Whose Legislation is Better?
Stanislav SHEVCHUK, director, European and Comparative Law Center:
“The most effective legislation exists in the post-Soviet states that neighbor the European countries, the three Baltic states which opted from the very beginning for European Union membership and brought their legislation into conformity with European laws and standards. The EU also has chosen to monitor the course of the legal reform in order to help the country concerned to harmoniously fit into the Union. One of the criteria of being prepared for EU membership is the effective law and effective efforts of the judicial power to apply this law.
“Ukraine lies between Europe and the post-Soviet space. There has been some progress, but it is not quite clear in what direction our legal system is developing. Although it was declared on the highest political level that EU membership is Ukraine’s goal in the foreseeable future, the point is not only the quantity but also in the quality of laws passed by the parliament, as well as in the effectiveness of judicial practice and the extent to which it meets European standards.
“Interestingly, almost every political force in the Baltic states, as well as in Ukraine, have favored European integration. Even the Communists object, although they, of course, also advocated the Eastern vector. Still the aspirations of many political forces remained only declarative. There is no doubt that the citizens of the Baltic states owed successful legislative reforms to the parties that were not heirs to the totalitarian regime. The ideological platform of almost the whole range of European political parties (from ultra-Right to Social Democratic) is based on the liberal tradition. In other words, these new liberal-minded parties played a leading role in this process.
“Of great importance was the fact that their elites immediately understood the necessity of a European road of development. The whole society reached a consensus immediately. Conversely, Ukraine keeps hesitating on this. In reality, while a development vector has been chosen, many things become clear. No formal rewriting of laws will help unless European standards in human rights have been understood. There is a paradox in constitutional law known, in translation from Latin, as universal law: for example, a Lithuanian judge can refer to a German Constitutional Court decision even without implementation. In other words, he borrows the spirit and extra-legislative common values. The main thing is the ability of people to perceive and put into practice these values, even irrespective of parliamentary intention.
“Most Ukrainians, while agreeing with the necessity of our European choice, are still overburdened with complexes and constraints as far as the practical effect is concerned. These constraints are caused primarily by the specifics of the ruling elite’s mentality. Our elite vacillates between the Eastern and Western vectors. What further complicates the situation is symbiosis of the oriental and occidental cultural traditions. In terms of mentality, our elite is closer to Russia; there are no radical changes in this respect, although there are no restraining factors left, since the Iron Curtain was torn down over ten years ago. Radical changes in social consciousness will only be possible if there is a quality European system of education, if judges’ professionalism is regularly examined, and if our juridical elite is fully aware that there is no alternative to the European path of development.”
Dmytro VYDRIN, director, European Institute of Integration and Development:
“What should be the main criterion in comparing the laws of post- Soviet countries is the population’s quality of life. The more effective the legislation, the higher the quality of life, which includes not only a set of material benefits, the so-called consumer basket, but also a set of certain freedoms and sociocultural rights. The Baltic states now enjoy the highest living standards in the post-Soviet space. So it is clear that the Baltic republics have the best legislation. Besides, the Baltic states chose to restore property seized, thus displaying social and political courage and achieving a breakthrough in improving the quality of life.
“Thus the Baltic states undoubtedly come in first with a great lead. Then comes Russia because, after Latvia, Lithuania and Estonia, it ensures if not the quality then decent standards of life for its citizens. More or less appropriate legislation exists in Kazakhstan because its population lives under quite normal material conditions. And Ukraine perhaps ranks fourth.
“Although liberals are not dominant in the Baltic states, they have still been the main motive force of legislative changes. The same has been true of the whole world. In their perception, freedom is not a negative and destructive factor but a positive and constructive force. In struggling for freedom by various means, including with the law, they are also struggling for the expansion of economic, social, and cultural opportunities for their compatriots.”
Natalia KUZNETSOVA, vice president, SALKOM law firm; LLD., Corresponding Member of the Ukrainian Academy of Law:
“It is quite difficult to find whose legislation is more effective because, first, there are different kinds of law, and, secondly, one must clearly state the criteria: either it is effectiveness of the law’s application, or advancement and correspondence to European standards, or adequacy to the current economic and real-life situation, etc. In general, it is possible to find whether a law is perfect on the basis of the country’s juridical potential as well as from the viewpoint of the body that has passed this law. There should be a professional and well-structured parliament with a balance of forces that adequately reflects the development level of society’s social infrastructure.
“Speaking of the juridical potential, one should always remember that the Russian Federation, as the former USSR’s nucleus, has concentrated, among other things, the available juridical potential. In particular, the Russians have more advanced clauses of their civil and entrepreneurial law. They already have a Civil Code, which they are trying out and logically correcting. Russia adopted long ago laws on mortgage, joint-stock companies, and limited-liability companies; they passed a bankruptcy law earlier than we did. All this promotes the development of social relations.
“As to the parliament, Russia has the best-structured parliament prepared for all kinds of alliances. For this reason legislative acts usually do not get stuck there, as they do in, for example, Ukraine. In Ukraine, ready-to-use Civil and Economic Codes had been shelved in Verkhovna Rada for three years before they were passed. Either the people’s deputies have more important things to do or they fail to garner sufficient votes... Too much time is spent on reaching a political compromise.
“Undoubtedly, Russian Federation citizens must be grateful to Russian professional lawyers and, naturally, democratic forces represented in the State Duma.”
