From legal nihilism to nihilism of law. Reflections on the modern ways to read “Fathers and Sons”

Excerpts from the speech by Yury Pilipenko, Doctor-at-Law, Managing Partner of the Law Firm "YUST", First Vice President of the FCA of Russia, delivered at the reception in honor of the opening of the IV Investment and Law Forum “White Nights” held in Arkhangelsk on May 31-31 of 2013.

The law is developing together with the society and is inevitably affected by social processes, which causes the reflection effect. Nihilism as a social phenomenon appeared in our country in the XIX century, and afterwards became an inviolable part of the modern life in the form of legal nihilism. It served as an impulse, thanks to which law is beginning to take on a new quality.
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Ivan Turgenev was not just a handsome man, a Russian nobleman and a rich land owner – he also served the Emperor and the Motherland. This is little written and talked about, but no one doubts the fact that he was an officer of the Russian “special service”, serving in the III Section of His Imperial Majesty’s own chancellery (according to another version – in the intelligence service of the General Staff).

That is why, I think, obeying not only his convictions, literature beliefs but also apparently following his service duty, Ivan Turgenev tasked himself with discrediting nihilism, which was widespread in the society by that time, by the means available to him – by literary means.

I’d like to remind that petty bourgeois, who actively and demonstratively challenged all social foundations (and therefore quite often neglecting to wash or to brush – literally), were considered nihilists at that time.

There were thousands of nihilists in Russia, hundreds of them plotted assassinations of the Emperor, dozens attempted and several were successful. Unfortunately. At times, the Emperor was forced to run alongside the embankment at the Winter Palace in the capital of his own Empire, dodging bullets of a terrorist. But he was unable to dodge his death the next time. The Liberator Emperor was blown to pieces by a bomb of a slave he had liberated.
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Turgenev vied to debunk nihilism by showing its unfoundedness, its inability to survive confrontation with the real life.

Thus, for example, should Evgeny Bazarov, the main protagonist of the novel fall in love – and he immediately becomes confused. Should he suffer the slightest of scratches during a common medical manipulation – and he dies.

The writer made an attempt (and not an unsuccessful one) at demonstrating the primitiveness inherent in all nihilists. Here is an example: Bazarov makes the following compliment to a woman: “Such a rich body! Excellent fit for a dissecting room!” Or his words addressing Arkady: “You should study the anatomy of an eye: where can that mysterious gaze, as you say, come from? All this is romanticism, nonsense, rot, art trickery,” – says he and adds: “Let us rather go study a bug”.

Turgenev engaged in a kind of a duel in absentia with those, as he seemed to believe, insignificant human beings, by trying to show by way of literary images that nihilism cannot be the way out of the crisis, which the Imperial Russia was going through then. And which it was doomed to never survive.
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However, as is often the case with works of literature, “Fathers and Sons” got a life of its own, which was far from the author’s purposes and intentions.

When the novel was published, it was read by all reading people in Russia. Moreover, the Soviet power, of course, by way of obligatory reading in school, helped us to learn very well that nihilism in Russia appeared because of the damned Tsar’s regime, when such talented people like Bazarov (for he is undoubtedly talented) were forced to become nihilists not being able to find another position of more social significance.
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When the 80-ies of the past century brought all their turmoil and fatefulness, somebody linked two words – “law” and “nihilism” – and thus was “legal nihilism” born.

Perestroyka (if anyone remembers, what that is) erupted, and it seemed to us that if we uproot legal nihilism (and what exactly is legal nihilism? – eschewing law as the instrument of regulation of social relations) from our existence, everything will immediately be well: goods will appear in the stores, the life will get more joy, the Baltic republics will no longer want to secede from Russia etc. So the entire country embarked on a crusade against legal nihilism. What were the results?

Paradoxically as it mas may seem, this resulted in nihilism of law – eschewing life (social, biological, all kinds of life) and its realities by the law and formal legal institutions.

I will give some symptomatic examples. They are not proof, but still…
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First one. Some twenty years ago, it was believed – not without grounds – that there are too few lawyers in the country (unlike engineers): only several institutes and a couple of universities produced lawyers during the Soviet period. And the stampede started: geological prospecting, pedagogical, veterinary and other universities churned out an armada of lawyers. They all had different but formally equal diplomas.

And now it is being said, louder and louder, that the number of lawyers should be decreased, that law faculties in the non-profile universities should be closed, that additional accreditation is required. And it is already clear that those measures are really necessary, because the number of lawyers and the quality of their education is oh so far away from the limit.
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Going on. It was believed that the court’s role in the country was undervalued, that the court allegedly did not occupy a worthy place in the social life and in the government system.

Not ten years have passed, and the court has reached such a high place that I find it dubious: the number of staff positions in the courts of today’s Russia is vastly greater than the number of judges and other court officials in the Soviet Union. And the number of staff positions keeps growing, to which the planned novelties to the judicial system (in particular, administrative proceedings) will greatly contribute. Beside the new judge positions, new positions for judge assistants will be required as will be premises, computers etc. According to some evaluations, the number of new job positions for the judicial system may reach approximately 14 thousand.

But what is the purpose of this extra burden on the budget of the country? I give some indicators of the courts’ work.

The latest data show that 0,3% of all sentences in Russia are acquittals. One may object: there were practically no acquittals during the Soviet period. This is true. But Soviet courts remitted up to 10% of the cases for additional investigation, which really meant the request to terminate the criminal proceedings. Compare the 10% before with the 0,3% now.

Information on the situation in Moscow was recently published, according to which the courts uphold 96-97% of all the custodial placement requests by the preliminary investigation. I think this shows the loss of the sense of harmony. When prosecutors sanctioned the custody, they, in my opinion, followed a more reasonable and balanced approach than the judges. The harmony was followed.
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Moving on. We used to think that we were suffering from the lack of laws and from the fact that most relations were regulated by bylaws and institutional acts. Well, several hundred laws per year are currently adopted. Even those, who must apply the laws, are hardly able to read them all. Not to mention those, who vote for them.

I remember very well how the previous speaker of the State Duma, teary-eyed from pleasure, reported that 450 federal laws were adopted during the reporting period, which is 12% more than the previous one. And no one explains: what are those 12% exactly about? The just words about a “bacchanalia of law-making” are attributed to the Chairman of the HCA of Russia.
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Yet another example is the recent law-making initiative on introducing criminal liability for insulting religious feelings (as of the moment of publication, said initiative has been implemented in the Federal Law No. 136-FZ dated June 29 of 2013 – editor’s comment). According to the common sense, one is forced to acknowledge that the feeling of a true Christian cannot be insulted. A question to those, who demonstrate their piety: what do they know of Christ?

We have no documents on the life of Jesus Christ, but enough information on Him is contained in many sources, and the New Testament is foremost. Was there a single minute during the final, culmination days of His life, when He was not subject to insults, from the point of view of an immature worldly mind? There was not. But was Jesus Christ insulted by a single attempt at it? Never. And I am convinced that no person is able to prove otherwise.

And the law in question is an obvious manifestation of nihilism of law, when we, having lost the sense of harmony, deprive the law of its quality of reflection of our life’s real things, and that means that we eliminate the law’s ability to regulate our life.

And what about the anti-smoking law that enters into force one of these days – doesn’t it contain any elements of nihilism of law?.. (Federal Law No. 15-FZ dated February 23 of 2013, entered into force on June 1st of 2013 - editor’s comment).
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And this trend is not unique to Russia. It is very noticeable in the law of other countries. Take Switzerland, for instance: they recently held a referendum to decide, whether or not the position of the advocate for pets should be created in all cantons. To tell the truth, the majority of that country’s citizens have apparently not lost the sense of harmony: 65% of the voters at the referendum voted against the pet advocate position.

And what to say about the recent “parade” of recognition of the right to family for gays?..
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Finally. I am convinced that, had I even been the cleverest and most confident person in the world, I would not be able to convince everyone to follow the sense of harmony. One can only understand harmony through complete loss of the sense of it, through falling into chaos. Into nothing. Through suffocating.

I suppose that all our life experience and, regrettably, social experience will keep giving us new reasons to be sure that we are gradually losing the sense of harmony in everything, including the borders of legal regulation.

History is playing with us. It keeps giving Russia the same lesson century after century – hoping that one time we will learn it.

But it seems that we will have to retake the exam again – the same one we took 100 years earlier.

Published in the New Advocate’s Newspaper. № 17, 2013 (154)