WORLD LAW/Russia

Correspondents' Reports | Government and Legislation | Courts and Judgments | Law Schools | Study Law in Russia | Other || World Law Home
覧覧覧覧覧覧覧覧覧覧覧覧覧覧
Correspondents' Reports

JURIST's Russia Correspondent is Robert Teets, Jr., Visiting Professor, Academic Legal University, Institute of State & Law, Russian Academy of Sciences, Moscow.
覧覧覧覧覧覧覧覧覧覧覧覧覧覧
[Moscow; Special to JURIST] While continuing as a part-time visiting professor at the Academic Law University of the Institute of State and Law of the Russian Academy of Sciences, your Russia Correspondent has been nominated by the American Department of State to be legal counsel for an international organization based in Moscow concerned with nonproliferation activities and non-dual use technology exchange the International Science and Technology Center (www.istc.ru).

Lithuania

As a result, I recently traveled to Vilnius, Lithuania in order to obtain a diplomatic visa (n.b. a "technical," rather than "representational" status) available to international civil servants under the Vienna Convention of 1961. Instead of the anticipated one or two-day waiting period, it took two weeks. During this unplanned and enforced interlude away from work, I was afforded an opportunity to explore the legal system of this immediate neighbor of Russia and a candidate for accession to the European Union.

My first indicator of Lithuanian antipathy toward everything Russian was epitomized by the cover of the Vilnius In Your Pocket guide which contained a photo of an old Russian-manufactured Lada, turned from an auto into a planter filled with greenery and that was punningly captioned: "A Whole Lada Information." Strolling around a bit of the Old City, the Lithuanian language, of course, got pride of place in signage, but unlike Uzbekistan where there is much bilingual signage in English, virtually everything was in Lithuanian or "nada."

Still, Russian - not English - is the common language that is spoken everywhere: by taxi drivers, shop assistants, people on the streets, and even small children at play. Intriguingly, this fact is reinforced by new business structures, rather than just vestigial social realities. Thus, when one uses a credit card in Vilnius, the transaction is cleared in the Russian language via a telephone call, not to Helsinki, Stockholm, Warsaw, Prague, or Berlin, but to Moscow. At the hotels, and like places carrying foreign print media, there were plenty of French, German, British, and American magazines and newspapers, but there is nothing in Russian, despite it's being the de facto second language here.

Among my bookish discoveries were volumes 13 and 14 of the Rulings and Decisions of the Lithuanian Constitutional Court, in (to my surprise) English translation. Seemingly the government has judged that it can contribute to its more ready acceptance in commercial and political spheres by having readily available and comprehensible official translations of the rulings and decisions of its highest tribunal. Given the relative obscurity of the Lithuanian language, e.g. as the modern language closest to ancient Sanskrit, this seems most sensible, but not something most governments would undertake.

A visit with most courteous staff at the Court readily yielded copies of eleven of the other volumes (i.e. the first volume being unfortunately out-of-print). Their web site is at http://www.lrkt.lt.

I am prompted to offer a brief digression on the matter of comparative accessibility. That is, neither the American Supreme Court nor the Russian Supreme or Constitutional Courts are as open to the public as was this Lithuanian Constitutional Court. I spoke (in Russian) with a guard only to get directions and was not asked to provide identification or a statement of what my business was. Of course, the modest scale of this country its population and institutions contributes to greater informality. Still the absence of a state of high security is something that is conspicuous in our day and that is, I believe, something to be admired.

The Lithuanian Constitutional Court web site also includes English translations of both the 1992 Constitution of Lithuania and the Statute on the Lithuanian Constitutional Court. As in other civil law jurisdictions, a considerable portion of the Constitutional Court's work consists in reviewing, in an advisory context, the constitutionality of new statutory and other normative enactments.

Uzbekistan

Three years ago, under the auspices of the Asian Development Bank, I was part of an expert team evaluating, drafting legislation, as well as providing training to the environmental management institutions of that Republic. Cumulatively, we spent nearly a year based in the capital, Tashkent, as well as visiting industrial and nature reserve sites in this exotic Central Asian country.

Uzbekistan is at variance with all of the former Soviet Union and Europe in that it is not suffering from negative population growth but rather the extreme opposite, i.e. a birthrate that is expected to double its population early in this new century. Thus while it has relatively little of the wealth of natural resources that make Russia a world power, it has a notable bounty of human capital that will make it a key player in the future of Central Asia, if not even more broadly. On an anecdotal level I can report that the language of commerce and within the government is Russian with Uzbek and Tajik in a frequent muddle for second and third place, followed by English in fourth. And that English was markedly more pervasive than what I found three years later in Lithuania, street signage as well as English speakers on the street.

All legislating is done in both the Russian and Uzbek languages but with a phase-out for the former planned before the middle of this first decade of the 21st century. This seems a rather improbable deadline as my professional experience from extensive legislative drafting tasks included, consistent frustration with the Uzbek language's lack of vocabulary -- not just nouns but also verbs and adjectives -- critical to the ability to express the most basic repertoire of environmental management and control concepts and principles. Still, the region's policy-makers do not lack for commendable law-making ambition. For example, in seeking to advance the legal integration of Central Asia with the Europe, the five environmental ministers of Uzbekistan, Tajikistan, Turkmenistan, Kyrgyzstan, and Kazakhstan signed a formal protocol in April 1998 to embark upon the course of approximating the environmental standards and legal regime of "Environment Europe" of the European Union under it's Fifth Action Programme.

It should be understood that this vocabulary gap does not occur because Uzbek is a new language. This member of the Turkic language group evolved into being at least as far back as the 11th century. Early on, it was known as Chagatai, derivative of the name of the second son of the famous 12th century Mogul Genghis Khan or "master of all the people with felt tents," Temujin. The father conquered Uzbekistan plus more and bequeathed the former Qxania to that son. Contemporaneous in time with our English Chaucer, the master poet Alisher Navoi took Chagatai to comparable literary heights (e.g. in the "Khamsa quintet") of expressiveness and beauty.

Further corroboration of this contemporary semantic conundrum has been subsequently noted by Professor William Butler in his translation of the documents comprising the Constitutional Foundations of the CIS Countries (1999, Simmonds & Hill/Kluwer). In this fascinating compendium of nascent constitutionalizing, Butler confirms that an "apparently insurmountable obstacle" exists because of the "more sophisticated vocabulary of law in the Russian language as compared with the local language." He cites as a specific example the absence of cognates to the Russian (and English) language distinctions drawn between "exile" and "banishment." Finally he points out the irony that three of these nation-defining constitutions (i.e. of Azerbaidzhan, Armenia, and Georgia) exist only in unofficial Russian language versions.

Russia

Just recently a third English language translation of the first two parts of the Russian Civil Code became available in Moscow bookstores. The completed Russian Civil Code will be a combined civil and commercial code whose cumulative topical breadth is unique in the civil law world. It is envisioned to encompass a total of 7 sections with 74 chapters of which 4 sections (i.e. general provisions, ownership and property rights, general legal obligations, and individual legal obligations) and 60 chapters have been enacted and are in force. Yet pending before the State Duma are sections 5-7 on intellectual property (chapters 61-67), on succession (chapters 68-72), and on private international law (chapters 73-74), respectively.

There are now available three competing readings, i.e. those of:

  • Professor Peter Maggs of the University of Illinois College of the Law The Civil Code of the Russian Federation (published in 1997 by the International Centre for Financial and Economic Development for the Private Law Center attached to the Office of the Russian President/M.E. Sharpe),

  • Professor William Butler of the University of London (2nd edition published in 1999 under the title Russian Civil Legislation by Simmonds & Hill/Kluwer), and

  • Visiting Professor Christopher Osakwe of the Law Faculty of Moscow State University Russian Civil Code (published in 2000 by Norma for Moscow State University).
This wealth of scholarly attention certainly facilitates access for those interested in this so-called "economic constitution" of modern Russia, but it also highlights some of the, probably inevitable, semantic "rough edges" when one ventures to simultaneously bridge differing legal systems as well as languages.

Not the least of these ambiguities is that represented by the variant terms that are used to describe the hierarchy of the Civil Code's provisions viz. Maggs speaks of divisions, subdivisions, chapters, and articles; whereas Butler chooses section, subsection, chapter, and articles; while Osakwe opts for Maggs' approach, although confusingly referring to divisions as sections in the body of his 213-page commentary. Even more fundamental puzzles quickly follow.

Following that criticism, I should hasten to compliment Osakwe's inclusion of a 6-page note about translation style as well as the frequent explanation given in his commentary of Russian civil law terminology that does not have a direct English common law counterpart. Butler makes up substantially for his omission of such a crucial crutch for the English-speaking common law lawyer in his 676-paged Russian Civil Legislation with the fact of his, separately available, pocket-sized, 294-paged Russian-English Legal Dictionary (1995, Zertsalo/Simmonds & Hill). I own two well-thumbed copies one of which I always keep close at hand. On this point, Maggs simply leaves the reader to his own devices. But, to his unique merit, he is the only one to give the reader the benefit of an index!

Osakwe indulges the English common law speaker with numerous usages e.g. "right in rem," rather than Maggs' and Butler's more literal "right in thing," for "veschnoe pravo" (Article 48) or "accord and satisfaction," rather than "release money" (Butler) or "cancellation compensation" (Maggs) for "otstupnoe" (Article 409). Still when intelligibility is the object, such non-literalism is useful, if not necessary. Some of Osakwe's choices are more controversial viz. whether "zalog" is better translated as "mortgage" (Article 334) or "pledge" as Maggs and Butler (plus Professor Simons from the Leiden Institute of East European Law) agree upon.

Beyond cavil, in favor of the Osakwe tome is his comparative legal commentary, which is really more in the way of a summary of the Russian law of contracts, torts, secured transactions, and enterprise organization. An informed reader may reasonably inquire how and why real property relations are omitted from this summary. It is true that Chapter 17 (Articles 260-287) addresses the rights of ownership in land. However, the parallel Duma enactment delineating the "entry into force" of Part I of the Civil Code provided (Article 13) that Chapter 17 would "enter into force from the day of the entry into force of the [new] Land Code of the RF." That critical condition precedent remains yet unfulfilled.

Of course, for the responsible and diligent legal practitioner, the answer to the complicated task of reading and understanding the Russian Civil Code is straight-forward and no different whether one is a civilian, common, or hybrid law-trained attorney. You should

  1. get copies of all three of these English language translations,
  2. compare them carefully with the Russian original n.b. preferably with one or more of the four, currently available annotated editions (viz. by M.I. Braginski [2nd edition, 1999], A.N. Guev [3rd edition, 1999], D.V. Murzin [1998 and 1999], and O.N. Sadikov [3rd edition, 1999]), and
  3. use your own informed as well as independent judgment.
Personal Gleanings

A clear polarization of legal languages is in evidence in the foregoing

  • Lithuania eschews not only Russian but its immediate European and civilian neighbors and their rich French and German (among other languages) in favor of common law English.
  • Uzbekistan is not far behind in its spurning of Russian, although English is not a denominated linguistic peer in the legal context.
  • On the other hand, Russian is the clear legal lingua franca for most of the Commonwealth of Independent States (CIS); not only as the much richer vocabulary, but also the as the linguistic fount of an accumulated body of civilian legal treatises and sources. The Council of Europe has recognized this reality and subsidized the preparation of Russian language model Civil and Environmental Codes for the countries of the CIS.

In addition to the trio of English translations of the Russian Civil Code, supra, there are to the best of my knowledge no translations of it into any other languages. Other harbingers of an emerging bipolar (viz. English-Russian) body of world legal literature include things such as New York University, School of Law's web site for the bilingual (i.e. English and Russian) East European Constitutional Review at (www.law.nyu.edu/eecr).

Robert Teets, Jr.
JURIST Russia Correspondent

Visiting Professor
Academic Legal University
Institute of State & Law
Russian Academy of Sciences
Moscow, RUSSIA

May 10, 2001

覧覧覧覧覧覧覧覧覧覧覧
Discussion

  • responses to be posted...
JURIST and our correspondents welcome your reactions to their reports...
Your Comments:

Your Name:
Organization:
E-Mail Address:
State/Country: