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Of all publications in the section: 9
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Article
Poldnikov D. Journal on European History of Law. 2020. Vol. 11. No. 1. P. 195-197.

The General Part of Private Law: Historical Roots – Efficiency in the 21st Century’ is the collected papers published as the 12th volume in the series ‘Writings on the development of the system of private law’ edited by Christian Baldus und Christian Pohl. It is a follow-up to ‘Der allgemeine Teil des Privatrechts: Erfahrungen und Perspektiven zwischen Deutschland, Polen und den lusitanischen Rechten’ Peter Lang GmBH, 2013 – 556 S. The collected papers result from two conferences and two research seminars held in Poznań and Heidelberg in 2010–2016 in order to investigate the efficiency of the general part of private (civil) law for lawmaking, legal scholarship, education, and, to lesser extent, judicial decision-making in the historical and comparative perspective.

Added: Jun 8, 2020
Article
Poldnikov D. Journal on European History of Law. 2015. Vol. 6. No. 2. P. 85-89.

This article commemorates the 800th anniversary of the Great Charter (Magna Carta) by reviewing the its study in Russia during the late imperial, soviet and contemporary periods. First, it gives an overview of the key publications and their topics arranged chronologically, second, it examines the interpretative paradigms, third, it presents the results of interpreting Magna Carta as a historic(al) document and as a myth in legal history. It is shown that the distinction between the historians' and the lawyers' interpretation of Magna Carta has not been clearly drawn in the past, and even today it is contingent upon the dominant ideology embraced by the researchers.

Added: Mar 8, 2016
Article
Poldnikov D. Journal on European History of Law. 2016. Vol. 7. No. 2. P. 53-59.

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The article presents the results of author's research of the origins of the general concept of contract in continental legal science in the Middle Ages and early Modern Times. This general concept marks one of the key features of the legal style in civil law countries, unknown to Roman jurisprudence, Muslim fiqh or Anglo-American common law. The formation of the general concept of contract proves to be the outcome of several generations of jurists archived through the combination of two models of contract in the medieval ius commune: agreement-based (in the commentaries on Roman law) and promise-based (in the church canons). It is argued that the synthesis of the two models in the 16th century is due to the efforts to reduce the Roman classical law to an art (as in the case of the French humanists) or to explain every rule of positive contract law through the ideal concepts of natural law and commutative justice (as in the case of Spanish legal thinkers). In arranging contract law the French jurists (such as François Connan and Ugo Donellus) followed the intended project of Cicero (ius in artem redigendi) by means of the methodology of Petrus Ramus. The representatives of the Spanish late scholastics (Domingo de Soto, Louis de Molina, Leonard Lessius) aimed at explaining all the provisions of the positive contract law in the sense of the higher moral and theological principles of natural law, as it was laid out in 'Summa Theologiae' by Thomas Aquinas. The author looks into the relevant works of the French and the Spanish jurists to analyse a definition of contract, its criteria, and to trace their origins in the legal commentaries of the medieval civilians and canonists, as well as in the medieval and antique treatises on moral theology and philosophy. The analysis allows for critical assessment of the inconsistencies and contradictions of the general concept of contract in the doctrines at the beginning of Modernity.

Added: Dec 5, 2016
Article
Poldnikov D. Journal on European History of Law. 2014. Vol. 5. No. 1. P. 95-103.

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

Added: Sep 27, 2016
Article
Bystrov A. Journal on European History of Law. 2019. No. 2. P. 86-100.

The article examines the political and legal ideas of Alexei Borovoy, a Russian anarchist thinker of the early 20th century and author of the anarcho-humanism theory, which represents an original anti-state doctrine and rethinks the established positions of classical anarchism. Borovoy was influenced by a broad variety of ideas, and the evolution of his views can be conceptualized with a Hegelian triad: the Marxist thesis, the individualist antithesis, and the blending of personalistic and existentialistic attitudes with syndicalist practice as the synthesis. He presents anarchism as a constant striving towards an individual’s self-liberation through the negation of social reality; and this striving shall be seen as a universal condition for the development of all mankind rather than some social utopia project. By revealing the irresolvable antinomy between individual and society, his philosophy predicates the anti-finalist spirit of anarcho-humanism. Determined by the aforementioned beliefs, Borovoy’s criticism of the state and other “social fetishes” still deeply rooted in the human mind is followed by an analysis of his critique of anarchism itself and the debate with Kropotkin and other libertarian theorists. Borovoy postulates that the state is historically necessary and describes the range of factors that have brought it about. The criticism of the state system as the quintessence of organized power leads Borovoy to a detailed deconstruction of parliamentarism, the only objective of which is to preserve the status quo that can be summed up in the following six points: (a) the class nature of parliaments and the fictitious power of popular will; (b) the tyranny of the masses; (c) parliament’s subordination to the government; (d) the opportunism of political parties; (e) the hypocrisy of election procedures; and (f) non-professionalism of parliamentarians. Borovoy defines the law as actual relations formed in the course of life and originating mainly in the human mind that should be regarded as part of the psychosocial current of legal thought. From his criticism of the law that is made ex parte by those in power and becomes necessarily coercive and precluding voluntary acceptance of social obligations, Borovoy turns to the law based on conventional norms established by common agreement and commonly supported and accepted. However, similarly to the “anarchist ideal”, his approach offers an unlimited freedom to exercise human abilities, but fails to suggest any reasoned, specific, and consistent principles to serve as a basis of this law, and sticks to general and abstract formulas

Added: Oct 14, 2019
Article
Poldnikov D. Journal on European History of Law. 2020. Vol. 11. No. 1. P. 53-60.

Many European and even some Russian academics consider Russian legal history to be a series of ruptures. There is some truth to this, and yet the law in east of Eastern Europe is not devoid of continuities which link it with European legal trajectories. This paper examines the pattern of the codification of civil law as one of those links.

Russian experience with drafting civil codes goes back to the ‘age of codifications’ and culminates with the ‘normal’ draft Civil Code of the Russian Empire of 1882–1913. After the Bolshevik revolution of 1917, Soviet civil legislation claimed to break away from all continuity with the bourgeois legacy, domestic and foreign. However, even the codification of ‘real socialism’ in the early 1960s reveals notable similarities with the ‘bourgeois’ legal experience. The theoretical concept of the Civil Code of 1964 overlapped with the modern notion of the code during the ‘age of codification’. This similarity was backed up by the positivistic legal scholarship that conceptualized Soviet law as a hierarchical and gapless system of binding norms. 

This part of the Soviet legal legacy still marks the Russian Civil Code of 1994-2006. Hence, the formalistic pattern of codification remains one of the Soviet relics in contemporary Russian legal style and allows a comparison with other civil law jurisdictions in Europe.

Added: Jun 8, 2020
Article
Poldnikov D. Journal on European History of Law. 2017. Vol. 8. No. 2. P. 37-41.

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

Added: Dec 9, 2017
Article
Poldnikov D. Journal on European History of Law. 2018. Vol. 9. No. 2. P. 92-99.

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

Added: Nov 26, 2018
Article
Poldnikov D. Journal on European History of Law. 2013. Vol. 4. No. 1. P. 72-80.

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

Added: Sep 16, 2013