Saturday, December 31, 2011

The Rule of Law in Russia and Eastern Europe : Dietrich André Loeber : Andis Kaulins : Kiel : Institut für Ostrecht : Latvian Law Research

In the year 1974, I left my position as an associate with Paul, Weiss in the United States to come to Europe, heeding the call to work together with the late Professor Dietrich André Loeber at the University of Kiel Law School in Germany, where Loeber, later Dean of the Law School, was the Director of what was then called the "Institut für Recht, Politik und Gesellschaft der sozialistischen Staaten" (Institute for the Study of Law, Politics and Society of the Socialist States) , in short, "Institut für Ostrecht" (literally, Institute for "East Law"), which is now the "Institut für Osteuropäisches Recht (Institute of East European Law).

The current Institute is surely a much different institution than it was in my years there (1974-1979), when members and staff included Prof. Dr. Youn-Soo Kim (see also Kim), Dr. Teresa Pusylewitsch, Liselotte Rawengel, and Heike Pagels, all deceased, as also Rainer Wiechert, Dagmar Hederich (geb. Heusinger von Waldegge), and Waltraud Knoche (later Waltraud Wagner), in addition to numerous visiting scholars from America, the Soviet Union and Eastern Europe. Professor Dr. Wolfgang Seiffert succeeded Loeber as Director of the Institute in 1989. Loeber passed away in June of 2004 - see the wonderful biography (in German) by Gert von Pistohlkors of Göttingen - and Seiffert passed away in January of 2009. Loeber and I stayed closely in touch over the years and I attended his 70th birthday celebration in Hamburg in 1994.

Very few persons who knew me in 1974 understood my move to Germany to work at Loeber's Institute, giving up a great potential career at a major law firm and turning down an offer to join a law faculty in the USA. Then, as now, the mainstream legal community in the United States and in Europe has little conception of the importance of the work that was done, two decades prior to - but in clear anticipation of - the coming of a man like Gorbachev. See, in this regard:

Law and the Gorbachev Era: Essays in Honor of Dietrich André Loeber
, edited by Donald D. Barry, published by Dordrecht: Martinus Nijhoff. 1988. xix + 426 pp. inc. index, ISBN 9024736781 and 9789024736782, and reviewed by Bernard Rudden (1990) at the International & Comparative Law Quarterly, 39, p. 500, doi:10.1093/iclqaj/39.2.500.

Loeber's father, "Senators Prof. Dr. Dr. h.c. August Loeber," had been a Justice of the Latvian Supreme Court (Latvian: then Senāts, today Augstākā Tiesa) between the two world wars. Indeed, as I discovered in the course of my research, Augusts Lebers (here with photograph), in terms of the number, extent and importance of judicial opinions issued by the Latvian Supreme Court in that period, was its most productive member.

[In terms of linguistics, by the way, the Latvian root "
sen-" means "long ago, old" so that the Latvian Senāts as a court of course has the same Indo-European root word origin as the legislative United States Senate, as a congregation of wise men, i.e. "council of elders".]

In this connection, among many other things, during my sojourn in Kiel, Dietrich Andre Loeber and I selected and organized important decisions of the Latvian Supreme Court from an enormous corpus of case materials from which the most important decisions were translated into English. Loeber's 1995 publication Latvijas Senats, 1918-1940: Raditaji Latvijas Senata Spriedumu Krajumiem, ISBN 10: 9984908208 and ISBN 13: 9789984908205, was related to this work.

Loeber's father's wife was Emilie Mentzendorff, and Dietrich Andre Loeber was the philanthropist behind the recent restoration of the Mentzendorff House (Latvian: Mencendorfa Nams) in the center of Riga, Latvia, which today is a branch of the Riga Museum of History and Navigation. Below is an embedded panorama:

The Mentzendorff's House in Riga

I first met Loeber when he was a visiting Professor of Law at Stanford University Law School while I was still a law school student. We became friends and kept in close contact. Loeber himself was a consummate expert on Russia, and when he visited me in New York City in 1974 to invite me to work with him in Kiel, he predicted that the then Soviet Union (the Union of Soviet Socialist Republics, also called the USSR) would fall apart within the next 20 years. Had I not believed his prognostication, I would never have left the United States to come to Europe. As it turned out, less than 20 years later, in 1991, the Soviet Union in fact ceased to exist, and the Baltic States regained their independence, just as Loeber had predicted. He viewed this development as inevitable, and, it would appear now, in an era of the global sharing of knowledge and information, as irreversible. The old days could never return. Something new was coming, and had to come.

Loeber spoke fluent Russian, German, Latvian and English, and also had articles published in French and Italian. During the Cold War he visited the Soviet Union as often as he could, but never as much as he would have liked, following his various academic pursuits. As he himself stated about his trips to the USSR: "This is my field. I have to know what I am talking and writing about".

Loeber was a hands-on academic of the old school, the likes of which are probably seldom found at universities today. When Loeber was in Moscow in the Soviet era, he bought and wore Russian clothes, so that he would not stick out from the crowd. He was a good listener and a good observer, and returned from his Eastern sojourns with new academic insights. Whenever he heard thoughts and theories on Russia and Eastern Europe that he found to be removed from reality, Loeber would say something like, "Tjaa.... I was there. I am not sure." Loeber, ever the diplomat, seldom contradicted his colleagues in the field openly, even when he disagreed. This diplomacy and his ability to keep things to himself made him a welcome guest everywhere.

Loeber's main academic treasure was his immense private library on Russian, Soviet, East European and Baltic law. Whenever he found an academic book or other resource that he considered to be important to have, he would buy it or trade for it by offering Western books or other goods that were lacking in the East. Life in Russia and Eastern Europe in those days was very much a give-and-take proposition. As Donald D. Barry writes in the Foreword to Law and the Gorbachev Era: Essays in Honor of Dietrich André Loeber:
"On a visit to his home near Hamburg in 1962 I first got the chance to see and use his personal library -- without a doubt one of the handful of great repositories of materials on Russian and Soviet law outside of the USSR. Loeber always had not only an encyclopedic knowledge of legal sources, both common and scarce, but also the great ability to hunt down and acquire even the rarest of them."
Much of that library found its way to the East after the year 1991, thanks to Loeber's donation of his books and resources. At the same time, Loeber also produced some marvelous books of his own. As Barry writes:
"[H]is early training and interest in international law culminat[ed] in his magisterial East-West Trade".
See Dietrich Andre Loeber, East-West Trade: A Sourcebook on the International Economic Relations of Socialist Countries and Their Legal Aspects, (No. 60, 4 volumes, 2304 pages, Oceana Publications, Dobbs Ferry, 1976-1977. ISBN-13: 9780379004854 ISBN: 0379004852. This book was created and published in the period that I was at the Institute, and I had a great deal of pleasure in those years to help André put together the materials and to edit that book.

What would André (for so Dietrich Andre Loeber was called privately) say about the current Western view of Russia and Eastern Europe? Here is what he wrote in Regional and National Variations: The Baltic Factor (published in Toward the "Rule of Law" in Russia. Political and Legal Reform in the Transition Period, edited by Donald D. Barry, pp. 77-92, revised papers from a conference held at Lehigh University, May 30-June 1, 1991. Published by M.E. Sharpe, 1992. ISBN 1563240653, 9781563240652. 402 pages):
"The concept of pravovoe gosudarstvo [footnote 1: The terms pravovoe gosudarstvo, Rechtsstaat, law-based state, and the literal translation "legal state" are used in this paper synonymously."] is now hailed as progressive and "socialist" in the Soviet Union after having been denounced for almost seven decades as a device of the reactionary classes. A veritable avalanche of journal articles and books has begun to be published on the subject. One aspect in the heated debate has been largely ignored--regional variations. I am not aware of any single Soviet piece of research addressing this issue explicitly. This is surprising since we are justified in expecting such variations. In the West, for instance, we do not have a uniform concept of Rechtsstaat, but witness several types at work, one of them being the rule-of-law concept in common law countries.

In order to detect different concepts of the pravovoe gosudarstvo within the Soviet Union, one would have to scan publications of all regions with potential variations ... at least fifteen legal subsystems could be identified tentatively....

Russia, the Ukraine (including the former area of the Don Cossacks and the North Bukovina, a former Romanian territory), Belorussia (both the Ukraine and Belorussia with former Polish territories);

Estonia and Latvia (which - similar to Finland - lived under a separate legal system until 1917), and Lithuania, now jointly known as Baltic states;

Moldova (including Bessarabia);

Armenia, Azerbaijan and Georgia in the Caucasus;

the five republics in Soviet Central Asia.

... [LawPundit: note that these are the regions between whom the most recent conflicts have arisen]

E. Ridamae, an author in Estonia [writes]:

As regards pravovoe gosudarstvo, we are probably still at the level of pronouncing declarations from high tribunes.... Let us remember how (socialist) legality was devalued: Despite its permanent strengthening and safeguarding, it became a mass (socialist) lawlessness, as it turns out now after the fact (zadnim chislom). We probably do not yet know what a pravovoe gosudarstvo actually means....First we have to find to liquidate collisions between the right of self-determination and superpower interests." [footnote 89, "Glassnost', demokratiia, Sovetskaia vlast', pravovoe gosudarstvo," Sovetskoe pravo (Talinn) 1989 No. 4, 219-222, 222]

This point was missed by John Lloyd, writing in the Financial Times in 1990. For him the "process of the creation of a law-governed state in the Soviet Union is the success story of the five years of President Mikhail Gorbachev. Not just successful: breathtakingly successful." Ridamae, I submit, is closer to reality than John Lloyd. [footnote 90, "Law-Governed State", Financial Times, 12 March 1990, VIII.]
And so, by wisdom of hindsight, Loeber can be seen to have been right again. The rule of law will not come so quickly to the East in spite of democratic claims to the contrary, because it is a concept not seen equally by all nations or in all regions. Only when this is understood and sensibly applied in a nation-state context, can true progress toward the sustained rule of law in Russia and Eastern Europe be made in the long term. It will never be the same as in the West.

Crossposted from The Baltic Coachman.

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