Dmitry Poldnikov

Cette étude présente la transformation scientifique du droit civil russe entre 1861 et 1917 autour de trois points de repère (le rationalisme, le romanisme, le comparatisme) et, tout particulièrement, au travers de la méthode comparative. La base empirique est fournie par les principaux travaux doctrinaux sur le droit civil et son histoire, y compris les cours de droit civil et les publications concernant la méthodologie des recherches juridiques préparées par Dmitri Meier, Constantin Pobiedonostsev, Sergueï Mouromtsev, Maksim Kovalevski, Yuri Gambarov, Iosif Pokrovski et les autres juristes russes de l’époque.

Legal scholarship is often presented as an objective impartial knowledge of what the law is or was. Yet the role of ideologies in its interpretation should not be underestimated, especially in writing and rewriting foreign and national legal history. Remarkable Byzantine studies in Russia, their rise, fall and revival, could be a good example to explore the relevance of beliefs and ideas of the scholars. This paper investigates how the dominant ideologies have been continuously shaping the knowledge about Byzantine Roman law in Russian academia. It covers such issues as the intensity of studies, the understanding of law, the major topics, the pull of sources and the methods of their analysis, the main results of historical reconstruction during (1) 19th-century imperial Russia, (2) Soviet and (3) contemporary Russia. Reconstruction of the ideological background of the major Russian Byzantinists should enable us to assess the validity of their vision of Byzantine Roman law and its relevance for the international Byzantine legal studies.

Comparative legal studies have established themselves as the reaction of legal scholarship towards the legal diversity of our shrinking world today and in the past. Despite their potential, such studies occupy a marginal place in legal curricula and practice across Europe. This unhappy situation has brought about debates within the community of comparatists about possible causes and eventual remedies. In this paper, I look at this debate as the incarnation of the century-long confrontation among 'erudite' and 'pragmatic' legal scholars; the former group identify with the agenda of Rodolfo Sacco and the latter are led by Basil Markesinis. My aim is to draw implications from this debate for comparative legal history. In order to do so, I begin by introducing the main tenants of the two 'schools'. Secondly, I investigate the main stumbling blocks of the debate between them: Eurocentrism, the selective scope of research, interdisciplinary and cultural studies. Th...

This paper examines Russia's accession to the (Western) European legal tradition in the mid-19th century. It reviews the key elements of traditional Russian legal culture of the 1820s and 1830s and examins Professor Dmitry Meyer's (1819–1856) contribution to the establishment of Westernized Russian science of civil law, reforming legal education, and formation of professional legal consciousness. To illustrate this process this study analyses Meyer's treatment of sale and purchase contracts.

Generalized contract law is believed to be a distinctive feature of civil law elaborated by modern legal scholars on the Continent. Sharia and common law lawyers were unwilling to transit from casuistry to generalities without the influence of the Continental authors. Is this also true for Eastern Europe with its specific legal tradition? The article examines the role of legal science in modernizing Russian contract law through generalization of its casuistic provisions in a framework of a general theory of contract during the long 19th century. On the basis of a variety of academic publications of that period, revisited with the methods of comparative legal history, the author reviews the initial and the advanced phases of this transformation, reveals its sources in German and French legal scholarship, analyses multiple arguments in favor of such a generalization grouped together around the scientific, the didactic and the practical goals, and uncovers the implicit meaning of each ...

The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types-the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors th...

The Europeanization of legal scholarship and legal education facilitates the emergence of comparative legal science as a promising new tool to discover similarities and differences between two or more jurisdictions and their past development. Yet, the specific methodology of such studies is still not clear. Some legal historians hold that comparative legal history does not or should not have its own methodology other than that of comparative law. Others warn against imposing a contemporary agenda and toolbox on legal history. The author of this article aims to clarify this debate by examining the prospect of applying one of the most popular methods of comparative law – the functional method – to the domain of legal history. On the basis of several examples from the European legal past he claims that examining the functions (the social purpose) of legal norms can help legal historians in three ways: first, to determine the objects of comparison and the sources of analysis, despite the variety of verbal shortcuts (the initial stage of research); second, to analyse legal norms from the perspective of solving social problems in the past – to study the 'law in action'; and third, to arrange the results of the research according to meaningful criteria at the final stage

SummaryIn the second half of the 19th century Russian positive law underwent a rapid and profound reform. It is best illustrated by the legislation in the domain of civil law, as one compares the pre-reformed casuistic and inconsistent Svod Zakonov (Digest of Laws) of 1833 and the ‘westernised’ Draft Civil Code of 1905. This transition was largely facilitated by the emergence of a fully-fledged comparative legislation in Russia.

Poldnikov Dmitriy - Associate Professor of the Department of Theory of Law and Comparative Law, Law Faculty, National Research University Higher School of Economics, PhD (history). E-mail: dpoldnikov@hse.ruAddress: National Research University - Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.This article presents the view of the School of Salamanca of the late medieval scholastics (16th century) on the binding force of contracts - a key problem of contractual theory. The legal theory of binding contracts of the School of Salamanca is represented as a requisite chain between the medieval civil law and contractual doctrines of the followers of natural law promoted in the Modern Age. The lack of the binding principle of all the legal agreements in Roman law until the 16th century was in line with the view of medieval civil law scholars to defy the rule promises must be kept (pacta sunt servanda) from canon law. The representatives of the School of Salamanca gave a rationale to the rule in all the legal systems of Continental Western Europe. The contractual theories of the school were being formed in Spain’s golden age - the period of cultural, political and economic rise, caused by the political unification of the country, colonial conquests and the leading role of the Spanish monarchs in Western Europe. Being influenced by the new trends, Spanish theologians and legal scholars of the 16th century legal scholars (Domingo se Soto, Francisco Suarez, Luis de Molina, Leonardus Lessius etc. got engaged with the reform of medieval legal doctrines ius commune on the basis of moral theology, the philosophy of Thomas Aquinas and canon law. The development of contractual law resulted in an original theologian and legal theory well represented in the treatises entitled collectively De iustitia et iure. The typical features of the theory were a successive description from the general to the particular, distinguishing common principles of contract law and rules for certain contracts. One of the provisions was represented with the principle of the binding authority of all promises both mutually beneficial and gratuitous except they are given on an actual basis (causa) and accepted by the creditor. When formulating the principle, the representatives of the School relied on the concept of promise in canon law, Catholic theory on Christian virtues and views of Aristotle and Thomas Aquinas as to the nature of contractual relations. On the basis of the obligation of a contract, later scholars determined the order of concluding a contract on the basis of offer and acceptance and discussed the binding force of unaccepted promises. The significance of the theories of late scholars of the School of Salamanca is seen not only in their own interpretation of the ius commune principle but the influence on the theory of promise developed by Hugo Grotius in De jure belli ac pacis libri tres (1625)and some other scholars of the Modern Age.

Poldnikov Dmitriy - Associate Professor of the Department of Theory of Law and Comparative Law, Law Faculty, National Research University Higher School of Economics, Candidate of Historical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: dpoldnikov@hse.ru.The article features the common law doctrine (ius commune) as a unique phenomenon in the history of the 14 - 18th century Continental Western Europe. The work studies the prerequisites for its emergence, typical features, reasons to acquire the status of a formal source of law in the High Middle Ages by the doctrine and loosing the status in the Modern Age. The prerequisites for the doctrine was the formation of the legal science as a theoretical discipline in the emerging universities in Northern Italy of the 11 - 12th centuries, which allowed adjusting the sources of Roman law in a new historical context as well as the demand of the European population for more complicated rules of social regulation having lacked a proper development in common law. Beginning with the 13th century, the most developed regions of Western Europe applied the doctrine which relied on scholastics and suggested common opinion of the most authoritative professors of law (communis opinio). It was being formed as part of studying Roman and canon law at universities. The scientific doctrine was being formed mostly independently from other sources of law such as customs, royal law, urban law and trade law. A formal obligation as a unique feature of the ius commune doctrine became on the one hand the necessity in against the background of political and legal disunity of the medieval Western Europe, the lack of active legislative power and specific features of legal proceedings in the medieval communes. On the other hand, it owes its status to its inner qualities, i.e. universalism, authority and profoundness. As a result in the 14th century, the statutes of many communes codified the right of judges to address experts for the opinion. A strong central power and an active legislative policy of sovereign rulers, the formation of nation states and the disintegration of a single academic environment in Western Europe of the Modern age got the main causes of losing the status of formal source of law by the ius commune doctrine. However, until the first codifications of civil law in the 18th century, general opinion of legum doctors (communis opinio) was crucial for the institution of private law on the European continent.

Динамичные изменения в современном мире испытывают на прочность все правовые традиции. В Европе одним из следствий этих изменений стал растущий интерес к сравнительной истории права, или раскрытию факторов эволюции правового регулирования через сопоставление двух или более юрисдикций Старого Света. Несмотря на оживлённые дискуссии о новой дисциплине и первые значительные плоды её применения, до сих пор нет ясности относительно её методологии. Есть ли у сравнительной истории права собственные методы или она довольствуется методами сравнительного правоведения? Ответ на этот вопрос связан с уяснением базовых посылок сравнительного правоведения и истории права, от которых зависит совместимость их методологии и отдельных методов.
В данной статье рассмотрены такие базовые посылки, как более сложный и менее целостный (по сравнению с наукой конца XIX – первой половины XX века) образ права в прошлом и настоящем, многолинейная эволюция всеобщей истории права, признание единства процесса правового развития, воздействие на него межкультурных влияний по «смягченным», а не жёстко детерминированным закономерностям.
От названных базовых посылок зависят и методологические выводы, важные для проведения сравнительных исследований. Сложный образ права и многофакторность его развития диктуют необходимость сочетать разные приёмы исследования. Межкультурные влияния и связь развития права с социокультурным контекстом повышают значение сравнительного подхода в раскрытии явных и скрытых факторов эволюции правового регулирования. Акцент на изучении социального назначения и реального воздействия норм права на общественные отношения открывает возможность проведения сравнительно-исторических исследований с помощью функционального метода. Наконец, выявленная совместимость базовых посылок обуславливает общность ряда целей и предмета исследования сравнительной истории права и компаративистики, а значит, даёт основания использовать методологические наработки компаративистов историками права.

Comparative legal history is a fashionable new discipline which aims at a better understanding of the law's past by comparing similarities and differences of legal phenomena in two or more jurisdictions beyond the limits of national legal histories. Despite its popularity in Europe, it still lacks comparative projects that cover both Western and Eastern areas of the Continent, not least because the methodology of such comparison requires proper consideration and cannot be simply copied from comparative law or national legal histories.
The present article evaluates the applicability of the dominant method of today's comparative law (the functional one) in the domain of the general contract law of the first codifications in the major jurisdictions of Continental Europe (Austria, France, Germany, Russia) during the 'long 19th century'. This subject matter is chosen by way of example as a 'legal cross-road' of legal concepts and models, more susceptible to changes, innovations, borrowings, and closely linked to social needs.
In the main part of the article, it is argued that the adaptation of the functional method to the needs of comparison in legal history becomes plausible due to at least two factors. First, comparatists mitigated the rigid assumptions of the 'classical' functionalism of the 20th century (rejecting its privileged status and purely functional perception of law, irrebuttable presumptions of similarity and unification of compared legal systems etc.). Second, many legal historians, like the drafters of the first civil codes in Western and Eastern Europe, also believe that law is more than minimally connected to social problems and manifests itself primarily through its actual application.
On the basis of such premises, the author of this article discusses potential benefits and limitations of researching general contract law in the selected jurisdictions with the functional method. At the preparatory (descriptive) stage, it can be useful to assure comparability of contract law in the selected civil codes, to identify omissions in the codified general rules on contracts, and to arrange legal provisions around practically relevant issues. At the stage of analysis, functionalism can be coupled with teleological interpretation of legal norms to enable us to understand better the link between the application of the legal rules, their legal purposes, and the practical social problems serving as tertium comparationis for all the compared jurisdictions.
A sketch of such an analysis in the final part of the article allows to conclude that research with the help of the functional method narrows our perception of law as a cultural phenomenon and breaks the inner doctrinal logic, but in return, it offers a starting point for much needed dialogue of legal historians with a wider legal community.

Comparative legal studies have established themselves as the reaction of legal scholarship towards the legal diversity of our shrinking world today and in the past. Despite their potential, such studies occupy a marginal place in legal curricula and practice across Europe. This unhappy situation has brought about debates within the community of comparatists about possible causes and eventual remedies. In this paper, I look at this debate as the incarnation of the century-long confrontation among 'erudite' and 'pragmatic' legal scholars; the former group identify with the agenda of Rodolfo Sacco and the latter are led by Basil Markesinis. My aim is to draw implications from this debate for comparative legal history. In order to do so, I begin by introducing the main tenants of the two 'schools'. Secondly, I investigate the main stumbling blocks of the debate between them: Eurocentrism, the selective scope of research, interdisciplinary and cultural studies. Thirdly, I contemplate the implications of the debate for legal history and a possible synthesis of the two approaches suggested by Uwe Kischel. My main point here is to encourage legal historians in two respects: (1) to engage in cooperation with comparatists in order to enhance our understanding of the context(s) and the paradigm(s) of European legal culture in the face of the ongoing internationalisation of law and legal studies and, (2) to pursue the task of revealing the hidden factors that slow down the transformation of positive law when the changing world calls for it, as is the case with acknowledging new kinds of legal subjects.

This paper examines Russia's accession to the (Western) European legal tradition in the mid-19th century. It reviews the key elements of traditional Russian legal culture of the 1820s and 1830s and examins Professor Dmitry Meyer's (1819–1856) contribution to the establishment of Westernized Russian science of civil law, reforming legal education, and formation of professional legal consciousness. To illustrate this process this study analyses Meyer's treatment of sale and purchase contracts.

The paper examines the inconspicuous influence of the legacy of the classical natural law of the 18th century on Russian dogmatic jurisprudence of civil law, taking as an example the authoritative “Course on Civil Law” (1868-1880) by Konstantin Pobedonostsev. Despite the dogmatic purpose of the course and the hostility of its author towards European liberal doctrines of natural law, some striking similarities between them can be found, especially in the general provisions and principles of contract law, the method of its exposition and the recourse to justice and supra-positive ideal.
Key words: legal history; dogmatic jurisprudence; natural law; civil law; contract law; principles; justice; Russia.

В докладе на материале трактатов представителей школы естественного права Нового времени показано принципиальное значение для складывания позитивизма имело отделение теории договорного права от моральной теологии в учении сторонников естественного права второй половины XVII – XVIII вв.

В статье исследуется научная доктрина ius commune как формальный источник права Западной Европы XIV–XVIII вв.: дается определение, проводится различие между доктриной и смежными понятиями, анализируются причины ее возникновения, приобретения и утраты нормативного значения, выявляется преемственность и существенные отличия по сравнению с современной концепцией научной доктрины стран континентальной Европы.

Legal scholarship is often presented as an objective impartial knowledge of what the law is or was. Yet the role of ideologies in its interpretation should not be underestimated, especially in writing and rewriting foreign and national legal history. Remarkable Byzantine studies in Russia, their rise, fall and revival, could be a good example to explore the relevance of beliefs and ideas of the scholars.
This paper investigates how the dominant ideologies have been continuously shaping the knowledge about Byzantine Roman law in Russian academia. It covers such issues as the intensity of studies, the understanding of law, the major topics, the pull of sources and the methods of their analysis, the main results of historical reconstruction during (1) 19th-century imperial Russia, (2) Soviet and (3) contemporary Russia.
Reconstruction of the ideological background of the major Russian Byzantinists should enable us to assess the validity of their vision of Byzantine Roman law and its relevance for the international Byzantine legal studies.