Abstract
A decade after the dismantling of the Union of Soviet Socialist Republics, Western specialists in Russian affairs and policymakers are divided as to whether an opportunity has been missed by the West to materially propel the CIS countries towards a rule-of-law, social State, a market economy, and a civil society. This is the same discipline which, at a large assembly in Switzerland held in 1988, predicted that the Soviet Union would last another 15–20 years and ultimately would self-destruct in a violent counter-revolution.
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1. For the case that Russia has been following this course, and largely succeeding albeit at a different pace than in Europe and North America, for some three centuries or more, see B. Mironov, Sotsial’naia istoriia Rossii perioda imperii (XVIII–nachalo XX v.), 2nd edn, St Petersburg, 2000, 2 vols. Translated by Boris Mironov with Ben Eklof, A Social History of Imperial Russia, 1700–1917, Boulder, CO, 2000, 2 vols. It is not clear that the American translation is necessarily of the second Russian edition as published.
4. See Stephen F. Cohen, Failed Crusade: America and the Tragedy of Post- Communist Russia, New York and London, 2000; P. Reddaway and D. Glinski, The Tragedy of Russia’s Reforms: Market Bolshevism Against Democracy, Washington DC, 2001.
5. For a cogent jurisprudential analysis of privatization, its consequences and proposals for readjusting those consequences, see V. S. Nersesiants, The Civilism Manifesto: The National Idea of Russia in the Historical Quest for Equality, Freedom, and Justness, London, 2000.
6. Translated in W. E. Butler and J. E. Henderson, Russian Legal Texts: The Foundations of a Rule-of-Law State and a Market Economy, The Hague, London and Boston, 1998, p. 7.
7. See H. J. Berman, ‘The rule of law and the law-based state (Rechtsstaat) with special reference to the Soviet Union’, in D. D. Barry (ed.), Toward the ‘Rule of Law’ in Russia? Political and Legal Reform in the Transition Period, White Plains, NY, 1992, p. 43. W. G. Wagner has preferred a phrase to translate the words: ‘a state governed by law’, which in its stunning ambiguity leaves unclear whether the State is subordinate to law or whether the State is one in which law governs. See W. G. Wagner, ‘Law and the state in Boris Mironov’s Sotsial’naia istoriia Rossii’, Slavic Review, 60(3), 2001, pp. 558–65 (p. 558).
8. I have addressed this issue on various occasions and draw upon those in preparing this Section of the article. See, in particular, W. E. Butler, ‘Towards the rule of law?’, in A. Brumberg (ed.), Chronicle of a Revolution: A Western-Soviet Inquiry into Perestroika, New York, 1990, pp. 72–89; ‘The rule of law and the legal system’, in S. White, A. Pravda and Z. Gitelman (eds), Developments in Soviet Politics, New York, 1990, pp. 104–05; Butler, ‘Perestroika and the rule of law’, in idem (ed.), Perestroika and the Rule of Law: Anglo-American and Soviet Perspectives, London, 1991, pp. 7–21; idem, Russian Law, Oxford, 1999, p. 79.
9. Berman, ‘The rule of law’, succinctly reviews the principal early German writings, suggesting that the term Rechtsstaat first appeared in 1829 in a work of Robert von Mohl, although the conceptual origins date back to ImmanualKant. Some would date the concept back to the twelfth century as a naturallaw doctrine. Which periodization is accepted depends largely upon whether one speaks of jus or lex.
10. S. A. Kotliarevskii, Pravovoe gosudarstvo i vneshniaia politika, Moscow, 1909, p. 338. Also see N. Khlebnikov, Pravo i gosudarstvo v ikh oboiudnykh otnosheniiakh, Moscow, 1874.
11. On the role of the Russian legal profession in reforms which led ultimately to constitutional monarchy in Russia, see R. Wortman, The Development of a Russian Legal Consciousness, New York, 1976. The rule of law, for which a legal consciousness is a prerequisite, was amongst the jurisprudential contributions to the forces at work.
The literature on the rule-of-law State in Russia has become substantial. For a good summary of the principal positions, see V. M. Boer et al., Pravovoe gosudarstvo: real ‘nost’, mechty, budushchee. 2nd edn, St Petersburg, 1999.
13. See V. A. Chetvernin (ed.) Konstitutsii Rossiiskoi Federatsii: Problemnyi kommentarii, Moscow, 1997, p. 41.
The reluctance of Russian jurists to face the issue squarely is well illustrated in the excellent study edited by I. I. Kal’naia (ed.) Grazhdanskoe obshchestvo: istoki i sovremennost’, St Petersburg, 2000. The authors, I. L. Chestnov and Iu. N. Volkov, lay down as a ‘cornerstone’ principle of the rule-of-law State the supremacy of jus, which, they say, includes two elements: (1) the formal aspect, supremacy of lex; and the substantive aspect, the conformity of lex to jus. After disposing of the first element, which comes down chiefly to compliance with the procedure for enacting lex, the second proves to be a damp squib: ‘the principle of the supremacy of jus is the requirement [s] for legislation, and above all, the procedure for working out normative legal acts’ (pp. 230, 234).
See Slovar’ russkogo iazyka XVIII veka, Leningrad, 1989, V, p. 214, citing Rassuzhdenie o nachale i osnovanii grazhdanskikh obshchezhitii, transl. from the French by A. F. Malinovskii, Moscow, 1787. The term also appeared in the Russian title of Adam Ferguson, Opyt istorii grazhdanskogo obshchestva, transl. I. Timkovskii, St Petersburg, 1817–18. 3 parts.
16. See D. Wartenweiler, Civil Society and Academic Debate in Russia 1905–1914, Oxford, 1999, p. 5.
Kal’naia, Grazhdanskoe obshchestvo.
Cohen, Failed Crusade, p. 23.
Cohen, Failed Crusade, p. 217.
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Butler, W.E. (2004). Law Reform and Civil Culture. In: Slater, W., Wilson, A. (eds) The Legacy of the Soviet Union. Palgrave Macmillan, London. https://doi.org/10.1057/9780230524408_9
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