A look behind the law on the books

30 September 2011
Wednesday 28th September proved a busy day of FLJS activity with a morning workshop on the emerging legal culture in Russia following Communist reforms, and a seminar by Professor Denis Galligan later that day, in which he sought to deconstruct the notion that representative democracy is encapsulated in the constitutions of modern liberal democracies.

The workshops, held at Wolfson College, both demonstrated the partial nature of any purely literal analysis of the written law, and that an appreciation of socio-cultural factors and a more detailed consideration of the implications of the law on the books offers a more rewarding and accurate picture of the law in practice.
Dr Marina Kurkchiyan led a roundtable comprising academic experts and representatives from the Foreign and Commonwealth Office, in assessing to what extent post-Communist reforms in Russia have transformed legal practices and people's expectations of the law. Dr Kurkchiyan argued that significant strides had been made in recent years in areas such as the independence of the judiciary, but that traditional cultural practices such as exchanges of loyalty and favours still pervade the justice system. Moreover, corruption is evident in 25% of cases, and the risk remains that greater judicial discretion will merely provide an avenue for corruption by the back door.

Consequently, justice and the law remain very separate concepts in Russia, and will remain so as long as the law is used as an instrument for the implementation of predominantly political goals.

How Do Constitutions Present the People? In the afternoon, Professor Denis Galligan's careful analysis of the history of constitutional thought and the substance of contemporary constitutions laid out an intriguing alternative interpretation to the prevailing constitutional discourse that contemporary constitutions express the apogee of liberal democractic thought.

He argued that, rather than proving the embodiment of free, self-governing citizens, constitutions implicity ratify the surrender of popular sovereignty to representatives for whom the People have no effective recourse to accountability. Despite the ultimate sanction of elections and the emergence of referenda to provide a form of direct democracy, the People are in fact, only palely represented in modern constitutions, and it is this reading that will provide the more fruitful avenue for constitutional theory.

The full argument, along with a series of comparative case studies featuring constitutions from around the world, will be published in a forthcoming book, expected to be published in 2012.