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16POST SIXTEEN25 APRIL 2012JOHN QUINCY ADAMS VIEW OF THE LAW & RUSSIAN SCHOOLS OF LEGAL THEORY In the

interior courtyard of the American Embassy compound in Moscow, there is a statue of the 6th president of the United States (1825-29) as he was also the first American ambassador to the court of the Russian tsars (specifically that of Aleksandr [I] Pavlovich during 1809-14). This John Adams, the son of the American revolutionary and 2nd U.S. President, made a remarkable diary entry on 26 May 1817: I spoke to Wirt [William Wirt, soon to be named Attorney General by then President Monroe] about the acquittal at Baltimore of the pirate Daniels. The case went off upon a legal quibble. Wirt says it is because the judges are too weak but very good old men who suffer themselves to be bullied and browbeaten by Pinkney. [William Pinkney was the 7th U.S. Attorney General.] I told him that I thought it was law logic an artificial system of reasoning exclusively used in courts of justice, but good for nothing anywhere else. . . . The source of all this pettifogging is, that out of judicial courts the end of human reasoning is truth or justice, but in them it is law. See Charles Warren, A History Of The American Bar 382 (1911 & reprinted by William Hein 1980) & www.masshist.org/jqadiaries. In their early 19th century colloquy Adams and Wirt were harbingers of notions that later became categorized as legal realism (e.g., Jerome Frank who once noted that a courts decision might turn upon what a judge had for breakfast & Karl Llewellyns thesis in the Bramble Bush that "what officials do about disputes is . . . the law itself" see http://archive.org/details/bramblebushonour00llew) and critical legal studies (see e.g., http://www.law.harvard.edu/faculty/unger/legal.php) on the American legal scene. The short of it is that Russian schools of legal theory have both some similarities as well as strong differences from their American counterparts. An eminently respectable summary is made in chapter 3 of Professor Butlers Russian Law 37-85 (Oxford, 3rd edition, 2009). Albeit at the risk of ignoring Santayanas wise admonition, this post limits itself to Butlers concluding characterizations and synthesis that leans heavily upon Russias 1993 federal Constitution see Butler at pp. 84-85; 3.183-3.184. The Constitution serves a society in transition from totalitarianism, anti-law socialism, to a post-socialist legal structure, the commencement of the formation of a civil society, a rule-of-law State, and a law [lex] which must accord with law in the highest sense [jus] . . . The Constitution combines a legal axiomatic approach (the rights and freedoms of man are the highest value) with a natural law view (the rights and freedoms of man are innate and not conferred by the State). The task of the civilitarian school is to measure the Constitution, its virtues and shortcomings, against the realities of Russian life and seek to identify and repair those domains where the Constitution falls short. It bears noting that the civilitarian school that Butler refers to includes that of the late Professor Nersesiants whose Manifesto was discussed in Post Number Ten.

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