Abstract
In this chapter, we look first at several prominent nineteenth-century Russian legal philosophies including those of Shershenevich and Chicherin, with whom Solov’ëv would squabble in conjunction with their opinions of the Justification. Whereas there were a number of legal positivists before Solov’ëv, Chicherin emerged as a defender of an idealist philosophy of law. Solov’ëv himself took exceptional interest in the topic and addressed it both in his Justification as well as in a separate monograph Law and Morality, the title reflecting the central issue for him of the relation between the two. The outcry against his ideas was largely confined to professionals in the field, Solov’ëv’s treatment of economics, however, of which he had little understanding in today’s sense, and of international conflicts struck a responsive chord across a wide field.
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Notes
- 1.
SS, vol. 8: 519. Luk’janov relates an incident in the mid-1890s when one evening before a large number of people including a number of prominent lawyers, Spasovich among them, Solov’ëv read from his chapter of the Justification on the “penal question.” He read with great enthusiasm, but when the lawyers began to raise objections, he quickly receded into the background without responding to the attacks, taking them as if they were meant in humor. Luk’janov interprets this incident as revealing Solov’ëv’s discomfort in going deeply into legal disputes. Luk’janov 1916: 133.
- 2.
Ivan Janzhul (1846–1914), who studied in the law faculty of Moscow University from 1864–1869, remarked in his memoirs that despite his interest in the topic of Barshev’s course, he later could not recall anything memorable about the lectures except for a few anecdotes. He also on his initial acquaintance with Barshev found him uncaring and uninteresting. See Janzhul 1910: 8 and 37. The reader may recall that Janzhul, who was in London researching material for his own magister’s thesis on English excise taxes, was asked by Solov’ëv’s father to keep an eye on the young Vladimir while they were both in the British capital in the mid-1870s. Nemeth 2014: 49–51.
- 3.
Barshev 1858: 156–157.
- 4.
Zorkin 1978: 8.
- 5.
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Kapustin 1868: 79.
- 7.
Nikolaj Rennenkampf, who taught law at the university in Kiev, subjected Kapustin’s work to a scathing review shortly after its appearance. Rennenkampf found Kapustin’s work to be frought with contradictions, ambiguities, and pointless personal opinions. Regarding some of the material above, Rennenkampf wrote that he refrained from presenting the details in the relevant chapters, since they expressed “various moral positions of no significance for the law.” Rennenkampf claimed the first chapters were unsatisfactory even from Kapustin’s own viewpoint. Rennenkampf 1869: 8.
- 8.
Kapustin 1893: 6.
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Pakhman 1882: 21.
- 10.
Shershenevich 1911: 10.
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Shershenevich 1911: 21.
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Shershenevich 1911: 14.
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- 14.
Solov’ëv in one place calls Chicherin “the most universally educated and systematic mind among contemporary Russian, and perhaps European, scholars.” SS, vol. 8: 521. It should be kept in mind, however, that it was common practice at the time to lavish praise on an author in one’s own preface before engaging in a savage attack on that person’s position.
- 15.
Chicherin, in his 1882 Sobstvennost’ i gosudarstvo [Property and State], wrote that Kant “had revealed the true basis of both morality and law. Freedom was understood as an integral feature of the human being’s moral essence.” Chicherin 1882: 41.
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Chicherin 1879: 136. Chicherin clearly had difficulty specifying what reason is, and his tendency to speak of reason not as a faculty or ability of something, but as a thing only adds to the confusion. Of course, Solov’ëv habitually, it would seem, also treated reason in much the same manner.
- 18.
Chicherin 1879: 137.
- 19.
Chicherin 1879: 143.
- 20.
Chicherin’s claim, as stated, is certainly problematic. If we understand freedom to be a prerequisite for the possession of the moral law, his statement is of little philosophical value. On the other hand, if, as Chicherin earlier wrote, the moral law is equivalent to acting rationally, he upholds deliberately or not an interpretation of Kant’s position and that of Solov’ëv.
- 21.
To be sure, Solov’ëv merely says that it would be to “engage in playing a false or affected game.” Solov’ëv 2015: 323; SS, vol. 8: 399.
- 22.
Whereas the positivists draw the dichotomy on theoretical grounds, the Slavophiles saw the rise of law as largely a Western import. Russian society, in the view of the latter, relied on tradition for its behavioral norms.
- 23.
Solov’ëv 2015: 324; SS, vol. 8: 400.
- 24.
Solov’ëv interjected into his discussion an allegedly pertinent corollary to his philosophy of history, namely that history reveals progressive improvement over time in our legal institutions, a fact, he contends, that is too often overlooked. History also shows a constant increase in humanity’s recognition of the role of law. The world has witnessed actual progress in approving legal regulations that are at least conformable to moral demands.
- 25.
Solov’ëv, in writing this, essentially repeated his position in his Critique of Abstract Principles, though there he wrote only of “right” without distinction. See PSS, vol. 3: 136. Chicherin criticized Solov’ëv, saying that the latter had failed to realize that with a right comes compulsion, which moral obligation lacks. Solov’ëv’s distinction here in the Justification between “moral right” and “right as such” represents his reply to Chicherin via a clarification. Solov’ëv’s position did not go uncontested even in his own time. Leon Petrazycki held that legal obligations “regarded from the point of view of the side to which the duty belongs we will call rights. Our rights are others’ duties.” On the other hand, unlike Solov’ëv, Petrazycki held that morality consists of norms that “prescribe certain conduct for us but give others no claim or right of any kind to fulfillment by us.” Petrazycki 2011: 46.
- 26.
Solov’ëv’s discussion at this point was frought with difficulties and confusion, which his critics certainly observed. He did not clearly state that he identified a right as such with a legal right. Unless he does so, this first element or point, not specifically mentioning the concept of a “right as such” is irrelevant. If Solov’ëv did identify the two concepts, he was inconsistent. For he said that a “right as such” has no immediate moral character, but a legal right demands ‘the minimum of morality.” Solov’ëv 2015: 329; SS, vol. 8: 407.
- 27.
Solov’ëv 2015: 331; SS, vol. 8: 409. Walicki points out that the Austro-German law-theorist Georg Jellinek years earlier had similarly defined legal right as an “ethical minimum” and that Solov’ëv probably knew his works. Walicki 1987: 201. Walicki does not state the basis for his confidence concerning Solov’ëv’s knowledge. For Jellinek’s definition, see Jellinek 1878: 42: “Objectively, rights are the conditions for the preservation of society insofar as they depend on the human will, i.e., the minimal ethical norms for [social] existence; subjectively, they are the minimal ethical activity and attitude demanded from members of a society.”
- 28.
Apart from the incredible naïveté of this claim, which makes the mere reiteration of it difficult, one could question what sort of “freedom of action” Solov’ëv had in mind as the moral end-state of individual humans.
- 29.
- 30.
Solov’ëv subtly changed the wording here in the Justification between its 1897 first edition and the 1899 second edition. In the earlier version, he held that morality instructed us merely to defend others from evil, a reactive position, whereas in 1899 we are to help others in need, a proactive stand. See Solov’ëv 2015: 334f.
- 31.
Compare, for example, SS, vol. 8: 419–422 with Solov’ëv 1989: 549–551.
- 32.
Solov’ëv provided neither historical evidence for these claims concerning the Greeks and the Romans nor logical argument. Thus, as another linchpin in his philosophy of history, his portrayal of the development of legal right is speculative in the worst sense at best.
- 33.
- 34.
- 35.
Solov’ëv may have had in mind what its opponents termed the “Loris Melikov constitution,” which called for the convening of a strictly advisory body composed of representatives of local government. It had been approved by Tsar Alexander II in 1881 just hours before he was assassinated. His successor Alexander III dismissed the proposal and with it and his reactionary policies doomed Russia’s chance for entering the modern Western world.
- 36.
- 37.
SS, vol. 8: 522.
- 38.
Trubeckoj 1995: 153.
- 39.
Pribytkova writes that Solov’ëv hoped to combine the respective positions on law enunciated in his first period and found in the Critique of Abstract Principles with those in the Justification of the Moral Good. She writes that the fundamental point of Solov’ëv’s new conception is a recognition of the inner spirituality of law and its connection with morality. Pribytkova 2010: 72. The reader will recall that Wittgenstein at one time hoped to publish his Tractatus along with the Philosophical Investigations as one volume for a similar purpose as Solov’ëv’s.
- 40.
Soloviev 2000: 142; SS, vol. 8: 536.
- 41.
Soloviev 2000: 146; SS, vol. 8: 542.
- 42.
- 43.
Walicki 1987: 201.
- 44.
- 45.
Cf., for example, SS, vol. 8: 335–336 and SS, vol. 8: 552–554.
- 46.
In reply to Solov’ëv, no one claims that economic laws “function on their own” in the same manner as do physical laws, that they can never be “violated” in a single instance. See Solov’ëv 2015: 297; SS, vol. 8: 367. How did Solov’ëv arrive at such a bizarre misunderstanding? Why did he think that economists believe economic laws cannot be violated in an individual case?
- 47.
Admittedly, Solov’ëv wrote, “There is one necessity, and it is moral necessity.” Solov’ëv 2015 297; SS, vol. 8: 368. However, this “necessity” is not the same as the necessity of events complying with, say, the first law of thermodynamics. Even Solov’ëv realized not all of our actions or intentions are perfectly moral. Additionally, on the basis of his brief note on the law of supply and demand he demonstrated little understanding of it. He only reluctantly came to recognize a distinction between such a fundamental economic law and a physical one between 1897 and 1899. See Solov’ëv 2015: 291; SS, vol. 8: 361.
- 48.
Solov’ëv 2015: 291; SS, vol. 8: 361.
- 49.
Solov’ëv had in mind again the merchant who in defiance of the law of supply and demand lowers his prices so that everyone can afford his or her goods. It is not surprising that he failed to address the consequence of such an action. The merchant takes a loss leading to his/her own bankruptcy and withdraws from the marketplace. In the longer term, who is better off as a consequence of this merchant’s “violation” of the economic law? There is no indication that Solov’ëv was familiar with the details of Smith’s work or of the basis of a nation’s economic prosperity. Solov’ëv’s ignorance of Smith’s publications is most unfortunate, for if he had inquired more he would have found much in The Theory of Moral Sentiments to buttress his own position, particularly Smith’s discussion of sympathy.
- 50.
Solov’ëv 2015: 298; SS, vol. 8: 369.
- 51.
Solov’ëv 2015: 302; SS, vol. 8: 373.
- 52.
Solov’ëv 2015: 311–312; SS, vol. 8: 386.
- 53.
- 54.
- 55.
- 56.
- 57.
- 58.
- 59.
- 60.
Tolstoy 2009: 22.
- 61.
Solov’ëv’s penultimate chapter in the Justification entitled “The Meaning of War” was originally published not in a philosophical journal, but in the literary supplement to a popular magazine Niva. He surely hoped thereby for his ideas to reach as broad an audience as possible. Trubeckoj saw Solov’ëv’s discussion of war as adhering closely to the theme of the previous chapter on legal right in that both chapters are ultimately concerned with whether violence is morally permissable and, if so, to what extent. Just as there is an ethical minimum in the relations between the individual and the state, so there is such a minimum between states protected by force. Trubeckoj 1995: 162–163.
- 62.
Kant 2000: 300 (Ak 5: 433). Kant also wrote that if wars were conducted with order and respect for the rights of non-combatants, there would be something “sublime” about it. A prolonged peace leads to selfishness, cowardice and weakness. Kant 2000: 146 (Ak 5: 263). Unfortunately, the rights of non-combatants have not been not respected.
- 63.
Solov’ëv also, unfortunately, showed little understanding of whole peoples. In his youth, he looked unfavorably at one time on the English, then the French. In his “maturity,” at the time of penning the Justification he doubted that East Asians could ever be peacefully introduced into general human culture, writing that it was “highly improbable.” Solov’ëv 2015: 358. Whereas his early comments on western European peoples were expressed in letters and can be dismissed as emotional expressions stemming from some recent experience, his remark on “the yellow race” appeared in the body of his most thought-out work and thus cannot be so easily dismissed.
- 64.
Kamarovskij 1900: 336. Kamarovskij, as a professor of international law as well as a university official, was also taken aback by what he considered Solov’ëv’s fantastic view of the future, in which universal peace was not the culmination of the historical process, but only a condition for the realization of something else on the planet. Kamarovskij 1900: 341.
- 65.
Volynskij 1895: 62. Like Solov’ëv, Volynskij had a deep interest in Spinoza and Kant. For more on Volynskij’s treatment of Kant, see Nemeth 2017: 221–223 and Scherrer 1973: 57–58. Solov’ëv, of course, knew the ascerbic Volynskij well enough. The former published seven poems and two articles in the journal Severnyj vestnik, which at the time was largely in Volynskij’s hands. But a nascent animosity on Volynskij’s part toward Solov’ëv can be traced back to the early 1880s when Volynskij, as a law student in St. Petersburg, came out against Solov’ëv’s dream of the conversion of all Jews to Christianity. After a short period of collaboration between the two on Severnyj vestnik ended in the early 1890s, Volynskij felt resentful of Solov’ëv, and the latter’s apologetic attitude toward the government further aggravated Volynskij’s feelings. After the appearance of Volynskij’s comments on Solov’ëv, Tolstoy wrote Volynskij in late September 1895 to express his “joy in knowing that there is a like-minded person.” Tolstoj 1954: 192. Trubeckoj later, on the eve of “The Great War,” expressed the other view, viz., that “Solov’ëv took the only possible and irreproachably correct position from the Christian point of view. In general, it completely agrees with the Gospel assessment, which sees in military service neither an absolute good nor an absolute evil, but as having a relative, temporary value.” Trubeckoj 1995: 170.
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Nemeth, T. (2019). Morality vis-à-vis Law, Economics, and War. In: The Later Solov’ëv . Springer, Cham. https://doi.org/10.1007/978-3-030-20611-6_9
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