe that they were human sacrifices), the savagery of pagan customs were gradually receding into the past.
The struggle between paganism and Christianity influenced the development of Russian legislation in such a way that law avoided questions of religion and was absolutely secular. Russian Truth in relation to religion is neutral.
Old Russian church statutes
First legislative acts about the Church - the statutes of princes Vladimir I and Yaroslav the Wise - are known in dozens of lists later centuries. They formed the basis of further church legislation.
The charter of Vladimir I consists of only a few articles and deals with three issues. The church is given a tenth (tithe) from judicial, commercial and other income (the chronicle refers the origin of the tithe to 996). An ecclesiastical court, independent of the state, was being created to consider crimes committed by church ministers, people dependent on the Church (disabled people, widows, etc.). The categories of cases by which the Church judged Christians of all classes (divorces, family fights, witchcraft, heresy, inheritance cases, etc.) are specified. However, the Charter did not define punishment for them. By general rule The church judged when one of the parties was under its jurisdiction.
The Charter of Yaroslav, consisting of 35 articles (one of the editions), introduced specific sanctions and definitions of decisions. Punishments were monetary fines, church "curse", penance. All cases of morality (fornication, bigamy, obscene insults, rape, etc.), encroachments on property (theft, arson), beatings, fights, disputes about inheritance passed to church jurisdiction. In the future, church law had a huge impact on the formation of the Russian national character.
Russian Truth. Origin and composition
Russian Truth - the oldest Russian collection of laws - was formed during the 11th-12th centuries, but some of its articles go back to pagan antiquity. The first text was discovered and prepared for printing by V. N. Tatishchev in 1738. Now there are more than a hundred lists, which differ greatly in composition, volume and structure. The name of the monument is different from European traditions, where similar collections of law received purely legal headings - law, lawyer.
In Russia at that time the concepts of "charter", "law", "custom" were known, but the code was designated by the legal and moral term "Pravda".
It is customary to divide the collection into three editions (large groups of articles, united by chronological and semantic content): Short, Long and Abbreviated. The Brief Edition includes two components: the Truth of Yaroslav (or the Most Ancient) and the Truth of the Yaroslavichs - the sons of Yaroslav the Wise. Yaroslav's Pravda includes the first 18 articles of the Brief Pravda and is entirely devoted to criminal law. Most likely, it arose during the struggle for the throne between Yaroslav and his brother Svyatopolk (1015-1019). The hired Varangian squad of Yaroslav came into conflict with the Novgorodians, accompanied by murders and beatings. In an effort to resolve the situation, Yaroslav appeased the Novgorodians, "giving them the Truth, and copying off the charter, taco rekshi to them: walk according to this letter." Behind these words in the Novgorod I Chronicle is placed the text of the Most Ancient Truth.
True Yaroslavichi includes Art. Art. 19–43 Brief Truth (Academic list). Its title indicates that the collection was developed by the three sons of Yaroslav the Wise with the participation of major figures from the feudal environment. There are clarifications in the texts, from which it can be concluded that the collection was approved no earlier than the year of Yaroslav's death (1054) and no later than 1072 (the year of the death of one of his sons).
From the second half of the XI century. Long-form Truth began to take shape (121 articles on the Trinity List), which took shape in the final version in the 12th century. In terms of the level of development of legal institutions, social and economic content, this is already a highly developed monument of law. Along with new regulations, it also included modified norms of the Brief Pravda. The Extensive Truth consists, as it were, of groups of articles united by a single meaning. It includes criminal and inheritance law, thoroughly developed legal status categories of the population and slaves, contains a bankruptcy charter, etc. By the beginning of the XII century. The Broad Truth has formed.
In the XIII-XIV centuries. an abridged edition arose, which has come down to us in just a few lists (50 articles on the IV Trinity List). It is a selection from the Wide Truth adapted to the more advanced public relations fragmentation period.
European law on the territory of Russia
In Russia, the articles of some Slavic legislations were known and applied in practice. Used, for example, "Law Judgment people" from Bulgaria. Great importance had Pilot Books (Nomocanons) - Byzantine collections of ecclesiastical and civil decrees, especially important for the field of family law.
Sources of law of the fragmentation period
In the XIII-XV centuries. the legal development of Christian Russia was in crisis. The Horde tornado destroyed the economy and cities, archaization of law occurred, its improvement slowed down due to the fall of the role of cities and the forcible conservation of feudalism by the Horde, legislative activity concentrated in the hands of the princes.
The sphere of not legal, but power-administrative princely activity expanded. But the law still evolved. At this time, interprincely treaties and agreements were concluded with foreign states, which regulated the rights and obligations of the parties in diplomatic relations. The princes issued numerous acts and letters, the names of which quite clearly reveal their content: salaried, spiritual, travellers, etc.
By the 15th century In Russia, two fairly separate systems of law developed. In the monarchical principalities, the system was based on centralized administration and feudal subordination; barter factors were less pronounced in it. In the republican regions of Novgorod and Pskov, law was built on more democratic principles, on the basis of developed barter relations. This legal system was more likely to evolve towards the bourgeoisie, but the decline in the role of the republics in the oprichnina pogroms of Ivan IV led to the destruction of this legal system.
Novgorod and Pskov court letters
Republican legislation in the 15th century. ended with the publication of codes. Novgorod judicial charter survived only in an excerpt of 42 articles, and it is rather difficult to judge its full composition and content.
A clearer idea of the level of development of legislation is given by the Pskov Judicial Charter, the only copy of which was discovered in 1843 in Odessa by Professor N. Murzakevich. In 1848 the charter was published. Defects in the title do not allow it to be accurately dated: 1397 or 1467. A collection compiled on a high