The rise of the comparative approach in Russian legal scholarship as a factor in the modernisation of civil legislation, from the Svod Zakonov of 1833 to the Draft Civil Code of 1905

Abstract

The place of Russian law in European legal history is debated both in the national and international literature. The advocates of the European character of Russian law have to face the particularity of its legal culture, the sources of law, and the tradition of sui generis national identity. Yet, national identities and legal traditions are not innate but man-made and changeable. In this paper the focus on the period of the 19th century when Russian law was essentially modernized to match the best coeval European standards. It began in the early 1860s with the judicial and university reforms of Alexander II which introduced modern principles of judicial dispute resolution and professional legal education and lasted until the October revolution of 1917. The rapid and profound transformation of Russian law is best illustrated by the legislation in the domain of civil law, the leading branch of codified law in 19th century Europe. The pre-reformed Svod Zakonov (Digest of Laws) of 1833 (its 10th volume) was notably casuistic, inconsistent, and voluminous to the extent that it may not qualify as a modern code. The Draft Civil Code of 1905 could stand comparison with any European codification to date in terms of the systematic and coherent arrangement of general provisions on material civil law. Another important change was the progressive use of the best European legal experience: from the masked, fragmentary and unskilled borrowings in Svod Zakonov to a fully-fledged comparative legislation in the Draft Civil Code. A comprehensive comparison of all major European codes allowed the draft of a better piece of legislation but this has not been yet been researched by legal historians. The main question – how did this comparative approach came about – remains largely unanswered. In this paper attention is drawn to the decisive role of Russian legal scholarship in developing a comparative approach using an original synthesis of several streams of European legal thought (Savigny's historical school, German Pandectistics, French ecole de l'exegese, and Jhering's sociological approach) which it managed to develop in the second half of the 19th century. It is argued that such legal scholars as Meyer, Pobedonostsev, Pakhman, Shershenevich, Annenkov succeeded in overcoming the limits of the pre-reformed, literal knowledge of Svod Zakonov and began to study Russian civil law as part of a larger phenomenon (the law of the 'civilized nations') through dogmatic comparison which resembled the comparative legislation in western Europe. The evidence for this claim is taken from the main doctrinal works between 1840 and 1910 which represent both streams of comparison and it is analysed in the framework of comparative legal history. Special attention is paid to the contribution of dogmatic comparison in developing the general part of contract law as a recognizable hallmark of civil law in continental Europe which came to be adopted in the doctrinal writings and the draft legislation of the late Russian empire