Judicial Law-Making in Post-Soviet Russia

Alexander Vereshchagin

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135392222
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A novel and incisive investigation of the role of judicial precedents and customs in Russian law, this book examines the trends in the development of judge-made law in Russian civil law since the demise of the Soviet Union.

Exploring the interrelated propositions that a certain creative element is intrinsic to the judicial function in modern legal systems, which are normally shaped by both legislators and judges and that the Russian legal system is not an exception to this rule, the author argues that the rejection or acceptance of judge-made law can no longer be sufficient grounds for distinguishing between common law and civil law systems for the purposes of comparative analysis.

Divided into six chapters, it covers:

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• the principles applied by judges when interpreting legal acts; analyzing a number of academic writings on this subject
• the boundaries of the realm of judge-made law and the problem of 'hard cases' and the factors, which make them 'hard'
• a taxonomy of forms in which Russian courts effectuate their law-creation functions
• current policies of courts in legal and socio-political matters
• joint-stock societies and arbitrazh courts.

Estimating the degree of creativity within different branches of the Russian judiciary and explaining the difference in the approaches of various courts as well as setting-out proposals as to how the discrepancies in judicial practice can be avoided, Judicial Law-Making in Post-Soviet Russia is invaluable reading for all students of international law, comparative law, legal skills, method and systems and jurisprudence and philosophy of law.

Chapter 1

Interpretation and hard cases

It is customary for lawyers to connect adjudication with interpretation. Interpretation is an essential element in the process of understanding. ‘To understand’ and ‘to interpret’ often mean the same. Although many lawyers believe that in claris non fit interpretatio,¹ this opinion is not quite correct. Interpretation takes place even in the easiest cases, when the decision comes out obvious and unquestionable.

In the common law world a technical distinction is maintained between ‘construction’ and ‘interpretation’:

‘Interpretation’ is simply the process whereby a meaning is assigned to the words in a statute. The courts’ primary task in interpretation is to ascertain and give effect to the meaning of the words used: the first inquiry of a court should be to ask: ‘What do the words themselves mean?’ ‘Construction’, on the other hand, is the process whereby uncertainties or ambiguities in a statute are resolved. It follows that every statute that comes before a court is interpreted, whereas only uncertain or ambiguous provisions require construction.²

In Russian legal terminology this distinction has no equivalent. Russian lawyers and judges commonly employ the term ‘tolkovanie’ whose denotation is ‘an explanation of a (true) meaning or sense’. Apparently, this word covers both ‘interpretation’ and ‘construction’, although in legal translations from Russian into English the term ‘interpretation’ is more frequent. Obviously, ‘construction’ can be regarded as an advanced form of interpretation, broadly understood.

Why judicial interpretation is so crucial for legal practice? Why so much attention has always been paid to it in legal scholarship? This phenomenon per se can be a subject of different explanations. One of them was offered by Professor Joseph Raz.³ He finds a distinguishing feature of legal norms among other kinds of norms in its unique claim to supremacy over the other normative systems, especially moral and religious ones, which also prescribe to people the right way of behaviour. Thus, law is premised upon the idea of authority. This fact accounts for the role of interpretation. The main reason which makes interpretation so important is the moral respect for the law and its sources. ‘In legal interpretation we value – other things being equal – continuity. We also value authority, legal development and equity.’ These are the four factors of legal interpretation.⁴

The legal development and the application of equity are a universally recognised task of courts, ‘for it is impossible to have general rules the application of which may not on occasion lead to injustice if not mitigated by equity’.⁵ But the key factors, in Raz’s view, are continuity and authority because the considerations of equity and legal development can not explain the central role of interpretation: if these principles dominate the reasoning of judges, it would be no different from that of the legislators. Both key factors, however, are in a permanent conflict with the other two: continuity and authority work in favour of the conservative approach to the interpretation, whereas the principles of equity and legal development call for innovation. In this tension are the roots of many problems, including the following: what is law if there can be a plurality of valid interpretations? J. Raz does not provide a direct answer to this question. He just notes that in human societies law and adjudication must fulfil several functions, and therefore even an ideal law cannot fulfil them in an ideal fashion.⁶

This picture of an interplay between different factors can be complemented with an account of real driving forces that put in action the conflict between them. Why, indeed, so much of legal thinking is about ‘hard’ or ‘borderline’ cases of interpretation? Are not such cases too rare to deserve so disproportionate an attention? What makes lawyers reflect on them so much? Again, the answer to these queries flows from the main function of legal norms, that is, to guide people’s conduct by laying down its limits. So the law creates a certain ‘corridor’ of admissible ways of behaviour in particular circumstances, within which individuals or groups are free to move. Since people naturally want to know the limits of their legitimate freedom and, if possible, to expand them, it seems inevitable that the interest of the legal community is focused on ascertaining the limits of this ‘corridor’ as accurately as possible. All persons pursuing their goals within the area demarcated by legal rules are interested in such inquiry, because it improves their chances to achieve desirable ends and avoid a conflict with the law. At the same time, the possibilities found in a close (sometimes dangerous) proximity to those borders are often the most promising in terms of their potential advantages. Among all conceivable ways of pursuing any of the human goals, the most valuable are usually those which remain unnoticed by other actors. In law, interpretation enables one to find out such hidden opportunities. But, if there are several feasible interpretations of a rule, the legal case is usually treated as a ‘hard’ one. For this reason, such ‘borderline cases’ represent cross-points of general jurisprudential problems. This fact makes cases in which courts may act ‘creatively’ a central preoccupation of legal scholarship despite their being just a drop in the stream of cases coming before courts.

Interpretation of law is an integral part of judicial work, whether law-applying or law-creating. Judicial creativity starts where law-application ends. But where exactly? This is not the only question to be addressed when speaking about ‘law-creation’, ‘law-enforcement’, ‘interpretation’ and the like. Although the ways courts deal with statutory law vary considerably in different legal systems, the problems of its interpretation are common for all of them. They relate to such issues as the nature of judicial interpretation, the rules and principles guiding it, and the ways to determine the legislator’s will, to name only the most important.

There is a sheer paradox: in Russia the rules of interpretation are not legislatively established, but a wrong interpretation is a ground for the reversal of a judicial decision.⁷ On the whole, Russian academic lawyers did not pay as much attention to judicial interpretation as it probably deserves, so that the topic seems to be relatively underdeveloped in Russian legal theory. That is not the case in Britain, where one finds a number of sophisticated theories of interpretation.

The rules of interpretation in the English legal system

Admittedly, there are three basic rules of interpretation in the English law. It seems appropriate to reiterate them here, as a starting point for further comparison with continental and Russian attitudes to interpretation. The first is the literal rule (or what is sometimes called ‘strict constructionism’) which was defined in 1892 by Lord Esher as follows:

If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity.⁸

Under the literal rule, even if there is a strong suspicion that the language and the legislator’s intentions do not coincide (which may be caused by a ‘scrivener’s error’ or something like that), the judge should not be troubled by it. All responsibility for any unjust or absurd consequences of the application of the rule is placed upon the legislator.

But it has always been acknowledged in the legal doctrine that strict literalism should be mitigated to avoid absurd results. Such a need is frequently illustrated by a medieval statute of Bologna providing ‘that whoever drew blood in the streets should be punished with the utmost severity’, and also by an English statute of the time of Edward II, according to which a prisoner who breaks prison shall be guilty of felony. It was assumed that the first rule did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit, whereas the second ought not to be applied to a prisoner who breaks out when the prison is on fire.⁹ A reckless application of statutory words is thought to be threatening to other equally important values inherent to the legal system, such as its wholeness and coherence.¹⁰

Although the literal rule is no longer prevalent in English courts, it is premature to deem it to be fallen in disuse. American judges still employ it in some cases, as is exemplified by the US Supreme Court decision in Smith v United States,¹¹ in which the defendant was sentenced for selling a machine-gun in exchange of drugs on the ground of the law which provided for 30 years imprisonment for everyone who ‘during and in relation to any crime of violence or drug trafficking crime . . . uses . . . a firearm’ (emphasis added). In his dissent A. Scalia, J., noted that the meaning of a word should not be determined in isolation but should be drawn from the context in which it is used. So when someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane. However, ‘the Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used’.¹²

The next rule, the golden one, does not necessarily contradict literal interpretation. Rather, as was explained by Lord Blackburn in River Wear Commissioners v Adamson (1877), according to this rule:

We are to take the whole statute together, giving the words their ordinary signification, unless so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear.¹³

The ‘golden rule’ is based on the belief that the legislator could not have desired to enact an absurdity. If, nevertheless, the absurd consequences seem to be inevitable under literal construction the judge should retrieve ‘the true meaning’ of the statute so as to avoid such consequences.

The mischief rule goes much further. It invites judges to actively promote the attainment of the legislative purpose. In so doing, they must clearly understand this purpose, along with the motives and incentives of the legislator. According to the classical formula in Heydon’s case (1584), judges must consider:

‘What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth’, ‘and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief . . . and to add force and life to the cure and remedy, according to the true intent of the makers of the Act’.¹⁴

For instance, in the notorious American case Church of the Holy Trinity v The United States (which, interestingly, is contemporaneous to Lord Esher’s definition of literal rule), the US Supreme Court unequivocally abandoned the plain language of the statute in favour of the desirable outcome of the case.¹⁵ The Court held that ‘it is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers’.¹⁶ Since then, as Justice Antonin Scalia noted, ‘the Church of the Holy Trinity is cited to us whenever counsel wants us to ignore the narrow, deadening text of the statute, and pay attention to the life-giving legislative intent. It is nothing but an invitation to judicial law-making’.¹⁷ The principle of the Church of the Holy Trinity was followed, for instance, in the notable case United Steelworkers of America v Weber in which the majority of the US Supreme Court set aside the plain meaning of the Civil Rights Act.¹⁸

Strictly speaking, these three rules are not rules proper, since they can be applied to the same cases. Rather than being compulsory norms, they are more like competing attitudes, and it is up to the judge to choose which one to follow in a concrete case. The choice itself can be accounted for in a variety of ways, and this fact has in the past repeatedly cast doubt upon the fidelity of judges to the rule of law.

The real differences between the rules are also disputable. Only the literal rule seems to be sufficiently clear, but only to the extent that the very language of the statute is also plain and inescapable. As to the other two, the difference is not so evident. At what point should the golden rule be set aside and the mischief rule come into play? The genuine meaning of the rules is itself a subject of interpretation. The contention that under the ‘golden rule’ the decision should be found ‘within the four corners of the statute’ inevitably fails, for the mischief rule also does not bluntly deny it. Sometimes the golden rule was identified with the so-called ‘purposive appro...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Abbreviations
• Table of Cases
• Table of Russian Laws and Regulations
• Table of Foreign Laws and International Treaties
• Acknowledgements
• Introduction
• Chapter 1: Interpretation and Hard Cases
• Chapter 2: The Scope and Limits of Judicial Law-Making
• Chapter 3: The Forms of Judge-Made Law in Russia
• Chapter 4: Judicial Policies
• Chapter 5: Russian Labour Law and the Courts
• Chapter 6: Joint-Stock Societies and Arbitrazh Courts
• Conclusion
• Bibliography