Abstract :
The breakdown of the Soviet Union, the emergence of new independent States,
their constitutional promises and factually rough transition to different economic,
social and political relations, to market economies, the rule of law and democracy,
provoke important practical questions and theoretical debate. They concern the
interrelation between law and social change, the State and the market, private vice
and public benefit. Different schools of thought intervene and confront each
other: adepts of auto-regulatory mechanisms, trust in market forces and shock
therapies versus defenders of institution building, of legal and judicial reforms setting
a strong frame and giving shape to the dynamics of market forces; systematic
codification and guaranteed independence of the judiciary versus paced evolution
of law embedded in specific legal cultures. The paper tries to give answers by advocating
formal institutions and codified law. They are borne by the practical experience
of legal advice which in turn is exposed to methodological problems: Is
law ‘transplantable’? Is it, in other words, unmoveable, solidly entrenched in ethnic
and national mentalities and cultures or is it of a universal character; and if of
the latter, is universalism defined irrespective of history and social structure or
does the force of law – in action and in the books – depend on context? Again
answers are proposed in building on controversial theoretical approaches. They
plead the possibility of an historical and contextual universalism, without alleging
evolutionary supremacy.
