Civilization of Lawand Development of Russia, 2nd edition


Valery Zorkin

Civilization
of Law
and Development of Russia

VALERY ZORKIN



CIVILIZATION OF LAW
AND DEVELOPMENT
OF RUSSIA

УДК 340.1
ББК 67.02




          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, Civilization of Law and Development of Russia updated 2nd edition. NORMA publishing house, 2016



           ISBN 978-5-16-103272-5

           The book discusses the most relevant and pressing legal issues amidst their historical and socio-cultural background. Noting the increasing role of the law in socio-normative system of contemporary society, the author introduces the notion of “civilization of law,” or “legal civilization.”
           He uses these notions to analyse the mission of law in times of global change and ever-increasing role of law in the fight against chaos and new barbarity.
           Basic legal principles of the law of modernism that predefine the key areas of our country’s constitutional and legal development — equality of all people before the law and the court, principle of priority of human rights and rule of lawful act of legislation — are reviewed through the prism of previous attempts to reform the Russian law and justice.
           Special attention is given to the analysis of the effect of socio-cultural factors on Russian legal modernization.
           The author defends the idea that general trends and Russia’s socio-cultural specificity need to be taken into account while it is entering the global framework of modern civilization of law.
           The book is intended for lawyers, philosophers, political analysts, social scientists, as well as wider audience.










ISBN 978-5-16-103272-5

                Contents











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

Chapter I.  Legal Regulators and Social Reality...........12

1. Asynchronous Nature of the Global Historic Development of
  Law and Socio-Cultural Specificity of the National Legal Order.12
2. The Rule of Law and Social Normativity...............18
3. Legal Standards of the Just and the Proper in Social and Economic Affairs....................................30
4. Law and Law Enforcement: the Legitimacy Issue........41
5. Russia’s Path to the Law of Modernism: Proceed with Caution.48
6. On Conjugation of Law and Political Democracy........59

Chapter II.  Emancipation Reforms and Legal Modernization.................................76

1. Without Legal Modernization Russia Has No Future.....76
2. On “Liberal Measures and Strong Authority” Legal Model.81
3. Emancipation Reforms of Alexander II: On Risks and Methods of Legal Modernization.............92
4. Lessons of the Previous Attempts of Political and Legal Modernization of Russia................................114
5. . Modernizing. .Transformations.: . . Correlation . between . Proper. . and Just...............122
6... The . Reformer. . Phenomenon.........................129

Chapter III.  Constitutional Dimension....................140

1. Priority of Human Rights and Rule of Lawful Acts of Legislation............................140
2. Implementation of the Rule of Law Principle............148
3. Systemic Problems of Legal Regulation..................167
4. European Convention of Human Rights in the Russian Constitutional and Legal System: Implementation Issues...184

Chapter IV.   On Whether Constitution’s Legal Potential is Exhausted.............................212

1. The Constitution is a Legal Foundation for Integration of the Russian Society...................................212
2. Tabula Rasa: an Answer to Those Eager to Rewrite the Constitution Anew....................................222

Chapter V.   Law, Trust and Social Integration............230

1. Trust and state system functioning.....................230
2. Law as a Factor for Maintaining and Building Trust in Socio-Economic Relations..............................239
3. Integrative Function of Law in Globalized World.......249
4. Role of Constitutional Justice in Solving Social Integration Issues: Russia’ Experience...................260

Chapter VI.   Law in the Context of Global Change.........272

1. The Law of Power and the Power of Law..................272
2. Global Political Crisis and International Law..........293

3. Global Economic Crisis is a Result of Violation of the Rule of Law..........................308
4. State Legal Identity Against Challenges of Ethnic and Social Diversity............................318
5. Russia and the West are Sworn. .Who?
  Does the West Want Russia’s Legal Modernization?.........................................333

Chapter VII.   Law Versus Chaos..........................344

1. Fascistic Barbarity, Forced Democratization and “Controlled Chaos”...................................344
2. The Nuremberg Trials and Current Issues of International Criminal Justice.........................................363
3. Law Versus Crime......................................378

Chapter VIII.   Crimea’s Reunification with Russia     386

1. Time to Take off the Masks............................386
2. On Formal Legal Aspects of the Constitutional Court
  Judgement on the Reunion of Crimea and Russia: a Reply to Critics.....................................406

Chapter IX.   On the Prospects of Civilization of Law....................................418

1. Legal Mastering of the Future.........................418
2. Law and Civilizational Prospects of Modern World......430
3. Civilization of Law and Survival of Humanity...........443

                Introduction









This book is about the law as a necessary and crucial regulatory form of freedom of human civilization; about its rise and development in our country in the late 20th and early 21st century amidst global change and fight against chaos and new barbarity. I would like to say this outright: this book is not about some special path of Russia, damned by ones and praised by others. It is simply about actual Russian relations with the law in its modern interpretation as a measure of freedom manifested in legal equality and justice.
      I would also like to draw readers’ attention to the fact that I deliberately emphasized several issues related to social science and philosophy of law. These issues are connected with historical specificity of Russia’s legal path in the context of common laws of humanity’s development as a civilization of law; with fundamental socio-cultural features of our country; with immanent relation of legal form to social content; with the effect of economic property relations on the development of political and legal domain, etc. In analysing these issues, I am referring to the ideas of the classics of social philosophy who set high legal standards of human development. Please do not see it as a naive and idealistic view on the Russian and global legal reality. I know the harsh and cynical reality rather well. At the same time, in the current crisis I better understood something that I long knew: without addressing the eternal questions, it is impossible to solve the most complicated issues that both Russia and the entire humanity face now.
      Hardly anybody doubts that we are entering a brand-new stage of international relations. Statements about the beginning of a new cold war do not sound like an irresponsible rhetoric anymore: too many signs of the cold war become discernible in

Introduction

9

real global politics. Elements of an economic cold war are already evident in the sanctions imposed against Russia. Moreover, life presents new trends and risks that introduce the elements of the “hot war” into the unfolding cold one.
      All this poses serious new challenges before Russia — and this happens very quickly. And it demands not just quick yet deep comprehension, but an accelerated development of concepts, methodology and technology of adequate responses to these challenges, including the responses of legal nature.
      First thing that is undeniable is that the challenges we face are systemic — political, propagandistic, economic, and even, possibly, military and strategic. It is also undeniable that in terms of demographic, economic, military potential and number of allies, today’s Russia in much weaker than it used to be at the time of the former stand of Soviet and Western blocs. What is also undeniable is that these challenges are growing amidst the continuing global systemic (not just economic) crisis that has deeply affected Russia.
      Our competence and responsibility include such an aspect of this crisis as blurring and weakening of the efficiency of legal regulators. This is manifested in various spheres of social life (socio-cultural, economic, political, etc.) and on various levels of regulation (national, international, global). Modern legal crisis results from the general crisis of social regulation. This crisis has affected Russia especially deeply because of the historically unprecedented scale and rate of the post-Soviet transformation of political, economic and social areas. We find ourselves not just in a global historical turbulence, but right in its epicentre.
      While discussing the crisis and its legal aspects, it is necessary to understand its historic and socio-cultural origins, because otherwise we will be bound to look for stopgap solutions of “hot” legal issues, going further away from their reasons.
      For centuries, humanity had been dreaming about the end of all wars — both global and local — and all religious and ethnic conflicts. Many prominent thinkers linked the possibility to avoid all these horrors to establishment of a world government and delegation of national mandates to it, so that the nations could not wage wars with each other using the power of the states they

Introduction

established. Because they thought that there would be no preconditions for such wars: no competing nation-states, and later no ethnic and religious conflicts.
      This centuries-old dream gained traction after humanity had lived through the horrors of two world wars and found itself on the verge on the third, nuclear one. New hopes arose from the refusal of confrontation of the communist and capitalist world systems. It was believed to be the last barrier on the way towards uniting the humanity. After it, too, was gone, there were talks about the globalization that would save us all. For 17 years (since 1991, when confrontation of two world systems stopped, and until the global crisis of 2008), the talk was mainly about the advantages of globalization and its fairness.
      In 2008, it became apparent that alongside the advantages, there are some setbacks as well. That globalization brings not just new opportunities for people, but new risks as well, including those related to instability of everything in the world — financial system and global division of labour that threatens to factor out a significant part of humanity, etc. Even if we believe the optimists (who are few and far between) and suppose that in the nearest future there will be no new global crisis, the world will still live expecting one for decades to come. Under this sword of Damocles. And this is not quite the life that people believed in before 2008.
      Throughout the world, major spiritual leaders and prominent academics, far from being orthodox communists, rediscovered Karl Marx and asked a question: If crises cannot be avoided during globalization, can we avoid all the rest, world wars and revolutions? What kind of a world is it, which has crises but lacks everything that used to accompany them? Does such a world have historical dynamics? Is it true to the founding principles of humanism, including the great principle of human rights? Is it not turning into something completely anti-humanistic, like an Orwellian dystopia or Jack London’s The Iron Heel?
      Let me reiterate that these were the questions asked not by those who though Marxism was sacred; far from it. Marxism is being reinterpreted by major public figures who were always extremely wary about the Marxism ideology.

Introduction

11

      After 2008, the world separated once and for all. Some realized the side effects of accelerated globalization and stopped seeing it as a cure-all solution for all humanity’s problems. Others took the bit between their teeth and now try to implement their questionable project of accelerated globalization at any cost, no matter what.
      When one reads the works of the hawks of globalization, such as Jacques Attali, and analyses their explicit requirements regarding the need of a world government and parliament, global security forces and supranational judicial system, a question inevitably comes to mind: Why such resilience, when all existing supranational systems have discredited themselves? Not only the World Bank and the International Monetary Fund could not predict financial crisis; their intransparent and inadequate actions largely enabled its escalation. Because of it, even such a conservative organization as the UN questioned the efficiency of the above-mentioned supranational structures, while all national governments worldwide started to climb out of the crisis using their own capacities. They did it by carefully coordinating and aligning supranational and national interests, not negating their sovereignties and commitments before their peoples!
      There is not and could not be any definite answer for such questions, as only history will be able to dot the i’s and cross the t’s. We will leave aside the conspiracy theories about a global plot of evil forces, wishing to establish a sinister anti-humanistic world order, and will not go from one extreme to the other. Let us admit that humanity needs to move towards a global union, together with the ensuing vast benefits; and let us admit that history has no other options but this one and draw a distinct line between this fundamental lack of other options and rampant rashness. Such rashness is counter-indicative in solving the most complicated and intricate world problems, which surely include the problem of interaction of supranational and national political and legal institutions. Such questions cannot be solved in isolation from real practical problems that arise in the area of social, ethnic, economic, confessional, etc. relations. Isolation of general discussions from practice results in speculativity, which today must be avoided at all cost.

    Chapter I





                Legal Regulators and Social Reality






     1. Asynchronous Nature of the Global Historic Development of Law and Socio-Cultural Specificity of the National Legal Order

     Experience of building of a new post-Socialist Russia shows that the country’s normal development, i.e. its movement in the mainstream civilization of law, requires finding and maintaining the proportionality and balance of all other universal social foundations, such as freedom, authority and legislation, in every new specific historical environment with the law as an all-encompassing formal principle of human society. Inability to cope with this task eventually leads to a disaster, as convincingly shown by the collapse of the USSR.
     What led to the fall of socialism and breakup of the USSR? The fact that during the so-called Soviet Building, the principle of freedom was deformed and suppressed, and the principle of authority was hypertrophied, as a result of which the whole social and political structure was held together by strict totalitarian dictate that suppressed individual freedom. Such rigid construction was doomed to collapse sooner or later.
     As was often the case before, such collapse happened only too suddenly and unexpectedly. Society did not have time to prepare (neither intellectually nor institutionally). All this brought the country to the events of the second half of the 1980s, when society, unprepared for the freedom that came crushing down on it, could not find its bearings. What had to be said was: “We need the law as a measure of freedom.” Instead, many said: “Law be damned — all we need is freedom.” Freedom was traditionally

1. asynchronous nature of the global historic development of law           13
  and Socio-Cultural Specificity of the National Legal Order


seen in Russia as liberty, i.e. lawlessness. And the pendulum has swung from one extremity to another — from hypertrophied arbitrary rule to hypertrophied will of individual social groups and persons — again, at the expense of freedom that can exist only as a rule of just law.
      Then, when everybody grew sick of such “freedom,” everybody started thinking, maybe it would be better to return to the law — any law, if only it ensured order. This means that the “pendulum” again is getting back to the law at the expense of freedom. And after a while they would say again: “Look, that’s just impossible, we don’t need such order.” This could be going on for centuries, till the last Russian, because every turn of this spiral is decimating the country’s population. Yet there is almost no time any more for such pendulum of the Russian history to swing.
      In order to escape from the “deadly pendulum trap,” Russia must clear the legal barrier, i.e. stop going down the spiral of lawlessness. To do this, we need to be guided by the principle of the rule of law and consistently adhere to it in law-making and law enforcement.
      How does the present-day Russian reality relate to the ideal principle of the rule of law? Which aspects of the country’s past hinder the best possible implementation of this principle and what gives us hope for its success in a new Russia, at least at some point in the future?
      These questions must be discussed today. It is necessary because this feeling of “novelty” of today’s Russia gives many scholars and practitioners an illusion of tabula rasa, a clean slate, and therefore an illusion of being able not to analyse carefully the socio-cultural factors that largely predefine Russia’s historic development, as well as past experience of country’s reforms, past and present mistakes made by the reformers. This includes the mistakes that had led to national and human tragedies during the collapse of the USSR and then to Russia’s deepest crisis in the post-Soviet period.
      This issue needs to be addressed because Russia, having opened up to the world as a result of political and economic reforms, found itself in a completely new and unusual situation