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Vanderbilt Journal of Transnational Law

Authors

Afina Lekhel

First Page

167

Abstract

The purpose of this Note is to present a more comprehensive framework for analyzing the status of religious human rights in Russia after the enactment of the new law. Following the insights of an eminent scholar on law and religion, Prof. Harold J. Berman, the topic may be evaluated with a view to positive law (Zakon), moral theory (Pravo), and Russian historical experiences. Generally, positive law refers to domestic legal norms. Moral theory also stems primarily from domestic supra-legal sources, but it may connote global human rights principles where a state subscribes to monism, as Russia currently does. Historical contingencies can be described as prior experiences and the related set of solutions developed in the past. Historical experiences are relevant because of a society's natural proclivity to apply these time-tested solutions to new circumstances. Writing about a failed attempt to amend the liberal religious freedom law in 1993, Professor Berman correctly pointed to the overpowering force of historical contingencies in informing Russian legislation and molding both positive law and morality.

The situation in 1997 mirrored the one in 1993. The dissolving of the Russian legislature in 1993 merely postponed the resolution of a drama surrounding Russian religious policies that reached its expected outcome in 1997. Once again, the needs of the state trampled the legal guarantees contained in the Russian Constitution and numerous instruments of international law adopted by Russia. This Note explores the reasons for such a deplorable detour from the rule of law and attempts to chart the reach of the new legislation.

The discussion in Part II begins with a synopsis of religious policies in Russian history. It then offers general observations on Russian cultural predilections regarding religion, state, and the people. These constitute the most powerful strand of supra-legal sources--the Russian version of natural law. Part III identifies an alternative set of higher legal norms and principles contained in international religious rights instruments and in the 1993 Russian Constitution. Part IV starts with a description of the post-Soviet religious landscape and focuses on political and cultural motivations for the new legislation. It then lays out the structure of the new law and provides a commentary on important provisions. The Note assesses the law in light of constitutional guarantees, international norms, and practical domestic imperatives. Part V examines the potential effects of law and suggests the ways to resist gross abuses in its application. The Note concludes by asserting that if Russia blindly follows the worst features of its historic heritage the forecast is bleak. Yet, the future looks brighter if Russia follows international and constitutional norms in developing tempered cooperationist or endorsed paradigms of church-state relations. This scenario satisfies both the Russian quest for its unique cultural identity as well as its ambitions to become a truly democratic state.

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