ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 114-116.


COURTS AND TRANSITION IN RUSSIA: THE CHALLENGE OF JUDICIAL REFORM by Peter H. Solomon, Jr., and Todd S. Foglesong. Boulder CO: Westview Press, 2000. 222 pp. Paperback, $25.00. ISBN: 0-8133-3776-3.

Reviewed by Albert P. Melone, Department of Political Science, Southern Illinios University Carbondale.

Professors Solomon and Foglesong have produced an informative and readable account of the judicial reform movement in modern day Russia. Unlike some advocates of judicial reform, the authors are cognizant and forthright about the biases that motivate them to question assumptions and permit them to present a picture of judicial reform that is realistic yet hopeful. This book is written primarily and forcefully for the benefit of those in Russia who seek the development of a strong judiciary. Yet, this book also has appeal to those of us who have more theoretical interests. In addition to the obvious benefits in reading this book, I am struck by the parallel facts and research approaches that may be gleaned and applied to other venues in Eastern and Central Europe, and other states experiencing difficult transitions to democracy.

Make no mistake about it. Solomon and Foglesong are advocates of judicial power. They emphasize the importance of establishing a "rule of law" state in Russia-a proscription that elevates the role of judges from handmaidens of the governing apparatus of the state to independent actors guaranteeing the enforcement of valuable legal rights against the claims of others, including democratic majorities. The authors note the connection between the development of capitalist economic institutions and the protective political role that must be played by an independent judiciary. In large part, this bias in favor of the rule of law is a reaction to the Soviet past and the Marxist view of law founded by Lenin and Stalin that was studied and imitated in the various states within the orbit of the former Soviet bloc countries. Yet, as students of political science, it is advisable for us to recall that reform movements everywhere produce winners and losers. Although the authors of this book do not always point out who wins and who loses, it is not too difficult for careful scholars to read between the lines. There are those in Russia and in other transitional democracies who profit from the status quo ante, and there are vested interests that currently distrust judicial power for a variety of good and bad reasons. Clearly, the new capitalist class in Russia possesses a long-term interest in a legal system that protects property interests against all opponents. Yet, in the short run, it is conceivable that these same interest or segments thereof, profit from chaos in financial and commercial transactions. If there is any shortcoming to this book, though hardly damning in the least, it is that the authors do not provide as much descriptive and explanatory information as political scientists might like about the forces promoting and opposing judicial reform. This being said, however, Solomon and Foglesong provide readers with considerable insights into the status and prospects for judicial reform in Russia, a significant achievement by any criteria.

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This book focuses on the regular courts of Russia. In the United States these are called courts of original and appellate jurisdiction that deal with every day legal disputes. The authors mention, but spend little time, explicating the specific problems of the Constitutional Court, Supreme Court and other high-ranking judicial bodies. In this sense, this study is eminently practical. They discuss the relationship of the courts to other political and legal institutions as each impact the operation of the judiciary with respect to pre-trial procedures and post-trial impact of decisions. The authors are especially concerned with the operations of the ARBITRAZH (commercial) courts. We should expect this focus given the authors explicit assumption that the rule of law serves to support the development of capitalism in a post-command economy.

Each of the substantive chapters begins with a description, followed by an evaluation of the problem area under discussion, and concludes with the authors' recommendations placed in bold print. The logic of this format makes it easy for readers to wrap their mental powers around the various segments of reform problems, and to accept or to reject the authors' suggestions for reform. Solomon and Foglesong describe themselves as advocates of a moderate reform agenda that began in 1995. In my judgment, they wisely do not advocate a wholesale transformation of the judiciary system. They advocate the continuation of the civil law tradition with the addition of adversarial changes found mostly in the West. They also want a centralized judicial system with room for local variation. They do not
advocate-as some Western advisors did during the period of the immediate aftermath of the fall of communism-the overlay of an Anglo-American style of jurisprudence with few concessions to Russia's proud history and traditions based on the Roman-based family of laws. The authors seek adequate funding for judicial institutions-a common problem for courts in Eastern and Central Europe. The authors also emphasize the importance of improving the quality of judges through legal education and continuing education institutions. In sum, Solomon and Foglesong express their proposals in incremental terms. They trust that as regimes change, the judicial reform movement will continue to progress with the goal of obtaining a number of relatively small victories along the way that will eventually add up to fundamental change.

This well-written book is also useful as both a guide on how to conduct research in a foreign venue, and as a tool in the generation of testable propositions in places other than Russia. The authors read and analyzed reports in the popular press and in scholarly outlets. They developed contacts in Russia, particularly among jurists interested in judicial reform. They spent considerable time in Russia, probing and poking to learn about the judiciary. Though Solomon and Foglesong are not explicit on this point, the way this is accomplished is by making many friends and acquaintances with those in a position to know the state of affairs. One needs to spend many hours in conversation with a wide range of informants, seeking along the way to separate objective knowledge from personal bias in a constant quest for
some approximation of the true situation in the past and present existing political environment. The authors conducted a survey of judges that they candidly admit does not satisfy the requirements of scientific sampling. Yet, I think they can be excused from this apparent failure because their goal was not to ascertain central tendencies, standard deviations or probability statements. Rather, they used the responses from their surveys (321

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completed questionnaires received out of total of about 2,000 distributed throughout the country) to check assumptions and to evaluate evidence carefully. The researchers then put all of the knowledge obtained from a wide variety of sources into a mix to evaluate and weigh. In the end, they produced a careful description and a set of recommendations for reform of the Russian judicial system that is useful and apparently realistic.

Those of us who devote time studying judicial reform in transitional democracies will benefit from reading and studying this fine book. It is a model of what may be accomplished elsewhere. The Bulgarian experience strikes me, for example, as parallel with the judicial reform movement in Russia. "Demonstration effects" may be operating not only in Bulgaria but also in other former Soviet Bloc states. These "effects" suggest fertile grounds for future research. Thus, Solomon and Foglesong's Russian case study may bear fruit in the broader quest for greater explanation that only comparative studies can offer. Their book is a noteworthy accomplishment
toward that goal.

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Copyright 2002 by the author, Albert P. Melone.