THE THEORY OF STATE AND LAW

Copyright by Barnabas D. Johnson

One of the first courses (often the first) studied in law schools throughout the Soviet Union, and still studied by entering students in post-Soviet law schools, is the famous no, the infamous Theory of State and Law (TSL).

The classical TSL focused (and still focuses) on "interior" and "exterior" functions of governance. The interior functions include the state budget, focused on enhancing the economic development of the country; the reduction of unemployment; the social protection of citizens; the improvement of public health and public infrastructures (transportation, water, sewage, electricity, gas, etc.); and law enforcement, especially the "struggle against infringement of laws" (but without discussion of whether the government is itself governed by laws). The exterior functions include "maintaining mutually beneficial relations with foreign countries" and "defending the country against aggression."

Students are assured that "every country" understands and adopts the fundamental goals and institutions of law and government set forth in the TSL. Not surprisingly, during Soviet times the TSL did not give a whiff of attention to liberty, equality under law, and the need for an independent judicial branch to determine facts and apply law without fear or favor; the TSL did not mention the necessity for free and fair elections; and it was bereft of the history of constitutional democracy and the fundamentals of the Rule of Law. And what of today? What is taught as the ruling paradigm governing "state and law" more than two decades after the Soviet Union collapsed?

The leading text thereon, by Khropaniuk, dated 1997, is essentially a recitation of the doctrines taught three decades ago during the Brezhnev era, a slight improvement over those taught during Stalinist times but still bereft of any awareness of the problem — the many problems, starting with the questions: What of liberty?

Where, in the Russian Federation's Theory of State and Law, is Ordered Liberty?

What of the coevolved ideas and institutions of modern constitutional democracies? Where is a reasoned explanation of why Putin's Party of Power is such a terrible blight and blot on the face of this Earth?

As I write these words, in May 2014, I must confess to great fear that Putin genuinely "believes" that his training under the TSL was sound. I've had too many students like that. Indeed, I've talked with numerous scholars who, steeped in TSL "mentality" (a powerful word in its Russian rendering), believe — for it is truly a matter of religion that the TSL is safe and sound.

It is not safe and sound. It is dangerous and dysfunctional.

Russia needs a truly "revolutionary" Revolution.

It desperately needs Rule of Law.

Not Putin's old TSL.

Demokratia.

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A superb compilation of recent scholarship on the history of the idea of "democracy" is Josiah Ober and Charles Hedrick, eds., Demokratia: Conversations on Democracies, Ancient and Modern (1996). One is struck by how much more seems known now than was known even recently about the origins of Nomos, isonomia, and demokratia.

But one is also struck by how many points remain shrouded in linguistic and historical fog. Specifically, it has been my experience that English-language scholarship focused on constitutional democracy does not translate easily into Russian. I ascribe this to the fact that Russian and Byzantine law and legal institutions originated in "Justinian Law" that did not partake of the great synthesis, starting in Bologna around 1073, of Athens, Rome, and Jerusalem, which gave birth to the post-Justinian Western Legal Tradition.

But the matter is complicated, as the famous German legal science that capitulated to Hitler showed, and still shows. The current Russian Theory of State and Law is little different from the earlier Prussian formulation.

Was Prussia part of "the West" in 1914? 

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And what of Russia today? What is taught as the ruling paradigm governing "state and law" more than two decades after the Soviet Union collapsed?

The leading text thereon, by Khropaniuk, dated 1997, is essentially a recitation of the doctrines taught three decades ago during the Brezhnev era, a slight improvement over those taught during Stalinist times but still bereft of any awareness of the problem — the many problems, starting with the questions: What of liberty? What of the coevolved ideas and institutions of modern constitutional democracies? Where is a reasoned explanation of why Putin's Party of Power is such a terrible blight and blot on the face of this Earth?

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While, unfortunately, no systematic study has been made of legal education in the former USSR, it appears that the TSL remains dogma throughout the region. When I lectured on this subject at Yerevan State University in 2001, I was confirmed in my impression that law students and their teachers remain unaware that the TSL — originating with Hans Kelsen and German legal positivists in the 1920s — was long ago abandoned in the West. In that sense, Soviet and post-Soviet legal education is "1920s German legal science" in a time-warp ... reflecting "government under political science" rather than "government under law" ... reflecting too much of Max Weber and not enough of Abe Lincoln.

Insufficient attention has been given to post-Soviet higher education generally. At the turn of the century a World Bank report stated that this "sector" is utterly corrupt. I have pondered this problem for some while, including from the perspective of six years teaching law in Armenia (1998-2003). Based on my (admittedly anecdotal) evidence, post-Soviet legal education is the most corrupt segment of the educational sector.

There is an urgent need for a thoroughgoing reform of post-Soviet legal education. Such reform requires "pile driving" foundations in the liberal-arts generally and the Western Legal Tradition specifically, premised on the supernal value of Freedom of Inquiry ... as necessary for distributed governance based on distributed intelligence.

Obviously, the current Russian Federation, basing itself on the TSL (tinged with a new religiosity), has become utterly mired in oligopoly, kleptocracy, lawlessness of the worst kind, and hi-tech tyranny.

Putin is a product of the TSL.

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As a law teacher in Armenia, I found my students deeply committed to changing the "Soviet mentality" they saw as the fundamental problem. The key, it seems, had to do with understanding freedom: What is it, what is it for, why is it so crucial, and why was it so dangerous for the USSR?

My students were entranced by the following passage from Friedrich A. Hayek's book, The Constitution of Liberty (1960), at p. 32:

The benefits I derive from freedom are thus largely the result of the uses of freedom by others, and mostly of those uses of freedom that I could never avail myself of. It is therefore not necessarily freedom that I can exercise myself that is most important for me. It is certainly more important that anything can be tried by somebody than that all can do the same things. It is not because we like to be able to do particular things, not because we regard any particular freedom as essential to our happiness, that we have a claim to freedom. The instinct that makes us revolt against any physical restraint, though a helpful ally, is not always a safe guide for justifying or delimiting freedom. What is important is not what freedom I personally would like to exercise but what freedom some person may need in order to do things beneficial to society. That freedom we can assure to the unknown person only by giving it to all. ...  The argument for the freedom of some therefore applies to the freedom of all. But it is still better for all that some should be free than none and also that many enjoy full freedom than that all have a restricted freedom. The significant point is that the importance of freedom to do a particular thing has nothing to do with the number of people who want to do it: it might even be in inverse proportion.

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See Learning Empathy.

See Conversation of Democracy

See Post-Soviet Law Reform and Legal-Education Reform

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