Legal Path of Russia


Valery Zorkin





Legal Path of Russia































In commemoration of the 25th anniversary of the Constitution of the Russian Federation

VALERY ZORKIN






LEGAL PATH OF RUSSIA

УДК [342.4+342.565.2](470+571)
ББК 67.400.12(2Рос)-9+67.400.




          Author:
            Valery Zorkin is the President of the Constitutional Court of the Russian Federation, professor, Doctor of Science in Law, Lawyer Emeritus of the Russian Federation.




          English translation of original edition V.D. Zorkin, Russia’s Constitutional & Legal Development: Monograph, updated 2nd edition. NORMA publishing house, 2019. — 448 p.
          ISBN 978-5-16-108007-8

          This book tells about Russia’s arduous journey towards the rule of law as a normative form of freedom. It is about the implementation of the principles of equality and justice in the context of Russia’s controversial reality and modernday challenges and risks. It is about the constitutional identity of Russia as a sovereign party to national and international relations. It is about the need to build a new just world order amid global change.
          This publication draws on the lectures read by the author at the St Petersburg International Legal Forum in 2011—2018.





















ISBN 978-5-16-108007-8

                Contents








Introduction..............................................8

Chapter I.   Ideology of Constitutionalism................13

1. Union of Freedom and Power on the Basis of the Rule of Law.......................................13
2. An Axiological Approach................................27
3. The Constitution is a Universal Legal Source of Integration of the Russian Society...................................37

Chapter II.   Legal Doctrine and Its Importance for Russia’s Legal Development............................59

1. Law as a Normative Form of Freedom: a Sociocultural Context...................................59
2. On Natural Law and Inherent Human Rights...............81
3. Rule of Law and Social Normativity.....................97
4. Doctrine of Natural and Inalienable Human Rights: Conceptual Foundation of the Constitution...............108
5. Priority of Human Rights and Rule of Legitimate Act of Legislation...............116
6. Human Rights Protection Doctrine in Legal Positions of the Constitutional Court...............................124
7. Law and Law Enforcement: an Interdisciplinary Approach.............................134

Chapter III.  Path to Equality, Justice and Democracy.....143

1. Transition to Legal Equality as a Historical Consistency of Russia’s Development.................................143

2. Legitimation of Law-Governed Democracy.................156
3. Relation Between Law and Political Democracy: an Optimality Criterion...................................182
4. On Justice and Equality in Socio-Economic Relations...199
5. Social State: Constitutional Principle and Reality....211
6. Link of Times: Lessons of the Emancipation Reforms....221
7. Without Legal Modernization Russia Has No Dignified Future.245

Chapter IV.   Constitutional Identity of Russia...........258

1. Mainstreaming of the Constitutional Identity Issue....258
2. Constitutional Identity of Russia and Relation between National and Interstate Legal Orders.............273
3. Human Rights Protection in the Context of Specificities of Sociocultural Environment..............................289
4. Preservation of Russian National Identity as a Strategic Issue......................................307

Chapter V.   Faces of the Destruction of Law..............315

1. On the Threat of Criminalization of Society and State.315
2. Fascistic Barbarity, “Forced Democratization” and “Controlled Chaos”....................................321
3. Terrorism Is a Crime against Humanity.................333
4. On the Way to Lawlessness?.............................343

Chapter VI.   Law in the Context of Global Change.........365

1. Specific Features of the Current “Era of Change” and Jurisprudence.........................................365
2. State Sovereignty and International Law................383
3. Justice is an Imperative of the Civilization of Law....390
4. Towards a New Legal Order.............................404

Chapter VII.   On the Prospects of Law....................422

1. Law in the Digital World..............................422
2. Legal Mastering of the Future.........................434
3. Civilization of Law and Survival of Humanity...........445
4. Russia’s Legal Fate...................................452

                Russia at a Turning Point in Its Legal Development







     The Russian Federation as a law-governed state is at a turning point in its development. Our country has not yet cleared the legal hurdle, which means that the transition to the rule of law and the law-governed social state is far from complete. The transitional nature of the historical period that our country is going through is precisely the main challenge to which we are to find an answer that is adequate to its significance and scale. Resolution of this task requires not only all of the authorities of modern Russia, but also the entire Russian society to mobilize their efforts.
     More than a hundred years ago, Russia was unable to respond to a similar challenge of History. The transition from absolutism to a constitutional monarchy and then to a bourgeois republic ended in a historical disaster of October 1917. The ideological schism inherent in our society is most clearly pronounced here. This schism with its deep social roots once became the cause of the country’s plunge into the bloodshed of revolution and civil war. And Soviet socialism that was established as a result of these events can in a certain sense be considered as a forced attempt to overcome the social schism. Notably, even today our country has no common approach to the assessment of these October events. One part of society regards what happened as the Great October Socialist Revolution, while the other as the October coup and the seizure of power by the Bolsheviks.
     Russia’s current transition from a totalitarian system to a law-governed state takes into account the Soviet experience of lawlessness and its consequences. It is necessary to understand this experience and its underlying reasons to avoid “falling into

Introduction

9

the same trap.”The most important factor in Russia’s progress towards the rule of law is a full-fledged Constitution that formalizes firm state and legal structures and guarantees freedom within these structures.
      The post-Soviet Constitution was adopted on 12 December, 1993 in the wake of the most serious crisis of not only constitutional, but also socio-political nature that in its intensity was close to a minor civil war. Certainly, it left an imprint on the text of the Constitution, essentially determining both its merits and shortcomings. This crisis has exposed the old contradictions within Russian society that still create quite serious problems for the country’s socio-economic, political and legal development. Overcoming these contradictions is one of the most important tasks facing the Russian state.
      The most important indicator of the degree of humanity’s development at each new stage in its history is the state of the socio-normative system that includes law and personal and public ethics (morals). Quality of these regulators directly determines the ability of human society for self-preservation and development. Thanks to its universality, law plays a predominant role in ensuring society’s resilience.
      In the context of the risks that Russia, and indeed the entire world, face, law can and should become an effective means of overcoming the danger of chaotization both at the national level and on the planetary scale.
      Looking at these risks through the theoretical and legal lens, I must highlight the danger of limitless rationalism in the understanding of law, which, as practice shows, leads to a purely individualistic interpretation of human rights. This approach is based on the separation of law from its sociocultural roots, which is fraught with a transformation of lawmaking into a purely mechanistic process of development and creation of regulatory acts as a new “product.” Meanwhile, law, morality and ethics constitute an interrelated socionormative complex. Therefore, separation of law from the moral standards of the majority sharply reduces its effectiveness. At this stage in history, taking into account the accumulated experience of legal development, I would say that

Russia at a Turning Point in Its Legal Development

constitutional legal doctrine and practice require a synthesis of ideas of individual freedom and social solidarity. We should reconsider the concepts of solidarity as an authoritarian ideology that are common in the post-Soviet space. In today’s “risk society,” when the survival of humanity as a whole is at stake, it is imperative to overcome militant individualism in the interpretation of human rights and strengthen the solidarist principles of law.
      Such an approach to the understanding of law will help countries uphold their constitutional legal identity and restrain the destructive activism of supranational regulators that disregard the sociocultural characteristics of the development of sovereign nation-states. The common task for all states - to stop aggressive archaism, fascist barbarism and international terrorism - dictates the need to maintain a balance between the national legal system’s openness to external influences and its stability and ability to protect national public order, including human rights’ guarantees, from external destructive interests and influences.
      This task is made much harder by the fact that in the modern world with its clash of various interests, attempts are constantly being made to expand the scope of rights and obligations, since different groups strive to ensure the priority of their interests over others. This causes a kind of inflation and deterioration of the legal quality of the enactments that do not have legal content or (which is much worse) are anti-legal, i.e. violating constitutional principles of equality and justice. This tendency is combined with the ideas (popular both among laypeople and jurists) that law is nothing but the bonds of legislation composed for the ease of government. And the one who has the authority, can change the law at their discretion.
      “Power before law,” thought the Prussian Minister President Otto von Bismarck. Fortunately, however, this is not true. Just as the hands of a clock do not move time forward, so acts of legislation do not create law, they only mark its natural course. What was hurriedly invented and adopted under the guise of law to achieve random goals and short-term benefits, is nothing but legal “junk.” Sooner or later, the rulers who take law for a servant go away, leaving behind only paper husks of dead laws.

Introduction

11

     But how to understand what is true law and what is not? This work is devoted to the search for answers to these questions.
     We do not have the right to passively watch the changes and ignore the related risks. We cannot and must not allow these risks to devolve into full-blown crises of national sociality and statehood. The current situation commands Russian social science to develop a strategy and methodology of systemic risk control. In this joint task, legal scholars have a very important area of work related to the improvement of the concept of Russian constitutionalism and development of legal potential of the Constitution. And to the development of modern system of dogmas of the Russian law that adequately develops constitutional and legal principles and norms. And to the identification of legislative ambiguities and gaps. And to the evaluation of risks that arise during elaboration and implementation of strategic political and legal decisions, be it property privatization, pension reform, fighting organized crime and corruption, etc.
     Constitution acts as a formalized social contract about the principles of the state and social structure. It should be based on a real social consensus between the main social strata and groups of our society regarding basic constitutionally protected goals and values. The key problem is that a split society loses real social consensus and public trust, i.e. the basis of the Constitution and the foundations of the constitutional system formalized by it.
     Only a sufficiently high level of social consensus can serve as such foundation. And this is something that we are obviously lacking now. Because the main component of social consensus is not a formal expression of will of the citizens and social groups, but social trust that motivates a constructive and conscientious expression of will. Trust between people, social groups, social institutions; between society and the authority in general. And this is not a “bottoms-up” or “top-down” trust but a mutual one. Legitimacy of authority is based on society’s trust in it. Effective law-governed state social, financial, cultural and scientific policy can only be based on authority’s trust in society.
     Yet alienation, i.e. mutual mistrust of authority and society, typical for the late Soviet era, remains even in post-Soviet times.

Russia at a Turning Point in Its Legal Development

It seems that today it is becoming fashionable to say that this is a perennial and intractable problem of Russia.
     Of course, the issue of public consent is not one that can be fixed overnight. To do this, we can and should do more than what we do now. To this end, our intellectual and legal equipment must be much better and more advanced. I mean the constitutional doctrine, clear dogma of law, clear ideas about the sociocultural identity of the multinational Russian people, the conceptual apparatus and practical ideas about risk management, as well as an understanding of the specificity of possible discrepancies between legal norms and established moral and ethical ideas about the due and the just.
     The ability of our Fatherland to live by the Constitution, to withstand new challenges of the current and future era (increasingly complex and far from being serene) largely depends on whether we will learn to solve the above-mentioned issues using modern methods. For us jurists, this is the most important task, because without solving these issues, the Constitution in the unity of its letter and spirit will diverge from reality almost every step of the way.
     Without all of the above, we will not achieve the general goal of uniting freedom and authority on the basis of the rule of law, which generations of Russian legal scholars have been striving for more than a century and a half.
     We live in very turbulent times. Russia undergoes a legal transformation of the economic, political and social life amidst complex intertwining national and global crisis processes. Under these conditions, the government and all the healthy forces of society are given an increased constitutional responsibility for the well-being of the multinational Russian people and the sustainable development of our country and its successful legal present and future. I sincerely hope that such role and such responsibility will be within our scope of abilities. This is the direction that our Constitution sets; this is the legal vector of Russia’s development.