Courts and Transition in Russia: The Challenge of Judicial Reform

By Peter H. Solomon Jr.; Todd S. Foglesong | Go to book overview

criminology and the sociology of law that changes in one part of the legal process produce compensatory changes in other parts. Restricting the sentencing discretion of judges (say, through determinate sentencing), for example, gives the decisions about charges (and as a result, police and prosecutors) greater influence on the choice of punishment. 6 Likewise, curbing the right to appeal, or limiting an appellate court's power, places a greater burden on earlier stages of the process and may require improved discovery in civil and greater openness in the criminal pre-trial process. Russian reformers, we believe, have not fully recognized this dimension of the "bureaucratization of justice." It is imperative that its lessons be considered in the evaluation of reform proposals.

The case for moderation is all the more compelling because would-be reformers of the Russian courts are not a cohesive group. As the now cool relations among the authors of the radical Conception of Judicial Reform indicate, there are sharp cleavages in the debates over reform even within like-minded groups. The lack of solidarity among reformers, and poor dialogue across institutions and within draft legislation "working groups, is destructive, diluting the constituency for judicial reform. In our view these divisions rest to some extent on stereotypes about "inquisitorial" vs. "adversarial" norms of law and systems of justice. Proponents and detractors of reform proposals often justify their claims and positions by reference to "anglo-saxon" or "continental" legal systems, with little understanding of the porousness of such categories or appreciation of the diversity within the traditions that gave rise to them. For most comparative legal scholars, these categories, and especially terms such as "inquisitorialism" (inkvizitsionnost') and "adversarialism" (sostiazatelnost'), are not particularly useful; in general, they are considered both inaccurate and anachronistic. 7 In the current Russian environment, they are harmful sobriquets, which serve only to polarize legal scholars and officials into closed schools of thought. Especially since the Russian judicial system is itself a hybrid, or mixed system (even sui generis according to some scholars), it behooves reformers to abandon the stiff lexicon of legal casuistry and adopt a more pragmatic and flexible approach to reform initiatives.


Notes
1.
See William T. Pizzi and Luca Marafiotti, "The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trialon a Civil Law Foundation", Yale Journal of International Law, Vol. 17, No. 1, 1992, pp. 1-40; Marco Fabri, "Theory Versus Practice of the Italian Criminal Justice Reform",

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