The Absent State: Failures Of The Judicial System, Dependent And Corrupt Courts, Police And Security Services

In this chapter we are addressing the numerous cases of government failures in countries with transit economies and weak democratic traditions when the state is called upon to provide “pure public goods” (defense, security, and justice). In other words, the subject matter of this chapter involves those institutions which create the very possibility of the existence of real, rather than merely nominal, private property. The modern understanding of genuine private property includes the assumption of the inviolability of the person of the property owner. Without this, the difference between private property and medieval “conditional tenure” becomes negligible. The inviolability of the person of the property owner is assured by the state’s supplying three classic “pure public goods”: defense (protection of the property owner from aggression from abroad); security, and justice (protection of the property owner against arbitrary action and coercion within the country). The creation and maintenance of a combat ready military, uncorrupted law enforcement government agencies, and an independent court system subject only to the law, are duties of primary importance when reforms are under way. These “pure public goods” are extremely important for long term economic growth. An independent court presumes the independence of judges, their irremovability, and high costs of their dismissal. Court independence is provided and ensured by laws and traditions, and finds its expression in the fact that the state, as represented by high ranking officials and agencies of the government, can lose in court to a private individual in the course of a litigation of some significance to society as a whole. The availability or absence of independent courts is treated as a logical variable. In Russia, the quality of the court system and the law enforcing agencies of the government continues to remain low, despite an entire series of attempts at reform and disparate achievements here and there. In the early 1990s, reformers’ attention was principally focused on economic transformations: their objective was achieving financial stability and privatization. The absence of financial stability posed the imminent threat of social explosion and economic collapse. Privatization was already outfitted with ready-to-use options for implementation, which had been tested by other post-socialist countries. An understanding of the importance of reforming the court system and law enforcing and judicial government agencies came in the late 1990s. Significant and lasting achievements in the area of creating an atmosphere favorable to the growth of business and the economy turned out to be impossible without such reforms..