Russia's Legacy with the Rule of Law

Mikhail Khodorkovsky
via Wikimedia Commons

I really enjoy reading the New York Review of Books Blog, especially when Amy Knight produces posts exploring various aspects of the Russian political scene today.  Her latest piece in the NYRB Blog, entitled "The End of the Medvedev Revolution?", addressed the latest courtroom drama involving Mikhail Khodorkovsky (former Yukos executive) and his colleague Platon Lebedev.  A Russian judge recently found both men guilty of additional charges beyond those brought to bear in 2003, when both men were arrested, pushing back their release date to 2017.  Pundits believe the verdict came as a result of pressure Prime Minister Putin directly or indirectly applied to those involved in the case.  Knight characterizes the ruling a setback for Medvedev, who promised to reform the Russian Judiciary in an attempt to squelch 'legal nihilism' pervading the system.  She goes further in saying, 

...the Khodorkovsky verdict demonstrates his seeming powerlessness when it comes to high-profile political cases in which the Putin clan is directly involved. (Indeed, a Moscow court ruled that a recent Medvedev law making it illegal to imprison people for economic crimes before their trial did not apply to Khodorkovsky and Lebedev.)       

However, all is not lost for Medvedev.  Many in Russia saw the verdict on Khodorkovsky and Lebedev emanating from the Kremlin, not the judicial system, a belief that may help distance the president from his steely-eyed prime minister in the upcoming 2012 elections.  He has certainly not been afraid to broach sensitive topics with a moderate tone, seen here in this quote from Knight's piece:

Medvedev also had this to say about political opponents: “The fact that they are in opposition does not mean that they are cut off from public life. They should openly speak about every problem.” For the most part opposition leaders have reacted to Medvedev’s words with skepticism. But some, such as Nemtsov, co-chairman of the Solidarity movement and one of Putin’s fiercest critics, continue to urge Medvedev to get rid of Putin and introduce democratic reforms.

Knight believes that Medvedev, with his careful presentation and sculpting of message, might be able to capitalize on Russian discontent with Putin's strong-arm tactics and make the 2012 election anything but certain.  Yet reading her piece, I could not help but think about the long and somewhat difficult relationship Russia traditionally holds with regards to the western conceived notion on 'rule of law'.  All too often the current day situation of Russia is analyzed with little regard for the historic past of the nation, making present analogies and insights less informative and lacking in appropriate depth that would give the arguments in question more rhetorical power.  Therefore, I propose to sketch out some general themes surrounding Russia's interaction with the liberal conception of 'rule of law' in an attempt to provide background to the issues explored by Knight in her post.  Doing so allows one to gain perspective on the challenges faced by Medvedev in his stated quest to eliminate 'legal nihilism' in an atmosphere where entrenched Kremlin forces staunchly defend tight central control over the judiciary.

Laura Engelstein's essay on 'Combined Underdevelopment' along with Michel Foucault's 1978-79 lectures at the College de France on 'The Birth of Biopolitics' provide a starting point for our exploration.  While most Americans are familiar with what one might term the western conception of 'rule of law' (that being trial by jury, knowing the charges brought against you, right to counsel, etc...) it is far less clear if they understand how Russia historically interpreted such a liberalistic conception.  Engelstein and Foucault, directly and indirectly, address this issue.  What they reveal is that Liberalism, as an ideal and set of institutions, is far from monolithic and certainly capable of being 'mutated' to fit the needs of even absolutist states.  Seen in this light, Medvedev's efforts to reform the Russian judiciary must overcome more than just resistance by Putin's supporters, he must redefine the relationship Russia has with liberalistic values along cultural and historical lines acceptable to the larger public.  Yet, as seen in the American conceptions of 'corruption' in Afghanistan, we must take care not to impose our own cultural viewpoint on a society that shares tangential links to the 'western' tradition, otherwise we risk misreading the motivations of Medvedev, among others, in their maneuvering within the Russian political system.

Engelstein and the 'Combined Underdevelopment' of Russia

One of the most pressing themes of Russian history has been the often strained relationship its authorities possessed vis a vis the public under their rule.  The absolutism of the tsar, a governing power quite unlike those found in either British or French rule, produced peculiarities with regards to the Russian state/society configuration.  'Combined Underdevelopment' explores this relationship by asking how Foucault's understanding of Western integration of Liberalism, which hinged on the movement from coercion to discipline exemplified by the use of the power/knowledge nexus to encode scientific 'norms' into structures of civil society, compares when used to analyze the same question in the Imperial Russian context.  Engelstein concludes that Foucault's method falls short in the Russian example, namely because the power/knowledge nexus never adequately developed to the same extent as seen in the West.  This meant that while governments in Western Europe increasingly let go of centralized control in favor of heavy regulation, thus allowing the private creation of specialists whose products of knowledge, while not directly emanating from the state, find regulation and acceptance by the state through disciplinary means, Russian absolutist tsars instead held tight to the reigns and refused to cede centralized authority in favor of regulatory oversight, in effect stunting the private development of specialists except for those created and pressed into service by the state.  

via Oknovokght

Addressing the 'rule of law', Engelstein says that Liberalism in the West altered the alliance between the administrative state and exercise of discipline by using the 'rule of law' to formulate boundaries for the operation of disciplinary measures.  This sounds confusing, but lets look at it from the vantage point of a nondescript monarch in a general Western European nation. (This is a generalization, so take it with a grain of salt)  

Back in the 12th or 13th centuries, for example, Kings could generally issue edicts that acted as law governing the actions of their subjects.  If someone violated an edict, they would be generally bought before the king or one of his representatives and some form of punishment would be meted out.  The point was that only fear of reprisal from the king or his agents motivated acceptance of such edicts. (Again, very general) 

via Aprilzosia

However, by the 17th and 18th centuries this often draconian method of instilling respect for the rule of the king began to have serious consequences, inspiring political theorists of the day to devise new methods of rule that centered upon individual acceptance and willingness to adhere to the desires of the authorities.  By advocating such measures as elected representation acting as a check on monarchial power, the right of a trial by jury, and the general inclusion of greater segments of the population in governance, a king could manage to surrender some measure of his personal authority in exchange for a greater level of support from subjects and citizens alike, in effect creating a configuration of the state/society relationship that relied more upon internal discipline rather than external coercion.  

Again, that might sound confusing but consider your own life- you generally follow the laws of the land despite not having police constantly following your every move.  Most follow the rules because we have faith in our system; we can vote for our leaders, we have the right to free speech and trial by jury, etc..  Essentially we are a disciplined society that requires little coercive pressure when it comes to acquiescence of the law. (See the generality?  Obviously one could point to just the Civil Rights Movement as a counterexample, but in our modern day this disciplinary trend mostly accepted)

But what about absolutists states, like Imperial Russia?  Engelstein notes that unlike the West, Imperial Russia rejected the legitimacy of 'rule of law' and instead relied upon largely coercive methods in order to harness the professional disciplines and control the population.  Having never ceded authority in favor of regulation via legalistic means, the Russian state created a state/society configuration predicated on a wholly different foundation than that found in the Western order.  This is not to say they rejected Liberalistic values carte blanche, rather the Imperial, and later Soviet, state simply took the forms of liberalistic practice, like the trial by jury, and infused them with content more suited for absolutist rule.  Thus, the Soviet Constitution (and today's Chinese Constitution) provided rights one would generally assume would be found in a modern, liberal society, yet the implementation of these rights fell under strict, centralized control by the ruling authorities.  This legacy remains today, despite the fall of communism, as historical state/society configurations are particularly difficult to overcome and replace.  

Approached from this angle, the state/society configuration in Russia today is why Medvedev is having such a difficult time making good on his promise to overcome 'legal nihilism'- quite simply, the judiciary does not have a tradition of operation outside of central direction and the ruling authorities are distrustful of anyone outside of their control.  Khodorkovsky was arrested because he supposedly broke the 'golden rule' set out by Putin, namely that the wealthy oligarchs of Russia could keep their money, and continue to make more, so long as they stayed completely out of politics.
  

Yes, I know this is wider than my blog column.  But it fits so well, I'm going to use it anyway.
via Vladimir Putin Action Comics by Derse

This sort of 'rule' seems laughable in America, yet demonstrates exactly the point made by Engelstein above.  Whereas in America the use of disciplinary measures over coercion and favoring regulation over tight centralized control allows for professionals to develop in a manner that is generally not threatening to the state, in Russia the opposite is true.  Individuals like Khodorkovsky, who made their money and status outside of state control, represent real threats to the regime as their independence is not regulated by disciplinary measures but instead by coercive power alone.  This, in part, is why Putin and his supporters continue to use a heavy hand when dealing with potential rivals and why the Russian judiciary appears compromised by, supposedly, taking orders from above.  

'Biopolitics' and the Liberalism Shift of the Chicago School

The Man Himself  via Inge Knoff

For real change to occur, significant alterations to the state/society configuration must be achieved.  Interestingly, Foucault himself diagrams a method by which this might occur in his series of lectures around the subject of Biopolitics, given during the 1978-79 academic year.  While the lectures touch on a great breadth of topics, the specific example I want to draw on for this discussion is the role the Chicago School played in the reformulation on the role Liberalism played in the operation of the economic sphere.  (I discussed this same example in another post, 'Stakeholder Similarity and the Mobility of Liberalism')  Effectively, what the thinkers of the Chicago School accomplished was to broaden the predictive scope of economic behavior (market behavior to be exact) so that other social relationships and individual actions could be rendered more intelligible.  Simply put, the Chicago School extended economic analysis to areas largely considered non-economic.  

This 'Liberalism Shift' produced by the Chicago School held profound impacts on American intellectual and political debates up to the present day.  The emphasis on minimal government intervention in the market- already a tennet of Liberalistic economic theory- became inflated with the Chicago School, as they argued that the market not only operated best when left to its own devices but that it also could 'divinely' dictate the limits of government reason.  Suddenly, direct interventions in the market by government, exemplified in full by the planned economies of Europe and the Soviet Union, became anathema to full economic productivity- surely the invisible hand knew more than the state economist- and justifications for reduction of the welfare state in America suddenly held considerably more gravitas.  Without entering into the murky waters of political judgement, we can safely say that the Chicago School demonstrated that Liberalism was flexible and adaptable, capable of being shaped to fit the desired needs of a particular viewpoint.  

Perhaps Medvedev can use the current political situation of Russia to his benefit, shifting the state/society configuration away from tight, central control to one in which the larger public and even political opponents have room to operate independently.  A logical starting point would be the judiciary, something Medvedev has clearly made a priority.  However, observers would be misled to conclude that the recent Khodorkovsky episode represents a setback for Medvedev, especially if the standards of the West vis a vis the 'rule of law' are the measuring stick used.  A recent essay in The American Interest by Lawrence Rosen titled 'Understanding Corruption' makes the point that evaluating charges of corruption in Afghanistan by Western standards fails to account for the considerably different standard marking corruption for many Afghanis.  Here is a quote from Rosen's essay:

When, for example, I asked the men in Hussein’s village, as I have so many in the Arab world, what passes for corruption in their view, I always receive the same answer: Corruption is the failure to share any largess you have received with those with whom you have formed ties of dependence.Theirs is a world in which the defining feature of a man is that he has formed a web of indebtedness, a network of obligations that prove his capacity to maneuver in a world of relentless uncertainty. It is a world in which the separation of impersonal institutions from personal attachments is very scarce. Failure to service such attachments is thus regarded as not only stupid but corrupt.

This is, of course, rather different than the American view of corruption. We mean by the term the influencing of the performance of a public duty—meant to be carried out in accordance with objective, impersonal protocols—for personal ends. The position trumps the individual who holds it. More generally, we mean by corruption disrupting “the level playing field” owed to all as citizens equal under the law. And bathed in the glow of our Enlightenment universalism, we take it as second nature that it is everywhere the same.

It is not.

The same could be said for Russia and its judiciary- not because it practices a tribal kinship social reciprocity function, but because it adheres to a state/society configuration different from that encountered in Western Europe and the United States.  Amy Knight is correct in saying that Medvedev should not be counted out of the 2012 presidential race, but the West needs to recognize that societal change requires much, much more than idealistic phrases and that the nature of change might not resemble forms embraced here.  For the Russian judiciary, this will require a fundamental shift in the way the state exercises its power and control.  For Medvedev, it may require laying low and quietly cultivating an image and support that advocates a realignment of the relationship between state and society- but whatever he chooses, he does so against a larger historical legacy of Russia's unique interaction with liberalism.