An analysis of the changes that Russia has experienced over its
so-called ‘period of reforms’ demonstrates that the majority of the
successful changes were accomplished through the disintegration or
paralysis of the old institutions of power, as opposed to the
construction of new ones. In fact, the Russians have witnessed the
‘acceleration and restructuring’ of the trends that in the last
decades of the Soviet Union had been in the process of stagnation –
the diminishing efficiency of the economy, policies and
culture.
The transformation of the country failed to counter this
particular trend. In August 1991, after the abortive coup d’etat,
the old social organism did not actually transform – its
decomposition was only precipitated. Success mostly accompanied the
liberating efforts of the authorities, as opposed to constructive
measures. It was precisely through these liberating efforts that
the Russian people gained the freedom of speech, the freedom to
travel abroad, the freedom of private enterprise, the freedom of
associations and expression of political will. They also acquired
the early beginnings of a market economy, a convertible ruble
(albeit only domestically) and the decentralized governance.
These crucial achievements, however controversial, were the
result of the abolition or violation of old rules, as opposed to
the implementation of some strategic plans. Whenever the
authorities tried to uphold the old ways or implement creative
ideas (between the years 1985 to 2000, they inevitably suffered
failures that would bring disgrace to the country. Attempts were
made, for example, to turn the Communist Party of the Soviet Union
into a democratic party, save the Soviet Union from disintegration
and create the Commonwealth of Independent States as a new
mechanism of integration. In the economic realm, there were
haphazard attempts to carry out a rather unsophisticated
privatization plan, as well as build an efficient banking system.
There were also attempts to retain (peacefully or militarily) the
breakaway republic of Chechnya, and establish – with allies – a
system of international security that would suit Russia’s
interests.
The only thing that the authorities managed to salvage, and even
build up, during this period was their own bureaucratic structure;
this was most convincingly demonstrated during the minute civil war
in the autumn of 1993, the critical presidential election of 1996,
and the painstaking search for a successor to Yeltsin from 1999 to
2000. Despite the setbacks and defeats that the bureaucracy
suffered in those years, which discredited it both at home and
abroad, it nevertheless filled in the niches that are normally
occupied by the civic institutions, local self-governance agencies,
or political parties.
Immature democracy
The political regime that took shape in Russia between 1991 and
2000 can be described as ‘quasi-democracy’ or ‘immature democracy.’
In more precise political terms, it was a non-liberal or electoral
democracy. This sort of democracy was actually a transition from
stagnant totalitarianism; it provided for basic personal and
political rights of the citizens, as well as for the establishment
of relevant institutions. Immature democracy differs from genuine
liberal democracy in that it lacks a host of vital democratic
institutions, while retaining many malignant elements of the old
system.
New democratic institutions originated in the depths of the old
Soviet system in the late 1980s and in the early 1990s. At that
time democracy was confined to the freedom of speech and the idea
of pluralistic elections; from 1988 it also began to include the
freedom of consciousness. This limited set of democratic gains was
enough to shatter the decaying totalitarian regime.
The further evolution of democracy was arduous and inconsistent;
it actually developed through the subordination of the old Soviet
institutions to the new logic of democracy, which quite often led
to government paralysis and exasperating conflicts.
During the political battles of 1991 and 1993, the executive and
legislative bodies, independently designed and developed during the
Soviet era, divided their powers. In 1992 and 1993, the country
transformed itself – with much pain – into a federation that was
shaped according to the past pseudo-federal model. Finally, in
1993, after the adoption of a new Constitution, a number of
institutions emerged which were hitherto unimaginable in the
totalitarian system.
Today, the Russian regime more than one decade after it was
designed in 1991, allows for the emergence of new structures and
trends. Several of these developments, such as the ramified network
of free mass media and the tolerance toward various religions, are
typical of mature rather than immature democracies. They signal the
country’s advance toward a full-fledged democratic society, and
there are other obvious signs of this progress:
Pluralistic elections which admit candidates’
self-nomination. (In reality, the value of pluralistic elections
may be diminished by the manipulation of the voters’ credit,
pressure on the candidates, unreliable vote-counting techniques, or
by the electorate’s mass distrust of the counting methods);
Officially declared division of powers (Unfinished at the
moment and lacking a civilized system of checks and balances);
Decentralized governance (Sometimes this may hint of a
slide toward feudalism since it is not counterbalanced by developed
local self-government. In reality, it is based on a system of
bilateral agreements rather than on the Constitution or federal
laws; decentralization often arises from overt or covert political
struggles, dealings, mutual appeasement;
Plurality and freedom of the mass media (The most powerful
mass media tend to defend the interests of their owners far more
explicitly than in mature democratic societies. Also, they
occasionally take sides in information wars and publish biased
material written to order);
Freedom to travel abroad;
Genuine, as opposed to merely officially declared,
tolerance toward other religions;
Freedom of associations (Presently, the non-profit and
non-government associations that are pursuing universal goals are
still weak as compared with those organizations that are defending
the private interests of individual groups);
Participation of the country in democratic international
organizations, including the Council of Europe, which necessarily
implies serious commitments in the field of human rights.
There are also positive signs of a liberal economy:
Free pricing of commodities (However presently limited,
this feature now plays a much greater role than it did in the
Soviet economy);
Freedom of private enterprise (albeit far from being
perfect at the moment);
Private property that appeared as a result of
privatization (not yet all-embracing, as Russia does not have
privately owned land, and lacking a sound legislative backup and
protection system);
A non-government banking sector, which has as yet many
controversies and shortcomings;
Domestically convertible ruble; etc.
Apart from the introduction of several new institutions and the
restored pre-Soviet ones, Russia has preserved structures from the
Soviet epoch that have only undergone cosmetic reforms, or have
been arbitrarily restructured. These steps are not in line with the
logic of the 1990s reform program. As a result, many of those old
institutions have been disorganized and weakened, instead of
reformed and optimized. The list features a large part of the state
institutions, especially key elements of the law enforcement and
public security systems, as well as those that were supposed to
ensure Russia’s adaptation to the new realities and challenges of
the future. These are:
— the armed forces;
— interior agencies;
— the prosecutors’ offices;
— courts;
— penitentiaries;
— secret services;
— educational institutions;
— public healthcare institutions;
— research organizations; etc.
A glaring example of Russia imitating the procedures of the old
institutions is the system of residential permits. This procedure
actually pegs a person to a certain place of residency and limits
his freedom of travel inside the country. This system stands in
marked contrast with the freedom to travel abroad.
Behind the face-lifted facades of many institutions are the old
Soviet administrative practices which date back to the rule of
Joseph Stalin. Furthermore, the red-tape activity formerly
exercised by the Soviet Communist Party eventually gave way to
administrative practices that are often based on personal bonds and
mutual cover-ups. Departmental interests now seem to be more
significant than national interests, thus impeding the process of
strategic decision-making. As a result of these disorderly
inter-departmental relationships, a multitude of coordinating
agencies, sometimes having parallel functions, has spawned. The
bureaucratic machinery is thriving, but its efficiency continues to
wane.
The party of power has displayed the lack of will or a clear
understanding of the goals, nor has it had any financial or
political resources to reform the above-mentioned institutions. One
way or another, these anachronistic institutions have become part
and parcel of the present-day regime. This situation makes
problematic the possibility for the current democratic achievements
to eventually evolve into a full-fledged democracy. The immature
democratic structures have been strong enough to put an end to the
totalitarian regime and support freedoms, especially given the
overwhelming enthusiasm for such a prospect among the political and
economic elite, and the honeymoon relations which Russia now enjoys
with the West. However, these structures can hardly be sufficient
for defending democracy under a less favorable
environment.
In addition to a blend of institutions characteristic of
immature and mature democracies alike, Russia also possesses
so-called ‘transition-period institutions’ that have filled in the
‘institutional vacancies.’ Some analysts find these types of
institutions to be malignant.
Such institutions spring up in variegated forms in societies
moving from totalitarianism to democracy, or from a rigid
government-regulated economy to a market economy. In Russia, such
institutions emerged largely due to the lack of distinctions
between the notions of ‘government-owned’ and ‘market-oriented.’ As
a result, the ‘bureaucratic market’ (i.e. a system of reciprocal
services and obligations that was characteristic of the state
administration system in the last years of the Soviet Union) made
an organic bond with the real market and a confused market of
mostly corrupt services emerged. At the lower and medium levels of
administration, corruption is more often than not overlooked by the
upper echelons; in many cases it is used as a hidden instrument of
governance. Although transition-period institutions are believed to
be transient, in many countries they have proven to be viable in
the changing conditions; they appear to be flexible and resourceful
enough to change functions, appearances, locations, etc. These
institutions work in the shadowy area between the state, which is
ruled by law, and the world of informal relations, where law is
irrelevant. Once the state admits the existence of these agencies
and is captivated by them, it will then be forced to make
extraordinary efforts to disentangle itself from their corruptive
effect. It is impossible to guarantee whether or not these efforts
will be successful.
Apart from purely criminal groups (i.e. those condemned by
society and prosecuted by the authorities), the range of
institutions operating within the ‘bureaucratic market’ includes
the following elements:
The oligarchies (a rather arbitrary term). These are economic
groups tied to natural monopolies in that they get intertwined with
the state – on their own terms rather than on the state’s
conditions (the latter would include the government’s controlling
interest, state administration, etc.). The oligarchies form lobbies
within the state administration which eventually turns into a
complex of adversarial groups. State policies appear to be largely
determined, at least in the economic field, by relations between
these groups.
Political clans (no less arbitrary term). In the 1990s, the
rapidly deteriorating state administration, together with the
weakness of political parties and civic institutions, aggravated
the introduction of the old Soviet principle of ‘kinship team’
(‘the mafia’ in the loose sense of the word, or ‘the Family’ as is
more commonly used of late). Clans are formed in an intricate way.
Nepotism and common native origin are generally used as the basis
for selecting clan members. These qualifications are reinforced by
shared education and pastimes, common professional occupation and
past work experiences. The emergence of oligarchies and clans leads
to a situation where abidance by the law is replaced by obedience
to the head of an oligarchy or clan. This practice is known as
‘clientalism.’ Not only does this practice become widespread, it
becomes absolutely domineering. During election campaigns, clans
may turn into groups spearheaded to seize power. The clans strive
to enlist the support of the oligarchies and often form long-term
alliances with them. Considerations of political and administrative
activity (such as rationality and efficiency) often fall victim to
nepotism, irresponsibility and unscrupulousness; such
characteristics are distinctive of the relations inside and between
clans. The oligarchs and clan leaders share full blame for the
‘media wars,’ and smear campaigns which, not long ago during
Russia’s post-Soviet history, overshadowed public discussions of
vital problems and programs. During the past election campaigns,
nothing but compromising techniques was the focus of public
attention, pushing real problems into the background.
“Privatized” structures of state administration. The
highest levels of state administration – which have to act in
a ‘bureaucratic market’ environment, while being partly paralyzed
by competing oligarchies and struggling clans – are unable to
rebuff the occasional (or permanent) attempts by the private
structures for manipulating their offices for private gain. These
goals may be of a purely economic nature, or related to the
bureaucracy’s infighting for status and influence; they could be
connected with a political struggle in the country. History knows
many instances when state-control and law-enforcement agencies –
tax institutions, interior agencies, the prosecutor’s offices, and,
of course, the courts – were made instrumental in order to attain
some private goal.
The distinctive feature of the current regime in Russia is
absence of consolidated power that impedes its progress toward a
developed democracy and makes it impossible to achieve
stabilization at this stage. The reasons behind this are the
obvious inconsistency of the law-making process, the inability of
the various branches of state power to conduct harmonized policies,
but, most importantly, contentions between oligarchies using
lobbyists in the branches of power and standoffs between clans that
paralyze the government. As a result, state power is unable to act
as an arbiter in the conflict of economic interests, or as a
pursuer of balanced long-term policies – above all economic and
social. This is a major problem, and unless it is removed, no
attempts to consolidate or coordinate the activities of the
different branches of power will help.
Apart from the above-mentioned superfluous power elements, the
present-day regime in Russia has some ‘institutional vacancies’
that also make it different from developed democracies. The most
significant of them appear at the borderline between the government
and society as a result of the obvious incapacity of the latter for
political self-organization and protection of its interests.
Russia has a magnitude of public organizations, but the
ones that were formed voluntarily for the attainment of universal
goals for society do not dominate the scene. The organizations that
people cannot avoid joining due to the specificity of their
personal history (for example, associations for the disabled, war
veterans, army servicemen’s mothers, etc.), have proven to be much
more active and efficacious than business societies, trade unions,
and other associations in protecting their members’ interests
against the government and influencing the political regime in the
country. Having humanitarian facades, these associations keep
afloat largely through the support of foreign sponsors; the
specificity of their relations with the government and society give
a clearly criminal taint to some of them.
For over a decade, Russia has been unable to shape an
efficient party system. The relict Communist Party of the Russian
Federation continues to be the only well-organized mass party. The
largest of the new offshoots, the Liberal Democratic Party of
Russia, makes no secret of its orientation toward marginal
quarters. The rest of the parties, besides Yabloko, are little more
than intricate combinations of clubs and fragments of state
bureaucracy, often reflecting past “love affairs” with agencies of
power. Even the largest parties enjoying a great deal of influence
in the State Duma are nothing but questionable organizations, all
but lacking any coherent program that would formulate goals and
values shared by society. New political parties are hammered
together by political technologists or suddenly emerge from
nowhere. The divide between this odd consortium of parties lies not
in the domain of their political orientations, but in the area of
pragmatic, or even ‘clientalist,’ relations with the authorities –
support the powers-that-be or declare your opposition to them. Over
the past ten years, Russia’s regime of immature democracy has had
to pay dearly for the weaknesses of its party system: the desired
reforms were more often than not blocked in parliament.
Local self-government in Russia is unacceptably weak. In
regions where the embryo of local self-government has taken shape,
criminal influences remain as strong as they are in the public
associations.
On the whole, the extremely inefficient mechanism for feedback
between the Russian government and its society causes the emergence
of new malignant formations which makes any changes in this sphere
highly problematic.
True, over the years of reforms, the ruling elite has introduced
marked changes in the country. Its political system has evolved
from a totalitarian regime (relatively liberal in its domestic
policy, but isolationist in foreign policy) into an immature
democracy with unconsolidated state power. In the economic sphere,
the country has moved from an autarchic economy that was paralyzed
by ‘a bureaucratic market,’ to an oligarchic-controlled capitalism
that is still exposed to stiff competition on the world markets.
But what is the real value and import of that change – the two
categories without which national identity, political consolidation
and national ideas are hardly worth discussing?
A transition or a metamorphosis?
For a number of reasons (which we cannot discuss here for
considerations of space) the developments experienced in Russia in
the last decade are often looked upon as a transition from
Communist totalitarianism to democracy and a market economy, i.e.
in terms of transitology. The impression one may get is that the
unrestrained concept of transitology is based on solid experience
and offers a variety of helpful tools. Yet the actual situation is
somewhat different.
This concept was borne out of an analysis of fairly recent
developments in the Iberian and Iberian-Latin American countries,
and initially described the changeovers from one entrenched state
to another, no less popular state: in the 19th and 20th centuries
those countries would change from authoritarianism to democracy,
and back again, many times. These regimes are not believed to be
synonymous with absolute evil or absolute good; it is recognized
that both authoritarianism and democracy have gradations of
characteristics, both advantages and weaknesses. In foreign policy,
there is a time for war and a time for peace, except in the
unprecedented moment of a global nuclear conflict. When considering
domestic policy, there is a time for pulling up the reins and a
time for loosening them; the exceptions would be obvious during
stringent forms of totalitarianism. During the last thirty years of
the 20th century, it was more natural to refrain from wars and
stick to models of governance which provided for the existence of
unrestrained state power.
Eastern Europe was, in a way, intellectually lured by the
transitology concept, yet the actual situation there in the early
1990s was different. Rare exceptions notwithstanding, the East
Europeans do not have a long experience with democracy. It was easy
to stimulate (and simulate) the repulsion of totalitarianism in
Eastern Europe because there it had acquired the most rigid forms –
Nazism and Bolshevism. The recent history of the East European
nations is seemingly in line with the transition concept; however,
even adepts of transitology have to admit that the results of the
transition in Eastern Europe, albeit looking encouraging at the
moment, actually differ from the expectations of transitology.
Figuratively speaking, Eastern Europe had set sail for India, but
turned up in America.
Unlike the Iberian nations, the Poles, Hungarians, Bulgarians,
Estonians, and even Czechs and East Germans made a transition into
an economic and political state that they were empirically
unfamiliar with, or poorly aware of. The difference between these
groups and the Russians is even more profound: the East Europeans
maintained their religious traditions, and their experience of
living with a market economy was not quite so distant. In these
countries the new elite that had come to power knew perfectly well
(the masses were fast to understand as well) in what geopolitical
direction they should turn. Looking westward and siding with the
various West European, North-Atlantic, and international
institutions was only natural for them. Such a move would guarantee
accession to NATO, the European Union, the Council of Europe, the
World Trade Organization, etc. Many East Europeans believed that
such organizations were a sort of express train that would take
them to the right destination. This instrumental solution is quite
understandable – it stems from the postulation that the East
Europeans should be identified with West European culture.
Having discarded the bankrupt Soviet model of development,
Russia chose a rather abstract ‘by analogy’ development line. The
Russians did not grope for an acceptable model, or a fascinating
myth, of development in their country’s past – they knew from the
start that such attempts would be useless, and their pessimism can
partly be explained by their long experience with Communist rule.
On the other hand, integration with the West was neither a
desirable option for a greater part of Russian society, nor was the
Western world eager to embrace Russia into their institutions.
For more than a decade, Russia proceeded under the banner
of democracy and a market economy toward uncertain goals, much the
same way as Russian society had moved for seventy years toward a
fanciful victory of Communism. The difference between the two
models is rather obvious: during Soviet rule, the authorities made
society believe that the goals and the means for success were
absolutely perfect; now, however, under the conditions of openness,
such indoctrination is nearly impossible. Presently, the Russian
authorities, having neither experience nor an ‘institutional
locomotive’ to pull their train, can hardly expect to reach a
consensus with the public on the course of reforms. Under the
circumstances, there are only two things that the Russian
leadership can really count on. First, there is the general
confusion and apathy of the Russian people which, contrary to the
popular myth, may actually assist rather than impede the ongoing
reform process, serving as a painkiller of sorts during a critical
surgery that has no clear conclusion. Second, the great release of
energy that drives millions of people to enact their individual
life projects may be more efficacious than any calculated reform
plans.
To define Russia’s present position, a special system of
criteria is required. Given that the key elements of the Iberian
and East-European models are unfitting for Russia, but the idea of
a transition could be still relevant if interpreted as a
metamorphosis, we will have to use subjective criteria for
analyzing the developments in Russia.
That a certain stage of the Russian metamorphosis is over is
probably best seen from the results of the public opinion polls.
These have consistently demonstrated the growing satisfaction of
the majority of Russian society: the President enjoys very high
ratings; the people are gradually becoming satisfied with the
wellbeing of their families, as well as with the places they
reside, and even the country in general. The people are also
becoming increasingly familiar with Russia’s self-identity. With
the developed countries, national pride is a major feeling shared
by a greater part of the population, whatever the real economic
percentages may suggest. As for the Russian people, absolute pride
in their country appears to be some way off. This means that the
second phase of the metamorphosis is not over yet and that the most
decisive phase is just ahead.
The subjective (or psychological) criteria of a successful
transition (or metamorphosis) are more or less the same in all
societies; objective criteria, on the other hand, are a different
story. They vary from one culture to another, and the extrapolation
of alien criteria onto oneself, or one’s own criteria onto others,
involves certain risks.
Legitimacy of state power
Huntington’s formula, which provides for the legitimate handover
of power to the opposition if it wins election, with the
possibility of power being ‘returned’ some time in the future, is
enough for the Iberian, Iberian-American, and East-European
nations: the leadership in those countries acted on the premise
that the model of democracy they had accepted would guarantee the
peaceful rotation of the political elites inside their power
structures.
Huntington’s formula may be viewed as a standard trial of a
series-produced factory item in which a failure would be perceived
as some extraordinary emergency akin to a jet crash. Russia,
however, has accepted democracy with rather specific conditions;
therefore, it must deal not with a fully-researched ‘aircraft,’ but
its risk-prone prototype. Therefore, the challenge facing Russia
goes beyond the certification of a political model which possesses
inherent conditions for the rotation of power. Russia is challenged
by the legal (formally legitimate) handover of power to successive
rulers, and not necessarily to those currently representating the
opposition. Meeting this challenge presumes reaching a consensus on
the procedure of power handover while leaving the foundation of the
country’s political order intact. For the Russian people, the issue
surrounding the legitimacy of power is of special importance since
it readily evokes bitter memories of distant – and not so distant –
history.
But the legality surrounding a peaceful transfer of power is
only one part of Russia gaining legitimate grounds for its
existence. Confidence in its overall legitimacy is an essential
element of identity for any politically mature state. Since 1991,
efforts to uphold the new political system in Russia have been
driven by the fear of the return of Communism, not to mention the
threat of civil war; this fear prompted the authorities to engage
in unscrupulous maneuvering, deal cruel blows against their
opponents at critical moments, or, in less dramatic situations,
simply pay them off. This fear is more of a moral than of a
political consideration: the democrats have been accused by the
Communists of having committed terrible and illegal deeds, such as
ruining the State, depriving the Communist Party of its property,
and grabbing national property through a dubious privatization.
This provides us with an understanding of the imperfections
surrounding the construction of statehood in Russia. The country
faces a dilemma: either it continues to live within the framework
of Soviet law and culture – which, incidentally, serves to support
the Communists’ accusations and embarrass some politicians – or it
finds more solid legal ground for its existence. Unless the state
clearly defines its position concerning this problem, it will
continuously have to answer “absurd” questions from the public,
such as: What are the guarantees for the owners of property that
was privatized after 1992 if that same property was arbitrarily
taken away from others after the Bolshevik revolution of 1917? Are
these guarantees based on Soviet or post-Soviet laws? Whose rights
are more plausible in a situation where, as the Russian saying
goes, “a thief stole a club from a thief?” What kind of law – lex
temporis actionis, lex temporis contractionis, or jus temporis
praesentis – should prevail?
The problem goes back to 1917 when the organic development of
legislation, i.e. legal continuity, was broken in Russia. But not
by the October Bolshevik revolution (as many tend to believe), but
by the March 1917 bourgeois revolution that overthrew the czar. The
abdication of Czar Nicholas II in favor of a person, who was not
even a legitimate successor and had been selected at random,
violated the laws of the Russian Empire and triggered an avalanche
of failures to maintain the legitimacy of state power. On September
1, 1917, the Provisional Government declared Russia a republic; it
had no powers to do so, and that declaration broke with legitimacy.
It smashed the act invoked by Grand Prince Mikhail Alexandrovich
that vested state power with the Provisional Government until the
convocation of a Constituent Assembly which was to decide on the
country’s form of government. Soon thereafter the Bolsheviks
abolished the Fundamental Laws of the Russian Empire, as well as
all other laws, thereby creating a kind of illegitimate legality.
In fact, the Bolsheviks were not pioneers in this process – they
simply took up the cause of the “March cabinet.” This fact makes it
impossible to associate the origins of political brigandage in
Russia with the Communists. Moreover, it blurs the alleged
borderline between the unlawful practices of today’s Russian
Communists with the legal traditions of the democrats. This
borderline may distinguish between the Communists’ desire for
legality and the democrats’ imperative of legitimacy.
There are only a handful of people in Russia today who would
take the trouble of studying the origins of the republican form of
government in their country. Remarkably enough, Russia does not
observe Republic Day, while the people are reluctant to scrutinize
the nature of the state power now in effect. In the meantime, this
subject necessarily becomes the focus of attention and a source of
national pride in any country that can claim the legitimacy of its
statehood. For such nations, statehood is a product of history,
justified and assimilated by the spirit and philosophy of the
people and substantiated by a system of laws; the nation’s basic
institutions, legal and political conceptions, and traditions, are
made to comply with its basic idea. Neither the transition from a
monarchy to republican rule, nor the restoration of a monarchy,
should be the result of a random choice made by a group of people,
or even, for that matter, a choice made by a majority of the
electorate. The belief that a law goes out of effect and hence
cannot be applied once it has been abolished illegitimately is
erroneous. Many countries have proven that the laws return in one
form or another if the country maintains its sovereignty and its
people retain their self-identity. The laws may come back as
‘summarized norms,’ but the legal system in effect at the moment
will have to deal with them.
We must realize that the norms of effective legislation and
legality as such will be void of meaning if the laws are not just,
and if our notion of legality does not pass the test for
legitimacy; sooner or later we will have to plead for foreign
patronage over them, the way some countries were forced to
introduce the Currency Board system that pegs their enfeebled
monetary units to more stable foreign currencies. Unfortunately,
Russia has taken the first steps in that direction by formulating
Paragraph 4 of Article 115 in its 1993 Constitution, which declares
the supremacy of international law – an act that many European
countries have avoided. Their reluctance does not mean that they
ignore jus gentium; they simply believe that their national laws
are firmly based on national traditions, logic, ethics, and
efficacious practices. The Europeans are sure that their national
laws are strong enough to defend them, as well as to ensure the
efficiency of international law. True, Russia was not alone in
declaring the supremacy of international legislation, but let us be
frank about it: the recognition of the supremacy of international
law is based on a strong belief that the two systems of law
(domestic and international) can be harmonized is one thing, but
admitting that international law is supreme to ours, while our
legislation is ignored or misinterpreted, is quite another thing.
The introduction of the Currency Board system may be temporary –
sovereignty may sometimes be regained through the tools of finance.
A loss of sovereignty in legal issues is prone to the rapid demise
of state sovereignty and national identity.
The situation concerning property rights – an ancillary aspect
of the legitimacy of state power and law – seems to be much the
same. Unless the Russian government reinstates the ownership rights
of the people – robbed by the illegitimate state administration
following the events of March 1917 – no guarantees for property,
new or old, can be taken for granted. If this situation is not
corrected, future governments may commit the same sort of unlawful
acts that their predecessors committed, nor Russia will be strong
enough to straighten up its system of state governance, or pursue
steady and unflawed policies.
Of course, to revive Russia as a nation to its towering height
before the events of 1917 is extremely problematic. Return of the
Fundamental Laws of the Russian Empire, not to mention the Full
Code of Laws, looks tempting but technically unfeasible and
politically unsettling. It will invalidate the Soviet and
post-Soviet legal norms, quite unpopular already, while
simultaneously complicating the application of pre-revolutionary
Fundamental Laws. One must admit, however, that despite the
collapse of Russia’s imperial institutions, together with the
imposition of certain deficient concepts, such as the instrumental
concept of law, legal theory survived both in the Soviet Union and
in the emigre milieu.
It seems that the only realistic solution would be to recognize
the laws effective in Russia prior to 1917 as an indispensable part
of the current legislation, and apply them exclusively to
situations dating to the pre-revolutionary period. Of course, in
that case the judiciary system will have to be changed along
commonly accepted principles, and with due respect for the
Fundamental Laws and Russian traditions.
In practice, the problem of the judiciary system is far more
acute and paradoxical than many people would imagine. Let us
consider a situation where an individual decides to challenge the
legitimacy of the February or October coups of 1917 by referring a
claim to the general court. He finds its verdict unsatisfactory,
and decides to petition to a higher court – possibly up to the
European Court for Human Rights or to the Constitutional Court of
Russia (which is possible under Paragraph 4 or Article 125 of the
Constitution, which provides for a fairly broad interpretation of
“the encroachment on a citizen’s Constitutional rights”). Such
claims can be filed at any moment. The judges will then be forced
to consider a difficult dilemma: either refuse to consider the
claim in view of its futility under the effective – yet
illegitimate – legislation, or make an appraisal of the legislation
itself from the position of the laws that were never abolished in a
lawful manner. In the first case, the judges will have to
acknowledge their subordinate role to the state bureaucracy which
issues rules and regulations that it claims to be laws. In the
second case, the judges will restore the honor and dignity of the
judiciary as an independent branch of power, which serves Law in
the true sense of the word.
The problem surrounding the legitimacy and legal continuity of
state power should not be viewed simplistically. Nor should it be
regarded as a call for the immediate restoration of the Fundamental
Laws and monarchy in Russia. Any abstract political idea – and
restoration of the monarchy in the absence of a legitimate heir to
the throne definitely falls into that category – is extremely
dangerous.
The real challenge that Russia faces today is whether it
reconciles itself with its past or ceases its existence as a nation
with a thousand-year history and transfigures into a totally new
(non-sovereign?) state that is based on obscure legislative
grounds. There is also the option of continuing with the perception
that the 1917 revolt was “a cradle” out of which our statehood
emerged. The echoes of that revolt are still audible, and we will
keep hearing them time and again unless we rid ourselves of such
notions. This is a question to be addressed to all parties across
the political landscape – the democrats and Communists alike; both
forces were born out of the March 1917 events, and although they
live in a post-Soviet state, its rhetoric invokes parallels with a
pre-Soviet state order. This is a question that will require much
self-criticism from the heirs and ideological followers of both the
Reds and the Whites.
Apparently, Russia’s path toward obtaining firm foundations of
statehood and legal order will not be easy or quick, and it is
impossible to predict the final outcome. It will be up to the
people to decide whether Russia will maintain its republican rule
or revert back to monarchy, but let us not choose any system at
random. Let us remember that this nation appeared long before
December 1991, or even March or November 1917. We should also
remember that attempts to impose state institutions with disregard
for legitimacy and legal continuity have only discredited them. To
take root, every form of statehood must develop a political
philosophy that embraces all of the historic and cultural levels,
as well as attain social concord. The simulated amnesia of some
sections of society, combined with the loss of historic memory by a
majority, is certainly a shaky foundation for building
statehood.
