07.06.2009
The Global Crisis, Law and Human Rights
№2 2009 April/June

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.