TEN LECTURES ON LAW

Ten Lectures on Law

В. Д. Зорькин





                Десять лекций о праве









НОРМА
Москва, 2021

Valery Zorkin





                Ten Lectures on Law











NORMA
Moscow, 2021

УДК [342.4+342.565.2](470+571)
ББК 67.400.12(2Рос)-9+67.400.2(2Рос)

Электронно


З86

znanium.com

Author

    Valery Zorkin is the President of the Constitutional Court of the Russian Federation. Professor, Doctor of Science in Law, Lawyer Emeritus of the Russian Federation.










      Zorkin V.
З86 Ten Lectures on Law : monograph / V. Zorkin. — NORMA publishing house, 2021. — 344 p.
          ISBN 978-5-00156-174-3 (Norma)
          ISBN 978-5-16-109485-3 (INFRA-M, online)
          The author views law as a unique artefact of social order (in the words of ancient Roman jurists, jus est ars boni et aequi — “law is the art of the good and justice”) in humanity’s struggle against the many-faced social chaos. The law is proposed to be viewed as a normative form of human freedom in personal social interactions. Key issues of the legal doctrine and practice are analysed in the sociocultural context of current national and global changes. Legal issues of Russia’s development touched upon in this book are presented taking into account the amendments introduced into the Constitution in 2020.
          The publication is based on the lectures delivered by the author at the St Petersburg International Legal Forum. It is intended for those specializing in the general theory and philosophy of law, constitutional and international law.


                                            УДК [342.4+342.565.2](470+571)
                                            ББК 67.400.12(2Рос)-9+67.400.2(2Рос)

ISBN 978-5-00156-174-3 (Norma)
ISBN 978-5-16-109485-3 (INFRA-M, online)

© Зорькин В. Д., 2021
© Zorkin V. D., 2021

Contents


Foreword. Law at the crossroads of times ............................ 8
I.  “Mystery of lawlessness” and equality in freedom ................15
       1.  On the danger of discrepancy between the normativity of morals and law .........................................15
       2.  Law as a normative form of freedom .......................25
       3.  On how to overcome deviations from the essence of law ....34
II. Crisis of law in postmodernist hues ............................ 46
       1.  Law in the context of postmodernist relativism .......... 46
       2.  Underlying sources of the political and legal crisis of the global world ..........................................55
       3.  State and legal identity in the context of globalization .63
III. To the law of metamodernism: sociocultural roots of understanding law ................................................73
       1.  Metamodernism as a new paradigm of legal thought .........73
       2.  On natural law in the context of coevolution of human and nature ................................................86
       3.  Law and law enforcement: an interdisciplinary approach ...98
       4.  Tabula rasa: can we rewrite the Constitution from a clean slate? ......................................105
IV.  Russia before the legal barrier .............................. 112
       1.  Legislative reforms: “management of the future” ........ 112
       2.  In search of harmony: on Russia’s first parliamentary experience .............................................. 121
       3.  Academician Vladik Nersesyants’ civilism concept as a philosophical and legal reflection on the outcomes of socialism .............................................130

Contents

V.  To social integration — through law ........................... 142
        1. The constitutional basis of social harmony ............. 143
        2. Correlation between law, social justice and democracy .. 152
       3.  Legal awareness is the core of the Russia-wide social integration ..........................................159
       4.  Preservation of Russia’s constitutional identity as a strategic issue ........................................ 164
VI.  Russia and Strasbourg: 25 years after ........................ 179
       1.  Legal standards of the Council of Europe and modernization of Russian legal framework .................................. 179
       2.  The ECtHR and constitutional justice: conflicts of interpretation ........................................... 185
        3. The supremacy of the Constitution of the Russian Federation
          is an enforceability criterion of ECtHR judgements .......196
       4.  Constitutional “limits of compliance,” or the reason why one cannot agree with the Venice Commission ............ 206
VII.  Political origins of the erosion of law ..................... 218
       1.  Fascist barbarity, “forced democratization” and “controlled chaos” ...................................... 218
       2.  Policy of “double standards” as an instrument of chaotization of law ......................................238
        3. Demolition of the legal frameworks of the global world ..250
VIII.  Justice is an imperative of the civilization of law .........262
        1. Justice as a legal phenomenon ...........................262
        2. A just world order is a legal order .....................269
        3. A synthesis of individual freedom and social solidarity .277
        4. To the new world order ..................................285
IX.  Law and today’s scientific and technological revolution .......291
       1.  Legal challenges of scientific and technological development .................................................291
        2. On human rights amid digitalization .....................297
        3. Law and artificial intelligence .........................303
        4. Digital technology and governance modernization .........307

Contents                                                               7

X.   Providencia: on law of the future in the world of digits ..... 311
        1. New reality and new challenges for the civilization of law . 311
        2. The danger of new challenges ........................... 318
       3.  On the content of law of the future and the right to the future ...............................................324
One last thing the world of law will never be the same ............ 331

        Foreword. Law at the crossroads of times

   “The Sleep of Reason Produces Monsters”: this is how Francisco Goya called his famous work made at the end of the 18th century. The artist himself wrote the following caption to it: “Imagination abandoned by reason produces impossible monsters; united with her, she is the mother of the arts and source of their wonders.”
   Having woken up from the “hibernation” of the Middle Ages, the mind gave humanity the law of modern time — law of modernism based on the recognition of personal dignity and equality of all before the law and the court. For centuries, religion was considered to be an indisputable source of reason, but under the weight of scientific discoveries the “divine reason” surrendered its position, and then its substitute was invented: the secular cult of rationalism not bound by any ethical framework. And without such a bond, the mind is an absolute: not a part of nature, but a master who reigns over it as an object and believes that everything it touches belongs to it. Today, the world is clearly experiencing signs of a crisis of the development model based on an absolute, unbridled, bare rationalism.
   Approximately from the second half of the 20th century, people began to realize that this kind of unlimited rationalism harbours a mortal danger of a new apocalyptic slumber. It knows no limits, including human ones, and denies that human cognitive abilities are fundamentally limited. The most dangerous manifestation of the soulless, mechanistic rationalism is the desire of certain great political powers, without regard for anything, to immediately remake the world according to their own recipe and to impose the order that they declare as uniquely rational and just, using what they see as their overwhelming intellectual and technological superiority.
   Other threats hide behind the impressive advances in artificial intelligence development that can lead to consequences which, obviously, can either dramatically improve the life of humanity or become the worst that can happen to it. Similar concerns can be put forward regarding a num

Foreword. Law at the crossroads of times

9

ber of other inventions: primarily those advances in the field of modern biotechnology that are associated with the invasion into human biology.
   Such rationalism is spontaneous and blind; it brings us to a point of singularity, beyond which any predictions of the model of society development become meaningless. All this indicates that when the mind is fully emancipated from its emotional and moral component and refuses to learn “the reasonable, the good, the eternal,” it becomes destructive. To avoid a disaster, the mind must observe its natural limits, learn to listen and express in law what it is told by the Ethos which is harmonious with human nature.
   Rationalism in law as the sphere of the due took the form of legal positivism correlating with the concept of positive law, i.e. universally binding laws and regulations whose binding nature is enforced by the powers that be. According to legal positivism, human rights are everything that the authorities declare as such, or everything that people can be persuaded to consider as such. However, such an interpretation is equal to recognizing that human rights are a purely procedural matter.
   Constant attempts to maximize the scope of rights and obligations also stem from this positivist approach, since everyone wants to ensure the priority of certain interests over others. And this leads to a kind of inflation of legislative material, which starts to include random regulations that, in essence, have no legal substance.
   At the same time, legal positivism sits well with the common people’s sense of justice, because an absolute majority, without delving into the essence of things, firmly believes that the law is just a framework of laws composed for administrative convenience, and that anyone with authority can change it at their own discretion.
   “Power precedes law,” believe the architects of Realpolitik that is based on the criterion of practical expediency. But as Chancellor Otto von Bismarck, the creator of this policy, himself said (however, he was not the first to be credited with the aphorism), “You can do anything with a bayonet except sit on it.” Just as the hands of a clock do not move time, so legislation does not create law, but marks its natural course. The things that were hastily invented and adopted under the guise of law for ulterior purposes and immediate gains are nothing more than “legal spam.” Rulers, relying only on power and treating law as a servant, sooner or later depart, leaving behind only the paper husks of dead laws.

Foreword. Law at the crossroads of times

   The issue of proportionality of law and power is a fundamental one for the entire international legal theory and practice. The fate of not only states but the entire humanity depends on its solution. It is especially relevant in the current era of global changes. Recently these changes were so rapid that it left legal systems — both national and international — lagging far behind. As a result, it not just paves the way for numerous legal conflicts, but also creates regular precedents of national and international processes transcending any legal boundaries whatsoever. And this means entering the realm of pure power which, in essence, is arbitrariness, the opposite of law as a normative form of freedom based on the principles of equality and justice.
   One of the main factors of the current changes is globalization, which is picking up its speed and scale, contributing to closer communication, connectivity and interdependence of countries and regions. Apart from benefits, globalization introduces into our lives a dramatic instability that lays bare the fragile, transcendent and uncertain nature of the modern world.
   Having understood all this, some people start acting more carefully, according to the “if only it would not collapse” principle, while others cynically try to use this “existential fragility” in their own interests. Some are excited about current changes and hopeful about the positive outcome of the current and future changes, embracing the new scale and pace of human communication and new, ever more complex and powerful, technologies, as well as new economic possibilities. Others, on the contrary, are nostalgic for the former stability of the world and think that current instability robs people of their freedom.
   Starting from the 1990s, analysts began interpreting the current world situation using the terms of the catastrophe theory, And in the first decade of the 21st century phrases like “global turbulence” and “creative chaos” found their way into the vocabulary of the current policymakers. In today’s globalized, deeply interconnected reality that is oversaturated with information, we deal with the crisis of global economy, global politics and global sociality. It fully applies to law as well. Events in Yugoslavia, Libya, Egypt, Syria and Ukraine are not just signs of a new era of “global turbulence”; in fact, it is an attempt to totally negate the legal principles of human life that have been introduced by the law of modernism and that we habitually regard as vital as the air we breathe.