Historical and legal analysis of the genesis of pre-emptive law as a general theoretical phenomenon

Dergunov Aleksandr Alekseevich Lecturer, Department of Theory of State and Law, Federal State Budgetary Educational Institution of Higher Education "Saratov State Law Academy" 410056, Russia, Saratovskaya oblast', g. Saratov, ul. Vol'skaya, 1 a.dergunov89@mail.ru

The phrase "preemptive right" contains two fundamental categories for society: advantage and right. It is the integration of these lexical constants that allows us to assert the uniqueness and relative autonomy of the analyzed phenomenon.

At the same time, it should be recognized that the evolutionary path of advantage is much longer in the history of mankind than law.

"The legal norm," V.V. Trofimov rightly notes, "is introduced into the will of the legislator from the outside, under the influence of factors that exist even before the process of law-making begins" ^{[33, p. 132]}.

Advantage, according to dictionaries, means advantage, superiority over someone or something, as well as privilege ^{[22, pp. 472-473]}. The last word is of key importance, because throughout the genesis of human society, it was privilege that denoted the superiority of some subjects over others. It is no coincidence, as it seems, that the basic meaning of the concept of "privilege" is a preemptive right; this kind of synonymy, partly valid for general social relations, is not suitable for the legal registration of these phenomena. 

Meanwhile, the basic category, and this will be discussed in detail below, is "advantage", a type of which, among other things, is both privilege and preemptive right.  

The advantages that took place in the pre-state (and, accordingly, in the pre-legal) era of the development of society were mostly objective in nature.  In particular, it is possible to associate with G.V. Gorlanov that initially privileges are "a phenomenon objectively necessary, having a natural and labor character" ^{[6, p. 7]}. Here it is worth noting that since the Neolithic era ^{[31, p. 17-20]} human society has tended to unite in order to save production costs under the power of the leader, thereby conditioned the allocation of a privileged position among people.

The essence of privileges in the above-mentioned type of division of labor was reduced not only to natural differences and peculiarities of the work performed, but more to economic and social communication among generations, the subject of which was a kind of commensurate labor and its fruits obtained both in different time periods and territories.  

From equal nomadic groups, people moved to a sedentary lifestyle and the creation of appropriate formations, in which it remained profitable to give most of the collected products to the leader than to live outside the community. At the same time, the development of inequality was caused by the storage of food and agriculture, which allows dominant individuals to accumulate surplus resources, which could then be used by them to achieve their own goals and strengthen their privileged position.

At the same time, recognizing the dominant role of the objective factor in the formation of advantages, subjective aspects should not be completely excluded. In particular, advantages in a pre-class society may arise under the influence of prestige, the dominant position in the team, the authority of a particular subject ^{[30, pp. 61-62]}. Thus, "functional" (or "integrative") theories take into account the advantages that leaders provide to other members of the group.

In particular, as the size of human groups increased during the Neolithic, the multiplication of representatives of the conditional middle class required an increase in the hierarchy with the distribution of preferential rights to solve various problems of interaction and collective action.  The advantage of one person as a leader over others had a beneficial effect in solving social problems, such as coordinated resource harvesting, construction of irrigation systems and defensive warfare in the defense of territories.

Thus, we can associate ourselves with the position of V.V. Trofimov, who believes that the process of legal education combines factors of both objective and subjective properties ^{[33, p. 134]}.

Legal advantages arise only after the emergence of the state and law as a special social regulator of public relations ^{[20, p. 40]}.

"Law," as O.E. Leist rightly noted, "is created by the state in the sense that a norm becomes legal from the moment of its official recognition (or creation) by the state and the definition of sanctions for its violation. ...The state also needs the law in order to solve a number of problems of management of subordinates in a normative (uniform and stable) way" ^{[15, pp. 146, 148]}.

In our opinion, among such problems is the legal registration of the advantages of certain entities. Such advantages, as already mentioned, were formed objectively, were reflected in the social regulators of pre–class society - customs, traditions, religious prescriptions. However, with the emergence of the State, the advantages had to be reflected in the rules of law. Here there was a natural transition from social norms providing benefits to legal ones ^{[27, pp. 17-22]}.

At the same time, initially such advantages are not clothed in special terminology (primarily related to the word "privilege"), which indicates the perception of the preferential position of some persons as a completely natural, established position, illuminated by custom or (and) religious canon.

In the projection to the latter, it is advisable to begin the analysis of the formation of preferential rights as a proper legal phenomenon by the example of the formation of law in Ancient India, where in the period between the II century BC and the II century AD, society was divided into four groups called Varnas: brahmins, kshatriyas, Vaishis and sudras. In turn, the most privileged position was occupied by the varna brahmins, whose members created religious and philosophical writings (Dharmshastras) for their students, establishing generally binding rules of conduct and over time acquiring the importance of sources of law for the entire society of Ancient India.  On the other hand, along with the Dharmshastras, to which the laws of Manu also belonged, royal officials from Varna kshatri created essays on political and legal topics, called Arthashstras.

The above-mentioned legal monuments were used to regulate public relations in many spheres of life of Indian society and secured the preferential position of each of the Varnas in relation to others.

In the sphere of property relations, this was most clearly expressed in loan agreements that carried a succession of obligations, in which the debtor, unable to pay the debt on time, was obliged to work it out. However, a creditor belonging, for example, to the Shudras, a lower caste, could not oblige a representative of the Vaishyas, a more privileged caste, to fulfill the debt, moreover, the latter had the right to fulfill his obligations in installments ^{[2, p. 496]}.

In the case of committing acts that, in modern terminology, were of a criminally unlawful nature, the preferential right of Varna brahmins was reflected as the possibility of using violence up to murder in the protection of these representatives, which also extended to the necessary defense of women, in other cases murder entailed the death penalty. The appointment of the above punishment for a criminal offense, the subject of which was a brahmin, was impossible because of their privileges and was replaced by shaving the head.

In family relations, the right of preferential rights, differentiated on the basis of belonging to a particular varna, is supplemented by sexual characteristics justified in the patriarchal way of society, where a man had the prerogative to marry members of lower castes, which representatives of the fair sex could not do. In addition, representatives of the stronger sex had the exclusive right to terminate the marriage.

Religious norms in this case are closely intertwined and largely determined with traditions and customs. It was the combination of the religious factor with traditions and customs that determined the socio-cultural vector of the development of the legal system ^{[29, p. 189]}.

This is more than important if we proceed from a well-established paradigm of the composition of forms (sources) of law: legal custom, legal precedent, normative contract, normative legal act.

The legal custom in the presented legal series is certainly the very first historically existing source of law ^{[14, 19]}. The legal custom initially contained both general and special norms, both rules that are uniform for all, and exceptions to them ^{[1, p. 13-18]}.

At the same time, it is natural that at the early stages of the development of statehood, the advantages that originated in the tribal community were objectified primarily in legal custom ^{[26, pp. 97-102]}. This is the dualistic nature of the advantages: "... on the one hand, they are a phenomenon of natural, customary law, and on the other – a consequence the rights of the positive" ^{[28, p. 232]}. 

 The advantages and rights to them were directly objectified in the prescriptions of normative acts in the legislation of Ancient Rome. Here an important role was played, among other things, by the religious element ^{[33, p. 140]}, which affected all branches of law.

The law of this state originally provided for the division into j us commune (common law); j us singulare (special law); j us speciale (exclusive law). An important category of special right was privilege; in turn, privilege was the operator of the exclusive right ^{[11, pp. 34-36]}.

In any case, both the privilege and the privilege indicated the advantages of some subjects over others, but above all within the framework of legal relations among Roman citizens. Meanwhile, the very existence of Roman citizenship (Latin Civitas Romana)  a priori implied the existence of preferential rights over those who did not possess them. 

Thus, this historical period was characterized by the formation of preferential rights as the main criterion of division within society through the granting of preferential rights to citizens of one category in relation to a representative of another category.

At the same time, it should be noted the following: the term "pre-emptive right" itself was not used in Roman law, however, the regulatory impact of pre-emptive right, as the presence of the possibility provided by legal norms of having an advantage of some subjects over others, took place. In turn, the normative terms: "privilege", "privilege" were used in the direct meaning, implying a special or exclusive position of participants in legal relations.

Thus, it is possible to state the phenomenon of preemptive law, which consists in the fact that, without being directly objectified terminologically, preemptive law performs a regulatory function, including legal terms proper.    

A similar trend is observed in the course of further historical development, and, accordingly, the genesis of the pre-emptive right in historical monuments.

In particular, in the normative acts of Otto I the Great, such a term as "investiture" is used, in the most general sense denoting the preferential right of the emperor to unoccupied (or vacated) secular or ecclesiastical possessions, allowing them to be considered as the fief of the emperor; at the same time, the preferential right is veiled by such a word as "spoliation", implying deprivation (selection) in the creep of the supreme power of the property of deceased persons of spiritual rank.  S.S. Kartashov correctly notes that thanks to the Great Preferential Rights introduced by Otto I himself, aimed at legitimizing the advantages of the emperor, the latter's power was significantly strengthened, which made it possible to talk about the so-called "Ottonian privileges".  Meanwhile, we are not talking about privileges, because medieval law (largely understood as a right-privilege) knew the meaning of this definition, namely, the preemptive imperial right, which in many ways allowed the creation and strengthening of the Roman Empire of the German nation ^{[13, p. 340]}. 

Similarly, it was the preferential right of a man over a woman to occupy the throne that was laid down in the so-called Salic Law, based on the provisions of the Salic Truth, prohibiting female heirs from inheriting landed property ^{[18, pp. 130-139]}.  The terms "privilege" or "privilege" are also not used here, since it is absolutely clear that there can be no benefits or privileges when inheriting the throne. The Salic Law normatively establishes the preferential right of a man to "lay down the crown" ^{[5, pp. 212-229]}.

S.S. Kartashov discusses in detail the preferential rights of one estate (gentry) in the Grand Duchy of Lithuania over others ^{[13, p. 339]}.

Here we can agree that in the Old Russian state, the processes of granting preferential rights to certain estates proceeded in a similar way, as evidenced by many provisions of the Russian Truth ^{[11, p. 341]}.

The latter also does not use the phrase "preferential right", as well as the words "privilege", "privilege". Nevertheless, the analysis of the norms of the named legal monument allows us to conclude precisely about the pre–emptive right - as an advantage, the right to which is normatively fixed.

In particular, analyzing Article 26 of the Russian Pravda (Lengthy edition), stipulating the possibility of representatives of the princely squad to hit the offender with a weapon with impunity, A.V. Malko and S.Y. Sumenkov make an unambiguous conclusion that such an opportunity should be regarded as a privilege ^{[20, pp.41-42]}.

One can agree with this position, but only with the proviso that this token was not used in this article. Accordingly, we are not talking about a privilege that already has a fairly clear legal definition in that historical era. It seems that A.V. Malko and S.Y. Sumenkov themselves agree with this interpretation, who write that "since the time of the Russian Truth, privileges have been formalized mainly as a grant of exclusive rights by the sovereign ..." ^{[20, p.41]}.

Thus, if a privilege, based on Latin etymology, is an exclusive right designated by the specified term, then the preemptive right is understood, as already noted above, as a normatively granted advantage.

In this context, it is worth mentioning the Great Yasu of Genghis Khan, published in the same period of time, but geographically covering another part of the continent.

It was in the Late Middle Ages that the preemptive right became a truly legal category. First of all, it is used in the norms governing property relations. "The right of pre-emptive purchase," writes U.B. Filatova, "first arose in German law during the Middle Ages, when the collective concept had a special influence" ^{[35, p. 30]}.

Most researchers emphasize that preferential rights in property turnover are a phenomenon that arose precisely as a derivative of feudal law, with its cult of collectivism ^{[12, pp. 72-80, 21; pp. 15-17]}.  On this basis, some scientists express a negative attitude to the pre-emptive right as a novel that does not correspond to novelistics ^{[32, 88-98]}.

Here I would like to note that Roman law in its classical expression is associated with the primacy of individualism; in turn, the special order of land ownership in feudal Europe caused a variety of forms of participation of several subjects in the ownership of the same land allotment ^{[25, p. 209]}. 

At the same time, Roman law, since the time of Emperor Dialectian (244-311), recognized the institution of preferential purchase – in relation to emphyteusis (Latin emphyteusis), i.e. hereditary (eternal) lease of land.   In addition, according to K.P. Pobedonostsev, Roman law also knew other forms of pre-emptive right, for example, the public sale of bankruptcy property ^{[24, p. 404]}.   

However, the main thing is that the preemptive right is objective in nature; subjectively, it can be expressed in the course of law-making in one or another legislation regulating the relevant sphere of public relations. "In legal requirements," V.V. Trofimov correctly notes, "first of all, the natural laws of the life of law are embodied in a concentrated form" ^{[33, p. 141]}.

It is the "naturalness" of the presence of an advantage for some people in relation to others that makes it possible to fix the initial consolidation of preferential rights in legal custom; a clear example of the transformation of the prescriptions of legal custom into the text of a normative act is the evolution of the preferential right to acquire a land plot ^{[24, p. 404]}.  

The combination of subjective and objective pre-emptive law in nature also explains some general patterns, including the manifestation, first of all, among the normative acts regulating property legal relations, in approximately the same historical period, although in different geographical regions of the world.

In particular, medieval Russian law also has indications of a pre-emptive right to purchase. As an example, researchers usually cite the Novgorod Deed of Sale regulating this aspect of public relations, which allows us to once again verify the correctness of the conclusion about the genesis of the norms of customary law in positive law ^{[3, p. 17]}.

Indisputable from a historical and legal point of view is the thesis that one of the first legislative acts that normatively establish a preemptive right is the Cathedral Code of 1649 ^{[17, pp. 18-19]}. Meanwhile, a careful analysis of the relevant norms of the said legal monument (in particular, Articles 13, 14) allows us to assert that the general message of these regulatory prescriptions, of course, is to grant preferential rights in the purchase and sale of inherited patrimony; however, the term "preferential right" in the Cathedral Code of 1649 is not available.

Similarly, the concept of preferential rights, but without the use of this term, is observed, for example, in the activities of the Berg Collegium created by Peter I in 1719, guided by the so-called Berg Privilege and Berg Regulations. 

The Berg privilege of December 10, 1719 contained a whole complex of preferential rights in the field of mining law ^{[9, p. 19]}. Such preferential rights guaranteed protection from excessive interference by local authorities.  As a legislative act, the Berg privilege served as an incentive to the development of the nascent mining industry in Russia and operated until 1807 ^{[10, pp. 11-14]}. 

A significant layer of preferential rights, which strengthened the dominant position of the Russian nobility, was contained in the Manifesto of February 18, 1762 "On the granting of liberty and freedom to all Russian nobility"; characteristically, the word "privilege" does not appear in the said document, since it is about the construction of a complex of preferential rights of the nobility into law ^{[4, p. 3-9]}. 

Almost simultaneously, preferential rights appear in legislation related to the existence of merchants (the Charter of merchant shipping in 1781) ^{[23, pp. 87-90]}.

At the same time, it will be correct to assert the existence of a legal phenomenon if its corresponding lexical objectification appears in the text of the normative act. "Analyzing the content of normative acts, it can be concluded that in pre-revolutionary Russia, the pre-emptive right was mainly associated with the institution of common property" ^{[3, p. 18]}.

Accordingly, it is quite understandable that the definition of "pre-emptive right" is fixed first in the norms governing property turnover, so it is in these prescriptions, as already noted, that it reflects objectively existing relations and gets a truly legal meaning.

The first legislative formulation of "pre-emptive right" is fixed in the Draft Civil Code of the Russian Empire: Book V "Law of Obligations" contained, among other special types of sale, subsection 4 "Sale with the condition of the right of pre-emptive purchase" (Articles 1772-1775). These articles regulated in detail various aspects of the preemptive right that could arise during the sale of property ^{[12, p. 76]}.  The said act was submitted to the State Duma in 1913, but subsequent historical upheavals (the First World War and the revolutionary change of power in Russia) did not allow it to be adopted.

With the establishment of Soviet power, it would seem that the topic of preferential rights should be leveled as contrary to the ideal of a communist society. The possibility of implementing these principles in practice in the legal sphere of the state can be considered on the example of Soviet law, which arose in Russia after the October Revolution of 1917. The first decrees of the Soviet government declared that the party and the working class would build a completely different right from the one that had developed before this period in imperial Russia ^{[16, p. 163]}. In particular, the abolition of all class, national and religious privileges was initially proclaimed. This term itself "began to be perceived as purely reflecting illegal advantages" ^{[20, p. 45]}.

However, and this is a certain paradox of pre-emptive law, as a purely normative category, without any political background, it was in Soviet legislation that this formulation received its official recognition and widespread distribution, although initially there were certain discussions, during which opinions were expressed about the contradiction of the named construction of socialist law ^{[3, p. 19]}.

The rationalist point of view prevailed and the phrase "preferential right" was implemented in the Civil Code of the RSFSR of 1922 ^[7] (art. 64, 81, 85, 10,101, 102). Subsequently, the provisions on the pre-emptive right were invariably fixed when new codified legal acts were issued.

In particular, preferential rights were also contained in the Civil Code of the RSFSR of 1964 ^[8]. In this normative act, in addition to fixing the pre-emptive right of purchase (Articles st120, 123), pre-emptive rights were established in projection to the order of alienation of historical and cultural monuments (Article 137/1); pledge (Article 192); foreclosure by the pledgee on the debtor's property (Article 200); the right of the socialist organization to renew the lease agreement (Article 280).

Many aspects regulating the preemptive right were enshrined in the Civil Code of the Russian Federation. However, it should not be assumed that preferential rights are a purely sectoral institution of civil legislation.

Regulatory prescriptions establishing preferential rights at the present time (and this will be discussed in detail below) are currently contained in the family, housing, labor, financial, municipal, administrative, constitutional branches of Russian legislation. One of the most recent examples is Federal Law No. 95-FZ of April 20, 2021 "On Amendments to Article 71 of the Federal Law "On Education in the Russian Federation" ^[34], supplementing this article with Part 11.1, which establishes the preferential right of admission to certain educational institutions for children of citizens who are or have served in some government agencies.

Thus, summing up all of the above, we can note the following.   

The differences between people are objective in nature and are reflected, among other things, in the form of advantages of some subjects over others. Such advantages are objectified by the customs and traditions of the tribal community, acting as one of the social regulators.

The emergence of the State determines the emergence of law as legal norms issued or sanctioned by the state. In the latter, the right of some subjects to a preferential position in various aspects of the life of society is fixed. At the same time, such implementation occurs initially in legal customs, religious texts having legal significance, and then in the texts of normative legal acts.

Advantage as a multidimensional category is embodied in special terminology, primarily in such definitions as "privilege", "privilege", "prerogative"; however, the preferential position of individual social groups, fixed in the normative prescription in its dominant, did not receive an exact lexical designation.

The phrase "preemptive right" appears in the German legislation of the late Middle Ages in the part regulating property relations. Similarly, the term "preemptive right" is beginning to be used in the Russian Empire.

The definition of "pre-emptive right" is widely used in Soviet legislation. The subjects of law-making, seeking to avoid the word "privilege", are beginning to actively introduce the term "pre-emptive right", correctly meaning by it the right to certain benefits.

The preemptive right in modern Russian normative acts is ubiquitous, occurs in various branches of legislation, denotes a specific isolated phenomenon that takes place in legal practice and therefore needs further theoretical understanding.