Understanding of the Rule of Law in Russia

I. Pravovoe gosudarstvo: the Russian understanding of the "law-based state"

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The Constitution of the Russian Federation, which came into force in 1993, begins with the following Article 1, para.1:

"The Russian Federation – Russia is a democratic federal law-based State with a republican form of government."

The Constitution contains formal components of the rule of law concept: primacy of the law and hierarchy of norms, direct applicability of the Constitution, separation of powers, equality in law, judicial review and judicial independence etc. In the material sense, it contains the supreme value and direct applicability of human rights that are regarded as natural laws.

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In the following, some particularities and problems discussed by Russian scholars in the context of the pravovoe gosudarstvo shall be described on the basis of its main elements.

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1.Verhovenstvo sakona: Primacy of the law

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In the contemporary legal doctrine scholars extract the main elements ofpravovoe gosudarstvo from the provisions of the Constitution, whereas the protection of human rights, the limitation of the state power by law, the primacy of the Constitution and the primacy of the law ("verhovenstvo sakona") are seen as its central aspects.

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The idea of "dictatorship of law" proclaimed as a reaction to the widespread legal nihilism in Russiais even contradictory with regard to its description of the liberal foundation of the concept of the rule of law. The implicated "blind" application of laws and the oppressive sound do not correspond with the (material) concept of pravovoe gosudarstvo.

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2. Limitation of the state power by law

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The idea of limitation of the state power by law is embodied in Article 15, para. 1, 2. It declares that the Constitution has the supreme judicial force and that "the bodies of state authority and of local self-government, officials, private citizens and their associations shall be obliged to observe the Constitution of the Russian Federation and laws". The legality of administration is one variation of that principle (Koslova/Kutafin 2009: 122).

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The Russian Constitution contains the basic principles of the Russian constitutional order and is due to its supreme legal force the centre and the heart of pravovoe gosudarstvo. The principle of pravovoe gosudarstvo is central to the Russian constitutionalism but it is a "weak" principle not a "hard" one since it describes not the current state which does not tolerate any derogations but an objective that has still to be achieved. In the current state there are inter alia considerable deficiencies in the application of the laws, contradictory norms and other normative acts, big discretionary power of the executive, misbalance between the powers, dangers to the independence of judges... The legal system is still in transition. Some Russian academics observe that Russian legal scholars tend to discuss the principle of pravovoe gosudarstvo theoretically but do not apply it in reality – the current state building and legislation are not measured with pravovoe gosudarstvo. Furthermore, the Russian constitutionalism lacks wide social support by the population – there is no identification yet with the Constitution and its values. This makes the very long way to go not easier.