Why Is Raising the Level of Rule of Law In post-Soviet Ukraine Such a Challenge?
The past is never dead. It’s not even past. – William Faulkner
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A country with a legal system that possesses the rules, norms, mechanisms and procedures to produce results that most of that country’s inhabitants perceive to be just in the sense of being fair has a high level of rule of law. Countries that are not so blessed have a low level of rule of law. Ukraine has thus far fallen into the second category of countries as is, for example, reflected by its low ranking in the World Justice Project rule of law index. Why?
It may come as a surprise that the beginning of the answer is lodged in the rather distant past, specifically in the mid-19th Century when Karl Marx opined that instead of seeking to administer justice, existing European legal systems were in reality a sham that existed to defend class interests. Fast forward to 1917, and it is perhaps not surprising that Lenin and Trotsky, orthodox Marxists, completely abolished and disbanded the then existing legal system that had operated in the Russian Empire.
All of this was both ironic and tragic. Ironic because Marx had lived the last 30-some years of his life in, of all places, England, a country that, despite its legal system’s various shortcomings, had for centuries been developing the kind of rules, norms and mechanisms that produce rule of law. It is also ironic that Russian Tsar Alexander II had in 1864 introduced various reforms into the Imperial Russian legal system, reforms borrowed mostly from England and some from France. These reforms included the utilization of a lay jury system in criminal cases, a reasonably independent judiciary, open adversarial trials with legal representation and other reforms.
Remarkably, less than five years prior to the Bolsheviks’ destruction of the then existing legal system, that system had produced a rather surprising result in a trial that had taken place in Kiev, then a city in the Russian Empire. In 1911, someone murdered a young Ukrainian boy in Kiev. The Czarist authorities not only falsely accused a Jewish man named Mendel Beilis of this brutal crime but also claimed that it had been committed by Beilis supposedly in connection with a Jewish ritual whose performance required human blood.
The 6-week trial took place in 1913 and was a cause célèbre. The Czar received regular updates; Beilis had an international team of defense lawyers; and the trial was attended by the international press. At the end, and to the astonishment of many—given the strongly anti-Semitic sentiment then prevailing in Czarist Russia—Beilis was judged not guilty. Why? Because the reforms introduced half a century earlier had worked to produce a just verdict: the 8 Ukrainian peasants making up the lay jury were instructed to make a decision based on the evidence, and that’s exactly what they did.
Any genuine legal system, i.e., any rule of law legal system, seeks to administer and produce justice as fairness. In order to do so, it must be independent of any government, ruling political party or powerful or wealthy group or individual, for otherwise it cannot seek justice as fairness, which requires focusing exclusively on evidence and applying rules and procedures designed to obtain justice. The original sin of Lenin and the Bolsheviks was that they divorced legality from justice and created a “legal system” that instead of being independent was now dependent on and as an appendage to the Soviet state and the Communist Party. So instead of being an independent engine for trying to administer genuine justice, the Soviet “legal system” served as an instrument used and exploited by its masters for their purposes, which purposes included show trials, fabrications, manipulations and other systemic departures from anything resembling genuine legality and justice. The great Harvard historian Richard Pipes called the Soviet legal system a system of “legalized lawlessness.”
What happened with the legal system in post-Soviet countries such as Ukraine when the Soviet Union collapsed in 1991? Those who operated the system continued to view it as instrumental, except that now it in some sense became privatized so that instead of the Party it served the highest bidder or the most powerful member of some local or national elite.
If this state of affairs were not challenging enough for any post-Soviet reformers, it turns out that the Soviets had introduced yet another wrinkle in their legal system that made and make it even more difficult to try and fix. Being extraordinary masters of make-believe, the Soviets came to pretend that instead of having an instrumental system of legalized lawlessness, their legal system was purportedly a species of a “civil law” (also called Roman or Napoleonic) legal system of the type that had prevailed and continues to prevail in continental Europe.
That was actually a lie or, perhaps more accurately, a form of camouflage because genuine civil law systems such as those found in France or Germany seek to administer justice as fairness rather than serve as the handmaiden of the Communist Party or Soviet state or, more recently, those with political or financial power.
To the extent that the Soviet and now post-Soviet legal system in Ukraine has some superficial similarities with genuine civil law systems, such similarities consist of mimicking the worst rather than the best features of a civil law system. It begins with legal education in Ukraine’s law schools. Instead of being taught to think analytically and strategically, or about what is just and why, legal education in Ukraine—with some exceptions—is too often a mind numbing exercise of professors reading the same lectures they’ve read for decades about this or that category of laws and then expecting their students to regurgitate back what they’ve heard on examinations. Ukrainian law schools prepare students to close their eyes and ears and to become legal plumbers in a system in which the water runs backwards, but as long as some law can be found to superficially justify that dysfunction, then the law student is taught that he or she has performed his/her task regardless of how grotesque, from the standpoint of justice, the results may turn out to be. And all of this is leavened with various Latin legal phrases to give it an appearance of gravitas. That’s what, among other things, makes so-called “raiderstvo,” the often legally sanctioned theft of property or businesses, possible. It’s also what made the politically-motivated convictions and incarcerations of Yulia Tymoshenko, Yuriy Lutsenko and other legal travesties during the Yanukhovych years possible.
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