Russia: The Rule of Law in Question Freshman seminar



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Russia: The Rule of Law in Question

Freshman seminar

Spring 2015

Professor Jane Burbank


In popular imagination, Russian law is an oxymoron, a view promoted by western and Russian commentators who regard corruption, criminality, and lawlessness as endemic to Russian life. But in the Russian Federation, law is at work: the legal profession is burgeoning and case loads of Russian courts have grown yearly since the early 1990s. Lawmaking is a function of the government: laws are voted on, issued, and published. Laws are the subject of discussion in the press and other media. In this course we will explore the curious gap between the widespread notion of Russia's lawlessness and the reality of law's abiding presence in Russian life. Our goals are to understand of how Russian law has functioned in both the distant past and recent times and to attain a more global perspective on the idea of "rule of law."
This course will be conducted as a seminar. Classes will be discussions based primarily on readings in the history and practices of Russian law. Students will write three papers: an analysis of a Russian law, a book review, and a research paper based on one Russian law or legal issue. Students will have wide latitude in picking a workable topic in consultation with the instructor. In conjunction with the class and its interests, students will put together relevant readings and identify original sources for their topics. Classes and required readings will be in English, but students are encouraged to use Russian or other languages relevant to the topic of their inquiries.
Our collective discussions will focus on the following kinds of materials: scholarly works on Russian law from medieval times until the present, individual laws in translation, fictional works with legal components, discussions about Russian law in social media, and theoretical works on rule of law.

This proposal makes a case for a focus group on Russian legal culture, historical and contemporary, at the Wissenschaftskolleg. My assumptions are first, that accurate and attentive representation of Russia's legal culture in the past and present can uncover and clarify practices and attitudes about law shared by ruling elites and citizens; second, that this exploration can engage with and explain the tension between Russian citizens' ordinary engagements with the extant legal system and their belief that "real law" does not exist in Russia; and third, that knowledge of Russia's ways of ruling through law has implications for the ongoing transformation of state power in the polity and elsewhere in former Soviet space.


The problem:

Law has been a central element in governance and a component of social life throughout the history of the Russian state. Nancy Kollmann's pioneering works have shown that the ruler's defense of subjects' honor was a key element of administration in the Grand Princedom of Muscovy and that central and local authorities sustained a robust system of criminal justice well into the eighteenth century.1 In the nineteenth century, Russian reformers launched a series of major legal reforms, producing codifications, modifying judicial instances, introducing a professional bar. Research on lower level courts has uncovered extensive and voluntary legal activism on the part of subjects, in both central and distant areas of the Russian empire. My monograph on Russia's township courts in the early twentieth century revealed that peasants resorted to these lower level instances in huge numbers to resolve minor civil disputes and punish misdemeanors.2 Studies of Soviet law by political scientists and legal scholars attest to the significance of the judicial system for both repression and reform.3 Since 1991, scholars have analyzed extensively the ramifications of post-Soviet politics upon legal process and judicial outcomes in cities and regions across the Russian Federation.4 These investigations, framed in unlike ways and reliant on plentiful sources, collectively testify to the force of law in the lives of Russia's subjects and citizens over centuries.


The evidence that law has been and is at work in Russian society is, however, largely ignored in most discussions, scholarly or journalistic, of Russian politics and society. Convention holds that Russian law is overwhelmed by corruption, that legal reforms have "failed," and that Russia is not a "rule of law" state. This negative framing of legal developments in Russia is consistent with the general tendency in western scholarship and journalism to see Russia – in imperial, Soviet, and post-Soviet variants – as an inferior but threatening, or, in milder variants, exotic and backward, and in any case "other" kind of society that does not live up to European standards, imagined or real. Even masterful histories of Russia's legal reforms in the nineteenth century suffer from the relentless application of a Eurocentric teleology to their material. The extensive judicial reforms of the 1860s are depicted as fatally undermined by the tsarist state's antipathy to law, an attitude that put the empire on the road to revolution and to further setbacks to the prospects for legal rule.5 A similar insistence on Russia's failure to achieve western legal norms imbues discussions of Russian reforms since 1991. "Russia is still not a 'rule-of-law country," writes a prominent American legal scholar, in his survey of two decades of reform.6
The powerful discourse of "no rule of law" in Russia is not a western invention. Since the first third of the nineteenth century, Russian intellectuals have castigated their rulers for arbitrary, personal, and unjust rule. Critics of the autocracy set their sights on improvements defined by what seemed to them to be the superior economic, political, and cultural achievements of the then hegemonic western European empires. The "west" and "Europe" were code words for progressive thinking in imperial Russia, although each intellectual could have his or her own positive and negative "European" traits in mind. Over the course of the century Russian liberals and others produced multiple interpretations and proposals concerning law, oriented both for and against European theories,7 while inside the state administration, reformers familiar with European institutions chose selectively as they revised Russian codes and created new instances and procedures.
Three characteristics of the legal culture of Russian elites nurtured the sentiment of Russia's lawlessness. First, many reformers thought of a law-based state as an endpoint, not a reality; Russia was not able to live up to their goals of democracy and civil rights, hence its government was not lawful. Second, commentators were remarkably indifferent to the functioning of the law – to robust usage of the courts and especially to extensive popular engagement with the legal system.8 Third, the discourse of complaint and corruption reached receptive foreign ears.9
These habits of mind have survived two revolutions. "Mafia" and "corruption" are commonplace themes of TV series, films, adventure literature, and daily conversation. No less a personality than Dmitry Medvedev, a graduate of the law faculty of St. Petersburg University, complained that "Russia is a country of 'legal nihilism'" during his campaign for the presidency in 2008.10 In a recent issue of the Russian journal, Notes of the Fatherland, Russian political scientists, sociologists, economists, and historians dissect, describe and theorize corruption in business, government, courts, police, border zones, and institutes of higher education.
But let us listen to one contributor to this forum: "Regardless of the actual state of affairs, such strong discursive stigmatization of the country leads to additional negative consequences both for private business and for the state as a whole."11 In other words, the image of Russia's lawlessness is part of the problem. Can we, in the twenty-first century, begin our inquiries from a different perspective – one that takes the discourse of legal nihilism as a significant ethnographic fact, but is open to systematic and open-minded study of the way the legal system works?
The project:

The proposed focus group at the Wissenschaftkolleg will explore what law is in Russia, rather than what it is not. The group will examine Russian legal practice and legal discourse over the past two centuries, identifying and analyzing salient characteristics of Russian legal rule from imperial times through the present. The emphasis of our research will be on the law in action in the everyday – in the legal regulation and judicial processing of civil contention and small-scale crime. Researchers will use both ethnographic and archival sources to access a wide range of social and ethnic groups and an array of institutions; we will focus on middle-level officialdom and the thickest and lowest layers of legal process.


This project is interdisciplinary; it requires collaboration among historians, sociologists, anthropologists, and political theorists, as well as legal scholars and possibly literary or other cultural specialists. This crossing of disciplines, an approach practiced extensively in Russian studies in the west, will help us accomplish two goals – the tracing of long-term patterns of legal activity in Russia and the juxtaposition of practice with discourse in multiple regions and among different ethnic and confessional groups.
Within the field of legal studies, this is a project in the sociology of law. The key concepts that inform the proposal are "context," "action," and "the everyday," suggesting our emphasis on the distinctive qualities of legal systems, on the study of law as enacted processes of social regulation, and on ordinary, rather than spectacular, legal phenomena. The sociological approach has been the hallmark of legal studies in some western universities and institutes, but it is relatively rare in Russia. The focus group can promote a merger between the statistically rich work emerging from Russian centers such as Institute on Problems of the Application of Law at the European University in St. Petersburg with interpretative strategies proposed by scholars engaged in the analysis of law in daily life.
Interrogation of the disjuncture between representations and enactments of Russian law is at the heart of this project. A critical perspective on the rule of law is hardly unique to Russia; people in other settings articulate sharp criticisms of "the law" while making use of courts and legal procedures to pursue their interests.12 A particularity of the Russian case is the external standard by which legality is measured; "rule of law" for many Russian commentators has nothing to do with ongoing life at home, but exists in an imagined space (Europe, the west, etc.) where things are done differently and better. Rather than simply setting discourse against practice, researchers in our project will explore the conditions that foster both legal nihilism and legal imagination in Russia.13
Complicating the apparent dichotomy between discourse and practice is the documented existence of multiple perspectives on the law in Russia. The dominant narrative on Russian law concerns dysfunction, a perspective that is magnified by attention in both scholarship and journalism to highly politicized trials and corruption scandals. But ethnographic research on ordinary people and ordinary legal process reveals divergences in opinion about the courts, the legal system, and social norms. Kathryn Hendley's work on legal nihilism shows, for example, a wide range of attitudes toward the law.14 Rather than relying on a purportedly collective "Russian" opinion, this project takes up the challenge of engaging and explaining divergences and differences in views of law. Our analysis will include individualized, against-the-grain opinions as well as conventional ones. The diversity of views and aspirations, while largely unexplored, suggests that fundamental questions about the course and nature of legal rule in Russia are open ones.

The proposed collective project has an expansive chronological and spacial framework. The time-line of analysis must be long and the regional area wide in order to accommodate and highlight the multiple transformations of Russian law over centuries and the differentiated, pluralistic qualities of the judicial system. Taking a long-term perspective allows the identification of lasting assumptions about law in Russia that inform institutional structures and administrative habits even across periods thought to be revolutionary. The Eurasian political geography of Russia's state formation is critical to understanding the "mixed" qualities of a succession of legal orders and to enabling an escape from the rigid and conventional "Russia and the West" paradigm. The state took shape before Europe became a dominant reference. Rulers of the emerging Russian polity drew upon and transformed Mongol, Byzantine, and Slavic administrative practices and legal strategies. One result was a fluid and pragmatic recognition of multiple social collectives in imperial law.15 Once the empire was established, Russia had to contend with rival powers on all sides; imperial competition inspired further adjustments to the laws of others.


Russia's long history of absorption and re-interpretation of competitors' strategies produced particular, shifting, and often baffling variants of legal rule. Efforts to interpret the trajectory of Russian law connect this project to more general and theoretical questions about rule of law. A starting point for our research is the recognition that the Russian legal system has many points in common with other traditions, but operates with structures and assumptions unlike our own. Expectations of law-users in Russia, even among those committed to western-style "rule-of-law," about how law functions and should function are not identical to assumptions held by Europeans and Americans. The separation of powers and the ideas of universal and equal rights are used as definitions in rule-of-law debates, but there are many states where sovereignty rests on different, yet legal foundations. The dual challenge of this project is to bring fundamental qualities of Russian law to light and to open the category of "rule of law" toward a more pluralistic vision of legal systems in the world.
Participants:

The focus group would be led by two or three year-long fellows, specialists in legal history and sociology of law, who, along with other short or long term visitors, would form an international research and study collective. All phases of the project should be inter-disciplinary, including specialists in history, law, sociology, anthropology, and political science. The participation of specialists on regions with Muslim and other confessionally distinct populations will enable consideration of the ways in which Russian law has addressed the religious, ethnic, and regional diversity of the population.

Both the history of Russian law and the study of law in Russia today are dynamic areas of inquiry (see the bibliography for a selective sample of published work). I suggest Kathryn Hendley, an expert on the everyday life of law in Russia, as a team leader whose area of expertise is complementary to mine. A third year-long fellow might be a scholar from the Russian Federation. I append a short list of scholars whose research and intellectual qualities might make them ideal candidates for stays or visits to the Wissenschaftskolleg, in addition to a longer list of individuals who could be invited to participate in workshops or conferences. This list provides a glimpse of ongoing work rather than signaling a definitive choice of participants. It identifies scholars affiliated with a variety of institutions (universities, research centers, law schools, courts) in Europe, Russia, and North America. I welcome suggestions for all aspects of the project. Ideally, participants would include senior and junior academics as well as scholars and practitioners from the Russian Federation.
Workshops:

To provide a sense of how this project might be structured, I offer the following outline of three workshops, each focused on a major theme. Every workshop includes topics from more than one century; this design provokes analysis of long-term developments and continuities. I have not shared this plan with other scholars; I include it here to make more tangible the approaches and the available expertise that inform the proposal. It would be desirable to include specialists on other world areas in each workshop; these scholars could be annual fellows or visitors. With the goal of bringing Russia to many tables of scholarly conversation, I would welcome the participation of non-specialists in these workshop, as well as the possibility to discuss the project on a regular basis with year-long fellows who work in other areas and disciplines.


Workshop 1: Everyday Law in Russia: 19th to 21st centuries

We would begin our series of workshops with a focus on law in action in ordinary settings, in imperial, Soviet and post-Soviet times. The workshop will consider the uses of courts by peasants (more than 80% of the population before 1917) and other groups, the provision of lower-level instances by Russian regimes, and questions about how, why, and when subjects went to court in different areas and times. This workshop will address the imperial dimensions of Russian law through studies of the legal status and opportunities of non-Russians and non-Orthodox populations. We will discuss questions of access to the law (to courts and to officials) and the experiences of law-users. The workshop will identify salient qualities of legal procedure, explore popular legal imaginaries, and trace the evolution of court practices from the 19th century to the present.


Possible contributors and their topics of research:

Jane Burbank (New York University): Township courts of Imperial Russia

Stefan Kirmse (Humboldt University): Tatars at imperial courts

Vladimir Bobrovnikov (Russian Academy of Science, Ethnography, Moscow): Law in the Russian Caucasus: 18th to 21st centuries

Aaron Retish (Wayne State University): Soviet Peasants and the People's Courts, 1920s

Alexandre Sumpf (University of Strasbourg): War Invalids and Soviet Law

Yoram Gorlizki (University of Manchester): Soviet Comrades' Courts

Kathryn Hendley (University of Wisconsin): Ethnographies of legal access in Soviet and post-Soviet times

Cathy Frierson (University of New Hampshire): Russian law on reparations to victims of repression (1990s to the present)
Workshop 2: The Middle Level of the Law – Lawyers, Officials, Publicists, Judges

A second focus of the project is on the intermediaries of the legal system. The workshop will call attention to the critical role of officials, publicists, and lawyers in shaping the process and image of the law in action. How law is made and how it is carried out depends in large part upon professionals and officials, even in autocratic and communist conditions. This panel will explore the efforts of intellectuals to promote a shared understanding of the law among populations with unlike legal opportunities and status in the pluralistic empire. We will explore the intersections between Russian legal practitioners and international experts in imperial, Soviet and post-Soviet times.


Possible contributors and their topics of research:

Ekaterina Pravilova (Princeton University): Concepts of property rights in imperial Russia

Robert Crews (Stanford University): The legal management of Muslim subjects

Michel Tissier (University of Rennes): Legal pedagogy in the late 19th and early 20th century

Tatiana Borisova (Higher School of Economics, St-Petersburg): Codification debates, 1905-1917

Francine Hirsch (University of Wisconsin): Soviet lawyers at Nuremberg

Marina Kurkchiyan (Oxford University): Institutional transplants in post-Soviet Russia

Vadim Volkov (European University, St. Petersburg): Judges in the Russian Federation

Alexei Trochev (Nazarbaev University, Kazakhstan): The Constitutional Court of the Russian Federation
Workshop 3: Trajectories of Law and Sovereignty

The final workshop will build upon the earlier ones to identify long-term tendencies in Russian legal culture. Shifts and continuities in criminal justice reveal underlying assumptions about the legitimate exercise of power by the state. Research on the attitudes of citizens in the Russian Federation displays both their capacity for reflection on the legal condition of the country and the widespread assumption that the law is not theirs to make or change. The discussion will address the international context of shifts in Russian law, stressing the capacity of Russian leaders to absorb and transform outsiders' practices. While avoiding a normative approach, participants are encouraged to clarify the constraints and possibilities of Russian law in the social revolution ongoing since the 1980s.


Possible contributors and their topics of research:

Nancy Kollmann (Stanford University): Criminal procedure, 17th and 18th centuries

Jane Burbank (New York University): The imperial rights regime

Anastasia Tumanova (Higher School of Economics, Moscow): Human rights in Russian legal thought and law

Benjamin Beurle (Humboldt University): The "West" in Russian legal reforms

Peter Solomon (University of Toronto): Criminal law in Stalin's time and today

Jeffrey Kahn (Southern Methodist University): Russia and the European Court of Human Rights

Ekaterina Mishina (Higher School of Economics, Moscow): Transformations of Russian judicial institutions

Kim Lane Scheppele (Princeton University): Constitutions in international context

Kathryn Hendley (University of Wisconsin): Rule of law: prospects and constraints


The ultimate product of the project would be a volume that makes a strong intervention into "rule of law" theory based on exploration of Russia's legal regimes.
The project aims to reach beyond its Russian focus by bringing Russian specialists into conversation with legal scholars who work on more mainstream areas. The Wissenschaftskolleg would be an ideal environment for scholars who work on Russia law to take the next steps toward breaking through the barrier of pervasive yet unexamined assumptions about Russia's legal heritage and practices. The interactions of the working group with other fellows would allow the group's proposals and endeavors to enter scholarly and public view in a creative and interactive way. Collaboration and critical interchange based on contextually attentive research should produce new synthetic understandings, more inclusive theoretical approaches, and a useful and convincing analytic vocabulary. Can we confront and intertwine two challenges: understanding practices of legal rule in Russia and producing a more inclusionary concept of rule of law?

Notes:



1 Nancy Shields Kollmann, By Honor Bound: State and Society in Early Modern Russia (Ithaca: Cornell University Press, 1999) and Crime and Punishment in Early Modern Russia (Cambridge: Cambridge University Press, 2012).

2 Jane Burbank, Russian Peasants Go to Court: Legal Culture in the Countryside (Bloomington: Indiana University Press, 2004). On a non-Russian ethnic group, see Stefan B. Kirmse, "Dealing with Crime in Late Tsarist Russia: Muslim Tatars and the Imperial Legal System," pp. 209-241 in Stefan B. Kirmse, ed., One Law for All? Western Models and Local Practices in (Post-) Imperial Contexts (Frankfurt: Campus, 2012).

3 For law in Stalin's time, see Peter H. Solomon, Jr., Soviet Criminal Justice under Stalin (Cambridge: Cambridge University Press, 1996). There is a huge literature on law in the late Soviet period; see, for examples that focus on legal process, Robert Rand, Comrade Lawyer: Inside Soviet Justice in an Era of Reform (Boulder: Westview Press, 1991); Kathryn Hendley, Trying to Make Law Matter: Legal Reform and Soviet Labor Law in the Soviet Union (Ann Arbor: University of Michigan Press, 1996).

4 For examples from a large and international literature, see Gordon B. Smith, Reforming the Russian Legal System (Cambridge: Cambridge University Press, 1996); Denis J. Galligan and Marina Kurkchiyan, eds., Law and Informal Practices: The Post-Communist Experience (Oxford: Oxford University Press, 2003); Alexei Trochev, Judging Russia: The Role of the Constitutional Court in Russian Politics, 1990-2006 (Cambridge: Cambridge University Press, 2008).

5 See the conclusion to Richard Wortman, The Development of a Russian Legal Consciousness (Chicago: University of Chicago Press, 1976), 268-289 and Jörg Baberowski, Autokratie und Justiz: Zum Verhältnis von Rechsstaatlichkeit und Rückständigkeit im ausgehenden Zarenreich 1864-1917 (Frankfurt am Main, 1996), 206-234, 767-780.

6 William Pomeranz, “Twenty Years of Russian Legal Reform,” Demokratizatsiya 20, no. 2 (Spring 2012), 141.

7 See Andrzej Walicki, Legal Philosophies of Russian Liberalism (Oxford: Clarendon Press, 1987).

8 On the legal culture of Russia's jurists, see Michel Tissier, "Malaise dans la culture juridique libérale en Russie après 1905: 'pédagogie des libertés' et éducation au droit," Cahiers du Monde russe, 48: no. 2-3 (2007): 185-208.

9 The best known English-language work on Russia's legal system in the late imperial period was George Kennan's Siberia and the Exile System, published in New York in 1891 by Century Company. Jonathan Daly has published revealing comparisons of the use of exile and capital punishment in European empires in the nineteenth century; see his articles: “Criminal Punishments and Europeanization in Late Imperial Russia,” Jahrbücher für Geschichte Osteuropas 47 (2000): 341-62 and "Political Crime in Late Imperial Russia," Journal of Modern History 74 (March 2002): 62-100.

10 Cited in Kathryn Hendley, "Who are the Legal Nihilists in Russia," Post-Soviet Affairs 28, no. 2 (2012): 149-186.

11 Otechestvennye zapiski, no. 2, 2012; http://www.strana-oz.ru/2012/2. This periodical began publication over a decade ago, reviving the name and tradition of the great eponymous pre-revolutionary journal. The cited text is from Dmitry Rogozin, "Bibliographical Overview of Publications on Corruption," as summarized and translated by Sergei Oushakine in "harriman-news Summary: Otechestvennye zapiski #2, 2012. Special issue: Corruption," email communication to harriman-news@lists.columbia.edu, June 24, 2012.

12 See the classic work on narratives of law in the United States: Patricia Ewick and Susan S. Silbey, The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998).

13 This exploration is the subject of Marina Kurkchiyan's study “The Illegitimacy of Law in Post-Soviet Societies,” pp. 25-47, in Denis J. Galligan and Marina Kurkchiyan, eds., Law and Informal Practices: The Post-Communist Experience (Oxford: Oxford University Press, 2003).

14 See the methods used and conclusions reached by Kathryn Hendley in her study, "Who are the Legal Nihilists in Russia."

15 For a development of the Eurasian and imperial perspective, see Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton: Princeton University Press, 2010), esp. 185-199, 271-283, 353-358. On the Mongol impact on Muscovite administration, see Donald Ostrowski, Donald, Muscovy and the Mongols (Cambridge: Cambridge University Press, 1998).




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