Russian Law Journal (RLJ)
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TWO PORTRAITS ON THE BACKGROUND OF THE REVOLUTION: PITIRIM SOROKIN AND MIKHAIL REISNER
Full text linkThe article is a comparative analysis of the intellectual biographies and the creative heritage of two thinkers, Pitirim Sorokin and Mikhail Reisner, who left a notable mark on 20th century legal, sociological and philosophical thought. The choice of these personalities is largely due to their diametrically opposed reaction to the 1917 revolutionary events in Russia, which decided their destinies and had a direct impact on the nature and content of their theoretical research. The article examines the facts of the thinkers’ pre-revolutionary biographies which preceded the paradox of the choice made by each of them: Reisner’s gilded childhood and youth did not prevent him from supporting the revolution, in spite of its horrors, while the poverty and adversities suffered by Sorokin from an early age turned him into a tough and uncompromising opponent of the revolutionary chaos and the Bolshevik reforms. The article pays special attention to the theoretical difference between the thinkers’ positions as well as the philosophical ideas and moral beliefs embodied in their legal and sociological conceptions. The role of the schools of thought in the formation and development of their theoretical views, mindset and ideological attitudes is traced. The strong connection between the scientific traditions and academic fields is shown and the magnitude of the influence of Reisner’s and Sorokin’s teachers and spiritual guides (Jellinek, Kovalevsky and others) is defined. Arguments are provided for the theses on the essential nature of influence of ontological assumptions and methodological preferences in the scientific and theoretical formulations of Sorokin, who supported of the primacy of social reality, and Reisner, who adhered to the primacy of unwritten law. A common thread running through the entire analysis is the theme of subsequent reflection over the country’s fate after, and the truth of, the revolutionary changes by these two very dissimilar authors, who became contemporaries and participants in one of the most significant events of the 20th century, an event changed the course of global history. Yet, both authors, whose contribution to the development of the sciences on society and law is beyond any doubt, give substantial grounds for comparative analysis of their ideas, assessments and views. So different in their reaction to what was happening, in their young years they were expecting the revolution with equal ardency, they were looking forward to the destruction of the old world and the creation of a new, more rational and, of course, fairer society in its place. Both of them were influenced by the ideas of European enlightenment during their education, both were full of hopes for Russia’s progressive development. Both Pitirim Sorokin and Mikhail Reisner would later give up most of the illusions of their youth, each of them would overcome positivism in his own way and each of them would make his choice in favor of certain ideals while having – certainly – to sacrifice the other ones. What would affect the choice of these two outstanding scientists, what would predetermine their intellectual and value-related preferences? One might try to find the answer to this question both in the circumstances of their destinies and in the peculiarities of their research biography
THE PRINCIPLE OF EQUALITY OF STATES IN THE WAKE OF THE RUSSIAN REVOLUTION
Full text linkInternational law can be viewed as a project of exclusion and inclusion of events and ideas into its narrative. Some shake the pillars of international law, while others, influence its progressive development. Widespread wars and revolutions and events and ideas behind them occupy special place in this project: they expose irregularity in the system and at the same time may threaten its existence. The immediate and long-term effects of such events on international law can only be seen with a passage of time. The 1917 Russian Revolution marking its 100th anniversary this year is an illustrative example to this statement. Though it did not end to be the event in international law when the soviet law as predicted by some Soviet scholars replaced bourgeoisie law, it significantly contributed to disseminate ideas that laid foundation of the general international law. Though in post-revolutionary context Soviet Russia advanced different radical approach to universal social and economic justice and criticized the pre-existing international law, international law remained resistant to extremes and capable of encompassing constructive ideas. The most spectacular example of this approach is Soviet attitude towards equality of states – one of the main international law axioms and utopias and at the same time a cornerstone of Marxism- Leninism theory – and Russia’s early attempts to give it more precise legal meaning. This article briefly describes the bumpy way that this principle undertook before the Russian Revolution, to depict the background against which Soviet Russia started to advance its understanding of equality, in some sense, picking up and developing the ideas of the 1789 French Revolution. It further considers the meaning, that the early Soviet doctrine attached to equality and concrete legal mechanisms through which the Soviet approach was translated into international law, specifically focusing on the works of Vladimir Lenin. The article then studies the actual early soviet international law practice, through the lens of predominant soviet theoretical approaches. Two conclusions are made: Marxism-Leninism had limited impact on the Soviet early practice of international law (1) and inconsistent application of principle of equality in the postrevolutionary context should not lead to its complete disregard (2). To the contrary, it is here argued that the Revolution has been influential in the democratization of international law by developing the following legal dimensions of the equality principle. First, it restated equality in the terms of status, meaning equality in acquisition and exercise of rights (1). Second, it helped to eliminate “dual standards,” which meant the cases where a state could treat one state as dependent and the other – as independent (2). Third, it projected the concept of states’ equal rights to nations and peoples (3). Finally, in the early Soviet Russia practice, the idea that states have equal rights stopped to be confined to any group of states, as compared to international law at that time. To the contrary, it implied equality between all states, even in relations between socialist and capitalist states, thus helping in long-term perspective to abandon “civilization test” (4)
Kazan Arbitration Day: The Rule-of-Law Development and Regional Governance
Full text linkThe third Annual Symposium of the Journal “Herald of Civil Procedure” “2016 –KazanArbitration Day: The Rule-of-Law Development and Regional Governance” was hosted by the Law Faculty on September 30, 2016.The opening ceremony of the event took place in the Hall of the Board of Trustees of theKazanUniversity, followed by an academic discussion on legal issues of the Symposium. The Symposium participants and invited guests had the opportunity to discuss the most current and topical issues of civil procedural law, to present the latest Russian and foreign academic works in this direction to colleagues, to offer further ways of development of contemporary civil procedure, and to exchange experience and accumulated knowledge.The Symposium discussed both the issues that directly related to arbitration proceedings as well as the most relevant news in the field of civil procedure and enforcement proceedings in general
SOVIET FAMILY LAW : WOMEN AND CHILD CARE (FROM 1917 TO THE 1940s)
Full text linkIn the Russian Empire, family law did not constitute an independent area of law and was a part of civil law. Family relations were handled by the church. Divorces were hard to get and disapproved of by the church and society. The status of illegitimate children was disfavored; they were not allowed to have the birth status of their mothers or her last name, to inherit the property of the mother and her relatives, nor were their mothers and relatives allowed to inherit from them. Illegitimate children had no right to the father’s financial support or property and could not inherit from him. The Bolsheviks addressed the issue of family law immediately after coming to power in 1917. Their main goal was to repeal pre-revolutionary regulations and to discontinue the Russian Orthodox Church’s leading role in handling marriages and divorces. The first efforts undertaken by the Bolsheviks in the realm of family law were remarkably progressive, namely simplification of the procedures of marriage and divorce, providing women with many rights that were non-existent before October of 1917, elimination of the concept of illegitimacy, and granting the children of unmarried couples rights equal to those of children of officially married parents. In 1920, Soviet Russia became the first state to legalize abortions. Sadly, most positive developments of the early Bolshevik years disappeared in the 1930s–1940s. Family law followed the general pattern of escalation of repression and strengthening of regulations
Russian Legal Order and the Legal Order of the Eurasian Economic Union: An Uneasy Relationship
Full text linkEurasian integration has created a new legal order – the so-called “Union law” of the Eurasian Economic Union (EAEU). This legal order has its own narrative, principles, hierarchy of rules, and innovations such as the direct applicability of decisions of its regulatory body. Russian legal order is generally accommodating towards international law, which is equally applicable to Union law. However, the recent practice of the Russian Constitutional Court has claimed that Russia can set aside international obligations based on national constitution, which indirectly targets the viability of the EAEU legal order. This is further complicated by the Eurasian judiciary, which, as the main interpretative authority within the integration, has tried to take on an activist role, somewhat borrowing approaches from the European Union. In its turn, the Russian Constitutional Court has voiced its differences in certain approaches. This variability of practices and approaches clearly undermines the “unity” of the EAEU legal order and the interweaving of national and regional legal frameworks. This article analyses the relationship of the two legal orders to assess the possibilities for tensions between them. It points out the sources of such tensions, which lie in certain indeterminacies within the EAEU legal order, temptations to assert power, and recent far-reaching practices of the Russian Constitutional Court
The Scope of the Arbitral Award Binding Effect (Interests of «Third Parties» in International Arbitration)
Full text linkModern business international transactions are multiparty and complicated. Such contracts are usually composed of several contracts which can contain bilateral dispute resolution arrangements. According to the principle of parties autonomy dispute arising between two persons bound by an arbitration agreement in connection with a multiparty project will be resolved by arbitration exclusively between these two parties. Other parties cannot participate in the resolution of the dispute through arbitration, even if they have played an active role in the actual project. Notwithstanding any legitimate interest, they might have the outcome of the dispute; these parties will remain alien both to the arbitration proceedings and an arbitral award. Their interests are not taken into consideration and left unprotected. Arbitration proceedings, unlike litigation, usually do not bear any intervention or joinder of parties, which is explained by the contractual nature of arbitration.Thus, the binding power of an arbitral award extends only over parties of an arbitration agreement. Meanwhile, an arbitral award can affect interests of third parties. How can these parties defend their interests in arbitration proceedings and during recognition and enforcement proceedings in national courts? There are two ways of resolving such problem in state court litigation. The first one is the compulsory participation of any third party with any legitimate interest in litigation through intervention, joinder of parties, and consolidation of cases. A court ex officio has to gather all parties that can have any legitimate interest in resolving the dispute. If judgment affects any interest of a party that was not involved in the proceedings judgment should be reversed in appellate court. The second way is also the solution against parallel proceedings. This way is to harmonize the outcome of parallel proceedings by the principle of lis pendens and res judicata.The paper examines the binding and res judicata effects of the arbitral award towards third parties through the Russian and international experience of defending of interests of third parties in international arbitration and litigation
No full textThe right to strike is recognized in the Constitution and the Labor Code of the Russian Federation as a means to resolve collective labor disputes. However, in Russia labor protests come up for discussion much more frequently than strikes. In recent years the number of labor protests in Russia, including various forms of work stoppage, has increased significantly compared to previous years, but the number of legally constituted collective labor disputes and strikes has remained very low. The legislation on resolution of collective labor disputes and mounting strikes is quite restrictive in Russia, and its enforcement also encourages employees to seek alternative ways to settle collective labor conflicts. There is little empirical research on the judicial implementation of these norms and its influence on the enforcement of legislation. Therefore, this paper analyses the reasoning of courts in cases on the legality of strikes, their interpretations of the law, and the impact these decisions have on the enforcement of the legislation on resolution of collective labor disputes and strikes. Our conclusion is that the courts act as another restrictive influence on the resolution of collective labor disputes and the exercise of the right to strike in Russia
THE CASE OF THE CITY OF SEVAS TOPOL: DOMESTIC AND INTERNATIONAL LAW
Full text linkThis article deals with an issue which went largely unremarked at the time – the role of the city of Sevastopol in Crimea’s declaration of independence. The Declaration of Independence of the Republic of Crimea was a joint resolution adopted by the Supreme Council of Crimea and the City Council of Sevastopol. One may state that the city of Sevastopol declared its independence as an entity possessing an international identity. Initially, only States were treated as recognized subjects of international law. But now other kinds of actors also share this recognition. However, from the point of view of classical international law, cities have no legal identity in international law and they are not granted the status of subjects of international law. The legal activities of cities on the international stage results in the need for a new approach to the treatment of cities under international law. The author has examined the legality of Sevastopol’s action in the light of both domestic and international laws. An analysis of the status of Sevastopol in Ukrainian law, as well in Soviet law is also included in this article. The author presents examples of actions of cities on the international scene which might prove that cities could be treated as non-state actors. However, the conclusion states that it remains questionable whether the city has truly acquired the status of being a subject of public international law. It is doubtful that the case of Sevastopol will contribute to the development of doctrine of non-state actors
