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123Law and Modern States № 3 — 2013
PROFESSIONAL ETHICS STANDARDS IN THE RUSSIAN LEGAL FIELD
Olga Tsybulevskaya
Doctor of Legal Sciences, Professor, Head of Theory of Law Chair Stolypin Povolzhsky Institute of Management, branch of the Russian Presidential Academy of National Economy and Public Administration
Tatyana Kasaeva
LLD, Assistant Professor, Head of Chair of Theory and History of State and Law Saratov State Socio-Economic Institute of Russian Plekhanov Economic University.
Abstract: The article shows a specific role of the code of ethics as one of the means to improve the level of moral and legal culture of subjects of authority in the context of forming a civil society in Russia. The authors declare their position concerning the nature of normative acts in this field and emphasize the significance of interaction between law and morality in regulating social relations
Keywords. Ethics, code of ethics, professional code of laws, law, morality.
Contemporary Russia desperately needs to identify moral and legal milestones that would appropriately mark the stage of socioeconomic development the country has reached The identification of such milestones is not only an impelling demand of the society, but also a high-priority objective for academic research
Cross liability of the state and the personality is not restricted to legal relations; in fact it implies a spiritual foundation in relationships between the state as a public authority and the personality who is an actor in effectuating this authority's power. According to Immanuel Kant, one may declare that the legal system operates properly only when the society does not depend upon the state and possesses certain media and sanctions by means of which it can induce the individual to observe the moral code, and besides, there is general admittance of the fact . To a considerable extent this proposition concerns state officials and civil servants
Improving the morality of the subjects of authority involves simultaneous efforts in several directions . One direction is to provide 32
for legislative regulation of authoritative bodies' activity, the other is to define fundamental moral standards by introducing certain codes of ethics, for example, the parliamentary code of ethics, code of honour for judges, the public servants' code of conduct, etc In order to create a proper moral environment it is essential to translate the moral code into the language of procedures and technologies It is also important to frame applied ethics and professional codes of laws Presumably they will play a crucial role in setting up moral parameters in civil servants' behaviour, and allow the elimination of conflicts of interest, and also defend the honour and dignity of authorities
Objectivity in today's Russia dictates the necessity to pay special attention to candidates' moral qualities when selecting and promoting public servants The application of these codes of laws in formal procedures can result and has resulted in situations where individuals are excluded from the given professional community for breaking professional ethics rules Thus they already provide for establishing moral parameters of behaviour for civil servants and preventing conflicts of interests
The first and foremost positive value of the codes of ethics is that they make individuals focus their attention on their own moral status Besides, they give an insight into the subject matter of ethics theory without being its substitute. 1
In January 2003 the first All-Russian Congress of Lawyers passed the Code of Professional Ethics for Lawyers . In 2004 the sixth Congress of Judges passed the Judicial Ethics Code (this replaced the Judges of the Russian Federation Code of Honour, which was adopted in 1993) . This document has the power of law for judges . Its function is not only to specify sanctions for judges who infringe rules of judicial ethics, but also to protect judges from insubstantial accusations including those connected with attempts to influence the decision of the court Currently a new concept of the code of judicial ethics is being actively discussed in the judicial community2
The Board of the Federal Notarial Chamber ratified a Professional Code for Public Notaries of the Russian Federation The Code of Professional Ethics for the Russian Federation Home Affairs Bodies was enacted by the Order of the Minister of Home Affairs
1 See: Kanke V. A. Etika otvetstvennosti: Teorija morali budushchego [Responsibility Ethics: Morality of the Future Theory]. Moscow, 2003. P. 315.
2 See: Drjakhlov S. K. Novaja kontseptsija Kodeksa sudejskoj etiki sudej Rossijskoi Federatsii: za i protiv [A New Concept of the Code of Judicial Ethics for Judges of the Russian Federation: Pros and Cons], Rossijskoe pravosudie [Russian Justice], 2010, No. 10 (54). P. 71-76.
Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
of 24 November 2008 (No. 1138) . In 2010 after long discussions and negotiations the Standard Code of Ethics and Official Behaviour for Public Servants of the Russian Federation was adopted The Code of Ethics of Deputies was also developed
In the literature, researchers state that codes of ethics have acquired such topicality today for the following reasons: society's requirements of political institutions are increasing and methods to control them are being developed; today's politicians are more anxious about their reputation . We should also note that the concept of “conflict of interests” is one of the key concepts in all codes of ethics, and it is by no means just a coincidence . Officials in politics and administrative officials attract close attention That is why it is also their priority to have a set of rules stating how to behave and present information, which will allow them to make correct decisions and to defend themselves from false accusations Any actions in the daily work and relationships of civil servants that can lead to corruption or create opportunities for corruption are to be strongly discouraged, since they destroy the credibility of the state in no less a degree than corruption itself It is easier to act correctly if a person knows what kind of behaviour people expect from him or her
Unlike the code of laws, which deals with the negative side of human nature, the code of ethics appeals primarily to the highest expression of human nature — to conscience . The code of ethics should embody such moral principles and norms as continuity of values, customs and traditions typical of the Russian society, and conformity of ethical norms to nationwide interests Until recently the general trend in interaction between standards of law and morality could be presented as ethics requirements being absorbed by juridical ones, i e ethics norms were validated as legally operative, and the criteria applied to evaluate these norms were purely formal and based on existing legal practices The very fact that today it is becoming more and more common for corporations to adopt their own codes of ethics indicates a new tendency, which can be described as an aspiration to diversify forms of legalization of ethical requirements, to transfer ethics norms into the area of formalized rules of conduct
Just to adopt such documents is insufficient Regulatory bodies should have in their structure special committees on ethics designed to examine cases of moral offences, to render public reproof (to impeach credit), and also to give recommendations on how to encourage people towards sound moral conduct
Today professional codes of ethics either have been already adopted or are being discussed in most sectors of business 34
When searching for common sense and morality in the market economy per se, one comes to the conclusion that it is not the market that is amoral, but the behaviour of people acting within the framework of this market It is inherent in the market economy to view a human being with a cold-eyed realism, but market relations do not remove the significance of mutual trust, liberty, and obeying accepted moral standards voluntarily This is proved by practice existing abroad . Almost 100 years ago a distinguished German scholar Max Weber gave convincing evidence that western capitalism was built not on the so-called “primary accumulation” but on a sound foundation of Protestant ethics, which presented a distinct ethical guidance determined by Christian ethics
In different countries economic ethics are based on different religions, however in principle the foundation is the same . The common approach is that in order to make a profit one should apply accounting methods, lead a prudent life, reduce expenses, be honest, modest, and hardworking. The “economic miracle” of Germany and Japan, South Korea and Taiwan, Singapore and Malaysia, as well as of other newly industrialized countries, was created by applying individual approaches that took into account the distinct features of each state and society, national identity issues and the national genius But one thing these approaches did share as a common feature was their focus on building a market economy and representative democracy.3
The experience of many countries has shown that it is absolutely unacceptable to oversimplify and to narrow down all social needs to mere economic needs by leaving out the moral sphere The material production of capitalism at its initial stage in order to ensure further development also required in the first place to solve problems of morality rather than solving purely scientific and technical problems, since it was impossible to evolve new economics based on private initiative without forming a new type of person It was not accidental that the central nerve of philosophical research in that period lay not in the sphere of natural philosophy, but in that of ethics
However, according to the German specialist in contemporary social morality, Karl Homann, one should not go to extremes The conflict between the entrepreneur's consciousness in the field of ethics and the intrinsic logic of the entrepreneurship per se should be resolved neither in a spirit of a radical liberalism (i e by focusing on cultivation of the individual's selfishness in what concerns
3 Vozmozhno li russkoe ekonomicheskoe chudo? [An Economic Miracle — Is It Possible in Russia?] // Parlamentskaja Gazeta [Parliament Newspaper], 23 August 2003.
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Law and Modern States № 3 — 2013
his or her activities), nor in a spirit of moral fundamentalism (i e by condemning bitterly a moneymaking attitude understood as acquisitiveness and attempting to do without entrepreneurship as it is) No ethics system should block evolution of the economic system. Karl Homann suggests that individuals should view their moral aspirations as obeying laws with utmost honesty Speaking about proper timing for efforts aimed at forming ethical norms and values, we should note that it is to be done on a different stage, namely when establishing frames and general operating procedures in economics Only when it is done in this order is there a possibility of generating “moral economy”. 4
According to the report “Corporate Ethics: a Prime Business Asset”, which was presented at the Business Roundtable, the corporate community is to make continuous attempts to improve its activity and enhance outcomes .5 Many top managers believe that a corporate culture imbued with ethics throughout all the organizational structures best serves the interests of the company They feel that such penetration is necessary to ensure that their company will be profitable, competitive and effective . From the point of view of chief executive officers presented in this report, there is no conflict between ethical practice and acceptable profitability In fact the former provides for the latter.6 The vice-president of the New York Stock Exchange, Richard Bernard, has stated that it is necessary to develop and apply codes of business conduct or business ethics for directors, executive officers and employees It makes it possible to avoid conflicts of interests in the corporation . 7
The prime objective of business ethics consists in assuming a moral responsibility when it proves to be necessary in the context of weakened moral and legal regulation In the long run more benefits
4 Sutor B., Homann K. Blome-Drees F. Politicheskaja i ekonomicheskaja etika [Wirtschafts- und Unternehmensethik: Political and Economic Ethics], Transl. from German into Russian by S. Kurbatova and K Kostyukova. Moscow: Fair Press, 2001. P. 366.
5 Corporate Ethics: A Prime Business Asset // The Business Roundtable. February 1995. P. 8—10.
6 Frederick R., Petri E.. Delovaja etika I filosofskij pragmatizm [Business Ethics and Philosophic Pragmatism] // Voprosy filosofii [Questions of Philosophy]. 1996. No. 3. P. 74—75.
7 Bernard R. Novye osobennosti v zakonodatelstve SShA po voprosam korporativnogo upravlenija [New features in the USA legislation concerning corporate governance], Moscow Law Forum “Globalization, State, Law, the Twenty-First Century”: Materials of Reports. Moscow, 2004.P. 43—45.
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can be derived from this course of action than from trying to adapt to or abuse the defects and collisions existing in the legal system It accounts for the fact that growth prospects are no doubt much higher when the systems organization of a business is being perfected in comparison with the possible temporary benefits derived from disorganization Thus we can conclude that corporate ethics is a key factor in the strategy of survival in the current period of fierce competition in the global economy
The Russian business community on the whole has recognized the problem of ethics . Business ethics in contemporary Russia started to become an issue in the 1990s . A number of professional codes of ethics were formulated, among them; the Code of Honour for Bankers (1992), Rules of Conscientious Practice of the Stock Market Players Association (1994), Code of Honour for Associates of the Russian Guild of Realtors (1994), Code of Professional Ethics for Associates of the Russian Society of Appraisers (1994) . In 1995 the Chamber of Commerce and Industry of Russia set as a priority developing the business culture of entrepreneurs, and initiated the project which came to be known as “Russian Business Culture”
In the frame of the trend presented above, the idea to create a Code of Business Ethics proved to be timely indeed The idea was put forward at the Seventh World Russian People's Council held in 2002. The main topic of the Council was “Faith and Labour: Spiritual and Cultural Traditions in the Light of Economic Future in Russia”.8 At the beginning of 2004 this project was implemented, and Eights World Russian People's Council adopted the “Code of Ethical Principles and Rules for Management in the Economy” Representatives of all confessions, business circles, journalists and officials participated in discussing the Code In its preamble it is stated that the document is intended for top managers of enterprises, commercial entities, and entrepreneurs who will voluntarily apply the principles and rules prescribed by the Code
Recent experience of Russia as a state with a transition economy furnishes evidence that not purely economic, but rather social and judicial factors played a fundamental role in causing the current crisis According to Vladimir Yakunin, President of the World Public Forum “Dialogue of Civilizations”, the essential flaws that provoked the world financial crisis also have a moral nature, since it was a supranational principle “Profit above All” that precipitated the whole world into the
8 Nuzhen Kodeks etiki [We Need the Code of Ethics]. Outcomes of VII World Russian People’s Council // Rossiiskaja Gazeta [Russian Gazette]. 24 December 2002.
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Law and Modern States № 3 — 2013
crisis when it was made the corner-stone in the hierarchy of values Economic selfishness is a moral category
Nevertheless, social research shows that people in Russia have generally adapted to new socioeconomic forms and living conditions On the whole the population of the country has accepted the market economy despite the drawbacks of “brigandish capitalism”. However, in the mass psychology of modern Russian society there remains an injured moral sense, a protest against the moral and mental violence which accompanied the reforms, and against the results of numerous distortions in implementing these reforms This discrepancy is growing and can become socially dangerous
At the same time, according to the well-known Russian political analyst Alexey Kiva, it would be wrong to say that western democratic society ignores all issues that are not directly connected with financial interests or that it does not care about the course the country is taking, its ideology, national identity, and such like At this new rung on the ladder of historical evolution, even in highly developed and wealthy countries, their governing bodies often have to ask common people for their opinions to put forward new ideas and to offer methods for the solution of significant problems with due regard to the people's mentality Otherwise world history would not have known either Reaganomics or Thatcherism . It was American pragmatism that gave birth to a national idea to match it We mean the so called “American dream”, the idea that one should have material wealth in this life rather than in some kind of distant “bright future”. 9
The very fact that in Russia there have appeared codes of ethics both in private and in public spheres raises a number of questions . For example, it is open to dispute what role is to be assigned to the code of ethics in the system of regulatory enactments The norms of corporate and professional ethics are to be legalized, but it is not clear how One of the possible methods to apply is to legitimate codes of ethics as localized legal acts Another way is to recognize such codes as mere corporate rule-books, which means that the breach of such a code shall not entail a legal liability, and then there is no need to attach the status of a localized legal act to it. Norms of this type do not collide with the legal system, just the opposite, they complement and amplify its effectiveness When laying emphasis on a specific role of professional codes of ethics in his department, Head of the Chamber of Accounts of the Russian Federation, Sergey Stepashin, declared
9 Kiva A. V. Dukhovnost i preodoleniye krizisa [Spirituality and Overcoming the Crisis] // Obshchestvennje nauki i sovremennost [Social Sciences and Contemporary Society] 2001 No 2 38
that twelve officials had to leave the Chamber of Accounts in 2011 on the grounds of breaching the professional code of ethics . 10
In conclusion it is important to note the futility of certain illusions like an expectation that everybody will tenaciously adhere to all ethics standards . Nevertheless, by the mere adoption of such codes we are creating a favourable psychological climate, civilizing the market, shaping a new mentality This is only the first step, but it is vital to make in order to promote the establishment of ethics in the future
10 Stepashin V. S. K vam revizor [The Auditor Is Going to You] // Argumenty i fakty [Arguments and Facts]. 2012. No. 9.
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