A state governed by the rule of law is a state where the laws are observed according to certain criteria. What are these criteria? And why is this so important?
From time immemorial, those in power have clothed their will in the form of laws, and demanded that the population obeyed these laws; the people had to bow to the will of the authorities. This is the kind of archaic understanding of what is “lawful” that still dominates in Russia. With their class approach to what was “just”, Lenin and the Bolsheviks didn’t drift far from this archaic understanding. “The dictatorship of the law”, that they so love to talk about in the Kremlin, is the dictatorship of the unbridled wild will of one clan that has usurped power and has had unchallenged control over the Kremlin for more than two decades.
The law and the dictatorship that the Kremlin praises so highly exists for one reason only: to try to give an apparent legitimacy to naked despotism. One of the most unpleasant consequences of such a situation is the inability of the system to adapt to any constructive evolution. Violence simply leads to more violence. And hoping that unjust laws will over time develop naturally into just laws is simply a utopian dream.
Specifically, one of the main reasons why mankind has sought a way of escaping from unjust laws is the desire to avoid revolution as the only way to achieve changes in society.
All of those who have genuinely thought deeply about revolution have understood that it’s a difficult but unavoidable price that society has to pay to history in order to achieve progress. This price became unavoidable specifically because the laws that were in operation were designed in such a way as to prevent any change, in practice or in theory.
It’s from here that the attitude has developed that revolution is a necessary evil. Loving a revolution and wishing for it to happen is as foreign to our nature as it would be to wish pain on ourselves and those around us. (There are, of course, those who do like this and receive pleasure from becoming involved in the chaos of revolution.) But in a hopeless situation, the majority of the population will see revolution simply as a lesser evil.
If life under the old regime becomes intolerable, if all of the internal contradictions associated with this regime are brought together in one unbreakable mess, if all the legal routes point simply to a continuation of this despotism, then inevitably thoughts turn to the sword that can cut the Gordian Knot. This is so inevitable that it isn’t worth devoting a great deal of attention to it.
A revolution happening in Russia is simply a question of when and where. A little less obvious is the question of what it will look like. But what is certainly worth considering is what measures should be taken that could help Russia in the long run to tear itself out of its historical vicious circle, where a revolution begins after every shock. The only way to do this is to move from having unjust laws to having just laws.
There seems to be an easy answer to every question: we have to make the laws constitutional. But this is too simple.
Firstly, purely formally all of the current laws appear on the surface to be in line with the Constitution. You won’t find it written in the preamble or the text of any law, even the most disgraceful, that it was passed in opposition to the spirit or letter of the Constitution.
Secondly, what the spirit of the Constitution is, is something that everyone in Russia understands in their own way; and sometimes this is rather unique.
Finally, only judges can have an opinion about the constitutionality of laws in Russia…and we all know who the judges are in Russia. In the overwhelming majority of cases, the unconstitutionality of laws is covered over by law enforcement practice; but the paradox is that the practice itself has long ago become part of the law. This is indirectly confirmed by the decisions of the Constitutional Court, which is often forced to speak out about laws in the specific way that they’re given by law enforcement practice. So trying to change this practice without changing the laws just won’t work.
So simple solutions don’t work. We have to dig much deeper, until we get to those factors that make laws just, and not rely on the Constitution, which is useless for this task. Strictly speaking, there are two such circumstances: laws become legal due to a certain procedure for their adoption, and due to their compliance with certain principles.
Separately, each of these conditions is insufficient. Both the procedure and the contents are important here. In short, a law can be considered just if it’s passed by the only legitimate legal body: a genuine parliament that’s truly independent from other branches of government, and has been elected according to a democratic electoral law.
The reason for this is clear. A just law should be an expression of the consolidated will of the whole of civil society, and not that of the will of a single ruler, nor of a clan or class group that has seized power. It’s this consolidated will that legitimises the obligatory nature of laws, and is the basis for the authorities to demand its strict observance by all.
Parliament is the melting pot in which the political will of civil society becomes the text of the law.
If we look more closely at the work of parliament, we see that as well as the consolidation of the political will of various sections of civil society, each of which has its own specific interests, it also has another function. Parliament brings together the simple view with the qualified – expert – view, on any question that’s become a topic of discussion in society.
This is why it’s so important that parliament is independent both from the executive and from the society that’s elected it (for the period of its term, of course, and not permanently).
In parliament the political will of the ordinary voter is passed through the sieve of expert analysis. And the other way round: the opinions of the leading experts are subjected to the scrutiny of the highest political expertise.
It is vital to maintain this balance. What we’ve seen in the past few years is that the expert opinion that the government has called upon has overruled the view of civil society. As a result, laws have simply stopped operating, or are just not accepted by society.
Incidentally, the dictatorship of society would lead to the same result, but from the opposite side: this would lead to the breakdown of politics.
The procedure for passing just laws is extremely complicated, which is why it’s so important. There are an awful lot of minute details involved in it, many of which seem to be dry and formal; yet none of them can be neglected. This system has built up over centuries, even thousands of years, and has absorbed international political experience. And it’s particular for every culture and for every specific historic situation.
Russia will have to carefully comprehend and master this experience of parliamentaryism. And not just so as to blindly imitate or simplify it, but in order to develop a suitable system on the basis of this experience. When it operates normally it will allow for the adoption of just laws.
It’s essential to add that even the best format cannot alter the need for the correct content. Even the optimum parliament, which represents the political will of civil society and where there’s the perfect balance of social and expert opinion, is no guarantee that its laws will be just (although without the parliament they certainly won’t be just). These laws must meet certain criteria; that is, they should be built on certain principles that are based neither on time nor territory.
These principles are literally political axioms, that are accepted a priori by liberal democracy, like a faith.