By LIN LIAN ONG
Russia was wise in its decision to follow an evolutionary approach in establishing a rule of law and shying away from legal imperialism, said William F. Atkin, a former partner with the international law firm Baker & McKenzie, who worked in Moscow for four years.
According to Atkin, who spoke at the International Forum held in the David M. Kennedy Center on Wednesday, an evolutionary approach involves the preservation of current laws and the review and reform of those laws when appropriate. Legal imperialism, on the contrary, is to adopt another country’s laws in its entirety, with the desire of achieving a similar outcome.
Legal imperialism is not a smart move because the rule of law in each country is based on many factors including its culture, economic and political systems, Atkin said.
“In order to progress a former dictatorship and centrally planned economy to a free market economy,” a rule of law has to be established to smooth the transition, Atkin said. Lawyers are also needed to accommodate and foster the laissez faire system.
However, Atkin points out that there are problems in the approach the Russians chose.
“The inflexibility and harshness of Russian laws are matched only by the inconsistencies and timid nature with which they are enforced,” said Atkin quoting a foreign observer from the 1700s. It is also reflective of the present situation in Russia, Atkin said.
One of the problems is conflicting and underlying policies that are incompatible with a market economy, he said.
Atkin brought up the labor law as an example. He said the law was operating in the same manner as it did under the former Soviet Union, which contemplated life-time employment and made termination very difficult. This, however, “does not make sense to a private employer.”
Russia’s political will and the political reforms are also inconsistent with each other, Atkin said.
Inexperience with commerce and business has contributed to one of Russia’s problems. Profit in the forms of taxes and exploitation of workers are “hated by communists.”
Russia’s method of regulating potential abuses in the free market again demonstrates its lack of experience. Atkin said Russia had a similar situation to Albania, which is crumbling as a result of the pyramid scheme. However, due to its more varied interests and larger size, it survived the collapse of the pyramid scheme.
Conflicting legal concepts also represent a challenge to Russia because it looks to codes for answers; whereas under the common law, people look to the “hundreds of cases” in the past for answers, Atkin said.
Besides these problems, there is also weak enforcement of laws and no remedies. There is no experienced judicial system that can look into private matters, Atkin said.
“Russians have done as good a job as they could have done, maybe even better than other countries would have, in reforming their legal system,” Atkin said, notwithstanding the problems Russia has encountered. He also credited the Russians for having great respect for contract rights and international laws.
Russians still have many challenges ahead and one of the problems they have to deal with quickly is stabilizing their legal reforms. Stability would bring in more permanent foreign investors, Atkin said.
Atkin is the associate general counsel for The Church of Jesus Christ of Latter-day Saints.
