Russian Schools of Legal Theory: A Battle of Views

As part of the Alekseev Legacy Series, a session entitled ‘Russian Schools of Legal Theory: A Battle of Views’ was held on the margins of the 11th International Youth Law Forum on 10 May 2023.

The session was moderated by Anna Alekseeva, Head of the Department of Commercial Law and Procedure of the Russian School of Private Law, Deputy Head of Department of the Supreme Court of the Russian Federation, and Sergey Belov, Dean of the Faculty of Law, Head of the Department of Constitutional Law of the Saint Petersburg State University. They noted that the modern world is rapidly moving towards virtual reality and one needs to take a fresh look at what is happening in life and, in particular, with the theory of law. To this end, representatives of four domestic schools of legal theory from Moscow, St. Petersburg, Yekaterinburg, and Saratov were invited to the session.

They presented their views on legal theory and author’s interpretation of the key concepts – source of law, subject of law, and mechanism of legal regulation, as well as their significance and practical use in today’s largely digital world (including in relation to neuro-technology, virtual reality, and artificial intelligence).

The battle was held in three rounds on the following tracks: the source of law, the subject of law, and the mechanism of legal regulation. The speakers held a discussion aimed at identifying both points of convergence and differences in the creative understanding of the ideas of the outstanding Soviet and Russian legal scholar Sergei Alekseev in their modern reading and application.

Representatives of the different schools of law theory at the session confirmed that they had retained their traditions and their identity, but that reflection on and clarification of the basic concepts were needed in the light of today’s realities and the new challenges of life.

The session presented Sergei Alekseev’s definition of the source of law: “These are the official documentary forms emanating from or recognized by the state to express and enshrine the rules of law, giving them a legally binding value.” Thus, it is recognized that law is an integral universal concept, and by source of law we mean, first and foremost, the text and the mind that interprets it. The concept of the ‘source of law’ is needed to differentiate and make sense of reality.

Some speakers believe that it is extremely dangerous to include neuro-technology in the definition of the source of law, because artificial intelligence is inherently devoid of spirituality and human reason. For this reason, a system of values that only the human intellect can provide must be regarded as the source of law. No state in the world today has a list or a structured system of sources of law.

Representatives of legal schools believe that the ‘essence of law’ is to be a regulator of social relations and that law is a purely social category for human interaction with humans and the state, not with artificial intelligence. The danger is that AI could take the place of those who create sources of law. How and when critical thinking will emerge in AI, or when humans themselves will want AI to decide things for them, is an open question.

As for definitions of the subjects of law, the speakers’ opinions are also divided. Some believe that a subject of law can only be a person or persons who have rights, are endowed with subjectivity, participate in the legal process and in social relations, while an AI has no spirituality or interests. 

Other speakers believe that AI can also be a subject of law, similar to a legal entity that does not exist as a living body or physical object. It is possible for an AI to be endowed with property and then recover it in the course of economic activity. If there is no difference between the devil (AI) and a legal entity, then AI can be endowed with subject matter. The only question is “why?”, since humans are ultimately responsible for everything.

The moderators summarized the discussion on the track. They are convinced that a subject of law can be any creature that a person formally empowers with essential conditions: it must have feelings and separate property.

The session gave the definition of the mechanism of legal regulation per Sergei Alekseev: “This is the totality of legal means (norms, legal relations, acts, etc.) taken as a whole, through which the legal impact on social relations is ensured.” The speakers believe that the mechanism is what lawyers will be thinking about in the process of developing social relations, and lawyers plan to think about the virtual reality through the prism of those mechanisms laid down by Sergei Alekseev.

A number of speakers believe that it is not the mechanism itself that is important, but its elements: norms, acts and legal relations. It is stated that the concept of mechanism has three levels: the ideal realm, the psychological level and the behavioural level. In virtual reality, the mechanism is similar, and the main thing in a person is always formed in the mind.

New mechanisms of legal regulation must take into account real-life and virtual realities. Their development and implementation in everyday life is not an easy task facing the young generation of lawyers of the domestic schools of legal theory.

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