The Concept of Rule of Law (Верховенство Права) in Russia

The concept of rule of law in Russia is expressed by two distinct Russian phrases: верховенство права (supremacy of law) and верховенство закона (supremacy of legislation). The distinction between these terms reflects a central tension in Russian legal thinking about the nature and limits of legal authority. Understanding this tension is essential for comprehending Russian constitutional development and the ongoing debate about the role of law in Russian society.

Terminology and Conceptual Distinctions

Верховенство права corresponds to the Western rule of law, emphasizing that law constrains state power and protects individual rights. This substantive conception requires that law meets certain qualitative standards, including clarity, stability, non-retroactivity, and respect for fundamental rights. Верховенство закона denotes the formal supremacy of enacted legislation, regardless of its content, reflecting a positivist approach in which the state’s commands are supreme simply because they are enacted through proper procedures.

The 1993 Constitution uses верховенство закона in Article 4 (supremacy of the Constitution and federal laws) but Article 1 declares Russia a правовое государство (law-based state). This terminological choice reflects the tension between formal legality and substantive rule of law. The Constitution’s drafters deliberately avoided the term верховенство права in favor of the more ambiguous правовое государство, leaving the precise content of the rule of law to be determined through constitutional interpretation and practice.

Constitutional Foundation

Article 1 of the 1993 Constitution declares the Russian Federation a democratic federal rule-of-law state (правовое государство). Article 15 establishes the supremacy of the Constitution and federal laws. Article 15(4) incorporates international law principles into the legal system. The Constitutional Court has developed these provisions into a body of rule-of-law jurisprudence, elaborating principles of legal certainty, proportionality, protection of legitimate expectations, and non-retroactivity.

The concept of правовое государство draws on the German rechtsstaat tradition. It requires that state power be exercised through law, that fundamental rights be protected, that there be separation of powers, and that independent courts review the legality of state action. The Constitutional Court has interpreted these requirements to require legislation to be clear, predictable, and stable; to prohibit arbitrary state action; and to require proportionality between restrictions on rights and their legitimate aims.

The Правовое Государство Doctrine

The concept of правовое государство (law-based state) draws on German rechtsstaat tradition, mediated through Russian legal scholarship of the late imperial and post-Soviet periods. The doctrine requires that state power be exercised through law, that fundamental rights be protected, that there be separation of powers, and that independent courts review the legality of state action. The правовое государство concept is procedural rather than substantive: it emphasizes the formal requirements of legality rather than requiring any particular content of law.

Russian legal scholars have developed the правовое государство concept in various directions. Some emphasize the formal requirements of legality, focusing on the supremacy of the constitution and the rule of enacted law. Others incorporate substantive requirements, arguing that правовое государство requires respect for human rights and democratic governance. The Constitutional Court’s jurisprudence has leaned toward the formal conception, emphasizing legal certainty and procedural regularity rather than substantive limits on state power.

Challenges to Implementation

The implementation of rule of law faces several challenges. The dualistic legal culture combines respect for formal legality with instrumental attitudes toward law inherited from the Soviet period. Law is respected as a formal framework but is also viewed as a tool that can be manipulated for political or economic advantage. Selective enforcement of laws serves political and economic interests, undermining legal certainty and equality before the law. Judicial independence is formally guaranteed but practically constrained.

The gap between formal law and legal practice is a persistent feature of Russian legal culture. Legislation is often detailed and prescriptive, but implementation is uneven. Courts apply law formally but may be subject to informal influences. The legal profession is divided between those who adhere to professional standards and those who accommodate extra-legal pressures. These challenges reflect the incomplete nature of the post-Soviet legal transition and the persistence of Soviet legal culture.

Judicial Interpretation

The Constitutional Court has developed rule-of-law principles including legal certainty, proportionality, and protection of legitimate expectations. In its 2004 decisions on compensation for expropriation, the Court articulated requirements for just compensation and due process. The Court has also emphasized the principle of non-retroactivity of laws and the requirement that legislation be clear and unambiguous.

The Court’s rule-of-law jurisprudence has been influential in Russian legal development. The requirement of legal certainty has been applied to limit retroactive legislation and to require stable legal regulation. The proportionality principle has been applied to review restrictions on economic rights and property. The protection of legitimate expectations has limited the state’s ability to change legal rules to the detriment of citizens who relied on existing law.

International Standards

Russia’s membership in the Council of Europe (1996-2022) and the European Convention on Human Rights exposed Russian courts to European rule-of-law standards. The European Court of Human Rights issued numerous judgments against Russia for rule-of-law violations, including violations of fair trial rights, property rights, and freedom of expression. The 2020 constitutional amendments asserted constitutional supremacy over international court decisions, limiting the domestic effect of ECtHR judgments.

Contemporary Debate

The rule of law in Russia remains contested. Legal scholars debate whether Russia has achieved a meaningful rule of law or whether formal legal institutions mask informal power structures. The tension between верховенство права and верховенство закона continues to shape Russian constitutional development. The 2020 amendments, while formally respecting legal procedures, raised fundamental questions about the substantive commitments of Russian constitutional law to the rule of law.