Модель российского “homo legalis” и устойчивость порядка, основанного на верховенстве права

Труды Института государства и права Российской академии наук. 2020. Т. 15. № 4. С. 81–108.

Fogelson Y. B.

The paper deals with the problem of creating a stable order in Russia
based on the rule of law. So far, all efforts to create it have failed. The instability of the
rule of law in Russia is explained by the fact that attempts to create such a regime were
limited to infrastructure reforms and modern proposals to reform the legal and political
systems are reduced to infrastructure changes. The author shows that despite the
importance of infrastructure, the main reason for the instability of the rule of law in
Russia is the legal consciousness of citizens. At the beginning of the XXI century, the
concept of "social norm of the rule of law" was introduced in scholarly debates and it
was shown that the presence of this social norm in their legal consciousness is crucial
for the observance of laws by members of the community. The paper builds a model of
legal consciousness of Russian citizens (the "homo legalis" model) and shows that they
do not have this social norm. But contrary to popular opinion, Russian citizens are not
legal nihilists, but legal utilitarians. Accordingly, the stability of the rule of law regime
in Russia can be achieved if conditions are created for the emergence of a social norm
of the rule of law in the legal consciousness of Russian citizens. Three ways of creating
such conditions are considered and it is shown that, contrary to popular opinion, such
a social norm can appear quite quickly. The practical possibility of transformation of
the Russian legal system is shown, based on the most realistic of these three methods
and based on the constructed model of the Russian "homo legalis".

Keywords: правосознание, верховенство права, social norms, социальные нормы, legal reform, правовая реформа, legal consciousness, rule of law