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Lecture by Valery Zorkin, Chairman of the Constitutional Court of the Russian Federation

Thursday, May 21

Valeriy Zorkin

Chairman, Constitutional Court of the Russian Federation

Providentia, or on Law of the Future in the Age of Digitalization

Introduction

In his early work De Inventione (usually translated into Russian as On discovering the essence), Cicero says that prudentia (literally, foresight, prudence) is the knowledge of things that are good or bad or neither. It consists of memory, knowledge and providence. This Latin term is etymologically derived from the term providentia, which in turn comes from pro-video (foresight). Accordingly, the well-known term jurisprudence already contains ‘foresight’ in its root, i.e. it tells us about one of the properties of law — its perspectivity (prospectivity).

This property of law is particularly noticeable in the field of constitutional law, unlike, for instance, criminal law with its strong retrospective element (punishment for offences committed in the past). Many Constitutional norms, and first and foremost provisions on the state governed by the rule of law and human rights, are aimed at the future, at the perspective. It is not without reason that these very provisions are concentrated in Chapter 1 and Chapter 2 of the Fundamental Law and they have a special amendment procedure. The principles of the constitutional system and the legal status of man and citizen, being fundamental pillars of the public system of justice, are not subject to modification in the package of constitutional amendments proposed by the President of Russia in his address to the Federal Assembly.

In recent discussions (including on the sidelines of the previous VIII and IX Legal Forums in St. Petersburg), the perspectivity of law was understood mainly as the legislator's response to new phenomena in public life, such as artificial intelligence, Big Data, blockchain technology, changes in the ways of big data transfer and storage, etc. And although the problem of law of the future in its relation to the law of the present is not limited to these issues, I would like to dwell on this very problem, which has recently been unexpectedly prioritized due to the coronavirus pandemic and has gained momentum as part of a wider agenda, which can be defined as ‘Law of the Future.’ I cannot fail to note that the topic of coronavirus is now being discussed primarily in the context of the digital dictatorship, with reference to the testing of this practice in China. There are interesting ideas in our country as well: introduction of digital passes, microchipping, etc. In the context of the coronavirus pandemic, this problem has unexpectedly come to the fore: type in the word ‘microchipping’ and comments on it on the Internet... and immediately you will see ‘Coronavirus is the code name of the microchipping operation...’

First of all, it should be mentioned that jurisprudence, armed with scientific methods of enquiry, explores relevant empirical materials: normative texts, law enforcement practice, current legal policy, and professional and everyday legal consciousness. Using the established facts, lawyers analyze positive and negative trends in legal regulation and its consequences, and thus they have the ability to foresee the future of law. Prognostic conclusions provided by lawyers, for all their scientific credibility, are still very relative in terms of their impact on society's ability to effectively take into account such forecasts to prevent threats to the law as the ‘art of good and just.’ For this reason, a bona fide legal scholar, relying on a combination of scientific knowledge and empirical evidence, is unlikely to take the liberty of playing the role of Cassandra and reasoning about whether the arsenal of a legal family or model — continental or traditional — would be suitable for entering into concession agreements for mining operations on Ross 128b planet that was discovered in 2017. Such reasoning would be unscientific and more suitable for works of science fiction.

In this case, what can jurisprudence provide for understanding the future or at least for attempts to comprehend it? The answer, on the one hand, is simple and even obvious, but, on the other hand, so complicated that they have been trying to deal with it with more or less success since the ancient Roman times, however, it seems that nobody has succeeded in it so far. The task of the law is to create such universal mechanisms, which, firstly, would reflect universal human values; secondly, would offer universal legal ways of solving social conflicts (the main function of the law), independent from purely political or other considerations of expediency; and, finally, moving to another level of generalization, would contribute to the preservation of peace and humanity, i.e. our civilization of law.