Access the full text.
Sign up today, get DeepDyve free for 14 days.
Abstract The age of globalization involves a rapid change in all areas of social life, which requires legislative bodies to monitor constantly various social processes, with discussion and introduction of new methods of legal regulation of social relations. However, their possible mistakes are a great threat to society. To minimize them, the Soviet lawyers created the theory of legal experiments, which has been repeatedly tested in practice and proved its viability. This concept was widely used in the 90s of the last century in terms of the reforms of land relations, local government, law enforcement agencies, and the field of environmental protection, which allowed cancellation of a number of inefficient patterns of the social structure. Increase of the guarantees of the rights of citizens and their associations requires further development of the concept of legal experiment, methods of its conduct, means of interaction with the public, and forecast of negative effects, which will reduce the risks of premature legislative decisions. The scope of application of the legal experiment can include all post-Soviet countries continuing the process of economic, political, social, and other reforms. 1. INTRODUCTION One of the goals of development and adoption of legislative acts stipulated by the Constitution of Russia is the positive regulation of social relations which would allow creating conditions for comfortable and safe living, strengthening the system of guarantees of human rights. However, introduction of new rules and requirements does not always give the expected result and avoid side effects. Understanding of this danger caused the emergence of first doctrinal developments in the field of legal experiments already in the 18th–19th centuries, which had to reduce the law-making risks and the danger of adopting unreasonable legislative acts. As a result, already in the age of enlightened absolutism in France (the 18th century), A. Turgot became famous for his financial experiments in his intendance du Limousin. In Germany and Italy, many rulers of small states also conducted tests of new ideas of their time, the authors of which were the Physiocrats. In the Russian Empire in the first half of the 19th century, some legislative changes were subject to prior ‘experience in any particular region or province, so that, if the experience met the expectations, the reform was submitted for discussion of the State Council with the changes that were considered useful according to the experience’.1 Nevertheless, legal experiments were most fully enshrined in doctrines and rules in the USSR in the early 80s of the last century, though legal experiment was used in the USSR not in all areas of social life. Perhaps it was more actively used in the area of financial relations with participation of state enterprises as well as in the area of labor relations. In land, family, criminal, and many other branches of law legal experiment failed to gain any significant widespread acceptance. Despite the rather local scope of its use, in the Soviet juridical science an orderly scientific concept of legal experiment was created, with detailed development of methods and stages of its conduct, goals, objectives, hypotheses, and consideration of possible side effects. The collapse of the USSR in 1991 was followed by the process of all-round denial of many senseless Marxist–Leninist ideological structures which did not meet the requirements of the new times. In most cases this policy was justified, however, unfortunately, along with incoherent ideological dogmas, good doctrinal legal concepts which were time-tested and proven also suffered, and legal experiment was among them. In the 90s of the 20th century legal experiment continued its existence in Russia by inertia. It was at this instant that a series of legal experiments was conducted, including those in the area of local government in Pskov Region (1994–98), in the area of reforming of the agroindustrial complex (Tula and Nizhny Novgorod Regions) as well as the experiment in real estate taxation in the cities of Novgorod and Tver. These experiments were subject to both decisions of federal authorities and regulations of the subjects of the Federation. However, already in the 2000s their official application reduces. Meanwhile, at the moment, there is an urgent need to revive the theory of legal experiment worked out by the Soviet scientists, adapt it to modern conditions of development of the country, study the methods of its conduct, the boundaries of experimentation, and the mechanism of guarantees of the rights of citizens and legal entities, which will allow creating a barrier to spontaneous legal experiments occasionally conducted in Russia by state authorities of the Russian Federation and its subjects in the second decade of the 21th century. These officially undeclared experiments take place in various areas of legal life, including in the field of land relations, which we will discuss further in more detail. We propose to conduct all legal experiments officially, according to the established methods, with discussion of their goals, objectives, possible adverse effects, and so on with the citizens. The content of legal experiments can be regulated both by means of development and adoption of a special law ‘On Legal Experiments’ by the State Duma of the Russian Federation and in other ways. Meanwhile, the lack of a regulatory framework for their implementation leads to the almost complete lack of judicial practice, which mainly includes cases of improper conduct of operational (investigative) experiments related to bribery or complaints of citizens about various experiments in the area of education. All other categories of ‘experimental’ cases are rather insignificant. On this basis, in part 2 of this article, we will study the current situation with legal experiments in Russia, which are in large part officially declared and recognized; in part 3, we will show positive and negative effects of a number of land legal experiments which were not officially declared, they were conducted without scientific basis; in part 4, we will analyze the opinions and conclusions of the Soviet and modern Russian science about what legal experiment is and what the composition of its elements is; in part 5, we will propose our own model for conducting experiments. 2. CURRENT TYPES OF LEGAL EXPERIMENTS: THE EXPERIENCE OF RUSSIA The question of whether the legal system should tend to include experimental methods, and if so, what should be done to make the best use of the chance of improvement through experiments in the political field is widely discussed not only in the Russian legal science. Many authors note that social legal experiments are conducted only in certain areas of social life. Moreover, the very term ‘social experimentation’ implies that most of these experiments will be conducted in the social field and, therefore, affect, for example, the issues of improving the cost efficiency for achieving various social goals such as poverty reduction.2 At the moment, the post-Soviet Russia has accumulated great experience in conducting both formal legal experiments and those not called as such but possessing all attributes that allow qualifying them in this way. In both cases, the method of legal experiment was used in a limited space (and for a limited period of time) and allowed testing different theoretical models of legal regulation of various fields of social relations (economic, political, social, etc.). The aim of legal experiments was stated as improvement of the efficiency of legal regulation to be introduced in the future, further correction of some or other instructions, prevention of rule-making mistakes, and neutralization of possible adverse effects of regulation. Consequently, the legal experiment either confirmed the efficiency of any rule to be adopted or projected the consequences of the refusal of the current rules. Some of the legal experiments conducted in recent years affected the entire territory of the Russian Federation, while others were carried out in more local areas (subjects of the Federation, municipal entities). There were differences in subjects of the experiments, their terms, quality of the results, public reactions, and so on. In addition, despite some practice, there has been no official classification of legal experiments so far. If we talk about their scope, we can make the following (far from complete) list: Experiments in the field of economy (including the field of taxation, use and turnover of real estate). One of these experiments was stipulated by Federal Law of 20 July 1997 No. 110-FZ ‘On Conducting the Experiment in Real Estate Taxation in the Cities of Veliky Novgorod and Tver’, according to which in 1997–2005 the real estate tax was established in these cities. Since its introduction, the legal entities and individuals who became payers of the real estate tax were exempt from the corporate property tax, individual property tax, and land tax in these cities. Despite the number of positive results, this experience has not been extended to the entire territory of the Russian Federation so far. We should also point out the experiments in the field of turnover of land plots as real estate items, emergence of which over the course of many years was caused by political disputes about the reasonability of introduction in Russia of full private ownership to land and turnover of land plots. In this case, a typical example is Decree of the Russian President of 1 October 1992 No. 1151 ‘On Conducting the Experiment in Auction Sale of Land Plots for Individual Housing Construction in the Territory of Moscow Region in 1992’. Great attention was also paid to experiments with land plots for agricultural use, for example, related to arrangement of the division of land of the former collective farms through internal auctions (Resolution of the Government of the Russian Federation of 27 July 1994 No. 874 ‘On Reforming the Agricultural Enterprises with Consideration of the Practice of Nizhny Novgorod Region’), which received a negative evaluation in the scientific literature because these experiments resulted in devastation of the farms and desolation of the land for agricultural use in Nizhny Novgorod Region. According to some Russian scientists, at that moment, the political power failed to ensure any adequate support and protection of domestic agricultural producers but often artificially created bad economic conditions for them knowingly condemning the Russian agricultural production to destruction.3 A great contribution to the development of the practice of legal experiments was made by the subjects of the Federation, which acted in two ways. First, in the 90s of the 20th century, some regions (e.g. Saratov Region) adopted regional land laws that regulated some aspects of acquisition of private land ownership under the circumstances where the federal Land Code had not been adopted yet. In fact, it was a legal experiment in its pure form and its results then were taken into account in the development of federal land laws. Second, the subjects of the Russian Federation adopted official laws which proclaimed the goals and methods of land legal experiments. A typical example in this case was Law of the city of Moscow of 29 September 1999 No. 36 ‘On the Experiment in Sale of Land Plots in the city of Zelenograd’ regulating the procedure of the sale of land plots owned by the city of Moscow and Zelenograd located in its suburbs. Social experiment (in the field of science, education, healthcare, culture, etc.). In 2009–14, in Russia, there was an experiment in creation of applied bachelor programs in educational institutions of secondary professional and higher professional education (it was officially recognized successful). Federal Law of 21 November 2011 No. 323-FZ ‘On Fundamentals of Health Care of Citizens in the Russian Federation’ existing in the field of healthcare does not mention directly the possibility of ‘medical experiments’, though the need for their legal regulation is rather often discussed in scientific legal literature,4 along with issues of legal regulation of biological experiments.5 The need for legal experiments in the field of culture, which has not been approved yet by the legislator, is also widely discussed.6 Among the implemented social legal experiments, we should point out the experiment in creation of a state system of free legal assistance to low-income citizens through organization of activity of the state legal bureaus, which are much more affordable for low-income citizens in contrast to the paid services of lawyers. Experiments in the field of law enforcement. One of the most well-known experiments here is, first of all, the large-scale experiment in organization of the municipal militia conducted in 1998–2000 in the territory of 10 subjects of the Russian Federation (Decree of the President of the Russian Federation of 17 September 1998 No. 1115 ‘On the Experiment in Organization of Protection of Public Order by Local Government Bodies in Some Municipal Entities’). Moreover, special subdivisions of environmental militia (in terms of the experiment) were formed in 20 subjects of the Russian Federation, including the city of Moscow. In November 2000, the State Duma of the Russian Federation held parliamentary hearings ‘On Environmental Militia’. The representatives of the Ministry of Internal Affairs (MIA) of Russia then spoke for termination of the Moscow experiment in creation of environmental militia, as the MIA has no reporting indicators of environmental offences and therefore is not interested in continuing the experiment. The MIA was interested in the use of budget funds allocated to maintenance of the environmental militia and financing of the public security militia. As a result, in 2008, due to the reorganization of the Directorate for Combating Offences in the Area of Natural Environment Protection for the City of Moscow (structural subdivision of the MIA), the number of its staff reduced to 90 people. In fact, this legal experiment was recognized as unsuccessful.7 Second, it is introduction of judicial mediation. For example, in 2011, Belarus started implementing the legal experiment (pilot project) in introduction of mediation in settlement of legal and other conflicts, the participants of which were the Supreme Economic Court of the Republic of Belarus and the Mediation Center. The concept of the pilot project was approved by order of the Chairman of the Supreme Economic Court of the Republic of Belarus of 1 March 2011 No. 13. Legal experiments in the use of mediation procedures (including for minors) were also quite widespread in Russia.8 As a result, the experiment was recognized as successful, which led to adoption of Federal Law of 27 July 2010 No. 193-FZ ‘On the Alternative Procedure of Settlement of Disputes with the Participation of a Mediator (Mediation Procedure)’. Third, the legal experiment to revive the jury trials was driven by political motives, and the experiment was organized on a clear methodological basis. Despite the ambiguous assessments of this institution during the legal experiment, it ended in recognition of the positive results (in particular, in terms of efficiency and timeliness of trials and the positive impact on the process of consideration of other criminal cases) and introduction of the mentioned trials in the entire territory of the Russian Federation.9 At the moment, section 12 ‘Peculiarities of Court Proceedings with the Participation of Juries’ of the Criminal Procedure Code of Russia is in effect. Fourth, the legal experiment promoted the development of the juvenile justice system, when from 1999 till 2005 some regions implemented the pilot projects of the United Nations Development Programme ‘Support to the Implementation of a Juvenile Justice System in the Russian Federation’, ‘Development of Justice in Some Regions of the Russian Federation’: in Rostov and Saratov Regions, in Saint Petersburg services of social workers were created. In some regions participating in the experiment, testing of elements of juvenile technologies was not further developed after financing of the projects, in other regions, the obtained technologies of work are successfully applied to the present day.10 Environmental legal experiments. The best-known of them are, first of all, Resolution of the Government of Moscow of 13 September 2012 No. 485-PP (revised on 22 December 2015) ‘On the Experiment in Treatment of Solid Domestic Waste and Bulky Waste Generated in Apartment Buildings Located in the South-Western Administrative District of Moscow and Amending Resolution of the Government of Moscow of April 24, 2007 No. 299-PP’. This resolution stipulated conduct of the experiment from 1 January 2013 till 31 December 2013 in the South-Western Administrative District of Moscow in the treatment of solid domestic waste and bulky waste generated in apartment buildings. This experiment implied introduction of the centralized system of treatment of waste generated in apartment buildings (disposal, transport, processing, placement, and waste); optimization of budget expenses of Moscow; enhancement of logistics and reduction of the number of garbage trucks in the city streets; and creation of waste sorting facilities. This legal experiment was recognized as successful, and its scope regarding the treatment of solid domestic waste and bulky waste generated in apartment buildings located in the South-Western Administrative District of Moscow from 1 January 2015 was extended to cover the territories of the Central, Eastern, North-Western, and Zelenograd Administrative Districts of Moscow. Homeowner Association ‘Lomonosovsky, 18’ made an attempt to challenge in the court the formula for calculating payments for waste management used in the course of this experiment, however, their lawsuit was dismissed.11 Second, in 1994–96, there was an experiment in development of environmental insurance (regulated by Order of the Ministry of Environmental Protection and Natural Resources of the Russian Federation of 26 July 1994 No. 233). The experiment was conducted only in some subjects of the Federation and municipalities directly specified in the Order. The aim of the experiment was to provide compensations for those affected by the accidental pollution of the environment, receive additional funds for environmental protection activities, create conditions for forecasting, prevention and elimination of the consequences of environmental accidents, and so on. One of the objectives of the experiment implied experimental testing of the elements of compulsory environmental insurance at the regional level. There were no official results of this experiment; however, the further introduction of the system of compulsory environmental insurance suggests its positive evaluation. Experiments in the area of local government. The best-known one here is the legal experiment in Pskov Region conducted in the 90s of the 20th century related to the attempt to introduce new models of local government. The experiment was conducted officially at the initiative of two municipal entities (Pytalovsky and Pechorsky districts) and was supported by state authorities of the subject of the Federation (Pskov Region) and federal authorities. Both districts adopted special programs for the conduct of the experiment. For example, according to the experiment program in Pechorsky district as a municipal entity, other two municipal entities were created inside it—Kuleyskaya and Kruppskaya volosts, independent in settlement of a number of economic, financial, and other issues. However, the rules of the Charter of the district applied to all the three municipal entities (district and two volosts). Pytalovsky district of Pskov Region worked out the models of the interrelations between the head of the administration and the representative body of the district. The plans to conduct the experiment in both districts were supported in Resolution of the Government of the Russian Federation of 11 October 1996 No. 1188 ‘On the Experiment in Development of Local Government Organization Models Conducted in Pskov Region’; however, later, the experience of the experiment was not in demand. The very possibility of municipal experiments is still open, since paragraph 2 Article 35 Federal Law of 6 October 2003 No. 131-FZ (revised on 3 July 2016) ‘On General Principles of Local Government Organization in the Russian Federation’ establishes that experiments may be conducted in certain local government bodies, election commissions of municipal entities to improve the efficiency of the activity of the local government bodies, election commissions of municipal entities, and municipal officers. The procedures, terms, and conditions of their conduct are set by the regulations of the subjects of the Russian Federation and municipal legal acts. However, in practice, this possibility is now used extremely rarely. Thus, nowadays the post-Soviet Russia has accumulated rather significant experience in conduct of legal experiments in various fields of social life (self-government, nature protection, taxation, law enforcement agencies, etc.), and all of them have a scientific basis to a different extent. The experiments were conducted at the initiative of the President and the Government of Russia, some Ministries as well as authorities of the subjects of the Russian Federation. The conducted legal experiments could be both declared openly and carried out without any clear registration as an experiment. Their results could be also both recognized useful and denied due to the failure to achieve the set goals or to further amend the federal laws. In addition, it should be noted that there is no single methodology of the experiments at the federal level, and no federal law regulates these procedural aspects in any way. This, in its turn, sets conditions for conduct of unofficial legal experiments, when fundamentally new legal rules were introduced at the local level and the obtained results later were approved and extended to the entire country. 3. UNOFFICIAL LEGAL EXPERIMENT IN WITHDRAWAL OF LAND PLOTS FOR STATE NEEDS: CONTENT AND EFFECTS Initially, after the Land Code of Russia entered into force in October 2001, the level of guarantees of the rights of private land owners was high enough and did not cause any particular remarks. These guarantees covered to the full extent the entire territory of the Russian Federation and did not provide for any exceptions for certain municipalities. Among these guarantees of the rights of owners of land plots in terms of their withdrawal for state or municipal needs, we can mention preliminary and equivalent compensation of the value of the withdrawn land plot; the requirement to notify the owners one year prior to the forthcoming withdrawal and some others. Here, we should point out the Urban Development Code of the Russian Federation stipulating in Article 9 the necessity to link the withdrawal of land plots for state and municipal needs with the content of territorial planning documents of the Russian Federation, its subjects and municipal entities. This means that in general in the absence of territorial planning documents, except for the cases stipulated by federal laws, state authorities, local government bodies may not adopt decisions on withdrawal of land plots for state or municipal needs. The meaning of this rule consists in the fact that the general layout or other urban planning documentation must include the scheduled future state or municipal facilities construction of which will require withdrawal of land plots from private owners. Accordingly, the population will be able to familiarize themselves with these plans at public hearings. However, already since 2007 federal authorities have begun to conduct an officially undeclared legal experiment aimed at creation and practical testing of new legal procedures and technologies associated with withdrawal of land plots from citizens and legal entities for state needs according to the simplified procedure which does not provide for complex and detailed guarantees of the right of private ownership. It is hard to say now whether this unofficial legal experiment was initially aimed at distribution of the obtained results throughout the entire country, however, that is exactly what happened a few years after its implementation. For the first time, the special legal procedure for withdrawal of land plots for state or municipal needs was introduced by the special federal law for construction of the Olympic facilities in the city of Sochi, and then construction of the facilities in the city of Vladivostok required for the Asia-Pacific Economic Cooperation summit. Later, it was supplemented with other two federal laws regulating withdrawal of land plots for public needs in the territories attached to the city of Moscow (as a result of its expansion), as well as related to the plots required for construction of the facilities for the 2018 FIFA World Cup. These laws created the conditions for more rapid withdrawal of land plots (territory planning projects are accepted without public hearings; the withdrawal is admitted in the absence of approved territory planning documents; in the ‘new Moscow’ till 31 December 2015, in case of withdrawal of land plots or other real property, their owner was notified of the forthcoming withdrawal at least five months prior to the forthcoming withdrawal). Analyzing the content of these laws, we cannot say that this legal experiment had nothing but negative effects. The positive results included equating the citizens and legal entities with limited real rights to the land plots (the right of permanent (perpetual) use) to the private owners, which implied a higher level of the financial compensation for the withdrawn land plots. Therefore, these unofficial legal experiments led to regulatory development and practical testing of new (simplified) methods of withdrawal of land plots for state needs. This experience was recognized as useful by the federal authorities, in connection with which the new (simplified) procedure for withdrawal of land plots for state needs was extended to the entire country as a result of amendments to the Land Code of the Russian Federation in 2015. We should note that this case is not about reproduction of literal wordings from the previously adopted above-mentioned four federal laws with a local scope in the new version of the Land Code (in these laws themselves, the rules dedicated to withdrawal of land plots from private land owners do not match word-for-word). It is about the general methodological approach, concept, methods, and ways of legal technique having a common orientation. While not opposed to the adoption of the laws establishing special procedures for withdrawal of private land plots for public needs in certain municipalities (subjects of the Federation), as well as to extension of the gained experience in the entire country in general, we should note that conduct of officially undeclared legal experiments is not the best way to improve the land legislation. It would be more effective and legitimate to hold public discussion of the aim of the legal experiment with the population that falls under its scope, with indication of all its consequences and advantages for the citizens, the mechanism for compensation estimation and other issues, which would increase the people’s confidence in the government as well as dampen social conflicts often arising because of the lack of information and misunderstanding of the general intention of the experimenters. On the other hand, it should be noted that the lack of a modern doctrinal concept of legal experiments in general, as well as the specificity of their conduct at the sectoral level (land legal one in this case), does not allow state authorities to carry out legal experiments efficiently and on a clear methodological basis. 4. THE SOVIET AND THE MODERN RUSSIAN LEGAL SCIENCE ABOUT LEGAL EXPERIMENT: HOW TO ENSURE THE EFFICIENCY OF ITS CONDUCT? The given examples of legal experiments conducted without any clear official recognition the results of which were then extended to the entire country show the need to use the entire arsenal of theoretical developments of the Soviet and modern scientists allowing transfer of this kind of unofficial experiments to a strict scientific basis with consideration of the side effects and guarantees of the rights of citizens. In order to formulate this scientific concept, first it is necessary to define what ‘legal experiment’ is and what its main elements and differences from related legal phenomena are. It should be noted that Soviet scientists examined the theoretical aspects of the organization of legal experiments very thoroughly and in detail. They understood it as a scientific experiment, observation of the investigated legal phenomenon (scope of the rule, legal relation, activity of law enforcement agencies and officers) in the accurately considered conditions allowing monitoring of the progress of the phenomenon and recreation of it in repeating conditions.12 Other Soviet scientists paid attention to the fact that legal experiment is testing of ‘alleged legislative innovations on a limited scale to check the effectiveness, usefulness and efficiency of experimental legal rules and work out the optimal variants of future law-making decisions of systemic effect’ organized by a competent law-making body.13 Therefore, if the first definition was about an experiment and observation of the implementation of any rules and legal relations, in the latter case, the emphasis was placed not only on the effectiveness but also the efficiency of experimental legal rules, which is explained by the specificity of conduct of legal experiments in the USSR often associated with the change of financing of state enterprises to improve labor productivity. With consideration of the changes which occurred in the country, the modern scientists write that law-making experiment is ‘testing of alleged legal innovations on a limited scope of application organized by competent state bodies, bodies of state entities and bodies of municipal entities with the aim to prove the assumption of legal nature according to the previously developed program, consisting of arrangement, conduct of the experiment and summarizing of its results’.14 In this case, we observe consideration of doctrinal developments of the Soviet lawyers with the reference to new constitutional changes associated, in particular, with emergence of local government bodies which were missing in the USSR. However, we suppose that the emphasis placed by the author on ‘bodies of state entities’ is not quite successful, since the legal experiment associated with a change in the existing law order in a certain territory (and taking into account its possible adverse effects) should be conducted by either state authorities of the Russian Federation and the subjects of the Russian Federation or (in rare cases) local government bodies. No other organizers of legal experiments are acceptable. Hence, it follows that a legal experiment is testing of legislative innovations conducted by the competent public authority in a local territory (subject of the Federation, municipality or its part) with the aim to find out their value and utility for the territories of the rest of the country, according to the previously set plan with consideration of side effects and with prior notification of local residents. We should point out that a legal experiment cannot be conducted simultaneously in the territory of the entire Russian Federation (or any other country), as in this case its main point related to testing of certain new laws in a local territory with the purpose of further extension of the gained experience in the entire country is lost. A legal experiment in principle can be conducted at the international level, but there have been no such attempts in the field of land relations yet, and this issue has never been discussed in this context. Finally, speaking of the local territory of a legal experiment, we should note that this case can include only a part of the territory of a governmental unit (e.g. municipality). In the period of existence of the Soviet Union, legal experiments would be conducted at a more local level—in state enterprises; however, at the moment, market economy is developing in Russia, and the number of companies in state or municipal ownership is relatively not big. Moreover, no attempts to conduct legal experiments in them have been recorded yet. It appears that ‘legal experiments’ should be distinguished from related legal phenomena associated with the establishment of special legal regimes in certain local territories. For example, Federal Law of 22 July 2005 No. 116-FZ (revised on 13 July 2015) ‘On Special Economic Zones in the Russian Federation’ provides for creation of special economic zones in a part of the territory of Russia, which introduced a special regime of entrepreneurial activity and may apply the customs procedure of free customs zone. However, establishment of a special legal regime in local areas of the territory of Russia does not imply further extension of this legal regime to the other part of the country (as it happened after testing of the procedures for withdrawal of land plots for state needs in Sochi), and, therefore, it is not an unofficial legal experiment. In a similar way, the establishment of a special legal regime in the Skolkovo Innovation Center or the creation of special state administration bodies (e.g. there is the Ministry for Development of the Russian Far East in Russia) cannot be considered as an unofficial legal experiment. The fact is that the creation of the latter authority on a territorial rather than sectoral basis does not imply generalization of the administration experience and its extension to the rest of the country, and, therefore, it is not a legal experiment. The existing doctrinal developments of the Soviet15 and modern16 scientists related to certain aspects of conduct of legal experiments may be summarized as the following points: A legal experiment is a check of one or another option of legal regulation which is carried out with the aim to prevent damage possible as a result of adoption of a wrong decision. Legal experiments should be conducted to enhance the legislation, define its boundaries and possibilities of change. Therefore, we can speak of such a function of legal experiment as filtration, sifting of inefficient legal models, as well as the function of search for ways to increase the efficiency of legal regulation in a certain field. An experiment should be reversible. Events associated with the experiment may be commenced only if the mechanism of guarantees of compensation for its possible damage to citizens and legal entities and restoration of other infringed citizens’ rights has been thought out. In cases where creation of these guarantees is impossible, conduct of a legal experiment is also inadmissible. It is necessary to maintain the possibility to return to the previous state. An experiment is a rather expensive way to test regulatory hypotheses. Therefore, if such a hypothesis can be tested in another way, a legal experiment is not reasonable. It is worth conducting only in cases when other methods of detection of the efficiency of a legal rule are not available. As mentioned in the US scientific literature, even if states possess the technical ability and willingness to conduct experiments, the success of experiments must be measured by national evaluative norms. The costs of failed experiments may exceed the benefits obtained. Experimentation itself may be an inefficient regulatory strategy. We are unlikely to know in advance of the beginning of the experiment whether this experimentation will provide the net benefits desired.17 There is no single template or scheme which makes it possible to construct an experiment of any thematic scope. However, the general structure of an experiment usually includes (i) the cognizing subject and its activity, (ii) the object of experimental investigation; (iii) means of influence on the object under study. The experiment has its stages: (i) design and arrangement of the experiment; (ii) conduct of the experiment; (iii) final stage, summarizing of the results of the legal experiment. Before the beginning of a legal experiment it is necessary to identify and consider the public opinion by means of local referenda and public hearings, which will allow avoiding social conflicts, attracting population to participate in the experiment and thereby improving its efficiency. Success of a legal experiment must be determined by analysis of the correlation of the actually achieved results, expenses and the aim with which the legal experiment was conducted. Among the attributes of legal experiments the following ones should be pointed out: (i) availability of the legal basis for conduct of a legal experiment; (ii) availability of experimental legal rules; (iii) the limited scope of experimental legal rules; (iv) cognitive nature; (v) transforming nature; (vi) the need to create certain conditions to eliminate (mitigate) the influence of side effects; (vii) the need to establish strict monitoring of the progress of a legal experiment, consider its results, ensure their validity. Legal experiments can be classified according to a few criteria: according to the criterion of the public authority conducting the legal experiment (federal, regional, local authorities); according to the field of social life in which the experiment is conducted (here we can point out land, tax, law enforcement, social and other experiments); according to the result criterion (positive and negative); according to the term (short term, medium term, long term). In addition, we should note that it is hardly reasonable to mention legal experiments aimed to identify the efficiency of current rules of law (or their application, as in case of investigative experiments in criminal proceedings). In these cases, it is nothing more than the study of the dynamics of the development of law enforcement practice. Another thing if the experiment relates not to introduction of new rules of law but temporary suspension of the already existing rules. An experiment should be accomplished with adoption of a final analytical document. This must be done regardless of whether the results of the experiment are positive or negative, desirable for the initiator or compromising the model that is tested in the course of the experiment. This memorandum should contain a statement of the official position and viewpoints of the initiators, participants of the experiment, and the experts who carried out the monitoring of the experiment. At the moment, the issues affecting the efficiency of legal experiments include the fact that the organizers of legal experiments have no clear criteria of estimation of their efficiency; the difficulty to single out the action of the proper experimental factor; uniqueness and originality of each legal experiment; the lack of a common legal act regulating the procedure for organizing and conducting legal experiments; the impact of political factors on making decisions to conduct legal experiments and summarizing of their results to the detriment of a thorough scientific study of the relevant issues.18 5. DOCTRINAL MODEL OF CONDUCT OF A LEGAL EXPERIMENT (IN TERMS OF TRANSFER OF ONE-HECTARE LAND PLOTS IN THE RUSSIAN FAR EAST TO OWNERSHIP OF CITIZENS) Having analyzed the main criteria and attributes of legal experiment, we will try to simulate how a legal experience would look like if a competent authority (e.g. the Ministry of Economic Development) decided to conduct it before the adoption of Federal Law of 1 May 2016 No. 119-FZ ‘On Peculiarities of Provision of Citizens with Land Plots in State or Municipal Ownership Located in the Territories of the Subjects of the Russian Federation included in the Far Eastern Federal District, and Amending Individual Legislative Acts of the Russian Federation’. It should be recalled that in accordance with this law on the basis of their applications once citizens may be granted a land plot in state or municipal ownership located in the territory of one of the subjects of the Russian Federation included in the Far Eastern Federal District for uncompensated use. The area of this land plot may not exceed one hectare. A land plot is granted to a citizen for uncompensated use for five years under the agreement on uncompensated use of the land plot. Upon the expiry of five years, at the citizen’s option (excluding a number of cases), the land plot is leased by or transferred to private ownership of this citizen free of charge (or to ownership subject to payment). Now, let us assume that instead of adoption of this law the Ministry of Economic Development of the Russian Federation initiates amendments to the Land Code admitting such experiments and sets the experiment in provision of a ‘Russian Far Eastern hectare’ with the aim to study the possibility of extension of the gained experience in the entire country. The perfect organization and conduct of the legal experiment on this issue could then consist of the following stages:19 Design and arrangement of the experiment. At this stage, the subject of the experiment (the Ministry of Economic Development of the Russian Federation is the most optimal one) as well as the object of the experiment must be determined. In the scientific literature, it is often noted that in the theory of social experiment the experimental object is understood as the number of persons who are put in experimental conditions.20 However, in this case, it appears that the experiments are conducted on people. Meanwhile, since law regulates social relations, experiments are conducted not on people as such but on the state of social relations regulated by law. This, in its turn, means that social relations in use and protection of land will be the object of the experiment. The organizer of the experiment (the Minister) in this case will have to form a special Commission which will consist of representatives of the Ministry, the subjects of the Russian Federation included in the Far Eastern Federal District, local government bodies (in the territory of which the experiment will be conducted), representatives of science and the public. It is obvious that this Commission, according to its status, will be an advisory body without authoritative powers. All necessary decisions on the course and results of the experiment will be adopted by the head of this Ministry. Formation of the commission is followed by drafting, discussion, and adoption of the project of the legal experiment. It is necessary to clearly define its goals and objectives. For example, the goal of this experiment can be identification of the efficiency of the new procedure (enshrined in experimental rules of law) for transfer of land plots to ownership of or lease by citizens, which will lead to an increase in the number of holders of rights to land plots in one or more subjects of the Russian Federation chosen as the place of the experiment. In addition, the objectives of the experiment, its stages, participants, and criteria for the transition from one stage to another one must be discussed and set. These stages can include notification in the media of all interested persons about the possibility to obtain ownership of the land area of one hectare free of charge; collection of applications, granting of land plots to citizens for uncompensated use; implementation of land supervision of the efficiency of land use after a certain period of time. It is necessary to fix separately the initial state of land tracts plots of which are subject to granting to citizens. It is necessary to simulate the forecast of the results of the experiment and its costs. Formation of this commission and the course of meetings will depend on whether there is a framework Regulation on such a commission and a legal experiment as a whole or development of separate regulations and other procedural features of its work will be required. After preparation of the plan of the experiment with statement of its terms, hypothesis and criteria of evaluation of the results it is necessary to inform the residents of the Far Eastern Federal District about the legal experiment conducted by the Ministry. It is more reasonable to carry out this notification not only through publications in the media but through public hearings, often held in the Russian Federation regarding implementation of urban development activity. Conduct of the experiment. At this stage, specially authorized bodies begin to accept applications, form land plots, and grant them for uncompensated use, and, after a certain period, transfer them to ownership of the citizens. All this time (e.g. five years) organizational legal control is performed over the progress of the experiment, as well as research control with intermediate summarizing of results. If necessary, the experimental situation is specified or the methodology of the legal experiment is adjusted. Summarizing of the results of the experiment. Upon expiry of the period of the experiment, the Commission summarizes, evaluates the results, and adopts a decision on extension of the results of the experiment to the entire country or the failure of the experiment and no need for its expansion. Any Final Decision of the commission must be published on a mandatory basis. In our conditional theoretical model, this result could be as follows: the experiment is successful, a few dozens of thousands of citizens received a free ‘Far Eastern hectare’, the agricultural production has grown; collections of taxes and duties due to the local and regional budgets have increased; the amount of investments in the region has increased, and so on. The result of this evaluation of the experiment must be elaboration of a draft law to the State Duma of Russia regarding free granting of land plots, from unused land in non-delineated state ownership, in all regions of the country, for uncompensated use and then transfer to ownership of citizens according to the procedure proved in the course of the experiment. The negative result could consist in the fact that citizens do not go to the Russian Far East from the habitable (central) regions of the country; therefore, further (e.g. two years later) conduct of the experiment is not reasonable (or another region is required for this purpose). 6. CONCLUSION The age of globalization involves a rapid change in all areas of social life in all countries of the world, and law is far from always to keep this pace. This requires legislative bodies to monitor constantly the state of various social processes, with constant discussion of new, previously unavailable methods of legal regulation of social relations. However, introduction of these new laws always poses big risks to society. To minimize them, the Soviet lawyers created the theory of legal experiments, which has been repeatedly tested in practice and proved its viability. This concept was widely used in the 90s of the last century in terms of the reforms of land relations, local government, law enforcement agencies, and the field of environmental protection, which allowed cancellation of a number of inefficient patterns of the social structure. The further reduction of official legal experiments led to conduct of legal experiments, which were not recognized officially. Their results are ambiguous, however, often extended to the entire territory of the country (e.g. in terms of withdrawal of land plots). Increase of the guarantees of the rights of citizens and their associations requires development of the scientific concept of legal experiment, with regulation of methods of its conduct, goals and objectives, hypotheses, and forecast of negative effects, which will reduce the risks and threats of premature legislative decisions. Development of this new concept of legal experiment can involve the experience of the Soviet scientists, and the scope of its application can include all post-Soviet countries continuing the process of economic, social, and other reforms. Footnotes 1 SV Motin Use of the Experimental Method in the Social Legal Area: Historical Theoretical Aspects (Candidate thesis Management Academy of the Russian Ministry of Internal Affairs 1999) 30–45. 2 I Ayres, M Abramowicz and Y Listokin ‘Randomizing Law’ (2011) http://digitalcommons.law.yale.edu/fss_papers/3704 (19 October 2016). 3 FP Rumyantsev ‘Experience of Nizhny Novgorod in Reforming of the Agrarian Relations at the Modern Stage of the Land Reform in the Russian Federation’  History of State and Law 1, 21–2. 4 IO Nikitina and AS Khachatryan ‘Issue of Legal Evaluation of Experiment in the Field of Health Care’  Business in Law 6, 191–4. 5 E Pizzulli ‘Foundation on Economic Trends v. Heckler: Genetic Engineering and NEPA’s EIS Requirement’  Pace Environmental Law Review 2, 138. 6 YA Tikhomirov et al. ‘Legal Model and Experiment in the Field of Culture’  Russian Law Journal 10, 25–6. 7 AK Veselov Public Environmental Control in Russia: Legal Regulation and Practice (Guidebook for Public Inspectors) (International Public Organization ‘International Social-and-Ecological Union’ Moscow 2005) 26. 8 VV Kolomytseva Mediation in the Social Legal Mechanism of Settlement of Legal Conflicts (Candidate thesis Tambov State University 2015) 106–42. 9 VN Eltsov Legal Experiment in Modern Russia: Efficiency Issues (Candidate thesis Tambov State University 2009) 19. 10 VY Panchenko and VA Krasnova ‘Legal experiment as the means to avoid legal obstacles in the exercise of rights and legitimate interests’ http://www.eurasialegal.info/index.php?Itemid=42&catid=169:2012-12-18-05-07-48&id=4813:2015-10-16-09-53-29&option=com_content&view=article (19 October 2016). 11 Decision of Moscow City Court of 22 October 2013 in case no. 3-0144/2013 (Legal Reference System ‘Consultant Plus’, access date 8 October 2016). 12 OV Smirnov ‘Social Legal Experiment and Regulation of Social Relations’  Soviet State and Law 11, 22. 13 Legal Experiment and Enhancement of Legislation in VI Nikitinsky and IS Samoshchenkov (eds) (Juridical Literature Moscow 1988) 26. 14 IV Fatyanov Law-Making Experiment in Russia as a Method of Legal Regulation (Candidate thesis Altai State University 2015) 13. 15 Ref., e.g.: OV Smirnov ‘Social Legal Experiment and Regulation of Social Relations’  Soviet State and Law 11, 21–8; Legal Experiment and Enhancement of Legislation in VI Nikitinsky and IS Samoshchenkov (eds) (Juridical Literature Moscow 1988) 59–101; VV Lazarev ‘The Issue of the Concept and Limits of Experiment in the Area of State and Law’  Science of Law 1, 17–23; RA Safarov ‘Social Experiment and Issues of State and Law’  Soviet State and Law 10, 14–22, etc. 16 VN Eltsov Legal Experiment in Modern Russia: Efficiency Issues (Candidate thesis Tambov State University 2009) 5–19. 17 JD Sarnoff ‘The Continuing Imperative (but Only from a National Perspective) for Federal Environmental Protection’  Duke Environ Law Policy Forum 7, 260. 18 VN Eltsov Legal Experiment in Modern Russia: Efficiency Issues (Candidate thesis Tambov State University 2009) 10. 19 Legal Experiment and Enhancement of Legislation in VI Nikitinsky and IS Samoshchenkov (eds) (Juridical Literature Moscow 1988) 59–60. 20 S Mikhaylov Process of Social Study (Politizdat Moscow 1975) 445. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Statute Law Review – Oxford University Press
Published: Feb 10, 2017
Access the full text.
Sign up today, get DeepDyve free for 14 days.