This article commemorates works of a renowned Russian legal scholar and human-rights activist Aidar R. Sultanov. In doing so, we will use an original methodology of the analysis of transnational intellectuals to consider the work of Sultanov illuminated by the following four approaches: the “We dimension”; the dimension of “Others”; the dimension of Sultanov’s “spatial narratives”; and key “historical narratives”. We concentrate our analysis of Sultanov not only as a legal scholar and human-rights activist but, even more broadly, as a public intellectual—some of whose cultural and philosophical premises have remained implicit but which we believe need to be explored in a brighter light. The latter are taken into consideration, in this essay, so as to speculate about the following: what elements of Sultanov’s worldview make this one of a transnational intellectual and, also, what prompts him to feel obliged to take a stand against attempts to securitize human rights at the national level in the Russian Federation?
This paper explores, mainly from a legal perspective, the extent to which the Russian regulations of traditional TV and online audiovisual media policies have been consistent with the Council of Europe (hereinafter CoE) standards. The study compares between the CoE and Russian approaches to specific aspects of audiovisual regulation including licensing, media ownership, public service media, digitalization, and national production. The paper first studies the CoE perspective through examining its conventional provisions related to audiovisual media, the case law of the European Court of Human Rights as well as the CoE non-binding documents. The paper then considers Russian national legislation governing audiovisual media and the Russian general jurisdiction courts’ practice on broadcast licensing. The paper suggests that the Russian audiovisual regulations are insufficiently compatible with the CoE standards and more in line with the Soviet regulatory traditions.
The reviewed book contains very interesting analyses of key historical events of Russian history, with deep and intelligent comments on them. We have mentioned some arguable topics in the author’s narrative, but, in fact, they underlie the extreme complexity of the issues that Professor Bowring dar- ingly tackles. Considering a broad range of different problems, the author con- sciously (or unconsciously) accents the historical perspective, establishing what he calls “landmarks”. However, because of this choice, the philosophical and normative perspectives remain rather in the shadows so that these “land- marks” rather are “snippets”—as smartly remarked by one of the other review- ers of this book.11 Without such aspects, however, it is hardly possible seriously to examine the interconnection between ideologies (in this context I would use this term in the plural) in Russia and the Russian legal order. Hopefully, Professor Bowring will continue his multidisciplinary research on Russian legal culture and, in the near future, decide to publish another volume, describ- ing in more detail the ideas exposed in this excellent book, which can be rec- ommended, highly, to all who are working on Russian law.
The book under review not only concerns an issue that is extremely impor- tant for European lawyers but it, also, offers a set of theoretical and practical recipes for restarting human-rights discussions that, nowadays, often seem to be trapped in a deadlock. Professor Posner is famous for his critical attitude toward international law, and this book continues this criticism as far as the utilization of human rights is concerned as leeway for Western democracies to exert political influence on developing countries. This critical view, however, does not undermine their value: in fact, many things—including the most sublime ones—have been utilized for reprehensible purposes (to take the ex- ample of religious beliefs and the Inquisition). Professor Posner’s book can be an effective remedy—even if a quite bitter and disillusioning one—for curing the theoretical and practical inadequacies that are neglected by partisans of human rights.
The present paper is a review of Everyday Law in Russia by Professor Hendley. The review underscores that Professor Hendley pays attention not only to the texts of positive law: she also examines how the law works in these countries, how it is utilized by legal actors and how it matters to them. Professor Hendley’s analysis includes a detailed empirical perspective of Russian law, which is always informed by relevant sociological data. Among these data are those collected by Professor Hendley herself during her numerous research visits to Russia. In this regard, her work is clearly distinguishable from the works of those Western scholars who propose educated guesses about Russian law without hardly ever visiting Russian courts and other places where Russian law is ultimately shaped and delivered to its recipients.
Investigating the ways international law is conceived and taught in different countries is extremely helpful for forging a comparative approach that makes it possible to overcome both parochialism and universalism in interpreting international legal rules and principles. The book under review—written by Lauri Mälksoo, professor of international law at the University of Tartu (Estonia) and a member of the Estonian Academy of Sciences—on Russian Approaches to International Law sets out such comparative objectives, attempting to reveal the dialectics of the Other and the Self in relations between Russian and Western doctrines of international law.
The book under review is written in a remarkable diarist style that reflects the author’s memoirs, observations, and analyses of Russia’s recent human- rights history, substantiated by valuable references to the opinions of Russian rights activists (pravozashchitniki). Mary McAuley prefers to abstain both from theoretical and political speculations, sharing with readers her direct experi- ence of cooperation with rights activists and, wisely, leaving it to readers to judge whether the actual human-rights situation in Russia is the result of poor government or of certain deeper societal and cultural factors. The book also provides an accurate account of milestones in the history of human rights in Russia and a keen evaluation of the cultural and institutional obstacles for the human-rights movement in the country.
This article examines the correlation between the concepts of sovereignty, human rights, and democracy in Russian legal and political debate, analyzing this correlation in the context of Russian philosophical discourse. It argues that sovereignty often is used as a powerful argument which allows the setting aside of international humanitarian standards and the formal constitutional guarantees of human rights. This conflict between sovereignty and human rights also recurs in other countries, and many legal scholars are demanding the revision or even abandonment of the concept of sovereignty. In Russia, this conflict is aggravated by some characteristic features of the traditional mentality frequently favoring statism and collective interests over individual ones, and by the state building a ‘power vertical’ subordinating regional and other particularistic interests to the central power. These features and policies are studied in the context of the Slavophile-Westernizer philosophical divide. This divide reveals the pros and contras put forward by the Russian supporters of the isolationist (conservative) policy throughout contemporary history—especially in the sovereignty debates in recent years. The 1993 Russian Constitution contains many declaratory statements about human rights and democracy, but their formulations are vague and, thus far, have had little concrete effect in court battles where the application of international humanitarian law from time to time has been counterbalanced by the concerns of the protection of sovereignty. These concerns coincide with isolationist and authoritarian policies, which in 2006 led to their amalgamation in the concept of ‘sovereign democracy’. This concept is considered in this article to be a recurrence of the Russian conservative tradition. Even though the concept in its literal meaning has been abandoned by its author and supporters, most of its ideas remain on the cusp of the official political discourse which reproduces the pivotal axes of Russian political philosophy of the XIX century.
This article examines the correlation between the concepts of sovereignty, human rights, and democracy in Russian legal and political debate, analyzing this correlation in the context of Russian philosophical discourse. It argues that sovereignty often is used as a powerful argument which allows the overruling of international humanitarian standards and the formal constitutional guarantees of human rights. This conflict between sovereignty and human rights also recurs in other countries, and many legal scholars are demanding the revision or even abandonment of the concept of sovereignty. In Russia, this conflict is aggravated by some characteristic features of the traditional mentality frequently favoring statism and collective interests over individual ones, and by the state building a “power vertical” subordinating regional and other particularistic interests to the central power. These features and policies are studied in the context of the Slavophile-Westernizer philosophical divide. This divide reveals the pros and contras put forward by the Russian supporters of the isolationist (conservative) policy throughout contemporary history, and especially in the sovereignty debates in recent years. The 1993 Russian Constitution contains many declaratory statements about human rights and democracy, but their formulations are vague and, thus far, have had little concrete effect in court battles where the application of international humanitarian law from time to time has been counterbalanced by the concerns of the protection of sovereignty. These concerns coincide with isolationist and authoritarian policies, which in 2006 led to their amalgamation in the concept of “sovereign democracy”. This concept is considered in this article to be a recurrence of the Russian conservative tradition. Even though the concept in its literal meaning has been abandoned by its author and supporters, most of its ideas remain on the cusp of the official political discourse which reproduces the pivotal axes of Russian political philosophy of the XIX century.
This chapter examines a number of theoretical difficulties related to the implementation, in Russia, of the decisions and awards of foreign courts and arbitral tribunals. Along with the normative conditions for recognizing and enforcing foreign decisions, the author draws attention to the educational background of legal professionals—especially judges—in Russia. It is suggested that the statist conception of law inherited from Soviet legal scholarship implicitly leads to the contemporary Russian legal doctrine of negating the obligatory force of decisions from foreign courts. In the opinion of the author, the core of this conception resides in the traditional concept of sovereignty, which excludes the direct effect of legal acts made by foreign states, private arbitration tribunals, and international organizations. Nevertheless, there have been signs of a change in the attitude of the Russian judiciary in several key rulings by commercial courts. The author concludes that one now can observe seeing tendencies indicative of the development of a different concept of law in the mentality of legal professionals in Russia.
The paper analyzes the key ideas of Justice Gadzhiev and Judge Posner on legal methodology and tasks in legal education. These ideas are considered in the context of two recent books by these authors. Both books appeared in 2016 and both question certain principal dimensions of pragmatism in the law, to which both Gadzhiev and Posner are subscribed. This review essay examines the links between the respective ideas of these two authors on methods of legal research, on judicial process and on teaching law, in addition to providing an overview of the intellectual culture of the us and Russian legal orders.
Soviet law is often viewed as based on legal positivism, while its ideological background and the practices of political interference are considered in an extralegal (political) dimension. This logic prompts conclusions about the dual character of Soviet law where prerogative and normative dimensions constituted two parallel systems. Similar opinions are sometimes expressed about Russian law, which is a continuator of Soviet law both normatively and factually. The present paper analyzes this approach and suggests that the alleged dualism can be considered in the light of the basic presuppositions and methods of the Soviet (Russian) theory of law and state. This jurisprudence was and still is based on a combination of formalism and anti-formalism (realism) which provided a certain degree of unity and coherence of legal knowledge. After the end of Soviet rule, legal theory in Russia still orients itself to this symbiosis of positivism and realism which underlies legal education and legal scholarship. The paper addresses the philosophical and methodological origins of this Russian (Soviet) legal realism, and argues that the particular character of Russian (Soviet) law can be explained against the backdrop of this theoretical combination that combines conservative social philosophy, a Schmittean conception of exception, methods of legal positivism and the spirit of legal nihilism. These particularities and their methodological background are, in the author’s opinion, among the distinguishing features of Russian law and legal culture.
This article explores early modern criminal procedure and the emergence of a culture of appeal in the Russian system of criminal justice. It raises several important questions: Why did the appeal procedure not function as an ultimate guarantee of justice? How did Russian procedural law make appeals nothing more than the last stop on an ‘assembly line’, as a confirmation of a verdict rather than another court instance? How was criminal procedure connected with the political regime and a broader understanding of justice in early modern Russia? And what was then the ultimate goal of appeals that encouraged litigants to proceed with their cases to the highest court authorities? The author argues that Russia developed a so-called ‘appeal culture’, i.e., a situation in which individuals were willing to proceed with an appeal despite the quality of judicial decisions. Coupled with selective justice and a subjective understanding of fair trial, the appeal became one of the main means of acquiring a desirable verdict or, at least, of preventing an adversary from receiving such a verdict.
This article is the introduction to the special issue of the Review dealing with current trends in development of Russian law
The Eurasian Economic Union (eaeu) is a regional organization for economic integration in the post-Soviet space. Following the limited success of previous integration attempts, the organization aims to pursue deeper integration, borrowing features from the European Union. The eaeu has at its disposal a complex system of elements that make up a newly emerged legal order. This paper analyzes how these elements compare to those of the eu in order to determine how the legal changes that accompanied the creation of the eaeu affect its functioning and whether its legal order can be considered efficient compared to that of the eu. This article argues that the eaeu lags behind the eu both in terms of the autonomy of its legal order and in its ability to ensure the effective functioning of the organization. The eaeu’s supranational features are limited, as it relies predominantly on intergovernmental elements with a view to preserving the interests of all of its member states.
This article describes and analyzes the legislative politics of the revolutionary regimes in Russia in 1917-1918. The author aims to demonstrate the political meaning of the form of early Soviet legislation and its legitimizing effect. Revolutionary legislators often used specific language in new laws as a vehicle for legitimacy, i.e., as a means of making the people comply with those laws. The two main types of legal language used by the Bolsheviks can be interpreted from the perspective of different types of legitimacy. The revolutionary strategy used propagandistic legislation, written in the language of lay people, which urged them to act according to the new law. This can be seen as a request for the people to take certain actions and thus to legitimize the soviets. On the other hand, they also used the traditional strategy by employing old bureaucratic means of writing and distributing legislation to the local soviets. The language used by this strategy could not be easily understood by a lay audience and implied a tradition of obeying the law written in familiar legal language, which in turn implied rational/legal legitimacy. The second strategy had already become dominant after the first months of the Bolshevik Revolution. This observation demonstrates that, from the very beginning of their rule, Soviet leaders approached legislative policy from a technocratic point of view, which determined the further development of Soviet legal theory and practice.
The authors examine how the Russian judiciary formulates legal policies when adjudicating cases in which religious beliefs are concerned. First, the authors describe the framework within which their research on this matter is conducted, basing it on the theory of legal argumentation. Applying this framework to the investigation of Russian court practice has enabled the authors to discover important features, which they argue are characteristic of legal reasoning of the judiciary in this category of cases. In particular, the authors note that, at least until the present the Russian Constitutional Court has chosen to abstain from crafting principles of legal policy regarding religious issues. Furthermore, in religious cases, the Russian judiciary—by and large—does not follow the jurisprudence of the ECtHR, and the Russian Supreme Court has no clear-cut policy in handling these cases. In such a situation, ordinary judges choose individual strategies. These are indispensable insomuch as fidelity to the letter of the law is inadequate for adjudicating such cases. Russian court practice (from 1997 on) in religious cases can be more easily understood from this perspective than it can in the light of presumed political influence.
The articles provides a discussion about the second-look doctrine in international arbitration and its implications in Russian law and Arbitrazh court decisions. Practice of the courts is analyzed in context of the minimalist and maximalist approaches that are used to construe the inferences of the second-look doctrine.
The authors of this short overview of the winter 2014 St. Petersburg conference on Law and Communication provide an analysis of the main ideas and debates at this conference.