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TEN LECTURES ON LAW

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The author views law as a unique artefact of social order (in the words of ancient Roman jurists, jus est ars boni et aequi — «law is the art of the good and justice») in humanity’s struggle against the many-faced social chaos. The law is proposed to be viewed as a normative form of human freedom in personal social interactions. Key issues of the legal doctrine and practice are analysed in the sociocultural context of current national and global changes. Legal issues of Russia’s development touched upon in this book are presented taking into account the amendments introduced into the Constitution in 2020. The publication is based on the lectures delivered by the author at the St Petersburg International Legal Forum. It is intended for those specializing in the general theory and philosophy of law, constitutional and international law.
Зорькин, В. Д. Ten Lectures on Law : monograph / V. Zorkin. — Moscow : Norma, 2021. — 344 p. - ISBN 978-5-00156-174-3. - Текст : электронный. - URL: https://znanium.com/catalog/product/1372728 (дата обращения: 29.03.2024). – Режим доступа: по подписке.
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Ten Lectures on Law

В. Д. Зорькин





                Десять лекций о праве









НОРМА
Москва, 2021

Valery Zorkin





                Ten Lectures on Law











NORMA
Moscow, 2021

УДК [342.4+342.565.2](470+571)
ББК 67.400.12(2Рос)-9+67.400.2(2Рос)

Электронно


З86

znanium.com

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.










      Zorkin V.
З86 Ten Lectures on Law : monograph / V. Zorkin. — NORMA publishing house, 2021. — 344 p.
          ISBN 978-5-00156-174-3 (Norma)
          ISBN 978-5-16-109485-3 (INFRA-M, online)
          The author views law as a unique artefact of social order (in the words of ancient Roman jurists, jus est ars boni et aequi — “law is the art of the good and justice”) in humanity’s struggle against the many-faced social chaos. The law is proposed to be viewed as a normative form of human freedom in personal social interactions. Key issues of the legal doctrine and practice are analysed in the sociocultural context of current national and global changes. Legal issues of Russia’s development touched upon in this book are presented taking into account the amendments introduced into the Constitution in 2020.
          The publication is based on the lectures delivered by the author at the St Petersburg International Legal Forum. It is intended for those specializing in the general theory and philosophy of law, constitutional and international law.


                                            УДК [342.4+342.565.2](470+571)
                                            ББК 67.400.12(2Рос)-9+67.400.2(2Рос)

ISBN 978-5-00156-174-3 (Norma)
ISBN 978-5-16-109485-3 (INFRA-M, online)

© Зорькин В. Д., 2021
© Zorkin V. D., 2021

Contents


Foreword. Law at the crossroads of times ............................ 8
I.  “Mystery of lawlessness” and equality in freedom ................15
       1.  On the danger of discrepancy between the normativity of morals and law .........................................15
       2.  Law as a normative form of freedom .......................25
       3.  On how to overcome deviations from the essence of law ....34
II. Crisis of law in postmodernist hues ............................ 46
       1.  Law in the context of postmodernist relativism .......... 46
       2.  Underlying sources of the political and legal crisis of the global world ..........................................55
       3.  State and legal identity in the context of globalization .63
III. To the law of metamodernism: sociocultural roots of understanding law ................................................73
       1.  Metamodernism as a new paradigm of legal thought .........73
       2.  On natural law in the context of coevolution of human and nature ................................................86
       3.  Law and law enforcement: an interdisciplinary approach ...98
       4.  Tabula rasa: can we rewrite the Constitution from a clean slate? ......................................105
IV.  Russia before the legal barrier .............................. 112
       1.  Legislative reforms: “management of the future” ........ 112
       2.  In search of harmony: on Russia’s first parliamentary experience .............................................. 121
       3.  Academician Vladik Nersesyants’ civilism concept as a philosophical and legal reflection on the outcomes of socialism .............................................130

Contents

V.  To social integration — through law ........................... 142
        1. The constitutional basis of social harmony ............. 143
        2. Correlation between law, social justice and democracy .. 152
       3.  Legal awareness is the core of the Russia-wide social integration ..........................................159
       4.  Preservation of Russia’s constitutional identity as a strategic issue ........................................ 164
VI.  Russia and Strasbourg: 25 years after ........................ 179
       1.  Legal standards of the Council of Europe and modernization of Russian legal framework .................................. 179
       2.  The ECtHR and constitutional justice: conflicts of interpretation ........................................... 185
        3. The supremacy of the Constitution of the Russian Federation
          is an enforceability criterion of ECtHR judgements .......196
       4.  Constitutional “limits of compliance,” or the reason why one cannot agree with the Venice Commission ............ 206
VII.  Political origins of the erosion of law ..................... 218
       1.  Fascist barbarity, “forced democratization” and “controlled chaos” ...................................... 218
       2.  Policy of “double standards” as an instrument of chaotization of law ......................................238
        3. Demolition of the legal frameworks of the global world ..250
VIII.  Justice is an imperative of the civilization of law .........262
        1. Justice as a legal phenomenon ...........................262
        2. A just world order is a legal order .....................269
        3. A synthesis of individual freedom and social solidarity .277
        4. To the new world order ..................................285
IX.  Law and today’s scientific and technological revolution .......291
       1.  Legal challenges of scientific and technological development .................................................291
        2. On human rights amid digitalization .....................297
        3. Law and artificial intelligence .........................303
        4. Digital technology and governance modernization .........307

Contents                                                               7

X.   Providencia: on law of the future in the world of digits ..... 311
        1. New reality and new challenges for the civilization of law . 311
        2. The danger of new challenges ........................... 318
       3.  On the content of law of the future and the right to the future ...............................................324
One last thing the world of law will never be the same ............ 331

        Foreword. Law at the crossroads of times

   “The Sleep of Reason Produces Monsters”: this is how Francisco Goya called his famous work made at the end of the 18th century. The artist himself wrote the following caption to it: “Imagination abandoned by reason produces impossible monsters; united with her, she is the mother of the arts and source of their wonders.”
   Having woken up from the “hibernation” of the Middle Ages, the mind gave humanity the law of modern time — law of modernism based on the recognition of personal dignity and equality of all before the law and the court. For centuries, religion was considered to be an indisputable source of reason, but under the weight of scientific discoveries the “divine reason” surrendered its position, and then its substitute was invented: the secular cult of rationalism not bound by any ethical framework. And without such a bond, the mind is an absolute: not a part of nature, but a master who reigns over it as an object and believes that everything it touches belongs to it. Today, the world is clearly experiencing signs of a crisis of the development model based on an absolute, unbridled, bare rationalism.
   Approximately from the second half of the 20th century, people began to realize that this kind of unlimited rationalism harbours a mortal danger of a new apocalyptic slumber. It knows no limits, including human ones, and denies that human cognitive abilities are fundamentally limited. The most dangerous manifestation of the soulless, mechanistic rationalism is the desire of certain great political powers, without regard for anything, to immediately remake the world according to their own recipe and to impose the order that they declare as uniquely rational and just, using what they see as their overwhelming intellectual and technological superiority.
   Other threats hide behind the impressive advances in artificial intelligence development that can lead to consequences which, obviously, can either dramatically improve the life of humanity or become the worst that can happen to it. Similar concerns can be put forward regarding a num

Foreword. Law at the crossroads of times

9

ber of other inventions: primarily those advances in the field of modern biotechnology that are associated with the invasion into human biology.
   Such rationalism is spontaneous and blind; it brings us to a point of singularity, beyond which any predictions of the model of society development become meaningless. All this indicates that when the mind is fully emancipated from its emotional and moral component and refuses to learn “the reasonable, the good, the eternal,” it becomes destructive. To avoid a disaster, the mind must observe its natural limits, learn to listen and express in law what it is told by the Ethos which is harmonious with human nature.
   Rationalism in law as the sphere of the due took the form of legal positivism correlating with the concept of positive law, i.e. universally binding laws and regulations whose binding nature is enforced by the powers that be. According to legal positivism, human rights are everything that the authorities declare as such, or everything that people can be persuaded to consider as such. However, such an interpretation is equal to recognizing that human rights are a purely procedural matter.
   Constant attempts to maximize the scope of rights and obligations also stem from this positivist approach, since everyone wants to ensure the priority of certain interests over others. And this leads to a kind of inflation of legislative material, which starts to include random regulations that, in essence, have no legal substance.
   At the same time, legal positivism sits well with the common people’s sense of justice, because an absolute majority, without delving into the essence of things, firmly believes that the law is just a framework of laws composed for administrative convenience, and that anyone with authority can change it at their own discretion.
   “Power precedes law,” believe the architects of Realpolitik that is based on the criterion of practical expediency. But as Chancellor Otto von Bismarck, the creator of this policy, himself said (however, he was not the first to be credited with the aphorism), “You can do anything with a bayonet except sit on it.” Just as the hands of a clock do not move time, so legislation does not create law, but marks its natural course. The things that were hastily invented and adopted under the guise of law for ulterior purposes and immediate gains are nothing more than “legal spam.” Rulers, relying only on power and treating law as a servant, sooner or later depart, leaving behind only the paper husks of dead laws.

Foreword. Law at the crossroads of times

   The issue of proportionality of law and power is a fundamental one for the entire international legal theory and practice. The fate of not only states but the entire humanity depends on its solution. It is especially relevant in the current era of global changes. Recently these changes were so rapid that it left legal systems — both national and international — lagging far behind. As a result, it not just paves the way for numerous legal conflicts, but also creates regular precedents of national and international processes transcending any legal boundaries whatsoever. And this means entering the realm of pure power which, in essence, is arbitrariness, the opposite of law as a normative form of freedom based on the principles of equality and justice.
   One of the main factors of the current changes is globalization, which is picking up its speed and scale, contributing to closer communication, connectivity and interdependence of countries and regions. Apart from benefits, globalization introduces into our lives a dramatic instability that lays bare the fragile, transcendent and uncertain nature of the modern world.
   Having understood all this, some people start acting more carefully, according to the “if only it would not collapse” principle, while others cynically try to use this “existential fragility” in their own interests. Some are excited about current changes and hopeful about the positive outcome of the current and future changes, embracing the new scale and pace of human communication and new, ever more complex and powerful, technologies, as well as new economic possibilities. Others, on the contrary, are nostalgic for the former stability of the world and think that current instability robs people of their freedom.
   Starting from the 1990s, analysts began interpreting the current world situation using the terms of the catastrophe theory, And in the first decade of the 21st century phrases like “global turbulence” and “creative chaos” found their way into the vocabulary of the current policymakers. In today’s globalized, deeply interconnected reality that is oversaturated with information, we deal with the crisis of global economy, global politics and global sociality. It fully applies to law as well. Events in Yugoslavia, Libya, Egypt, Syria and Ukraine are not just signs of a new era of “global turbulence”; in fact, it is an attempt to totally negate the legal principles of human life that have been introduced by the law of modernism and that we habitually regard as vital as the air we breathe.

Foreword. Law at the crossroads of times

11

    In this respect, let me note that the global Realpolitik that grows stronger before our eyes is destroying the international legal framework established after the Second World War and is rooted in the rhetoric of postmodernism. It has no place for such basic legal concepts as truth, objectivity or justice. In it, all opinions have the right to exist, all are equally right and wrong, all are optional not only for others, but for the person expressing them as well. Legal policy and corresponding lawmaking based on such ideas are guided by pragmatic expediency.
    But the principles of normativity and humanism that underlie the civilization of law are being eroded not just at an international level. The unbridled pluralism of cultural and moral norms that roots ever deeper into the social practice of the majority of developed countries and makes public life ever more chaotic has the same postmodernism origin. And chaos does not lead to freedom, as freedom is only possible within strictly defined legal boundaries. History teaches us that chaos always leads to arbitrariness and violence. Chaotization of public life is especially dangerous in countries such as Russia, which in the last century experienced several dramatic changes of its legal tradition, including the very painful recent transition from the Soviet to post-Soviet era.
    The most recent transformation of national and global reality and changing political language describing this reality have caused a certain “conceptual shock” among a significant portion of legal scholars, because no valid legal doctrines had any relevant set of concepts to comprehend such turbulent and chaotic reality. This is not to say that the global legal community did not in any way respond to this. Yet these responses have not led to a comprehensive review of national and international legal systems according to the changing global reality.
    I would not blame the legal community for such conservative thinking, primarily because lawyers have to be conservative due to the specific nature of their social role. Besides, the legal community is always society’s own flesh and blood. It cannot avoid the destabilizing influence of the chaotic and turbulent processes taking place in society. And finally, the legal community of a certain country is always deeply entrenched in the specific sociocultural environment of its society and state and cannot completely “shake off” this complex network.
    Yet the process of globalization that ushers in turbulence and chaos puts an ever-growing sociocultural pressure onto society and the legal community of every country, often posing new and very challeng

Foreword. Law at the crossroads of times

ing philosophic and legal questions related to the issue of proportionality of law and power.
   Modern crisis reality demands particular attention from not only national, but also global legal community. The times like these weaken both external state legal frameworks and legal consciousness.
   In such conditions the role of the legal community and the state in maintaining and reinforcing legal awareness of the public invariably becomes more prominent. Without it, law-governed society cannot succeed or survive. Without law-governed society, a fully-fledged law-governed state cannot exist. And without a broad community of such states, there can be no stable legal framework on the national or international level. Only such a framework can allow the humanity of today to overcome the threat of chaos and emerge from the era of change renewed, strong and united, to secure a future for humanity as a civilization of law.
   Times of change invariably “stress test” most of social and state frameworks, because during such periods conflicts and collisions that need to be kept in check by the power of law flare up both nationally and internationally. These changes — even evolutionary and particularly revolutionary — are never fully understood pre-emptively by legal regulatory mechanisms.
   In such conditions, the main factor of social and public stability is popular support of the government and the state. Without it, no nation or state can successfully pass the “change test.” And popular notions of what is due, good and just play the decisive role in this support.
   Yet these notions, despite the advanced state of globalization, still vary greatly in today’s world I think that in the argument between the concepts of liberal globalization according to Yoshihiro Francis Fukuyama and the clash of civilizations according to Samuel Phillips Huntington (1927—2008) presented about 30 years ago, our era leans toward Huntington. Or rather, toward objective recognition of the fact that the notions of the due, good and just vary greatly in different sociocultural regions of the world and cannot be reduced to some universal paradigms. This means that mass consciousness of each society includes the areas of history, religion and socioculture with their own specific notions of the just and due.
   Consequently, any new laws that can introduce the novelty of the era of change in the legal domain have agree with the ethical norms of social majority. Here it is appropriate to mention words of the French social sci

Foreword. Law at the crossroads of times

13

entist Pierre Bourdieu (1930—2002) who stressed that law and its administration can be effective only if the law and the norm of its legal interpretation correlate to the common concepts of justice. That is, common ethical notions entrenched in the religious tradition of a nation, its historical culture and experience, its specific mentality are not some trifles that lawmakers can ignore. This is the domain of such social values that cannot be “cancelled” by regulatory acts or quickly and arbitrarily “reforged.” And most importantly, it is in the times of change with weakening regulatory system of the written law when these social values often turn out to be the key regulator that saves society and state from the immersion into the unlawful chaos of “war of everyone against everyone.”
   All major historical legal achievements — Hammurabi’s Code, Rome’s and Magdeburg’s legal systems or the Napoleonic Code — were built keeping in mind those ideas of the just, good and due that were established in the public consciousness of the relevant era and cultural and historic area, while most of failures of legal regulation in the past were related to catastrophic gaps between the public and formal legal obligations.
   Some may object that all this is only relevant for the societies that did not go through the modernization stage and that taking into account the “retrograde” sociocultural norms of some societies and states only preserves the archaic features and slows down the victorious march of global humankind towards the universal norms of law and justice. I would like to point out in this regard that even in the most advanced countries the notions of the “just law” vary greatly. For instance, the majority of the American states exercises capital punishment and does not plan to abolish it. In the Nordic countries, the wealth tax is 70—80 per cent of the income, and social majority does not consider it to be an unjust encroachment of the sacred right to private property. And modern Japan, which hardly can be left outside the score of modernized countries, commonly practices legal dispute resolution not through judicial decisions but by informal mediator groups reasoning with the parties.
   Obviously, any complacently stagnating legal system is doomed to decay and death, and the rapidly developing global world requires urgent legal innovations. Yet at the same time it is clear that not all legal innovations are equal. It is necessary to draw a clear line between rational innovations and risks of creating painful gaps between laws and ethical

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