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CONTINUITY IN THE SCIENTIFIC UNDERSTANDING OF THE CONCEPT OF THE EFFECTIVENESS OF THE RULE OF LAW
DOI: http://dx.doi.org/10.14420/en.2015.4.3
Ilya Zavyalov, Post-graduate of the Russian Presidential Academy of National Economy and Public Administration. E-mail: [email protected]
Abstract. The article deals with research examining the effectiveness of the rule
of law, and legal regulation in the last period of the Soviet jurisprudence, and holds their comparison with modern concepts on this topic. There were made definitions on the effectiveness of regulatory acts in modern jurisprudence, and there were given suggestions on the adaptation of the Soviet scientific tools and study of the best achievements of the Soviet past in order to borrow them and to ensure continuity in a number of areas of public relations.
Keywords: the effectiveness of the rule of law, social effectiveness of the rule
of law, legal regulation, history of law, an intrinsic property of a legal norm, an extrinsic property of a legal norm, legal culture.
Continuity of the law displays a high legal culture of the state. The roots of the legal regulation of Russia go deep in history. If to take into account the first generally accepted legal source «Russkaya Pravda», written at the beginning of the eleventh century, one can safely say that the potential of a thousand years is quite enough for a full presence of our state in the sphere of legal culture among the leaders of the countries of the world.
It is interesting and constructive to draw attention to a later period, namely to the period of scientific work in the Soviet Union from 1970 to 1980 year. Choosing a given period of time, emphasis was placed on the fact that, paradoxically, it was during the decline of the Soviet Union, in the sphere of law there were conducted serious qualitative research measuring its effectiveness. On the other hand, one of the main goals of the given work is directionally to reflect the modern concept of determining the effectiveness of regulatory legal acts in modern Russia. At current, it is clearly observed a policy, specified by a leadership of the government for re-examining the best achievements of the Soviet past in order to borrow them and to ensure continuity in a number of areas
of public relations. Particular attention is drawn to the expediency of inclusion in the list for the study of works and developments of the Soviet school of law including in the sphere of research of effectiveness of regulatory legal acts.
The effectiveness of the rule of law and the legal regulation is a key issue for contemporary jurisprudence. This problem having a marked political aspect is developing unevenly in science-periods of active research alternate with years of almost complete absence of works. However, the study of the effectiveness of the law has the Soviet tradition, represented by outstanding scientists. Such researchers as V.P. Kazimirchuk, F.N. Fatakullin, L.D. Chulyukin, V.I. Nikitinsky, S.I. Samoschenko, and several others made a significant contribution to the development of the effectiveness of the law1.
An analysis of definitions developed by specialists of the Soviet period allowed to reveal the following elements of the concept of the effectiveness of the rule of law, recognized by the scientific community, such as:
- an intrinsic property of the rule of law and their ability to have a beneficial impact on the object in a specified direction2;
- the ratio between the actual result of their actions and those social goals for achievement of which the rules were adopted3;
- compliance of the conduct of addressees of a legal norm with the required conduct specified in the legal norm, the mechanism of the legal effect of which completes its action in the actual behavior of people-participants of the regulated public relations4;
- achievement of the result with minimal costs5;
- evaluation of the action of the legal norm in terms of its economy, not on the basis of the absolute value of the received result and not on the basis of the absolute value of the costs incurred, but on the basis of their proportion;
- its identification by approximation to the desired point, taken into account specially related indicators that are a clear indicator in the specified goal. It is necessary to clarify the last item, that certain global and strategic
goals are set for a long-term consciously-legal and temporal period, and within a short period of time it is physically impossible to identify achievements of specified objectives. For this purpose, it is necessary to determine an individual
1 Kazimirchuk V.P.The social mechanism of action of law // The Soviet state and law. 1970. № 10. P. 37-44; Fatkullin F.N., Chulyukin L.D. The social value and effectiveness of a legal norm. Kazan, 1977; The effectiveness of the rule of law / V.V. Glazyrin, V.N. Kudryavtsev, V.I. Nikitinsky, I.S. Samoschenko. Moscow: Yuridicheskaya literatura, 1980.
2 Fatkullin F.N., Chulyukin L.D. The social value and effectiveness of a legal norm. Kazan, 1977. P. 22.
3 The effectiveness of the rule of law / V.V. Glazyrin, V.N. Kudryavtsev, V.I. Nikitinsky, I.S. Samoschenko. Moscow: Yuridicheskaya literatura, 1980. P. 26.
4 Kozlov V.A. Problems in the theory of effectiveness of legal norm: Tez. dis . ... kand. jurid. nauk. Leningrad, 1972.
5 Pashkov A.S., Yavich L.S. The effectiveness of the exercise of the rule of law // Sovetskoye gosu-darstvo i pravo, 1970. № 3.
index of parameters, which can visualize achieving or distancing to the specified goal. Based on the chart of parameters, it is possible to make timely adjustments for achievement of the objective, including possible modification or refusal from the originally specified goal.
It should be also noted a social effectiveness of the legal norm, the standard of assessment of which is usually not the lawful behavior of its addressees, but more distant social goal, located outside the immediate scope of legal regulation. Rules that bring us closer to a social goal should be recognized effective. Increase of a degree of efficiency is carried out in the process of improving legislation and practice of its application.
Taking into account the above definitions it can be concluded that the effectiveness of regulatory acts is the definition of intrinsic and extrinsic properties of the legal norm. Intrinsic property of the norm is aimed at solving the original structural objective of the quality of the legal act itself, while its extrinsic property is reflected in the form of the rule of law, including structural elements of the intrinsic property and completing the main task in the form of achieving specified social goals. Conclusions on the effectiveness of legal decisions can be made based on the degree of achievement of those goals.
E.V. Okhotsky draws attention on the social aspect of the rule of law and indicates that the overall social effect is a basic indicator of the effectiveness of public administration. He gives a good idea of rationality, scientific validity and social orientation of management, allows to measure its quality by the received social effect. It is precisely in the last one all complexities and contradictions of the management process in terms of the existing contradictions are concentrated1.
It is important to draw attention to the similarity in the definition of regulatory legal acts, on the fact that the point of view of both, Soviet and modern Russian authors agree on one thing, namely, in the paramount importance of the social component of the total effect in achieving specified goal. Despite the difference in more than thirty years, issues of social values are brought to the first level of the legal plane of our state.
Attention is drawn to the importance of the resources spent to achieve a specified goal. For example, Y.N. Shedko believes that effectiveness is understood as the parity of resources and the results before and after the conducted modification. If the same as before the start of reforms, the volume of public functions and services is provided by using a smaller amount of these resources, or the same resources allow to increase the amount of government functions and services, it can be argued on the indisputable effectiveness and reforming2.
We can observe similar definition in a much earlier legal idea declared by the Soviet scholars which cannot give rise to reflection on similar positions in
1 Okhotsky E.V. Theory and mechanisms of modern governance. Moscow: Yurait, 2013. P. 259.
2 Mindlin Y.B., Onanko N.A., Shedko Y.N. The system of state and municipal government: Short course of lectures. Moscow: Yurait, 2013. P. 160.
solving the problems in the field of determining the effectiveness of regulatory acts.
Considering the international experience of studying the issue, T. Ekhof, Norwegian scholar singled the subject believing that the law might have some latent function. If the law does not lead to real changes, it can meet certain important requirements through formal expression of certain ideals. Such action of the law the author calls «the symbolic effect». Publication of notoriously dormant laws may be aimed at preventing conflicts in certain areas. Some are satisfied with the law as such, others are satisfied with inefficiency1. The French scientist G. Carbone noted that the effectiveness of the law, which provides freedom of action, consists not in action, but in the freedom itself, i.e. in the ability to choose any admissible option of action. Such law always has invisible effectiveness due to its psychological impact on people2. Domestic experts have focused attention on the importance of social effectiveness, believing that the official role of the law is effective in its specific manifestations. Effectiveness is expressed ultimately in the impact on non-legal phenomena, in the actual relations of people3.
A legal norm itself is the primary element of the current legal matter. A legal norm has specific features allowing to use the law as a focused regulator of public relations. It is the legal norms as a whole, rather than their structural elements have specific social goals, to the extent to which one can judge about the effectiveness of actions of legal solutions. It should be noted that the effectiveness of legal norms depends primarily on the quality of applied sanctions4.
It is worth paying attention to such a thing as anti-effectiveness. Anti-effectiveness are the consequences, which distance us from the specified goal in achieving effectiveness. Action of a specific legal norm in conjunction with other legal norms leads in practice to unexpected side effects, both positive and negative.
In both cases a situation occurs in which we have no right to judge on the social usefulness of the legal norm according only to data on the achievement of goals which legislator has had in mind.
This raises the problem of comparing the «weight» of positive and negative, unforeseen and secondary outcomes, measurement of effectiveness in terms of not the goal, but the usefulness of action of the rule of law, as action of the legal norm, in principle, may be socially harmful, albeit effective in relation to achieving a planned goal.
1 Eckhoff T. Sociology of law in Scandinavia // Norms and Actions National Riports on Sociology of law. The Hague, 1968. P. 31-33.
2 Carbonnier J. Effectivite et ineffectivite de le regle de droit, 1951-1958. P.: Presses universitaires de France, 1958. P. 6-7.
3 Kudryavtsev V.W.Sociological analysis of legal phenomena // Structure of Marxist sociological theory. Moscow: Izdatelstvo MGU, 1970. P. 59.
4 The effectiveness of the rule of law / V.V. Glazyrin, V.N. Kudryavtsev, V.I. Nikitinsky, I.S. Samoschen-ko. Moscow: Yuridicheskaya literatura, 1980. P. 26.
There is a complex relationship between the public relations and law. On the one hand, the analysis of the social system as a whole reveals the decisive role of public relations in shaping the law. On the other hand, the social relations themselves are the subject of targeted legal impact. Management of public relations with the help of legal regulator appears in relation, for example, to the citizens, not only in the definition of legal obligations, but also in the legal enshrinement of their rights and freedoms, in establishing a variety of guarantees for their effective use. Social management is defined in general terms as a purposeful impact on the social system, i.e. bringing the system in line with its inherent laws.
In determining the effectiveness of the rule of law, there are many approaches, and, based on different points of view, they are the following.
Such jurists as F.N. Fatkullin and L.D. Chulyukin believe that the effectiveness of the legal norms is the ratio between the actual result of their actions, and those social goals for the achievement of which these norms have been adopted. Effectiveness is only «an intrinsic property of legal norms themselves and their ability to have a beneficial effect on the object in a given direction»1. It is believed that the norm itself is the primary element of the legal matter.
From socio-political point of view, the main condition for the effectiveness of action of the legal norm should be considered its conformity to class and social structure of the society, the system of social relations, ideology and culture of the socio-economic formation. Under conditions of the bourgeois state inefficiency of legislative measures is generated primarily by antagonism of social forces, clash of powerful groups and monopolies, desire to act contrary to or bypassing the law2.
It is worth noting that the study of the effectiveness of detailed legal provisions processed by jurisprudence has great practical importance for the improvement of the legislation as well. In the absence of precise information on this legislator fails to take advantage of opportunities for further improvement of the legislation, or vice versa - will enshrine in law such legal provisions that will not «work» for a given purpose, and can entail unforeseen fallout3.
In the modern political and legal environment, the effectiveness is in demand by theory and practice and achievements of Soviet scientists can perform the role of the foundation and methodological framework for contemporary works. Moreover, the urgent need is brewing in the effectiveness of applicable norms of law. The ultimate, desirable objective, regulated by a definite legal norm, directly proportionally depends upon effectiveness of the execution and improvement of
1 Fatkullin F.N., Chulyukin L.D. The social value and effectiveness of a legal norm. Kazan, 1977. P. 22-26.
2 Bobotov S.V. Bourgeois sociology of law. Moscow: Yuridicheskaya literatura, 1978. P. 98.
3 The effectiveness of the rule of law / V.V. Glazyrin, V.N. Kudryavtsev, V.I. Nikitinsky, I.S. Samoschen-ko. Moscow: Yuridicheskaya literatura, 1980.
legislation. Unfortunately, in a modern Russian society at times it is accepted to draw a parallel and to identify concepts «Soviet» and «outdated».
Considering approaches to determining the effectiveness of regulatory legal acts of the Soviet period and comparing them with modern definitions, one comes to the conclusion that many of the above positions are similar and mutually complement rather than contradict each other. This observation suggests that the newly emerging legal system has a unique opportunity to review and use developments of the past, particularly in the study of the effectiveness of the legal norms. Based on the researched material, it is desired to draw attention to an important side of the legal norm effect - it is its social component. This social aspect although is considered by Russian lawyers, but not as wide as it has been disclosed by the legal system of the Soviet Union. Legal norms can be considered effective only if they bring us closer to the social goal. The question arise: at what level should be a modern legal awareness of the population in order these social goals could have the desired effect? I believe that this opinion should not be determinative, since based on it cannot be taken into account the emerging legal culture and thereby suspend the development process of legal awareness among the population. In my opinion, exercising legislative activity, it is necessary in every legal norm not only to approach closer to the main task, but also to emphasize a desired social effect. It is believed, that there is no rule of law having only legal goals. Such goals always represent itself only one of the lower links. As a result, it would be desirable to note once again that the great potential for the development of the legal system is laid down in the experience and achievements of the Soviet jurisprudence, which certainly is a great opportunity for continuity, further development and promotion of contemporary legal thought of the Russian Federation.
References
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2. Bobotov S.V. Bourgeois sociology of law. M.: Law Literature, 1978.
3. The effectiveness of the rule of law / V.V. Glazyrin, V.N. Kudryavtsev, V.I. Ni-kitinsky, I.S. Samoschenko. Moscow: Yuridicheskaya literatura, 1980.
4. Kazimirchuk V.P.The social mechanism of action of law // Sovetskoye gosudarstvo i pravo. 1970. № 10. P. 37-44.
5. Kozlov V.A. Problems in the theory of effectiveness of legal norm: Tez. dis. ... kand. yurid. nauk. Leningrad, 1972.
6. Kudryavtsev V.N. Sociological analysis of legal phenomena // Structure of Marxist sociological theory. Moscow: Izdatelstvo MGU, 1970.
7. Novak I.B. Cybernetics. Philosophical and sociological problems. Moscow, 1963.
8. Mindlin Y.B., Onanko N.A., Shedko Y.N. The system of state and municipal government: Short course of lectures. Moscow: Yurait, 2013.
9. Okhotsky E.V. Theory and mechanisms of modern governance. Moscow: Yurait, 2013.
10. PashkovA.S., Yavich L.S. The effectiveness of the exercise of the rule of law // Sovetskoye gosudarstvo i pravo. 1970. № 3.
11. Fatkullin F.N., Chulyukin L.D. The social value and effectiveness of a legal norm. Kazan, 1977.
12. Carbonnier J. Effectivite et ineffectivite de le regle de droit, 1951-1958. P.: Presses universitaires de France, 1958.
13. Eckhoff T. Sociology of Law in Scandinavia // Norms and Actions National Reports on Sociology of Law. The Hague, 1968.
