POST NUMBER 7402 FEBRUARY 2013RUSSIAN LAW & MORALS IN CONTRAST TO THE DOMAIN OF THE COMMON LAW &

NUMEROUS WESTERN SOCIETIES The much-repeated claim in common law and numerous Western societies that the law and morals are separateinter alia, creates confusion within those jurisdictions and communities (e.g., because adherents of natural law theories hold diametrically contrary premises) and invites confusion when comparisons are made of common and civil legal regimes (e.g., because in civil law jurisprudence there is no such dichotomy drawn). Those who study Russias legal culture observe that it has deep roots in morality and religion. Lev Nikolaevich Tolstoy, for example, was not alone in the view that the grounding for the functioning of Russian society was not in law but in Christian love. Tsar Nicholas the 1st, wrote that The best theory of law is good morality, which should be in the heart regardless of these abstractions, and have religion as its foundation. T.A. Kapustina, Nicholas I, in A.A. Iskenderov & D.J. Raleigh (editors) The Emperors & Empresses of Russia. Rediscovering the Romanovs (ME Sharpe, 1996) at p. 262. There were many Russian voices whose exact delineation are well beyond the scope of a blog post but two prominent thinkers were Leon Petrazhitsky, law professor at Saint Petersburg University and Vladimir Soloviev, a philosopher and confidant of Fyodor Mikhailovich Dostoyevsky who also was from that educational institution albeit one he resigned from under pressure from his critics see Jurisprudence of Leon Petrazhitsky, by R. Saduska, 32 American Journal of Jurisprudence 63 (1987) & Soloviev, Politics, Law, Morality (edited by V. Wozniuk & translated by G. Morson, Yale, 2000). In The Justification of the Good, Soloviev wrote: The common good must, in one way or another, be the good of this individual also. But if it deprives him of existence and of the possibility of free action that is, of the possibility of any good at all it ceases to be a good for him; it itself then becomes merely a private interest, and therefore loses its right to limit personal liberty. With reference to this point, too, we see that the demands of morality entirely coincide with the essence of legal justice. Speaking generally, although legal justice in exercising compulsion to secure the minimum of good differs from morality in the strict sense, yet in its exercise of compulsion it observes the demands of morality, and must on no account conflict with it. If, therefore, some positive law is opposed to the moral consciousness of the good, we may be a priori certain that it does not satisfy the essential demands of justice either. So far as such laws are concerned, it is not in the interests of justice that they should be retained, but that they should be lawfully repealed. , An Essay on Moral Philosophy (translated by N. Duddington, Constable, 1918) at p. 380; (http://ia600409.us.archive.org/28/items/thejustification00solouoft/thejustification00sol ouoft_bw.pdf); (http://www.vehi.net/soloviev/oprav/index.html). And so the notions of Russian Constitutional Court chairman Valeriy Zorkin about the union of law and morality in Russian jurisprudence have yet additional grounding to that earlier noted in the Russian jurist and political philosopher Boris Nikolaevich Chicherin (see Post 19, 12 May 2012). In his Rossiyskaya Gazeta (10 December 2012; http://www.rg.ru/2012/12/10/zorkinsite.html) retort to Aron and Gorbachev, Zorkin emphatically warns of the hazard of social chaos (see Post 72, 22 January 2013). He consequently clearly makes an admonition that now is a time for self-restraint. Less clear is who it is the good

chairman considers to be unrestrainedAron in his reportage, those citizens who publicly protested the patent abuses in the Duma elections in the December 2011 and their follow-up public gatherings, Gorbachevs efforts at glasnost and perestroika, Yeltsins response to the so-called putsch in the autumn of 1993, or all of the foregoing?