The Key Elementsof Legal Conception of Nikolai Alekseev

The key elementsof legal conception of Nikolai Alekseev

The intellectual heritage of Nikolai Alekseev seems to be remarkable in many aspects; and among these aspects the legal researchers usually refer to the point that the phenomenological approach to law is characteristic for Alekseev’s philosophy of law. This point is far from being unambiguous as far as Alekseev himself has several times stressed the difference between his ideas and the phenomenological philosophy. In his earlier works and especially in his classical “Elements of philosophy of law” (1924) this thinker has explicitly denominated his position as phenomenological, although several years later Alekseev admitted of being wrong in this assertion. We consider that this major issue of phenomenological methodology allows understanding the spirit of Alekseev’s philosophy of law. In our report we focus attention on this point which serves as a central point from which are deductible the other key-aspects of his conception. These aspects are clearly discernible in the light of the main philosophical inspiration of Alekseev – to bring together the collective and individual experiences where he gives preference to the former ones. This idea was common to many thinkers of the Russian Silver Age at the beginning of the XX century, and Alekseev’s use phenomenological philosophy of is utmost interesting example of this project. Despite of the apparent similarities, this Russian philosopher is far from sharing the terrain with other partisans of implementation of phenomenological approach in law, such as Adolf Reinach or Gerhard Husserl. Nevertheless, he tried to integrate some elements of this new mainstream philosophy of the beginning of the XX century into the contemporary (for Alekseev) legal debates and thereby to give a room to a larger understanding of law. To remind that the intellectual époque in question has been profoundly marked by legal positivism and by the strong trends to connect law and the state coercion. The revived Natural Law has attempted to change this trend but even the prominent works by Vladimir Soloviev, Pavel Novgorodtsev or Eugenij Trubetskoy could not reverse the positivist stronghold over the science of law in Russia in that prerevolutionary period. One has had to take recourse not to a metaphysical argumentation which has always been the cornerstone of the old Natural law oriented approaches, but to the newest trends in the philosophy. This was namely the option Alekseev have chosen in developing his legal philosophy in the phenomenological aspect. His attitude to the plate dogmatism of the Begriffjurisprudenz has been marked by deep aversion to any formalism in the science of law, and this was quite an audacious challenge to the dominant doctrine and jurisprudence which in Russia have still been influenced by Kantian and especially neo-Kantian scientific paradigm. Alekseev have revealed that law has always something in its content which exceeds the pure formula of the norms and doctrines; this something being the very essence of legal regulation. Unlike the partisans of Natural law, Alekseev went searching for this essence through a long way of reductions, by cutting off a layer after layer of the phenomenological experience in order to arrive at the core substance of law. This project aimed at discovering of a set of the unconditional relations and elements of the legal communication without which one is unable to construct any legal regulation at all. Alekseev specifies three basic elements in the phenomenological structure of law. The first element is a subject which can be an individual or a collective, capable to discover and to recognize the legal values. These legal values comprised justice, equity, formal equality and some other axiological axes around which the humans construct their experience and thence develop their practices, knowledge, education, professions. This bulk of experience is primary for constitution of the set of rights and obligations through which are carried through acts of recognition of the values. It is these correlated rights and obligations that differentiate law from other social regulative mechanisms as morals, ethics, and religion. Taking from Leon Petrazycki the idea of correlation of rights and obligations as distinctive for law, Alekseev reformulates it from the psychological language into the language of the phenomenological philosophy and tries to clear this correlation from any traces of subjectivity. But he has not been able to get rid of subjective elements in law as far as it is the deepness of emotional perception what allows us further distinctions between valid and invalid rights and obligations. In the spirit of neo-Kantian scientific methodology, to which Alekseev has always been tribute in spite of his phenomenological orientation, he seeks formal criteria for establishing the distinctions. One of such criteria was that of kind of perceptions. In Alekseev’s opinion, it is only intellectual recognition of values what we encounter in law. This solely intellectual perception is opposed to a wider moral experience where emerge also feelings, emotions, sympathies, or even religious experience where superstitions, admonishment, fear play a great role. These elements, surely, are partly present also in law, but Alekseev stresses that they do not have principal significance for legal regulation which can work without recourse to these auxiliary psychological facts. What makes law to be law is the mutual intellectual recognition of the legal values which gives way to legal communication between the human beings. Another, and perhaps crucial question is what are these values structuring the legal experience. On the other hand, the issue is how to divide the true values from their perversions in the immature or corrupted human experience which can cherish following unjustifiable patterns and foul goals. Here, Alekseev’sphilosophicalperspectiveseemstotranscend the formal limits both of neo-Kantianism, and of phenomenology. Following the tradition of the Russian legal philosophy of the Silver Age, Alekseev stresses the collective dimension of law as compared to a solely individual dimension of law as struggle of interests (Rudolf von Jhering). That is why he warns against recourse to the individual experience as the ultimate framework for understanding the mechanism of law. Thecollectivevaluesofthesociety (community, group, etc.) prevail and serve as the base understanding of law by the individual actors. The individual intellectual recognition is, as a matter of fact, constituent of rights and obligations, but individuality can sometimes rather disguise the values than discover the real phenomenological core of the legal relations. Quite unexpectedly for someone adhering to the phenomenological philosophy, Alekseevexplainsthat historical forms of legal institutions, representations, and even of the collective goals and values do not provide access to the cognition of law through a set of consecutive acts of reductions. In other terms, what we achieve through these reductions can be false and perverted values pursued by the governors and lawmakers when passing statutes or adopting laws. To understand what law is in its ultimate form, one needs to define the factual values which urged the people to choose a legal regulation as opposed to a selfish pursue of interests and arbitrary application of force. Also the collective, social values are eligible to this test. Inevitably, Alekseev arrives at the extra-individual criteria which can be found neither in the social reality, nor in the structures of cognition, and thus he is pushed to the metaphysical discourse. This result is particularly meaningful as Alekseev uses phenomenological reduction in order to destroy the phenomenological precepts of individual cognition! Departing from the Revived Natural law in order to provide scientific foundation and explanatory frame to law, he goes back to this metaphysical approach after making reductionist investigation into the legal experience. Has Alekseev chosen the correct ground for his investigation, and whether the results of this investigation are representative for any legal experience or uniquely for the Russian legal culture, it is another issue to be discussed…