ON ESSENTIAL TRAITS OF POST-COMMUNIST REVOLUTION IN LEGAL
EDUCATION
Igor Gräzin,
Private University Nord, Estonia
Introduction. Practical meaning
Post-Communist revolution in legal education has taken and is taking place in almost all the countries of Post-Communist block of Eastern Europe and the former USSR. It has resulted in the restoration of more or less traditional, pre-Communist national legal systems (Eastern Europe, Baltic states, pre-war Chechenyan Republic, Kossack areas and communities in Ukraine and South-Western Russia), or developed into a mix of Soviet legal system combined with certain regulations of modern Western law (Russia – for instance: here almost all the system of securities’ regulations has been intentionally modeled after the laws of the United States). The real outcome of this development has produced a variety of results – the actual legislation of post-Communist countries is different enough to require, for instance, the need for local legal counseling for a foreign entity even if the latter comes from the same post-Communist area. But, nevertheless, the post-Communist transition in law and legal education has some common traits that have made the cooperation, the experience sharing and the concerted efforts of assistance to the post-Communist countries by their Western partners necessary and helpful. (I need to note that I intentionally ignore here the issues of post-Communist transitions into Islamic legal education happening in the former Soviet republics in mid-Asia: fully respecting their global significance I have to admit my ignorance in the topic.)
So: to put it short – we need the intellectual, organizational and material help from the legal-educational institutions of Western democracies (and we truly appreciate the one so generously already granted!) but at the same time to make this partnership and alliance even more efficient we must show honestly all our problems. Here I try to pinpoint some of them.
Socio-Legal
Situation – I
By this term I mean the issues related to changing role of law and legal profession in the newly democratic societies and in carrying out of fundamental transformation from the communist regimes into libertarian, law governed and contractual societies. All the complex of these transformations can be reduced – from the legal point of view – to the principal change of the ratio between the public and private law in the life of the society. Let me remind one of the quotes by Vladimir Lenin (a lawyer by education): for us (the Soviets), he said, there is no place for private law, the Soviet statehood makes all the law public. In practical sense that meant the handing over of the traditional private-legal forms of regulations from the lawyers (in the classical sense of the word) to the administrators handling the cases not so much on the contractual but rather on the basis of mandatory state regulations. (That Soviet revolution in the law was carried out in the USSR in the late 20s of the last century in the form of the then wide-spread professional discussion on the legal-social status of so-called “trusts”; the final result of it was their ultimate recognition as completely status entities, the idea expressed by Stalin: “All Soviet enterprises are just branches of one huge factory called the Soviet Union.”)
The result of that was the rapid decrease of the numbers of lawyers and their diminishing role (participation as well as social status) in the societal matters. Lawyers acted actually just only on the margins of the society: in the areas of criminality and minor “civil” cases – mainly related to the petty claims between individuals who already were deprived of what may be called private property. It meant that the real societal developments (and there were some very significant ones – for instance, the whole industrial revolution in the USSR) occurred outside the realms of law and without participation of legal profession. (Here I intentionally omit the role of lawyers in carrying out Stalinist repressions in the USSR and other communist countries – it is a topic in its own right but basically one has to wonder to what extent that “legal”-positivistic practice can be labeled to be legal and legitimate at all.)
The legal-educational “market” (or: demand) required under these circumstances not so much lawyers per se, but rather ideologically loyal, creative and tough administrators-managers ready to follow the Party instructions and able, only if needed, to produce the legalistic cover to the actually purely administrative (i.e. non-legal) decisions.
Even such an area of “pure law” like the criminal trial for ordinary minor crimes (where political interests remained uninvolved) the trial itself became kind of a non-legal quasi-administrative game – it was common to play it this way: for instance the prosecutor required 4 years of imprisonment, defense attorney asked for 2 and the judge without much of thinking granted the decision for 3.
The situation has been changed after the collapse of Soviet and Soviet-style systems in the following way:
a) the increase of the demand for lawyers;
b) the need to increase their role in the societal development (lawyers are performing the most fundamental functions in the course of revolution – they privatize enterprises, handle their shut-downs, mergers and bankruptcies, i.e. are ultimately responsible for handling the task of destruction of the material components of Soviet economy; they defend the rights of private entrepreneurship and privacy; secure the “1st Amendment” rights);
c) at the same time there is the need to eliminate the lawyers’ self-esteem as those of social engineers what means the understanding that the lawyer creates new democratic society not by “creating” it (i.e. following the political trends) but by remaining the lawyer in the proper sense of the word.
The Problems of Theoretical Content of Legal Education
One of the misconceptions spread in the West is the perception of the Soviet-style socialist state as something opposed to the idea of a state governed by law. On the contrary: almost all Communist states having passed their revolutionary periods developed into the law-governed states to their extreme. So today we face the task that is just opposite to the one suggested by our Western friends: we have to move not towards the law-governed state but a w a y from it!
Wherever the law covered the social relations it was enforced in socialist states in most strict and rigid way - we need to remember that the notion of “socialist legality” was one of the corner stones of actual Marxist Leninist ideology and practice. Sure, there were certain areas where the law did not work and even was not supposed to work and here I name them:
a) all the sphere of military-industrial complex and the whole military system;
b) cases of outstanding political-ideological significance (for instance the extradition of Slozhenitsyn abroad; at the same time the exile of Sakharov to Gorky was executed in the legally perfect correct way!);
c) cases involving personal lives and interests of high-ranking political officials;
d) the legal status of Communist Parties themselves.
But as most of these areas were outside the reach of law anyway, they could not corrupt the legal profession by themselves. What actually did corrupt was kelsenianism in its worst. It is all but natural that in spite of his seeming anti-Communist rhetoric Hans Kelsen developed his theory according to the mainlines of late Marxism and that Communist legal ideologists returned the favour by popularizing his ideas in the universities (again, under the cover-up of criticism, that actually just strengthened normativistic influence in the socialist legal realities).
Thus the modern post-positivistic trends in legal science and education (from Fuller to Dworkin, then Rawls and Nozick, varieties of modernism – Unger et al.) are in the post-Communist societies definitely much more than just academic exercises; they are the matter and essence of all democratic transformations. What we need to teach our students today is Dworkin’s logic (that law is not a set of rules).
But what we face here is a problem of the lack of more or less generally accepted “domestic” elements of iusnaturalistic view of law (Dworkin’s “principles and policies”). To put all evils and errors of marxism aside it has to admitted that it provided the society and legal profession with logically more or less consistent general view of society and formulated certain (of course – the wrong ones!) legal-ethical principles (“the highest criterion of ethical correctness is the correspondence to the Communist ideals” – Lenin). Today the vacuum left after marxism is filled by mosaique fragments of many ideologies – christianity and friedmanism, social-democracy and Galbraith’s “third way”, welfare-state ideology and corporate trade unionism (represented in post-“Solidarity” Poland) to name some of them.
The Need for Common
Law Thinking
The set of natural-legal principles can’t be decreed nor ordered and any set of them is inevitably contested and challenged within the framework of current immature ideological plurality of post-Communist societies. To put it shortly: practically most of them lack today the fundamental agreement on the foundations of basic social contract, equivalent to America’s “we hold these truths to be self-evident…” For instance, Russia has not managed to solve the fundamental issues of land ownership (and, by the way, it is far from being a joke: for ideological reasons democratic Russia has failed for more than 10 years even to design its state seal – it is supposed to be the traditional double-headed eagle, but whether with the czar’s crown or not?); then Estonia still struggles with the problems of restitution of pre-Communist property titles etc.
There seems to be the only practical way out of the problem (I formulate it once again: the law must include certain general principles as well but there are none; at the same time the legal profession and education is under the pressure of communist-normativistic tradition) – the introduction of the elements of stare decisis to the otherwise continental traditions of Central and East European countries. The new element of the legal system of many countries is granting the decisions of (especially - the higher) courts the power of precedents. And this puts forward next tasks for the legal education:
a) the judges and students must start to realize that in certain cases they are not just solving them, but also creating, “updating”, adding legal-political dimensions to the existing positive law;
b) the analyses of cases must include the fundamental differentiation between the circumstantial elements of the given case and the legal-political aspects of it;
c) the solutions found are sound in many cases only if they include the references not only to the statute law but precedental cases as well.
These features of legal analyses elementary for a common law practitioner are principally new ones for the lawyers and professors of law of post-Communist societies, although the necessity of their recognition becomes even more urgent due to the large role played by the stare decisis in the EU law due to the activistic role of European Court in shaping the law of modern Europe.
Socio-Legal Situation – II
By this title I mean the status and changes on the “market” of lawyers.
As I mentioned earlier in the Soviet-socialist societies the legal profession belonged to the marginal ones – the need for the lawyers was relatively modest, their social status more or less average and so was their income. Now the situation has changed – the demand for lawyers has increased drastically, but very unevenly at the same time. Let us have a look at two principal legal professions.
Criminal attorneys, prosecutors, police officers. The increase in numbers is out there but, on average, insignificant. While certain new profiles in this area are created (introduction of tax police, creating the special forces to fight organized crime, international criminality etc.) some old ones are reduced (for instance the radical reduction of clerical positions in the ministries of interior). What is most urgently needed here is not the increase of the numbers of students to fill these positions but the change of their professional qualifications. New criminal lawyers must not only deal with the matters legally non-existent in socialist societies (like tax-fraud, organized crime, extortion racketeering etc.) but be adjusted to the new democratic elements of criminal procedure (for instance: while now the defense attorney starts his mission practically after some hours of the arrest of his client, in Soviet times he was admitted to the case only after the charges were filed). A new set of issues is related to the introduction of democratic rules of admissibility of evidence into criminal trial.
Civil lawyers. The most rapidly developing professional group with high social status, but, at the same time, very differentiated in itself.
“B i g G u y s”. Each and every post-Communist country has its own “top-five”, “top-ten”, “great seven” etc. type of law firms. Their common features are – (a) relatively young and highly professional (typically with LLMs from Western universities) team of attorneys; (b) partnership including the former top-level legal officials from Communist era; (c) focusing on the servicing of the booming segments of post-Communist economy (mainly: banking, securities’ market, large scale privatization, major international transactions, foreign investments); (d) relatively stable set of clients (often including “Fortune 500” companies) and subcontracting to the most outstanding law firms of the Western Europe and the USA. Market for this type of firms and lawyers is almost full: for all practical purposes the new vacancies and jobs here are not forthcoming – the growth here is totally dependent upon the future growth and expected boom in the other segments of post-Communist economy.
“I n d u s t r i a l G u y s .” The successors of Soviet era “jurist-consults” – “the midshipmen” of civil-legal profession. Rapidly increasing segment of it. As my label reveals they are mainly in-house lawyers for manufacturing businesses. Their strength lies in their ability to combine purely legal knowledge with the understanding of the economic and manufacturing realities of their corresponding industries. To be qualified for this segment the double university education is a clear advantage (let us say: law degree combined with the chemical engineer’s one).
“L i t t l e G u y s “. The “proletariat” of legal profession – actually a mixture of several sub-groups – provincial lawyers of small towns and villages, lawyers contracting tiny companies or one-man-enterprises; lawyers, practicing legal actions accidentally in the course of other activities; lawyers dealing with minor matrimonial issues, ordinary common-life conflicts (so called “kitchen-lawyers”) etc. Actually this is the most promising area of the development of the legal profession. And that for several reasons. Firstly – this group consists of significant number of elder, Soviet-style lawyers unable to cope with the new legislative realities, the group that has to be replaced. Secondly, this group serves the population of “ordinary people” unwilling, unable and having no reason to pay the high fees charged by the “big guys” of law. At the same time this level of potential lawyering is definitely under serviced today – I mean ordinary person-to-person cases, cases of labour conflicts, social and welfare guarantees, medical malpractice (it is not the Klondike for lawyers like it is in the US!), minor consumer complaints etc. For today this market for lawyers seems to be almost infinite. It is more so because this level of lawyering is going to be ultimately responsible for the actual implementation of European legal order in post-Communist countries after their accession to the EU.
Curricular Problems
Post-Communist revolution in legal education has faced the following set of problems currently solved or being in the process of solution.
First. Elimination of legal-theoretical elements and errors related to the marxist conception of law (it means for instance, the replacement of marxist subject of general theory of law and state by classical Encyclopedia of Law in the freshman’s’ year; reintroduction of philosophy of law – in its classical Germanic sense – to the senior year etc). Certain marxist-socialist principles have been eliminated in the special legal courses as well – like the principle of plan-basedness of industrial contracts in civil law, the preferential protection of collective property in criminal law etc.
Secondly: the change of legal mentality and professional attitudes of future lawyers towards many normal capitalist and democratic activities officially banned or condemned in communist societies. For instance: buying cheap and selling for profit (infamous “speculation”), operations with foreign currencies and many other such kind of activities were criminalized by communist law and certain negative attitude towards these activities remains still out there.
The third task – the new courses are to be developed to cover the legal realities that simply did not and could not exist in the status state-controlled plan-economy. I mean areas like securities’ regulations (in socialist market there are no securities), all set of anti-trust legislation (in socialist market all enterprises are monopolies by definition), rules of competition (in socialist market competition is replaced by administrative coordination by state plan) etc. This task is the most complicated and challenging one – because it requires from law schools not only the teaching of these legal materials but also including into the curriculum of a more complex set of economic subjects instructing the students in these economic areas. (On the practical level: today’s provincial Soviet-educated judge may well understand the text of securities’ law but it does not make much sense for him because he does not know what the securities are by themselves, outside the legal regulation.)
Problems of East-West Legal-Educational Cooperation in “Europe in Transition”
Expressing our most sincere gratitude to the Western universities and members of academic community for their tremendous help in democratic reformation of post-Communist system of legal education I’d like to pinpoint just some typical errors and misunderstandings that have occurred in the past. They include –
(a) underestimation of the legal-theoretical and general cultural level of the students of East-European and Russian universities;
(b) overestimation of the ideological factors to be overcome in the legal education in post-Communist law schools (there is no need to preach to the choir!);
(c) primitivistic presentation of the educational materials and oversimplification of the courses and lectures taught and presented;
(d) unrelatedness of materials and subjects taught by guest-lecturers to the overall curricular system of the host law schools (here the blame has to be shared – we, the educators in the post-Communist law schools pretty often fail to explain our guests what is needed and even to choose the right professors to be invited).