Valery D. Zorkin

The Essence of Law

Lecture before the participants of the VII Saint-Petersburg International Legal

Forum on 18 May 2017

Jus est ars boni et aequi

Law as a form of embodiment of the rational principles of human community, i.e.,

as a form of human freedom in its social interaction, is not only a concept

summarising in itself the essential characteristics of man as a social being having

free and reasonable will. It is also a system of normative regulation, influencing

the real day-to-day life of people. Therefore, we can reasonably speak of a person

as a legal being and of humanity as a legal civilization or a civilization of law.

History teaches us that when mind and law "sleep" chaos of arbitrariness and the

land of lawlessness begin. These consequences are prophetically depicted in the

etching "Dream of Mind" by Francisco Goya and Vereshchagin's canvas "The

Apotheosis of War."

"The mystery of lawlessness": the danger of a discrepancy between the

normality of morals and the law

We live at a time when the systemic nature of global challenges is becoming more

and more obvious and threatening. Therefore, a legal approach in the search for

answers to these systemic, interconnected, mutually reinforcing challenges is

needed today. When I say "legal", I do not mean a narrowly professional, purely

legal approach. Indeed, recently it becomes especially clear that law which loses

support in its moral foundations cannot cope with modern systemic challenges.

Therefore, today all of us have to go through the razor's edge, one side of which is

professional narrow-mindedness, and the other - irresponsible dilettantism.

How exactly can a lawyer do this in such an authoritative and diverse meeting?

Only by paying attention to the excessive and, thus, extremely dangerous fragility

of the current legal mechanisms which the modern world is based on (for the time

being). Because the fragility of these fundamental mechanisms, generated by

separation of law from its roots, does not allow us to remain within the narrow

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legal framework, dictating the need to understand the problem in political, cultural,

philosophical and theological perspectives.

It is not necessary to reassure yourself that the world is going through another

stage of great changes. And that the question of how to change the rules in order to

prevent a "pause of lawlessness" has repeatedly faced the humankind. The

peculiarity of our time is that the law, to which we are all so accustomed to, loses

its regulatory potential, and legal constructions lose their former strength and

reliability. And it means that there is a growing danger of lawlessness, recalling the

warning of the apostle Paul, who wrote in the beginning of the New Era in his

Epistle to the Thessalonians: "For the mystery of lawlessness is already in effect,

only will it not be accomplished until the restraining now". If, for the Christian

consciousness, it is obvious that the "restraining" is the Church, preaching the

Word of God, then for the secular consciousness, the only candidate for the role of

"restraining now" can be Law understood in the broadest sense. At the same time

secular (and often religious) consciousness cannot help but perceive the fact that in

the present era of change, the "restraining" law too often does not work, exposing

the "secrets of lawlessness."

I want to stress at once that speaking about the secret of lawlessness, one should

categorically reject adjustment of this category to any people, any religion, as well

as to secular humanism. For a religious person, the secret of lawlessness is

connected to the presence of metaphysical evil in the world, hostile to all great

religions, to all the peoples of the planet. And if, nevertheless, to answer the

question of when the secret of lawlessness, which is absolute in nature, was closest

to real politics, it should be categorically stated that such extreme closeness was

brought by Hitler’s Nazism. By those who trampled all the notions of morality and

humanism and was rightly called by many great humanists not an ordinary evil

political power, but an absolute evil or an enemy of humanity.

Hence, it turns out that the secret of lawlessness is an extremely broad category

which includes the sphere of culture, the sphere of religion, and the sphere of

philosophy. And lawlessness is a strict legal concept. In my reasoning I consider it

possible and necessary, as they say, to be at the junction between the narrow notion

of lawlessness and the broad concept of the mystery thereof, it is also the action of

the enemy of man, which opposes all the many-sided humanity, i.e. humanity as

such.

The most obvious image of the danger of lawlessness is now in the sphere of

international legal relations, which are becoming increasingly uncertain and,

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therefore, of a chaotic and entropic (that is fraught with irreversible disintegration)

character.

Which is the world order we live in? Do we live according to the laws of the 1945

Yalta in their widest sense? Do we want to strengthen and at the same time modify

these laws? Are we ready to admit that we are cancelling them? Are we ready to

clearly determine what it is which we are cancelling them for? And do we

understand what is the danger in this case of existence in accordance with the

principle of silence, when the 1945 Yalta is still formally recognised, which

created the modern world in general and the system of the United Nations in

particular, and in fact this 1945 Yalta is denied. When, in fact, we are told that the

world, built according to the laws of the 1945 Yalta, does not exist, but we are not

told what other laws a new world is built on.

Such silence can well turn out to be a recognition that the new world is not built

according to any new laws, that fundamental lawlessness is intended to be a

foundation thereof.

It is much said today about the fact that the world has crawled into the state of a

new cold war. Moreover, the risk of its transition to a big "hot" war, threatening

the very existence of mankind, is growing.

However, we all understand that the world cannot crawl into some new state by

itself, that the world, as a whole, is not as such full of passion for self-destruction.

Hence, the world does not creep into a new destructive state. There is someone

who pushes it. Someone is trying to push the world into this state, destroying very

much of what has so far kept the world from this danger, including the cornerstone

of the dialogue between Russia and the West. Those terms that existed in all

previous epochs. Even in the epoch of the so-called cold war.

The "hot" war that is destructive for the world is possible only if all existing

elements of our dialogue are nullified. The nullification of these terms cannot

occur in purely professional spheres - political, legal or otherwise. It always begins

in the sphere where there is a battle for human souls.

Such battles have always been fought. At the same time, they were always

conducted not in the sphere of empty fiction, but in a living and concrete society.

Man, as Aristotle said long ago, is a social being. And it is the society that creates

and compels to observe those norms of human relations which ensure social order

and protect the world from self-destruction. I mean the fundamental rules of human

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community, which allow us to distinguish between good and evil, prescribe to

encourage good and reject and punish evil.

These are norms of morality (i.e. social morality), norms of individual morality and

the rule of law, which in their totality are, determined either by the religious

tradition or secular ideology, are rooted in culture and consonant with the soul of

every reasonable person (i.e. a person whose personal morality does not contradict

public morality and law as the norm of freedom). The common denominator for

these norms is the imagination of man and society about the just as both good and

due.

From antiquity to modern times, good lawmakers tried to create laws with the

support of mass ideas about the just. And the roots of these ideas have always been

sanctified by a religious tradition of the corresponding culture and era. But in

modern times with the characteristic development of European secular science,

legislation began to step away from religious grounds. It could not be otherwise in

societies where most of the people were already not religious or were professing

very different creeds. The secularisation of law, connected to the rejection of the

religious foundation of legal systems, has led to the emergence of a whole series of

new legal doctrines - from the natural law theories that derive the right from the

rational nature of man, to various versions of legal positivism. At the same time,

legal positivism, which greatly strengthened its positions during the codification of

national legislation in Europe, often completely separated law as a sphere of

science from its historical, religious and cultural roots. Thus, the positivism

considered it expedient to renounce the requirements of moral normativity when

creating legislation.

Nevertheless, many leading intellectuals of Europe, committed to the ideas of

human rights and freedoms, did not and do not doubt that law, morality and

religion constitute an internally interconnected socio-normative complex. And that

science, legal theory and practice must proceed from understanding of this

immanent relationship. I do not mean a conceptual confusion of different scientific

categories expressing corresponding social life phenomena. I argue only that too

obvious separation of the law from moral regulators not only reduces the

effectiveness of its actions, but also is fraught with a dangerous undermining of the

human community fundamentals.

In this regard I recall the position of great European philosopher and scholar

Immanuel Kant. On the one hand, it was Kant who marked the line for the

secularisation of the socio-normative sphere when he stated that morality does not

need religion. However, he also said that "morality inevitably leads to religion,"

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thereby expanding it to the idea of the God as "having the power of a moral

legislator outside of man." I think that from the point of view of law it is not

important - whether morality leads to religion, as Kant believed, or religion

prescribes moral norms. However, what is important is that the moral inner law

inside us, about which Kant spoke, is determined by the idea of reason, it has a

universal character and in this sense, in essence, it is linked to the law as a form of

expression of the rational principles of human community.

Law as Equality in Freedom: Doctrine and Practice

Kant wrote that the law "is the totality of conditions under which the arbitrariness

of one person is commensurate with the arbitrariness of the other in terms of the

universal law of freedom." And freedom as independence from the coercive

arbitrariness of the other, he went on, "because it is compatible with each other's

freedom, consistent with the universal law, - is the only original right inherent in

every person because of his belonging to the human race." This principle of

equality in freedom is enshrined in Article 17, Section 3 of our Constitution,

according to which "the exercise of the rights and freedoms of man and citizen

should not violate the rights and freedoms of others."

However, in the Constitution there is also the provision of Article 55, Section 3

which says: "human and civil rights and freedoms may be limited by federal law

only to the extent necessary for the protection of the basis of the constitutional

or­der, morality, health, rights and lawful interests of other people, and for

ensuring the defence of the country and the security of the State". Thus, this is not

only the rights of others, but also constitutional values that can be designated as

values of the common good act as the basis for restricting human freedom in the

Constitution. Is there a contradiction between these norms of the Constitution?

And how does the norm on restricting human rights correspond to the protection of

the values of the common good with the Kantian definitions above?

First of all, I must say that there are no contradictions between the norms of the

Constitution. After all, the values of the common good listed in Article 55, Section

3 are necessary condition for the exercise of human and citizen rights. It is obvious

that a person as a member of society is vitally interested in preserving moral and

physical health of the society which he is a member of, since it is impossible to

fully ensure human rights in an immoral and sick society. A citizen as a member of

the state is interested in preserving the state, and, therefore, in protecting the

foundations of its constitutional system, in ensuring its defense and security.

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As for the question of how these norms relate to the Kantian notion of law, I would

say that they relate as concrete to abstract. Understanding the law, which is

enshrined in the Constitution and which inscribes the bearer of the law in a specific

society (with its sociocultural specifics) and the specific state (with its tasks to

protect its constitutional system and its sovereignty) is fuller and richer in content

than Kant's abstraction oriented to a citizen of the world and a member of the

global human community.

The idea of law as a person's freedom limited only by the freedom of another

person created conditions for the emancipation of the creative energy of the

individual and gave a powerful impetus to the legal development of Western

Europe. In modern times this idea contributed to the secularisation of law and

morality, and in the twentieth century it led to a revision of the notion of the state

as the main participant in the international system. Now the state is increasingly

being treated as a secondary subject of this system, responsible for ensuring the

rights of individuals. Nowadays the process of expanding individual freedom has

gained so much momentum that it has already begun to cast aside some of the

fundamental moral and religious limitations that Nature has laid (more precisely,

the biosocial evolution of mankind) into the foundation of human society, which

are not accidental, but with the goal of preserving humanity, ensuring its ability to

survive and develop.

When religion, with its belief in the "divine mind", surrendered its positions under

the burden of scientific discoveries, it was replaced by a secular cult of reason,

more precisely rationalism, not bound by an ethical framework. However,

approximately from the second half of the XX century the notion that such

unlimited rationalism carries a mortal danger began to come to the understanding.

For, denying the fundamental finiteness of the possibilities of human cognition, it

does not know any limits, including the limits of human. The pride of reason took

menacing forms: the atomic bomb and its "children" - the Chernobyl and

Fukushima; financial and economic globalism, which turns entire countries and

peoples on the planet into "extra mouths"; Human - "homunculus" as an artificial

product of genetic engineering, and then posthuman, artificial intelligence - these

are the consequences that have already taken place or are just around the corner.

In the light of these dangers it becomes clear that Kant's definition of freedom as

an original right inherent in every human being because of his belonging to the

human race is not so abstract and unlimited as it may seem at a first glance. After

all, it includes such limitations of human rights that are due to its belonging to the

human race and are associated with the need to preserve humanity. Meanwhile, life

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shows that the liberal-individualistic interpretation of human rights that is

dominant in modern legal thinking (and hence, the essence of law) often

contradicts not only the moral norms of a particular community or the principle of

the sovereignty of a state, but also unconditional imperative of preservation of

mankind as a whole, as a civilization of law. We are increasingly confronted with

this in situations where a person who imagines himself to be the crown of creation

looks at the world around not as an inter-connected environment for his existence,

being a condition for the continuation of the human race, but as a combination of

external means, which he can use for his personal well-being and self-realisation.

Current developments have already caused concern among well-known

intellectuals, whose belonging to the liberal flank of political and legal thought

gives this anxiety a particularly alarming sound. One of the first great philosophers

who expressed this thought is a celebrated liberal and humanist Karl Jaspers who,

back in the late 40s of the last century, wrote that the awareness of the significance

and inner depth of personality that was inherent in the Hebrew prophets, Greek

philosophers and Roman state figures, and which subsequently developed in

Western European theory and practice, also reveals the opposite "side of the coin".

Namely - separation of man from nature (his own, i.e. human, nature) and

separation from the human community, "withdrawal into emptiness".

As for the thesis about separation of modern man from his nature, it becomes more

understandable within the light of the work of the famous American philosopher

Francis Fukuyama "Our Posthuman Future". Referring to the results of modern

research in the field of biological and social anthropology, the author says that a

number of important moral universals are genetically programmed in human

psychology, without which, he writes, "our nature would be very different, and

fruitful social cooperation would be very fragile, if not impossible ". From the

standpoint of this approach, he warns of the dangers of mindless use of

biotechnology and genetic engineering, fraught with the formation of a posthuman,

for which human rights will be deprived of the same meaning.

No less dangerous for normal legal development is the tendency towards

separation of a person from society, weakening of social ties, atomisation of

individuals, etc., relevant for the current consumer society. The market needs a

mass of consumers, consisting not of socialised individuals, oriented to universal

values, but of carriers of individual consumer preferences. "The market language,"

writes another prominent liberal thinker Jurgen Habermas in this connection, "has

penetrated today elsewhere, it drives all inter-human relations into a scheme of

egoistic orientation toward everyone's own preferences."

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This tendency to disunity is especially evident in the destruction of the institution

of the family. I do not mean the inevitable departure from the traditional model of

the family in modern conditions (this objective process has a number of positive

legal consequences). The point is that under the flag of fighting against archaic

traditions that violate rights of individual family members, relations between

spouses are destroyed, and legal protection of the child leads to the substitution of

the institution of the family by the institution of guardianship, as well as to other

excesses, which are so rich in the practice of juvenile justice. The family is such a

form of unity between people, which has the most pronounced natural (biological)

basis. Therefore, the disruption of human relationships at this level is particularly

painful.

However, the social fabric disruptions that occur at higher levels of sociality, i.e. at

the level of society and state. Liberal social and legal philosophy, in fact, excludes

from its consideration the concept of society and concentrates completely on the

individual. Here the most striking example is the thesis repeatedly expressed by the

former British Prime Minister, Margaret Thatcher: "Society as such does not exist.

There are separate men and women, and also there are families."

Overcome dangerous trends in the development of law

I think that it would be wrong (as it is sometimes suggested) to reduce resolution of

this problem to shifting the emphasis from protecting the rights of various

minorities to priority protection of the rights of the majority. Although, as the

events of 2016 showed (for example, Brexit), the principle of protecting the rights

of the majority, long ignored by Western societies, is relevant for them too.

However, such a simplified approach is not adequate to the complexity of the

problem. It is necessary to search for such forms of individual freedom that would

not destroy the beginning of reciprocity and solidarity.

More specifically, we are talking about the following notions:

- government intervention in internal life of the family should be very cautious, it

should strengthen, rather than destroy relations between its members (i.e. the

emphasis should not be on repressive measures, but on helping the family in a

difficult situation);

- protection of human rights should not undermine moral foundations of society

and destroy its religious identity;

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- ensuring rights of citizens should not create a threat to state sovereignty;

- and, finally, protection of human dignity should not lead to rejection of those

moral universals on which mankind once was formed, and which have so far

allowed it to preserve itself from self-destruction.

These tasks are easy to formulate, but very difficult to implement. On a practical

level, a subtle legal adjustment is needed here, requiring mutually agreed efforts of

law-making and law-enforcement agencies, both at the domestic and supranational

levels. And on the theoretical level - it is necessary to rethink the very concept of

law from the perspective of those dangers of excessive rationalism and the

associated individualism of which I spoke.

Rationalism in law manifests itself most clearly in the form of legal positivism,

which identifies law with positive law (i.e. legislation in the broad sense of this

concept). Human rights in positivism are all that a person claims to be, or anything

that people can be persuaded to consider as such. However, this is tantamount to

recognising that human rights are, in essence, purely procedural phenomena. As

Francis Fukuyama remarked ironically, "if it is possible to agree by a qualified

majority (or somehow) that everyone has the right to walk in linen in a public

place, this will become a fundamental human right, together with freedom of

association and freedom of speech." Fukuyama himself proposes in this connection

to return to the jus naturalist theories of the law of ancient philosophers and

lawyers, based on the idea of a deep connection between human rights and human

nature, the connection between man and the Cosmos, man and Earth as the

common home of all mankind.

In connection with such understanding of the problem, I would like to invite all of

us to think about whether the ingenious conjecture about the deep relationship

between law and human nature was not too easily discarded at the time. And does

not a universal nature, common to all the peoples of the world, provide a natural

basis for creating a system of universal human rights? In other words, is it not a

time to seriously think about a new "edition" of the concept of natural rights, or, if

you like, about the natural-law constitution of a person?

Let me recall in a few words the history of the matter. The concept of natural law,

which was developed during the period of antiquity through the efforts of the titans

of Plato and Aristotle, was rediscovered in the 17th century by Hugo Grotius,

Francis Bacon, John Locke and other thinkers of modern times. This renewed jus

naturalism (Latin - Jus naturale) proceeded from the fact that the human mind

underlying the law is limited by nature, including the nature of man himself, in

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contrast to the absolute metaphysical divine mind. However, since the adoption of

the French Declaration on the Rights of Man and of the Citizen, the term "natural

rights" has gone out of fashion and was replaced by a more general concept of

"human rights". A natural approach to reason and right was rejected, because, as

they say, nature is blind and unreasonable, even if there is some place in it for a

meaningful beginning.

And yet history shows that there are close relations between the nature of man and

the concepts of law and morality. Otherwise how to explain, for example, the

astonishing swiftness with which the hearts of hundreds of millions of people have

won religions and doctrines that preached justice, as well as the stability and long-

term impact of their influence? Obviously, they found for themselves an already

prepared place in the souls of entire peoples. Modern research in the field of

anthropology and genetics leads to a similar conclusion, which, as I have already

mentioned, draws the Fukuyama’s attention.

I think that the turn of the theory of law to a new version of jus naturalism has long

been ripe. In any case, the modern philosophy of law is increasingly asserting the

understanding that in order to avoid a catastrophe, the human mind must observe

its natural limits and learn to listen to what harmonious with human nature Athos

tells. Therefore, any serious discussion about human rights should, in the final

analysis, be based on an understanding of the purpose of the person, and, in turn, -

on some concept of human nature, and the ideal of the nature in general. To

explore human nature outside the general natural context would be very arrogant.

As Nikolai Karamzin, paraphrasing Lafontaine, wrote, "drive nature through the

door - it will fly into the window."

But I would like to complement this statement of the problem with one more thing.

Namely - the need for a deeper understanding of the connection of man with the

mankind as a whole and with that society with which he identifies himself.

Fascinated by protection of individual human rights, we began to forget that man,

as Aristotle said, is by nature a political creature, i.e., a social one. I believe that we

need now such an adjustment of the liberal-individualistic approach to legal

understanding, which would introduce the idea of solidarity into the very notion of

law. We need a legal theory that synthesises within the framework of the notion

of the law the ideas of individual freedom and social solidarity, because they both

are the immanent components of the essence of man and, hence, the essence of

law.

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In the ideological perspective, this approach means the search for a synthesis in the

notion of the law of ideas of liberalism (D. Rawls) and communitarianism (C.

Taylor, A. Macintyre, M. Sandel).

Liberalism, which dominates in the legal systems of the modern West, postulates

that "the individual has primacy in relation to the goals that it asserts", that the

concept of morality is inferred from the principle of formal justice, that a rational

moral (autonomous) person autonomously chooses good goals and means of

activity, and that, in fact, the common good is only a sum of individual goods and

conditions necessary for their implementation.

Communitarianism proceeds from the premise that society precedes the

individual, and virtue is the acquired social characteristic of the individual in a

particular community or society. From the standpoint of this approach, the overall

benefit is not the sum of individual goods, but the common values that unite the

given society.

These fundamental differences in the notions of the common good are determined

by different approaches to law. From the point of view of liberals, there is a single,

universal morality and one universal justice. Accordingly, for any society, a single,

universal framework of legal regulations will be fair. At the same time it is

assumed that the individualism of the virtuous members of any society creates such

a treaty-state (and such a law) that can limit the belligerent individualism of the

non-virtuous. For the communitarists the idea of moral and good is determined by

the specifics of the development of a particular society; and the individual, during

his socialisation, learns (virtually and fairly) to set goals morally and to act in the

light of the common good of this society. And therefore, legal regulations are

always obliged to take into account the specifics of solidary notions about the

good, just and proper, inherent in the sociocultural majority in this particular

society.

In this regard, I want to recall that for Russian philosophy of the late ХIХ-early

XX centuries (with its teachings on conciliarity, unity, all-humanity, etc.) it was

typical to strive to unite the idea of abstract, impersonal formal legal equality with

the idea, coming from early Christianity, about everyone's responsibility not only

for themselves, but also for others. The aspiration, as experts say, is to harmonise

within the concept of law the mind and spirit, freedom and mercy, right and truth,

individual and social principles.

At one time, these ideas of Russian philosophy of law have not found a proper

response abroad. But now they can draw attention to themselves, because the

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processes of globalisation already put on the agenda the need for a global legal

order, global law, and, hence, global legal understanding. And this legal

understanding cannot be built only on the basis of a liberal-individualistic

approach, i.e. without taking into account the ideas and principles of solidarity as a

peace-building project aimed at harmonising the interests and values of all global

interaction participants.

The theoretical outlines of global law are just beginning to emerge, and it is

obvious that work in this direction will require mobilisation of intellectual potential

of all the mankind. Indeed, the development of globalisation processes depends to

a large extent on the meaning of this concept. Will they go along the path of further

expansion of global inequality (i.e. along the path of enriching the beneficiaries of

globalisation at the expense of the rest of the world), will they lead to the

destruction of national states with their democratic institutions, their social

policies, their sociocultural identity, etc. or, will globalisation promote unification

of humanity on the basis of solidarity and the creation of such a legal environment

in which sovereign legal states, as well as other subjects of global relations will

interact with each other as equals?

I hope that the achievements of the Russian philosophy of law will be in demand in

the development of the theory of global law, capable of finding a synthesis of

individual freedom and social solidarity, which will form the basis for a planetary

consensus. But for this to happen serious efforts are needed on the part of the

Russian scientific community, including those that refute existing ideas about

solidarism as an ideology of an authoritarian type. In the meantime, according to

experts, the situation is such that all over the world the ideology of solidarity is

being considered increasingly (especially against the backdrop of the crises of

recent decades) as a "philosophical stone" of the era of globalisation, and in Russia

the interest to this ideology is still buried under the wreckage of socialism.

Meanwhile, without these ideas it is impossible to understand what the true law is

under the conditions when many people perceive law-making as a purely technical

process to develop and create a new product. Without denying importance of the

creative principle in the legislative process, I want to draw attention to the need to

correctly determine the distance between reasonable innovations - and the risks of

creating painful gaps between laws and morally-ethical norms rooted in the social

majority, including mass views of virtue and sin, of good and evil, of justice and

unrighteousness.

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Next, I would like to briefly outline some of the tendencies in political and legal

development of recent years, which, in my opinion, contribute to the development

of the required legal theory, which should be built taking into account the historical

experience and intellectual potential of all mankind.

Within the framework of this lecture, I would single out two such tendencies: 1)

the marked turn from post-Christian to post-secular Europe; and 2) the desire of

states to gain their constitutional and legal identity. These seemingly different, at a

first glance, trends are actually interrelated. Moreover, both of them are directly

related to the topic under discussion, i.e. to understanding the essence of law.

Western Europe’s rejection of the ideology of radical secularisation

According to experts, such a refusal began to take shape at the end of the twentieth

century. The very term "post-secularism" was introduced into intellectual discourse

by Jurgen Habermas in 2001, when, on the heels of the events of 11 September

2001, he read his famous lecture "Faith and Knowledge". By now, post-secularism

has already become a "concept of a new strategy for political and cultural

development." The essence of this concept is establishment of a constructive

dialogue between religious and secular consciousness. And in the latter’s subtext

lies the understanding that the secularisation of law and morality has gone too far

and that such a separation from Christian roots means "withdrawal into emptiness",

which Jaspers warned in his time. Recognising the danger of such a separation,

Habermas emphasises that "the secular majority should not make decisions on

important issues before it hears the objections of opponents." And it is necessary to

listen to it already because it was the Christian culture that became a source from

which the idea of equality of people before God, legal in nature essence, and

dignity of man as a creature created in the image and likeness of God, came into

the world.

In this regard I want to recall that when working on a draft constitutional treaty of

the European Union, a discussion arose on the issue of making a reference to the

Christian roots of Europe in the preamble. There tolerance has won, which, as

journalists wrote, has rooted out the Christian legacy of Europe. And the Pope John

Paul II said at that time: "[y]ou cannot build a lasting unity, separating yourself

from the roots of which the European countries have grown." And, apparently,

some leading Western politicians have already agreed to this. Thus, several years

ago (2010), German Chancellor Angela Merkel, speaking to her party members,

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announced that it was necessary to stand up for the protection of the Christian

values on which European society rests.

It is significant that at the same time she recognised that attempts to build a

multicultural society were not successful.

The main difficulties encountered in practice by the concept of multiculturalism

are, in my opinion, the difficulties of applying the idea of tolerance to the sphere of

relations governed by law. I'm talking here not only about Europe, but rather about

Russia, which also has certain problems of this kind. The solution to these

problems seems to me not to provide special collective rights to ethnic and cultural

communities in the tideway of the ideology of multiculturalism (this experiment,

the ideological basis of which was the attempt of an eclectic unification of the

ideas of liberalism and communitarianism, clearly failed), but in strengthening

solidarity principles of human rights while preserving their validity. The

development of such solidarist principles is possible only on the basis of fair and

equitable agreements between states belonging to different socio-cultural systems

that, without giving up their civilizational (including legal) identity, will be able to

agree on the question of what is the essence of law.

Particularly complex are the problems caused by the implementation of liberalism's

attitudes to the increasingly full "freedom of gender identity." We see how the

promotion of such freedom is included in the programs of private and public

kindergartens and in social benefits for young parents. In public policy there is

often a growing distrust to the traditional family and parents as supporters and

guides of the "outdated" gender norms or methods of upbringing, and there are

laws adopted to justify and encourage direct intervention by state guardianship

authorities in family affairs. And as in many countries the implementation of such

a policy at the level of legal regulations increasingly leads to various kinds of

excesses.

In recent years, the situation, especially in Europe, has been dramatically

complicated by mass immigration. That is why many jurists now ask themselves

what are legal ways to resolve the problems, which openly call into question social

and political stability of many countries of the world. And, as we know, Russia

(including, the reasons of mass immigration and growing tensions in the sphere of

family legislation) - does not at all remain aside of these problems.

And here I come to the second trend I mentioned, which is connected to the desire

of modern states to comprehend and defend their constitutional and legal

identity.

15

This trend, like most modern political and legal trends, is ultimately due to

globalisation, which has led to tectonic shifts in the entire system of the world

order. These changes and the changes they bring about are not only good, but also

huge risks and the costs, which (albeit to varying degrees) concern ordinary people

in all regions of the world became already quite obvious.

For countries that are not among the leaders of technological progress globalisation

carries the risk of fixing their periphery and in some cases of complete

marginalisation. I will not give here figures that indicate acceleration in the growth

of global inequality and its most egregious manifestations, related to the over-

consumption of some and the poverty of others. But even in relatively prosperous

developing countries, weakening of the regulatory role of the state (inevitable in

the context of globalisation) is painful for an average person, i.e. weakening of

social policy in the field of health, education, pensions, fighting unemployment,

poverty, etc. Similar problems, albeit to a much lesser extent, arise for citizens of

states belonging to the group of leaders of globalisation. But there are also their

own problems associated to migration pressure on the social sphere of these states,

with growth of the terrorist threat, with dangerous instability of financial relations

in the context of an uncontrolled globalisation of financial markets, environmental

degradation, etc.

All this causes a desire to oppose spontaneous processes of socio-cultural

globalisation with an understanding of one's own specifics that cannot be

universalised. At the level of mass consciousness, it manifests itself in the desire to

formulate its religious, national or regional (e.g. European) identity, revive

traditional values etc., whereas at the level of public authorities - in an effort to

prevent erosion of national-state sovereignty and to confirm constitutional-legal

identity of the state.

All these problems are especially acute in the post-Soviet space. As the American

sociologist Manuel Castells, who carried out a series of studies in Russia, wrote in

the mid-1990s: "The Russian people and the peoples of the former Soviet societies

will have to go through the restoration of their collective identity in a world where

the flows of power and money try to disintegrate the emerging economic and social

institutions even before they finally took shape to absorb these institutions in their

global networks. Nowhere is the ongoing struggle between global economic flows

and cultural identity more important than in the vast wasteland created by the

collapse of Soviet etatism...".

The listed risks and costs of globalisation are imposed on the discontent of citizens

of national states with expansion of supranational regulation, democratic deficit of

16

which is becoming increasingly evident. Under the notion of democratic deficit, I

mean the lack of a full-fledged opportunity for citizens to influence decision-

making in areas where they traditionally consider their voice significant (for

example, in terms of uniting into alliances with other states, transferring

competence to supranational bodies, opening borders, influencing processes of

appointment of judges to supranational judicial bodies and so on).

Particular attention should be paid to the problem of democratic deficit of

supranational bodies for the protection of human rights, including the European

Court of Human Rights. Since the entry into force of the Additional Protocol No.

11 to the Convention for the Protection of Human Rights and Fundamental

Freedoms, the ECtHR has received all the formal opportunities to purposefully

change the Convention system and more freely implement its activist position, for

which the Court uses a variety of theoretical justifications and constructions,

starting with the doctrine of European consensus and the states’ margin of

appreciation to understanding of the Convention as a "living instrument". At the

same time, the influence of citizens of European states on the Court itself is

practically minimised which, on the one hand, allows to ensure independence of

this body but, on the other hand, separates it from real social needs and from the

real consensus that takes place in societies.

Hence, the need to create certain counter-limits, as the Italian Constitutional Court

puts it, which would not allow the supranational jurisdictional body to step too far

in its activist activities, becomes necessary. The ECtHR has a well-defined, but at

the meantime controversial, doctrine of margin of appreciation. However, national

states have (and it follows directly from their constitutions) their own limits of

compliance, which are outlined by their understanding of their national

constitutional identity.

The notion of constitutional identity in the Russian constitutional and legal practice

appeared only recently. For the first time it was used in the Judgements of the

Constitutional Court of 14 July 2015 No. 21-P and of 16 April 2016 on the case

concerning the resolution of the question of the possibility to execute in

accordance with the Constitution of the Russian Federation the Judgment of the

European Court of Human Rights of 4th July, 2013 in the case of Anchugov and

Gladkov v. Russia in connection with the request of the Ministry of Justice of the

Russian Federation counting that the norm of the Russian Constitution (Section 3

of Article 32), which prohibits participation in elections for persons held in places

of deprivation of liberty, does not comply with the Convention for the Protection

of Human Rights and Fundamental Freedoms. However, theoretical approaches to

17

this problem began to be formed much earlier (the Markin v. Russia case was a

trigger in this respect).

Undoubtedly, development of the doctrine was influenced by foreign legal

practice, where the concept has been actively applied. The concept or idea of

constitutional identity is used to some extent by bodies of constitutional control

around the world to justify the most difficult decisions. At the same time, they

often proceed from the fact that it is the written constitution that is the quintessence

of constitutional identity of a nation. For example, the Federal Constitutional Court

of Germany noted in its decisions that in the Basic Law of the country there are

such provisions that express the fundamentals of the German state and which

cannot be changed. The Supreme Court of India in Minerva Mills Ltd. v Union of

India directly said that "the Constitution is a precious heritage, which identity

cannot be changed." In Ireland, the 1937 Constitution places family values and

Catholicism at the centre of the state's constitutional identity. Because of these

issues there is a long and highly controversial practice of the ECtHR against

Ireland, where until now the regulation of abortion remains the most stringent

among the states of the Council of Europe. At the same time, the ECtHR refuses to

finally recognise the Irish regulation and the law-enforcement practice based

thereon not in compliance with the European Convention.

Does this example of Ireland mean that the European Court recognises existence of

some constitutional identity of states to which it cannot interfere? In this context, it

is particularly incomprehensible and questionable from the point of view of the

consistency of the case-law of the European Court that its reluctance to take into

account peculiarities of the Constitution of Russia and, in particular, the fact that

the constitutional rule, recognised incompatible to the European Convention,

cannot be reviewed by the federal legislator. I am referring to the norms of Article

32, Section 3 of the Constitution, according to which persons held in places of

deprivation of liberty do not have the right to vote. According to our Constitution,

the revision of this rule contained in the Second Chapter is possible only as a result

of adoption of a new Constitution of the country. An assumption that such a

conflict can be resolved through activist interpretation of the provision by the

Constitutional Court (which, in fact, the judges of the ECtHR expected) clearly did

not correspond to the powers of constitutional justice. The fact is that the national

bodies of constitutional control do not have the same degree of freedom in

interpretation of the Constitution which judges of the ECtHR allow themselves in

their interpretation of the abstract provisions of the European Convention.

Evolutive interpretation of the Convention by the European Court, in fact, is aimed

at creation of a new unified European legal order, while national constitutional

18

justice is more closely related to the text of the constitution, which is the result of a

historically conditioned national consensus. The Constitutional Court cannot go

beyond the limits of interpretation established both by the Constitution itself and

by the conventions that form the basis of constitutional identity of the people.

In explaining this thesis it should be noted that although the concept of

constitutional identity has not yet been sufficiently developed, nevertheless,

experts do not limit interpretation of this concept only by the text of the

Constitution. For example, the French professor Michel Troper writes:

"Constitutional identity manifests itself in the process of singling out certain

essential principles that differ from all other norms of the constitution and which

can be invoked to protect the constitution itself in the event of a threat to it that

could disrupt communication between the very constitution and the people or

people to whom it is called to serve".

Thus, the basis of the concept of constitutional identity conprises recognition of the

fact that the understanding of human rights in a particular state is the result of a

public consensus on the question of what a person is and what his human dignity

is. Once we accept this thesis, we must agree with the following conclusions:

1) public consent within the issue of human rights in different states has a socio-

cultural specificity;

2) this is exactly the public consent which is established by the majority of society

and is established for the majority.

I do not mean at all that the theory of constitutional identity is oriented only to the

protection of the rights of the majority. I just want to emphasise that the rights of

minorities can be protected to the extent which the majority agrees to. If a "legally

advanced" part of the society believes that the majority does not do enough to

protect minorities, then this "advanced" part shall find ways to persuade the

majority in the need for legal improvement in word and deed. This is a difficult,

ungrateful work, not designed for a rapid success. But there is no other way,

unfortunately. Because the attempts to impose on a society views regarding dignity

of the person and rights of certain minorities, not specific to such a society, can be

effective only in very narrow limits.

This is applicable not only to Russia. Indeed, the current surge of populism in the

West is largely due to an underestimation of the majority's opinion and

infringement of the latter’s rights.

19

The doctrine of constitutional identity, which still has to be elaborated, can serve as

a "watershed" that is potentially capable of separating acceptable and sometimes

desirable changes in the internal constitutional legal order, inspired, for example,

by a supranational body for the protection of human rights, and the principles

which states, recognising compulsory jurisdiction of such bodies, cannot deny.

This raises a question directly related to the topic of our lecture: what is a dividing

line in this regard? Or more precisely: what legal principle expressing the

essence of law should judges of the Constitutional Court be guided in the event of

a conflict of interpretations with a supranational judicial authority?

In my opinion, the answer is that it is necessary to be guided by the principle of

good faith. The principle of bona fides, appeared in Roman private law, nowadays

more confidently declares itself as a legal (and not moral) principle also in the

sphere of international and supranational relations. The legal nature of this

principle derives from comprehension of its internal relationship with the general

legal principle of equality and the constitutional principle of justice that follows

therefrom. Bona fides as a principle of good faith cooperation of states, that have

agreed to accept jurisdiction of a supranational body, presupposes both loyalty to

the treaty (in the original form in which it was agreed) on the part of its

participants, and the supranational body's obligation to take into account

reasonable expectations of all participants of a relevant international treaty. With

this regard this principle is one of the expressions of equality of an international

agreement’s participants. From the standpoint of this principle it is obvious that

when one state becomes more closely scrutinised in comparison to the others or

when a supranational body begins to fulfil its statutory functions with an eye to

political rather than legal considerations, the principle of good faith is violated.

A barrier against such violations can be development by each interested state of its

concept of national constitutional identity, the rolling-in of these concepts in the

framework of a wide international discourse within the framework of various

international political and legal institutions, as well as on sites for scientific

communication and exchange of practical experience. Only on the basis of such a

wide interaction we can develop common theoretical and legal approaches to

understanding law and basic human rights that would be authoritative for the

relevant supranational bodies. And only this way of solving the problem will allow

states belonging to different socio-cultural systems, without giving up their legal

identity, agree on what is the essence of law in the modern world, and to

implement these agreements in the framework of supranational regulation.

20

At the same time we proceed from the fact that constitutional legal orders of

different states are interrelated and influence each other. These different and

interdependent law and order have common international legal obligations, but

these obligations are understood in each state in their own way: they are interpreted

in the light of national constitutions and national legal traditions, taking into

account that in reaching these commitments, a minimum level of common

understanding of their legal essence has been achieved. A vivid example is the

different understanding of freedom of religion in France with its "principle of

secularism" (laïcité) and in Italy, where the Catholic Church still plays a very

important role in the affairs of the state.

Each state passes through the necessary stage of "harmonisation" of its legal

system with international obligations, which objectives, taking into account the

principle of good faith, are the openness of the legal system to new positive

changes and its stability that does not allow erosion of national constitutional

provisions and human rights guarantees. At the same time a preliminary stage of

such coordination is a theoretical comprehension of one's own constitutional legal

identity.

In a practical perspective the barrier against excessive, i.e. not completely good-

faith, expansion by supranational structures is the empowerment of a national body

of constitutional justice with the right to exercise control over supranational acts of

interpretation. Proceeding from recognition of the need for such barriers, the

Russian legislator included in the FKZ "On the Constitutional Court of the Russian

Federation" a legal mechanism for resolving the issue of possibility or

impossibility from the point of view of the principles of supremacy and supreme

legal force of the Constitution of Russia to execute a judgment of the European

Court, which (and this has a fundamental importance) existed at the time of

ratification of the Convention and were not disputed by anyone.

The Constitutional Court has already exercised this right twice. The first time

occurred after the Ministry of Justice of the Russian Federation asked us about the

possibility of execution of the ECtHR judgement on the voting rights of prisoners.

The ECtHR, as it is well-known, did not take into account the fact that the

applicants challenged the norm of the Constitution, which can only be changed as a

result of adoption of a new Basic Law of the country. In this regard, in the ECtHR

Judgment it was noted only that the respondent State can achieve compliance with

the Convention "at the expense of some form of political process or interpretation

of the Russian Constitution ...". Thus, Russia was offered either to adopt a new

Constitution, or to give a very liberal interpretation to the text.

21

As for the adoption of a new Constitution, it is quite obvious that the

implementation of this proposal would be a powerful factor in destabilising the

socio-political situation in the country, because the most diverse political forces

that are now calling for constitutional reform would try to use the situation for their

own purposes. More than that, the principle issue of the correlation between the

legal force of the Russian Constitution and the European Convention was touched

upon here. The second proposal - to solve the problem through interpretation – was

not possible to implement, as I said earlier, due to the fact that the judges of the

Constitutional Court do not have such a great degree of freedom in interpreting the

Constitution, which ECtHR judges can afford.

Nevertheless, we found an opportunity to fulfil the main requirement of the ECtHR

regarding the differentiation of restrictive measures in respect of electoral rights of

prisoners. The Constitutional Court of the Russian Federation has decided to

recognise the implementation of this decision of the ECtHR – in respect of general

measures that ensure fairness, proportionality and differentiation of the application

of electoral rights restrictions - possible and enforceable in Russian legislation and

jurisprudence, because as a general rule imprisonment and subsequent deprivation

of the voting rights of convicts who committed small gravity crimes for the first

time is excluded. In respect of the convicts who committed medium gravity crimes

and grave crimes deprivation of freedom is imposed by the court's verdict and,

therefore, entails deprivation of electoral rights only if a less severe form of

punishment cannot ensure achievement of the goals of punishment.

Moreover, the Constitutional Court of the Russian Federation noted that the

legislator is competent to consistently implement the principle of humanism in

criminal law, to optimise the system of criminal punishments, including transfer of

certain regimes of serving imprisonment to alternative types of punishment,

although related to the restricted confinement of convicts, but not involving

restrictions on their voting rights.

Proceeding from the standards established by the ECtHR itself, deprivation of

suffrage for serious crimes (i.e. crimes punishable by imprisonment for a period of

three years or more) cannot be considered a violation of the principle of

proportionality. The applicants S.B. Anchugov and V.M. Gladkov were convicted

(as a substitute for the death penalty) for fifteen years of imprisonment for

particularly serious crimes and, therefore, deprived of their voting rights. Hence,

they cannot be considered victims of an offense, and their rights guaranteed by

Article 3 of Protocol No. 1 to the Convention cannot be considered violated.

22

Consequently, the resolution of Anchugov and Gladkov v. Russia is, in essence, an

act of abstract review (in abstracto) by the ECtHR.

The second case is the so-called Yukos case. The Ministry of Justice again

appealed to us. The application concerned the possibility of execution the ECtHR

decision, which obliged Russia to pay compensation of € 1.8 billion to Yukos ex-

shareholders. The main reproach put forward by the European Court was

connected to the Judgement of the Constitutional Court of 2005, which recognised

constitutionality of the retroactive application of penalties for 2000 and 2001 and

the enforcement fee for these sanctions against the Yukos Company.

In addressing this issue, both in 2005 and in 2017, we proceeded from the premise

that the main legal guideline in this kind of complex legal disputes is the principle

of good faith, in the interpretation of which constitutional identity of the country

and the historical aspects of the problem, lying at the bottom of the dispute are

manifested. In this case the principle of good faith implies that one cannot benefit

from his unfair actions. And if, due to the opposition of the taxpayer to exercising

control, tax sanctions could not be imposed for only one reason - for the expiry of

the limitation period, it would be possible to derive benefit from the abuse of law.

And this, in turn, would lead to discrimination against those taxpayers who, having

committed similar acts did not interfere with the conduct of the tax audit and were

brought to tax liability in compliance with the statute of limitations.

Obviously, application of a single scale to participants in legal relations in this case

requires providing a differentiated approach to those taxpayers who, in opposition

to tax control, would use the provision on the limitation period in spite of its goal,

i.e. to the detriment of the rights of other taxpayers and legitimate public interests.

At the same time, the interpretation of the meaning of the relevant article of the

Tax Code of the Russian Federation with regard to cases of dishonest taxpayers

implemented by the Constitutional Court cannot be regarded as a new rule

imposing sanction for obstructing the conduct of a tax audit. After all, the state,

when drawing up the act on violation of tax legislation, clearly expressed its will to

further collect tax sanctions. Thus, the taxpayer could (and should have) foreseen

that the state would take measures to recover these sanctions therefrom, regardless

of the tax-payer’s opposition, which led to the expiration of the statute of

limitations.

The historical context of the problem is also important. Having just overcome the

political and economic instability of the 1990s, the Russian state was able to begin

a full-scale tax reform only in the early 2000s, which was marked by the adoption

of the Tax Code of the Russian Federation. Particularly important during this

23

period was the creation of such legal mechanisms for collecting taxes and

controlling their payment, which would have made it possible to achieve the

fulfilment of the tax obligation by all categories of taxpayers, including the largest

taxpayers playing a systemic role in filling budgets. The continuous appearance of

new options for tax evasion seriously hinders creation of legislative rules that can

effectively counter all possible cases of their violation. As experience of other

states shows, it is not always possible to solve this problem by legislative means

alone, which determines the special role of judicial doctrines. In the Russian

judicial system, the interpretation of the law by the highest judicial bodies is also

called upon to have a significant impact on the formation of judicial practice in tax

disputes.

However, as the Director of the Directorate General for Human Rights and the

Rule of Law of the Council of Europe, Mr Boillat, rightly noted, the Constitutional

Court in this case “left the door open too” noting in its resolution that the

Government of the Russian Federation can ensure that shareholders receive the

amounts due to them, if extra-budgetary funds belonging to the Yukos company

will be found. Our decision unequivocally directs the Government to facilitate this

process.

In both cases discussed above, the Constitutional Court in its decisions speaks of

readiness for a compromise, the boundaries of which are outlined by the

Constitution of the Russian Federation, and expresses the desire for the maximum

possible harmonisation of identity of the constitutional legal order with universal

provisions of the European Convention.

The Constitutional Court of the Russian Federation has repeatedly demonstrated a

flexible approach to understanding the constitutional identity of Russia in the light

of its obligations as a member of the Council of Europe. One of the most striking

examples is our decision on the question of the death penalty. Let me remind you

that when Russia joined the Council of Europe it was assumed that the temporary

moratorium on the application of the death penalty - after the ratification of

Protocol No. 6 – would be transformed into a permanent rule. However, the

Protocol No. 6 has not yet been ratified.

Nevertheless, thanks to the decisions of the Constitutional Court, Russia has

established stable guarantees of the right not to be subjected to death penalty and a

legitimate constitutional and legal regime has been formed under which, taking

into account international legal trends and the obligations undertaken by the

Russian Federation, an irreversible process has been taking place. This process is

aimed at abolishing death penalty, as an exceptional measure of punishment that is

24

temporary ("pending its cancellation"). Making these decisions, we proceeded

from the premise that the constitutional and legal identity of the Russian

Federation has changed since the moment of joining the Council of Europe, and

now it is an inseparable part of it to recognise inadmissibility of the imposition of

death penalty.

Thus, the Constitutional Court is ready to meet the international community and

expand the guarantees of human rights in the event that there is a necessary stable

constitutional and legal framework therefor. We proceed from the premise that it is

in the dialogue and coordination, and not at all in vertical subordination, where the

Russian legal order would occupy a subordinate position in relation to the

supranational law and order, is the essence of the legal approach to solving

disputable problems.

Law against Chaos

Many jurists acknowledge that one of the reasons for the abnormal behaviour of

individuals or even the broad masses in the modern world is not only and not so

much the "asociality" of violators of a legal order, but rather conflicts between

different social normatives, and between these normatives and the law. Lawyers at

the same time often say that many people simply do not have time to learn,

comprehend and internally accept the law. Above all this refers to legislative

innovations arising due to the requirements of changes (social, economic, political,

etc.).

Of course, I, as a lawyer, know perfectly well that a social state or international

system, stuck in its self-restrained immutability, are doomed to decay and

perdition, and that legal innovations in a rapidly developing global world are

urgently needed. But at the same time I well understand that the legal novelty is

different. And that it is necessary to be able to accurately determine the distance

between reasonable innovations - and the risks of creating painful gaps between

new laws and morally-ethical norms rooted in the social majority. Including mass

views of virtue and sin, of good and evil, of justice and unrighteousness.

The history of law tells us that an unjustified flow of "innovative" law-making can

create such gaps in social and regulatory fabric of society through which the chaos

of the "troubled time" almost instantly enters. And that such processes install in the

masses such fear that they are ready to accept any - even totalitarian - order (an

"electronic dictator"), capable of curbing the outraged elements.

25

So it happened with all the big revolutions, accompanied by a radical break-up of

the old legal system. The historical lesson of Weimar Germany is especially

obvious to us. Where the growing gap between the supercritical social reality and

the extremely "free" new legal norms that ignore this reality emerge, there a

country plunged very quickly into political, economic, social chaos. Into the same

chaos, the horror of which led to power - and quite democratically - the Nazi Party

and Hitler.

But even if we are not talking about the threat of a totalitarian degeneration of

society and the state, chaos ultimately inevitably has to be pacified: more severe

and painful legal measures to moderate, deeper the crisis-chaotic "damage to

morals" and the wider the flow of unjustified legislative novelty, which provoked

the chaos.

Hence the logical conclusion with respect to the development strategy of national

legal systems can be made - one cannot deepen the gaps between natural social

sentiments of the good, the right and the fair - and a new legal normality. It is

impossible, by ignoring the basic values and moral and ethical settings of the

overwhelming social majority, to impose legislative normativity, which denies or

casts doubt on the basic values of the common good.

In the name of the unity of past, present and future generations, we are obliged to

preserve law as an art of good and just. Save humanity as a civilization of law.