Twenty Years of Russian Legal Reform
Pomeranz, William, Demokratizatsiya
Abstract: This article examines what has changed in Russian law since the collapse of the Soviet Union. Among the accomplishments are the emergence of constitutional jurisprudence, the development of commercial law, and an increase in the basic transparency of the law. However, Russia is still not a rule-of-law country because the state is not subordinated to its own laws.
Three distinct stages of legal reform can be identified in Russia over the past twenty years, largely corresponding to the terms of Russia's first three presidents. Boris Yeltsin stands out as a law creator, as his administration re-wrote the constitution and much of Russia's legislation to meet the demands of a democracy and market economy. Vladimir Putin assumed the role as the primary enforcer of law as he re-centralized the Russian political system and called for a "dictatorship of' law," essentially requiring the strict observance, but not the broad interpretation, of the law. Finally, Dmitry Medvedev tried to present himself as the great promoter of the rule of law and legal reform, attacking corruption and seeking to overcome Russia's historical "legal nihilism."
Some overlap admittedly exists between these three periods. The centralizing trends so pronounced under Putin actually began under Yeltsin. Putin also has a reputation as a law creator, especially during his first term in office, which saw the introduction of such landmark pieces of legislation as the new Criminal Procedure Code and the Land Code.
Finally, Medvedev, while talking about decentralization, in fact played a significant role in strengthening the so-called "power vertical," most notably, by extending the president's and the Duma's terms to six and five years, respectively.
In retrospect, Russia's legal trajectory since the collapse of the Soviet Union has been both profound and contradictory, so what I propose to do in this brief essay is to provide a rough balance sheet of twenty years of legal reform. The Soviet Union was governed by "socialist law," which broadly promoted social over individual rights, presided over a planned (as opposed to a market) economy, and assumed a pedagogical role in the promotion of socialist ideology. Socialist law in its heyday was recognized by many commentators as one of the major legal systems of the world, along with the common law and civil law traditions. The end of the Soviet Union witnessed the disappearance of socialist law, at least in terms of its political and legislative content--although not necessarily in the mentality of those who lived under it.
By choosing the collapse of the Soviet Union as the point of reference for this essay--as opposed to a direct comparison with Western legal systems--I intend to highlight what has changed in terms of the rule of law since the collapse of the Soviet Union, and what critical problems remain, with the caveat that just because I am dividing this paper into two parts does not mean that I am making a "half full, half empty" argument. No matter from what perspective you view the Russian judicial system, legal reform remains a long, uphill struggle.
New Branches of Law
One of the most profound changes in Russian law over the past twenty years has been the emergence of a constitutional jurisprudence. While some Soviet defendants raised constitutional issues as part of their defense, the Soviet Union lacked a constitutional tribunal that could review whether Soviet laws, in fact, corresponded to the demands of the constitution. Thus, for example, in the famous trial of the dissident Vladimir Bukovskii, his lawyer could only argue that no crime had been committed, as set forth under the statute, as opposed to arguing that the underlying legislation itself was unconstitutional. (1)
Today, it is accepted that a Russian citizen can make a constitutional argument before the courts, claiming that certain laws or government actions violate one's fundamental rights. …