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Published online by Cambridge University Press: 11 February 2021
ABSTRACT
This contribution analyses the features of Russian legal culture that – in the author's opinion – prevent this culture from acceptance of human rights in their liberal reading. These features are examined through the lenses of the conceptual history. The positivist intellectual tradition of conceptualising law in terms of state power led to the priority of state commands over natural rights: the former define the extent to which the latter are legal. With this, human rights defined by the international community or by civil society cannot work as checks and balances against the state and its arbitrary power. This perception of rights fits the political autocracy very well, which is conceptualised in Russian legal scholarship in terms of sovereignty. The author argues that sovereignty, as it is perceived in the epistemic community of Russian lawyers, conceptually excludes the priority of human rights. Because of this, the argument of sovereignty unsurprisingly became one of the cornerstones of the current ideology in Russia, and continues to feed interpretative controversies about human rights between Russian and other epistemic communities.
SOVEREIGNTY AND HUMAN RIGHTS IN RUSSIAN LAW: INTRODUCTORY REMARKS
Ten years have passed since the European Court of Human Rights (ECtHR) delivered its seminal judgment in the 2010 Markin v Russia case. This judgment triggered polemical exchanges between the ECtHR and the Russian Constitutional Court (RF CC) about the nature and limits of human rights. These exchanges gave the Russian authorities additional impetus to continue developing their exceptionalist agenda. Among many other aspects, these exchanges involve the epistemic frameworks which underpin legal thinking in Russia and in the West: the difference in axiomatic postulates leads to the difference in the understanding of rights, law and statehood.
This epistemic perspective can help to understand the challenge for Russian courts and, in particular, the reaction to this 2010 judgment from the part of the RF CC and its chief justice. Reformulated in the terms of the domestic legal theory, the Markin judgment of the ECtHR, for Russian judges and politicians, meant a command to revise the sovereign will that purportedly violated human rights. The theoretical perception of rights and sovereignty in Russian law did not provide conceptual grounds for this claim, even if the provisions of the 1993 Constitution explicitly supported it.
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