Russian Family law Legislation: Revolution, Counter-revolution, Evolution

• Author: Nadezhda Tarusina - Elena Isaeva
• Position: Demidov Yaroslavl State University (Yaroslavl, Russia)
• Pages: 65-92

BRICS LAW JOURNAL Volume IV (2017) Issue 4

RuSSIan FaMILY Law LEGIS LaTIon:

REVoLuTIon, CounTER-REVoLuTIon, EVoLuTIon

NADEZHDA TARUSINA,

Demidov Yaroslavl State University (Yaroslavl, Russia)

ELENA ISAEVA,

Demidov Yaroslavl State University (Yaroslavl, Russia)

DOI: 10.21684/2412-2343-2017-4-4-65-92

This article analyzes the political and legal aspects of the first decrees of the Soviet

government from 1917 and the codied acts on marriage and family from 1918 and 1926 as

large and small “revolutions” in Russian and Soviet family law. These acts put Russia forward

into progressive positions in comparison with comparable European and American law of

that time. The article analyzes the repressive, “counterrevolutionary” decisions of 1930s and

1940s that pushed family law, particularly in the sphere of marriage and the legal status of

children born out of wedlock, back to pre-revolutionary imperial standards. It also reviews

the normative legal acts on marriage and the family dating from the “Khrushchev thaw”

period. The article identies the contradictory and conicting approaches of legal scholars

and legislators to the methodology of legal regulation of family relations in dierent periods

of political and social history, as well as in our times. The quality of Russia’s current family

legislation, which mainly evolved during the political, economic and social reforms of the

late 20th century, is also assessed. The article traces the inuence of Soviet family law on the

content of similar legislation elsewhere in Eastern Europe and the countries of the former

Soviet Union, where there are various levels of legal sovereignty. Their independent legal

positions, which are worth comparing with Russia’s family-law doctrine and legislation, are

revealed. The article investigates and evaluates both successful and partially unsuccessful

attempts of modern Russian legislators to adapt the current Family Code and other

federal laws regulating family relations to new challenges in the sphere of marriage and

family. It speculates on three tendencies of family law doctrine: a certain adherence to the

revolutionary ideas of 1917, an orientation toward a return to traditional family values, and

a relatively peaceful coexistence with Western doctrines.

Keywords: revolution; counter-revolution; decrees; marriage and family; codes of laws;

doctrine; history; inuence; contemporary challenges.

BRICS LAW JOURNAL Volume IV (2017) Issue 4 66

Recommended citation: Nadezhda Tarusina & Elena Isaeva, Russian Family Law

Legislation: Revolution, Counter-Revolution, Evolution, 4(4) BRICS Law Journal 65–92

(2017).

Table of Contents

Introduction

1. Legislation on Marriage and Family: A Revolutionary Breakthrough

2. The Legislation of the 1940s: Up the Down Escalator, or Counter-Revolution

3. Reform: Evolution, Regress; Critics and Forecasts

Conclusion

Introduction

One side eect of the 1917 Revolution was the emergence of a new branch

of Russian legislation – a vivid, if unexpected outcome of revolutionary ideas and

practices. Almost premature, it arose far earlier than could have been anticipated,

built on highly complicated, non-obvious ties to a legal framework, almost fully

destroyed by the revolution.

However, like any other public phenomenon, this new legislation came out of the

thoughts, intentions and actions of proponents of a civil doctrine, who sought to nd

a role for marriage and family legislation within Russian law in general, as well as the

ideas of critics of the application of legal processes to the domestic sphere and even,

to a signicantly lesser extent, of legislators themselves. Thus, although these legal

provisions seemed to be clearly present in civil and church law, by the late 19th and early

20th century, there were increasing doubts that these standards were that obvious.

Firstly, many civil lawyers emphasized the limited nature of the law in regulating

family relations and its limited impact on marriage and family institutions, where the

biological and moral rules were vastly more inuential.1 Some civilians also pointed

out the somewhat alien nature of these institutions with respect to civil law in its

classical sense. They stressed that, outside of property legislation, the nature and

purpose of family legislative norms are alien to civil law, while the state’s and the

public’s interest in healthy mar riages and families rather demonstrate that these

norms should be part of a state or church law system (D. Meyer). Relying on his

own legal practice and comparing the classical civil relations and family relations,

A. Borovikovsky referred to his own legal practice when he compared classical civil

1 Мейер Д.И. Русское гражданское право [Dmitry I. Meyer, Russian Civil Law] 348, 375 (2nd ed., Moscow:

Statut, 1997).