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DOI: 10.24234/wisdom.v1i1.670 Marina NEMYTINA, Tsybik MIKHEEVA, Pavel LAPO
PRIVATE AND PUBLIC INTERESTS IN RUSSIAN LAW AND JURISPRUDENCE: TRANSFORMATION OF APPROACHES
Abstract
The article deals with the problem of interests in law and jurisprudence, their identification as private and public interests, the search for a balance of private and public interests in society. The authors emphasize the change in the nature and essence of the private and public in Russian society in the post-Soviet period. This basis allows proposing theoretical models for the transformation of private interests into public ones and the harmonization of such interests in the general context of social, political and legal development. In the first case, we are talking about trends in the development of society, in the second - about the goal of implementing legal policy based on the coordination of interests. By means of reflexive analysis, the authors highlight the interests in law arising in the conditions of post-Soviet society and their understanding within Russian legal science. The justification of the idea of harmonisation of public and private interests in the system of relations of modern society is equally close to jurisprudence and philosophy, history, sociology, political science as fields of knowledge with many points of intersection and common vision.
Keywords: Russian law, jurisprudence, private interests, public interests, private and public law.
Introduction
One should take into account that the problem of interests belongs to such socio-humanitarian spheres as philosophy, history, sociology and political science. At the same time, jurisprudence, using the approaches proposed by other sciences, considers interests in its own perspective, defining their types, forms of manifestation, normative expression and institutionalization. From a methodological point of view, it is extremely important to establish the circle of subjects of legal communication correctly, realizing their private and public interests, without identifying the former only with freedom of property, the latter with state power.
The authors consider that the concepts that have filled various areas of socio-humanitarian knowledge in the post-Soviet space and have
deep epistemological, ontological and axiologi-cal roots. Legal science is much more fortunate in terms of the opening opportunities for the implementation of ideas since it has access to the practice of lawmaking and law enforcement. At the same time, the theoretical models formed in legal science and responding to the challenges of the modern world sometimes lack constructive completeness in order to get real embodiment in life. The task of jurisprudence is to build models of legal regulation and legal constructions based on the identification and harmonisation of interests (in public-private partnerships, in contractual relations, etc.), which in Western jurisprudence is interpreted as "social engineering".
In its most general form, interests are understood as the real reasons for social actions. The identification of interests in law and their configuration in legal regulation (in the general dynam-
ics of social relations) is one of the significant methodological problems of modern jurisprudence. To solve it means to form the strategy for the development of society and the state, the institutional development of law, as well as to resolve conflict situations in law enforcement practice. All this determines the modern sociocultural context.
A complete theory of interests in law can be found in the work of the outstanding jurist of the 19th century Rudolf von Ihering (1818-1892) considered that "interests were the essence of life's demands in a broad sense. The concept of life requirements was taken here mainly in a relative sense, which made up the fullness of life for one, i.e., was included in the conditions of his well-being, then for another, it did not matter, this was justified both on individuals and on whole nations, even on the same people in different periods of its culture" (Ihering, 1880, p. 83). In the mainstream of the logically consistent reasoning of the German scientist, one should pay attention to different perspectives, in which various interests existing in a particular period in the culture of a society are refracted. Ihering focuses on the interests of countries and peoples in the geopolitical space, to the interests of the state and various social groups, refracted through the activities of public institutions, to the multidirectional interests of individuals, realized in legal relations.
Ideas about the interests of prominent Russian legal scholars N. Korkunov (1853-1904) and S. Muromtsev (1850-1910) had a significant impact on the development of Russian jurisprudence at the turn of the nineteenth and twentieth centuries. The works of these authors were devoted to the reflection of interests existing in society in legal norms and institutions, about the ratio of general and private interests, about the proportional equality of interests, when the objectively existing advantage of common interests should not suppress the personal freedom of the individual (Korkunov, 1909; Muromtsev, 1879).
In Soviet jurisprudence, the theory of interests
in law was developed by P. Stuchka (18651932). In line with the Marxist methodology prevailing in his era, he emphasised class interests (Stuchka, 1924).
The so-called "jurisprudence of interest" as a scholarly trend that took shape by the mid-twentieth century is widely represented in the works of American authors R. Pound (18701964) and J. Stone (1907-1985).
R. Pound (1923) emphasized: "The task is one of satisfying human demands, of securing interests or satisfying claims or demands with the least of friction and the least of waste, whereby the means of satisfaction may be made to go as far as possible" (p. 157). R. Pound saw one of the main functions of legal science in the classification of interests. According to J. Gardner (1961), "Pound asserts that a legal system attains the ends of the legal order in the following manner: (1) by the recognition of certain interests, individual, public, and social; (2) by defining the limits within which these interests shall be legally recognized and given effect through legal precepts; and (3) by endeavouring to secure the interests so recognized within the defined limits".
The Russian researcher S. Kotlova considered Pound to note, after classifying interests, that they can clash in society and therefore, a means is needed to find a balance of interests. The duty of a lawyer is to generalize and classify interests since interests are not static. The task of the rule of law is to harmonize and resolve overlapping requirements; he calls the activity to establish a rational-legal order in society "social engineering" (Kotlova, 2013).
In analysing J. Stone's views, A. Soboleva (2002) notes the following: "J. Stone believed that there are three main directions in the study of law: 1) law and logic - analytical jurisprudence, 2) law and justice - ethical jurisprudence, and 3) law and society - sociological, or functional, jurisprudence" (p.76). The three identified subject areas of jurisprudence, on the one hand, prompting a reflection on how the problem of interests can be solved within each of them and,
on the other hand, encourage the synthesis of the possibilities of analytical, ethical and functional jurisprudence to solve this problem.
Transformation of Concepts of Interests in Russian Jurisprudence
In Soviet legal science, the problem of interests was developed from a Marxist standpoint. Confrontation of class interests led to a change in socioeconomic formations and within their framework - forms of state and law. The partystate system, established in the USSR since the 1930s, determined the undivided domination of public interests identified with the ruling party and the state. Means of ideology and legal science were used to substantiate the priority of public interests, collective interests, the interests of the party and the state over the interests of the individual. Thus, in Soviet society, the public un-dividedly dominated over the private.
In the 1960s, ideas about interests in Soviet jurisprudence began to go beyond the rigidly defined framework of class interests. Views on the interests of the individual (the direction of the subject's actions, his desire to master this or that good) and society as a whole were gradually formed. By the mid-60s, one could define "three points of view on the nature of interest: it was presented as a subjective or objective phenomenon, or as a unity of the subjective and objective" (Ekimov, 1984, pp. 4-5). The study of interests expressed in legal norms made it possible to identify the socio-regulatory possibilities of law.
In the post-Soviet period, attention to the problems of interests in law has significantly increased. The question about the dialectical unity of the interests of the individual, society and the state and the priority of the rights and freedoms of the individual in his relationship with the state arose.
In the 1990-s, within the context of the transition of Russian society to a new state, the V. Nersesyants' libertarian concept based on the freedom of the individual was admired (Nerses-
yants, 1997, p. 321, 2002, p. 3). It claimed, "a law that does not meet the value criteria of freedom and justice can be recognized as unlawful". Another, no less interesting as a concept of liber-tarianism, but not widely recognised until now, is V. Nersesyants' concept of civilism "(from Latin civis - citizen), which is based on ideas about a new social order that may result from the fair, i.e. legal, de-socialisation of socialist property" (Lapaeva, 2020, p. 18).
V. Nersesyants (1997) believed that the socialist order "with its permissive (permissive) order of regulation typical of egalitarianism, where something limited is allowed ... creates attitudes of passivity and dependency, deforms the human factor and closes the door to growth in social production" (p. 89).
In describing post-Soviet law, V. Nersesyants noted the "close intrinsic interplay of private and public law" that exists within it. The author stated: "In the context of the post-socialist movement to the rights and freedoms of man and citizen, to the rule of law, to the civil society and the rule of law, it is obvious that there is a need for a simultaneous, coordinated, complementary and mutually reinforcing the development of the principles of norms and institutions of both private and public law, contrary to the common misconception that private law is what we need today for a market society, and that we already have so many public laws since socialism" (Ner-sesyants, 1997, p. 111). V. Nersesyants considered that kind of reasoning as erroneous.
At the turn of the XX-XXI centuries, Russian legal science paid close attention to the legal nature of private interests, interpreted in the mainstream of the development of a market economy, freedom of ownership and entrepreneurial activity. At the same time, ideas about the private in the context of constitutional rights and freedoms (the private life of a person in its various manifestations, the rights and freedoms of an individual as a private one) were formed.
The area of interest of Russian lawyers was to identify the nature of private and public law.
E. Sukhanov (2004) rightly asserts that the development of human civilization, the colossal complication of social processes, "modified, but in no way abolished the foundations of the legal system, based on the fundamental difference between private and public law" (p 26). The categories "public" and "private" were used preferably to substantiate the dualism in law, two modes of legal regulation - private law and public law, in the first of which dispositive principles prevailed, in the second imperative principles were determinant.
Nowadays, the idea that the opposition of the two modes of legal regulation is hardly justified gradually gains popularity in Russian legal science. Justifying the thesis that the provisions of the Constitution of the Russian Federation of 1993 form a dualistic legal system and fundamental provisions of both private and public law, V. Yakovlev notes that "for both public and private law, a single goal in accordance with Art. 2 of the Constitution is a person, his interests, his rights and freedoms. Public and private laws are not a goal, but different means of achieving this goal" (Yakovlev, 2004, p. 20). If the common goal of legal regulation for both private and public law is the individual, then the fundamental basis for opposing private and public law and for justifying dualism in law and the legal system is thereby lost.
Post-Soviet jurisprudence conceptualizes now the ideas about law as a form of existence of interests, their functioning and implementation, and at the same time a way of regulating and restraining them, and positively promoting interests in legislation (Subochev, 2008, pp. 13-14).
The attention of researchers is increasingly focused on the legal nature of private and public interests underlying the legal system of the Russian Federation, "their correlation, and maintaining a balance between them. General trends in the development of Russian society force us to pay attention to the problem of harmonizing relations in various spheres of its life on the basis of legal coordination of private and public interests"
(Nemytina, 2008, pp. 45-69).
It becomes evident that in the post-Soviet society, the branches of law classified as private law are enriched by the use of elements of public law regulation (protection of the weaker party in legal relations). Vice versa, the branches of public law begin to use actively legal constructions of private (for example, contractual) law.
Thus, scientific discourse in Russian jurisprudence has shifted from the recognition of dualism within the legal system to the identification of private and public interests of various subjects of legal communication that are forming in society.
D. Dedov draws attention to the fact that the problem of interests is recognized in contemporary Russian jurisprudence as a serious methodological problem (both in theory and in practice). Lawyers focus their efforts "on taking legal knowledge of the interests to be legally protected and the methods of protecting them from the irrational into the realm of the rational" (Dedov, 2008, p. 19).
V. Malakhov writes that it is impossible "not to take into account the fact that the practical life of society is inextricably linked with the realization of interests". With regard to law and jurisprudence, we are talking about "legitimate interests ... requiring or suggesting the use of legal means both for their implementation and for counteracting them" (Malakhov, 2017, p. 31). "Interest can always become the basis for an action, including the basis for a lawful or unlawful act" (Malakhov, 2017, p. 33). "Interest, if it is not an ideological value, is always specific, and according to the subject of its presentation and existence, and this subject is a person ... they are essential elements of the legal relationship" (Malakhov, 2017, p. 34).
V. Kuzmina examines scientific approaches converging the understanding of interests in jurisprudence and philosophy. "In the context of the total chaotisation of ordinary and scientific consciousness, very pluralistic ideas about the nature, essence, typology and functions of inter-
ests in contemporary conditions are being formed" (Kuzmina, 2009, pp. 3-4), notes the author.
It is obvious that the coexistence of private and public interests in social reality, the change in the legal nature of private and public interests in modern society associated with the growing activity of civil society institutions and the affirmation of human rights and freedoms, as well as forms of their implementation in society, predetermine the trends of legal regulation at different levels and in different spheres. Such trends also guide the development of modern jurisprudence, as well as related fields of scientific knowledge.
The attention of the Russian scientific, legal community in studying the problems of interests is evidenced by the following conferences: All-Russian Scientific Conference "Interests in Law" (Moscow, Peoples' Friendship University of Russia, 25-26 March 2016); All-Russian Scientific and Practical Conference "Law and Interest (R. Iering)" (M. V. Lomonosov Moscow State University, 20 December 2017).
Private and Public Interests in Russian Society
The scientific discourse in Russian jurisprudence around the private and the public, about the identification of each of these components, the definition of their correlation and the determination of the possibilities and prospects of their coexistence, reflects the true relations formed in the new conditions of the post-Soviet society.
Understanding of the problem of private and public interests in the modern Russian jurisprudence, identification of such interests by methodological means has a profound meaning, since it develops around the triad "man- societystate" and is also associated with other scientific discourses related to the nature and essence of law (natural law, statist, sociological, integra-tive). Meanwhile, the scientific discourse of lawyers "professing" different approaches to understanding the law, having different ideas about the
nature and essence of the private and public in law, and their correlation should be based on an in-depth study of the trends unfolding in modern society. They should also reflect the dynamics of social relations and, most importantly, should facilitate the movement of society towards progress, as far as possible, with the help of legal science.
The social potential of jurisprudence is great because it can actually contribute to the solution of the problems faced by society and influence the state of lawmaking and law enforcement. In view of the interests of the various subjects existing in the legal field, it was necessary to:
a) build scientific concepts based on a new understanding of private and public interests;
b) reformat the law-making process in a new paradigm reflecting the transformed public and private interests;
c) resolve in practice the conflicts arising between the subjects implementing the different interests in society.
In the post-Soviet period in legal science, law-making and law-enforcement practice, Russian lawyers had to learn to identify public and private interests newly emerging in society and subject to legal protection to determine the balance between them. Guided in essence and value by the methodological approaches in the framework of private and public, it is already possible with the help of technical-legal means to build legal constructions in normative legal acts, to resolve in an optimal way on the basis of the balance of interests for specific situations in law-enforcement practice. Finally, in the context of the correlation of private and public for scientific purposes, we can try to identify general trends in the development of Russian society, state and law of the last three decades.
Trends in the development of Russian legal science in terms of its understanding of the issues of private and public quite reflect the essence of what is happening in society, in which in the 90s, the citizens were aware of their own (private) interests in the sense of obtaining material bene-
fits, forming property relations and implementation of entrepreneurial activities. On the wave of the free market, government involvement in the regulation of economic relations was minimised. Intangible goods, moral values, moral attitudes cultivated in Soviet society were relegated to the background. At the same time, no new ethical guidelines were set at the ideological level in society and the state, which corresponded to the newly emerging system of relations.
The categories "private", "private interest", "private principles" in legal regulation are in essence fully reflected in the Constitution of the Russian Federation of 1993: private property (part 2 of article 8, article 35), freedom of economic activity (part 1 of article 8, article 34. In Russia, in connection with the emergence of private property, it was the realization of the property rights of citizens that became of primary importance, which was fully justified.
In the 1990s, an unprecedented surge of interest in the problems of private law regulation, which met the needs of social development, clearly manifested itself in Russian jurisprudence, which led to a significant increase in knowledge in civil law and related branches.
At the same time, the attention of the scientific, legal community was focused on the development of the problem of human rights as a private individual. The formation of the focus of scientific interest here again can be seen in the Constitution of the Russian Federation, according to Article 2, of which the main goal of legal regulation is proclaimed the person, his rights and freedoms, hence - his interests. The state's attitude towards the individual is regulated in Part 1, Article 7 of the Constitution of the Russian Federation: "The Russian Federation is a social state whose policy is aimed at creating conditions that ensure a decent life and the free development of the individual" (Constitution of the Russian Federation, 1993).
Despite the enormous interest of Russian lawyers in private law as a sphere of legal regulation, to the dualism in the legal system based on
the division of private and public, it becomes obvious that the category of "private" cannot be attributed exclusively to property relations, linked primarily with the freedom of economic activity. This category must be interpreted first and foremost in the context of the interests of the individual as a private person, his rights and freedoms, which is defined by the Constitution of the Russian Federation.
Since the early 2000s, Russian jurisprudence has already focused on the study of public law problems associated with the search for a new nature of Russian in the context of administrative reform, strengthening the role of the state in regulating the economy and social sphere.
In Russian legislation and the practice of legal regulation of that period, one can see, albeit not so clearly expressed, but objectively existing, a tendency to reconcile private and public interests in legal regulation.
In this sense, the "National Security Concept of the Russian Federation" approved by Presidential Decree No.1700 of December 17, 1997 (amended on January 10, 2000, No.24) is very telling. It stated that "the national interests of Russia are a set of balanced interests of the individual, society and the state in the economic, domestic political, social, international, information, military, border, ecological and other spheres" This Concept was the first document to contain the idea of balancing the interests of the individual, society and the state in various spheres of life, but it does not define the ways and means of achieving this balance.
It is symptomatic that in the text of the document, the interests of the Russian society differ from the interests of the state of the Russian Federation. They are interpreted broadly - both the interests of an individual and society as a whole are embedded in a general context with state interests. At the same time, according to the logic of the Concept, the interests of the individual, consisting "in the implementation of constitutional rights and freedoms, in ensuring personal security, in improving the quality and standard of
living, in the physical, spiritual and intellectual development of a person and citizen", are presented separately from the interests of society. The authors of the Concept see the interests of society "in the consolidation of democracy, in the creation of a legal, social state, in the achievement and maintenance of social harmony, in the spiritual renewal of Russia". Based on the content of this political-legal document, public interests are not presented in it as based on the private interests of citizens, derived from them, being a harmonious combination of private interests within the framework of various public corporations, civil society institutions and the result of consolidation. The concept, completely apart from the individual and society, positions the interests of the state, which "mean the inviolability of the constitutional system, sovereignty and territorial integrity of Russia, in political, economic and social stability, in the unconditional provision of legality and maintenance of law and order, in the development of equal and mutually beneficial international cooperation" (National Security Concept of the Russian Federation, 1997).
It is worth noting that the activities of state institutions at the beginning of the twentieth century were integrated in fundamentally new ways. The state, transforming its institutions in terms of its orientation towards the individual and society, no longer only exercises power but also provides social services. According to the Constitution of the Russian Federation, the institutions of local government are not part of the system of state power and have autonomy within the limits of their competence (article 12). However, this type of public authority, distinct from state power, still exists in the Russian Federation as an extension of the vertical of state power.
Thus, over the past 30 years of Russian history, "public" in Russia has been gradually transformed and is no longer synonymous with "state" in legislative regulation and public policy. The features of publicity began to be recognised (first in science, then at the official level) by cor-
porations other than the state (local self-government, political parties, professional, confessional and other corporations).
Search for a Balance Between Private and Public in Russian Law and Jurisprudence
In the 1990s, the programmes of socio-cultural development changed in the post-Soviet space, which predetermined the need to search in socio-humanitarian fields of knowledge for the fundamentally new interests of the individual, society and state, the conditions and possibilities of their coexistence and development in the dynamics of social relations.
"Any change in the historically established types and forms of activity", according to the Russian academician V. Stepin, "must necessarily be accompanied by changes in the sphere of culture, the emergence of semiotic systems in it, corresponding to new programs of social communication, behaviour and activity". Behind all this, "there are real demands of society, the need for transformations of the prevailing stereotypes and ways of human activity" (Stepin, 2011, p. 115).
In methodological terms, attention should be paid to the fact that in the application and justification of the categories of "private" and "public" in Russian law and jurisprudence, there are two directions in which these and derived from them categories and concepts are interpreted differently.
First. In the general socio-cultural context of the development of Russia, there is an understanding of private (individual, personal) interests, understood in the sense of a person exercising constitutional rights and freedoms, as well as their transformation into corporate-private (common interests of subjects of entrepreneurial activity) and corporate-public interests (associated with activities institutions of civil society). At the same time, Russian researchers, in their works, delve deeper into the consideration of public in-
terests that are not identified with the state ones (Zelentsov & Nemytina, 2018). In this context, it is significant that "state" and "public" cease to be synonymous not only in academic discourse but also in political decision-making and in the practice of Russian everyday life.
Second. The categories "private" and "public" in Russian jurisprudence are used in the sense of emphasizing dualism within the legal system, classifying the array of legal norms, institutions and branches of law as private or public law, establishing separate legal regulation regimes based on the principles of dispositivity or imperativeness. The theoretical justification of "private" and "public" in line with the dualism of legal systems, the origins of which go back to Roman law, the establishment of "watershed" between branches, institutes of law, spheres of legal regulation, can hardly be considered a promising direction in the development of legal science. This kind of dualism hinders the perception of law as a holistic phenomenon and the search for the means to harmonise legal relations in society. As of today, it is obvious that the branches traditionally classified as private law cannot avoid using elements of public law regulation, while the branches that have always been considered as branches of public law are enriched at the expense of the means developed by branches of private law. In one case, this may be the protection through public means of party interests in a private law relationship. In another, it may be the use of forms of contractual relations by public law entities. This process of interchange, cross-influence and cross-fertilization between branches and institutions of law and areas of legal regulation is gaining pace and momentum.
Since trends in the development of law in modern society set the vector for the development of jurisprudence as a field of scientific knowledge, it is obvious that the rationale for the dualism of the private and the public in law is not a major trend in legal science. For the development of legal science, further development in the first paradigm associated with the identification of pri-
vate and public interests of subjects of legal communication and the construction on this basis of models of legal regulation at the doctrinal, dogmatic and practical levels is much more promising.
V. Malakhov, arguing that a "restructuring of the entire legal understanding" is required on the basis of interests, which "requires the recognition of individual law as a form of self-organisation of people's legal life as independent in importance and ways of implementation" (Malakhov, 2017, p. 35). At the same time, the author expresses genuine concern about the dominance of interests in legal regulation: "Interests are easily manipulated. The manipulation of interests, i.e. the continuous adjustment of law to reality through them, inevitably disables the mechanisms of legal 'autopilot'" (Malakhov, 2017, p. 36).
Obviously, the trends described above, based on the generalization of the Russian experience, related to the development of law and jurisprudence in the course of implementation of interests by the subjects of legal communication and the formation of ideas about interests in legal science developed in a similar way throughout the post-Soviet space. At the same time, along with general trends, there are peculiarities determined by the socio-cultural context existing in a particular society and state, which, in turn, predetermines the reflection of social reality in the so-cio-humanitarian fields of knowledge.
Conclusion
Speaking about the trends in the development of legal science in terms of understanding the problems of interests, it should be noted that this scientific direction, called "jurisprudence of interests" in the second half of the twentieth century, has gained recognition in the United States (Pound, 1923, 1940; Stone, 1964). At the same time, Soviet jurisprudence was dominated by notions of interests based on class interests within the framework of socio-economic formations.
The problem of interests attracted serious attention of Russian legal scholars already in the post-Soviet period. In the 90s, of the twentieth century, on the wave of transforming social relations, domestic scientists focused on the justification of private and public in the law in the context of the dualism of the legal system. At the same time, attention was paid to the legal nature of private interests interpreted, on the one hand, in the context of the development of institutions of property and entrepreneurship, on the other hand, in the context of constitutional rights and freedoms of the individual. More and more attention is being paid to the problems of the public in law and jurisprudence, which is no longer identified with the state.
Identification of private and public interests in law, the search for their configuration in the dynamic processes of modern society, in our view, are among the significant methodological problems of modern jurisprudence. The solution of these problems largely determines the strategy of development of society, state and law, as well as the possibilities of conflict resolution between different actors realizing their differently directed interests in modern society.
Meanwhile, scholars in the post-Soviet space will still need some time to form adequate ideas about the new social reality in the form of the coexistence of private and public in it and about the interests of various actors influencing this reality.
Acknowledgement
This paper has been supported by the RUDN University Strategic Academic Leadership Program.
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