Russian Legal Positivism

The Positivist Tradition in Russian Law

Legal positivism in Russia, as in Western Europe, asserted the separation of law as it is from law as it ought to be, grounding legal validity in formal enactment by sovereign authority. However, the Russian positivist tradition was shaped by the particular conditions of imperial autocracy, the absence of a strong civil society, and the state’s monopoly over law-making. Russian positivism developed as an instrument of state centralisation in the late imperial period and was transformed into an instrument of state terror in the Soviet period, before being reimagined in the post-Soviet era as the foundation of the rule of law.

G. F. Shershenevich — The Founder of Russian Legal Positivism

Gabriel Feliksovich Shershenevich (1863–1912), professor at Kazan and Moscow Universities, is regarded as the founder of Russian legal positivism. His magnum opus, General Theory of Law (Obshchaya Teoriya Prava, 1910–1912), systematically applied the analytical jurisprudence of John Austin and the normative positivism of Hans Kelsen to Russian legal materials. Shershenevich defined law as a system of norms established and enforced by the state, the validity of which depends solely on their formal enactment by the appropriate legislative authority.

Shershenevich rejected natural law as a metaphysical fiction and argued that legal science must confine itself to the empirical study of positive legal materials — statutes, judicial decisions, and administrative regulations. He distinguished between law in the subjective sense (rights belonging to individuals) and law in the objective sense (the system of legal norms), arguing that the former is merely a reflection of the latter. Law, for Shershenevich, was a function of state power: the state creates law, and law regulates the state’s own operation in a self-referential system.

He developed a rigorous analytical framework for the classification of legal rules, the structure of legal relationships, and the interpretation of statutes. Shershenevich’s Textbook of Russian Civil Law (1907) applied positivist methodology to the Russian civil code, emphasising formal categories, systematic interpretation, and the subordination of judicial discretion to legislative text. His influence on Russian legal education was profound: generations of Russian lawyers were trained in the formal-dogmatic method he established.

Imperial Positivism and Its Limits

Imperial Russian positivism was not a monolithic school. The Petrazhitsky School, founded by Leon Petrazhitsky (1867–1931), developed a psychological theory of law that challenged Shershenevich’s statist positivism. Petrazhitsky distinguished between positive law (official norms) and intuitive law (individual legal consciousness, pravosoznanie). While Petrazhitsky remained within the positivist framework, his psychological approach opened space for the recognition of extra-statutory sources of legal obligation.

The intersection of positivism with imperial governance created tensions. The 1906 Fundamental Laws, Russia’s first constitution, established a limited constitutional monarchy with a legislative parliament (State Duma). Shershenevich analysed the new constitutional arrangements through a positivist lens, arguing that the Duma’s legislative power derived from the sovereign’s grant and could be modified by the sovereign. This analysis reflected the positivist commitment to formal validity criteria but exposed positivism’s inability to provide normative limits on state power.

Soviet Socialist Positivism — Vyshinsky

The Bolshevik Revolution of 1917 initially rejected all forms of law as bourgeois ideology. The early Soviet period (1917–1938) was characterised by revolutionary legality — the subordination of formal legal rules to revolutionary consciousness. The People’s Commissariat of Justice under Nikolai Krylenko advocated for the abolition of formal law and its replacement by revolutionary expediency.

Andrey Vyshinsky (1883–1954), Chief Prosecutor of the USSR (1935–1939) and later Minister of Justice and Procurator General, transformed Soviet legal theory through his doctrine of socialist legality (sotsialisticheskaya zakonnost). Vyshinsky rejected Krylenko’s legal nihilism and re-established law as an essential instrument of state power. In his General Theory of State and Law (1938), Vyshinsky defined law as the aggregate of rules of conduct established by state authority, expressing the will of the ruling class and secured through coercive state power.

Vyshinsky’s positivism differed fundamentally from Shershenevich’s. Where Shershenevich treated law as a neutral instrument of social ordering, Vyshinsky explicitly subordinated law to the political objectives of the Communist Party. His doctrine of revolutionary legality meant that legal form could be bypassed when required by the class struggle. The 1936 Stalin Constitution, which Vyshinsky helped draft, established formally liberal rights that were systematically violated in practice. Vyshinsky’s positivism provided the theoretical justification for the Great Terror: the law was what the state said it was, and the state’s objectives — including the elimination of political opponents — could be achieved through legal forms.

Post-Stalinist Transformation

After Stalin’s death in 1953, Soviet legal theory underwent significant transformation. The doctrine of socialist rule-of-law state (sotsialisticheskoe pravovoe gosudarstvo), developed by legal scholars such as Vladimir Tumanov and Boris Lazarev in the 1960s–1980s, sought to reconcile socialist ideology with the formal guarantees of legal certainty. The 1977 Constitution, with its emphasis on the supremacy of law and the protection of individual rights, marked a partial repudiation of Vyshinsky’s instrumentalism.

Sergei Alekseev (1924–2013) emerged as the leading theorist of late Soviet and early post-Soviet legal positivism. In his General Theory of Law (1981–1984) and Law: ABC of Theory (1995), Alekseev developed a normative conception of law that drew on Kelsen’s Grundnorm theory while incorporating elements of the human rights discourse that was transforming Soviet legal consciousness. Alekseev argued that law has an inherent normative structure that limits state power, and that the rule of law requires the subordination of the state to legal principles.

Post-Soviet Rule-of-Law Theory

The collapse of the Soviet Union prompted a fundamental re-evaluation of legal positivism in Russia. The 1993 Constitution established the principle of the rule of law (verkhovenstvo prava) and the direct effect of constitutional rights, creating a tension with the positivist tradition. Post-Soviet legal theory has grappled with the question of whether the rule of law can be sustained within a purely positivist framework or whether it requires the incorporation of natural law principles.

Contemporary Russian legal positivism, represented by scholars such as Mikhail Baitin and Vladimir Namestnikov, argues that the formal legality and procedural regularity characteristic of the rule of law are best secured through a positivist commitment to the supremacy of enacted law. This position maintains that law’s validity depends on its conformity to constitutional procedures rather than its moral content. The Constitutional Court’s jurisprudence, which combines positivist textual analysis with natural law reasoning, reflects the ongoing tension between positivist and non-positivist approaches in Russian legal theory.