Definitions

field reference

Law of the Russian Federation

The primary and fundamental statement of laws in the Russian Federation is the Constitution of the Russian Federation.

Hierarchy of Laws

Domestic Sources of Law

Since its adoption in a 1993 referendum 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 amendment. 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 through 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.

Sub-Laws: Presidential Decrees and Agency Rules

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

Traditionally, there was no judge-made common law, and decisions only cited to the constitution, written laws in codes, statutes, or regulations. There was no stare decisis, and cases had arguable value as precedent. Past cases are not referred to in opinions, but attorneys may introduce them in their arguments. However, court judgments were not future precedent.

More recently, the courts of the Russian Federation have allowed more reliance on precedent for efficiency and consistency, referring to precedent as “settled judicial practice.” The trend will probably be for more opinions to use settled judicial practice due to all the gaps in the Russian legal system compounded with greater accessibility of judicial opinions via commercial online and printed sources. While not totally considered outside sources of law, judges increasingly rely on published judicial opinions to supplement their decisions. Nevertheless, these judgments are not binding to lower courts, but are persuasive.

Judicial Explanations of Law

The Russian Supreme Court 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.

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 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.

Other Sources of Law

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 analogy, 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 law, 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.

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 law 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: Comparative Modeling

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 system. 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

External links

  • 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.

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