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The legal system of Russia may be viewed through the prism of communism and Marxism, but that is not all that needs to be considered when discussing Soviet than Russian legal ideology and court systems (Bartlett, 2008). In reviewing the development in how western scholars think about the impact on Russian law from Soviet legal practices, Bartlett points out that law is more than just statutes it is also the "social practices norms, behaviors, and expectations" of the public (Bartlett, 2008, p. 4). As one of the world's nuclear powers and the largest country in Eurasia an understanding of the development of Soviet Russian legal practices is essential to an understanding of region.
Origins of USSR Legal History
Soviet law was portrayed as socialist law but the ideology behind it was strictly Marxism (Berman, 1948, p.223). In the socialist legal framework, the legal systems under a capitalist regime are viewed in a negative light; the 'capitalist law' is thought to be "an instrument of bourgeois domination…and Bourgeois justice [thought to be] justice for the rich and not for the poor" (Berman, 1948, p.224). In the decades spanning 1917-1945 the debate within the Soviet Union was fractured regarding the configuration of the Soviet legal system (Bartlett, 2008, p. 14). There was no clear consensus as to whether a nation whose political orientation was socialist "should have a legal system at all" (Bartlett, 2008, p. 15). There were many arguments from soviet legal scholars that the legal systems in existence at the time around the world were a product of "bourgeois" society and that if a nation abandoned a capitalist structure, like the Soviet Union, than it would make no sense to embrace such a legal system (Bartlett, 2008, p. 15). In the years between 1945-1960 a totalitarian system of legal justice emerged in the wake of the U.S.S.R.'s war with the United States. At least this is how Soviet legal scholarship was portrayed in the west (Bartlett, 2008, p 17). The system in the Soviet Union at the time of the cold-war was deeply politicized. Bartlett suggests that Soviet Russian law was not totalitarian, in that it did not serve the interests of just one powerful leader. Rather, Russian Soviet Law was unique because it was formed and influenced heavily by "political and ideological undercurrents" (Bartlett, 2008, p.18).
Americans who studied in at the Moscow Juridical Institute found that the foundational ideology behind Soviet law was the political ideology of Marxism-Leninism (Bartlett, 2008, p. 19). Scholars, such as John Hazard, found that the development of Soviet law during the U.S.S.R.'s reign was directly related to and in line with "the economic and political" situation in the country (Bartlett, 2008, p.20). Towards the end of the cold-war, from 1965-1991, western thoughts about the Soviet situation were altered, the socialist mode, of which the U.S.S.R. was among the biggest proponents, spread rapidly throughout the world and the socialist legal model developed was political in nature. The newly socialist states patterned their civil, criminal, and administrative laws after the Soviet Union (Bartlett, 2008, p. 23). Soviet socialist law viewed itself as activist in nature; in the socialist nations judges actively sought and attempted to use the law to change society so that laws were no longer needed (Bartlett, 2008, p. 25).
In the Post-Soviet era, including the years from 1991 to the present, the communist system waned and Russian law began to emerge. The Russian Civil Code coexists alongside everyday customary legal traditions (Bartlett, 2008, p. 52). Rather than a single civil code the new Russian legal system is plural with multiple overlapping systems of adjudication. In the post -- Soviet Russia, local courts could make legitimate judicial decisions not simply on the basis of the law but also on the basis of "customary or religious principles" (Bartlett, 2008, p. 54). The lasting impact of the socialist experiments in the name of Marx and Lenin was for many years characterized by the very "absence of the rule of law" (Krygier, 1990, p. 634). In the old Soviet Union, law was inherently negative unless used in an administrative capacity Krygier, 1990, p. 636). Part of the revolutions in the Eastern-European countries of the 80s and 90s was a transformation about the very possibilities and the role of the rule of law Krygier, 1990, p. 639). Krygier quotes Czarnota to illustrate how the emerging countries began to think about and reflect on the role of law in modern society. This is in contrast to the relationship between law and society under communist political thought, where law was not considered an appropriate paradigm through which society could be organized but rather a mere tool of oppression Krygier, 1990, p. 639).
Modern Russian Legal System
Modern Russian legal developments can be pegged to the adoption of the Russian Constitution in 1993 (Kahn, 2008). The civil code of Russia was effective in 1995, while the criminal and family codes were in forced by 1996 (Kahn, 2008, p. 240-241). Finally, modern Russian law is defined by ratification of the European Convention on Human Rights, and the politics of the Kremlin. Because Russia occupies the unique space of a former hegemon with great regional influence, its legal system still struggles with undue influence from special interests. The Russian Federation, as a government, is a signatory to the majority of "international human rights treaties" but the country's largest legal problem is the discrimination in the Russian courts (Marochkin, 2009, p.211). The basis of modern Russian law is in Article 15(1) of the Russian Federation's constitution which states that the constitution is the highest law of the land (Marochkin, 2009, p.211). If there is ever a conflict between international treaty and Russian federal law the treaty is correct (Marochkin, 2009, p.213).
In dealing with discriminatory conduct against persons with HIV or freedom of labor activists, the Russian Constitutional Court has been at the forefront of interpreting the federal statutes, regulations, and international treaties which apply (Marochkin, 2009, p.221. Though the modern Russian court system is attempting to alleviate discriminatory conduct, the long history in Russia of a union between powerful political and economic interests continues. While discriminatory conduct which creates economic barriers is illegal in Russia, the practice of enforcement in the court system is weak (Marochkin, 2009, p.219). The criminal code lists violations of economic practices as a criminal violation with penalties including jail time even for individuals holding official government positions (Marochkin, 2009, p.220). Finally, under Russian law, victims receive additional legal protections against the violation of their rights. For instance in cases where employers attempt to force potential employees to register to vote in the locale of their job rather than the locale of the primary residence the Russian courts have ruled that this is tantamount to discrimination (Marochkin, 2009, p.224). Though the Russian legal system takes great steps to minimize discrimination and ensure that equality is maximized there is still a lot of discrimination despite these safe guards. The rules are there by there are often not enforced (Marochkin, 2009, p.237).
Russian courts in arbitration and civil matters are governed by a set of procedural principles which can be compared with those of the west. Russian courts do not adjudicate civil complaints unless a directly interested party has requested the proceeding (Reshetnikova, 2009, p.3). Regardless of whether the matter is adversarial in nature or is governed by the rules of arbitration Russian courts only grant the relief which is requested nothing more (Reshetnikova, 2009, p4.). Russian civil courts only consider evidence which are presented by the parties involved in the dispute, this seems like a common approach in the west, but until 1995, Russian judges were able to consider extraneous evidence when making decision in cases where they were presiding (Reshetnikova, 2009, p.5). A 1995 amendment to…[continue]
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