Russian Law and Legal Institutions

Third Edition

William E. Butler

• Publisher: Talbot Publishing
• Year: 2021
• ISBN:
  9781616196677
• Topic: Droit
• Subtopic: Droit civil

The massive amendments in 2020 to the Russian Constitution are explored in this revised and updated introduction to the historical and contemporary foundations of the Russian legal system set in the larger context of comparative legal studies. This volume retains its basic structure: The Russian Legal System in Context (Russian Law in Comparative Legal Studies; Russian Law and Legal Translation); The Foundations of Russian Law (The Pre-Revolutionary Heritage; Russian Legal Theory; Sources of Law; Legal Profession and Legal Education); The Administration of Russian Legality (ministries of justice, judicial system, procuracy, notariat, registry for acts of civil status, administrative commissions, law enforcement agencies, investigative agencies, arbitration, and the role of non-State entities); and the State Structure of the Russian Federation (Presidency, Federal Assembly, Government, Subjects of the Federation, Local Self-Government). An extensive list of recommended reading is followed by the text of the 1993 Russian Constitution, as amended.

viii, 516 pp.

1

RUSSIAN LAW IN COMPARATIVE LEGAL STUDIES

Russian law and the Russian legal system continue to seek an established place in the constellation of world legal systems. From the mid-eighteenth¹ and to the early twentieth centuries – the formative period of modern comparative law – Russia and her legal system were basically unknown to European comparatists and by default were commonly grouped together with the legal systems of continental Europe.

The dissolution of the former Soviet Union (1922-1991) and its legal system (1917-1991) and the re-emergence of the Russian State continue to offer another dimension to the debate among comparative lawyers generated by the 1917 Russian Revolutions. The Revolution of February 1917 brought an end to the Russian monarchy; the Revolution of October 1917 terminated the rule of the coalition Provisional Government that had supplanted the monarchy. Soviet law claimed, on the basis of ideological axioms, to be unique among all existing and preceding legal systems. Whereas most Bolsheviks accepted that “law” was a component of the Soviet public order, whatever its ultimate fate was postulated to be, this claim to uniqueness challenged the classical classifications of legal systems or families of legal systems.

Some considered the Soviet legal system to be merely a species of the European Romano-Germanic civil law system embellished with ideological encrustations.² Professor Albert Ehrenzweig (1906-1974) observed that if the Soviet legal system could validly be segregated as unique in the traditional realm of private law, he would be obliged “to abandon the philosophical pattern of two and one-half millennia and the comparative concern of a thousand years”. Whatever innovations may have been wrought in public law, he believed that the “essentially civilian structure’” in the law of the family, property, succession, contract, and tort remained unchanged, and he perceived only minor changes in established European patterns of criminal law and procedure.³

Presumably those partial to this perception of Soviet law will have seen nothing novel in the post-Soviet period, merely a discarding of certain Soviet “forms’” of no substantive consequence and the preservation of a “legal mentality” formed during the decades of Soviet rule. Those who truly do know Soviet law will have found the 1990s and first two decades of the twenty-first century challenging, for the effort to “democratize” and to “marketize” the Soviet legal legacy has been a formidable task going far beyond the rejection or replacement of “forms” and the importation of “transplants”. Three decades on, the transition is still in process.

Perceptions of uniqueness in the classification of foreign legal systems depend partly upon developments within our own. Those who in the interwar or early post-1945 era attributed significance when analyzing Soviet law to the differences in economic system between East and West found that by the mid-1980s the enlarged State sector and greater commitment to social welfare in Western economies and enhanced decentralization and recourse to economic accountability in socialist economies had reduced a distinction of principle to one of degree.⁴ The transition instituted in 1986 by Mikhail Sergeevich Gorbachev to a socialist market economy in the former Soviet Union reduced and mutated the elements of distinction all the more. The accession of the Russian Federation to the Council of Europe and the World Trade Organization required yet more changes in order to approximate domestic Russian legislation to the requirements of those entities. The partial disengagement noticeable from 2013 of Russia from European institutions and reorientation towards the Far East and Southeast Asia has not altered significantly the continued pursuit in Russia of further market-oriented law reform.

In the course of comparison much depends on what one considers to be important when asserting or dismissing claims for uniqueness. All modern legal systems experience continuous change of greater or lesser moment, but few claim to be in “transition” from one developmental stage to another or even have an awareness of being at a particular developmental stage. Soviet law, however, was claimed to be in constant transition, moving towards the creation of a socialist and eventually a communist society. Russian law today purports to be in transition while dismantling the legacy of the Soviet era. In this sense Soviet and post-Soviet law have been avowedly “transitional” since February 1917.

The Soviet law codes of the New Economic Policy (NEP) era (1921-1928) were modeled upon those of Germany, France, Switzerland, Austria, and the draft Russian codes under preparation in the twilight years of the Empire. In the NEP years the Soviet authorities pursued mixed economic and legal policies containing capitalist and socialist elements, both implemented in the legislation of those times. The more considered Soviet codifications of the 1960-1970s elevated the claims of uniqueness and novelty. Although certain codification statutes from the Soviet era remain in force, the codes in force in the Russian Federation from the Soviet era eventually were replaced; in some cases more than two decades were required for this to transpire.

The concept of “families of legal systems” is among the analytical categories extensively used in comparative law to differentiate legal systems, individually and collectively, from one another.⁵ Although this concept matured early in the twentieth century (in the writings of, inter alia, John Wigmore),⁶ it achieved popularity from the mid-twentieth century in the works of the French comparatist, René David (1906-1991). Because “families of legal systems” is an analytical concept, a kaleidoscope through which different facets of legal systems interplay and acquire different hues, a particular individual legal system may belong to two or more families of legal systems simultaneously.

The Russian science of comparative law – still greatly attracted by the concept of “families of legal systems”⁷ – is divided as to whether Russian law (and presumably other CIS legal systems) remains outside the Romano-Germanic legal family. Many see Russian law as falling within the category of “transitional” legal systems whose ultimate destination, for comparative law classification purposes, remains as undetermined as it is uncharted.⁸ General western studies of comparative law have not decided what to do with Russia. Karl Zweigert (1911-1996) and Hein Kötz deleted their chapter on socialist legal systems from recent editions. Some recognize that Russia and other CIS countries may become “hybrid” legal systems.⁹ Glenn saw “force” as the overriding characteristic of Soviet law and gave but the most cursory attention to Russia at all.¹⁰

One may ask why jurists in post-Soviet legal systems place such emphasis upon the classification of national legal systems into legal families. The answer lies in their conception of law as one of the social sciences. One purpose of the scientific method is to isolate, describe, and categorize living and non-living things according to their generic characteristics, determine what is similar and what differs, why, and what follows from such an analysis. Law is deemed to be no exception; as a phenomenon, it should be subject to the same standards of classification as any others. Thus commences the challenge.¹¹

A number of classifications exist, each of which emphasizes certain features of Russian law, legal history, and legal experience:¹²

Russian Legal System as Socialist. Insofar as Soviet law constituted a separate and distinct family of legal systems, Russian law was an integral part of that family during the period from approximately late 1917 until 1991. This view was universally accepted in Soviet legal doctrine. Given that some western comparatists did not regard Soviet law as something distinct from the Romano-Germanic legal family, they would have classified Russia as part of the Romano-Germanic family.

At one time thirteen countries with a total population exceeding two billion persons would have fallen into this family of legal systems; at present, five (or six) countries remain: Vietnam, China, Cuba, Laos, and North Korea, with Ethiopia considered by many to qualify.¹³ The collective population of these five States exceeds 1.6 billion persons. The fate of the other eight countries, insofar as the classification of legal systems is concerned, remains controversial. Some have joined or become associated with the European Union. Some fragmented into multi-States, and the Soviet Union itself dissolved into twelve independent States (the three Baltic countries seceded earlier). All have distanced themselves to some extent from the classical “socialist” model of legal system, but to varying extents.

Although comparatists share different views with regard to what the distinguishing indicia of a socialist legal system were/are with respect to Russia, the following would be singled out in the discussion:

(1)private ownership of the means of production leads to the exploitation of man by man and should be replaced by socialist, State, and social forms of ownership, usually achieved by the nationalization of private property and State predominance in the economy;

(2)capitalist anarchy in production and distribution relations is replaced by State economic planning and centralized distribution; five-year and one-year economic plans are issued in the form of a law;

(3)antagonistic class elements are eliminated or isolated through various means of legal discrimination (deprivation of some civil rights, class justice);

(4)the laboring masses comprise the people, and those who use hired labor for their personal enrichment do not fall within the concept of the “people”;

(5)class struggle is the driving force of historical change, and class enemies may take the form of exploiters or enemies of the people;

(6)members of the working proletariat are accorded certain advantages in comparison with the peasantry and intelligentsia, at least in principle;

(7)the Communist Party played the role of vanguard in the Soviet State and enjoyed a monopoly of political power;

(8)social (that is, non-State) organizations must be under Party direction; religious organizations may be tolerated, but were not encouraged and experienced various levels of persecution;

(9)Marxism-Leninism, sometimes augmented by the writings or doctrines of other local revolutionary leaders, operated as the official State and Party ideology;

(10)drawing upon the experience of the Paris Commune in the early 1870s, the foundation of the Soviet State system is the “soviets”, or councils, which acted as agencies of State power (as distinct from agencies of State administration);

(11)the separation of powers is recognized, but not the principle of checks-and-balances;

(12)the principle of democratic centralism within the State system means that medium-level and local soviets are subordinate to superior soviets, and the principle of dual subordination means that executive committees of soviets are subordinate to their own soviet and to their superior executive committee;

(13)courts at the lowest levels are elected directly by citizens and at the higher levels by the respective soviets. The principle that judges may not be removed is not recognized in socialist legal culture;

(14)the exercise of rights and freedoms is subject to the cause of achieving socialism or communism and to the leading role of the Party;

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