Understanding of the Rule of Law in Russia
Original Contribution by Ilja Skrylnikow, Berlin
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I. Pravovoe gosudarstvo: the Russian understanding of the "law-based state"
The concept of a "law-based state" (pravovoe gosudarstvo; the term is also translated as "law-governed" or „law-bound" state) was initially discussed between Russian legal scholars in the beginning of the 20th century and remained in the centre of constitutional legal theory until the Revolution. The influence of the German school was formative. For a good reason the notion pravovoe gosudarstvo is a literal translation of the German Rechtsstaat. Russian scholars attributed to that concept not only formal content but also material one: e.g. Kotliarevski (1915) saw the main purpose of pravovoe gosudarstvo to be a state of justice; for Kistiakovski (1913) it was a state that defends the liberties of persons and where the state power is limited by the interests of individuals. Novgorodtsev (1907) emphasised the need for a renaissance of natural law. Under the soviet regime that concept was rejected as a "bourgeois ideology". But it revived in the course of perestroika.
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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.
1.Verhovenstvo sakona: Primacy of the law
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.
2. Limitation of the state power by law
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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