Legal Realism in Soviet and Russian Jurisprudence

Review of Central and East European Law. 2018. Vol. 43. No. 4. P. 483–518.

Antonov M.

Soviet law is often viewed as based on legal positivism, while its ideological background and the practices of political interference are considered in an extralegal (political) dimension. This logic prompts conclusions about the dual character of Soviet law where prerogative and normative dimensions constituted two parallel systems. Similar opinions are sometimes expressed about Russian law, which is a continuator of Soviet law both normatively and factually. The present paper analyzes this approach and suggests that the alleged dualism can be considered in the light of the basic presuppositions and methods of the Soviet (Russian) theory of law and state. This jurisprudence was and still is based on a combination of formalism and anti-formalism (realism) which provided a certain degree of unity and coherence of legal knowledge. After the end of Soviet rule, legal theory in Russia still orients itself to this symbiosis of positivism and realism which underlies legal education and legal scholarship. The paper addresses the philosophical and methodological origins of this Russian (Soviet) legal realism, and argues that the particular character of Russian (Soviet) law can be explained against the backdrop of this theoretical combination that combines conservative social philosophy, a Schmittean conception of exception, methods of legal positivism and the spirit of legal nihilism. These particularities and their methodological background are, in the author’s opinion, among the distinguishing features of Russian law and legal culture.

Keywords: legal realism, legal normativity