Post Number 86 – 15 May 2013 – Economics As It Is Influenced By Morality As Well As The Rule-Of-Law

Posted on 15/05/2013 by

Contradictions are among the hardest of human experiences to reconcile with the rational reasoning that is a cornerstone in our continuing struggle towards enlightenment and self-perfection. Yet they are a veritable daily phenomenon as biologically we are, at bottom, but flawed creatures of emotion plus irrationality as opposed to idealized automatons or robots.

Notwithstanding George Steiner’s skepticism (No Passion Spent, Yale, 1996) about whether any creative giants have sprung forth from the American artistic, political, and social ongoing experiment, yet another Biblical mustard seed of wisdom was coined by the great Ralph Waldo Emerson in his 1847 essay–”Self Reliance:”  ”A foolish consistency is the hobgoblin of little minds.” Thus he stands foursquare in favor of fully acknowledging our frightfully frail human condition.

What ties the rational and irrational together are strands of sensibility in our human experience that we denominate as morality. John Mikhail at Georgetown Law School is a leading proponent of the “moral grammar hypothesis” viz., that ordinary individuals are intuitive lawyers, possessing tacit or unconscious knowledge of a rich variety of legal rules, concepts, and principles, along with a natural readiness to compute mental representations of human acts and omissions in legally cognizable terms see “Moral Grammar & Intuitive Jurisprudence: a formal model of unconscious moral & legal knowledge” (2008) http://ssrn.com/abstract=1163422.

Many of Leon Aron’s collected, translated, and collated quotations (Roads to the Temple, Yale, 2012) are concrete examples of just how Russian began to see, speak about, and act upon, for example, the “immoral” Soviet command economy that involved “chronic shortages of everything” (so declaimed by the leading economist and Gorbachev adviser, Leonid Abalkin [Novoe Vremya, 1987]), while other “industries” manufacture goods for which there was no demand, that which “nobody wants” (Vasily Selyunin, Novy mir, 1989 & Anatoly Strelyaniy, Znamya, 1986).

A even more ambitious project–more of the vein of Steiner’s “big ideas”–has been published under the auspices of the renown Higher School of Economics here in Russia and more specifically the discourse-heavy approach of the Center for Law & Economics which resides there (see The Rule-of-Law as a Factor in Economics [Мысль, 2013] http://lecs-center.hse.ru/images/lecs/verhovenstvo_prava-mysl.pdf). It is still early to have a sense as to what circulation it will achieve and what magnitude of debate plus discourse it will ultimately engender. That the ideas it contains merit much exposure is clear and it being available on the Internet as a freely downloadable PDF are two steps in the right direction.

It bears remembering that in The Theory of Moral Sentiments (1759), Adam Smith observed that sensory experience alone could not spur us toward sympathetic engagement with others: “Though our brother is upon the rack, as long as we ourselves are at our ease, our senses will never inform us of what he suffers.” Rather for Smith, what made us moral beings was the imaginative capacity to “place ourselves in his situation . . . and become in some measure the same person with him, and thence form some idea of his sensations, and even feel something which, though weaker in degree, is not altogether unlike them.”

But where things get sticky includes both the qualitative degrees of empathy that we individually feel towards the plight of others and the fuzziness that the rubric “rule-of-law” shares with its kindred values of what is fair, good, or just in a legal sense.

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Post Number 85 – 09 May 2013 – Can Russian Politics Be Deemed Grim With So Substantial A Discourse Being Afoot

Posted on 10/05/2013 by

A native-born Parisian, the polyglot and polymath Francis George Steiner of the sundry academic covens at Princeton, Cambridge, Geneva, and Oxford in his 1996 essay collection entitled No Passion Spent (Yale) quite meticulously critiques any pretension that anyone might seek to rationally claim in American history and experience for artistic, literary, or musical greatness–any individuals being genuine founts of great creativity (see specifically “The Archives of Eden,” pp. 266–303). Among his instances of devastatingly persuasive refutation and rebuttal to example after example of hopeful claims of persons meriting such of a status are Europeans who obviously do tower over these American “Lilliputians”–albeit a cadre of talent beside whom we, the great unwashed, can only cower and fawn. And among those eminent and brilliant Europeans there are a strikingly inordinate number who are Russian.

His provocative and utterly stunning exposition takes a remarkably ironic, profoundly bleak, and even black turn as he expounds quite convincingly that in an appalling number of cases the quintessential catalyst and crucible for the transformation of these European (including prominently Russian) authors, composers, painters, philosophers, playwrights, and sculptors of renown were authoritarian and repressive systems of putative political authorities in their home lands that grievously oppressed and literally murdered unknown millions of their own citizens.

I eschew the term “government” from the foregoing characterization and summary in a Pollyanna hope that the concept of “government” should exclude regimes responsible for such malfeasance, but I fear that the usage paradigm of the English language will rule my gesture as “out-of-bounds.” Again, ironically, it would require the conservative, ill-liberal philosophy of, for example, either the French or Russian languages in order to accommodate my hunger for a measure of semantic morality and principled justice.

But there is counterpoint in human behavior also at play – from the mid-18th century – as Georg Christoph Lichtenberg in his Sudelbücher wrote: “Schmierbuch Methode bestens zu empfehlen. Keine Wendung, keinen Ausdruck unaufgeschrieben zu lassen. Reichthum erwirbt man sich auch durch Ersparung der Pfennigs Wahrheiten.” (“The scribble-book method is most warmly to be recommended. To leave no idiom, no expression unwritten. We can acquire riches by saving up the penny truths, too”).

And in 1834, Ralph Waldo Emerson wrote in his Journals: “This Book is my Savings Bank. I grow richer because I have somewhere to deposit my earnings; and fractions are worth more to me because corresponding fractions are waiting here that shall be made integers by their addition.”

Much more recently, in the context of the modern Russian experience, there was in the period 1987-91 a spontaneous eruption of social discourse and debate that moved extraordinarily off of the used sheets of foolscap abandoned in locked desk drawers, out from the intense conversation around the traditional kitchen table but with the drapes firmly drawn, and into a remarkable torrent of new publications beginning with the tiniest of press runs, on to the pages of government sanctioned journals and newspapers, into conversations up and down the sidewalk of every street, all around (and not just in the nooks and crannies of) the work place, and soon those Russians, those speakers, those listeners, and those debaters were self-transformed into the creators of the post-Communist, post-Soviet world, into the decision-makers in new institutions of modern Russian political authority.

For the non-Russian speaker, those unable to read Russian, those without access to this trickle of newsprint that became a torrent and then became a veritable flood – it was only the media reports of the consequences that had any visibility and little explication was made of the volume of pent-up human discourse that was the impetus. Or was that all it was?

Leon R. Aron and his colleagues at the conservative think tank, the American Enterprise Institute, have spent an unimaginable number of hours collecting many of these truly disparate sources from what may genuinely be called the “hither and yon.” Then they painstakingly translated into English these nearly countless conversation threads, these trial balloons, these ineffably articulate and thoroughly well-reasoned critiques of institutional as well as human excesses and failures, these tangible records of vital social debate plus discourse that are then scrupulously digested and rewoven into a fair plus honest record of what Aron has entitled Roads to the Temple – truth, memory, ideas, and ideals in the making of the Russian revolution 1987-1991  (Yale, 2012).

Irony strikes yet again, in that there is a generation of Russians who are now adults who neither read nor heard that historic and rich debate plus discourse. Just as it is necessary as well as fitting for English speakers to be edified by the hard scholarship and labor of Professor Aron, there is a crying need for a Russian language version of this great account of the many gathering together their individual “penny truths” and thereby creating the opportunities of our shared brave new world.

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Post Number 84 – 20 April 2013 – In The Pursuit Of Legal Predictability & Certainty – Революицонные Постановления И Информационные Письма ВАС РФ 2012 Года

Posted on 04/05/2013 by

In the mid–20th century, Karl Nickerson Llewellyn, the famous University of Chicago law professor, the principal author of the American Uniform Commercial Code who also studied as well as taught law in Germany (cf., his The Case Law System in America [Chicago, 1989], which was originally published in German in 1929), observed of the common law that it is–

“what officials do about disputes” (Bramble Bush, 1930)

and that the role of lawyers requires the marshaling of a remarkable range of knowledge and talents in service of the private plus public interests of their clients.

Llewellyn’s characterization emphasized the common law’s perspective of there being a unique factual context to every legal problem wherein there is

(1) Identification made through analysis,

(2) Authentication according to the principles of psychological credibility and the rules of legal evidence,

(3) Argumentation using legal logic and rhetorical persuasion,

(4) Negotiation of the business variety as well as what transpires in a courtroom, and

(5) Final resolution reached through the parties’ proverbial “meeting of the minds” plus by the decision of a judge.

The recognition of the law as a profession lies in no small part upon the validity of notion of legal problems demanding from an advocate the intellectual mastery of a nearly infinitely faceted conundrum.

In the domain of the common law, the cornerstone of case law precedent significantly facilitates this process.

In civil law legal systems, with the absence of case law precedence, or at least it’s lesser weighting, the corpus of statutes is known to be more prolix in order to create greater factual specificity in that body of legislation. But less recognized is the role serving legal predictability and certainty by the civilian judiciary’s use of explanatory directives, guiding explanations («разьясрутие»), and advisory opinions.

These rubrics are three different translations of what is referred to in articles 126 and 125 of the federal constitution of a single aspect of the scope of the work and responsibilities of the Russian Supreme Court (article 126) and the Russian Supreme Arbitrazh Court (article 127) viz., the interpretation of legislation, irrespective of there being a concrete case or controversy.

Although I received my Russian LL.M. diploma in 2000 and have addressed countless Russian legal issues in my law practice before as well as since then, my forty-year-old common law mentality has caused me to give only infrequent or passing attention to this judicial element of the Russian civil law. This is a mistake and the impetus of this post is both my public mea culpa as well as my wider admonition to the legal community to pay heightened attention to these judicial postanoveleniya («постановления»).

My personal embarrassment has been ameliorated owing to the fact that these rather significant exercises of judicial prerogative and power are seemingly also under appreciated by the civilian advocates around me. I strongly infer this owing to the fact that the Supreme Arbitrazh Court devotes considerable resources not only to the preparation and issuance of such postanoveleniya («постановления») but it also utilizes its professional support staff to prepare and publish legal scholarship to publicize these promulgations («разьясрутие») as well as to make their existence more widely known by the Russian legal profession at large.

For example in late 2012, under the imprint of both Юрист Компании (www.lawyercom.ru) and Арбитражная Пракика (www.arbitr-praktika.ru) there was published a noteworthy (but uncopyrighted) compendium of articles entitled Революицонные Постановления И Информационные Письма ВАС РФ 2012 Года. These ten articles review and elaborate upon eight postanoveleniya («постановления») issued by the Supreme Arbitrazh Court’s Plenum and two information letters («информационые письма») issued by the Presidium. The Plenum is the entire membership of that court acting jointly, whereas the Presidium is limited to the chairman plus deputy chairman as well as the chairs of the inferior judicial divisions. Thus the varied terminology - explanatory directives, guiding explanations, and advisory opinions/ «разьясрутие»; «постановления»; «информационые письем» - is seemingly owing to evolving judicial practices including the differing sources of these norm-creating directives e.g., the Plenum versus the Presidium.

The ten topics, addressed and characterized as being “revolutionary,” are: on: the rеtroactive effect of court rulings in light of new or newly discovered circumstances; banking guarantees; the role of the procurator in Arbitrazh court proceedings; the removal of receivers in bankruptcy proceedings; the expulsion of members of a limited responsibility society; procedural issues arising during bankruptcy; changes in the assignment of responsibility in public and private violations of the law; suretyship; priorities in satisfying claims for court costs; various means for simplifying Arbitrazh procedures.

While it seems debatable whether these particular developments are truly “revolutionary,” there is no question about these elaborations of Arbitrazh court explanations being unusually lucid and instances of the judiciary taking great pains to insure that its directives cannot be misunderstood.

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Post Number 83 – 20 March 2013 – More About That Russian Constitutional Court Postanovleniya (Постановление) 4-П/2013’s Content

Posted on 20/03/2013 by

Treading upon what is metaphorically and politically incredibly thin “ice,” the Venice Commission has leapt, à la William James, in faithful adherence to the rule-of-law whose definition that everyone disputes and then in the same gasping breath disparages others–herein the Russian Constitutional Court–for putatively breaching.

Specifically, the Commission complains petulantly that not all of the concerns that it perceived were addressed by the majority. Of course, since the Commission was not a party to the proceedings, the Constitutional Court was under no obligation to address any of the Commission’s concerns. Blithely ignoring the sovereignty and separation of powers debates that are fierce as well as rampant in organs of the European Union and its member states, the Commission finds this advisory opinion to be “insufficient.”

Such hubris is intellectually as well as politically foolish when it is the passive virtues of judicial branches of government that are being simultaneously extolled in our highly complex mélange of state, multi-national, and international legal institutions that imperfectly seek to regulate individual, group, societal, and national inaction as well as actions transpiring upon our certainly very troubled planet cf., the British Academy report that looks at one example of this continuing sovereignty versus international human right controversy (http://www.britac.ac.uk/policy/Human-rights.cfm).

The nominally triple-A-rated rule-of-law regime of American federal courts don’t even do advisory opinions such that a challenge of similar laws, nota bene, such as have been enacted in New York and elsewhere in response to the “Occupy Wall Street” protests (http://occupywallst.org/) are not yet ripe for being contested in our court system!

Let us turn to this advisory opinion’s 146 pages (108 pages of which are the majority opinion plus some 15 specific directives) and extract at least the most important points addressed by that court. In issue were legislative amendments made by the Federal Zakon of 08 June 2012, № 65-ФЗ, to two different federal zakon viz., the Code of Administrative Violations and the law on that catalog of free speech activities i.e., “On gatherings, meetings, rallies, demonstrations, marches, and pickets.” The former is a compendium of lesser criminal offenses and may be found in Russian at the OSCE-ODIHR website (http://legislationline.org/ru/documents/section/criminal-codes).

The majority opinion is 98 pages long and divided into four numbered rubrics with numerous sub-parts that presumably derive from what the two complaining parties that initiated this proceeding posed as their claims.

The first numbered rubric (1.0-1.3, pp. 1-13) is a recital of the facts related to the two actions that the court joined together in this case (viz., the group of State Duma deputies who were in the minority when these amendments were enacted and “citizen” E. Savenko/ Limonov) as well as a recital of the articles of the federal constitutional zakon that governs how the Russian Constitutional Court operates (see generally, J. Henderson, The Constitution of the Russian Federation–A Contextual Analysis [Hart, 2011] 175-176, regarding the higher status of such zakon, the heightened regulation for their adoption, and this particular constitutional zakon).

The second numbered rubric (2.0-2.6, pp. 14-56) speaks to the broad principles underlying this controversy, the right to assemble publicly (article 31) and the governmental regulation of such gatherings appropriate in a democratic state (article 1). The complainants challenged the duty put upon protest organizers to take measures to prevent an exceedence of the numerical ceiling set as part of the permitting process. They argued that the liability of organizers for resulting property damages is one thing but being penalized for individual decisions made to attend was illogical. It bears noting that under this rubric among the norms that the Constitutional Court explicitly assessed were ones laid down in several contemporary decisions by the European Court of Human Rights because unlike the prevailing intellectual and political constipation of American courts, (a) foreign law is considered germane in Russian jurisprudence and, moreover, (b) as the adjudications of a body created by a treaty to which Russia is a signatory those ECtHR rulings are considered binding upon all Russian courts.

The third numbered rubric (3.0-3.4, pp. 57-87) discusses and evaluates the balancing of public gathering and free speech (article 29) rights with the value of public order and the civil as well as criminal liabilities of organizers established in the subject zakon, the specification of compulsory labor as one of the potential sanctions, the statute of limitations to apply, and the strict versus causality-based liability principles to apply regarding resulting damages.

The fourth numbered rubric (4.0-4.4, pp. 88-98) considers prior decisions of the court and its institutional role in the functioning of the Russian legal regime i.e., as regards the themes of obedience of the law and the separation of powers (this last is owing to a claim presented by State Duma members that that body’s regulations for how laws are to be enacted were not followed).

The court majority thereupon gave fifteen directives pertinent to this advisory opinion. In short, it found the legislation, Federal Zakon of 08 June 2012, № 65-ФЗ, to withstand the challenges made to its constitutionality albeit with several modifications plus with the requirement that the Federal Assembly reconsider and enact changes consistent with the majority’s constitutional interpretations.

The Venice Commission was not alone in its dissatisfaction with this case. A strong comment was made in Vedomosti (06 March, see Johnson’s Russia List 2013-#43, 08 March, (http://archive.constantcontact.com/fs053/1102820649387/archive/1102911694293.html) by Andrey Kolesnikov.

Most significantly, three members of the court–Judges Yaroslavtsev, Danilov, and Kazantsev–undertook and wrote 41 more pages of separate opinions at some variance from the judgments reached by the majority.

Thus notwithstanding many unknowns (including but not limited to the Russian Constitutional Court’s precedential practices vis-à-vis issues decided in a fact-free, advisory opinion context being revisited in subsequent fact-rich, live controversy) the criticisms made by this dissenting trio are meaty (e.g., repeating the procedural breach asserted by the Communist State Duma members about the niceties of the State Duma’s analog to Joseph Cannon’s “rules” see http://democrats.rules.house.gov/110/comm_history.html & http://www.gpo.gov/help/about_precedents_of_the_us_house_of_representatives.htm).

In the absence of more insight into and information about such non-trivial legal arguments and points (nota bene, adding the lack of access to the full particulars of what the original complainants pled), I stand by my initial “take” that this adjudication is a “positive and prudent” one that reflects well on the Russia legal regime. Of course, it is not perfect and naturally it is definitely amenable to absolutely rational plus reasonable critique. But,

it was a matter heard as a matter of discretion not mandate;

it was heard on an expedited basis without any compulsion;

it struck down at least some of the legal flaws and affirmatively returned the legislation to the Federal Assembly for remediation;

while everything cuts both ways, this result as well as timeline has clear pluses for the complaining parties and wannabe protestors.

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Post Number 82–17 March 2013–Russian Constitutional Court Postanovleniya (Постановление) 4-П/2013 Is Published

Posted on 20/03/2013 by

In our most amazing and wonderful world, despite the fact of our living in “glass houses,” there are daily manifestations of the immature, embarrassing, plus venerable habit of “rock-throwing” i.e., if we are lucky, of the verbal sort. Recently, the new U.S. Secretary of State, John Kerry, captured this human comedy with succinctness and accuracy while explaining his new role to an audience in Berlin, Germany. He stated that his job was to be a stalwart defender of the “America[n] … right to be stupid–if you want to be” (see http://www.youtube.com/watch?v=vx1GxPDIxs4).

In my Post Number 78 (15 February) the topic in this blog was a marathon public reading of a decision by the Russian Constitutional Court’s advisory opinion reviewing the Russian federal zakon of June 8, 2012 № 65-FZ that made changes, inter alia, the Russian federal zakon “On gatherings, meetings, rallies, demonstrations, marches, and pickets.” They just like the U.S. Supreme Court do not read, word-for-word, in public the entirety of their decisions. And for that matter, like other courts around the world (e.g., British as well as Russian), they do not us always release complete and final texts of their reasoning plus decision-making simultaneous with their public announcements. The final, 146-page text has now been posted on the Internet–Постановление Конституционного Суда Российской Федерации 4-П/2013 (http://www.ksrf.ru/ru/Decision/Pages/default.aspx).

There were and are many around the world, as well as here in Russia, closely following that adjudication of complaints brought by Communist members of the Russian State Duma as well as an out-spoken, right-wing, dissident writer (E.V. Savenko aka Eduard Limonov). These included the European Commission for Democracy through Law that is also known as the Venice Commission (http://www.venice.coe.int/webforms/events/).

As early as last autumn, the Venice Commission was among those criticizing those legislative changes as seeking to inhibit the Russian “winter” and “spring” of 2012 that saw public participation in demonstrations, human chains, marches, meetings, pickets, protests, and rallies that has not been seen for a very long time. Attention is surely necessary as well as merited to the quality of justice provided in every country, under every legal system, and pursuant to every legal regime.

A caveat is appropriate however that we–each and all–do not lose sight of the unfortunately limitations, defects, and even abuses that occur in our own metaphorical houses as well as those of our neighbors. Inconsistency in such diligence undermines not only our respective credibility but also the larger integrity of fairness, good faith, good will, transparency, in the larger scheme of things viz., the rest of the world.

As an American with an active license to practice law in California as well as before the U.S. Supreme Court, I am painfully conscious of the limitations, defects, and even abuses of the American legal system. For example, the Computer Fraud & Abuse Act (“CFAA”), 18 U.S. Code §1030, is a 1986 amendment made to the Counterfeit Access Device & Abuse Act (1984) that makes, whoever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer, if the conduct involved an interstate or foreign communication, subject to criminal punishment.

In 1996 the CFAA was, again, broadened by an amendment that replaced the term “federal interest computer” with the term “protected computer”18 U.S. Code §1030. While the CFAA is primarily a criminal law intended to reduce the instances of malicious interferences with computer systems and to address federal computer offenses, an amendment in 1994 allows civil actions to brought under the statute, as well. More perniciously, it has created a crime that rather clearly should be held void owing its overbreadth as well as its patent vagueness, allowed incredible abuse by federal prosecutors under the administrations of several presidents (including most recently the prosecution and suicide of the late Aaron Swartz), and yet still not had meaningful judicial review cf., United States v. Nosal, 676 F.3d 854 (9th Circuit, 2012) (en banc). When the second example can be encapsulated in a single word–Guantanamo–the negativity of the traction or even the absence of a place from which criticism might be ventured renders me largely speechless.

A close reading is in order and will be the crux of my subsequent post i.e., number 83.

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Post Number 81–05 March 2013–Continuing Legal Education Plus More Fits & Starts In The Pending Revision Of The Russian Civil Code

Posted on 08/03/2013 by

New developments in the law are something that lawyers everywhere think at lot about and seminars explaining their specific details are newsworthy events as well as good business opportunities viz., profits for presenters and occasions for substantial networking as well as learning for attendees.

On the 25th of February, the International Bar Association hosted a conference, in London at the Waldorf Hilton, on investment prospects in BRICS, where–of course–the “R” stands for Russia. On Wednesday, the 27th, the Moscow Times hosted one on conceptual changes in the Russian Civil Code, a major, multi-year project that at last count proposed over two thousand changes to modern Russia’s four-part “economic constitution,” in Moscow at the Swissôtel Krasnye Holmy.

The conceptual development of the Russian Civil Code is the subject of at least one substantial academic tome (A.L. Makovsky, О кодификации гражданского права [1922–2006], pp. 736, Статут, 2010). So the real impetus for the Moscow Times’ program was the fact that the comprehensive and lengthy legislative bill (Проект Федеральный Закон № 47538-6) from last year has been broken into numerous pieces with one very modest portion having been enacted into law (Федеральный Закон № 302-ФЗ, dated 30 December 2012) at the end of 2012.

The Moscow Times conference had, by-in-large, knowledgeable speakers with connections to the organs of State power directly involved in supporting and advancing the omnibus legislation that was originally put forward during the presidency of now prime minister Medvedev. Those governmental bodies include the Federal Intellectual Property Service, which administers Part IV of this Code that addresses intellectual property rights, plus the Private Law Research Center that operates under the Administration of the Russian President and has been a major ideas factory during the entirety of this historic Russian Civil Code project.

In the daylong Moscow event, of three lengthy Russian-language-only sessions, the speakers invited by the Moscow Times acknowledged that there was (and is still!) much lack of clarity about “what,” “when,” and “how” further legislative action may be taken. By way of illustration, in advertising this event the Moscow Times initially pitched that concrete legislative steps would be taken by the Duma in January. Later these advertisements were emended to state that these would occur in February. Those steps always were and continue to be beyond the control of the Moscow Times and now as we approach the middle of March, they are still eagerly waited for.

This explicitly muddled state of affairs very seriously compromised what the presenters could say about “what”–as of last year–were important, even critical, changes and additions to the Russian Civil Code. Further compromising their remarks was their presenting–for all but two of them–exclusively oral discourses in the style of traditional university lecturers who ignore 20th and 21st century lessons in modern communications but also the Roman Quintilian (who notably counseled that it is not enough that our communications be “possible … to understand …, but so that it is impossible … to misunderstand us”).

Many references were made to specific code sections and various important topics (e.g., the pledge and suretyship) to an audience of approximately one hundred and fifty Russian lawyers (note, I am formally qualified as a jurist with an LL.M. from the Institute of State & Law) whom listened attentively although with relatively few questions and with those that were asked being rather narrow. But for English speakers, with our twelve verb tenses, we are incredibly time conscious. Because of Russian’s more relaxed and ambiguous grammar, there was created an absolute miasma of “when” in “what” the speakers, with painful fuzziness, addressed.

The major available knowns include a Russian-English bilingual edition of the four-part Civil Code in four volumes (Infotropic, 2010), the State Duma’s pre-second reading 818 pages of changes from September 2012, and Federal Zakon № 302-ФЗ, dated 30 December 2012.

In now popular American verbiage, many now speak of “take-aways,” rather than conclusions. Because of the glacial pace of the State Duma, the Moscow Times’ February conference lacked clear and concrete information about not only “when” further Civil Code changes might be enacted but more fundamentally “what” substantive provisions were still being given consideration. For example, back in December there was a notable public debate had at RIA Novosti between Chairman Ivanov of the Supreme Arbitrazh Court and Andrey Goltsblat, principal partner of Goltsblat BLP, over fundamental changes then being proposed to the meaning of “good faith” in the Russian law of obligations, including contracts.

Most of the attending lawyers in February were out-of-character from their usually piranha-like demeanor of ferociously questioning everyone and everything. That behavioral characteristic is owing to the fact that the quality of justice that a lawyer can achieve for his or her client is in direct proportion to the factual veracity and clarity of the information that he or she can bring to the table.

On March 22nd, the Moscow Times promises to return to this topic as part of its Legal Forum 2013, again at the Swissôtel Krasnye Holmy. With additional attention to its compilation and presentation of the “devilish details” of this extraordinarily important revision of the Russian Civil Code plus some greater probing of State Duma sources, hopefully we all may receive a much more lucid and substantial report upon the legislative reforms that are still under consideration and likely to be enacted into law.

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Post Number 80–27 February 2013–Of Morality & The Complementary Legal Perspectives Of Valery Zorkin & Ronald Dworkin

Posted on 02/03/2013 by

If many common law thinkers have disparaged the relevance of morals to the law, dissenting voices have never been silent. Harvard Law School’s Lon Fuller was the foil for the Oxford law faculty’s Herbert Hart in their famous 1958 debate see generally (http://www.law.nyu.edu/conferences/hartfuller/readings/index.htm).

Hart’s eminent successor, Ronald Dworkin, recently passed away in London but he left behind a prodigious volume of scholarship (e.g., most recently Justice for Hedgehogs [Harvard, 2010] & http://www.nybooks.com/articles/archives/2011/feb/10/what-good-life/) arguing from the camp of Fuller (e.g., The Morality of Law [2nd revised edition, Yale, 1969]) and his protegé, John Finnis (e.g., Natural Law & Natural Rights [Oxford, 1980] recently translated into Russian under the imprint of the Fund for the Mission of Liberalism, http://www.liberal.ru/ as Естественное Право и Естественные Права) among others.

Quite prominent among the “others” is the longstanding chairman of the Russian Constitutional Court, Valery Dmitrievich Zorkin and the International Bar Association (see http://www.ibanet.org/).

In September of 2005 the governing council of the IBA found cause to consider threats to the rule of law and adopted a resolution (see http://www.ibanet.org/PPID/Constituent/Rule_of_Law_Action_Group/Overview.aspx#Publication). That resolution lead directly to follow-up activities also involving, among others, the American Bar Association (see http://www.ibanet.org/PPID/Constituent/Rule_of_Law_Action_Group/Default.aspx).

Ultimately, it lead to a seminal volume, Rule Of Law Perspectives From Around The Globe (LexisNexis, 2009), which included a notable contribution by Chairman Zorkin (chapter 7) entitled “Legal Awareness & The Rule of Law.” Specifically, he wrote about the morality of the law that:

“Steps such as the adoption of liberal laws, legislative acknowledgement of common principles and norms of international law, and the creation of corresponding state and public institutions are not enough for the real Rule of Law. It is also important that our statutes express the essence of law as mankind understand it at each particular stage of its development. As the great philosopher Spinoza once said, law is the mathematics of freedom.

“Law cannot be simply what is dictated by political authority or issued by the state. In the 20th century, there were two examples of legal tragedies that developed in parallel. One was totalitarian Soviet Communism, and the other German Nazism. In the USSR, following the logic of the Stalinist regime’s theoretician, Vyshinsky, the law was limited to statutory law, and this was identified with the will (or rather the dictatorship) of the proletariat. Through such logic, whatever was prescribed by the state in the form of statutory law was lawful.

“Hitler followed a different ideological pathway, absolutely antagonistic to communist ideology, but with the same result. In Nazi Germany, the law the expression of the will of the German nation, and the will of the German nation was incorporated in the Fuhrer. Again, the law existed only as a body of statutory laws.

“Both systems made possible the killing of millions of people, because in both the law was given and contained only in statutes.”

[Caveat, of course, I am being selective choosing what to quote by Zorkin as well as from Dworkin but my point is to provoke and inform as opposed to proffering the definitive disquisition upon this extraordinarily important theme and these remarkable men.]

In Dworkin’s Justice for Hedgehogs, he plays upon the fragmentary aphorism of Archilochus: “The fox knows many things, but the hedgehog knows one big thing” see Archilochus’ fragment 201 in M.L. West (editor), Iambi et Elegi Graeci, volume 1 (Oxford, 1971) & I. Berlin, The Hedgehog & the Fox: an essay on Tolstoy’s view of history (Weidenfield, 1953). For Dworkin, the “one big thing” is the truth about living well or how the good life is an indivisible dignity.

“Here is the orthodox picture. ‘Law’ and ‘morals’ describe different collections of norms. The differences are deep and important. Law belongs to a particular community. Morality does not: it consists of a set of standards or norms that have imperative force for everyone. Law is, at least for the most part, made by human beings through contingent decisions and practices of different sorts. * * *

“There is a fatal flaw in the two-systems picture. Once we take law and morality to compose separate systems of norms, there is no neutral standpoint from which the connections between these supposedly separate systems can be adjudicated. Where shall be turn for an answer to the question whether positivism or interpretivism is a more accurate or otherwise better account of how the two systems relate? Is this a moral question or a legal question? Either choice yields a circular argument with much too short a radius. * * *

“[I]n Coke’s time, the idea that individuals have rights as trumps over collective goods–natural rights–was widely accepted.  In the nineteenth century a different political morality was rampant. Jeremy Bentham declared natural rights nonsense on stilts, and lawyers of that opinion created the idea of absolute parliamentary sovereignty. Now the wheel is turning again: utilitarianism is giving way once again to a recognition of individual rights, now called human rights, and parliamentary sovereignty is no longer evidently just. * * *

“We must . . . make . . . law what our sense of justice would approve, not because we must sometimes compromise law with morality, but because that is exactly what the law, properly understood, itself requires.”

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Post Number 79–23 February 2013–The Dissemination Of Russian Legal Scholarship–Going It Alone Like Individualistic Americans

Posted on 24/02/2013 by

Bowling Alone (Simon & Schuster) is an highly empirical and widely discussed work by Harvard professor Robert Putnam that details how Americans have become increasingly disconnected from family, friends, neighbors, and their democratic community plus governmental structures. The underlying metaphor and irony in the title of this book by the Kennedy School of Government dean is the conceptual contradiction inherent in the act of bowling alone. Individualistic extremism by Americans is a behavior that the years intervening since this book’s publication in 2000 have seemingly not attenuated see http://www.hks.harvard.edu/ocpa/pdf/still%20bowling%20alone.pdf.

In Post Number 76, supra (09 February 2013), a thread was begun around how access to knowledge (A2K) is being revolutionized by authors, scholars, scientists, and other writers posting drafts of their creations and research on the Internet and in particular their doing so at knowledge aggregators such as the principally English language web sites http://arxiv.org/, http://lsolum.typepad.com/, and http://papers.ssrn.com.

The Russian web sites that were noted were (http://www.hse.ru/, http://www.hse.ru/en/ls), & http://bookfi.org/s/. Two that I neglected to mention but did, in fact, know of were my alma mater, the Institute of State & Law, Russian Academy of Sciences (http://www.igpran.ru/ & http://www.igpran.ru/articles/) and the Center for Legal & Economic Studies (http://lecs-center.hse.ru/) that is affiliated with both the Higher School of Economics and the Institute of Contemporary Development.

At (http://lecs-center.hse.ru/index.php?option=com_content&view=article&id=63&Itemid=30&lang=en) the CL&ES has available for downloading numerous of its publications including, for example, The Rule of Law in Russia: Issues of Implementation, Enforcement, & Practice, a 2010 English translation of that 2009 monograph in Russian, Верховенство права и проблемы его обеспечения в правоприменительной практике.

In an act of classic British understatement–since that first posting the CL&ES has both published and posted for free on the Internet (albeit at a not readily “findable” web site) an extremely important compendium of writings (at this point in Russian only) regarding the theme of the widely-bantered and diversely conceived rule-of-law as a factor in the economics see Верховенство права как фактор экономики that is available for being downloaded as a PDF at (http://lecs-center.hse.ru/images/lecs/verhovenstvo_prava-mysl.pdf).

For the purposes of the present post, among numerous notable aspects of this tome is the fact of its being given away for free (nota bene: at an URL unlikely to be “findable” by Google, Bing, or Yandex search algorithms). Given the potential for the contents of this weighty and meaty compendium to further the public discourse in contemporary Russia, the absence on the Internet of a simple Russian legal scholarship aggregator is very much to be lamented.

 

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Post Number 78–15 February 2013–A Russian Constitutional Court Postanovleniya (Постановление) Of Positive & Prudent Principles

Posted on 16/02/2013 by

For those residing in the metaphorical “box” of the common law, advisory judicial opinions are a rarity, if not something forbidden. In the sphere of the civil law, they are much a more frequent practice and even run-of-the-mill events e.g., proposed as well as freshly enacted legislation gets scrutinized, validated, or as here significantly rebuffed.

By “here,” I refer to the four-hour public disquisition by the 19 judges (article 125[1] of the Russian Constitution; http://www.constitution.ru/en/10003000-01.htm) of the Russian Constitutional Court when on Thursday, 14 February 2013, they upheld the values of free public gatherings, marches, meetings, speech, and walks (see my Post Number 24 [24 May 2012] & Post Number 26 [28 May 2012]) that have been subject to heightened civil and criminal restraints by a majority in the State Duma and the Federation Council with the signature of President Vladimir Vladimirovich Putin see, (http://rg.ru/2013/02/14/mitingi-site.html) & (http://www.ksrf.ru/ru/News/Pages/ViewItem.aspx?ParamId=3074). The written exposition of the text will take yet some time to be finalized and published but the foregoing accounts manifest, at a minimum, are a fencing-like “parry,” if not affirmative evidence contrary, to a significant portion of the fatalist despair trumpeted in the Western press.

Not only have many heightened fines and penalties been overruled but this has been accomplished in a short timeframe that the American constitutional “case and controversy” prerequisite could not even begin to satisfy. That is as the Russian winter wanes and spring beckons the legal impediments to renewed public gatherings, marches, meetings, speech, and walks have just been greatly reduced.

It is noteworthy that this important challenge was brought by 102 dissenting members of the State Duma as well as the out-spoken nationalist author Eduard Veniaminovich Savenko who writes under the pseudonymous family name of Limonov (see http://limonov-eduard.livejournal.com/). One wishes for many more particulars as well as the text but we shall just have to wait cf., the decision of the Supreme Arbitrazh Court discussed in Post Number 73 (28 January 2013) was announced 19 June but only published in full at the beginning of September 2012.

Thanks to the coverage in the Rossiskaya Gazeta, the publication for the giving of both official notice of and legal effect to acts of the Russian State, at present we know, inter alia, that–it was Communist Party legislators who were significant players along with Limonov in this litigation and there was a veritable Gordian’s Knot of enactments plus issues subjected to dissection and adjudication e.g., the latter included not only the constitutionality of several specific provisions relating to the freedom of assembly [article 31 of the Russian Constitution] but also the propriety and interpretation of the exorbitant fines, plus the classic free speech conundrum of “where” it may be “exercised.”

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Post Number 77–14 February 2013–The Obedience & Participation Choices In The Russian Legal Game Of More Than “Carrots & Sticks” («Кнута и Пряника»)–Remembering Montesquieu

Posted on 14/02/2013 by

Among the petty annoyances in modern Moscow life are the crowds of individuals scrambling their separate ways forward to get on to an escalator going up or down in the labyrinth of its large Metro system. Then there are the sliding doors that regulate entry to and exit from the subway cars (or «вагоны» as they are referred to in Russian) with riders regularly blocking the exit doors despite their having absolutely no intention of getting out for several more stops but standing there because it is more convenient for them rather than pressing their way into the wagon and out-of-the-way of those passengers seeking immediate egress.

To the best of my knowledge, there are neither statutes nor regulations providing punishments for the many discourtesies practiced by my fellow Muscovites but the prevailing contrast found in the civilized queues of the United Kingdom are heavenly in comparison. In ironic compensation for such impoliteness, Muscovites are positively gushing in their attentiveness to parents with children, passengers with bags, and seniors in terms of giving up their seats. Not only do men and boys exhibit this kind of human thoughtfulness but so do girls and young women.

The Muscovites who do not cut into the lines for the subway’s escalators, who stand clear of the doors so that other passengers may freely exit and enter, and who graciously rise to free a place to sit for others–are manifesting a third dimension of the legal systems that bind us all into human society as opposed to a mob of selfish individuals. In legal parlance, this is the dimension of cooperation, duty, obedience («послушание» & «повиновение»), obligation, participation («участие» & «долевой»), and responsibilities that has been problematic throughout world history.

In the first dimension, it is the State (in civil law verbiage) that is the source of most of the legislation regulating our actions and the popular media is always full of the latest debates about legislating this rule or that standard. These are legal norms directing us about what to do, what to refrain from, and also how plus when to do many things.

With such a framework in place, there is then the second dimension; this is task of the State’s enforcement of its legal regime. The State imposes not only sanctions but also employs incentives to enforce as well as encourage lawful behavior. It is at this most rudimentary level that an economic view of the law initially comes to mind. Carrots and sticks are like the benefits and costs considered in basic economic analysis.

The third dimension is the domain of cooperation, duty, obedience, obligation, participation, and responsibilities that calls to mind these requisites that transcend what is formally legal and encompass what is good as well as right. But even in English, and in common law jurisprudence, we immediately face a semantic breakdown in that what is “right” in a given factual and legal context is not the same thing as what someone’s “rights” are in that same context. And in the Russian language and the Russian civil law legal game further complications and nuances arise.

What is “right” in a given factual and legal context departs from the exclusively logical and crosses into the non-quantitative realm of morality, which is one where reasonable people reach different conclusions regularly. It is where despite the “science” appellation of civil law requires the application of “fuzzy logic,” if not a wholesale abandonment of “logical claims.”

Most fundamentally the wisdom of Montesquieu’s choice of the word “applied” rather than “enforced” is, in my view, soundly validated (see Post Number Eight [23 March 2012]) as enforcement is one-sided (i.e., done by the State) whereas application (like implementation) is multi-sided (i.e., involving the responsibilities of the individual, of society, as well as of the State).

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Post Number 76 – 09 February 2013 – The Legal Scholarship Gap Between Russia & The West

Posted on 08/02/2013 by

On the 7th of February, Georgetown University law professor Larry Solum posted on his invaluable web log, Legal Theory (http://lsolum.typepad.com/), a sort of “black swan” i.e., an example of contemporary Russian scholarship that is disappointingly rare to be able to find on the Internet. The article is hosted on the Social Science Research Network servers (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209809) but there is–surprisingly–no counterpart Russian server that hosts scholarship on other than an institutional- or author-specific basis, see e.g., (http://ilpp.ru/), (http://ilpp.ru/page_pid_175_lang_1.aspx), (http://royallib.ru/), & (http://reeed.ru/lib/authors/fedor_mihailovich_dostoevskii/.

The paper, by associate professor Mikhail Antonov from the St. Petersburg campus of the well-regarded Higher School of Economics (http://www.hse.ru/ & http://www.hse.ru/en/ls), is entitled “Global Legal Pluralism: A New Way Of Legal Thinking” and is disappointingly thin on example Russian cases, laws, or thinkers. Rather more substantive and illuminating, albeit hidden deep in the bowels of the HSE website, is his article “Theoretical Issues of Sovereignty in Russia and Russian Law” from the Review of Central & East European Law 37 (2012) 95-113.

The SSRN e-library is co-hosted by the University of Chicago Booth School of Business, the European Corporate Governance Institute, Korea University, and the Stanford Law School. Its two hundred thousand plus contributor-authors operate under the principles of disseminating ideas and fostering discourse to yet further advance human knowledge. In the sphere of the social sciences It is sub-divided, currently, into some 23 topical networks and is about to add its first network where the contributions will be in a non-English language, Hebrew.

An even older and larger scholarship network on hard science subjects is arXiv.org that is administered now under the auspices of Cornell University Library (http://arxiv.org/).

The prevailing mores of modern Russian society, like much of Europe is far more permissive in the sharing of digital files of works under legal copyright than America, see e.g., (http://bookfi.org/s/). On the one hand, this website claims to have readily accessible holdings of over one million, two hundred thousand works, including some with 2012 publication dates; on the other hand, they are searchable only by title or author and are published books as opposed to research in progress.

The world of public discourse, especially legal discourse, is terribly fragmented which greatly impedes the possibilities for much-needed intellectual as well as social progress!

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Post Number 75–07 February 2013–Reading_Считывание_Чтение Russian “Tea Leaves” About The Prospects For Russian Legal Change & Development

Posted on 07/02/2013 by

To judge from changes to and developments in Russia’s dynamic capital, Moscow/Москва, as a harbinger of Russia’s future, which perspective has been critiqued for literally centuries, the sources for making inferences and surmises about the future prospects for Russian legal change and development now decidedly include Starbucks’ “coffee grounds” as well as the long proverbial “tea leaves” that for centuries have come here from venerable and exotic Chinese and India tea plantations. Of course, whether such physical detritus or astrological charts are any better suited for the task of prognostication/прогнозирование, is fundamentally dubious/сомнительный for those of a rational bent such as my own.

The prevalence of a globalized marketplace as manifested by companies like British Petroleum, Glenfiddich, Ikea, MacDonalds, or Starbucks; gaudy commercial “eye-sores” such as billboards and strip malls; the presence of consumer product minutia including McIlhenny’s “Tabasco Sauce” in small bottles imported direct from Avery Island, Louisiana–can, in fact, leave a denizen/обитатель/житель of Moscow in some despair for a life of authenticity/подлинность/достоверность/аутентичность as opposed to pasteurization.

Colin Brooks, a notable 20th century British journalist, commented in the forward to his The Economics Of Human Happiness (Routledge, 1933; p. xiii):

“There is an old Lancashire proverb to the effect that “‘changes are likesome, and fools like ‘em’” and it is not easy to persuade a voting citizen to apply to a proposed change [William Lamb, 2nd Viscount] Melbourne’s test [1816] of ‘why not leave it alone?’ It is less easy to obtain the repeal of restrictive laws.”

This observation of human nature bookends neatly with the great Montesquieu’s deep insight about the tragic societal failure to implementing laws, especially the “good” ones, see Post Number Eight (23 March 2012).

The biggest modern Russian legislative project has surely been its Civil Code that, although conceptually complete in four large parts, has been undergoing a major revision principally under the aegis of former President and current Prime Minster Dmitry Medvedev see prior Posts Numbers 12, 13, 15, 21-23, 25, 43-46, 49, 56-58, 63-67, and 70.

With President Putin’s signing of Федеральный Закон от 30.12.2012 N 302-ФЗ see http://kremlin.ru/acts/17292 & http://graph.document.kremlin.ru/page.aspx?1;1646819, a very modest portion of the originally planned revisions of plus additions to the Russian Civil Code have been enacted into law. And so where will things go from here?

Illumination from the State Duma’s website is dim and difficult to fathom. The brightest indication of what further legislative action may be expected in found in an advertisement by the Moscow Times of a pricy conference, scheduled for 27 February, entitled “The Civil Code in 2013: Conceptual Changes,” see (http://www.themoscowtimes.com/conferences/eng/event/473695.html).

Although, the paucity of “free lunches” is a fact of life in modern Russia but there are occasional aberrations such as the lengthy public forum on the Civil Code held last August under the auspices of the Ministry for Economic Development and included the publishing house Infotropic with its legal magazine “Legal Insight.” They gave a stellar cast of participants, including Professor Makovsky, discussing the particulars of the hundreds of proposed changes and additions to the Russian Civil Code and was free of charge (see Post Number 42, 22 August 2012).

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Post Number 74–02 February 2013–Russian Law & Morals In Contrast To The Domain Of The Common Law & Numerous Western Societies

Posted on 03/02/2013 by

The much-repeated claim in common law and numerous Western societies that the law and morals are separate–inter alia, creates confusion within those jurisdictions and communities (e.g., because adherents of natural law theories hold diametrically contrary premises) and invites confusion when comparisons are made of common and civil legal regimes (e.g., because in civil law jurisprudence there is no such dichotomy drawn).

Those who study Russia’s legal culture observe that it has deep roots in morality and religion. Lev Nikolaevich Tolstoy, for example, was not alone in the view that the grounding for the functioning of Russian society was not in law but in Christian love. Tsar Nicholas the 1st, wrote that “The best theory of law is good morality, which should be in the heart regardless of these abstractions, and have religion as its foundation.” T.A. Kapustina, “Nicholas I,” in A.A. Iskenderov & D.J. Raleigh (editors) The Emperors & Empresses of Russia. Rediscovering the Romanovs (ME Sharpe, 1996) at p. 262.

There were many Russian voices whose exact delineation are well beyond the scope of a blog post but two prominent thinkers were Leon Petrazhitsky, law professor at Saint Petersburg University and Vladimir Soloviev, a philosopher and confidant of Fyodor Mikhailovich Dostoyevsky who also was from that educational institution albeit one he resigned from under pressure from his critics see “Jurisprudence of Leon Petrazhitsky,” by R. Saduska, 32 American Journal of Jurisprudence 63 (1987) & Soloviev, Politics, Law, Morality (edited by V. Wozniuk & translated by G. Morson, Yale, 2000).

In The Justification of the Good, Soloviev wrote:

“The common good must, in one way or another, be the good of this individual also. But if it deprives him of existence and of the possibility of free action that is, of the possibility of any good at all it ceases to be a good for him; it itself then becomes merely a private interest, and therefore loses its right to limit personal liberty.

“With reference to this point, too, we see that the demands of morality entirely coincide with the essence of legal justice. Speaking generally, although legal justice in exercising compulsion to secure the minimum of good differs from morality in the strict sense, yet in its exercise of compulsion it observes the demands of morality, and must on no account conflict with it. If, therefore, some positive law is opposed to the moral consciousness of the good, we may be a priori certain that it does not satisfy the essential demands of justice either. So far as such laws are concerned, it is not in the interests of justice that they should be retained, but that they should be lawfully repealed.” Оправдание добра, An Essay on Moral Philosophy (translated by N. Duddington, Constable, 1918) at p. 380; (http://ia600409.us.archive.org/28/items/thejustification00solouoft/thejustification00solouoft_bw.pdf); (http://www.vehi.net/soloviev/oprav/index.html).

And so the notions of Russian Constitutional Court chairman Valeriy Zorkin about the union of law and morality in Russian jurisprudence have yet additional grounding to that earlier noted in the Russian jurist and political philosopher Boris Nikolaevich Chicherin (see Post 19, 12 May 2012).

In his Rossiyskaya Gazeta (10 December 2012; http://www.rg.ru/2012/12/10/zorkin-site.html) retort to Aron and Gorbachev, Zorkin emphatically warns of the hazard of social “chaos” (see Post Number 72, 22 January 2013). He consequently clearly makes an admonition that now is a time for “self-restraint.” Less clear is who it is the good chairman considers to be unrestrained–Aron in his reportage, those citizens who publicly protested the patent abuses in the Duma elections in the December 2011 and their follow-up public gatherings, Gorbachev’s efforts at glasnost and perestroika, Yeltsin’s response to the so-called “putsch” in the autumn of 1993, or all of the foregoing?

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Post Number 73–28 January 2013–“Shoe-Dropping” & Incremental Legal Progress On A Case-Specific Basis

Posted on 28/01/2013 by

Whether the subject is weather-prediction or political prognostication or chemical analysis, having empirical data points is critical to acquiring even an approximate notion of where things are heading, much less where they instantaneously are at. The second item in that that short catalog includes the genuine “wild-card” posed when there is an human factor. Which is in significant part why the common law largely eschews scientific pretensions and, as Associate Justice Holmes so famously expressed it, pursues life and truth as seen though the “scope” of experience rather than logic.

This reality also results in the paucity of consistency in procedural as well as substantive rules across legal and political systems.

In Post Number 50 (24 September 2012), a brightly dangling question was presented regarding how Russia, its civil law legal system, and its judiciary would respond to public and private market forces pressing upon it and coming especially from common law jurisdictions. A gauntlet had been verbally thrown down at the Second International Legal Forum in St. Petersburg in May see Post Number 23 (22 May 2012). Further words, if not actions, were anticipated at the Moscow gathering of the ABA international law section see again Post 50 (24 September 2012).

Looking at what the Supreme Arbitrazh Court, in fact, decided during the summer and autumn of 2012 has prompted several international law firms and the London Financial Times to identify a June 2012 decision that was only published in September as fitting with the criticism expressed and action promised at the St. Petersburg forum by that court’s Chairman Anton Aleksandrovich Ivanov see (http://www.lexology.com/library/detail.aspx?g=074fd770-6f54-4680-8b1d-6f713ceebef5) & (http://www.ft.com/cms/s/0/64459c78-3eec-11e2-87bc-00144feabdc0.html).

In the legal dispute between Sony Ericsson Mobile Communications Rus LLC and the Russian Telephone Company, a постановление (decision, decree, opinion, resolution; see Post Number Three [12 February 2012]) was published on behalf of the presidium on 01 September 2012, albeit dated 19 June 2012– (http://arbitrations.ru/userfiles/file/Case%20Law/Enforcement/Sony_Ericsson_Russian_Telephone_Company_Supreme_Court.pdf). An English translation may be found at (http://arbitrations.ru/userfiles/file/Case%20Law/Enforcement/Sony_Ericsson_Russian_Telephone_Company_Supreme_Court%20eng.pdf).

The dispute involves a complex international financing agreement including a clause giving one party an unilateral legal right to choose the venue for litigation to recover amounts that are due and owing. In the real world, which so regularly confounds fiction, the validity of the very same kind of clauses have been reviewed by the French Cour de Cassation and found wanting.

The presidium took into account justice as fairness in commercial transactions as well as judicial processes including, for example, the 1950 European Convention for the Protection of Human Rights plus several decisions of the European Court of Human Rights interpreting as well as applying it.

The denouement has not yet been played-out in the case at hand but Chairman Ivanov and the Russian Supreme Arbitrazh Court would seem to be following-up on their earlier expressed concerns about the nominal over-reach of other legal regimes on the sovereignty of the Russia in a rather considered, reasoned, and thoughtful manner.

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Post Number 72–22 January 2013–A Notable Contest Of More Than Mere Words In Heady Company–Leon Aron, Valeriy Zorkin, & Mikhail Gorbachev–About The Place Of Morality In Political Deeds & In Russian Law

Posted on 22/01/2013 by

It is well established that significant confusion arises owing to the differences in language and vocabulary between the languages used in various places and societies. This is without taking into consideration the different perspectives associated with common law versus civil legal systems. Even less appreciated is the semantic disconnection that exists between the common and civil law legal systems because of their distinctly different conceptions of the place of morality in the law see especially, H.L.A. Hart, “Positivism & the Separation of Law & Morals,” 71 Harvard L. Rev. 593 (1958) & The Concept of Law (various editions), chapter IX, “Law & Morals.”

Still discourse remains an absolute imperative in the life of nations as well as of individuals plus in legal regimes cf., A.M. Froomkin, “Habermas@Discourse.Net: Toward A Critical Theory Of Cyberspace,” 116 Harvard L.Rev. 749 (2003) whose pertinent points include that “Habermas has also suggested that the forces needed to push public decision-making in the directions advocated by his philosophy are likely to come from a re-energized, activist, engaged citizenry working together to create new small-scale communicative associative institutions that over time either merge into larger ones or at least join forces,” at p. 753.

In the German philosopher Jurgen Habermas’ program of social theory, “[s]ocial order rests on meaning and validity, and on the integrity of a life-world maintained by communication and discourse. It also rests to a degree on the integrating force of instrumental and strategic actions within systems such as markets and administrations. Shared meanings, understandings, and reasons hold society together, along with organized systems of instrumental rationality.” J.G. Finlayson, Habermas: A Very Short Introduction, p. 140 (Oxford, 2005).

An extremely provocative debate is now underway between the American Enterprise Institute scholar Leon Aron, Russian Constitutional Court chairman Valeriy Zorkin, and former USSR general secretary and president Mikhail Gorbachev. It poses numerous striking examples as well as challenges to the participants plus we who diligently follow it.

More specifically, in June, Yale published Aron’s Roads to the Temple that recapitulates in detail his personal experience as well as his careful rereading of the contemporary Russian language accounts of the complex of events surrounding Gorbachev’s experiment with glasnost and the rapid, if largely unanticipated, demise of the USSR.

Then in November, the AEI publish a nine-page screed, supposedly distilling Aron’s book see  (http://www.aei.org/outlook/foreign-and-defense-policy/regional/europe/for-dignity-in-democratic-citizenship-russias-unfinished-moral-revolution-and-anti-authoritarian-movements-today/). This got reprinted in at least part in Nezavisimaya Gazeta that Russian Constitutional Court chairman Valeriy Zorkin reacted critically to. Zorkin’s article was entitled “There Is No Morality in Chaos,” which was printed in Rossiyskaya Gazeta.

Because Zorkin’s criticism included the deeds or more specifically the nominal inaction of former USSR President Mikhail Gorbachev, Mikhail Sergeyevich also took pen in hand and was published in the Nezavisimaya Gazeta issue of 26 December. Therein Gorbachev reacted to both articles although principally addressing the Russian Constitutional Court chairman. He wrote:

“Esteemed Valeriy Dmitriyevich!

“I laid eyes on your article published in Rossiyskaya Gazeta (11 December 2012) under the headline ‘There Is No Morality in Chaos’ somewhat belatedly. I will not disguise that many things in the text surprised me precisely because they belong to the chairman of the Russian Constitutional Court and was presented in our governmental newspaper.

“Polemicizing with the highly subjective opinions of the American political scientist L. Aron ‘on the moral and personality choice during the construction of the Russian state’ (Nezavisimaya Gazeta dated 28 November 2012), you ascribe, absolutely without foundation and in defiance of generally known historical facts, to Gorbachev’s ‘perestroika’ the absence of a positive moral content. And you ‘indict’ it as ‘a time of troubles;’ as chaos, in which there is no morality.

“As if the first free alternative elections in many decades of Russian history in 1989 and 1990 had never been. Did the glasnost, which allowed people to freely say what they thought, never happen?

“Was wide access not opened for citizens to information, to all the riches of Russian and world literature? Did the freedom of citizens to leave the Motherland and return to it really never appear? And what of the law on freedom of conscience and religious organizations, and the return of places of worship to believers? What about the open and extensive celebration of the 1,000th anniversary of the Christianization of Rus? Why have you forgotten the revival of the rehabilitation of the victims of the Stalinist repressions, which had been suspended, and the release of political prisoners? Not to mention the ending of the Cold War and real steps toward the elimination of the danger of nuclear war and toward arms reduction. Do you not see a “positive moral content” in any of this?

“I can well imagine for whose benefit anti-perestroika calls and commands were made, and for whom they are being revived right now. But I did not think, however, that an author of your level, totally and utterly damning those who ‘eulogize’ Gorbachev’s ‘perestroika,’ would directly couple it, literally separated by a comma, with the crimes and disasters of the nineties and a new ‘perestroika turmoil’ that allegedly has the aim of ‘exacerbating society’s decay.’

“The following passages in your article, for example, sound very strange. ‘Surely it is obvious,’ you write, ‘that the justification of our “perestroika” and of Yeltsin’s firing on his own parliament addresses not the past, but the future? That in this way a new wave of absolute moral negativity toward what is happening right now is being modeled — precisely modeled, and that many years from now, people will call this wave of absolute moral negativism “perestroika-2?” ’ Seeing that all these disasters, to judge from your article, are extolled and approved of by L.Aron, it turns out that he and his ilk are drawing chaos, amorality, and turmoil on us today too. One so wishes to shout ‘Murder!’ and to erect a new iron curtain.

“But I am convinced, however, that it is far more promising right now to purge and renew our authorities, as was recently said from the highest Kremlin podium.

“Perestroika moods and movements arise not so much at the behest of “troublemakers” as from defending the political system and the ruling elite against the demands of social development and against the growth of the population’s civil consciousness. Not to see the logical coming to a head of civil protest in conditions of stagnation and to reduce matters to the moral and legal ‘immaturity’ of the leaders of their ‘exigent fellow citizens’ is dangerous shortsightedness and a profound error. In that case, we really can expect dramatic upheavals and revolutions.

“As for the assessments of Gorbachev’s ‘perestroika’ made in your article upon chaos in which there is no morality, for the sake of objectivity I will permit myself to cite other data and acknowledgements. Their source is a government television program addressed to me. Here is the text: ‘Esteemed Mikhail Sergeyevich!

‘Please accept my cordial congratulations on the occasion of your 75th birthday. Everyone knows how much effort you asserted to see that our country made a historic turn toward democratic reforms, the emergence of the civil society, and the construction of a rule-of-law state.

‘With all my heart, I wish you good health, inexhaustible optimism, and faith in the future. I wish you success in all your enterprises and happiness and prosperity to you and your nearest and dearest.

‘(Signed) Chairman of the Russian Federation Constitutional Court

‘V.D. Zorkin, 2 March 2006’

“What has prompted you to change your views and assessments so abruptly and so diametrically? Perhaps it is the fact that in recent years I have begun to deliver criticism of the ruling party, which embodies the worst bureaucratic features of the CPSU (Communist Party of the Soviet Union) and has turned into a mechanism for preserving a monopoly on power and a machine for mindlessly rubber-stamping any decisions and commands handed down from above.”

We all must think deeply for ourselves on these and related questions plus stay “tuned” to how this important discourse continues to be played-out!

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Post Number 71 – 19 January 2013 – Standing On The Shoulders Of Giants With The Tools Of Legal Reasoning: Facts & Norms

Posted on 19/01/2013 by

Russia and Russian law suffered a very great loss in the past week in the passing from lung cancer of the St. Petersburg legal advocacy giant, Yuri Markovich Schmidt see, e.g., http://www.opendemocracy.net/od-russia/kristina-gorelik/to-live-so-as-not-to-feel-ashamed-remembering-lawyer-yury-schmidt.

Words, such as his, are among the most crucial tools employed in describing our human condition; the aspirations that we deploy in search of a meaningful life; the things that we revere, that we cherish, that we accept as limitations, that we reject and risk life–itself–in opposing.

In world cultures the critical relationship between morality and legality is an awkward hodgepodge reflective of different religions, different political institutions, and different historical experiences. To this cacophony must be added the realities that for much legal vocabulary there is disharmony and dissonance in the words that are considered to be paramount.

For example, in civil law jurisdictions a regular and highly ranked concept is that of “legal norms” whereas in common law jurisdictions that notion is weakly reflected in rubrics such as “legal values.” English-speaking common law lawyers would do well to consult chapter 1 of Hans Kelsen’s 1934 civil law classic Introduction to the Problems of Legal Theory (as translated by the Paulsens, Oxford, 1992). Greater common ground is found in the domain of legally cognizable “facts” although the methods for fact-finding and assigning their evidentiary weight is more muddled see, F. Schauer, “On The Supposed Jury-Dependence Of Evidence Law,” 155 Univ. of Pennsylvania Law Review 165, (2006).

It is in the confluence of “facts” and “norms” that civil law legal processes are analyzed in various methods of legal reasoning see e.g., R. Zippelius, Introduction to German Legal Methods (as translated by Junker & Roy, Carolina Academic Press, 2008). And under the common law, “facts” and “law” are similarly utilized to assert legal claims, state criminal charges, advocate the positions of contending parties having some legal interests, adjudicate such legal controversies, and regulate business agreements, contracts, memoranda, plus other transactional documents see e.g., H.L.A. Hart, The Concept of Law (edited by Green et alia, 3rd edition, Oxford, 2012 & <http://fds.oup.com/www.oup.com/pdf/13/9780198259879.pdf>).

Another jurisprudential giant who has thought usefully as well as deeply on this pairing of “facts” and “norms” is Jurgen Habermas see, J.G. Finlayson, Habermas: A Very Short Introduction (Oxford, 2005) & Habermas’ magisterial  Between Facts & Norms: Contributions to a Discourse Theory of Law & Democracy (as translated by Rehg, MIT, 1996).

Unlike other civilists, Habermas does not adhere to the separation of law and morality that is a foundation stone of, for example, Hartian “positive law.” Hence, like the transcendence from the Euclidean postulate that parallel lines must never cross that the mathematicians Janos Bolyai and Nikolai Ivanovich Lobachevsky each accomplished, the civil law, and Habermas, obliges “consistency” between the law and “moral, ethical, and pragmatic considerations….” Finlayson, supra, at p. 142.

However, the bright example that many, including myself, found in the advocacy of Yuri Markovich was not a function of his taking sides in that age-old debate over the dependence or independence of law and morality. Rather his forte was of a more fundamental character and one that the contemporary Russian legal scene suffers from for its absence and abuse. He practiced with consummate care the articulation of reasoning–facts and norms–that are the prerequisites of persuasion and justification.

Too often, nowadays, the Russian criminal courts, in particular, omit the pre-verdict completion of the protocol record of trial proceedings; ignore the obligation to cite to those protocols and other evidence. In 19th century England this kind of behavior was a part of Lewis Carroll’s Alice in Wonderland; in the 20th century it was part of the demonstration of the absurd in Franz Kafka’s The Trial; in the 21st century it has been the arrogance shown to human intelligence in among other Russian trials those of Messrs Khodorkovsky and Lebedev plus the artistic collective known as Pussy Riot. Yuri Markovich relentlessly highlighted such abuses and now others must arise to step forward to fill his courageous shoes.

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Post Number 70–12 January 2013–A Revision Of The Russian Civil Code Done In Fits & Starts

Posted on 12/01/2013 by

During the Western Christmas and “new” New Year’s holidays, the Russian State Duma (http://www.duma.gov.ru/), the Russian Federation Council (http://beta.council.gov.ru/), and the Russian President (http://kremlin.ru) were not idle regarding a major project to revise the four-part Russian Civil Code see e.g., Гражданский Кодекс Российской Федерации (2nd revised bilingual edition, 2010, Infotropic, 4 volumes, Moscow & Berlin, http://shop.infotropic.ru/index.php?productID=684).

That is, on the 14th, 18th, and 19th of December 2012, the State Duma; then on the 26th of December 2012, the Federation Council; then on the 4th of January 2013, the President of the Russian Federation took action upon what began as Законпроект № 47538-6, evolved into Законпроект№ 47538-6/1, and has now been enacted as Федеральный Закон от 30.12.2012 N 302-ФЗ see http://kremlin.ru/acts/17292 & http://graph.document.kremlin.ru/page.aspx?1;1646819.

This project has been a continuation of the grand undertaking that researched Russian history and international practice to draft, debate, and enact over the period 1994-2006 what has widely been denominated as plus may fairly be acknowledged to be modern Russia’s “economic constitution.”

Professor Alexandr Lvovich Makovsky, one of the original team of leading drafters who yet still actively participates in this remarkable legislative reform, wrote back in 1997:

“The phrase ‘economic constitution’ regularly has been applied to [this Code]. The President of Russia has vetoed number of Russian statutes because of their inconsistency with the Code. Very positive evaluations of the Code have been made by a number of eminent Russian statesmen and both Russian and foreign scholars. But the Code has also encountered rather harsh criticism from those who spent many years arguing that socialism needs not civil law but a special ‘economic law’–some sort of cocktail of public and private law. Private notaries are angered by the fact that in the final text of the Code (in distinction from the draft) most transactions with immovable do not require obligatory authentication by a notary. Sometimes proposals come up in the Duma for amendments to the Code. At the basis of these proposals is the lobbying of special interests or echoes of election campaigns [footnote omitted]. But if the Code causes difficulties for some, this is also evidence of its vitality and effectiveness.” Preface, The Civil Code of the Russian Federation, Parts 1 & 2/ Гражданский Кодекс Российской Федерации, части 1 и 2 (Private Law Research Center attached to the Office of the President of the Russian Federation, International Centre for Financial & Economic Development, Moscow, 1997).

Until the end of 2012, this “economic constitution” was comprised of some 1552 articles that as of September 2012 was undergoing serious consideration of some 818 pages of prospective legislative changes and additions to literally hundreds of articles.

Russian federal “zakon,” № 302-ФЗ is 21 pages long, containing 2 articles that make changes to only sixteen articles with all of them being in Part I of the Code.

Where do we or where will the remainder of this major legislative reform go from here?

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