In December 2008, the world marked the 60th anniversary of the adoption of the Universal Declaration of Human Rights. In this universal international act, the signatories coordinated, systematized and proclaimed the basic rights and freedoms to which every resident of our planet should be entitled.

At the jubilee plenary session of the UN General Assembly, devoted to the 60th anniversary of the document, UN Secretary General Ban Ki-moon called this document – drawn in the period of terrible devastation and deprivations after World War II and Holocaust – a reflection of humanity’s striving for prosperity, respect for everybody’s dignity and peaceful coexistence.

“We’ve come a long way since the adoption of the Declaration. But we must also acknowledge that we have not yet lived up to its vision,” Ban Ki-moon noted. He drew attention to gross violations of human rights the world over, acute food shortages and the global financial crisis which have a very adverse impact on people’s opportunities to implement their rights, including the right to development.

CRISIS-RELATED THREATS

Many experts have good reasons to claim that the world financial and economic crisis will bring new challenges and threats. They predict a rapid increase in flows of illegal migrants from African states to Europe. The crisis threatens to terminate humanitarian programs of food and medical assistance to starving people and victims of regional conflicts. The growth of illegal migration is always accompanied by an expansion of human trafficking, which can assume the most inhuman forms during recession.

Also, the crisis is expected to aggravate all territorial, ethnic and religious conflicts in regions that experience acute food and water shortages.

An increase in the crime rate is inevitable in EU countries, the Commonwealth of Independent States and the U.S. Obviously, some people, who became accustomed to a certain level of comfort during the period of economic upturn, will attempt to keep it by deriving the necessary material and financial resources illegally.

The emerging problems are international. They require the development and launching of new “critical technologies” in politics, economics and law. It is for this reason that Russia proposes amending the global financial architecture, revising the role of existing international institutions, and creating new ones. This should include adequate legal regulation, based on a harmonized system of international and national standards of activity by the participants in financial markets.

The rearrangement of the financial architecture will require fundamentally new legal solutions, many of which might be unpopular with the public. Many habitual legal and economic categories will make us look at them from the position of the protection of human rights.

Economists believe that the world crisis is, above all, a result of the violation of economic laws. But it also shows a distortion of the principles of law in the legislation that regulates the economy and in law enforcement practices in the financial and economic spheres. In the first place, this concerns the inadequate realization of formal equality (or legal justice) and the ensuing legal equivalent – universal imperatives of law. A consistent use of these universal regulatory principles makes an economy legitimate. Apparently, legislators could not provide proper bills in advance (including measures of responsibility) which might be effective in such crises. For their part, politicians, economists and lawyers did not act professionally enough to foresee and prevent the current crisis.

From the legal point of view, a real threat of a financial-economic pandemic stems from various digressions from the principle of the supremacy of law in the economy in certain states and at the global level. Among such digressions are ineffective regulatory enactments, unprofessional and illegitimate actions by officials, statesmen and corporations, including dubious and illegal financial pyramids, both national and transnational ones. All those things put together resulted in a situation where legal principles were not properly applied to economic and financial regulation, while the rights and obligations of economic agents, countries and international financial institutions were distorted.

Of special concern is the provision of citizens’ socio-economic rights. In crisis conditions, the government’s political or economic decisions are unlikely to satisfy all groups of the population. The authorities are expected to guarantee a reasonable balance and proportion between the measures to pull the country out of the crisis and stabilize finance and the economy, on the one hand, and the fundamental rights and freedoms of citizens fixed in the Universal Declaration of Human Rights and national Constitutions, on the other.

The crisis has exposed the ineffectiveness of the classic liberal doctrine of law, which proclaims a formal equality between the deed and the retribution in the face of freedom that is universal for all. In social relations, this does not suggest any legal adjustment for social or biological differences in people as subjects of law. This doctrine also provides groundwork for the idea that social rights are not the rights in the strict sense of the word, while a welfare policy can be viewed as the assistance the states provides to the poor at the expense of the rich, or as charity, based on political expediency.

Meanwhile, formal equality, in its two aspects – as equalizing justice and distributing justice – implies that the original actual inequality should be overcome by creating equal startup opportunities in using the benefits of rights and freedoms. This idea finds increasing understanding in the conditions of modern global processes, when it has become clear that the traditional, or liberal rights guarantied to the man, are insufficient for realizing his capabilities as an intelligent being with free will.

According to the idea of the Russian Constitution, the welfare policy, based on the principle of a social state, is not random charity, motivated by compassion for the unprotected strata of the population. It is a constitutional and legal obligation of the state to guarantee and protect the social rights as fundamental and inalienable rights, which conforms to the crucial principle of distributing (or proportionate) justice. It suggests legal universality and formal equality.

Proceeding from this standpoint, society (in the person of the state), by using proper compensatory mechanisms, provides for its weakest members equal startup opportunities in realizing their basic rights and freedoms. This activity envisions, if need be, a legal restriction of stronger members of the society (for example, by means of taxes), but it should not be arbitrary, dictated only by considerations of political expediency or the moral feeling of compassion and mutual assistance.

Otherwise, the advantage of the stronger will increase not through their own efforts, enterprise, talents or services, but due to the resources they inherit (the effect of accrued advantage). This distorts the idea of distributing justice and equalizing justice, i.e. the general legal equality, as the fundamental principle of legal regulation. Eventually, society finds itself in an “inequality trap.” This kind of regulation does not guarantee an effective protection of people’s interests, nor can it secure the survival and development of the civilization.

The present constitutional-legal doctrine and practice must interpret and realize the principle of legal equality as applied to the sphere of social rights, while taking into account specific social conditions, challenges and threats.

The interpretation of provisions on a social state, equality before the law, and justice (equalizing and distributing) in regulation and in ensuring and protecting social rights, enabled the Russian Constitutional Court to work out legal positions that have a considerable significance for legislative regulation of public relations in the field of social protection and uniform welfare policy.

IN DEFENSE OF THE SYSTEMIC APPROACH

A tense situation requires the use of adequate legal methods and proves the invalidity of a formalistic (rooted in legal positivism) interpretation of law which identifies law with legislation. Historical experience shows that in practice this interpretation generates a belief that any executive order by the government becomes law. In the regulation of the economy, such negligence of the principles of law leads to voluntarism.

The crisis has exposed the costs and practical consequences of doctrines that interpret law as a “pure” form, separate from its content, and that ignore the inter-relationship between jurisprudence and economics as applied sciences. These doctrines ignore a systemic approach as a methodological basis of professionalism.

There are professional frameworks that should be respected. Going beyond these frameworks is an enjoyable hobby for amateurs. A professional – an economist or a lawyer – rejects amateurishness and appreciates high professional competence. But let us imagine that a volcano has begun to erupt and that you live in Pompeii, right below this volcano. You are feeling tremors and realize that something is affecting your personal fate and the fate of the town you love. Alarmed, you ask around what is happening. But they tell you: “This is not your business: this particular problem is within the competence of volcanologists.”

There are world processes that have certain dynamics. One might claim they are cyclic, and describe particular cycles. Some believe that everything obeys the cyclic law. But there are others who believe in the great novelty delivered by history. Personally, I am inclined to support the second outlook, with its belief in heralding and the truth. It is this outlook that I regard as scientifically valid and consonant with the feeling of the great truth inherent in a believer.

But no matter what processes we consider, they have a rhythm, where calm is replaced by anxiety, and stability by upheavals. A Chinese proverb says, “God forbid to live in a time of change.” But everyone has his own time. Some are destined to live in the age of changes, in “fateful minutes,” as Fyodor Tyutchev, a famous Russian poet and politician, used to say.
An age of stability is characterized by certain divisions between the prerogatives of various professions, whereas instability lends a very different quality to this division.

The jurisprudence of the age of instability and the jurisprudence of the age of stability have different approaches to the problem of professional competence. If a lawyer monitoring compliance with legal norms at an acute phase of a transitional period stops being aware that he is dealing with a certain process and thus ceases to be a lawyer. He becomes a useless pedant, incapable of helping people to resolve their problems, ease the upheavals, charm the chaos, and quell the spirit of discord which flared up in people’s minds and hearts. One might recall the well-known utopian novel The Glass Bead Game by Hermann Hesse, in which he grotesquely depicts the lifestyle of a caste of refined professionals.

We can love law and even worship it. But we must always keep in mind that law is for man and not man for the law. If acute processes are unfolding in the world, our approach to legal norms and mechanisms should take account of these processes and consider them as a context for our legislative action, at the very least. And the best approach would be to include the process itself in the dialectics of law-making.

The instability amid which we are to administer law was generated by the world financial crisis. It has made us adjust our professional self-awareness. Can we now draw a reasonable and functionally justified borderline between the professional and the human, between the conceptual and the systemic, between the particular and the general, and between the corporate and the world outlook?

OVERCOMING THE CRISIS OF TRUST

The current world financial crisis has got a name: a crisis of trust. This literarily means the depositor’s lack of trust in the bank. No banker can run his business in conditions when all depositors are demanding the return of their money at the same time. If someone spreads the rumor (false, but nevertheless convincing) that this or that bank will go bankrupt tomorrow, it will indeed go bankrupt. Such is the literal sense of the crisis. But we can hardly be content with such a narrow definition of trust.

Globalization encourages formal – although quite legal – trust. Imagine that a group of strangers at the other end of the world issue shares. There are rating agencies, whose professional duty is to give an objective evaluation. And we have to put our trust in these rating agencies. We do not know the people who float shares; we do not know their human or professional qualities. But we assume there is an agency which does have this information, and that it will share its knowledge with us. This belief creates global integration. The man begins to feel at ease at any point of the globe. The world is becoming uniform in a dangerous way and is expanding fantastically, promising entirely new opportunities.

And then suddenly it turns out that you should not trust the rating agencies. Who should people trust then? Those whom they know personally, of course: their acquaintances, friends, and their reality, which immediately shrinks from universal to narrowly regional. We no longer trust the banks put on top by some abstract ratings. We simply trust our acquaintance working in a small and, possibly, not the best of banks, whom we know in and out. We can no longer trust formal things –only concrete ones.

The financial crisis has convinced those people who took globalization as a simple and unidirectional process that it is not that simple and univocal. It will be quite lamentable, if, having been disappointed in the financial, legal and other maxims of globalization, humanity renounces the idea of rapprochement, symphony and mutual enrichment, and if people again start carving up the world into small and smelly shacks. It will happen for sure if we do not learn to understand the essence of the process. And it will certainly affect everything related to law. Law is a live super-complex system, sensitive to culture and religion, politics and economy, social life and technical progress. Any other understanding of law turns us – the people responsible for humanity’s trust in this institution – into dogmatic priests, incapable of keeping the fire burning in lamps.

If globalization continues, constitutional and national law will eventually merge into a synthesis with all-humanity law. If globalization collapses, the particular will prevail over the general, and the national, over the universal. Sooner or later, it will evolve into an entirely new system of international institutions: such calls have already been voiced – along with statements about the UN’s obsolescence and the need to arrange the world along the Congress of Vienna principles.

A careful monitoring of these calls and appeals to Realpolitik cannot but suggest a crisis of trust in all and sundry who brought about the concrete crisis of trust in finance. The human world is much more complex than people believed it was, when they assumed that money was a universal measure for all, the ultimate regulator and the equivalent of global power.

Alan Greenspan repented of giving too much significance to market regulators. But why then do we not see repentance in those who talked about alternative simplified globalization, which would eventually smooth over the difference between the individual and the universal, on which our culture in general and the philosophy of law are based? And it is the philosophy of law that gives a world outlook, and in this sense it is a strategic doctrine of all legal practice.

Either – or… Either we give up globalization altogether… But what then? Will the legal norms not undergo fundamental changes in that event? Will the entire hierarchy of the universal and the national (i.e. the particular) not reconfigure? Will this transformation not affect the individual as the particular? This cannot but happen in the lamentable case in question.

Let us carry through the logic of those who are calling for a new Congress of Vienna, and ask ourselves: What do human rights and UN declarations have to do with this sad scenario, which has not yet taken us by the throat? If the Congress of Vienna prevails, not only the existing institutions and globalization but also international law will collapse. Whatever might replace it is going to be entirely different. If this quality change is delayed, the “club law” will hold sway amidst the ruins of the undermined trust of the world, with all the ensuing catastrophic consequences.

But where is the alternative? It is definitely not in our rejecting upheavals or troubles generated by mistrust, which has come to us definitely not from finance as such (I am sure of it) but from the depths of politics and culture.

The alternative is in making the globalization model more sophisticated, turning it from standardization into something entirely different – into a complex, multi-dimensional phenomenon, rich in content and capable of restoring trust in all spheres of human life: politics and culture, religion and philosophy, finance and law.

Having realized the danger of simplifications that prevail today, we will be able to arrive at a new, more adequate understanding of the ratio between the individual (the special) and the universal. This will help us attain a new cultural and, consequently, legal synthesis.

If we do not want the world to fall into an abyss, all our legal actions, while remaining professional, must also be philosophical-lawful and, therefore, have something of a world outlook.

Then we will drive the demon of mistrust out of various spheres of our life and will build a truly humanistic, open, and integral world for the new generations.