N. 8 – 2009 – Contributi

Emergence of Russian National Legal Tradition:

Svod versus Ulozhenie in Nineteenth Century Russia[1]

Tatiana Borisova

State University Higher School of Economics, St-Petersburg branch

Abstract. The article describes and analyzes the competing approaches to codification in Russia during the first decades of the nineteenth century after Napoleon (and his Code Civil) and its evaluation in late nineteenth century. Based on recent methodology—the history of notions (Begriffsgeschichte)—Dr. Borisova’s research presents the history of codification through the perspective of the emergence and development of the Russian legal terms svod (compilation/digest) and ulozhenie (system/code). These terms represented the “battle flags” of the two parties: on one hand, those whom one might characterize as rationalist, universalist, Enlightenment-oriented, based on the French Revolution and inspired by the Code Napoleon; on the other, history-oriented, traditionalist, romantic, nationalist. Speranskii, initially the prime representative of the first tendency, was ultimately successful as the leader of a Russian codification movement by claiming an original national approach to codification, while in practice combining the two elements. The article seeks to demonstrate that categories of “National”, “Traditional”, “Original”—as well as their opposite, “Universalistic”, “Rationalist”—which were used in the political and academic discourse on codification in the nineteenth century Russia, may be analyzed as a rhetorical means of argument which was skillfully applied by the ambitious drafters of new codes (as well as by their opponents). Contextual analysis of both the Russian and European political background of codification discussions are applied in this work which leads to conclusions on the construction (and deconstruction) of a national mythology of legal traditions.

In this article, I will be viewing the creation of a new code of laws (ulozhenie)—during the first three decades of the nineteenth century—as the completion of a Russian national project. It became such rather suddenly in the spring of 1812 as a result of both major forces and of chance circumstances, the movement of armies, global ideas, and the passions of historical figures. The combination of a number of factors resulted in a situation whereby the political struggle over the new code was conducted through the language of nationalism by contrasting the “national spirit of the law” with “foreign principles”. In the struggle for a new code, the opposing sides not only used “national rhetoric” introduced from outside but, also, changed the Russian language, inventing new “national” meanings for legal concepts.

In a relatively short period of time (1810s-1820s), the words “svod” and “ulozhenie”—which had interchangeably been used to describe the systematization of legislation—were differentiated and contrasted with one another as different ideas of systematization. They were given additional political meanings that later—in the second half of the nineteenth century—began to be used outside of legal discussions as slogans, symbolically representing opposing political doctrines. The term “ulozhenie” was associated with the reform-minded, pro-European tendencies of developing a domestic state and law. “Svod”, on the other hand, came to be used as the legal embodiment of an “original” national-conservative movement. But what circumstances brought about this change? And what was the significance of introducing qualitative features to the specialized professional legal lexicon?

My research was inspired by methodological approach of Begriffsgeschichte promoted by historian Reinhard Koselleck. Koselleck’s pioneering research on social history of Prussia demonstrated that the very language of society—and especially its most important notions as property, citizen etc. —should be perceived as an object of continued struggle of interests. Begriffsgeschichte aims to define these interests, i.e. to hear and analyze voices of actors contending for their definitions identify what words really mean[2].

I

On 5 July 1801—shortly after taking the throne—Alexander I (reigned 1801-1826) published a writ (reskript)[3] in the name of Count Zavadovskii, who was ordered to “combine the scattered parts of legal regulations and to collect them in the form of a consolidated code [svodnoe ulozhenie]”. The young Emperor was essentially following a long tradition: beginning with the rule of Fedor Alekseevich (reigned 1676-1682), every new monarch on the Russian throne[4] made an effort to create his or her own comprehensive collection of domestic law in place of the Council Code (Sobornoe ulozhenie) of 1649.[5] A number of attempts to develop a new code—the so-called New Code Book (Novoulozhennaia kniga)—were undertaken by Peter I (reigned 1682-1725). Toward the second half of the eighteenth century, the code became, in a sense, the idée fixe of the monarchs: Elizabeth I, Catherine II, and Paul I were already unsatisfied with the earlier practice of appointing commissions—which had proven unsuccessful—and sought new ways of structuring work aimed at the creation of a code.[6] Thus, Elizabeth (reigned 1741-1761) ordered the production of a new code (ulozhenie); and, from 1754 through 1756, representatives of various estates were called together to form a kind of council. However, neither this attempt nor the better-known Codification commission of Catherine the Great II (reigned 1762-1796) produced any results. In order to finally achieve results, Paul I (reigned 1796-1801) limited the task to the compilation of a commercial code and came up with a radical method to realize his plan: the leading merchants of St. Petersburg were locked up in a wing of the Gatchina Palace and told that they would be granted their freedom only in exchange for a code.

This anecdotal story is a quintessential example of the overall approach of European absolutists: toward the middle of the eighteenth century, concern over the creation of a code was a necessary part of the labors of an enlightened monarch, and its publication was the greatest compliment for philanthropic absolute power. This idea was best expressed by Frederick of Prussia (reigned 1740-1786), who wrote that, in his code, all legislation was “properly ordered, expressed in the language of the nation, and presented in such a way so as to be understood by every citizen who received even the most modest of educations”.[7]

On the whole however, the codification projects of the Russian absolutists were fueled not by the need for practical enforcement of the law or the demands of interested groups but, rather, by fashion and considerations of the prestige of the monarch and his monarchy.[8] Yet overshadowed by more urgent political matters, these ambitions ultimately could not be realized.

As one of the departments of the state apparatus, the Commission for the Compilation of Laws (Komissiia sostavleniia zakonov, hereinafter the “Commission”) was inherited by the young Alexander I (reigned 1801-1825) from his predecessor Paul I. As was often the case in the eighteenth century Russia, the monarch tried to use structural innovations as a means of speeding up the work: in 1803, the Commission was placed under the direction of the Ministry of Justice; in 1809, it was reformed; and thereafter—on 1 January 1810—it became an institution under the State Council (Gosudarstvennyi Sovet). On this same day, a draft Civil Code (Proekt Graszdanskogo Ulozheniia) prepared by the Commission was submitted to the State Council.

The persistently fruitless attempts of previous rulers had finally been crowned with success, which has justly been linked with the appointment, in 1808, to the Commission of Mikhail Speranskii, whose career was then at its zenith. Speranskii’s golden quill—or, to be exact, his pencil, with which he was always capable of writing about any subject with both style and logic—made him a unique figure of, as Pushkin put it, the “splendid beginning” of Alexander’s reign. The codification of laws was not completely unfamiliar to Speranskii. His contemporaries said that, according to Speranskii, it was thanks namely to his organizational talents that the merchants were released from their confinement under Paul at Gatchina. At that time, the young Speranskii was able, in record time—by questioning the merchants and using the palace library—to draft a commercial code and to appease the madcap monarch.[9] Readers will not find any mention of this story in major works on the history of Russian law.[10] It is likely that, for legal historians, the participation of the creator of the Digest of laws of the Russian Empire in such an odd tale could be seen as denigrating to Speranskii’s dignity in the eyes of readers.

Nonetheless, in 1808, Speranskii began to work just as quickly as he had previously with the arrested merchants in Gatchina, guided by his desire to achieve results as soon as possible. Unlike his many predecessors, Speranskii tried to define the problem of codification as concretely as possible, turning it into a manageable bureaucratic task. The practical significance of reviewing existing legislation was obvious: a clear system of legislation free of contradictions should be able to rescue the existing practice of administration (which also included legal proceedings at that time) from inevitable defects.

In order to ensure that the work of systematizing Russian law did not occupy too much time, Speranskii’s Commission was organized into several editorial departments which divided the work in accordance with European practices of the time: the branch (otrasl’) principle. Several branch codes—criminal, civil, and commercial, as well as civil and criminal procedure—were compiled by the Commission simultaneously.[11] The Commission based itself on the successful experience of France, where—at the beginning of the century—five branch codes had been developed and adopted in a short time, the best-known of which was the Civil Code of 1804, which was officially renamed the Napoleonic Code in 1807.

For the problem of codification, Speranskii borrowed not only a general approach but, also, specific details. The draft 1809 Russian Civil Code, which was submitted to the State Council, clearly resembled the French Code. Such a conclusion is evident from a mere comparison of the structure of both works. Gianmaria Ajani has noted that—beginning in Modernity —codification efforts could not be original since they used the experience of other national codes.[12] From this point of view, Speranskii’s borrowing of the structure and of portions of the Napoleonic Code was a normal part of contemporary European practice. Speranskii could not have avoided taking into account the experience of countries which had recently systematized their own civil legislation—Austria, Prussia, and especially France, the empress of fashion.

In order to consider using foreign experience, Speranskii employed foreign experts in his codification work. For instance, it is known that a German professor of philosophy and political economy Ludwig Heinrich von Jakob, who came to Russia after Napoleon‘s troops invaded Halle, headed the drafting group of the Criminal Code (Ulozhenie o nakazaniiakh).[13] Such practices were fully consistent with the general openness of the reform efforts at the beginning of the nineteenth century. It is also known that Alexander had also seriously considered the option of inviting foreigners to be involved in the codification of Russian law. This question was discussed number of times and sessions of the Unofficial (Neglasnyi) Committee during the period 1801-1802.[14] In part, the Committee had drafted a letter in which—in the name of His Royal Highness—lawyers from Europe were invited to submit their recommendations for devising criteria for classifying and systematizing Russian legislation. It is also known that similar proposals were made, in particular, to an authoritative German state functionary Friedrich von Stein as well as to Jeremy Bentham. The first invitee refused while the second failed to agree the terms of his engagement with Alexander I.[15]

But we shall not dwell here on the degree of influence which the Napoleonic Code actually had on Speranskii’s draft.[16] We are primarily interested in what contemporaries thought of these borrowings. And here we see an interesting dynamic, the critical point of which was reached in 1812. Toward the beginning of that year, the first and second parts of the 1809 draft—which had been printed for general informational purposes—were adopted with several insignificant changes both by the Commission for the Compilation of Laws and by the General Assembly of the State Council.[17] The biggest changes were made to the chapter on divorce, which was found in Part I. Discussion of Part III began in 1812, but this was soon left hanging, as the Commission for the Compilation of Laws was reformed. Its new leadership had asked the Emperor for guidance on how to proceed with the existing draft and, indeed, on just what form the new codification should take.

II

“What can be said about the strange spawn of fancy, of the bad taste

and ignorance that are forcefully invading our language,

subverting its rules, offending our ear and good

taste! Words such as vdokhnovit’, vdokhnovitel’,

vdokhnovitel’nyi. With these words they wanted to translate

the words inspiré, inspirateur. But these words are barbarous,

non-transferable, and a place for them in Russian should not be granted.”

Nikolai Grech,

Chteniia o russkom iazyke (1840)

The Commission’s difficulties could be linked with one circumstance in particular: the sudden removal from state affairs on 12 March 1812 and the subsequent fall of its patron, Speranskii. The new leadership hurried to protect itself from errors and to gain approval from “on high” of its understanding of the task of codification. In the Considerations (Soobrazheniia)[18] handed up to the Emperor, the Council (Sovet) of the Commission —appointed in place of the ousted Speranskii—specified two contradictory paths for the publication of a code of laws. The first suggested the systematization of existing legislation with necessary additions, and the second called for the adoption of new principles borrowed from foreign legislation. It is not difficult to guess that the second path was linked with the drafts prepared by Speranskii of branch codes and was decisively rejected by the new leadership.

Speranskii’s successors contended that the very idea of legislators voluntarily changing the institutions making up the existing system was out of the question. The strength of the state, they said, was in the preservation of existing laws: “Any law can more befit a state when it has been illuminated by time. […] Not just people but also time establishes and determines the principles of legislation.”[19] Thus, the conclusion was that—when systematizing law—it was necessary to be guided, first of all, by the existing system and not to count on borrowing from foreign law. Therefore, the Commission suggested concentrating on the collection of existing legislation and thereafter—on the basis thereof—to extract new legal provisions. The Considerations said that these extracts from Russian law, on specific topics, had already started to be collected in the form of the compilations (svody) of Russian legislation. From these, it should have been “obvious [to everyone] that all materials were obtained in Russian law”.[20] It was suggested that commentaries and comparisons with foreign laws—while beneficial for legislative work—should not be publicized.

It should be stressed that the Commission considered it especially important to present the code as a collection of Russian laws based on existing law collected in svody. The term “svod” is highlighted there on purpose, as it designates a new, national approach to codification. The accent on the collection of domestic legislation did not exclude comparisons with foreign systems, but it did demand that this be hidden from fellow countrymen. What was the basis of this secrecy? Here, we should consider the expectations caused by law-drafting in general, and by the codification of laws in particular, among the educated public at the beginning of the nineteenth century. According to one contemporary, jurisprudence was at that time “in high fashion”,[21] as a part of the general reform mood and, consequently, legal romanticism of the era.

Interest in matters of legal policy was, in many respects, initiated by the authorities: the monarch and his “young friends”—who were captivated by debates about a “constitution”—tried to share their enthusiasm for reform with their educated subjects. With this in mind, and following the model of the English ministries, the Russian departments that were reformed in 1802 began to publish their own journals, which contained an unofficial part for the publication of articles on topical social and political problems. As a study by Viktoriia Kalendarova has shown, some of the most popular topics were “the law” (pravo), “laws” (zakony), and “legal monarchy” (zakonnaia monarkhiia).[22] For example, The St-Petersburg Journal (Sankt-Peterburgskii Zhurnal) of the Interior Ministry, following the French historian Andre Ferran, suggested to its readers that:

“the construction of any society assumes three things: a ruler [gosudar’], a nation [narod], and laws [zakony]. Without a nation, there is no state; without a ruler, there is no nation; without laws, there is no government, no legitimate ruler; without laws, power is tyranny; without power, laws are useless; without a ruler, power is ineffective.”[23]

Ferran did not assign a key role to the nation: for him, just as for Aleksandr’s friends, the nation was one link in the chain of Ruler-Power-Laws. The educated subjects, on the other hand, were prone to correlate the concepts of laws and nation. In his journal for 1803, the first director of the lyceum in Tsarskoe Selo, Vasilii Malinovskii, noted that:

“legislation [zakonopolozhenie] without the participation of those subject to the legislation [zakonopolagaemye], without their advice and ideas, is a greater calamity than the existing defects in the laws.”[24]

By zakonopolozhenie, Malinovskii understood the creation of a system of law that would get rid of the disastrous “defects in the laws”. Malinovskii thought that representatives of the people should certainly participate in the creation of a new code (ulozhenie) since the law proceeded from the “national [narodnyi] idea”.

For Malinovskii, the code should have been an object of national pride—an original work of Russians:

“Up to now, just as [the Russians] are renowned in Europe for their courage and victories, their legislation will show just how deserving they are of great respect for the talents of their quick minds and keen understanding.”[25]

A view of the code as an act of “national victory” was elaborated in 1811 in the influential publicist tract Memoir on Ancient and Modern Russia, (Zapiska o drevnei i novoi Rossii, hereafter “Memoir”) by Nikolai Karamzin, the historian who “awakened” national ideas and feelings in Russians.[26]

The spirit of this work clearly lay in its overall critique of the reform impulses of the young Emperor Alexander I:

“Russia has existed for about a thousand years and not in the form of a wild horde, but yet some insist that we need new institutions and regulations as if we just exited the dark American woods! We need a greater sense of preserving than creating.”[27]

In the area of the systematization of legislation, this general thesis was reduced to the idea of creating a national ulozhenie, i.e., one based on the principles of Russian law.

It should be stressed that Karamzin—who was also reputed to be an expert in the Russian language—did not himself write about a “national” (natsional’noe) ulozhenie. Avoiding use of the French word “national”, Karamzin wrote about the necessity for Russians to create an orderly system of law on the basis of “our own” (svoi), “domestic” (sobstvennye), “Russian” (russkie) laws. This general principle and the details of the argumentation were repeated later, in the spring of 1812, in the Commission’s Soobrazheniia, which were drafted after Speranskii’s dismissal. In essence, they presented the main substance of Karamzin’s arguments. Leaving aside for the moment the question of the reasons for the sometimes striking similarity of views, let us turn our attention to a number of differences in Karamzin’s arguments.

First, Karamzin saw the possibility of legal borrowing in the broader (in comparison with the Commission’s leadership) geopolitical sense as a blow to the prestige of the state. He stressed that adoption of the French Code was the fate of conquered nations.

“Thanks to the Almighty, we have not yet fallen under the iron scepter of this conqueror—[Russia] is not yet Westphalia, not the Italian Kingdom, not the Duchy of Warsaw, where the Napoleonic Code, translated through tears, serves as the Civil Code [Ustav grazhdanskii].”[28]

Karamzin was right in that Napoleon did indeed see the Civil Code as one of the means of asserting his dominion. For example, Bonaparte professed in a letter to his brother—Jerome, the King of Westphalia—that the introduction of the Napoleonic Code in German territory under French rule would give a strategic advantage to the new authorities since it would introduce new freedoms that were unknown in the rest of Germany.[29]

Second, contrary to the Considerations, in Karamzin’s Memoir, the Russian state was endowed with anthropomorphic characteristics: legislative policy as the “deeds” of the state were viewed from the point of view of the qualitative categories of “proprieties” and “virtue”. In Karamzin’s interpretation, Speranskii’s Draft Civil Code (Proekt Grazhdanskogo Ulozseniia) was funny and disgraceful for the state:

“Have we been laboring for some hundred years on the composition of our own complete ulozhenie in order to solemnly admit in the face of Europe that we are fools and to shove our heads under a book thrown together in Paris by six or seven ex-lawyers and former Jacobites?”[30]

Third, in Karamzin’s mind, legislation created under foreign conditions could not be borrowed from the practical point of view. Karamzin was convinced that the legal regulations of revolutionary France would not work in Russia, where the existence or absence of civil rights was determined by belonging to a particular social group and not guaranteed by the national status of being “Russian” (russkii):

“Would it be appropriate to begin a Russian ulozhenie with, for example, a chapter on civil rights that have never actually existed, and do not exist, in Russia? We have only political [rights] or the particular rights of various state ranks; we have noblemen, merchants, the petty bourgeois, etc.—they all have particular rights—they have nothing in common except that they are called Russians.”[31]

This is a very important point. There is a clear contradiction in the logic of argument: Karamzin says that there were no rights and obligations that belonged to “Russians” as a collective; instead, they developed at the same time in the various legal realities of the social groups defined by the state. If that was the case, then what “Russian concepts” or, rather, the concept of what type of Russians—noblemen, merchants, petty bourgeois, or members of other social groups—should form the basis of the national code?

Most likely, it was the diversity of legal rights in the hierarchy of Russian society that—for Karamzin—was the basic “concept” of Russian law.[32] Enshrinement of the nation’s legal “habit” (pravovoi obychai), within the strict categories of jurisprudence, would have ensured the protection of the old order, which was especially necessary from the point of view of the conservatives in their battle with foreign innovations. Here, Karamzin took a pragmatic look: legal transfer is a labor-intensive process for practical reasons. In criticizing the utopian nature of the reform plans at the beginning of the nineteenth century (Speranskii's Draft Civil Code of 1809), Karamzin—as its greatest opponent—used a key argument: the doubtful practical feasibility of using a French post-Revolutionary model of civil law legislation. Indeed, the hierarchical, disjointed Russian society, which was fragmented into numerous groups each with a separate legal status[33], was incapable of accepting the declarations of equality contained in the French Civil Code without a fundamental restructuring of the entire state system—the political, social, and economic. The luxury of large-scale borrowings was something to which only the draftspersons of legal reforms in revolutionary times could commit themselves, for example, those who created the Russian Civil Code in the beginning of the 1990 s.[34]

We arrive here at the key questions: if the practical impossibility of the transfer of Napoleon’s Code to the Russian legal system was evident, what was the sense of national rhetoric and what exactly was meant by the term “the nation” (narod), the legal traditions of which were disputed by the adherents of national codification free from any kind of foreign borrowing?

This issue has already been addressed by those who have tried to explain the similarity of the nationalist positions of Karamzin’s Memoir and the Commission’s Considerations. In the opinion of Fedor Sevast’ianov,[35] the Speranskii factor was primarily responsible for the demands, e.g., of Karamzin and of the authors of the Considerations, to stick to “Russian legal principles” (nachala russkogo prava). On the basis of archival materials, Sevast’ianov has convincingly shown that the Commission’s Considerations were the work of the Livonian baron, Gustav Andreevich Rozenkampf, who—from 1804 through 1808, until Speranskii’s arrival—was the real leader of the codification effort and who, in 1812, exerted all of his efforts to regain his lost position. Thus, for Sevast’ianov, the appearance of demands for a conservative approach to codification was the embodiment of two tendencies: a general dissatisfaction with Speranskii’s politics, concentrated in Karamzin’s Memoir, and the private interests of Rozenkampf, who tried to contrast his own position with the actions of the out-of-favor patron.

Sevast’ianov uses this pragmatic explanation to argue that the opposition to Speranskii’s work was (more) based on personality and not (at all) on a view that the draft itself was, in any way, deficient.[36] On the one hand, this view of Sevast’ianov—to us—is not an unreasonable one. Sevast’ianov is, thus, able to illustrate the true motives of interested actors who were on the stage with Speranskii. On the other hand, Sevast’ianov’s argument needlessly reduces the complexity of the situation. It ignores the independent question of the means (e.g., why and which?), used by the enemies of Speranskii, to attempt to defeat him and his draft; in particular, the question of treating the “national” (natsional’nyi) language of the political conflict surrounding the code as an important research object. Why did this language become such an effective weapon in the political debate among interested parties that, as we will see later, even Speranskii himself subsequently used it with the aim of legitimizing his own later attempt at codification?

It seems that there is no simple answer to this question. Indeed, the circumstances surrounding Speranskii’s dismissal could have brought about the change in the general spirit of the program document of the new leadership of the Codification Commission. In the spring of 1812, Petersburg was buzzing with rumors about Speranskii’s parricide in favor of the French which led to his sudden replacement. From this point of view, the borrowing revealed by Karamzin in Speranskii’s Draft Civil Code provided additional evidence of Speranskii’s criminal Gallicism. In this situation, cutting oneself off from the previous non-Russian[37] method of codification was a natural step for the new leadership of the codification effort.

However, one should not exaggerate the significance of Karamzin’s denunciatory criticism and of the personal motives of individuals involved in the sad fate of Speranskii’s draft. Both Speranskii and the leadership of the Commission for the Compilation of Laws had expressed ideas similar to many others, the source of which could be found in the national-patriotic feelings of the Russian elite, who were united by the great desire for a Nation—a Russianness (russkost’), a distinct community (soobshchestvo). We should remember that Malinovskii demanded this when he spoke about the initiatory nature of codification for the Russian nation as a way of “proving” itself: “their legislation will show just how deserving they are of great respect”.[38]

The calls for Russians to create their own “national code” were a reflection both of specifically Russian circumstances and of the wider circulation of ideas. On the one hand, as the twentieth-century historian Lea Greenfeld has noted, this was one stage in the development of the nationalism of the nobility, which was linked with a crisis of identity of the “state” estate (gosudarstvennoe soslovie).[39] In the demands to establish “national” legal principles, Russian first estate (dvorianstvo) sought salvation in antiquity, in the established system of socio-economic relations. These are the same ideas which had been expressed in Karamzin’s Memoir. And they had also been expressed earlier by other members of the elite. For example, Denis Fonvizin took from his travels around France at the end of the 1770s the idea that Russian serfs enjoyed a great deal more freedom than France’s poor:

“I learned to distinguish between freedom in law and real freedom. Our people don’t have the former, but they enjoy the latter in great measure. On the contrary, the French, who have the right to freedom, live in absolute servitude.”[40]

In addition, the demands for their own special law reflected the usual swinging of the pendulum of Russian nationalism, forever moving between extremes of attraction and repulsion in relations with the West. The stage of proximity—“optimistic nationalism”, in Greenfeld’s terminology—was characterized by the certainty that Russia was developing along the same path as the West. This was understood as the path of progress, the path of the modern, meaning a potentially stronger state. France was just such a state, whose cultural hegemony gradually took the form of the military aggression of the Napoleonic wars. The grandiose French expansion was a visible confirmation of the strength of that which was modern, superior, and imposed itself as universal.

Nationalism was one of the driving forces behind the movement of the masses of peoples that accompanied the bloodletting at the beginning of the nineteenth century, first from the West to the East and then back again from the East to the West. Nationalism researchers often use as a theoretical basis the juxtaposition of “Western”, “civic” nationalism and “Eastern”, “ethnic” nationalism.[41] Moreover, Eastern/ethnic nationalism, as Gregory Jusdanis has convincingly shown, entails not only the “liberating”—in its own fashion—national self-awareness of subjugated nations, or, in other words, “colonial” nationalism.[42] Ethnic nationalism was a natural reaction to the claims of modern states/peoples to economic, ideological, and political hegemony. From this point of view, the appearance of German and Greek nationalism is an indicative example of the so-called Eastern type of nationalism reacting to a more modern “other”.[43]

It seems that, despite the conventionality of this system of classification—which has been subjected to justifiable criticism for the insertion of qualitative criteria, contrasting good/civic/democratic/Western nationalism with bad/ethnic/totalitarian/Eastern nationalism[44]—we can nevertheless still use it. The discussion of the national codification of Russian law was, on the whole, provoked by “other” foreign nationalism. The French Civil Code, as a modern intellectual product, was not simply a technocratic instrument—a legal technique accessible to others. It was, first and foremost, a national product, superior in its essence to the legal acts of other states, a unique modern instrument of subsequent national expansion.

The 1804 code is known as one of the chief documents of French civic nationalism for a number of reasons. One of the defining characteristics of being French was the equal possession of civil rights, as was established in Article 8 of Book 1 of the Code (“On persons”): “Tout Français jouira des droits civils” (Every French citizen enjoys civil rights).[45] Two points should be made here. First, legal particularism was eliminated: the various civil-law norms of the individual provinces were replaced by a unified French law, which covered the entire territory of the state. Second, in the Declaration of Rights of Man and Citizen, in the sphere of civil relations, the central institution of which is ownership, the difference in the legal rights of various social groups was eliminated in law. Thus, the French Civil Code was a unique constitution[46] of the citizens of France who were born along with the Revolution.

French civic nationalism—founded on the universal principles of natural law, was repulsed in the face of the ideas of the cultural nationalism of German intellectuals. The sources of this nationalism could be found in the metaphysical philosophy of Friedrich Shelling, who contrasted the idea of revolution with the idea of limited development: Organicism. Contrary to the Cosmopolitanism and Rationalism of the French Enlightenment, the German Romantics attached the most importance to the unique experience of an individual nation, “explaining it in the attractive forms of national poetry and in a number of metaphysical systems”.[47]

Karamzin’s History of the Russian State (Istoriia gosudarstva rossiiskogo) was an experience in the creation of such a system—the invention of the tradition of national statehood. Just as with history, a nation’s law—as visible evidence of what is unique about the nation—was a buttress of cultural nationalism, inventing the spirit of the nation. Furthermore, legislation, as the quintessence of the political and socio-economic order of the state, was the most important political institution—requiring protection from unfavorable comparisons with foreign models. And in this case, the language of nationalism was becoming an important instrument in the political battle for preservation of the existing system. It was not by chance that the jurisprudence of the nineteenth century was clearly characterized by nationalism, which was expressed in the persistent search for national features of legal systems and representatives of the legal profession of this or that state. Although national factor, as Alan Watson wrote, has been “the major, if not always the main, factor in legal change in the western world since the later Roman Empire”,[48] the invention of national law was made possible thanks to the theoretical developments of the Historical school of nineteenth century legal studies, which had a strong influence on global jurisprudence.[49]

When Karamzin insisted that Russians find their own legal principles instead of borrowing from foreign experience, Professor Friedrich Carl von Savigny of Berlin University was teaching that the law—as the embodiment of the national spirit (Volksgeist)[50]—was as much a sign of the nation as was language, which was not in the power of rulers to change. The historical school of legal studies of von Savigny was based on general organic theory.[51] In place of the ideas of natural law and its universalism of rights of citizens and disdain for traditions and national borders came an understanding of the national idea, which determines a nation’s way of life, morals, and political and social institutions.

The search for the nation undertaken by philosophers, historians, legal scholars, and poets reflected the general tendency towards disappointment in the ideas of the natural cosmopolitan who turned out to be an armed French soldier, a barbarian with hands stained by the blood of revolt. Against this background, the political theory of conservatism, working in the name of Tradition, became particularly popular. Laws, in the understanding of conservatives, were the fruit of tradition, a visual incarnation of inherited order. On the whole, this ideology was crystallized in the principle of “from the opposite”—from the ideas of the Enlightenment inscribed on the standards of rebels. As the British ideologue of conservatism—Edmund Burke—had written, the essence of the French Revolution could be summed up in the “violation of property, law, religion united in one object”.[52]

According to the ideas of conservatives, a “legal monarchy”, on the other hand, should be based on the “great hereditary wealth and hereditary dignity of a nation”.[53] Language allows for the personification of the abstract concepts “wealth” and “dignity” as an indication of the unified control of social forces by those who possessed capital and aristocratic titles. Because it was necessary for the guardians of legality in a “legal monarchy” to maintain their positions of power, they had to look for national/popular traditions of the existing order to contrast them with seditious ideas about the international natural rights of people.

Within this atmosphere of the circulation of ideas at the turn of the eighteenth and nineteenth centuries—described by the late nineteenth/early twentieth-century historian Sergei Platonov as a time “of a great break in the spiritual life of humanity,”[54] which was characterized by a movement away from Rationalism toward Romanticism—the historical figures in this drama formulated their notions of national law. Two students of German professors—Rozenkampf (who received his education in Leipzig) and Karamzin (who studied at the boarding school of Professor Shad at Moscow University—can be included within the German Group of the Russian elite, whose opposition to the so-called gallophiles was described by contemporaries.[55] The former, to one degree or another, developed the ideas of national Romanticism and organic political development. The latter remained adherents of the rationalistic views of the Enlightenment which were popular at the beginning of the reign of Alexander I—a time of reform. Based on the example of the codification efforts of Speranskii, an acknowledged gallophile, we have seen how the rational approach to legislative policy worked: the creation of a code was perceived as a rational task that required the most modern legal solutions. Law was seen, first and foremost, as a technical matter, as a means—if not to the modernization, then at least to a certain optimization—of state rule. Moreover, one should take into account that, after the 1789 French Revolution, the French Civil Code was celebrated as not only the most modern but, also, as the most “liberal”[56] (or even “democratic”), as it embodied equality in civil rights. This reputation of the French Code also played a role in Russian debates on codification patterns in the nineteenth century.

In addition to the general context of the circulation of ideas, the particularities of the Russian situation should be added which—as the late-nineteenth-century civil-law scholar Gabriel’ Shershenevich wrote—ensured the historical school of law “success in Russia thanks to the favorable circumstances which existed for it”.[57] In the changing ideological situation, the external political situation brought about a number of changes. In the face of the French threat to the sovereignty of the Russian Empire, national feelings intensified, becoming a driving force for building a state ideology. The penchant for cultural nationalism, which was seen in opposition to the “Other,”[58] was already taking shape under Catherine the Great. The caustic satire of Nikolai Novikov, Iakov Kniazhnin, and Denis Fonvizin ridiculed the lame attempts of some of the national elite (noblemen) to renounce what was Russian in blind admiration for what was French. The stupidity and impropriety of the behavior of such gentlemen were depicted in contrast to the patience, kindness, and wisdom of their servants, who symbolized nation (narod).

The war of 1812—known since the 1830s as the Fatherland War (Otechestvennia voina)—was a powerful catalyst for the idea of nationalism. The greatness of the conqueror symbolically underlined the greatness of that which was not subjugated—or, expressed in “national” terms—of the nation that defeated the conqueror.[59] Having proved its impregnability in the battle with the “new Attila”, the particular spirit of the Russians began to be seen as an object that required research, discussion, and the attention of society.

Here, it is worth noting the irony of language: the formation of Russian patriotic lexicon was made possible thanks to the national rhetoric drawn from the experience of the French Revolution. The Russian elite’s acquisition of a national identity was accompanied by the instability of new concepts in the language. As twentieth-century scholar of Russian literature Victor Vinogradov has noted, when the leading figures of the second decade of the nineteenth century—who made a great contribution to the development of Russian culture—used the words narodnyi and natsional’nyi, they referred to the French source of the terms to ensure that they were understood correctly. For example, such a double Russian-French usage can be found in Pushkin, who put a French translation for his Russian expression “vo vsekh otnosheniiakh samyi narodnyi (le plus national et le plus populaire)” (in all respects, the most national)”.[60]

At the same time as representatives of the cultural elite were still discussing how to use the French discourse of Nation in a Russian context,[61] the codification issue started to be clearly perceived as an act of the self-affirmation of the Russian people. Moreover, taking into account that representatives of the people were only allowed to take part in legislative activities under the pressure of the 1905 revolution, then the “Russian nation” (russkii narod), in this case, was understood to mean only the state. Thus, the creation of a code began to be seen as a part of the national course of domestic politics and, subsequently, as of its further formulation through the principles of the ideology of so-called ‘official nationality’ (ofitsial’naia narodnost’); the concept of this ideology was originated by Minister of Education Count Sergei Uvarov in his famous motto of 1832 “Pravoslavie, Samoderzhavie, Narodnost’” (orthodoxy, autocracy, nationality).[62] Long before, however, Karamzin’s Memoir clearly had outlined the fundamental idea of the national popular approach to codification: “an old nation [narod] doesn’t need new laws”. In other words, inspiration should be sought not in foreign models but, rather, in the adaptation of existing law.

III

“The essence of a metaphor is understanding and

experiencing one kind of thing in terms of another.”

George Lakoff and Mark Johnson,

Metaphors We Live By (1980)

Karamzin described the procedure of creating “a consolidated book [svodnaia kniga] of Russian laws” as a very simple matter: by combining scattered legislation under defined topics and adding whatever was necessary, the legislator would soon get a book of laws essential for court proceedings. It should be stressed that Karamzin called this collection of laws not a code (ulozhenie) but, rather, a consolidated book (svodnaia kniga) or shortened svod (usually translated as ‘digest’).

Prior to Karamzin and the Commission for the Compilation of Laws, there was no meaningful difference between the terms svod and ulozhenie. From the seventeenth century to this moment in time, they were used interchangeably.[63] But Karamzin—as a founder of Russian conservative (legal) thinking—clearly contrasted the svodnaia kniga with that which he deemed to be a more unreliable form of systematizing laws: the ulozhenie. In his view, an ulozhenie was linked with Napoleon and his Code Civil. Karamzin and his “school” were not oblivious to the seventeenth-century Ulozhenie of Alexei Mikhailovich (Council code) which they saw as a traditional Russian legal document. But they were convinced that introducing an ulozhenie at the beginning of the nineteenth century posed more innumerable difficulties for the Russian Emperor than it did for his predecessor. In particular, the Karamzin school saw dangers for the Russian Emperor in a legal instrument which was now associated with the revolutionary product of Europe’s enfant terrible – revolutionary France. They doubted that the Russian Emperor could the drafting process as Napoleon had done; and in such a case, the task would fall upon the shoulders of the Russian (legal) elite which in the mind of Karamzin, and his supporters, had become “poisoned” by Western European philosophy of liberté, égalité, fraternité (svoboda, ravenstvo i bratstvo). It should be noted that the meaning of svod—in this case as an independent means of classification, as used by Karamzin and Rozenkampf—was a linguistic innovation, a new broadening of an existing concept.

As a 1847 dictionary of the Russian language (considered to be the most authoritative) illustrates, the term “svod” meant—first and foremost—“the effect of bringing together, collation” (svedenie, slichenie).[64] In the list of definitions, the Dictionary fails to provide any specific legal meaning of the term svod. Svod zakonov (digest of laws) was used in the Dictionary an example of the use of word “svod”. Similar to the noun “svod”, which has its roots in the verb (svesti, svodit’), “ulozhenie” also came from a verb (ulozhit’). The Dictionary gave a general definition for it: “an indication of the effect of laying something out or structuring something”.[65] Contrary to “svod”, however, “ulozhenie” was presented by the compilers of the Dictionary as a legal term with two meanings: 1. Uzakonenie, uchrezhdenie, ustav, (statute, regulation); 2. Kniga, soderzhashchaia v sebe izdannye zakony (a book containing published laws).

We will return to the question of how the meaning of ulozhenie as a type of normative act appeared. For now, however, there is another important point: with respect to the variety of its usage, the term “svod” was much more general than the specific legal term “ulozhenie”. Nevertheless, in documents spanning from the seventeenth century to the beginning of the nineteenth century, these terms were usually used side-by-side to indicate attempts to create a replacement for the Sobornoe Ulozhenie of 1649.[66] From an analysis of the edicts related to the activities of codification commissions of that time, it is possible to see regular usage in official language of the formulation “svod ulozheniia”.[67] Implying the codification (kodifikatsiia) and systematization (sistematizatsiia) of legislation, which were unknown in Russia at that time, the term “svod ulozheniia” included both a process (svod: collection) and a result of the work (ulozhenie: structure). In general, as some historians of the codification of Russian legislation have pointed out, the word “svod” indicated at that time a technical process: the thematic ordering of laws regulating a particular area of legal relations.[68] Whenever the codification of laws was discussed, the terms “svod” and “ulozhenie” were used together which—by the beginning of the nineteenth century— had formed a hybrid term: “svodnoe ulozhenie”. We should remember that the draft Civil law Ulozhenie and Criminal law ulozhenie were prepared by Speranskii in fulfillment of an order of Alexander I to create a svodnoe ulozhenie.

Differentiating the terms “svod” and “ulozhenie”—and using the former to mean a Russian national type of the systematization of laws—Karamzin and the leadership of the Commission for the Compilation of Laws had changed the language in accordance with the national task of the codification of the law: to establish particular legal principles of the Russian people. On the whole, after 1812, patriotic rhetoric and the language of nationalism began to play an important role in discussions about a code. The State Council—which had previously accepted two parts of Speranskii’s Draft Civil code—now, in 1813, required of the Commission that all further amendments and improvements to the Draft needed to be in accordance “exclusively with the historical roots [korennye nachala] of Russian laws”.[69] A member of the State Council, the well-known Russophile Aleksandr Shishkov when criticizing the “suspicious” Speranskii’s Draft Civil code—insisted that the new document be renamed “National code” (narodnoe ulozhenie) rather than “Civil” (grazhdanskoe).[70]

Compromised by long-term association with the disgraced Speranskii, the “old” codification work grounded to a halt in 1815. In 1816, the Commission’s staff was reduced and financing was cut off, and work on the branch codes (commercial, criminal, procedural) was abandoned. Instead, the limited funding of the Commission—in accordance with the predominant mood—was used in the search for legal materials from which it could extract “the foundations [osnovaniia] of Russian law”.[71] The new focus of codifiers on the foundations (or basic principles) of Russian law was a part of what had become a popular trend (ein System der ganzen Jurispridenz) in legal studies in Europe in the last decades of eighteenth/beginning of nineteenth century[72] and provided an example of the combination of the previous rational approach—since principles were to be designed rationality—with the new historical emphasis on the search for tradition.

Yet while Speranskii’s successors continued to collect domestic legislation, the topic of creating a Russian national ulozhenie (code) was revived. The rhetorical calls to protect national legislation from foreign influence and to establish domestic legal traditions became a way of expressing loyalty to the authorities. This reflected the above-mentioned merging of the concepts national (narodnyi) and state (gosudarstvennyi). As a historian of Russian patriotism Irina Sandomirskaia has written, patriotic rhetoric became “a part of the rhetoric of political loyalty”.[73]

The most striking example of this is a note written by Speranskii’s former friend—his right hand in the Department of Laws of the State Council, Mikhail Magnitskii (who is better known for the position which he later held as head of the Kazan’ Education District). In 1823, he composed and sent to the Emperor a note titled “The Opinion of a Russian Nobleman on the Civil Code for Russia” (Mnenie russkogo dvorianina o grazhdanskom ulozhenii dlia Rossii).[74] Even in the author’s introduction of himself—“The Opinion of a Russian Nobleman”—there is a declaration of “nationality” (narodnost’) in two senses: national self-actualization—the author’s stressing of his Russianness —and the author’s attributing of his position to the entire group of noblemen— narodnyi in the sense of “popular”.

Magnitskii spoke out as a fierce opponent of legislative innovations such as those which had been poisoned by the alien spirit of pagan Roman laws and the laws of the Catholic Church (i.e., those of Speranskii). He proposed the creation of a “truly Russian” ulozhenie based on the traditional principles of the law of their forefathers, i.e., “agreeing with Orthodoxy, everything appropriate to autocratic rule, the customs and spirit of our own people”.[75] To achieve this, in his opinion, the Commission ought to collect and systematize existing legislation on the basis of a special national system of law (as opposed to Speranskii’s first approach of copying foreign (French) concepts). We can see that this is the very same idea as Karamzin’s thinking a decade earlier about a svod. Not having had an opportunity to take part in the creation of Draft Civil code, Magnitskii tried to defend the purity of Russian law in the areas entrusted to him—geographically as well as in his in his chosen field of education. In the 1820s thanks to his efforts as an educational administrator, a course on Roman law at Kazan’ University was replaced by one on Byzantine law, which he believed to be a more fitting subject for future Russian lawyers.[76]

At the same time, the ideas of the educated class on the supremacy of the rational and universal in the system of social institutions were subjected to persecution. In 1819, a book by Professor Aleksandr Kunitsin of the Lyceum in Tsarskoe Selo— Natural Law (Pravo estestvennoe)—was removed by order Minister of National Education from all institutions under the Ministry. The book claimed that “in natural law, all of the rights and duties of people as rational beings are the same and equal”.[77] The conservatives saw in it “a vast code of rights conferred upon some sort of natural person” that was harmful to youth.[78]

On the whole, in the matter of codifying laws, the general rational approach of deducing the fundamental principles of law from notions of universal rules which were common to all mankind was rejected. This, by and large, coincided with the common European phenomenon of the actualization of political and cultural forms of nationalism expressed in the zealous search for Tradition.[79] Yet, in the end, a code of the rights of Russians was not compiled. As was the case in the eighteenth century attempts at codification became more active at the beginning of the reign of the new Emperor.

IV

“We had a little book of general history, written

I don’t know by whom, which was hardly twenty pages,

and on the cover was written: ‘For soldiers and for

civilians.’ Earlier, it had read:

‘For soldiers and for citizens.’ That’s how

its skilful author had written it, but this made

somebody too uncomfortable, and in place of

‘for citizens’ [grazhdane] was written ‘for civilians’ [obyvateli].”

N.S. Leskov,

Kadetskii monastyr’ (1880)

Having ascended to the throne in 1825, Nicholas I (reigned 1825-1855) appointed Speranskii to again compile a code within the Second Section of His Majesty’s Own Chancellery (Vtoroe otdelenie sobstvennoi ego imperatorskogo velichestva kantseliarii), which was created especially for this purpose. Sources suggest that the work of the Section was, on the whole, structured in the same way as it had been for the compilation of branch codes in 1809-1810.[80] A subject plan was created, and employees collected legislative material according to its categories. The corresponding parts of the code were then developed on this basis. The chief innovation was the overall presentation of the Section’s work, which was imparted by the Section’s leadership, chiefly Speranskii. Codification was presented as a “national” (natsional’nyi) project, the foundation of which was the svod, in the sense given to this term by the opponents of the 1809 Draft Civil code.

By 1833 the Second Section had prepared a Complete Collection of Laws of the Russian Empire (Polnoe sobranie zakonov Rossiiskoi imperii) and a Digest of Laws of the Russian Empire (Svod zakonov Rossiiskoi imperii), which Speranskii had presented for the first time as two variations of a svod: (1) A historical svod of all legislation (promulgated after 1649); (2) A smaller svod of existing laws, respectively.[81] The former (Complete Collection of Laws) was meant to show the development of the law which Speranskii described in the spirit of the theory of Organicism: “as legislation sprouted”. Therefore, this multivolume work included all legislative material in chronological order, beginning with the publication of the Sobornoe ulozhenie. The latter (Digest of Laws) entailed—first and foremost—the selection by Speranskii and the Second Section (on behalf of the Emperor) and then the systematization (according to the main division of law: public law (zakony gosudarstvennye) and private law (zakony grazhdanskie) of legislation from the Complete Collection of Laws.

The completion of codification in the next and final stage (after the Complete Collection of Laws and Digest of Laws) was supposed to be an Ulozhenie in which the legislation systematized in the Digest would be reshaped in accordance with a defined system.

It seems that the “rehabilitated” Speranskii differentiated between sobranie/svod on the one hand and ulozhenie on the other—as distinct stages of codification, one which was designed to replace the other—only as a way of stressing why his new path was correct. He reduced the lack of success of the work of his predecessors, including his own, to a very simple explanation: the mixing of both approaches, where

“the beginning work was at the end, i.e., they began to compile a code (ulozhenie) without a digest (svod) of existing laws”.[82]

In order to legitimize his codification plan under Nicholas’ sponsorship, Speranskii replied upon the arguments of his opponents from a decade earlier, who had criticized the Draft Civil code for its isolation from Russian reality. This Svod of Speranskii as the basis of the new code, symbolized adherence to the traditions of historical, Russian law, and, in doing so, ensured protection from earlier suspicions.

This clear contrast between system (ulozhenie) and collection (svod) revealed a new meaning of the word “ulozhenie” which, until then, had not existed. With time, the language absorbed it: the most complete and authoritative of contemporary Russian dictionaries (published in 1964), provides as a figurative meaning of “ulozhenie” “a system of rules of any type”.[83]

Such linguistic pliancy was the result of the political significance of the process of the codification of laws under Nicholas I. The voice announcing the Digest was the voice of power—first and foremost, of the Emperor himself, for whom the Digest was a bulwark of national legal tradition and a counterbalance to the foreign constitutional ideas that inspired the 1825 revolt of the Decembrists. In a manifesto prepared by Speranskii himself, the Emperor had said:

“It is not from daring dreams, which are always destructive, but from somewhere above that state institutions are gradually refined, deficiencies improved, abuses corrected. Through gradual improvement, any modest wish for the better, any idea aimed at affirming the force of law, at broadening true education and industry, which we have achieved in a lawful, open way for everyone, will always be accepted with reverence.”[84]

It should be stressed that, in the eyes of the Russian autocracy, changes for the better were linked with “affirming the force of law”, which should be done only from above and gradually, by means of refining existing institutions. The establishment of complete “legality”, as the authorities saw it, replaced the need for a constitution—something that was alien to domestic traditions.

That is why the Emperor—in appealing to the legality of traditional Russian law—stressed in the State Council in particular that: “The Digest (Svod) will not create new laws, but will put old ones in order.”[85] This phrase was used as a definition of Russian codification for a long time thereafter, and became even common place in nineteenth-century textbooks of Russian law. In addition, beginning at the end of the nineteenth century, it was often held among progressive (legal) intelligentsia that the monarch had rejected a “liberal” plan for the creation of an Ulozhenie—limiting himself, instead, to a “conservative” Svod.

This stereotype of rejecting the liberal for the conservative is based on an insufficiently critical evaluation of the simplistic “traditionalistic” representation of the Digest (Svod) by those leaders who were most directly involved in codification efforts. I have already noted above that Speranskii was himself the original author of this stereotype by sharply differentiating between the terms “svod” and “ulozhenie”. In 1831, there were attempts to create the most politically advantageous notion of the Svod as “national codification” during the final stage of its composition, when the Svod was supposed to be sent to revision committees that had been especially created in key ministries. The editors-in-chief, Mikhail Balug’ianskii and Speranskii, made special efforts to ensure that the provisions of the Digest did not cause any doubts about the existence of sources. In a new instruction to the Section on 21 February 1831, its employees were directed to generally “retain the words” (priderzhivat’sia teksta) of the source of the law, making corrections only in exceptional cases.[86] This usage of legal language of previous times was to provide the visible antiquity of the Digest, which was a necessary outward sign of legality, a persuasive counterargument against the natural rejection of the code as a suspicious innovation.

It should be noted that—proceeding from the political considerations of the success of their creation—the editors of the Digest (i.e., Speranskii and his assistants in the Second Section) were eager to have its form accepted as one which was traditionally Russian in nature. For this purpose, they stylized it to a not insubstantial degree (i.e., using legal language of Russian law from the Middle Ages). Nevertheless, despite the outward stylization of the Digest as a historical collection of Russian legislation, the work of Speranskii and the other codifiers of the Second Section can without doubt be considered to be innovative: a system of domestic law which distinguished between private and public law.

Furthermore, the 1826 Instruction of the Second Section—which was in force until 1831, the entire period of drafting the Digest—allowed for the creative (i.e., selective) use of the original sources contained in the Complete Collection of Laws from which Speranskii and the Second Section drafted the Digest.[87]

However, there was more which has only first been observed in late nineteenth century: the power of Speranskii and the Second Section included “legislative initiatives” directed towards filling the gaps in Russian legislation which had been “discovered” by the Digest drafters.[88] These gaps were formally filled once the Second Section had turned to the Supreme Legislator (i.e., the Emperor) who would promulgate the relevant edict(s).[89] Thus, despite Speranskii’s declarations about the extraordinary conventionality of the Svod / Digest as a specific Russian product based exclusively on Russian legal traditions,[90] it undoubtedly represented a meaningful legal reform inspired—certainly in part—by non-Russian models.[91]

This observation was forcefully underscored at the end of the nineteenth century through research undertaken by the legal scholar (and politician) Maksim Vinaver. While he was not the first one to note the overall borrowings from foreign sources in the Russian consolidation of laws in the Digest (a critique had already appeared in 1882, when a drafting commission was convened to produce a new codification of civil law),[92] Vinaver’s work yielded a detailed study of the similarity of the institutions of domestic civil law—which had been systematized in Volume Ten of the Digest—and the Napoleonic Code.[93] The subjects in question concerned matrimonial and family law, proprietary interest, obligation, and specific forms of legal relations: the demarcation of property and ownership, the concept of easement,[94] types and sources of pledges, and the principle of the freedom of contract and equality of parties.[95] In the Svod of Civil Laws (Volume Ten), the rules regulating the above-mentioned institutions were provided with references to domestic Russian legislation of the eighteenth century. The check of these references by Vinaver demonstrated that the “sources” had almost nothing in common with the provisions of the Svod and most likely has been used by Speranskii and the Second Section as a sort of “smoke screen”. Thus, unlike Speranskii’s 1809 Draft Civil code, direct and indirect borrowings were hidden behind the outward appearance of their domestic roots. To describe this phenomenon in Russia, Ajani has used the terms “open” and “closed” modes of legal borrowing.[96]

Thus, a svod had become a particular form of legal reform which was meant to accent the continuity of Russian legal traditions. Here was a measure of success of the Svod which later gave rise to skepticism of those who had been educated by using its fifteen volumes as textbooks as well as the primary source of Russian law. If at the end of the 1820s and beginning of the 1830s, the invention of a national form of legislation had ensured its success as a tool of codification of law, then—from the second half of the nineteenth century—the situation began to reverse itself. Domestic critics of the authorities pointed with increasing indignation to the incomplete nature of the codification process—at the fact that the Svod was only a compilation from Russian legislative antiquity, an interim step toward the creation of a real code, an ulozhenie.

They characterized the national traditions of the Svod zakonov not as a virtue but as defects.[97] Its “uniqueness” was seen to be an argument against its further application.[98] After the authorities refused to continue the “Great” reforms of the 1860s of Aleksandr II, liberals (e.g., the legal scholars and publicists Aleksandr Gradovskii and Konstantin Kavelin) began to criticize the Svod as a symbol of “particularly national rule”, which, when elevated to the level of government policy, allowed the government “to treat us like Negroes or Zulus”.[99] In the end, they accused the authorities of taking an Orientalist or, in essence, a colonial approach to society.[100] It should be stressed that this view did not apply to the entire population of the Russian Empire but, rather, only to its educated part—the readers of the journal The Observer (Nabliudatel’), who referred to themselves as “society” (obshchestvo).[101]

The liberals contrasted the official conception of “national originality” (teoriia ofitsial’noi narodnosti) with a thesis on the universality of the achievements of world civilization (universal’nost’ mezhdunarodnogo pravovogo poriadka). It is only natural, of course, that here the accent was on the social-political system as well as on “the legal structure”:

“Legal order, both international and national, as well as railroads, telephones, telegraphs, universities, the printing of books, and freedom of conscience and thought.”[102]

In the process of highlighting this contrast, the old term “ulozhenie” acquired a new meaning, i.e., that of a symbol of the late nineteenth-century reform efforts which, ostensibly, should have brought Russia closer to international achievements—at least in terms of legal development. This metamorphosis was based on the mythologization of the codification efforts of Catherine the Great and Speranskii.[103]

Liberal authors idealized the Codification commission (Ulozhennaia komissiia) of Catherine the Great (in the years 1767-1768), as a precedent for involving representatives of Russian society in the work of this quasi-parliamentary institution, which the enlightened Empress had created.[104] Thus, Kasso wrote at the beginning of the twentieth century as if it was an indisputable truth that: “[…] under Catherine the Great, the idea of undertaking numerous reforms in all areas of legislation was linked with the creation of an ulozhenie”.[105] Despite the fact that work on Catherine’s Ulozhenie had never been commenced by the Commission and, therefore, that the spirit of her Instruction (Nakaz) of 1767 to the deputies turned out to be just as brilliant and useless as the gilded shrine especially designed at the same time—upon order of the Empress—for the original Council Code,[106] the overall assessment of her well-intentioned efforts was positive. In Gradovskii’s view, the Commission’s work “strengthened and refreshed” domestic law “with new elements drawn from a national source”.[107] At first glance, this may seem contradictory to the criticism of Svod’s narrow traditionalism which he and other had articulated and which I have highlighted above. But upon deeper consideration, this praise of Catherine’s Ulozhenie reflected the same liberal view of the usefulness of foreign models for Russia (e.g., parliamentary practices) upon which was based “universality” thesis mentioned above.

In a certain sense, the Empress’s initiative was close to the ideals of Russian liberals of the late nineteenth century who saw in her Codification commission an attempt to combine European ideas of natural law—appearing in the Instruction as the basis for the future Ulozhenie—with the creation of national laws. For the purposes of comparison, let us remember that almost nothing is known of previous efforts of Empress Elizabeth to draft a new Ulozhenie (with assistance of representatives of three classes). On the contrary, the notion of Catherine’s Codification commission—as an original attempt to chart a new political course of a “legal monarchy”—has firmly entered the literature.[108]

This glowing evaluation of subsequent generations has, in a certain sense, been caused by the special attention that the enlightened Empress herself paid to this question. Catherine the Great—unlike other Russian monarchs—took a very active part in the organization and popularization of the project of the Codification commission which was expressed in the writing of an extensive Instruction and its distribution in Russia and abroad[109] as well as in official print coverage of the Commission’s sessions.

Added to Catherine’s role in mythologizing the Ulozhenie as the only true form of rational codification was the idealization (by Russia’s late nineteenth-century liberals) of the still-born drafts of the “reformer” Speranskii, which were conventionally united under the term “ulozhenie”.[110] (In my mind, there is nothing surprising about this idealization even though the disgraced reformer’s Draft Civil code was never adopted; it is never difficult to idealize something which had not brought to life.) This mythologization of the Ulozhenie efforts of Catherine and Speranskii also included his extensive work Introduction to the Code of State Laws (Vvedenie k ulozheniiu gosudarstvennykh zakonov),[111]which found its inspiration in the same sources as Catherine’s Nakaz.

Nostalgia for the unfulfilled Ulozhenie was directly or indirectly projected onto the perceived defects in the Svod, which was portrayed as a symbol of a useless political-legal system:

“No one, of course, will doubt that our position [in the area of legislation] is so dreary thanks to the fact that we still do not have a real code, that our Svod was compiled from scraps of all possible historical origins, domestic and foreign, ancient and modern.”[112]

These words were written in 1902 by Iosif Gessen, a practicing lawyer and one of the leaders of the Constitutional Democrat Party (kadety). In an atmosphere of social dissatisfaction with the policies of the authorities, ironic articles and satires about the Digest of Laws became a matter of course in the beginning of the twentieth century.[113] The idea of the Svod was compromised first and foremost by politically active lawyers, who used the language of their profession and, on the whole, their professional position to realize their political goals, i.e., to finally lead the opposition to power since only they believed that they should rule as the most prepared members of society. Thus, they declared that the structure of the Digest—the main source of legislation for citizens and institutions in Russia[114]—was neither legal (nepravovoi) nor legitimate (nezakonnyi). One needs to keep in mind, however, the following: a recent study by Jane Burbank, on the legal practices of Russian peasants at the beginning of the twentieth century, shows that they successfully used provisions of the Svod in court. This runs counter to the professional evaluation of Russian lawyers of that time about the autocratic nature of the Russian legal system. They were convinced that the legal system was irrelevant and unusable; but in the light of Burbank’s work, these claims of the legal profession should be treated carefully.[115]

V

“Western concepts of ‘liberalism’ are rather relativistic and indeterminate, and as applied to the realities of Russian life, they can cause harmful confusion in the leaders and in those who are led, especially as regards the former.”

Ivan Aksakov, Ob uezdnom samoupravlenii, 1887

In this article, I have sought to show how a wide variety of factors—philosophical ideas, foreign and domestic politics and the thoughts and acts of individual historical actors—in equal measure have influenced that which by 1833 had developed as a "national" model of codification: the fifteen-volume Digest of laws (Svod zakonov). The national project of codification was adopted by rejecting the branch codes (ulozheniia) which had previously been elaborated prior to 1809 and confirmed at the highest level. From the very beginning of the second project, Speranskii—the primary author of both projects—proclaimed to Nicholas (and numerous others) that there was a dramatic difference in two codification projects of 1809 and 1833, To emphasis this shift, he even introduced a differentiation in the terms “svod” and “ulozhenie” which previously had been considered to be synonyms. Contrary to the first ulozhenie, which was to a large extent innovative precisely because of its heavy reliance on western borrowings, the goal of the Digest / Svod was to summarize and preserve existing Russian legislation, to crystallize Russian national legal tradition. However, in late nineteenth century, Vinaver’s detailed consideration of the civil legislation contained in the Svod revealed that certain innovations of French origin had been included (hidden) there as they had also been in the Draft Civil code of 1809.

Unfortunately, as with any method of historical investigation, immersing oneself in a plethora of context may lead to an imperfect impression of the uniqueness of the phenomenon that is being described. A comparative historical perspective helps one to overcome this aberration of a fragmentation of knowledge. Therefore, in the conclusions to my article, I shall focus on the possible trajectories for combining the phenomenon of Russian codification with the experience of other peoples/times. Inasmuch as (a view of) history is not always comprised of a single straight line, and rather is a patchwork of various strands which are interconnected; thus, in my conclusions I will concentrate on the juncture of several of these lines rather than attempt to only trace a single line.

The case of hidden borrowings in the Digest demonstrates that, under certain historic circumstances (I will mention them later), national argumentation became a very important tool of making high policy in the Russian Empire beginning in the second decade of the nineteenth century. My analysis of the codification issue in the first decades of the nineteenth century shows the manner in which a fashionable Western concept—“national”—was received in Russia; after some discussions, “traditional” became the dominant meaning of “national”. Even though the original Russian terms for “national” and “traditional” were still in the process of being developed during this time, the case of codification proves that Speranskii’s work gave a certain Russian meaning to this Western concept. The changes which were introduced under his leadership in the legal language, within the framework of the overall stylization of the Digest, convinced people—first of all, decision makers such as Emperor Nicholas I—of the traditional, e.g., national, character of Russian codification in the “original” form of a Svod.

After the powerful work of Patrick Glenn, who has shown how legal traditions are constructed, one of course is able to view the game of Speranskii as a part of a general seeking for "legitimate sources" for new codification—a search which is well known to the civil law tradition.[116] The Russian experience of codification in the first quarter of the nineteenth century is of interest to us as something in the way of a mirror in which the prevailing ideas of that time were reflected and intertwined with high politics—those Russian as well as those of a broader, European nature (especially after the Holy Alliance of European monarchs of 1815).

The analyses, which I have made of the circumstances of the Russian acquisition of its own national legal tradition, enables one to arrive at an important conclusion concerning influence thereupon from the foreign policy sphere. As I have attempted to demonstrate in my article, the Napoleonic factor had a great influence on Speranskii’s first codification project. At first, the Russian government—in seeking to follow the ideas of the Enlightenment—was enamored by the modernizing activities in France which were reflected in Bonaparte’s codes, and Speranskii was assisted by foreign experts who openly used legal solutions from the French for the Russian codification. Thereafter, however, after the bloody resistance to and victory over Napoleon, Alexander I, celebrated as Liberator of Europe, joined the mainstream of European elite who were disillusioned in the Enlightenment. The ideas of the philosophes about the unfairness of existing laws and the possibility to reform the world by rational legal change were compromised by the blood of the French Revolution and thereafter by the satanic usurper Napoleon.[117] His dazzling successes which made it possible for him to influence the fate of Europe, coupled with his equally mind-boggling fall from power, brought about a change in thinking in the minds of the European elite. A realization of the danger in fundamental social transformation and even the idea about such transformations which resulted, as it was put in the nineteenth century, in the “fall” of France, demanded a reconsideration of the system of coordinates. Mystical sentiments about the role of Providence in guiding history empowered a shift to an organic, historical approach that received its theoretical bases in the works of the German Romantic philosophers. This priority was, in particular, enshrined at the highest level of European politics in Vienna in November 1815 when the Holy Alliance of European monarchs—with Alexander I at its head—took upon itself the solemn obligation to protect European peoples and, first of all, their thrones from a further dissemination of revolutionary infestation.

As Richard Wortman has observed, the reign of Nicholas I was marked with consistent attempts to elaborate a national image of Russian monarchy.[118] This new tendency was already clearly visible at the coronation of Nicholas for which a new folk scenario was written, e.g., a triple bow of the people before the monarch.[119] This emphasis of the monarch on Russianness was inspired by the revolt of the Decembrists—young representatives of the highest strata of society who had called out the troops to appear before the Senate building on 14 December 1825 demanding a constitution. They had failed to use, to their full advantage, the short interregnum after the death of Alexander I. Nicholas who personally interrogated all who has been indicted for their revolutionary acts (more than 1200 persons) in his coronation manifesto called the evil ideas of the revolutionaries “alien” to Russia (chuzherodnye). To counter the ideas of popular (national) sovereignty of Thomas Hobbes, John Locke and Jean-Jacques Rousseau who had inspired the Russian conspirators, Nicholas brought to bear “the brightest and the best” who were well acquainted with the pernicious influence of these ideas to develop a national alternative to constitutional aspirations. The need to compete with other national projects of national sovereignty compelled the government to use a top-down approach in developing its “cultural nationalism”. By the beginning of the 1840s, the concept of a lawful people’s monarchy (zakonnaia narodnaia monarkhiia) had taken shape in the works of Uvarov, Karamzin and Speranskii. The creators and disseminators of this national myth extended it in the crucial spheres in which state ideology was produced: Sergei Uvarov (as head of the Ministry of Education), Nikolai Karamzin (the royal historiographer), and Mikhail Speranskii (the creator of the Svod). Having gone through the Enlightenment, they naturally tended to use the earlier and even more influential experience of the other discoverers of the Nation in Europe—the Germans.

In Germany, after Napoleon had been routed, when the old question of uniting the fragmented states once again rose to the surface, it was the philosophy of romanticism and idealism which served as the basis for discovering the original German national spirit. There, as in Russia, the role of the carrier of the national spirit was taken by the (first and foremost, Prussian) monarch who strove to become the embodiment of the whole project.[120] The necessity of competing with the ideologies of national sovereignty of more “developed” France, Britain and the US forced the elites of these monarchies to exploit the national myth and to use one another’s experience at home. The national-conservative priorities dictated that appropriate choices be made in the development of legal traditions: the historical school (typified by Puchta’s works who, as von Savigny, was inspired by Hegelian idealism) reigned in Prussia as well as in Russia. By the second half of the nineteenth century, the German historical school had already acquired the solid reputation of conservatism which fueled the interest of lawyers and other key actors in more (semi-)autocratic regimes, e.g., Japan.[121]

The invention by Speranskii of the Svod took place against the background of a new stage in the reception of European idealism and organicism. If in the eighteenth and the beginning of the nineteenth centuries, the development of a national spirit was largely viewed as taking place within the framework of an artistic movement typified by art and literature, by the second quarter of the nineteenth century the national spirit had entered a phase of institutionalization. No longer was Russianness only a matter of the inspiration of poets or painters; it had become an affair of the state through such key institutions as the monarchy, the church, legislation and education. And, here, Russia looked to the experience of Prussia where—in the works of the representatives of the historical school—the philosophical searchings for an ideal people’s spirit had begun to be materialized within the framework of their legal project(s).

One can say without a doubt that the German experience of the legal institutionalization of conservative priorities became a counterweight to the French legal tradition, which was viewed as liberal owing to such legal products as the Code Civil. In the second decade of the nineteenth century, Russia—as an increasingly influential player on the world political scene—made its “national choice”: German tradition over French innovation. To a great degree, it was predetermined by the possibility to construct its own tradition on the basis of metaphysical insights of the Germans. The Russian devotees of German romantic philosophy with particular creative enthusiasm received the “lessons in patriotism”: of Schlegel and Fichte.[122] Yet the alien origins of this patriotism, its reception was not considered to be a shame for the Great Russian Nation. To the contrary, from the time in the late fifteenth century that Moscow had developed its own ideology as the Third Rome, Russian elites took for granted the transmission worldly power under the scepter of the Russian Tsar. The idea of Russian greatness stemming from the decline of the western world since that time has to one degree or another pervaded the ruling ideology in both the Imperial as well as the Soviet periods and culminating in the concept of the “zagnivaiushchii Zapad” (decadent West) which was also actively exploited by Soviet propaganda.[123]

Despite the reliance upon national-conservative rhetoric, there remained an overwhelming need to modernize social and economic institutions in order to obtain improved economic performance. However, this resulted in a degree of hidden borrowing and, in addition, the masking of something alien as one’s own. Thus, foreign-policy concerns and memory-of-the-day conflicts have been reflected in the history of the interaction of legal systems. If on the level of rhetoric the possibility of using the legal experience of a recent enemy might be challenged, this does not necessarily mean that this cannot be used in reality. Here, the Russian experience of denying French models may be compared to a similar historical situation in Germany. Omitting the obvious analogy of national rhetoric surrounding the codification projects of the Russian and German empires, we can recall the analysis by Dubber of the borrowing of the institution of jury trials by German states in the second half of the nineteenth century. He wrote that despite consistent denials by almost all academic commentators, the French pedigree of the German jury—adopted by German states after 1848—was evidence.[124] Here, as well as in Russia, the leading Germanists in the legal debates—such as Carl Joseph Anton Mittermaier and Friedrich Gottfried Leue—shared the enthusiasm of Thibaut who believed that the march of German soldiers on Paris in 1814 was the beginning of a new era in the development of German law. This prevented them from openly acknowledging such borrowing.[125] While in this article I have concentrated on the development of a Russian national legal tradition, one cannot fail to highlight the similarity between this and the discourse about a German national path in history, culture, and legislation in the nineteenth century.[126]

In the end of the twentieth century Eric Hobsbawm wrote that—in the contemporary world of a developed international economy and advanced communication and transportation—nationalism “is simply no longer the historical force it was”.[127] However, at the level of grand political rhetoric, nation-states are still unable to free themselves from according national emphasis to one act or another. In recent times, this tendency has most clearly shown itself during the ‘parade of sovereignties’ after the fall of the Soviet regime in the late 1980s. Because of well entrenched traditions, the codification of national legislation often has often been used as a field for symbolic demonstrations of national-cultural distinction and greatness. In fact, as has been noted in the literature, this symbolism can rise even above considerations of (technical) modernization.[128] For example, in post-Soviet Latvia, the 1937 Civil Code[129]—which was re-enacted in 1992—was not much more modern than the 1965 Soviet codification which thereby had been repealed. So, as Ajani has put it: “the stress on national identity and the insistence on the continuity between pre-Soviet Latvia and post-Soviet Latvia has not left too much room to a comparative analysis of competing methods.”[130]

More stable nation-states of Western Europe also appear not to be totally free from nineteenth-century cultural nationalist ideas. As the debate on the unification of European private law demonstrates, the national framework of legal thinking is still very much at stake. French academic scholars[131] who are severe critics of the idea of such unification, are supported by some other European thinkers. The issue of national borders in the consciousness of lawyers has been verbalized in a number of publications calling upon legal historians and comparativists to reconsider the emphasis on the national originality of legal systems.[132] Furthermore, it has been suggested that efforts should be concentrated on studying the common roots of European private law. From this point of view, legal historians call upon their colleagues to pay close attention to the development of law in the period of the ius commune which enables one to more fully appreciate the mechanism of “European legal principles”.[133] The political ambitions of search for common roots in history may seem a positive goal for contemporary Europe. Let us hope that good intentions can lead elsewhere than they usually do and new wave of interest to ius commune period will not create a quasi-historical projection of the twenty first century ideas of what European legal principles should be.

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[1] The initial (and more extended) version of the article was translated from the Russian by Curtis Budden and published as "Russian National Legal Tradition: Svod versus Ulozhenie in Nineteenth-century Russia" in Review of Central and East European Law, Volume 33, Issue 3 (2008) ISSN 0925-9880, pp. 295-341. The author is especially grateful to Vera Dubina, Anton Rudokvas, and William B. Simons for their insightful comments on a previous draft of this work.

[2] On the methodology itself and its distinctive features see Hans Erich Bödeker “Reflexionen über Begriffsgeschichte als Methode”, in Mark Bevir et al. Begriffsgeschichte, Diskursgeschichte, Metapherngeschichte (Wallstein Verlag, Göttingen, 2002), 73—121.

[3] Polnoe sobranie zakonov Rossiiskoi imperii (Complete Collection of the Laws of the Russian Empire) Izdanie pervoe [1649–1825] No.19904 (Tipografiia Vtorogo otdeleniia Sobstvennoi Ego Imperatorskogo Velichestva kantseliarii, St. Petersburg, 1830).

[4] It was obviously a part of more general European tendency of the seventeenth and eighteenth centuries to begin engaging in the process of codifying law, see Reinhard Zimmermann, “The Civil Law in European Codes”, in Hector L. MacQueen, Antoni Vaquer, Santiago Espiau Espiau (ed.), Regional Private laws and Codification in Europe (Cambridge University Press, 2003), 18-60; Helmut Coing, “An Intellectual History of European Codification in the Eighteenth and Nineteenth Centuries”, in S.J. Stoljar (ed.), Problems of Codification (Australian National University, Canberra, 1977), 16-29.

[5] Enacted by Tsar Alexei Mikhailovich, this was the most comprehensive compilation of Russian legislation since the Russakaia Pravda. The Sobornoe ulozhenie, in turn, evidenced some degree of influence by the Litovian Statute (Lietuvos Statutas). On the history of Russian law, see the detailed monograph of Semen Pakhman, Istoriia kodifikatsii grazhdanskogo prava, (Tipografiia Vtorogo otdeleniia sobstvennoi ego imperatorskogo velichestva kantseliarii, St. Petersburg, 1876), Vol.1, 203-472.

[6] See Oleg Omel’chenko, Kodifikatsiia prava v Rossii v period absoliutnoi monarkhii (Vtoraia polovina XVIII v.) (Vsesoiuznyi iuridicheskii zaochnyi institut, Moscow, 1989).

[7] Quoted in Alan Watson, The Making of Civil Law (Harvard University Press, Cambridge, MA, 1981), 101.

[8] On the political aspects of codification in Europe, see Jan H.A. Lokin, Willem Jans Zwalve, Hoofdstukken uit de Europese Codificatiedeschidenis (Kluwer, Deventer, 3rd ed. 2001).

[9] Nikolai Grech, Zapiski o moei zhizni (A.S. Suvorin, St. Petersburg 1886), 64-65.

[10] An exception is the very detailed study on Speranskii by Marc Raeff, Michael Speransky-Statesman of Imperial Russia, 1772-1839 (Martinus Nijhoff, The Hague, 2nd rev. ed. 1969).

[11] Trudy komissii sostavleniia zakonov (Senatskaia tipografiia, St. Petersburg, 1822), Vol.1, 113.

[12] Gianmaria Ajani, “The Role of Comparative Law in the Adoption of New Codifications”, Italian National Reports to the XVth International Congress of Comparative Law, (Giuffrè editore, Milano, 1998), 65-82, at 69.

[13] See, further, Georg Sacke, “L. H. von Jakob und die Russische Finanzkrise am Anfang des 19 Jahrhunderts”, Jahrbücher für Geschichte Osteuropas (1938) No.3, 606-619.

[14] Velikii kniaz’ Nikolai Mikhailovich, Graf Pavel Andreevich Stroganov, 1774-1814. Istoricheskoe issledovanie epokhi Aleksandra I (Ekspeditsiia zagotovleniia gosudarstvennykh bumag, St. Petersburg, 1903), Vol.2, 184, 193–194.

[15] Aleksandr Pypin, “Russkie otnosheniia Bentama”, in his Ocherki literatury i obshchestvennosti pri Aleksandre I (Ogni, Petrograd, 1917), Vol.3, 1-109.

[16] Recent research has clearly shown that the chapters on proprietary interest, obligation, and matrimonial and family law were influenced by the respective parts of the French Code. See, for example, Iuliia Tuikina, Istoricheskoe sootnoshenie rossiiskogo grazhdanskogo zakonodatel’stva XVIII–XIX vv. i Kodeksa Napoleona 1804 goda: Avtoreferat dissertatsii na soiskanie uchenoi stepeni kandidata iuridicheskikh nauk (Bashkirskii gosudarstvennyi universitet, Ufa, 2002). See, also, William Benton Whisenhunt, In Search of Legality: Mikhail M. Speranskii and the Codification of Russian Law (East European Monographs, New York, NY, 2001).

[17] See Ch.1, “O prave lichnom”, and Ch.2, “Ob imushchestvakh”, Proekt Grazhdanskogo Ulozheniia Rossiiskoi imperii (Senatskaia tipografiia, St. Petersburg, 1810).

[18] Soobrazheniia were a special type of document designed to explain the future policy goals of a particular government ministry or department to the wider state apparatus. These are to be distinguished from poiasnitel’nye zapiski which traditionally accompanied pieces of draft legislation, e.g., in late imperial period as well as in the Soviet era—and even in post-perestroika times.

[19].“Soobrazheniia Komissii sostavleniia zakonov”, Trudy, op. cit. note 10, Vol.1, 138.

[20] Ibid.

[21] A letter from Aleksandr Turgenev to his brother Nikolai, 10 March 1809, in Arkhiv brat’ev Turgenevykh (Otdelenie russkogo iazyka i slovesnosti Imperatorskoi akademii nauk, St. Petersburg, 1911), Vol.2, 382. See, further, Arkadii Fateev, “К istorii iuridicheskoi obrazovannosti v Rossii”, Uchenye zapiski, osnovannye russkoi uchebnoi kollegiei v Prage (1924), Vol.1, 158-174.

[22] Viktoriia Kalendarova, “Liberal’nye idei v Rossii v nachale 19 v.: popytki pravitel’stvennoi propagandy (opyt kolichestvennogo analiza soderzhaniia pervikh ministerskikh zhurnalov)”, Istochnik. Istorik. Istoriia: Sbornik nauchnikh rabot (Izdatel’stvo Evropeiskogo universiteta v Sankt-Peterburge, St. Petersburg, 2001), 52-72.

[23] Ibid., 62.

[24] “Razmyshleniia V.F. Malinovskogo o preobrazovanii Rossii”, Golos minuvshego (1915) No.10, 257.

[25] Ibid., 258. Maria Andreeva provides other examples of patriotic rhetoric in discussions of the issue of codification in Russia in the first quarter of the nineteenth century. See Maria Andreeva, “Kodifikatsionnye proekty nachala tsarstvovaniia Aleksandra I”, Vestnik Leningradskogo gosudarstvennogo universiteta (1982) No.11, 75-78.

[26] On Karamzin and his Memoir, see Joseph L. Black, Nicholas Karamzin and Russian Society in the Nineteenth Century: A Study in Russian Political and Historical Thought (University of Toronto Press, Toronto, 1975), and Richard Pipes, Karamzin's Memoir on Ancient and Modern Russia (Harvard University Press, Cambridge, MA, 1959).

[27] Nikolai Karamzin, Zapiska o drevnei i novoi Rossii v ee politicheskom i grazhdanskom otnosheniiakh (Nauka, Мoscow, 1991), 63.

[28] Ibid., 90.

[29] Quoted in Pieter Geyl, Napoleon: For and Against (Jonathan Cape, London, 1957), 62.

[30] Karamzin, op.cit. note 27, 90.

[31] Ibid., 90.

[32] For example, a right to have krepostnye (serfs) belonged only to dvoriane (the Russian aristocracy).

[33] On the diversity of the legal rights of different social groups in Imperial Russia, see Elise Kimerling Wirtshafter, Structures of Society. Imperial Russia’s “People of Various Ranks” (Northern Illinois University Press, De Kalb, IL, 1994) and the inspiring theoretical framework of Alfred J. Rieber, in his “The Sedimentary Society”, Edith Clowes et al., Between Tsar and People. Educated Society and the Quest for Public Identity in Late Imperial Russia (Princeton University Press, Princeton, NJ, 1991), 343-367.

[34] There are obvious parallels involving large-scale borrowings which can also be drawn with other ‘revolutionary’ eras in Russian history, such as the 1922 Russian Civil Code; however, a detailed consideration of this analogy is beyond the scope of this study.

[35] Fedor Sevast’ianov, “Konservativnaia al’ternativa kodifikatsii russkogo prava v pervoi treti 19 v. (k postanovke problemi)”, paper presented at the conference “Conservatism in Russia and Worldwide: Past and Present”, 30 Oct.-1 Nov.2002, Voronezh, Russia, available at <http://conservatism.narod.ru/oktober/oktober.html>.

[36] This is in distinction to the late nineteenth century criticism of failing to properly evaluate Speranskii’s work at the beginning of the twentieth century. See page 26 below (page with note 143).

[37] Karamzin, op.cit. note 27, 92: “No Russian, in reading this draft, would guess that he was reading our ulozhenie if it were not written in the title: nothing is Russian, nothing is written in Russian.” au

[38] Razmyshleniia V.F. Malinovskogo, op.cit. note 24, 256.

[39] Lea Greenfeld, Nationalism: Five Roads to Modernity (Harvard University Press, Cambridge, MA, 1992).

[40] A letter from Denis Fonvizin to Petr Panin, 18 September 1778, in Denis Fonvizin, Sobranie sochinenii: v dvukh tomakh (Gosudarstvennoe izdatel’stvo khudozhestvennoi literatury, Moscow, Leningrad, 1959), Vol.2, 485-486.

[41] Anthony D. Smith, National Identity (Penguin, London 1991); Greenfeld, op.cit. note 29; Michael Ignatieff, Blood and Belonging: Journeys into New Nationalism (Vintage, London, 1994); Ernst Gellner, Nationalism (Weidenfeld & Nicolson, New York, 1997).

[42] Gregory Jusdanis, The Necessary Nation (Princeton University Press, Princeton, NJ, 2001).

[43] Ibid.

[44] Rogers Brubaker, “Myths and Misconceptions in the Study of Nationalism”, John A. Hall (ed.), The State of the Nation (Cambridge University Press, Cambridge, 1998), 298-302.

[45] Frantsuzskii grazhdanskii kodeks 1804 goda, translated by I.S. Pereterskii (Iuridicheskoe izdatel’stvo Narodnogo Komissariata Iustitsii, Moscow, 1941), 7.

[46] On the constitutional function of the Napoleonic Code, see John H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Stanford University Press, 2nd ed. Stanford, CA, 1985), 49. This recalls the words of Sergei Sergeevich Alekseev (a Russian legal philosopher and former Chief Justice of the USSR Committee of Constitutional Supervision and a member of the Russian constitutional and Civil code drafting commissions) who has termed the new Russian Civil Code as a constitution of a market economy. See, for example, his “Misiia Rossiiskoi nauki”, Iurist December (2000) No. 49, 2.

[47] Sergei Platonov, Lektsii po russkoi istorii (Lan’, St. Petersburg 1996), 18. On German Romanticism, see Dietrich von Engelhardt, “Romanticism in Germany”, Roy Porter and Mikulas Teich (eds.), Romanticism in National Context (Cambridge University Press, Cambridge, 1988), 109-133.

[48] Alan Watson, Legal Transplants and European Private Law/Ius Commune Lectures on European Private Law 2 (Metro, Maastricht 2000), 14.

[49] See, for example, some case studies: Stephen Jacobson, “Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective”, 20(2) Law and History Review (2002), 338-343; Eric H. Reiter, “Imported Books, Imported Ideas: Reading European Jurisprudence in Mid-Nineteenth-Century Quebec”, 22(3) Law and History Review (2004), 473-480.

[50] Here it is worth noting that, according to the unpublished research of Markus Dubber (“The Sense of Justice in German Jurisprudence”), Savigny referred to the term “Volksgeist” only after his follower Georg Friedrich Puchta had extensively used it in his Das Gewohnheitsrecht (1828-1837, 2 vols.), see in Walter Otto Weyrauch, “Book Review: Folk Law: Essays in the Theory and Practice of Lex Non Scripta by Alison Dundes Renteln and Alan Dundes”, in 42(4) The American Journal of Comparative Law (1994), 807-810, fn.5.

[51] See, also, Elena Timoshina, “‘Organitsizm’ kak metodologicheskaia orientatsiia konservativnoi pravovoi filosofii”, Pravo i politika (2000) No.10, available at <http://www.nbpublish.com/lpmag/lpmag.php?in=mags&rub_id=9>.

[52] Edmund Burke, Reflections on the Revolution in France (1790), Jonathan C.D. Clark (ed.), (Stanford University Press, Stanford, CA, 2001), 283.

[53] Ibid., 291.

[54] Platonov, op.cit. note 46, 655.

[55] Raeff, op cit. note 10, 178.

[56] Aristides N. Hatzis, “The Short-Lived Influence of the Napoleonic Civil Code in 19th Century Greece”, 14 European Journal of Law and Economics (2002), 253-263, at. 254.

[57] Gabriel’ F. Shershenevich, Nauka grazhdanskogo prava v Rossii (Tipografiia Kazanskogo Imperatorskogo universiteta, Kazan’, 1893), 22.

[58] See, further, on the role of the “Other” in cultural studies: Homi K. Bhabha, The Location of Culture (Routledge, London, New York, 1994).

[59] Here, it is worth mentioning that an analysis of Soviet-Russian history textbooks shows that—regardless of changes in the dominant ideology—Napoleon has been the most cited foreigner, leaving in his wake even classics of Marxism. See Iuliia Titova, “Rossiiskaia istoriia glazami shkol’nika”, Pervoe sentiabria (2001) No.28, available at <http://his.1september.ru/articlef.php?ID=200102802>.

[60] Viktor Vinogradov, Iazyk Pushkina: Pushkin i istoriia russkogo literaturnogo iazyka (Academia, Moscow, Leningrad, 1935), 263, 265-266.

[61] See Iurii Lotman, “Problema narodnosti i puti razvitiia literatury preddekabristskogo perioda”, Pavel Gromov (ed.), O russkom realizme i voprosakh narodnosti literatury (Goslitizdat, Moscow, Leningrad, 1960), 3-51.

[62] See, further, Cynthia H. Whittaker, The Origins of Modern Russian Education: An Intellectual Biography of Count Sergei Uvarov, 1786-1855 (Northern Illinois University Press, De Kalb, IL, 1984), 86-127.

[63] For example, the 1649 Sobornoe Ulozhenie and the svody zakonodatel’stva. More examples are in Polnoe Sobranie zakonov Rossiiskoi imperii. Sobranie pervoe [1649-1825], (18 February 1700) No.1765, (6 February 1735) No.6686.

[64] Slovar’ tserkovnoslovianskogo i russkogo iazyka, sostavlennyi Vtorym otdeleniem Imperatorskoi akademii nauk (Tipografiia imperatorskoi akademii nauk, St. Petersburg 1847), Vol.3, 102.

[65] Ibid., 340.

[66] The 1649 Sobornoe ulozhenie was a key legal document of late medieval Russia. For an example of the attempts to replace it, see, e.g., Polnoe Sobranie zakonov Rossiiskoi imperii. Sobranie pervoe [1649-1825], (18 February 1700) No.1765, (6 February 1735) No.6686.

[67] Ibid.

[68] Lev Kasso, “K istorii Svoda zakonov grazhdanskikh”, Zhurnal ministerstva iustitsii (1904) No.3, 53-89, at 64; Evgenii Nefed’ev, Prichina i tsel’ izdaniia Polnogo sobraniia zakonov i Svoda (Tipografiia Kazanskogo Imperatorskogo universiteta, Kazan’, 1889), 11.

[69] “Rassmotrenie proekta grazhdanskogo ulozheniia v Departamente zakonov i Obchshem sobranii Gosudarstvennogo Soveta”, Arkhiv Gosudarsvennogo soveta. Zhurnaly departamenta zakonov (Gosudarstvennyi Sovet, Departament zakonov, St. Petersburg, 1874), Vol.4, Part 1, 12-173. This is reminiscent of the language contained in the 1994 RF Civil Code language: “The norms of civil legislation, contained in other laws, must be in accordance with the present Code.” Grazhdanskii kodeks Rossiiskoi Federatsii, Chast’ 1. Art.3.2, Rossiiskaia gazeta 8 December 1994 (No.238-239).

[70] “Rassmotrenie proekta grazhdanskogo ulozheniia”, op. cit., note 68.

[71] Osnovaniia Rossiiskogo prava, izvlechennye iz sushchestvuiushchikh zakonov Rossiiskoi imperii (Komissiia sostavleniia zakonov, St. Petersburg, 1821-1822), Vols.1&2. While the terminology was slightly different in the “Rassmotrenie proekta…”, reference was to one and the same concept.

[72] Peter Stein, “Book Review of Systema Iuris by Paolo Capellini”, 59(3) The Journal of Modern History (1987), 618.

[73] Irina Sandomirskaia, Kniga o Rodine. Opyt analiza diskursivnykh praktik. Wiener Slawistischer Almanach, Sonderband 50 (Ludwig-Maximilians-Universität München Institut für Slavische Philologie, Wien, 2001), 49.

[74] Mikhail Magnitskii, “Mnenie russkogo dvorianina o grazhdanskom ulozhenii dlia Rossii”, Pis’ma glavneishikh deiatelei v tsarstvovanie inperatora Aleksandra I, 1807-1829 (N. Dubrovin, St. Petersburg, 1883), 369-374. Magnitskii, however, had not been trained in law; as Speranskii, he graduated from an Orthodox seminary. Likewise, Karamzin was best known for his writings on history as well as his works of fiction; he, too, lacked formal training in the law. But, his university education—at the pension (boarding school) of the German Professor Schaden in Moscow—a had been in the humanities and not in religion and was heavily influenced by German romantic philosophy.

[75] “[…] dukh i obychai nashego naroda […]”. Ibid., 373.

[76] Irina Emelianova, Vseobshchaia istoriia prava v russkom dorevoliutsionnom pravovedenii (19 vek) (Kazanskii gosudarstvennyi universitet, Kazan’, 1981), 34; Idem, Istoriko-pravovaia nauka v Rossii 19 v. Istoriia russkogo prava (Kazanskii gosudarstvennyi universitet, Kazan’, 1988), 21.

[77] Aleksandr Kunitsin, Pravo estestvennoe, sochinenie professora Imperatorskogo litseia Aleksandra Kunitsina (Tipografiia Ios. Ioanessova, St. Petersburg, 1818), Kniga 1, 6.

[78] Quoted in Iurii Margolis, Grigorii Tyshkin, “Edinym vdokhnoveniem”: Ocherki istorii universitetskogo obrazovaniia v Peterburge v kontse 18–pervoi poloviny 19 v. (Izdatel’stvo Sankt-Peterburgskogo Universiteta, St. Petersburg, 2000), 145.

[79] Eric Hobsbawm, “Introduction: Inventing Traditions”, E. Hobsbawm, T. Ranger (eds.), The Invention of Tradition (Cambridge University Press, Cambridge, 1983), 1-9.

[80] Nikolai Il’inskii, “Vospominaniia”, Russkii arkhiv (1879) No.12, 431-434.

[81] Mikhail Speranskii, “O sushchestve Svoda”, Russkaia starina (1876) No.15, 587.

[82] Mikhail Speranskii, “Ob”iasnitel’naia zapiska soderzhaniia i raspolozheniia Svoda zakonov grazhdanskikh”, Arkhiv istoricheskikh i prakticheskikh svedenii, otnosiashchikhsia do Rossii (N. Kalachov, St. Petersburg, 1859), 2.

[83] Slovar’ sovremennogo russkogo literaturnogo iazyka, (Nauka, Мoscow, Leningrad, 1964), Vol.16, 550–551.

[84] Polnoe Sobranie zakonov Rossiiskoi imperii. Sobranie vtoroe [1826–1880], 31 January 1833 No.5947.

[85] Quoted in Petr Maikov, Vtoroe otdelenie Sobstvennoi Ego imperatorskogo velichestva kantseliarii, 1826-1882. Istoricheskii ocherk, (Tipografiia I.N. Skorokhodova, St. Petersburg, 1906), 191. These words were undoubtedly inspired by the work and publications of Speranskii; see, e.g., “Ob”iasnitel’naia zapiska …”, op.cit. note 81.

[86] Pravila, nabliudaemye pri ispravlenii Svodov (21 February 1831), [Rules on Editing the Digest] in Gugo Blosfel’dt, “Zakonnaia” sila Svoda zakonov v svete arkhivnikh dannykh (Senatskaia tipografiia, Petrograd 1917), 12-13.

[87] Nastavlenie Vtoromu otdeleniiu o poriadke ego trudov (24 April 1826), [Instruction for the Second Section of His Majesty’s Own Chancellery] in Maikov, op.cit. note 84, Appendix 1.

[88] Kasso, op.cit. note 67, 64, Aleksandr Makarov, “K istorii kodifikatsii osnovnykh zakonov”, Zhurnal ministerstva iustitsii (1912) No.10, 23; Aleksandr Nol’de, “Retsenziia na trudy Maikova”, Zhurnal ministerstva narodnogo prosvechsheniia (1908) No.5, 178.

[89] New statutes (1826-1833) were enacted on wills, custom dues, government property, inventory of property. See Maksim Vinaver, “K voprosu ob istochnikakh X toma Svoda zakonov”, Zhurnal ministerstva iustitsii (1895) No.10, 1-68 at 11-12.

[90] See notes 81 and 82 above.

[91] In my earlier Russian-language work on this subject, I have called this “original’nost’ Svoda”: Tatiana Borisova, “Bor’ba za russkoe ‘natsional’noe’ pravo v pervoi chetverti 19 veka: izobretenie novykh smyslov starykh slov”, in Koposov, op.cit. note 2, 123-151.

[92] See German Baratts, “O chuzhezemnom proiskhozhdenii bol’shinstva russkikh grazhdanskikh zakonov”, Zhurnal grazhdanskogo i ugolovnogo prava (1882) No. 9, 45-80.

[93] Vinaver, op.cit. note 88.

[94] An easement is the limited right to the use of another’s property as established by law, e.g., the right to pass through a neighbor’s property.

[95] See, further, Tuikina, op.cit. note 12.

[96] Gianmaria Ajani, “By Chance and Prestige: Legal Transplants in Russia and Eastern Europe”, 43 The American Journal of Comparative Law (1995), 93-127.

[97] See, for instance, Nikolai Korkunov, “Znachenie Svoda zakonov”, Sbornik statei N.M. Korkunova (1877-1897) (Izdatel’stvo N. K. Martynova, St. Petersburg 1898), 77-96; Avgust Kaminka, “Sila Svoda zakonov”, Pravo (1908), 10-11.

[98] The Svod was periodically reedited (at times, even on an annual basis) after its first edition in 1833 to include “new” legislation which applied to all citizens and institutions. See Tatiana Borisova, “Zakon i zakonnost’ v russkom kodekse, 1906–1917”, Istochnik. Istorik. Istoriia: Sbornik nauchnikh rabot (Izdatel’stvo Evropeiskogo universiteta v Sankt-Peterburge, St. Petersburg, 2001), 11-41.

[99] Aleksandr Gradovskii, “Biurokratizm i pravovoi poriadok”, Nabliudatel’ (1882) No.7, 51.

[100] This reminds one of the study of the late Edward Said, Orientalism (Vintage Books, New York, 1979), which link however is outside the scope of this work.

[101] I shall resist the temptation in this article to grapple with the question of the opinion(s) of the other parts of Russian society of that time or of the more fundamental issue of whether or not it had an opinion (on this question).

[102] Gradovskii, op.cit. note 97, 63.

[103] This mythologization in large part was resulted from a search, which began in the middle of the nineteenth century, for historical evidence of earlier liberal reforms in Russia including in its legal system. One can assume that the intelligentsia hereby hoped to convince the Emperor to continue these reforms which had been begun by his great predecessors but which had been halted primarily due to war.

[104] See, for instance, the remarks of Aleksandr Pypin (a leading late-nineteenth century historian of Russian literature) in Catherine II, Sochineniia Imperatritcy Ekateriny II na osnovanii podlinnykh rukopisei i s objasneniiami akademika A.N. Pypina (Imperatorskaia Akademiia nauk, St. Petersburg, 1901), Vol.2.

[105] Kasso, op.cit. note 67, 58.

[106] Ivan Zabelin, “Svedeniia o podlinnom ulozhenii tsaria Alekseia Mikhailovicha”, Arkhiv istoriko-iuridicheskikh svedenii, otnosiashikhsia do Rossii (Izdatel’stvo N. Kalachev, Мoscow, 1850), Vol.1, 1-18.

[107] Aleksandr Gradovskii, Nachala russkogo gosudarstvennogo prava (Izdatel’stvo M. Stasiulevicha, St. Petersburg, 1875), Vol.1, 42-43.

[108] Oleg Omel’chenko, “Zakonnaia monarkhiia” Ekateriny II: Prosveshchennyi absoliutizm v Rossii (Iurist, Мoscow, 1993), 128. Similar views are held by other scholars in the field: Aleksandr Kamenskii, Ot Petra I do Pavla I: Reformy v Rossii 18 v. Opyt tselostnogo analiza (Izdatel’stvo Rossiiskogo gosudarstvennogo gumanitarnogo universiteta, Мoscow, 1999), 411-418; Isabelle de Madariaga, Russia in the Age of Catherine the Great (Yale University Press, New Haven, London, 1981), 139-151.

[109] As William Butler’s research has demonstrated, Empress Catherine certainly succeeded in popularization of her Enlightened Nakaz, which became well-known in Europe: William Butler, “Foreign Impressions on Russian Law to 1800: Some Reflections”, W.E. Butler (ed.), Russian Law: Historical and Political Perspectives (A.W. Sijthoff, Leiden, 1977), 69.

[110] For one of the first articles in this tradition of Speranskii’s apology, see Nikolai Chernyshevskii, “Russkii reformator”, Sovremennik (October 1861), 222-229.

[111] Mikhail Speranskii, “Vvedenie k ulozheniiu gosudarstvennykh zakonov”, Plan gosudarstvennogo preobrazovaniia grafa M.M. Speranskogo (Vvedenie k ulozheniiu gosudarstvennykh zakonov 1809) (Russkaia mysl’, Moscow, 1905), 1-120.

[112] Iosif Gessen, Iuridicheskaia literatura dlia naroda (Tipografiia pechatnogo dela E. Evdokimov, St. Petersburg, 1902), 4-5.

[113] “Kur’ezneishii kodeks (fel’eton)”, Sudebnaia gazeta (1903) No.38; “Prodolzhenie kur’ezneishego kodeksa”, Sudebnaia gazeta (1903) No.3.

[114] Uchrezhdenie Pravitel’stvuiushchego Senata, [Statute of Governing Senate] art. 66.7, in Svod zakonov Rossiiskoi imperii (Senatskaia tipografiia, St. Petersburg, 1906), Vol.2.

[115] Jane Burbank, Russian Peasants Go to Court: Legal Culture in the Countryside, 1905-1917 (Indiana University Press, Bloomington, IN, 2004).

[116] H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford University Press, Oxford, 2000), 116-119.

[117] It is known that before Tilsit peace-negotiations meeting of Alexander and Napoleon in 1806 anathema to the latter was read in all Russian orthodox churches, Nikolai Shil’der, Imperator Aleksandr Pervyi, ego zhizn’i tsarstvovanie, (A.S. Suvorin, St. Petersburg, 1897), Vol.2, 357-358.

[118] Richard Vortman (Wortman), ““Ofitsial’naia narodnost’” i natsional’nyi mif rossiiskoi monarkhiii 19 veka”, 3 (11) Rossiia/Russia, Kul’turnye praktiki v ideologicheskoi perspective. Rossiia, 18–nachalo 20 veka (OGI, Moscow, 1999), 233-244.

[119] Richard Wortman, Scenarios of Power: Myth and Ceremony in Russian Monarchy, Vol.I, From Peter the Great to the Death of Nicholas I (Princeton University Press, Princeton, 1995), 382-87.

[120] Takashi Fujitani, Splendid Monarchy: Power and Pageantry in Modern Japan (University of California Press, Berkeley, 1996); Heim Dollinger, “Das Leitbild les Burgerkonigtums in der europaischen Monarchic des 19 Jahrhunderts”, Karl Ferdinand Werner (ed.), Hof, Kultur, und Politik im 19 Jahrhunderts. Akten des 18 Deutschfranzösischen Historkerkolloquiuiumus, Darmstadt, 27-30 September 1982, in Pariser Historische Studien (Ludvig Röhrscheid Verlag, Bonn, 1985), Vol.21, 325-362.

[121] Carl Steenstrup, “German Reception of Roman Law and Japanese Reception of German Law”, 1(1) Intercultural and Communication Studies, 273 -293, at 284-287.

[122] For an interesting analysis of the German roots of a key Russian ideological credo of the epoch of Nicholas II “Pravoslavie, Samoderzhavie, Narodnost’” (orthodoxy, autocracy, nationality), see Andrei Zorin, “Ideologiia ‘Pravoslavie-samoderzhavie-narodnost’’ i ee nemetskie istochniki”, Evgeniia Rudnitskaia (ed.), V razdum’iakh o Rossii (XIX vek). (Institut rossiiskoi istorii Rossiiskaia akademiia nauk, Moscow, 1996), 105-128.

[123] The crumbling West is a recurring metaphor. In Uvarov’s words: “Russia has that superb character which Europe as the exhausted elder views as the energy and strength of youth in its bloom.” Sergei Uvarov, O prepodavanii istorii otnositel’no k narodnomu vospitaniiu (Tipografiia F. Drekhsslera, St. Petersburg, 1813), 24.

[124] Markus Dubber “The German Jury and the Metaphysical Volk: From Romantic Idealism to Nazi Ideology”, 43 American Journal of Comparative Law (1995), 227-271, at 232-235.

[125] Such blindness was also dictated, in part, by the continuation of the German-French confrontation later in the nineteenth century. On the impact of historical and political factors on the exchange of ideas among German and French academics, see the inspiring essay of Pierre Bourdieu, “La cause de la science: comment l'histoire des sociale des sciences sociale peut server le progrès de ces sciences”, in Actes de la Recherche en Sciences Sociales (1995) No.106-107, 3-10.

[126] On the German usage of the most malleable concept of “Volk” throughout history, see the classic study of Reinhart Koselleck, “Volk, Nation, Nationalismus, Masse”, in Otto Brunner, Werner Conze and Reinhart Koselleck (eds.), Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-sozialen Sprache in Deutschland (E.Klett, J.G. Gotta, Stuttgart, 1992), Vol.7, 141-431.

[127] Eric J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (Cambridge University Press, Cambridge, New York, 2nd ed. 1992), 169.

[128] Ajani, op. cit. note 12, 70.

[129] Dietrich Andre Loeber, “Latvia’s 1937 Civil Code: A Quest for Cultural Identity”, John Henry Merryman, David S. Clark (eds.), Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday, (Duncker & Humblot, Berlin, 1990), 197-204.

[130] Ajani, “The Role of Comparative Law”, op. cit., note 12, 70

[131] Pierre Legrand, “Against a European Civil Code”, in 60(1) Modern Law Review (1997), 44-63; idem, “Sens et non sens d’un code civil européen”, 48(4) Revue Internationale de Droit Comparé (1996), 779-812; Bénédicte Fauvarque-Cosson, “Faut-il un Code civil européen?”, Revue Trimestrelle de Droit Civil (2002) No.3, 463-480, at 463; Jan Smits, The Good Samaritan in European Private Law, On the Perils of Principles without a Programme and a Programme for the Future (2000) available at <http://works.bepress.com/jan_smits/8/>, 41; idem, “The Europeanisation of National Legal Systems: Some Consequences for Legal Thinking in Civil Law Countries”, Mark van Hoecke (ed.), Epistemology and Methodology of Comparative Law (Hart Publishing, Oxford, 2004), 229-245.

[132] See, for instance, Reiner Schulze, “European Legal History: A New Field of Research in Germany”, 13 Journal of Legal History (1992), 270-95.

[133] Reinhard Zimmerman, “Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science”, (112) Law Quarterly Review (1996), 598.