1. Ekaterina Samokina, National Research University HSE
Formal Constraints in Legal Argumentation in Russia: the Case of the Russian Penal Procedure
Ekaterina Samokina, National Research University HSE

2. Formalism in Russian legal system;
Confused legal notions;
Legal texts as constraints for legal argumentation;
Formality of penal procedure in Russia.

3. Formalism in Russian legal system
monopoly of the legislator to set out legal norms;
precise and univocal rules and concepts;
deductive decision-making procedure.
In Russian legal thought and practice law has always been considered to be a formal enterprise. Indeed, it is a well-known fact that law tends to depersonalize its concepts, to make them as objective and strict as possible. Though, law is a social phenomenon and deals with social relations, human behavior, and all the uncertainties connected with it. Thus, formal aspects of law have to get along with its flexibility and social need for interpretation.
In Russian legal system there is no tradition of “judge-made” law, and all the attempts to avoid rough formalism in law enforcement or legal decision making seem to be threatening to the monopoly of the legislator to regulate human acts. Formalism promises simplicity in precise and univocal rules and concepts, and certainty in deductive decision-making procedure applied to those precise rules and concepts.

4. Judicial syllogism legal rule (the major term);
concrete case (the minor term);
decision (the conclusion)
Example
Commitment of theft is punished by imprisonment (Art. 158 )
A. committed a theft
_______________________________________
A. ought to be punished by the imprisonment
So the decision making in Russian legal system tends to correspond with the doctrine of judicial syllogism in which the legal decision could be as strict as logical syllogism: legal rule (the major term), concrete case (the minor term), and decision (the conclusion).

5. Administration of justice
Formal justice
Material justice
correspondence between the decision and the principle of formal justice
the rule of justice
judge
legislator
According to Russian ideology the function of the judge in administration of justice seems to be reduced to the mere application of legal rule to the concrete case. So in accordance with Russian law the judge solves only the problems of formal justice (the questions of correspondence between the decision and the principle of formal justice); and the questions of justice in material sense might be solved by the legislator. The rule of justice in this context is considered as the essence of justice, a rule that regulates what is just, how to treat equal persons.
Such a scheme of decision-making is quite convenient and desired, but its main disadvantage is that it could work only within a very formal and primitive system – but not within a society.

6. Judicial syllogism Pro Contra simplicity in regulation inflexibility
certainty in decision making
formalism
absence of legal gaps
loose interpretation
absence of arbitrary decisions
works only within formal systems (ideological construction).
We could hardly keep straight to formal constraints in legal argumentation in penal procedure in Russian courts because the big amount of the formulations of our penal legislation contains ambiguous and confused terms which couldn’t be applied within the formal procedure.
Here we can see pro and contra of the system of judicial syllogism.

7. Confused legal notions
Confused notions appear
in the beginning of discussion when the interlocutors are governed by prejudices;
after discussing the matter when there are still controversies related to a certain irreducible vagueness of the terms we use (the case of legal and moral notions).
Chaim Perelman defined moral and legal concepts as “confused notions”. This definition has at least two different meanings because there are two cases in legal argumentation in which we are confronted with notions that are confused. First time, we face the confused notions in the situation when the interlocutors are governed by prejudices. Prejudice is a distortion and a simplification of reality that necessarily entails confusion. Secondly, we face the confused notion after discussing the matter and this means that there are still controversies related to a certain irreducible vagueness of the terms we use. Such a lack of clarity in the latter sense is normal in jurisprudence considered either as a practical activity, or as a field of social and humanitarian science. It is affected by two main reasons. The first is that a language we use in jurisprudence is natural one in opposition to an artificial (formalized) language. And the second reason is that jurisprudence deals with human behavior and its motives, values and beliefs of the society that could not be expressed in univocal and clear terms.

8. There are two reasons that explain the presence of confused notions in jurisprudence
jurisprudence deals with human behavior, its motives, values and beliefs of the society that could not be expressed in univocal and clear terms;
language that is used in jurisprudence is natural one in opposition to an artificial (formalized) language.
Such a lack of clarity in the latter sense is normal in jurisprudence considered either as a practical activity, or as a field of social and humanitarian science. It is affected by two main reasons. The first is that a language we use in jurisprudence is natural one in opposition to an artificial (formalized) language. And the second reason is that jurisprudence deals with human behavior and its motives, values and beliefs of the society that could not be expressed in univocal and clear terms.

9. Legal texts as constraints for legal argumentation
The specific of positive law as a special field of argument:
It is governed by the well-defined texts;
has to be developed within a definite system.
Being governed by the well-defined texts positive law constitutes the special field of argument and has to be developed within a definite system. For example, in legal argumentation jurists consider as a fact only the data that their texts of positive law require or permit them to consider as such.
The appearance of certainty and stability in legal rules and standards is only an illusion. As Julius Stones put it, this illusion conceals existing uncertainty. In legal cases verbal identity of positive law is applied to various situations that could not claim for the identity. For example, Art. 111 of Russian Penal Code lists the motives of the crime (causing bodily harm) as a national, religious or racial hatred, hooligan motives etc. Although the legislator does not provide us with the definition of such hooligan motives or various types of hatred. In such cases we deal with specific confused notions which get the exact meaning through the interpretation. And we could not speak about perfectly clear notions used in the legislative acts because a clear notion is one of which all cases of application are known so that it does not admit of a new unforeseen one.

10. Can penal procedure be formal?
Main legislative acts regulating penal law:
Penal Code defines crime, guilt, motive and target of a crime, punishment, recidivation etc. and describes different types of legally defined crimes and punishment;
Code of Penal Procedure which regulates the process of accusation, prosecution, court procedure etc.
There are two main legislative acts that regulate the decision making in penal cases in Russia. These are Penal Code which regulates the issues of crime and punishment (it defines such notions as crime, guilt, motive and target of a crime, punishment, recidivation etc. and describes different types of legally defined crimes and punishment); and the Code of Penal Procedure which regulates the process of accusation, prosecution, court procedure etc. Both of them define the ways to achieve formal justice, or the correspondence between the court decision and the provisions of positive law. These documents set the rules for the equal persons who face trial were treated alike, and the judge has no right to change such rules. So the questions of material justice – the exact provisions regulating the way in which equal persons who face the trial ought to be treated – ought to be prescribed by the legislator.

11. Codes
Both the Codes contain formal constraints for the legal argumentation.
in Penal Code: essential elements of the crime, the event of the crime, measure of punishment etc;
in the Code of Penal Procedure: judicial process.
Both the Codes contain formal constraints for the legal argumentation. Such formal requirements in Penal Code relate to the essential elements of the crime, the event of the crime, measure of punishment etc. For example, Art. 68 of Russian Penal Code regulate the measure of punishment for the repetition of crime. In accordance with this Article the period of punishment imposed for any type of recidivation might be no less than 1/3 of the most hard penalty prescribed for the crime. Or according Art. 62 of Russian Penal Code the presence of mitigating circumstances and the absence of aggravating circumstances decrease penalty to be imposed to 2/3 of the most hard penalty that could be imposed for such crime. These rules are very strict and the function of the judge in such a decision making seems limited to measuring and calculating. Considered as a principle of action in accordance with which equal beings must be treated in the same way formal justice appears as a formal logical construction – so it seems that if we follow all the strict and certain requirements prescribed in Penal Code and Penal Procedure Code we directly and inevitably reach the justice in formal sense.