Public Policy and Law in Russia: In Search of a Unified Legal and Political Space

Transcription

1 Public Policy and Law in Russia: In Search of a Unified Legal and Political Space

2 Law in Eastern Europe A series of publications issued by the Institute of East European Law and Russian Studies Leiden University Faculty of Law General Editor W.B. Simons No. 55

3 Public Policy and Law in Russia: In Search of a Unified Legal and Political Space Essays in Honor of Donald D. Barry Edited by Robert Sharlet and Ferdinand Feldbrugge MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

4 A C.I.P. Catalogue record for this book is available from the Library of Congress. Printed on acid-free paper. ISBN Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

5 Professor Donald D. Barry (Photograph courtesy of the Lehigh University archives)

6 Contents Preface, by George Ginsburgs and Oles Smolansky...ix The Quest for a Unified Legal and Political Space in Russia: Editors Introduction, by Ferdinand Feldbrugge and Robert Sharlet...1 Part One: The Constitutional Sphere 1. Post-Soviet Constitutional Systems, by Ferdinand Feldbrugge Power-Sharing Compacts under Russian Constitutional Law, by Ger P. van den Berg...41 Part Two: Judicial Development and Bar Reform 3. Judicial Power in Russia: Through the Prism of Administrative Justice, by Peter H. Solomon, Jr Making Sense of Business Litigation in Russia, by Kathryn Hendley The Bar s Triumph or Shame? The Founding of Chambers of Advocates in Putin s Russia, by Eugene Huskey Part Three: Legal Reform 6. Putin, the Procuracy, and the New Criminal Procedure Code, by Gordon B. Smith Consensual Justice in Russia: Guilty Pleas under the 2001 Criminal Procedure Code, by Stanislaw Pomorski Public Land Ownership, by Peter B. Maggs Part Four: Human Rights and the Russian Constitution 9. Russia s Constitutional Court and Human Rights, by Irina A. Lediakh Religious Human Rights: Constitution, Law, and Practice in Post-Soviet Russia, by Peter Juviler Part Five: Public Policy and Law of Federalism in Russia 11. Resistance to Putin s Campaign for Political and Legal Unification, by Robert Sharlet Local Self-Government and the Unification of Political Space in Novgorod, by Nicolai N. Petro...251

7 viii Public Policy and Law in Russia: In Search of a Unifi ed Legal and Political Space Part Six: Russian Politics and Law in the International System 13. Russia s Practice in the U.N. Security Council on Use of Force by the United States, by John Quigley Russia s Law Against Trade in People: A Response to International Pressure and Domestic Conditions, by Louise I. Shelley Conclusion Assessing Russia s Search for a Unified Legal and Political Space, by Robert Sharlet About the Authors Index...317

8 ix Preface George Ginsburgs and Oles Smolansky It is a rare scholar who is recognized as a leading expert in two distinctive subfields of a discipline. Donald D. Barry has made such a mark in Political Science. He is a leading authority in administrative law (particularly in governmental tort liability), as well as in Soviet/Russian law and politics. Don s doctoral dissertation, Governmental Tort Liability in the Soviet Union, written at Syracuse University s Maxwell School of Citizenship and Public Affairs under the supervision of the legendary Professor Spencer D. Parratt, foreshadowed Don s teaching and research career in public law and comparative government. The dissertation itself was particularly noteworthy, since the development of widened governmental tort liability had elicited considerable scholarly interest in Western countries, but not in the Soviet Union or the countries of the Soviet bloc. The study was presented in a comparative context with an examination of developments in both Common law and Civil law systems that had influenced the shaping of law in Russia and the Soviet Union. Don s prolific scholarly contributions over the next four decades were to reveal a sustained interest in the fields of Soviet/Russian law and politics, and American administrative law, the same subjects that had been the focus of his graduate studies at the Maxwell School. In time, Don became one of a small band of Western scholars who approached the study of Soviet law from a background in the social sciences. After all, the Soviet regime always looked at its legal system in purely utilitarian terms, namely, as a means toward promoting a set of political, economic, and societal goals, and not as an end in itself. Hence, formal analysis of Soviet legal institutions could, at best, produce only an incomplete picture of local reality, devoid of context and shedding no light on the leadership s true motivations in experimenting with successive reforms of the legal repertory. Peeking behind the scenes, as it were, to explore the pragmatic reasons that prompted such shifts in legal policy, allowed for a more accurate appreciation of law s role and function in the Soviet environment. Understanding of the civic phenomena laws were intended to address (or correct), and appreciation of the strengths or weaknesses in the nation s fabric that called for these reinforcements or remedies, was intrinsic to realistic analysis. Don has written widely, ranging across the entire spectrum of the Soviet legal experience. However, several clusters of issues seem to have attracted his attention particularly, and feature prominently in his bibliography. Robert Sharlet and Ferdinand Feldbrugge, eds. Public Policy and Law in Russia: In Search of a Unifi ed Legal and Political Space, ix-xii 2005 Koninklijke Brill NV, Leiden, The Netherlands

9 x Public Policy and Law in Russia: In Search of a Unifi ed Legal and Political Space First, as noted, we have the early work on Soviet tort law, a subject to which Don subsequently returned on a number of occasions. He tracked the course of further developments in this field and related them to the evolutionary progress of the Soviet mode of government and administration, beginning with the extreme repressiveness of the Stalinist period to the more relaxed control mechanism of the successor dynasties. The tenor of a country s tort law script offers a good barometer of official concern for protecting the individual s rights by letting him/her seek redress from injurious wrongs caused either by fellow citizens or representatives of the state apparatus. In his original treatise and in later articles, Don showed how this area of Soviet law expanded over the years in response to incremental upgrading of the status of the individual from the standpoint of broader legal entitlements and better procedural safeguards. Interestingly, this focus then led Don to an examination of governmental tort liability in general, as well as the political and legal aspects of the development of nuclear power in the USSR long before the Chernobyl disaster shocked the world and made evident the tragic inadequacies of Soviet preparations to contain potential domestic and international consequences of this source of heightened danger. Second, the operations of various components of the Soviet judicial system form a major component of Don s published works. These contributions range from investigation of the manner of recruitment and training of members of the Soviet legal profession to the performance of the Soviet Supreme Court, judicial review of administrative acts, and procurement of relief from bureaucratic abuses. As an American, Don has had a tendency to reflect his nation s ethos of trusting the power of courts to civilize national cultures, and much of his work here displays that brand of optimism. Despite the repeated failure of the Soviet system of justice to prevent police excesses at various stages of the country s history, open court proceedings still struck our honoree as the best possible way to inject a modicum of the rule of law into Soviet public discourse. Indeed, the demise of the Soviet Union posed that question as a public issue once again, and Don was quick to organize a collective inquiry into whether post-soviet Russia had taken the path of metamorphosing into a recognizable Rechtsstaat where the dynamics of public life would comport with prescribed rules rather than ad hoc fi at. Russia s record so far has been a bit of a disappointment to Don as early hopes for the country s transformation into a working democracy appear to have fallen short of the mark. He would undoubtedly argue, however, that shifts of such magnitude take time, and that some of the necessary foundation has at least been laid. Third, we have the problem of human rights in both the Soviet Union and post-soviet Russia, especially the matter of capital punishment today. Don has even published in Russian on the issue of human rights and has shed valuable light on the difficulties some of the more progressive concepts in the interna-

10 Preface xi tional human rights canon have encountered in the Russian environment. The latter, alas, continues to exhibit an innate hostility toward the idea of freedom to pursue personal interests, a cultural inclination born of the distant past as well as the more immediate Soviet precedent. Here, too, the end of the story is nowhere in sight and opposite schools of thought remain locked in heated debate about Russia s chances of escaping its repressive history and moving up to a higher plateau of social civility. Don has made a major contribution to these discussions and those who follow will build upon the foundation he helped to construct. In addition, there are the textbooks on Soviet and Russian politics which have become required reading for generations of students, have undergone multiple editions and are a model of meticulous scholarship, exhaustive research, and critical insight that have made Don a leader in the study of Soviet law and politics throughout his long academic career. His ability to do for Russian politics and government what he had done for its Soviet predecessor is a worthy testimony to his intellectual curiosity and resilience. Last, but not least, as already mentioned, Don has also been a prolific contributor to the field of administrative law. Particularly noteworthy in this connection is his book, entitled The Legal Foundations of Public Administration, co-authored with his colleague and friend, Howard R. Whitcomb. With this impressive record of scholarly productivity, teaching and service to his university as well as his discipline might have played a secondary role in Don s career. That, however, was clearly not the case. In 1963, Professor Rocco J. Tresolini, himself a Spencer D. Parratt protégé, persuaded Don to join Lehigh University s Political Science faculty. Just three years later, in 1966, Don received the university s Lindback Foundation Award for Distinguished Teaching. Over the years, students continued to testify to the excellence of his teaching and his impact on their scholarly development. Don s Soviet/Russian Politics and Administrative Law courses have been staples in the undergraduate and graduate curricula for several generations of Lehigh students. Many of his students have gone on to distinguished careers in law, public service, business, and academe. Don excelled also in the service category. At Lehigh, Don chaired the Department of Political Science, served as Director of the Center for International Studies, and led the effort to organize the Russian Studies Program. He also presided over a number of University and College committees, including the Committee on the Future of Arts, Humanities, and Social Sciences. This committee s work, in particular, led to a number of initiatives that helped Lehigh to become a more well-rounded university. In the larger discipline, Don served as a member of the Board of Directors of the American Association for the Advancement of Slavic Studies, and as the Executive Secretary-Treasurer of the Mid-Atlantic Slavic Conference. He was

11 xii Public Policy and Law in Russia: In Search of a Unifi ed Legal and Political Space also a co-editor of the Bulletin on Current Research in Soviet and East European Law, Managing Editor for Law and Justice of Soviet Union, and a member of the editorial boards of several professional journals. For his manifold endeavors as well as for his research accomplishments, in 1985, Don was promoted to the rank of Distinguished Professor and in 1991, Don received Lehigh s prestigious Eleanor and Joseph Libsch Award. On a personal level, those who know Don well universally regard him as a caring friend, supportive of peers, junior colleagues and students alike. His lively sense of humor and infectious laughter can be counted on to enliven any conversation. Those of us who have known him as a colleague, instructor, adviser, and friend consider ourselves lucky to have crossed paths with such a wise and gifted scholar and teacher. May he continue to enlighten us for many more years to come.