The formation of the principle of justice in the land legislation of russia
The relevance of the research topic is determined by the eternal discussion around the concept of justice in many areas: philosophy, politics, morality, law. The latter will be considered in this article in the context of land law as one of the central branches of the Russian legal system. The choice of the theme is explained by the fact that the earth as the most valuable resource has always been the basis of the life of our people, and our ancestors even deified it, called it the mother of all living things, performed rituals of worship of the earth. And even connected the earth with the Christian tradition – " on the feast of the Trinity, the earth is like a bride." The real power of the earth in the economy of our state for many centuries is irrefutable. Therefore, it is particularly interesting to trace the formation of the principle of justice in the land law of Russia. The methodological basis of the study was the analysis and synthesis, with the help of which we were able to study and briefly describe the most important events, treatises, regulations, historical periods associated with the formation of the concept of justice in legal thought, the principle of justice in the land law of Russia; a historical method that allowed authors of article to trace the evolution in time and space of the subject under study. During the study of this topic, special attention was paid to the development of the concept of "justice" in land law from the moment of the formation of Russia as a state to the present day.
After studying the presented subject, we were able to briefly describe the way of rooting in the Russian land legislation of the category "justice".
Журнал «Научный лидер» выпуск # 1 (46), январь ‘21
"Nothing outrages us more than injustice: all the other evils that we have to endure are nothing compared to it," the German philosopher Immanuel Kant said about injustice [1, p. 201]. The antonym of injustice is justice - a universal principle of all branches of law, but also the highest purpose of justice. No wonder the Greek goddess Themis - the goddess of justice and justice - is depicted with a blindfold, holding a scale in one hand and a sword in the other: she impartially and fairly weighs actions, arguments and facts. And the word "justice" itself is translated from Latin as "justice" (justitia).
Justice is a philosophical concept. The classical definition of justice belongs to Aristotle: "... justice, as it seems, is equality, and so it is, but not for everyone, but for equals; and inequality also seems to be justice, and so it really is, but again not for everyone, but only for the unequal" [2, p. 459]. A lot of thinkers have discussed and are discussing justice, and not only in the political, philosophical or legal field, but also in the context of human feelings, sufferings and joys. Let us recall, for example, the works of Fyodor Mikhailovich Dostoevsky (1821-1881), whose bicentennial in 2021 will be celebrated by the whole reading world. In his key works, such as "Crime and Punishment", "The Brothers Karamazov", "Idiot", the theme of justice is one of the central ones. Is the death penalty fair to the criminal? What is a just punishment? Is someone who has committed a crime worthy of sympathy, if deep down we still feel that sympathy is fair here? How to help someone who has become a victim of injustice? All these questions are asked by the reader. But readers are not always lawyers, philosophers or politicians. These are people of different ages, professions, and life orientations. But all the same, everyone asks themselves these questions. This means that justice is a vital need and an indisputable right of everyone.
To understand the overall picture, we will briefly describe the stages of the evolution of the concept of justice in the context of law, lawmaking and government.
Historical period The idea of justice
Antiquity In Antiquity there were three concepts of understanding justice, and each of them belonged to one of the three giants of thought - Plato, Aristotle and Cicero. Plato was the first European thinker who created a holistic concept of political and legal justice (in his work "The State" Plato in the form of a dialogue expounds his thoughts on how a just state should be organized, while affecting all spheres: education, military affairs, art, personal relations) and in general he is considered the founder of European philosophy. From Plato's point of view, a just society is one in which every person fully realizes the abilities given to him by nature. The ruler, who is also a legislator, is naturally endowed with the ability to understand what justice is, and he knows perfectly well all the ways to achieve it. Aristotle, being a disciple and friend of Plato, continues his work, but gives a fundamentally different understanding of justice. His famous words "Plato is my friend, but the truth is dearer" sound very appropriate here. It is the understanding of Aristotle that will become fundamental for the European tradition. Cicero is useful to us in terms of this study because he outlines a fundamentally different line in understanding justice, compared with its policy interpretation. On the one hand, he is (like Plato and Aristotle) an exponent of the interests of the polis, that is, the state, the state system, thinks from the standpoint of the correct organization of the life of society as a whole, but on the other hand, he speaks from humanistic, universal, concerning each individually, positions.
The religious worldview that prevails in the Middle Ages leaves its imprint on law, everyday life, politics, philosophy – and all these categories cannot do without the concept of justice. The understanding of justice becomes theological. His most influential defender was Thomas Aquinas, who developed Augustine's teaching about the City of God as the pinnacle of justice. Justice can be realized only in a State where Christian ideology prevails. Natural law is the divine law, the commandments that everyone must follow.
The new time is the heyday of human rights. Now it is fair that it does not violate these rights. In this historical period, a whole galaxy of philosophers and thinkers appears, putting forward their ideas about law and justice, and about justice as an integral part of the law created for the happiness and well-being of peoples.
Modern times and modernity, Justice triumphs when everyone gets what he deserves for his work or by the right that he was born a man equal with all other people.
What kind of situation with such a subtle matter as justice do we, people of the XXI century, who take little for granted, see today? To date, justice plays many roles in the field of law, but we will single out the main three: assistance to the law, delivered by the individualization of the case; replenishment of the gaps available in the law; correction of too severe consequences of legal norms [3, p. 138].
Of course, speaking about the law and its relation to the concept of "justice", criminal law immediately comes to mind. After all, we do not embellish reality at all by saying that it is the relations that arise in the field of criminal law that can fundamentally affect a person's fate. Hegel, speaking about the meaning of justice in the context of the balance of crime and punishment, wrote as follows: "In absolute connection with crime is the justice of retribution. Here we are dealing with an absolute necessity that binds them, because one is the opposite of the other" [4, p. 313].
But justice is one of the central categories in absolutely all branches of modern law. Its dominant ability is the ability to act as a balance, on one side of which lies a demand, and on the other a reward. On the same scales lie the interests of the state on the one hand and the individual on the other, or the interests of two subjects of law, or the interests of society and the individual. Participants in legal relations in any sphere of law are citizens to whom the law is obliged to ensure a fair solution of their cases. Therefore, the principle of justice today is inviolable and indisputable, and a lawyer who neglects it in his work cannot consider himself a professional.
We will consider the formation and rooting of the principle of justice in such a branch of law as land law.
In the process of formation of any statehood, regardless of the continent, mentality, climate, and so on, the history of the development of land relations plays a major (if not the main, then one of the defining – for sure) role. The history of land relations transformations in Russia has been going on for many centuries. The key issues of land reforms at all stages were land ownership and the fate of the peasantry.
Classically, four historical stages are distinguished in the history of land law, marked by important events in the history of our country:
1) 1861 - abolition of serfdom
2) 1906 - Stolypin agrarian reform
3) 1917 - land transformations caused by the October Revolution
4) from 1990 to the present - the modern land reform.
Let's start considering the issue, of course, according to the chronology. From the moment of the formation of Russia as a state in 882 to the abolition of serfdom in 1861, a lot of time has passed, even by historical standards - the adoption of Christianity, feudal fragmentation, the Mongol yoke, the change of the ruling dynasty, Nikon's church reform, schism, transformation into an empire, palace coups, the Patriotic War - not to list all the events that occurred during this time period. Did they influence the course of legal thought? Definitely. In all branches of law? Certainly.
It is difficult for us to judge how land relations developed in Russia before the adoption of Christianity. From what we can say for sure, we will mention the first administrative reform in Russian history carried out by Princess Olga – the famous lessons and churchyards. Olga took power into her own hands, as is known, after the death of her husband Igor, who violated the custom of collecting tribute and was brutally murdered by Drevlyans. Olga needed to adjust, as we would say now, the taxation system. She divided the land into volosts, organized churchyards in the volosts – places of collecting tribute, and made the tribute itself fixed - lessons. Here, with some stretch, but still we can talk about the birth of the principle of justice, and with it land law. After all, volosts are the divided land of Russia, and lessons are a tax for the right to use that very land, and this tax is more just than the tribute that existed before.
Since the adoption of Christianity, with the arrival of Christian teachings in Russia, with the appearance of Old Slavonic writing, Russian public consciousness has been characterized by ideas about the equality of all people before a single and indivisible God and the inevitable triumph of justice. Hence the Russian folklore, where good wins over evil - justice wins over injustice.
People live in communities. For centuries, principles and unwritten laws have been formed that meet the interests of the peasants. The community monitors public order, helps those in need. Justice is property equality. It was fair for the communal consciousness that the land belongs to everyone, every peasant has equal rights to work, land and land. Cases were not just solved "in justice", but justice was the center of a good co-existence: "Even if all laws were gone, if only people lived the truth" [5, p. 430]. But this only concerns the beginning of the origin of land relations.
Gradually becoming more complicated public relations required regulatory regulation. Among the sources of the period under review, the most important and pivotal for the development of land law, we can confidently name the Novgorod and Pskov judicial charters, the Judicial Code of 1497, the Judicial Code of 1550, the Cathedral Code of 1649, the boundary laws of Catherine II, the normative legal acts of the reform of 1861 .
The Novgorod and Pskov judicial charters included seemingly understandable norms regulating the resolution of land conflicts, disputes and minor neighborly disagreements. But, nevertheless, no matter how imperfect the legislation of our ancestors may seem to us, moderns, letters are a unique, most important source of land law (and not only land law). Thus, the Pskov Court Charter regulated the lease of land, to which art. 42-44, 51, 63, 76, 93. The lease was called izornichestvo. The izornichestvo contract can be defined as a contract according to which the izornik took the land for use and was obliged to give the owner a fee in the form of part of his immediate profit, in other words, part of the harvest. And in order for the relations that appeared in connection with this to be settled fairly, rules were established: if the owner did not pay due, then the landlord was obliged to find five witnesses who could prove the fact of the contract. If there were no witnesses, izornik was exempt from payment. In the same way, they tried to establish the payment for the land itself: with arable land – ¼ of income, with vegetable garden - ½, which was explained by the complexity of field work.
The judicial code of Ivan III, adopted in 1497, included important norms of increasingly complicated land law. The Sudebnik specifically identifies such categories as the right of land ownership and dependent population. The concept of state lands (estates of the Grand Duke and black), patrimonial (boyar and monastic) is given, and the regulation of estates is also considered [7, p. 137]. And also, the Judicial Code of 1497 legally fixed the rule of St. George's Day – the right of peasants to move from one landowner to another for two weeks a year - a week before St. George's Memorial Day and a week later. Accordingly, the peasants' land also changed. It would seem that there is justice in this – after all, the right of transition was preserved at the legislative level, but it worked only two weeks a year - no more. And here the issue of fair treatment of peasants who work on the land begins to cause controversy.
The court book of Ivan the Terrible of 1550 from a different angle reveals the concept of patrimony and estate (patrimony is inherited, estate is land that you use by right of official position and certain merits). Also, under Ivan the Terrible, the lands were divided into two parts – oprichnina and zemshchyna, oprichnina – the land of the sovereign, and zemshchyna – the rest of the part that was supposed to feed the oprichnina. As is absolutely clear, there is no question of justice in such a state structure. And this applies not only to the land issue, but also to all spheres of life in general: everyone who has studied history knows the iniquities of Ivan the Terrible. His name became a household name, he often became the hero of works of various genres of art as the embodiment of cruelty, injustice and fate broken by his own actions (Ilya Repin's painting "Ivan the Terrible and his son Ivan on November 16, 1581", Alexei Tolstoy's novel about faith in the tsar and disappointment in him associated with the horrors of the oprichnina "Prince Serebryany", or, from modern creativity, the art series "The Terrible" directed by Alexei Andrianov).
The second tsar of the Romanov dynasty, Alexei Mikhailovich, in 1649, adopted the Cathedral Code, which prescribes an indefinite search for fugitive peasants – that is, in simple terms, their final enslavement. From that moment on, the peasants are tied to their land. They are not owners, they are users, who are also obliged to pay a rent from the land they work with hard work, as well as to work out a corvee for the benefit of the owner. For us living now, such a situation does not seem to be unfair, it seems to us absurd, criminal from the point of view of human rights. Peasants work on the land, deify it. The work of the farmer is put above all by them, agriculture is an occupation that, as they believe, is entrusted to them by God: "Let the farmer not be ashamed of his simple title, and no one reproaches him with the ignorance of his origin. Both kings and saints of God came out of the farmers." Who better than the peasants working on the land to dispose of it, at least within the limits of limited autonomy. But no, such an order in the Russian state will last for many, many years.
In 1765, a general land surveying was carried out: the owners were instructed to interrupt land lawsuits among themselves. The well-known secularization of church lands, carried out a year before– is the seizure of the church's possessions in favor of the state. It is difficult to say how fair this is. At least, the prohibition of land lawsuits does not look legitimate through the prism of today.
The first relaxation of serfdom occurred under Alexander I in 1803. He issued a decree on free farmers - permission for landlords to free serfs with mandatory allotment of their land. The injustice of this decree lies in the price of freedom – the peasants had to pay a huge ransom for it, which few of them could afford, and bear heavy duties. And even a rare landowner at that time could think about the liberation of his peasants. The first description of the injustice of serfdom belongs to Alexander Radishchev. In his work "Journey from St. Petersburg to Moscow" he gives heartbreaking facts from peasant life. Radishchev was exiled under Catherine II for expressing his opinion. Emperor Pavel returned Radishchev, but his fate turned out to be sad: after experiencing the shocks of imprisonment, he became suspicious and fearful. Frightened by the visitors who came to him one day, deciding that they had come to arrest him, Radishchev committed suicide.
The abolition of serfdom has become one of the most significant, turning events in the history of our country. Serfdom was abolished by Alexander II in 1861. The peasant reform had a special, incomparable influence on the development of land relations neither before nor after (except, of course, October 1917) [8, p. 245]. But this reform is evaluated ambiguously, including in terms of justice towards the peasants – they are no longer serfs, but they are "obligated". "The people need land and freedom," wrote Herzen and Ogarev. The peasants formally received the will, but they had to pay for the land for decades more, and land prices, according to historians, in some places were overstated by 5-6 times, which does not fit into the framework of the principle of justice. And the peasants, who had lived in enslavement for several centuries, perceived the reading of the Manifesto with apprehension (the famous words of Firs from Chekhov's "Cherry Orchard": "Before the misfortune, it was also: the owl screamed, and the samovar hummed incessantly. [before what misfortune?] Before the will"). And yet the peasants received a list of rights for which the Decembrists, writers, and thinkers fought for them: the right to a first and last name, the right to marry at their own will (and not at the request of the master), and so on. The land does not belong to them, but in the long run it may belong to them. This is not the principle of justice, but only its shadow, but even this shadow had to be achieved for a very long time.
The next important event in the history of land law is the Stolypin Reform of 1906-1911. The most common form was communal land ownership, in which all peasant allotment land was owned by the community, which redistributed land between peasant farms, according to the size of families, and families, as you know, were large in those days - not only did they live together for several generations, so many children were born to peasants - now it's even hard to imagine, but ten children in a family at that time was a common thing, but how to feed them, that's the question. It is logical to assume that the distribution in the community was, as far as possible, fair. But such a distribution burdened and hindered those who, having a strong economy, could develop it separately from the community. Accordingly, Pyotr Arkadyevich Stolypin decided to allow the peasants to leave the community. In fact, thus Pyotr Stolypin made a kind of attempt to root the principle of justice in land law: if a peasant can develop a farm independently– he is given the opportunity to do so. But when leaving the community, the peasants were given too little allotment. The problem of land shortage became acute, which was solved in an unusual way – the peasants were relocated beyond the Urals and to Siberia. In 1910 , the peasant community was destroyed at the legislative level
In 1917, a revolution broke out in Russia.
"Power to the Soviets, factories to the workers, land to the peasants" - the famous slogans of October. The Bolsheviks who came to power first of all identified two problems for themselves: failures in the First World War and peasant land shortage, therefore their first decrees were the "Decree on Peace", which completed Russia's participation in the First World War and the "Decree on Land", the provisions of which became the basis of the land policy of the USSR formed five years later, on December 30, 1922.
The "Decree on Land", adopted, remarkably, immediately after the revolution, at 2 a.m. on October 26, 1917, was a truly significant, necessary document. The Bolsheviks who came, or, better to say, broke into power, were desperate people, but they felt the time, the epoch, and were far from stupid.
The sources for the decree were the program of the Socialist-Revolutionaries who dealt with the land issue most thoughtfully (the Party of Socialist Revolutionaries, the Revolutionary Political Party of the Russian Empire, later the Russian Republic, the RSFSR), as well as the peasant mandate to the Provisional Government formed under their direct influence - based on 242 orders of local peasant land committees - which later became an integral part of the Decree on Land. In this order, the question of the fair distribution of land was studied in detail. So, exploring the principle of justice, we ourselves will render historical justice to many forgotten social revolutionaries. This party was distinguished by radicalism and cruel methods, but the Social Revolutionaries did a lot for land law, including for the recognition of justice as a necessary component of it.
So, the "Decree on Land" became a turning point in the development of the land law of our motherland. According to him, the landowner's ownership of land was abolished, and in general, the land now belonged to the state. Separately, in the fifth paragraph, the Bolsheviks prescribed the impossibility of confiscation of peasant and Cossack lands. It would seem that justice has triumphed – whoever works on the land uses it freely. But it is worth knowing the history to understand that ordinary people of the last century did not dream of any free use of land.
At the beginning of 1918, the People's Commissariat of Agriculture proposed a draft Land Code of the RSFSR. It includes the decree mentioned above, as well as the "Decree on the socialization of the earth" of 1918. This decree provided for the allotment of land to all citizens according to labor standards, which in itself is fair from all points of view. But for the former nobles, obtaining land was far from easy. A whole list of requirements was compiled that they had to meet in order to obtain land.
On October 30, 1922, the first Land Code of the RSFSR was adopted. The Code expanded the state regulation of land relations.
On March 20, 1925, the Soviet government adopted a regulation "On depriving former landlords of the right to land use and residence in farms belonging to them before the October Revolution." According to this document, former landlords and large landowners did not have the right to live on the lands that once belonged to them. They had to be forcibly evicted before January 1, 1926. But at the same time, those former owners who were in the ranks of the Red Army during the Civil War or had merits before the revolution were allowed to remain in their possessions. It is unlikely that such an order fits into the concept of justice in land law. But this was the current of the revolution, and this current was turbulent, it swept away everything in its path. It is difficult to give an unambiguous assessment of this phenomenon – it has given our people a lot, but it has also taken away a lot, and the disputes around it will not subside for many years, and it is possible that they will never subside.
The "General Principles of Land Use and land management" adopted in 1928 regulated land relations in a more detailed way [9, p. 290]. The further development of land law in the USSR had a pronounced ideological character - state property was perceived as the most advanced idea of modernity. The reversal of the internal policy of the USSR towards collectivization, the consolidation of state ownership of land in the USSR Constitution of 1936, the beginning of the formation of land, water and forest cadastres in 1955 - completely exhausted the land issue until 1977.
In the constitution of "developed socialism" of 1977, adopted under Leonid Brezhnev, for the first time in decades, the right of personal property of a citizen was enshrined. This was a huge step towards strengthening the position of the principle of justice in land law. The land belongs to the state, but a person who is willing to work on the land has the right to own and dispose of it for the right purposes, for example, to have a small cottage. Many were given land plots for this purpose. And until now, the population of our country loves "their own, from the garden", we go to our favorite cottages, relax, get distracted from the hustle and bustle of the city. All this seems so simple to us, but we see what a path we had to go through before such a dacha, which is now familiar to us, became not a luxury, but quite accessible to a simple person.
In modern Russia, land relations are mainly regulated by the Land Code of the Russian Federation, adopted by the State Duma on September 28, 2001.
The land issue in modern Russia should be interpreted as determining the status of a land plot that has certain boundaries, a fixed area and has a number of qualitative characteristics expressed in the value of the land. The market valuation of land, in turn, is determined by the assessment of the rights and opportunities of the owner to extract certain benefits from the The land issue in modern Russia should be interpreted as determining the status of a land plot that has certain boundaries, a fixed area and has a number of qualitative characteristics expressed in the value of the land. The market valuation of land, in turn, is determined by the assessment of the rights and opportunities of the owner to extract certain benefits from the land.
The principle of justice in the current system of law is one of the central ones. This applies to both public and private law. The relevance of the principle of justice is confirmed in the law enforcement and law-making practice of the judicial bodies of Russia. In the period from 1994 to June 2014, the Constitutional Court of the Russian Federation appealed to the principle of justice in about every tenth of its decisions. In land law, it is expressed primarily in the recognition and protection of many forms of ownership in the same way: that is, everyone can own land and natural resources in equal access. And also, the land is protected by the state as the basis of the life of the peoples living on the territory of our country.
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