Protection of law as a phenomenon: what will help the law and what lawyers can do
Published March 25, 2022
Some time ago, with the participation of a number of Belarusian lawyers, an online discussion was held on the topic of what happened to the law in Belarus, what can help the law and what role lawyers play in restoring the importance of law. We asked the panelists to share key takeaways from the discussion. We believe that it will be useful for lawyers to get acquainted with the view of law when it is perceived as a certain concept, an instrument of social life, and not as a set of written norms and texts. And how can such a concept be protected, return its role and meaning, and what lawyers can do to make law become law.
What happened to the law?
1. Law has lost its original meaning and purpose.

First of all, law has ceased to be perceived as part of the system of managing society, as something that can limit power and as something that can balance the interests of an individual and society, society and government. In general, law cannot be understood separately from the processes of managing society. Law should be an instrument that enables society to live and defend its interests in such a form of life as a state. A state has authorities vested with powers, the state has resources, an apparatus, and law in a normal society plays the role of protecting human interests and balancing the interests of members of society among themselves in controversial situations and controversial relationships. In Belarus, law has never played this role. There was some "freedom" in civil and economic disputes, but this was precisely because the other party was not the state. Where the state appeared, law did not work. And this is not a technical problem of "state interest" misunderstood by judges or other law enforcers. This is a deliberate process to dilute the law.

The negative situation with the law has been developing for a long time; the 2020 elections simply became a point of concentration of dysfunction of the law. After all, the law does not suddenly stop working: to do this, the authorities first abort the functioning of one thing, then another, then another, and then a situation simply arises when they say "sometimes there is no time for laws" and this is not perceived by law enforcers as something unusual.

2. State interest is nonsense.

The reason for this emasculation of law, the replacement of its role from the role of "agreeing with society on how to live" to the role of "managing society" is the emergence of independent interests in the state apparatus that are not the interests of society. The goal of specific elites is to prevent interference in their power, and law in normal legal orders is a tool for limiting the power. Law in Belarus began to play a different role - to prevent anyone from interfering in the activities of the government, to exclude law from the instruments of self-regulation of society, and to turn it into a tool with the help of which the government will solve its problems, "manage" society according to its own patterns.

This is easily demonstrated by the following pattern: as soon as interference in government affairs appears, a problem with law and law enforcement immediately arises. But law is a double-edged instrument. Law is law only when it works in all directions, is predictable, and is mandatory for everyone. When law can be used by everyone for protection, then the logic and role of law can be strengthened. What happened in Belarus - the management system was aimed at destroying the system of checks and balances - the independence of the courts, the prosecutor's office, the bar - everything was consistently destroyed. All instruments that could restrain power were destroyed.

3. Law is not written to the strong.

The law also fell under this skating rink of eliminating any threats to state power and state bodies. Gradually, the ability to apply the law against the strong party, which is the state, was limited. More than one generation of managers has been formed who think "we are the state, we express the interests of the people and everything that we consider necessary is correct." For example, laws are often adopted not in advance, but in order to legitimize the practice. That is, the practice is first created by government agencies, which always consider themselves to be right, without regard to existing restrictions, and then such a trifle as to be approved in law is brought up (for example, changing the administrative process in terms of legending witnesses, using balaclavas without changing the law). Practice sets the tone, even beyond immediate limitations. In the management system, the discretion of government officials is unlimited; there are no rules there. Law is used after the fact to further formalize a model of one's actions in relation to the governed that is convenient for oneself. And thus we got that expediency is higher than law, that sometimes going against the laws does not hurt the eyes, everyone agrees with this. Law in Belarus today is an instrument of statism; everything that is done, supposedly for the sake of the state, is correct and useful.

As an example, we can recall how the institutions that in other countries are called upon to monitor the rule of law, legality - the bar, the prosecutor's office, the court - worked at the moment when law enforcement agencies, in violation of the law, began to legend witnesses in administrative trials. None of the institutions even had to be "broken" - all institutions at the level of management and decision makers fully agreed that the framework of law does not apply to certain government bodies, in certain situations when government bodies really need it.
Some time ago, the famous Russian political scientist and lawyer Vladimir Pastukhov, who is in forced emigration, wrote a humorous version of the Russian Constitution - the "Conceptual Constitution", built approximately on the principles described in this part of the article. For example, Article 1 states: "The strong can do anything. All power in Russia belongs to the strong, the power of the strong cannot be limited by anything other than force." And Article 2 says this: "The law exists for the weak. The weak are obliged to follow the laws written by the strong. The strong are not obliged to carry out the laws they write for the weak." You can read about this Constitution in full by following this link.
4. Law is a useless tool for everyone

In fact, no one needs the law now. The state does not need it, because there is a repressive apparatus and the implied opportunity for state representatives to act at their own discretion, despite the written law. Citizens do not need the right, because citizens see that the law does not work. In such conditions, society cannot grow to other attitudes towards law - society receives a preventive vaccination every day from the awareness that law can work differently.

Even at the time of the inclusion of declarative statements in regulations, the Constitution of human rights, almost all norms on limiting the rights of the state and government bodies were of a ritual nature, because it was completely inconvenient not to prescribe this. The ritual character of general legal principles and rights was eliminated as soon as an extreme situation arose. But there were no structures and institutions that were supposed to protect this - they are all subordinate to the executive branch. Much like what is happening now with the amendments to the Constitution regarding the prevention of aggression from the territory of Belarus - no one seriously considers this norm to be non-ritual, none of those whom this norm should restrict even remotely believes that any right can restrict them, this wasn't written for them.

The lawyer can only cynically use what is written and what is still somehow being implemented, and work in those areas where there is no conflict with the interests of the state.

5. Disadvantages of legal culture.

The entire legal culture - recognizing law as authority, as an instrument of influence - has been absent in Belarusian society for many years. It did not exist neither in the USSR, nor before it, nor after it, except for with a small window in 91-94. One of the problems of legal culture today is the emergence of people who can break the law, while others take it for granted. These people do not view the law as something to which they must obey; they are guarding the interests of the state. In this regard, we can recall that Zhukovsky also wrote: "The problem with Russia is that every leader is trying to be like the emperor, that is, outside the law." The same Zhukovsky wrote to the emperor: "You must obey the laws, otherwise every petty official will imitate you and try to be outside the law" (the quote is not given verbatim, solely to convey the meaning).
What can bring law back to its true meaning and role
1. It is not enough to overcome the symptoms, it is necessary to eradicate the cause.

Of course, to achieve lasting results, it is necessary to fight the cause, not the symptoms. A big role in changing the role of law belongs to political elites - how they see themselves, how they see themselves being regulated by law. Political will must be clearly formulated - everyone, including the authorities, state bodies, must live according to the law, a legitimate law adopted by legitimate representative bodies within the framework of a legitimate procedure for seeking public consensus and achieving public, and not usurped, justice. Also, there cannot be law without separation of powers. These are the two minimum conditions for society to live according to the law.

Why is it important to talk about separation of powers? This is a political orientation towards changing the role of individuals in the life of society to the role of institutions. In the USA, with Trump, a picture was demonstrated - it is not the individual that is important, it is the institutions that are important. Trump came and didn't stay. The system is a system because it does not depend on personalities. The system does not prevent a dictator from coming to power; the system makes it impossible for a dictator to stay in power. The court in the system of separation of powers does not play the role of a formalizer of the will of the political elite, but produces law and meaning.

2. Law is a tool for finding a balance between many equal players.

Law needs to return meaning, society needs to return the need for law, and the need for law will be when there are many players who will need to somehow regulate relations among themselves. These are players such as groups and institutions in society, business, and institutions in the state. When there is one center for making all decisions in the country, law degrades into a system of orders "how the authorities should do it." Institutions must be created, they must be regulated and created, they must work transparently.

If we talk directly about the characteristics of law, then "correct" law is always characterized by transparency and debate in the development of decisions. Another element of law is argumentation. It should be noted that these are not the habits of rich, "white" countries, in which, supposedly, a judge can afford to take a year to write a decision, this is a standard requirement and an important part of the rule of law.

In normal legal systems, you read the decision and understand it; you may not agree, but you understand. In our country, degradation has reached one of the local maximums - there is no need for argumentation at all, decisions are written with a minimum of argumentation, including legal, that is, explaining what exactly the situation is happening, what interests are colliding, what exactly should be taken into account when making a decision. Argumentation is vital for the verifiability of a judicial decision. A verifiable decision occurs when everyone can fully follow the logic and thought process of the judge in making the decision.

There must also be a culture of discussing regulations - why are we adopting a regulation, what problem are we going to solve. This should all be transparent. It is logical that the justifications with which 100% of Belarusian regulations are adopted, namely "with the aim of improving legal regulation," do not give any idea of the goals of regulation. And without knowing the purpose of regulation, without understanding what place the normative act occupies in the overall system of achieving justice, without understanding what problem was planned to be solved by legal regulation, the court was divorced from reality and accepted completely other trajectory.

3. Law needs trust.

Law is a creation of human minds, there is no law outside of human society, and the only thing that makes it work is the trust of the members of society. Separation of branches of power is one of the tools for restoring trust. Transparency in law enforcement is the second tool. Correct law enforcement should be a priority, because everyone was convinced that there was law in Belarus, but it did not function. The laws were written, but there was no law. Trust in the law develops, among other things, through demonstrating that it works, that it is transparent, that there are no hidden games, that there are no subjects to whom the law does not apply. Among other things, legal education is extremely necessary, from an early age - what democracy is, how it works, for example, school elections - this is already an element of such education. This is not about primitive broadcasting "know your consumer rights," but about the social order, regulation of the relationship between society and government bodies, the legality of laws and the legality of the instruments for making laws. Trust and understanding must be formed from childhood.

4. Law is reborn from the head.

The model of behavior, the model of attitude towards the law very much depends on the attitude of the country's leadership. The importance of the attitude of the country's political leadership to the law may be lower in societies with strong traditions, but this is not about us. Our people are accustomed to reflecting the leader. We do not have a single tradition, not a single law that is at least 100 years old. Therefore, the attitude towards law is transmitted from above. If this authority respect the right, then others will respect it too. We have a stereotype that the higher the position, the less responsibility people have before the law. Exemplary floggings of officials or corruption squabbles have nothing to do with the law or legal mechanisms: no one in Belarus would even think that any of this happened because the law or legal mechanisms worked. And in a rule-of-law state, any official consolidates the interests of a group of people, and due to the trust that is given to him, he must be impeccable, must comply with the laws, and not vice versa - consider himself not bound by them.

5. Most likely, we should talk about the complete deconstruction of the existing system with the replacement of the personnel of all bodies related to law.

The view of law as something that limits and regulates "ordinary" people and businesses, but is in no way a tool for limiting power, apparently is a deep part of the worldview of law enforcement agencies. This worldview has been formed for a very long time, and, most likely, can no longer be changed - anyone is ready to take the lead and carry out what was ordered from above. Even if there is democracy, a change in regime, nothing will change in our heads. Law enforcers already live with the idea of "not caring about the laws," and this is fundamentally not about the law, it is about the implementation of the laws, but not about the rule of law. In the modern legal system, apparently, there is nothing and no one to repair; it is easier to rebuild. But it will be difficult. It is useful to study the history of other countries. For example, school reform in Ukraine. The reform is underway, but the people are old - there are many times more teachers needed than the same police officers or judges. And in the Ukrainian school, the same Soviet directors, the same teachers work, but they broadcast new things, but they broadcast it as if by rote, and in their heads there is a different understanding of school. It is clear that this is required of them from above, the first generation of teachers after the transformation will be like this, but in the end a director will come who does not know how to do it differently. Therefore, the will from above is important. Those who do not fit into the framework of requirements, who are not ready to work in a new way, simply leave the profession without even any forced processes - the requirements have simply become different, and many performers "not up to the law" will not comply with them.
How lawyers can help the law.
There are very few ready-made solutions, and lawyers have even fewer opportunities. Lawyers are the lifeblood of the legal system; it is through lawyers that law works. And it is precisely the destruction of the system of training lawyers to work in a rule-of-law state that makes it possible to form a legal community of implementers of the most delusional and most illegal laws. Unfortunately this is the reality.

It should be noted that the ethics of any profession, including lawyers, refers to the legal profession itself as one of the protected contours, as one of the objects that every lawyer must protect. That is, every lawyer must act in the interests of the legal profession and the tools of a lawyer's work - law. The role of lawyers in defending the legal system is to work as if the law is fair and the law is legal. A lawyer must have a good understanding of the legal system, the actual hierarchy of law, international standards and obligations. It is necessary not to play the wrong law; it is necessary, along with the standard work on evidence, justification and other things that need to be done in the process, to also declare a violation of rights, about the International Covenant on Civil and Political Rights, about the Constitution. Legal culture can be observed even in the case of non-legal laws - there are higher laws, there is a Constitution, there are international acts.

Lawyers also serve as role models for behavior in relation to the law. And if lawyers are not instilled with respect for the law, if the law is not perceived as an instrument for protecting the weak, then a blood transfusion is necessary. In general, the strength of the judicial system determines the strength of society. Strong societies have strong judicial systems and vice versa.

It is very important for lawyers themselves to know and understand why lawyers are needed, and how important it is for them to behave correctly. Lawyers must understand that they are palladins of the law - they have dedicated their lives to the law. If a lawyer preaches "the law is like a web - the weak will get stuck, the strong will break through," if everyone sees that the one who devoted himself to the law behaves without respect for the law, then this will be adopted by everyone.

Lawyers (not judges or prosecutors, and certainly not investigators), with their actions, their powers, petitions, speeches, cannot, of course, ensure the rule of law, the separation of powers - those tools that can return law to its role and functionality, but lawyers already now can educate, change consciousness, and demonstrate civic activity. Now people are being convinced that everything that is happening is normal. Therefore, it is very important for lawyers to be those boys in the fairy tale about the naked king - it is important not to remain silent, to explain to others and clients how the law works, what is wrong with the law now, why the laws being adopted have nothing to do with the law.

Lawyers must have a developed conscience. Highest step of conscience is honor. Honor is a formalized model of behavior. Therefore, judges in rule-of-law states look at cases from the point of view of honor - whether order and justice have been violated or not, and how they should be restored from a moral position. For a lawyer, the dialogue "The Queen can't do that - Why? - Because she can't" should be a model of behavior when the absence of a written law, but does not indicate the absence of rules and morality. It is very important for a lawyer, even when forced to play by wrong, illegal rules and laws, to understand that this is wrong and to understand how to do it correctly. The worst thing is when a lawyer starts talking with the words "Everything is fine, this is how it should be." Apparently, it would be right for lawyers not only to do their job honestly, but also to defend a situation where there is injustice.
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