Morality and legality counteraction
On February 3, a recent US Supreme Court judgment concerning warrantless detainment was studied at the HSE case club.
Let's start with the background of the HSE case club. It was established by four students of the Law Faculty to observe US Supreme Court judgments. The idea was supported by the HSE Department of Constitutional and Municipal Law. Initially, the club consisted only of the four founders. This year more second-year undergraduate students from the Faculty of Law have attended discussions. Also some students from other faculties, such as the Public Administration and the Faculty of Economics have participated in the club sessions.
Anton Yeropkin, a HSE Faculty of Law post-graduate student and the case club chairman, says that other faculties' main contribution is their comprehensive view of the problems. "All students must be skillful in defending their position with logical argument. Newcomers bring a fresh insight into the essence of the problem. For example, during the last session one student from the Faculty of Economics came out with an economic model of the precedent and his decision was based on this model. The lawyers were greatly surprised by his final ruling", Yeropkin emphasizes.
Each case is studied through variety of aspects. This ability of club members is developed by the procedure. Members are divided into two groups: "for claimant" and "for defendant". Argument is the lawyer's most important skill. It is possible here to relinquish the role and discuss the final ruling not as a club member but as an ordinary citizen. Of course, this is not the case at the real Court.
So on February 3, the second of this year's sessions of the club was held. The US Supreme Court's final ruling concerning warrantless arrest was under discussion.
The case of HERRING v., UNITED STATES was studied. On January 14, 2009 the US Supreme Court, by a majority of one, made its final decision. The tangibility of the proofs that are gathered without ad hoc legal procedure (the IV Amendment to the US Constitution) was the focus. This concerned the legality of detention by an expired warrant if more tangible evidence against the detainee was found thank to the detention.
It appeared that breaking the procedure doesn't automatically make evidence invalid. The US Supreme Court come out with the very tricky theory that only a policemen's intended violation of procedure could make evidence invalid. But technicalities or negligence don't make evidence invalid. Otherwise, lawbreakers could avoid punishment in every case of insignificant faultminor infractions by the police. This dilemma is depicted in the movie "The Star Chamber". The Judge gets tormented morally when, according to the IV Amendment, he had to prevent the prosecution.
Arguments from each side led to a heated discussion concerning the government's vision of individual rights and liberties. The club members came to the following conclusion; taking into consideration the US Supreme Court's judgment on the validity of clues, it could be said that the US government considers public safety to be more important than human rights.
This time Sergey Pashin, former Federal Judge, Professor at the HSE Department of Judicial Power and Justice Administration, and initiator of the students` academic group in criminal law, attended the club. He analyzed the case through Russian and world judicial practice. When commenting on the precedent under discussion he especially emphasized that the US Supreme Court position had changed after "the events of September 11". S. Pashin said that each time the judgment may be proceeded from a position of both objective and subjective validity. In this case it means presumption of confidence in the police as the source of public safety or recognition of each policeman's subjective motivation. In addition to this, Russian courts rarely exclude evidence gathered with ad hoc procedure violation. First of all, they aim to expose and punish the guilty.
The topic of each case subjective consideration through its unique context aroused the discussion about law and morality, and moral grounds of the law.
Here, opinions differed. For example, Ekaterina Zamolaeva, HSE Deparment of Constitutional and Administrative Law Assistant Professor, defended the universal moral values that are the basis for law. These values are more or less shared by people of all views and religions. It is a question of being human. In the Christian tradition they are reflected by the Ten Commandments. To support this position S. Pashin quoted Patriarch Alexey II: "Love is the only thing to be above Law. Mercy is the only thing to be above Legislation. Forgiveness is the only thing to be above Justice".
But A.Yeropkin assumed that law can not be identified with morality since they have a different nature. Law is equal measurement for different people. It originates from equality in freedom but not from formal equality. Morality, however, is centered around the human being and so all judgments are drowning in relativity. If law is liberty, moral values restrain people, taking them into a "moral grip". Other participants also had different opinions on the moral foundations of law, speaking for and against a universal moral system.
In the end of the meeting A. Yeropkin said that club session aimed to reveal that there may have been alternative approaches to even the most trivial cases and usually no definite answer can be found. The next meeting will be held in February or March.
Marina Ivanova, the HSE news service.
Informal alliances between prosecutors and judges contribute to the repressive sentencing that is characteristic of Russia's criminal justice. The underlying factor is that the prosecutor's career depends on his or her conviction rate, while the judge usually seeks to avoid appeals, according to Alexander Libman, André Schulz, and Vladimir Kozlov.
On January 20, the case of the schoolboy from Alaska was studied carefully at the HSE Faculty of Law students’ case club. It seems that Frederick’s freedom of speech had been violated. Without that important social topic the case might have been treated as insignificant.