Rule of Law and Ukraine. What Needs to Be Done?

Culture eats strategy for breakfast. – Peter Drucker

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Drucker’s famous quote means that when strategy and culture collide, culture will win. Rarely has Drucker’s quote had more direct applicability than with respect to the legal system in Ukraine.

Culture refers to the dominant set of professional values, attitudes and behavioral expectations in a given organization or identifiable group of people, whether we are speaking of the prosecution service or the judiciary or all of a country’s lawyers. Strategy consists of plans and actions that can formally be imposed or chosen, such as structural or organizational changes or changes in rules or changes in personnel or action plans. The Drucker quote does not mean that strategy is unimportant. Culture and strategy interact with one another and in some sense are mutually reinforcing. For example, a culture change in the judiciary needs to be accompanied by decent salaries and some effective law enforcement entity capable of investigating judicial corruption. But, again, what “culture eats strategy for breakfast” means is that when the two collide, culture will win. And when it comes to the legal system in Ukraine, such collisions are routine.

As explained in Part I, the original sin of Soviet “legality” was Lenin and Trotsky’s fundamental divorce of legality from the pursuit of justice as fairness and the subordination of “legality” to the needs, wants or whims of those in power. In other words, what they created or introduced was the instrumentalization of “legality” that resulted in a system of legalized lawlessness. 

If a post-Soviet prosecutor thinks that the job of a prosecutor is to serve as society’s guardian because he/she thinks that prosecutors are smarter or more entitled as society’s purported vanguard or simply better situated in the power structure to make various decisions or, in the post-Soviet world, to exploit his/her position of power for self-enrichment, he/she will conduct him/herself as a prosecutor in one way. If, however, he/she is taught and thinks that the job of a prosecutor is to consider and apply the rules so as to administer justice as fairness, then he will conduct himself as a prosecutor in a rather different way. And it will not make much difference how many strategic changes or how many formal reforms may be introduced, he/she will still act the way in which he/she understands a prosecutor can and should behave, the way in which in his/her understanding it is normal for a prosecutor to act. The same applies to judges or to the lawyers in private practice who facilitate or induce bribery.

In the legal arena in Ukraine, some rules and some structures have since independence been changed or created, but, given the various attempts by Western donors since 1991 to try and promote legal reform in Ukraine, it is remarkable that no one has tried to directly influence Ukrainian post-Soviet legal culture. How could this culture be addressed? First, by helping to fundamentally reform Ukrainian legal education and, second, by helping to apply such reforms to the creation and implementation of an intensive program of continuing legal education for every lawyer authorized to practice in Ukraine, whether in private practice or as a prosecutor or a judge — without exception.

The failure to address the state of legal culture is not only in and of itself a major barrier to any meaningful legal reform but can also produce new unintended deformations into the legal system when all reform is focused exclusively on strategy. Thus, for example, reformers in Ukraine pushed through the adoption of revised criminal procedure rules in order to counterbalance prosecutorial abuses, but these well-intentioned changes then ended up generally handicapping law enforcement in the normal execution of their duties, particularly when up against well-healed and well-defended persons engaged in large scale corruption.

How should legal education be substantially reformed? By changing both the curriculum and the method of preparing persons to be lawyers in whatever capacity they ultimately serve, whether as judges, prosecutors or in private practice. In addition to teaching traditional skills such as writing, presenting in court and legal research, the curriculum needs to include extensive legal-historical, including comparative, study and analysis: what was the nature and effect of the major reforms adopted in 1864 Imperial Russia? How and why did Sovietism produce legalized lawlessness? What role did the civil law camouflage play in Soviet legality? How did Austro-Hungarian and then Polish legality differ from Imperial Russian and then Soviet legality? How and why did Anglo-American law evolve the way it has since the Magna Carta? What is required for the successful functioning of current continental civil law systems? What have been some of the major successes and failures of each system? Does Ukraine’s legal and political history suggest that a common law or a civil law system is more likely to improve or increase the level of rule of law?

What does it mean to strive for the administration of justice in any system? What does rule of law mean? And the curriculum would need to include a close study and analysis of professional ethics for lawyers, prosecutors and judges.

With respect to the method of legal teaching, law schools should adopt a modified Socratic method of teaching. This means that students are assigned reading that will then be discussed and analyzed in class by the students in response to guided questions posed by the professor. Students are randomly called upon to participate and graded in part on their knowledge and understanding of the material covered analyzed. The ultimate endpoint of the process would be to graduate lawyers who are capable of understanding what rule of law is, why it is critically important and the many ways in which it must be protected and fostered as it evolves. The continuing legal education program for persons already functioning as lawyers would consist of a condensed version of the legal-historical, the comparative systems and the what is rule of law and the administration of justice as fairness components of the new curriculum.

This would all be a giant undertaking taking years and requiring significant resources. And such a project would have to guard against an Orwellian solution, such as was implemented in some universities after the Soviet Union fell apart: former courses on atheism were renamed courses on world religions but were taught by the exact same teachers using the exact same course content. There may be other ways of changing the legal culture in Ukraine, but what is incontrovertible is that fundamental and genuine reforms of the legal system will never take place without a significant change in the Ukrainian legal culture. There must be a new understanding and internalization of what a normal legal system is and should be on the part of all of its practitioners.

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