The Category of Justice and the Mechanism of Justice

About the author:

Mikhail I. Kleandrov, Corresponding Member of the RAS, Dr. Sci. (Jur.), Professor, Chief Research Associate, Institute of State and Law of the RAS (Moscow); mklean@ksrf.ru

Abstract:

The purpose of this study is to identify the reasons why the delegates of the IX All-Russian Congress of Judges (December 2016) did not continue the line of development of the domestic justice proclaimed by the Decree of the previous congress (VIII All-Russian Congress of Judges no 1, December 19, 2012 — “On the State of the Judicial System of the Russian Federation and the Main Directions of Its Development”). At that time, the delegates of the congress noted, “the need to develop a state project of strategic reforms of the organizational and legal mechanism of domestic justice, whose ultimate goal would be to build a fair court that meets the aspirations of the Russian society, is becoming an ever more pressing need.” They also named the method for solving this problem.

In the course of the study, the author has identified two main reasons for the highest body of the country’s judicial community not to continue the line for strategic modernization of the justice mechanism and the development of the state fair trial project. Among such reasons, the author names the absence of a separate, independent state-power body in Russia, which would propose a strategy for the development of the judicial power mechanism to ensure its implementation and to be responsible for the case’s success. Such an authority is not, nor can be, the Supreme Court of the Russian Federation, the Judicial Department under the Supreme Court of the Russian Federation, nor any other state body, or any body of the judicial community. Yet such state-power (and constitutional) bodies can be found worldwide, including the CIS member states. This is a reason of the organizational quality — simply for the absence of such named body, we have no one to act as a commissioner for the development of this state project. The second, a more significant reason, is of scientific and legal properties, which the author considers to be the insufficient scientific and legal research on the very concept of justice in the legal system. Aristotle singled out the problem of assessing judicial activity from the position of justice many years ago, and many scientists have turned to it since then. Yet nowadays judges are not guided by scientifically grounded signs of justice, but by their own intuition.

The absence of a state power body personifying the judiciary in the country, as well as the inadequacy of the scientific and legal elaboration of the category of justice in the legal system, served as a basis for delegates of the IX All-Russian Congress of Judges to delicately bypass the decision of the delegates of the previous congress, who had considered it necessary to draft a state project for a fair Court. At the same time, it should be noted that objectively, by and large, the general situation in the mechanism of the domestic justice is clearly not so deplorable as the adherents of the Russia’s flawedness argue; this mechanism is much better today than it was just ten years ago. Yet the general attitude of the Russian society to the mechanism of domestic justice is not as positive as it should be. Thus, the task set by the delegates of the VIII All-Russian Congress of Judges remains there. It will not resolve itself but it must be solved. In the opinion of the author, the problem is in the first place of scientific nature, rather than organizational, legislative, etc. Therefore, there is the need for the Program for the development of the State Project “Fair Trial”, the draft itself is in its form close to the four-volume edition of the legislative acts, which completed the development of the documents for the Judicial Reform in Russia in 1864. Fundamentally, it is the nature of each of the three components of the justice mechanism — Judicial, arbitral and judicial-statutory — which needs to implement the appropriate clear benchmarks of justice.

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