The mechanism of innovative law reform

Definitions of concepts: “legal reform”, “incomplete reform”, “counter-reform”

Legal reform is a complex of radical changes in the legal system, carried out in order to give it a civilized character and form the rule of law. The need for legal reform in our country is associated with a number of factors: – the legal system is a static, “frozen” formation, it is difficult and only slightly amenable to evolutionary change; therefore, purposeful, concentrated efforts are needed to adapt it to changing conditions; – the domestic legal system bears the imprint of the former regime, which is completely opposite to the ideas of a rule of law state, therefore the transition to a new regime in our conditions is associated with truly radical changes that can only be achieved through purposeful, thoughtful, planned and long-term activity.

Incomplete reform is the recognition of the goal of reforming the legal system as unattainable in general or at a particular point in time.

A counter-reform is a reform directed against an earlier adopted one, and if not against the reform itself, then against the consequences of its adoption.

Typology of legal reforms

The typology of legal systems is its specific classification, carried out on certain grounds.

The first possible classification is legal reforms aimed at ensuring transformations in other spheres of life – political, economic, social, etc., and reforms designed to change the legal reality itself.

The second classification of legal reforms is completed and incomplete reforms. Almost no reform can be a one-time action. It presupposes gradualness, stage-by-stage, complex transformations.

The third possible classification is based on the goal of legal reform. Today, two global goals can be distinguished. The first goal is to improve the life of society as a whole and of each of its members. Qualitative improvement of life is a rather vague category. This is due to the fact that, firstly, society may not be clearly aware of its needs in the legal sphere, have rough ideas about them, especially since the history of Russian law has a huge number of examples when society did not accept a certain legal norm and found different, even the most original ways of overcoming it are not just non-fulfilment. For example, the impossibility for family members to have several apartments or residential buildings in Soviet times led to fictitious divorces, etc. Secondly, a qualitative improvement in life may not be associated with an increase in material well-being, but be expressed in a greater degree of security, preventive measures of the state to prevent the commission of crimes, increase the level of legal awareness, and develop law enforcement practice.

The fourth classification of legal reforms is according to the source of the reform.

Four options can be distinguished here: reforms based on the positive domestic experience of the past, on legal traditions; reforms that are an experiment in creating innovative legal norms and institutions that have no analogues; reforms, as a result of which the reception of the principles and norms of foreign, usually European, law is carried out; reforms to bring elements of the country’s legal system in line with international legal standards.

Give examples of legal reforms at various stages of Russian history

“Ancient Pravda” The Old Russian legal code of predominantly criminal and procedural norms, the earliest part of Russian Truth. According to the Novgorod first chronicle of the younger edition, in 1016 it was issued to the Novgorodians by Prince Yaroslav the Wise. Subsequently, it became part of the Brief Edition of Russian Pravda and represents its first part, the first 18 articles.

Sudebnik Ivan 3

Grand Duke Ivan the Third in 1497 approved a single collection of laws for all of Russia. It went down in history as the Sudebnik of Ivan 3. The new code was introduced with the aim of legally unifying the state. The document set out the norms of criminal and civil law, formulated the types of crimes and the system of punishments. The code of law of 1497 clearly defined the relationship between feudal lords and farmers, including the right of peasants to transfer to other landlords on St. George’s Day.

The Cathedral Code is the first code of laws of the Russian state in Russian history, adopted on January 29, 1649 at the Zemsky Sobor, held in 1648-1649.

The Constitution of Russia in 1918-1925, the first Russian constitution. Adopted by the V All-Russian Congress of Soviets on July 10, 1918. The Russian Soviet Republic became known as the Russian Socialist Federative Soviet Republic.

Constitution of the Russian Federation – 1993 The highest normative legal act of the Russian Federation. Adopted by the people of Russia on December 12, 1993, entered into force on December 25, 1993. The Constitution has the highest legal force, fixing the foundations of the constitutional system of Russia, the state structure, the formation of representative, executive, judicial authorities and the system of local self-government, the rights and freedoms of man and citizen, as well as constitutional amendments and revision of the Constitution.

The mechanism of innovative law reform

The innovative content of the legal reform is transformations that aim to update the legal system of the structural elements included in it.

Innovative law reform is always a certain amount of “stress” for the legal system. This is the imbalance of legislation, the emergence of legal gaps. This is the “deviation” of legal practice, legal application, the deformation of legal consciousness, followed by legal nihilism. Therefore, the reform involves a gradual and step-by-step process, taking into account careful planning, and in the future – tracking the results achieved, the necessary adjustment of the tasks for the introduction and legal consolidation of methods and methods for achieving goals.

It must be assumed that the methodological and legal innovation direction, which includes new principles, new methods of studying and knowing law, new methods and forms of discussion and adoption of normative legal acts, becomes the most relevant during the preparation of the law reform, the development and generalization of legal innovative ideas. The higher the level, the more complex the mechanism of innovations introduced into law, the more carefully and, accordingly, the longer, using the resources of scientific support, the development of an innovative idea of legal reform takes place.

Subjects who decide to reform the law should assume various scenarios for the development of the reformed elements of law: progressive, regressive, stagnation.

In the first case, further updating of the law will require the support of certain elements of the legal system, incl. through the reception or creation of endogenous components of law. In the event of regression or stagnation of law, counter-reforms of law are possible.

Law reform can be expressed in innovations in a “pure” form, as well as in a combined form, where the elements being reformed are supplemented by receivable elements along with elements created within the legal system.

For law, the legal system of the state, a reform that is innovative in nature includes its scope of changes, timing, start and end periods for the introduction of new elements. It must be assumed, for example, that the volume and nature of legal innovations in the course of law reform in countries such as Afghanistan, Cuba and Russia are of a different nature.

Be First to Comment

Leave a Reply

Your email address will not be published.