The Emergence and Evolution of the Term "Judicial Management"

Abdulin Robert Semenovich Associate Professor of the Department of Criminal Law and Process at Kurgan State University, resigned judge of the Kurgan Regional Court, Honored Lawyer of the Russian Federation.  640000, Russia, Kurgan region, Kurgan, Pushkin str., 187 abrosem@yandex.ru Other publications by this author

The term "judicial management" or "intra-system judicial management" is widely used in modern Russian legal literature. However, the content of this term is understood ambiguously. Some researchers consider judicial management to be interference in judicial activities and pressure on the independence of judges, while others, on the contrary, an important part of the organization of the administration of justice in terms of ensuring this activity. It was this circumstance that caused the author of the article to address this topic.

I probably won't reveal anything new if I say that the inquisitive mind of such scientists in pre–revolutionary Russia as A.D. Gradovsky, V.F. Deryuzhinsky, D.V. Dovnar-Zapolsky, V.V. Ivanovsky, F.F. Kokoshkin, A.V. Gorbunov and others, who turned their attention to judicial management as an independent branch of public administration, allowed We need to learn much more about the initial stages of the constitution of judicial management in an organizational sense. They have left us a legacy of fundamental works, which, despite the various vectors of development of our state, still do not lose their scientific value^[1].

Scientists of the Soviet period were also in constant search and movement towards understanding the phenomenon of judicial management. Among the many scientific works and theories exploring the legal nature and essence of this type of state activity, identifying the main features that individualize it and allow you to get a holistic view of this phenomenon, the works of S.A. Musina, N.V. Blinova, L.P. Makovskaya, L.V. Filatova, L.S. Simkin, A. are of particular interest.I. Kazakova, V.P. Kashepova, I.I. Oleinik, N.N. Efremova, etc.

In modern doctrine, many works are devoted to the problems of the legal and organizational foundations of the implementation of judicial power. In these scientific works, considerable attention is paid to the organization of judicial activity in the modern period, theoretical and legal aspects of improving the functions of the judiciary, but only casually highlights some issues of organizational support for the judicial system and practically does not consider the activities of the system of internal governing bodies. Nevertheless, there are researchers who continue the best traditions of scientists of the pre-revolutionary and Soviet periods in the in-depth study of the activities of modern judicial management bodies. In particular, among the most recent such works is the work of E.I. Alekseevskaya, dedicated to the modern concept of judicial management and its principles^[2].

So, before proceeding to my own vision of the emergence and evolutionary development of the concept of "judicial management", I will give the following quote from the work of V.M. Syrykh "History and methodology of legal science". In it, he writes that "theoretical knowledge, no matter how far it departs from empirical knowledge, can act as scientific knowledge only if it correctly reflects the immediate reality"^[3]. Thus, based on the words of V.M. Syrykh, first of all, it is necessary to understand the meaning of the term "judicial management", which is just a reflection of the evolutionary development of this institution, the semantic core of the legal language, conveying the main substantive information of this concept.

 The study of the theory of judicial management in the pre-revolutionary period testifies to the serious controversy of their terminological designation. Nevertheless, by the end of the XIX century, an understanding of this phenomenon appeared, the originality of its subject and methods of judicial management, which give reason to state the existence of an independent complex branch of public administration. Moreover, the "polyphony of terms" ended at the same time, since the term "judicial management" was firmly established in the terminological system of such management at this stage of the development of the state^[4]. This term was not abandoned during the Soviet period, but nevertheless the terms "organizational management of courts" and, a little later, "organizational support for the activities of courts" became predominant in the legal language of Soviet lawyers. Meanwhile, despite the emergence of new terms, the term "judicial management", especially in scientific research, continued to be used.  It should be noted that the above-mentioned terms, as well as such terms of the Soviet period as "management in the field of justice", "judicial (administrative) management", "administrative and judicial activities", "state administration of courts" did not fully fit the term "judicial management". This was explained by the fact that during the Soviet period, that is, until 1991, the management and organizational management of the judicial system was carried out by the Communist Party and the judicial authorities. Moreover, even after the termination of the activities of the CPSU, in modern Russia, up to 1998, the organizational support of the courts continued to be provided by the judicial authorities. It follows from the above that in addition to the term "judicial management" in the terminology system of the Soviet period, for the above reasons, there were a large number of terms in scientific and practical meaning, which allows us to judge the phenomenon of polysemy, which in science is understood as ambiguity. Of course, in such an excessively large number of synonymous terms, its semantic connotation was constantly lost, which could only be understood in context.  These terms were constantly interpreted and adapted to political events, changes in legislation on the judicial system, which, in turn, was complicated by the lack of specificity and ambiguity of their definitions.

The beginning of the formation of the terminological system of modern judicial management was the adoption on October 24, 1991 of the Concept of Judicial Reform in the Russian Federation, which approved a completely new vision of the judiciary in Russia, but also set the task of ensuring real guarantees of independence and independence of the judicial community. One of the main directions of this concept document was the creation of a judicial corporation integrated into all parts of the judicial system and influencing not only the resolution of internal issues, but also the establishment of the authority of the judiciary in the public sphere. With the creation of the bodies of the judicial community, they were delegated the solution of the largest number of state-governmental functions: the acquisition, suspension and termination of judicial status, assignment of qualification classes, issues of encouraging or bringing judges to disciplinary responsibility, as well as solving a number of other organizational issues that in the Soviet period were the prerogative of executive authorities. At the same time, the formation of the terminology system of modern judicial management took place at this stage. For example, V.E. Chirkin introduced the term "judicial self–government" into scientific use in the early 2000s^[5]. Eight years later, I.B. Mikhailovskaya introduced the term "intra-system management" into scientific use^[6], which already reflects to some extent the independence and independence of the judicial system, since by that time the bodies of the judicial community and the Judicial Department under the Supreme Court of the Russian Federation were already fully functioning. The author of the article, sharing the position of I.B. Mikhailovskaya, in his works proposed to introduce into scientific circulation a somewhat expanded term - "intra-system judicial management". In the author's opinion, the introduction of the concept of "judicial" into this term indicates the subject area of its application. 

The terminology system of judicial management has also been developed in dissertation research. For example, A.A. Gerasimova, in her work on the functions of the judiciary in the mechanism of the modern Russian state, proposed to supplement the term system of judicial management with new terms "intra-system activity of the judiciary" and "the function of intra-system management of the judiciary"^[7]. Meanwhile, both terms proposed by A.A. Gerasimova do not have any fundamental difference. For the sake of argument, let us turn to the term "the function of the intra-system management of the judiciary." In a practical sense, this means the activity of a judicial corporation, which, through the bodies of the judicial community and the bodies of organizational support for judicial activities, implements the needs of the judicial system. Thus, the concept of "function" is the same as "activity", which means there is no difference between the proposed terms.

Of course, the dynamic development of the judicial system and its capabilities in its own management may well entail updating and replenishing the terminology system of judicial management and other terms. However, this process seems to be very difficult, since at present the term "judicial management", which belongs to a special sphere of use and is the name of a special concept, according to the author of the article, is extremely accurate and unambiguous. In this regard, D.S. Lotte wrote that "any term, as opposed to an ordinary word (or phrase), should have a limited, firmly fixed content. This content should belong to the term regardless of the context, while the meaning of an ordinary word is clarified only in a certain context in combination with other words"^[8].  It follows that concentrated information about the essential and distinctive features and properties of judicial management should be recorded in the definition.

In the author's edition, the definition of judicial management is as follows. Judicial management is a special type of public administration delegated to the bodies of the judicial community, which contain the principles, functions and methods of managerial influence established by law to ensure the functioning and organization of judicial activities.

Meanwhile, E.I. Alekseevskaya in the article "The modern concept of judicial management and its principles" proposed a slightly different vision of the definition of such management. In the author's opinion, this is the state activity of judicial bodies to ensure the activities of courts and judges for the administration of justice and the implementation of programs for the development of the judicial system of the Russian Federation, as well as material and social security of judges^[9]. However, such a construction of the definition of judicial management, proposed by E.I. Alekseevskaya, raises many questions. Firstly, the concept of "judicial authorities" used in the definition does not seem to be entirely correct, since judicial authorities are empowered only to administer justice. At the same time, the level of each judicial body implies the existence of a strictly defined competence of a particular court and a normatively defined procedure for its interaction with other judicial bodies that do not provide management functions. Secondly, as already mentioned above, a definition is a brief definition of a concept that reflects the essential, qualitative features of an object or phenomenon. Therefore, the inclusion in the definition of such an object of judicial management as "the implementation of programs for the development of the judicial system", and even more so by judicial bodies that are empowered only to administer justice, looks like a somewhat artificial extension of the definition and does not allow reflecting the qualitative signs of this phenomenon.

The question of the principles of judicial management, cited by E.I. Alekseevskaya in the above-mentioned article, is also quite controversial. For example, one of such principles, according to E., I. Alekseevskaya, should be the principle of accountability of judicial authorities. Without a doubt, this is a necessary and important principle for the judicial community in its relations with internal management bodies, but in the interpretation of E.I. Alekseevskaya it sounds unusual. She understands accountability as the motivation of management decisions to society and the individual (as well as to organizations). Further, E.I. Alekseevskaya suggests publishing projects and plans of judicial management in the media, as well as reporting on their implementation. In addition, judicial authorities should be responsible for the decisions taken and the disclosure of this information on the official websites of courts and judicial authorities. At the same time, it is appropriate to note that the list of judicial management bodies has not been disclosed in the article by E.I. Alekseevskaya. One can only guess that they mean the bodies of the judicial community. But if so, then the author should still have looked at article 5 of Federal Law No. 30-FZ dated 03/14/2002 "On the bodies of the Judicial Community in the Russian Federation", according to which the councils of judges, qualification boards of judges, the Higher Examination Commission for the admission of a qualification exam for the position of judge and the examination commissions of the subjects of the Russian Federation for the admission of a qualification exam Judges are appointed on the principles of electability, turnover and accountability to the bodies that elected them. The qualification boards of judges and examination commissions are not accountable to the bodies that elected them for the decisions taken. Thus, the law clearly outlined the scope of accountability of the internal judicial management bodies and the addition of this principle to accountability to society, man and even to unclear organizations is only an abstract idea.

Such principles of judicial management as reliability, adequacy of judicial management, the rule of law, as well as the independence of judicial management and the unity of the judicial system, referred by E.I. Alekseevskaya no longer to the basic, but specific principles of judicial management, also raise questions in the article. Meanwhile, such a "pile-up" of the principles of judicial management leads, firstly, to their unjustified quantitative expansion and, secondly, to the confusion of the principles of judicial management with the principles governing the activities of the judiciary.

As for the principles of judicial management in general, they are formulated in article 5 of the Federal Law "On Bodies of the Judicial Community in the Russian Federation".  They are mandatory for any body with powers in the field of judicial management. For example, such bodies include, in addition to the bodies of the judicial community, the Plenum of the Supreme Court of the Russian Federation, the presidium of courts at all levels in solving organizational issues, as well as the activities of heads of judicial bodies at all levels in making managerial decisions.

In conclusion, let us turn to the opinion of V.P. Kashepov, who studied the problems of judicial management back in the Soviet period. Considering them already in modern realities, the scientist comes to the conclusion that management in the judicial system can be external and internal. And in this classification, in the scientist's opinion, external management is primarily the activity of the state, which adopts legislative acts on the organization of judicial activity^[10]. As for internal management, in order to ensure the independence and independence of the judiciary, the state gradually formed public legal entities (bodies of the judicial community) within the judicial system, to which, as V.E. Chirkin writes, state power was delegated and now they are the source of their own power in the internal management.

 Thus, the concept of a gradual transition to independent internal judicial management, adopted in the 1990s, has now been successfully implemented.

You can simply select and copy link from below text field.