Permalink : http://hdl.handle.net/2115/39016

Since the era of Peter the Great the history of modern Russian thought is one characterized by cultural contact with European thought. The purpose of this paper is to examine the thought of a representative pre-revolutionary scholar of international law, Fedor Fedorovich Martens, from the angle of cultural contact with European thought. The main themes of Martens' thought were affected by Western thought. His, however, was bound to undergo modification in accordance with traditional Russian legal thinking. Let us consider this way of thinking from three interrelated points. The first point concerns the concept of "pravo." Martens defines the key concept of international relations as "the idea of law [pravo]." International law manages the international social and cultural exchange between "civilized nations." Martens refers to this international activity as "international life," that is, the role of international law is to govern "international life." He calls this role "international administration." Martens' thought reflects the influence of Lorenz von Stein. The concept of "law [pravo]" in Martens' context, however, differs from that of "law [Recht]" in Stein's work. The second point is connected with the Russian concept of social community and its characteristics. Martens views international relations as taking place within the "international community." He regards the essence of international law to be an "international community" in which "civilized nations" have an "international life." The "international community" is the voluntary association of "civilized nations." "Civilization," in other words, means the prerequisite for membership in the "international community" which does not have any authority over states. According to Martens' theory, international conferences function as administrative, legislative and judicial organs of the "international community." This idea is inspired by the Russian understanding of social community. The third point concerns the Russian concept of natural law. Martens' key concept of international relations, "the idea of law," is relevant to structural change in the "international community." This change refers to the expansion of "international life" on a global scale. The turning point of this change was the Crimean War, which resulted in Turkey's entering the "international community." Before the war, the members of this "international community" were restricted to "civilized nations," that is, only Christian-European nations. This restriction, however, became invalid with the entry of Turkey into the "international community," thus extending the "international community" beyond Europe. Martens applied the following condition to meet this situation: the idea of the "eclectic combination of natural law and positive law." Martens argues that this idea is an outgrowth of the Grotian tradition of international law. Martens defines non-European nations as "uncivilized nations," meaning that positive law cannot be applied to them. Instead Martens applies natural law in these situations. This usage, however, differs from the Western legal tradition, because Martens recognizes natural law in Russian way. According to Russian legal traditions, pravo is not distinguished from the orders of specific political authorities, such as an ukaz from the tsar. The Russian masses do not try to exercise their subjective rights, which is the essence of Recht. On this point, the Russian legal traditon differs from that of the West. The attitude of the Russian masses allows the exercise of unlimited power by political authorities. This is due to the nature of traditional Russian social communities that lack autonomous bodies to exercise their subjective rights. This attitude stems from the Russian concept of natural law. Whereas Western people recognize natural law metaphysically, the Russians grasp it empirically. I call the Russian concept the "realistic natural law." The validity of the "realistic natural law" ultimately rests on political power. The Russian legal consciousness is reflected in Martens' recognition of the "international community." As stated above, Martens applies natural law to "uncivilized nations." According to his theory, "uncivilized nations" are not allowed to exercise their subjective rights. Therefore, it is possible for "civilized" Russia to exercise her power over "uncivilized nations" without any restrictions. Martens' concept of the "eclectic combination of natural law and positive law" is deeply influenced by Russia's "realistic natural law."