Roman law in the jurisprudence of Russian courts

Abstract

In modern Russian judicial practice, the justification of court decisions by normative provisions extracted from all that is collectively embraced by the concept of “soft law” is becoming increasingly widespread. In this article, this phenomenon is revealed in the aspect of the practical application by Russian courts of certain provisions of Roman law. Considering specific examples of this kind, the authors, through doctrinal reflection, seek to identify common reasons that encourage domestic courts to turn to the mentioned source of “soft law” and come to the conclusion that modern Russian civil law in a sense repeated the path that was traversed by the civil law of imperial Russia. If, back in the middle of the 19th century, the judiciary could not even think of looking for a source of inspiration anywhere other than a literal interpretation of the text of the law, then with the beginning of the “Great Reforms” of the 1860s, the unsuitability of such an approach for servicing the rapidly developing turnover was revealed, and since the legislator could not keep up with its development, the main work of adapting positive law to changing relations was accepted the courts have assumed much broader discretionary powers. Since the possibilities of the domestic doctrine to meet the needs of the law enforcement officer in understanding and developing Russian law turned out to be very limited, judges found themselves in demand for the European civilian tradition based on Roman law, familiarity with which prompted them to independent judicial law-making. In many ways, similar processes are observed in post-Soviet Russia, a visible manifestation of which is the expansion of “soft law” into law enforcement practice, primarily through an appeal to the analogy of law and teleological interpretation. One of the facets of this process is the revival of interest in the legacy of Roman law and the Romanistic tradition. In this sense, unexpected parallels are found with the development of the common law. 

Keywords:

soft law, Roman law, judicial practice, doctrine