Law of the Russian Federation
Encyclopedia
The primary and fundamental statement of laws in the Russian Federation
is the Constitution of the Russian Federation.
the Russian Constitution is considered to be the supreme law of the land. Article 15 of the Constitution reads that it “shall have supreme legal force and have direct effect, and shall be applicable throughout the entire territory of the Russian Federation.” Courts are guided by the Constitution and it trumps federal and local laws.
. They are typically enacted in important areas of constitutional law, such as Article 56 which allows for the passage of constitutional laws necessitated by a state of emergency. However the Constitutional Court was able to foreclose the possibility that constitutional laws could be used to circumvent the legislative process in the Case Concerning Interpretation of Art. 136 of the Constitution, VKS, 1995, No. 6, p. 10. Nevertheless, constitutional laws enjoy special status within hierarchy of laws, since federal constitutional laws will displace federal laws.
the legislative process. Codes are the basis for law on a matter, and they are usually supplemented with legislation to develop certain provisions. There are gaps in some of the codes, but even still the judges will find a basis for deciding the case in a given code. Codes are interpreted flexibly, and interpretation may be based on enumeration of “general principles” of the codes. General principles are usually articulated at the beginning of the codes in the first chapter to outline the reason for the legislation. Reasoning by analogy is also allowed.
The Russian Civil Code is the “constitution” of the market economy
, and is special in the hierarchy of codes, since it will supplant contradictory text in other codes. New codes and laws supersede old ones, unless a statute expressly preserves the old law.
and Supreme Arbitration Court have no authority to issue general “explanations” of the substantive law and procedural issues, absent a relevant “case or controversy” in front of them. Legal scholars also take part in these discussions, and the opinions of the judges and commentators are published and used as persuasive authority. This process is somewhat analogous to the discussion that scholars take in American Law Reports
or in law reviews. The judges and scholars may codify what is practice, or more importantly address new issues of law to the lower courts and instruct them how to interpret these issues. The texts of the explanations of the law are published, and cited by many courts. In contrast, only selected judicial opinions are published. It is not clear which explanations are binding to lower courts, as there is a tension between the Constitution and federal law versus guiding explanatory principles. Still, lower courts that ignore relevant explanations will probably get reversed.
The ordinary or lower courts may also apply judicial review. Courts of general jurisdiction
may decline to apply (1) any law that violates the Constitution and (2) any normative regulations, in particular subordinate regulations that contravene statutes.
The Supreme Court of the Russian Federation
has jurisdiction to determine the constitutionality of regulations issued by government agencies. The Supreme Court has held that lower courts must evaluate the contents of applicable laws or other normative acts for their conformity to the constitution, and to apply the constitution where they conflict.
, using the general principles of the law the codes to interpret provisions broadly. This is especially true in the case of Hogsteen v. Bruschveka.
, but rather legal positivism
combined with general principles of law. They may rely on “the requirements of good faith, reasonableness, and justice since Civil Code and other codes tell specific principles within the code. Other principles are equity and fairness, general principles of law, etc.
and the international treaties of the Russian Federation are part of Russian domestic legal system. Domestic law gives way to international law according to Article 15 of the Constitution. The Constitutional Court has the greatest expertise in applying international law.
For further reading, one should consult William Burnham and Gennady Danilenko, The Law and Legal System of the Russian Federation p. 8–20 (2000).
. However, there are problems with this new classification (similar to the ones that plagued Russia's classification as a socialist law country). For more, see William Partlett, Reclassifying Russian Law: Mechanisms, Outcomes, and Solutions for an Overly Politicized Field (reference below).
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
is the Constitution of the Russian Federation.
Domestic sources
Since its adoption in a 1993 referendumReferendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
the Russian Constitution is considered to be the supreme law of the land. Article 15 of the Constitution reads that it “shall have supreme legal force and have direct effect, and shall be applicable throughout the entire territory of the Russian Federation.” Courts are guided by the Constitution and it trumps federal and local laws.
Constitutional laws
Constitutional laws cannot become part of the constitution or amend parts of it absent a special legal act on constitutional amendmentConstitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
. They are typically enacted in important areas of constitutional law, such as Article 56 which allows for the passage of constitutional laws necessitated by a state of emergency. However the Constitutional Court was able to foreclose the possibility that constitutional laws could be used to circumvent the legislative process in the Case Concerning Interpretation of Art. 136 of the Constitution, VKS, 1995, No. 6, p. 10. Nevertheless, constitutional laws enjoy special status within hierarchy of laws, since federal constitutional laws will displace federal laws.
Statutes
Statutes are the predominant legal source of Russian law, and may only be enacted throughthe legislative process. Codes are the basis for law on a matter, and they are usually supplemented with legislation to develop certain provisions. There are gaps in some of the codes, but even still the judges will find a basis for deciding the case in a given code. Codes are interpreted flexibly, and interpretation may be based on enumeration of “general principles” of the codes. General principles are usually articulated at the beginning of the codes in the first chapter to outline the reason for the legislation. Reasoning by analogy is also allowed.
The Russian Civil Code is the “constitution” of the market economy
Market economy
A market economy is an economy in which the prices of goods and services are determined in a free price system. This is often contrasted with a state-directed or planned economy. Market economies can range from hypothetically pure laissez-faire variants to an assortment of real-world mixed...
, and is special in the hierarchy of codes, since it will supplant contradictory text in other codes. New codes and laws supersede old ones, unless a statute expressly preserves the old law.
Presidential decrees and directives
The President has power to issue normative and non-normative decrees, provided they do not contravene the constitution and federal laws. "On the basis and for the sake of implementation of the Constitution of the Russian Federation, federal laws, normative decrees of the President of the Russian Federation" Government may also issue directives having “normative” character.Agency regulations
Agencies may enact regulations through their general competency, but these are limited to the extent of the constitution and relevant codes. If these limits are not strictly defined, then the president may use agencies to get around the legislative process. Consequently, agencies may have their powers limited by statutes. The Civil Code purposely authorizes supplementary rules by “statute” rather than the broader term “legislation” which could encompass other secondary law.Judicial decisions, judicial practice and explanations of supreme courts
Russia is a civil law country; and, strictly speaking, decisions rendered by courts are not binding on other courts. However, the lower courts generally follow the principles established by the supreme courts. Moreover, according to Art.304 of the Code of Procedure in Commercial Courts, the Supreme Arbitrazhny Court can set aside a decision of a lower court on the grounds that this decision contravenes uniformity in interpretation of law as established by case law. In practice, but not in theory, precedents of the higher courts are becoming an important Russian law.Judicial explanations of law
The Russian Supreme CourtSupreme Court of the Russian Federation
The Supreme Court of the Russian Federation is the court of last resort in Russian administrative law, civil law and criminal law cases. It also supervises the work of lower courts. Its predecessor is the Supreme Court of the Soviet Union....
and Supreme Arbitration Court have no authority to issue general “explanations” of the substantive law and procedural issues, absent a relevant “case or controversy” in front of them. Legal scholars also take part in these discussions, and the opinions of the judges and commentators are published and used as persuasive authority. This process is somewhat analogous to the discussion that scholars take in American Law Reports
American Law Reports
In American law, the American Law Reports are a resource used by American lawyers to find a variety of sources relating to specific legal rules, doctrines, or principles. It has been published since 1919 and remains an important tool for legal research....
or in law reviews. The judges and scholars may codify what is practice, or more importantly address new issues of law to the lower courts and instruct them how to interpret these issues. The texts of the explanations of the law are published, and cited by many courts. In contrast, only selected judicial opinions are published. It is not clear which explanations are binding to lower courts, as there is a tension between the Constitution and federal law versus guiding explanatory principles. Still, lower courts that ignore relevant explanations will probably get reversed.
Judicial review of laws for constitutionality by the constitutional court
Judicial Review allows courts to declare unconstitutional laws void. Constitutional Courts are therefore negative legislators. The interpretations of the constitution in the decisions of the Constitutional Court are also authoritative and binding on the political branches.The ordinary or lower courts may also apply judicial review. Courts of general jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
may decline to apply (1) any law that violates the Constitution and (2) any normative regulations, in particular subordinate regulations that contravene statutes.
The Supreme Court of the Russian Federation
Supreme Court of the Russian Federation
The Supreme Court of the Russian Federation is the court of last resort in Russian administrative law, civil law and criminal law cases. It also supervises the work of lower courts. Its predecessor is the Supreme Court of the Soviet Union....
has jurisdiction to determine the constitutionality of regulations issued by government agencies. The Supreme Court has held that lower courts must evaluate the contents of applicable laws or other normative acts for their conformity to the constitution, and to apply the constitution where they conflict.
USSR legislation
USSR legislation fills gaps as the new system is being put in place, and is purely transitional until the Russian parliament can add new laws. It cannot contradict legislative acts of RF.Analogy
Judges often reason by analogyAnalogy
Analogy is a cognitive process of transferring information or meaning from a particular subject to another particular subject , and a linguistic expression corresponding to such a process...
, using the general principles of the law the codes to interpret provisions broadly. This is especially true in the case of Hogsteen v. Bruschveka.
Legal consciousness, natural law, good faith and general principles
Judges don’t rely on natural lawNatural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
, but rather legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
combined with general principles of law. They may rely on “the requirements of good faith, reasonableness, and justice since Civil Code and other codes tell specific principles within the code. Other principles are equity and fairness, general principles of law, etc.
Custom
The Russian Civil Code explicitly mentions custom as a separate source of law. Traditions may establish rules of decision where there is no dispositive language in statute or other written law.Academic commentary
Individual scholars may be influential by drafting legislation or debating proposed legislation. Unlike in some civil-law systems, academic treatises or learned commentary is not considered a separate source of law or cited by judges, but judges and attorney rely on it for their arguments.International law
All international lawInternational law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
and the international treaties of the Russian Federation are part of Russian domestic legal system. Domestic law gives way to international law according to Article 15 of the Constitution. The Constitutional Court has the greatest expertise in applying international law.
For further reading, one should consult William Burnham and Gennady Danilenko, The Law and Legal System of the Russian Federation p. 8–20 (2000).
Type of judicial system
During the Soviet period, Russian law was considered to be socialist law. Since the fall of the Soviet Union that is no longer the case, and most scholars have classified the Russian legal system as a civil law systemCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
. However, there are problems with this new classification (similar to the ones that plagued Russia's classification as a socialist law country). For more, see William Partlett, Reclassifying Russian Law: Mechanisms, Outcomes, and Solutions for an Overly Politicized Field (reference below).
See also
- Institute of State and LawInstitute of State and LawThe Institute of State and Law of the Russian Academy of Sciences is the largest scientific legal center in the Russian Federation. The ISL is part of the Philosophical, Sociological, Psychological, and Law Department of RAS...
- Russian legal history
- List of Russian Legal Historians
- Constitution of RussiaConstitution of RussiaThe current Constitution of the Russian Federation was adopted by national referendum on 12 December 1993. Russia's constitution came into force on 25 December 1993, at the moment of its official publication...
- Civil Code of Russia
- Copyright in RussiaCopyright in RussiaCopyright in Russia developed originally along the same lines as in Western European countries. A first copyright statute dated back to 1828, and in 1857, a general copyright term of fifty years was instituted. The copyright law of 1911 was inspired by Western laws of the continental European...
- Criminal Code of Russia
- Inheritance law of RussiaInheritance law of RussiaInheritance law in Part III of the Russian Civil Code. Chapters 61 through 63 of the code are the basic statues concerning inheritance. In general, the Russian laws concerning inheritance are simple and straightforward...
- Law of the Soviet Union
- Judicial system of the Russian EmpireJudicial system of the Russian EmpireThe judicial system of the Russian Empire was established as part of the system of government reforms of Peter the Great.-Judicial system after 1864:...
- Russkaya PravdaRusskaya PravdaRusskaya Pravda was the legal code of Kievan Rus' and the subsequent Rus' principalities during the times of feudal division.In spite of great influence of Byzantine legislation on the contemporary world, and in...
- SudebnikSudebnikSudebnik of 1497 , a collection of laws, which was introduced by Ivan III and played a big part in the centralisation of the Russian state, creation of the nationwide Russian Law and elimination of feudal division....
- Consultant PlusConsultant PlusConsultant Plus is an assistance system to work with the legislation of Russia. Consultant's centralized database is updated daily. It is distributed via a network of partners....
database of Russian legislation - Scholars in Russian lawScholars in Russian law-Imperial Russian jurists:Semyon Efimovich Desnitsky Aleksandr Ivanovich Herzen was a major Russian political philosopher and is known as the "father of Russian socialism"....
External links
- Online Encyclopaedia of Contemporary Russian Law
- Legal Research Guide: Russia
- William Partlett, Reclassifying Russian Law: Mechanisms, Outcomes, and Solutions for an Overly Politicized Field, Columbia Journal of East European Law, Vol. 2, p. 1 (2008). Available at: http://ssrn.com/abstract=1197762.