The Historical School of Law: Reflection of Ideas in Russian Criminal Law (Part Two)

This article, which serves as a continuation of the work The Historical School of Law: Reflection of Ideas in Russian Criminal Law (Part One)2, is motivated by two key imperatives. First, it seeks to address gaps in the history of criminal law scholarship caused by its fragmentation and the exclusion of certain schools of thought – particularly the historical school of criminal law in Russia – from academic discourse. Second, it aims to reintroduce the works of 18th century legal scholars who laid the foundations of law, and criminal law in particular. Such reintegration will enable a more profound understanding of contemporary criminal law theory, its philosophical roots, and the unique national characteristics of Russian legal doctrine. The study aims to trace the emergence of the historical-comparative approach in Russian criminal law theory as a component of the Russian historical school of criminal law – itself shaped by Friedrich Carl von Savigny’s historical school of law. It further seeks to identify key contributors to this approach, examine their scholarly legacy, and demonstrate its enduring relevance today. The article provides brief biographical details of the forerunner of the historical-comparative direction in the Russian historical school of criminal law and characterizes the criminallegal views of Alexey Ya. Polenov and the founder of diachronic comparative law, Semyon E. Desnitsky, as well as Imperial Kharkov University professors Ilya F. Timkovsky and Capiton Ph. Mikhalovsky. Their works not only reflect the ideas of these scholars but also advanced them further in both theoretical and applied dimensions. The study’s key conclusions are as follows: 1) The historical-comparative direction in Russian criminal law is distinguished by its unique conceptual foundations. Emerging from Savigny’s school, it incorporated both Russia’s established traditions of historical legal studies and the scholarly legacy of Polenov and, especially, Desnitsky. 2) Polenov, convinced that each nation’s law is a unique one, shaped by diverse circumstances, advocated for examining foreign legal systems. However, he firmly opposed the direct transplantation of alien legal elements into Russian law. 3) Desnitsky, a polymath scholar, developed methodology of comparative jurisprudence, he approached history as the study of legal institutions across nations in their development to “uncover the laws of their evolution”. His progressive criminallegal ideas on individual criminal behavior, jus puniendi, differentiated legal responsibility, equality before criminal law, penal justice, capital punishment, remain relevant to this day. 4) Limited in volume, the scholarly contributions of Timkovsky and Mikhalovsky within the historical-comparative doctrine of criminal law are no less significant. They attest to the continuity of Desnitsky’s school and its influence on the formation and development of the historical-comparative direction in Russian criminal-legal thought.

Keywords: historical school of law; historical school of Russian criminal law; historical-comparative approach; Alexey Ya. Polenov; Semyon E. Desnitsky; Ilya F. Timkovsky; Capiton Ph. Mikhalovsky; scholarly legacy; contemporary diachronic comparative studies