«The problems of building a civil society in modern Russia and its dialogue with the West «

By Velichko A.M.,

Doctor of Law

Перевод Е. Скоковой

I.

There are some absolute criteria without which no modern political society can be recognized as civilized and cultural. These criteria are the following: the role of law, citizen participation in the activities of the state (active and passive suffrage), the openness of government, the existence of institutions of «civil society» etc. Despite of the fact that these principles are axiomatic, they were widely recognized. It is obvious that their role is to provide freedom of the individual in a wide meaning of the word. It is assumed that only in this case the person is able to demonstrate his skills and his talents implement and satisfy his needs. And this is a main task of the political society.

The modern Russian society is rightly criticized for the fact that it does not correspond to the mentioned requirements. Today the rule of law in Russia looks more like a distant aim , «civil society » includes only a few highly questionable human rights organizations , the political activity of the population is not high . Local government is being reformed once again (to be exact it is the fifth time) for the past twenty years, but it has not reached the West European level, it is inert and bureaucratic. In this respect, the criticism of our colleagues from Europe is completely justified and understandable. Unfortunately, until now we have not been able to get rid of atavism of the Soviet political system, which was based on ideas absolutely different from the traditional Western values ​​. However, they were different from the human ones as well. However, we are striving to them by all means. Our level of corruption looks absolutely fabulous, and the public confidence in the government and law is decreasing.

Does it mean that Russia is the type of a state which, by its nature, is not able to live in a civilized society? Unfortunately, it should be recognized that such opinions are not rare in the West. But if Russia can not live in a legal area, it is automatically deleted from the circle of civilized nations. Such conclusions take place after reading some works which are not a single thing.

For example, the following assessment of the legal culture of Russia is a traditional one. «One of the characteristic features of a Russian pre-revolutionary thought was a negative attitude to the law. A liberal conception of law was rejected for a variety of reasons: for the sake of autocracy or anarchy, for the sake of Christ or Marx, for the sake of higher spiritual values ​​and material equality. »

Obviously, if such assessment is correct it is no longer necessary to speak about any «civil society» and the rule of law in Russia. Such discussions are useless both now and in the future. The recent experiments of implementation of Western political ideas in Russia are not suitable according to their consequences and they are often a good example of «illegal » nature of the Russian state. Naturally for those who are inclined to this view.

However, the exclusion of Russia from the legal states is hardly justified. Even from the general concepts that the legal science should follow, we can understand the falsity of this statement. Russia has been existing for more than 1,200 years in the form of state. And it means such a level of civilization development, when relations between people are not regulated by religious traditions and customs, but by the law. As it is known, for the existence of the law it is necessary to have the highest political authority of the nation, the social hierarchy, the state of thinking among the citizens — i.e. a high level of culture. If society exists and develops (and this fact with regard to Russia, no one can deny), it obligatory cultivates (creates, selects and develops) some legal concepts and conventions. In other words, it forms its own legal culture. Otherwise, can anybody name extra-legal states which have been existing for thousands of years?

It is not possible to ignore the facts of history. Throughout its existence Russia showed an obvious tendency to build its life on the legal basis. Even in the IXth century our ancestors used the term «law» to distinguish it from custom in the same way as we do today.

For ages freedom and dignity of Russian person has been defended by Byzantine nomocanons, international treaties , «the Charter» of St. Vladimir, » the Russian Truth» of Yaroslav the Great, «Pskov Judicial Charter «, » Novgorod Judicial Charter «, «the Code of Laws » of John III, « Stoglav » and » the King’s Code of Laws «of John IV, « the Rudder » and «the Council Code » of Alexey Mikhailovich, developed legislations of  Peter I, of Catherine II and of Paul I,  brilliant laws of Alexander II and other Russian monarchs. Moreover, starting with the XVIIIth century, the law becomes the only source of law for the Russian Empire.

Russian laws were characterized by beautiful and perfectly legal technique of «the Roman approach», i.e. a European one to form its own legal system, was established on the principle of codification. Thus, we were able to see that according to its antiquity and diversity Russian law is not worse than the one of European countries.

And that’s not all. Typically, individual freedom is directly connected with certain range of political institutions with the help of which it can be realized. In particular, the presence of representative bodies of local self-government and an independent judiciary can help in it. However, in this case, we can notice how the representation of people appeared in Russia.

It is well known that under Tsar Ivan IV the Terrible (1547-1584) the county management was established. Almost at the same time the practice of the county meetings began. Of course, they played an extremely important role in the development of Russian statehood and ensuring freedom of individual. But these political institutions existed in Russia and in other form up to the XVIth century and afterwards. And they were not less effective that their Western European counterparts. Thus, in this respect, the West and Russia were not too different from each other.

Were human rights violated in Russia? However, they were violated even in the West and today it is possible to give a lot of examples of such kind. Russia knew serfdom — we сan find the same analogy in Europe. Did the law often include corporal punishment? Weren’t the same methods of the laws used in Germany, France, Spain, Italy? They say that in Russia the right was often selective i.e that not all strata of the population were able to get a real protection equally. But the ideal state in which the law equally extends on everybody has not been realized yet. Moreover, it is so not only in Russia but also in Europe.

Of course, our similarities are not accidental. After all, Russia and the West are the children of Byzantine civilization. It was Byzantium  that gave us the fundamental political ideas, institutions and forms, legal traditions and legal machinery. Of course, in Europe, German law contributed to the formation of European law. But in the result,   it was basically the Roman law. Of course, ancient Germans did not have the concepts and skills of the codification of laws, when they settled in the conquered lands of the Holy Roman Empire. And the Ancient began to form their own law-making traditions due to natural reasons which were based on the Roman (or Byzantine ) law.

The things were similar in the regulation of religious relations. Both in the West and in the East canonical similar institutions were established. In general, the influence of the Western canon law on the Russian canon law was exceedingly great. Especially it was great in the penitential discipline, conciliation   etc. Certainly, the same legal institutions differently appeared in Russia and in the West. But in general, if we compare the legal culture of Russia and the West we can see two equal size forms. Russian sense of justice does not reject the European “political gene code “, but it gives its national identity to it. It is possible to assert that up to some period of time Russian and Western legal culture were not antagonistic.

II.

Let us pay attention to the following significant circumstances. Russian law is not against the freedom of person; in this case it would not be a Russian one  and the law itself. Indeed, Western law and Russian one — are two different laws, but they differ not in quality — good and bad, but in their features. But what unites them is the following — in full accordance with the traditions of the Christian philosophy both the West and Russia recognize in man the image of God, spiritual, free and unique substance.

This criterion is very important for the assessment of any legal culture. It is hardly necessary to repeat that there is always the idea of ​​freedom of a person as a basis of it- it is a generally accepted axiom. And the motive of legal support of human freedom is a cornerstone for the whole of Christian civilization, although the West and Russia interpret it in different ways. The idea of ​​individual freedom, that is in the ancient Germanic sense of justice, runs through the whole era of the development of Western culture. A Russian legal thought has an anthropocentrism in the context of historiosophic understanding of  social world.

It seems that exactly here is the root of  main contradictions as well as the answer to the question: what prevents from a free development of national  dialogue between a citizen and the state in Russia and construction of a free and open legal society .

As it usually happens, this or that global political issue is caused not by the only reason. Besides existence of Soviet era legacy, the loss of many very valuable traditions and , what is more important, the deaths of tens of millions of people , who related to the elite of the pre-revolutionary Russian society are among them and there are other obstacles that prevent to develop ideas of freedom and rule of law in Russia.

We have not completed the process of our cultural identity. We have ceased to be Soviet people, but we have not become real Russian ones yet. We rejected the Soviet ideals, but did not create new ones. In the old forms Russia can not exist, but the pre-revolutionary traditions are either lost or too old — the world is changing.

Over the last thirty years, beginning with the famous «perestroika», Russian society has repeatedly been subjected to reforms. Moreover, it is by its change under the Western European model. This practice with a rather prospective look was in fact based on a false idea of universality of all political cultures. In other words, what is good for the West is the only good thing and it is good for all other cultures including Russia as well.

But these attempts could hardly be called sensible. Though the source of our common culture is the same, we can be similar in many respects but Russia and the West have different values ​​with their own set of political ideas and legal traditions. More than that Russia and the West were originally designed for different dominants. However, they have a common boundary of   «political genetic code» which they never leave.

The West was largely taken aback with the problem of ensuring individual freedom; a European law is based on its cult. Russia has always had the problem of pre-eminent importance of the organic unity of the Christian community. Russia lived with peace, the West — with a self-sufficient individual. Naturally, it is reflected in the legal structures of both cultures. Russia with its huge size and the tragic history is deeply imbued with the beginning of etatism, the idea of ​​sovereignty that eliminates the injustice in the name of the common wealth. The idea of separation of powers is absolutely full of utopia for Russian consciousness as well as the proposal to limit the power and divide it. It does not mean that  Russian man will accept any power, of course not. He needs the power of a good God-pleasing. But he perceives the lack of power as a disaster, anarchism. It is as a phenomenon unprecedented in its negativity. Poor power can still be prayed for and forgiven. A lack of power is like a vacuum that can not be changed. Anarchy is nothing; it’s an apostasy, chaos. By the way, it explains why the Bolsheviks took power into their own hands so easily in 1917 after several months of anarchy.

And at the same time, Russian man is the least of all a statesman in the European sense of understanding. He is alien to European «parochialism», Russian man is an imperialist -minded person. But he is an imperialist brought up in the spirit of Christian love to his neighbor.

Let’s pay attention to another very important point. Despite decades of religious persecution, Russian society is still extremely religious — consciously or not, it does not matter. And this feature of Russian consciousness opposes the adoption of some modern Western ideas. To be frank, European religion gradually faded into the background, getting narrower and narrower to a field of    «personal rights». And it is not occasionally, today a common practice in Europe is to demonstrate his religious indifferentism. Of course, belief still plays a significant role in lives of average citizens. But the whole space around is gradually filled with other ideas and ideals.

Here is a permanent process of development of a secular state, completely   free from religion. Only this type of state is the only acceptable and «the right    one». At the same time freedom of conscience is out of first importance and it has taken a modest place in the overall series of other personal rights. It even began to be regarded as the second important issue among such giants as the right for property, the right to live in dignity and privacy of correspondence, political rights etc. Modern European powers are ready to restrict the rights of conscience of its citizens in the name of the theoretical equality of all religions. In my opinion, it is taking place nowadays. Moreover, stated tolerance leads to its antipode — the principle of political correctness for the sake of which freedom of speech and opinion are put on the altar. I think it is a very dangerous tendency.

These are not all the drawbacks of the Western model. It’s enough to say that nowadays in the West freedom of individuals is equal to freedom of consumption. And here is a danger that a person loses his spiritual identity and becomes a machine for consumption of hamburgers. The cult of law is wonderful. But it happens only when the law becomes an instrument of justice. And is it good if it takes self-contained features of an absolute judge, dominating even morality? Would such law be fair?

For the Russian justice the main value is an organic world created by God. Therefore, the task of man is to become a co-creator of Christ. All of his activities should be aimed at it, to save God’s world and to strengthen justice, truth. The right of the west is formal, seeking only the welfare of the individual, and according to the Russian understanding  it is not capable to ensure global harmony. It creates anarchy of self-interest, and it destroys hierarchy — both heaven and social. This right is too realistic to be fair.

The ideas of a Russian lawyer sound a bit bookish: «The right is a concept of a formal thing, the inner nature of the right, depends on the legal guidance, how greatly absolute morality is involved in the right. Thus, the force of law is in     love!».

Russian people do not believe that self-interest can be framed in bright clothes of the law, which it identifies with the truth. Especially it happens in the situations where a particular law is contrary to the national understanding of justice. Sometimes  they forget that self-interest and common sense, having a firm foundation in the law of love, become a reliable barrier to the human egocentrism .

The idea of a secular state is completely alien to Russian consciousness as it means a direct or indirect rejection of God. And is this the only way to ensure the freedom of conscience? After all, Russia has existed for centuries in religious tolerance. Russia has its own methods of ensuring the equality of people before God.

It is clear that these cultural differences are too obvious to ignore. And it is hardly possible to suppose that Western forms could get accustomed to the Russian soil within a short period of time. It is also clear that any attempt to reconcile the irreconcilable only can lead to a greater disbalance of Russian society and increasing distrust of Russian people to Western ideas. Unfortunately, we have two extremes in the West it is believed that Russia can not principally be in the family of European nations. And in Russia, as we say, » along with the water splashed out the child » – taking no efforts to follow alien forms they rejected the richest Western experience , which they consider atheistic.

As a result, today we have the Russian society which has lost much of its ancestral culture, but preserved national character, willing to break political deadlock and social disorder, but it did not accept Western recipes to treat the illness of the society, disoriented in the hopes and tired of fruitless searching.

III.

Once again I would like to repeat my main idea: we are separated not by belonging to different types of civilization and not by the fact, that in Russian legal culture does not exist, but in the West it is widely developed. And the desire to have your legal culture recognized is hardly the only possible and universal one. To tell the truth, the West does not like to look down at the East, believing that it knows the secret of the formula how to turn mercury into gold. Russia did not impose its spiritual code so greatly, but it protected the code from foreign influence. On the other hand, in its strive to save the national legal mentality Russia often did too much and broke all the limits, creating an «iron curtain» and rejecting from a fruitful dialogue with the West. This was a so-called «Moscow nationalism» which appeared before the period of Peter the Great, and later in the period of Soviet times.

But let’s ask the following question if it is possible to have one legal culture for all times and peoples? Can’t freedom of individual be guaranteed only under the conditions of the Western political ideas? It seems that nowadays nobody except devoted liberals would argue with it. In general, as one Russian scientist wrote «Science wants to understand what the state and the law are, and this can not be done without public entities which have existed for thousands of years.  It is not sensible to create «the general theory of the state» on the last hundred year experience of European history and do without the millennial historical experience of other cultures. Such theory would be everything but not a science. »

Indeed, why was the liberal idea identified so categorically with the notion of rule of law concept in the West? And is it possible to talk about the coming conflict between the state which has different not liberal values and the law? At least, after that we will have to say that all the states and their legal systems that are not based on liberal values are illegal. Thus, Roman law was also incorrect, and the Roman sense of justice had nothing to do with the idea of the law? And all legal codes of the Middle Ages were the result of illegal anarchism?

But in this case it would be necessary to say that the real right appeared only a half-century ago, when real liberal values ​​began to dominate in the European civilization, although, it happened not everywhere even in the West. And had any law existed before? Or was it «a wrong» right? To follow this logic — means to subvert the whole past of humanity devalue it, recognize it meaningless. Or, at least, it is possible to confirm that it is a certain preventive period for the era of «a real» development of human civilization.

Besides it, as it is known, such reflections are not good for high values ​​of individual recognition. A typical sample on this topic can be Marxist ideology with its deterministic historical development from lower to higher, where there is no freedom of individual did not show at all.

It is rather bad that, having stated about its own universal nature, Western culture lost the ability to integrate, which it had showed for centuries. Now it is always aggressive towards everything different.  The West is willing to accept only a complete surrender of all its ideological opponents — alas, it is an obvious fact. And this is particularly evident in relation to the recently named neighbors among the representatives of the Christian civilization. We are assured that this is a real cooperation and peaceful coexistence. Of course not, this is a complete sterilization of other cultures, their destroying in «peaceful» i.e. imperceptible ways.

They say that democracy is a panacea for all illnesses? But even in the XIX century, it was fairly written that «democratic despotism was the worst of all. And that despotism was not limited with one political area. It covered everything and penetrated everywhere. «Now the same thing is described and almost with the same words by the supporters of the theory of post-industrialism, Human Rights in the current political institutions are not provided, the person is also dependent on the state, as in the past, and he is more dependent from public and professional communities.

Western law is not without drawbacks. Being pragmatic, it’s beautiful in ideal as the supreme guarantor of individual freedom. But in real life, it sometimes catalyzes the destruction of an organic society and focuses too much on the individual, but it forgets about the world around it. Defending the idea of ​​»let the world crash, but the law will prevail! «, it does not notice how it really destroys the world — the world of morality and spirit. And the rule of law, to which it worships like an idol, is devoid of moral foundation.

Probably nobody ever preached so greatly the fight for rights, as Rudolf  von Iering (1818-1892). But Iering achieved the victory of the idea of law by sharp depreciation of morality. For him morality was in something social and historical. He sincerely believed that moral norms were changing the course of history and in this respect they were relative. There is no morality that would have effect anytime, anywhere. Every moral principle is valid for one or another particular stage of historical development.

This aspect is very important to leave it without any attention. As it was mentioned above, our origins are hidden in the mists of time, in the Byzantine legal and cultural traditions. Whether you like it or not, but we were born in a Christian civilization. All we have now and what is precious for us now — both materially and spiritually — is the result of the labor of previous generations. And, of course, we are obliged with all our achievements to our ancestors, for whom the idea of  «flexible » ethics, debunking the moral absolute, bringing it down to the level of material factors, was unacceptable.

One author made correct notes that the basis of the Gospel was the law of love, and common sense was based on benefit, and therefore it was impossible to connect the Gospel with the human common sense. When the law has no spiritual basis, it is converted into common sense, taken by the individual for himself as an instrument of interpersonal struggle. And it can not perform its sacred function to defense the truth and justice. Is it necessary to say that many of the current problems of Western civilization are caused by this neglect to our spiritual heritage? It loses any conservative qualities which are necessary to maintain any culture. Of course, there is no need to talk about any universal significance of such Western idea of law.

On the other hand, our legal traditions also have some serious drawbacks. Russian people have little faith in the idea of ​​Western law, which is not, from their point of view, the consequence of European spirituality. They do not understand how the law can regulate all aspects of interpersonal or social relations. And is it necessary when there is love? Perhaps that is why many of the legal concepts were not able to be followed properly in Russia. V. Rozanov, Russian philosopher, expressed his ideas in this concern: «In Russia all property grew out of » begging «or» presenting «or » being robbed «. There is little ownership in the result of hard work. And because of it such property does not grow stronger and it not respected». Unfortunately, this assessment is not without reason.

What conclusion should be made? We must categorically state that neither Russian nor Western legal culture is universal. Each of them has a set of its own, only its inherent genetic codes, its own personal identity. But exactly this fact — individual uniqueness of each of the members of the world culture is the key to further development. When we lived in a unified Christian civilization , the natural process of integration allowed to show and develop all more or less promising qualities. In a broken state both the West and the East will inevitably lose, they are quietly fading away.

It is necessary to leave too presumptuous thoughts, which are sometimes expressed by extreme supporters of the «Russian idea». Culture, including legal one — is not something metaphysical, transcendental. It is present in every our movement and breath. It is absurd to believe that the terrestrial world could be in apostasy and spiritual culture will be in triumph. In an isolated state  Russian legal culture, as the result of human work is not able to confront worldwide expansion . The gates of hell can not prevail against the Church. But they are quite capable to overcome our creations.

Undoubtfully, in Russian legal culture there are a lot of good ideas and traditions that would be nice for our western neighbors to borrow. On the other hand, it is difficult not to agree with the fact that we have something to learn from the West as well. We used to talk about Russian man only with praise, forgetting that he has a number of very negative traits and qualities, which, fortunately, is not typical for the Europeans.

Of course, these considerations do not give much optimism. But they leave us a chance to be saved, if we and the West and Russia, think about it , and will do what the Creator has originally granted us. Namely these are the following: to live together peacefully co-existing, in love and friendship, as one Christian civilization. And this can be achieved in a single way — to return to our spiritual foundations and to be tolerant to each other’s disadvantages, to understand that we have the same aim, common dangers and problems.

Assessing the current state of affairs, you could not help looking for historical analogies, and they are easily detected. Let us remember how the church had an active life, when the Catholic Church included Roman, Constantinople, Alexandria, Antioch, Jerusalem departments, as well as many ancient and prestigious communities. At that time, each of the Local Churches had its own, unique gift (charisma) and settled up the drawbacks of the other one. When the church split in 1054 became an accomplished fact, the level of moral theology and the state plummeted. In other words, the separation of the church, as well as any general division, had a negative impact on all aspects of this tragic process. The same can be said of the confrontation, which was formed between Russia and the West.

It makes no sense to believe that peace will come after the overthrow of the enemy: for centuries armed and ideological confrontations between us took place to find out who the winner was, why nowadays should the things be in a different way? Also it is absurd to think that the second party of our eternal confrontation will take the other party alien ideals. It will rather die, as it is currently happening to Russia, which is now like a patient after a medication in a fever exempting itself from bodies of strangers. Perhaps, before figuring out what and how we are different we should turn to the issue what we have in common. It seems that in this direction we are awaiting for much more enticing prospects.