Russia’s Sovereign Legalism

BY MAXIM TRUDOLYUBOV

Vladimir Putin has just secured for himself the right to remain president for life. A rewrite of the Russian constitution that the Russian president spearheaded was supplemented at the last minute by an amendment that will allow Putin to run again for office in 2024, after his second sequential (and fourth presidential) term ends.

The amendment essentially says that the very fact of the constitution being amended allows resetting the number of presidential terms at zero. The language thus paves the way for Putin to run for president again. Moving to a position as head of the State Council or some other slightly less prominent role has apparently been recognized as a less secure means for Putin to keep an eye on his political system. 

Introducing those new amendments was a classic case of Russia’s top-down legislating. The only factor that has been able to interfere with Putin’s smooth plan of enacting the changes is the coronavirus pandemic. The introduction process should have culminated in a people’s vote in mid-April. This will likely now be postponed, which will only reinforce the decretive nature of the new law.

There is a lot of talk among liberal-minded Russians about defending the constitution against this assault, but the majority of Russians are unlikely to join protests. This leads us to a larger point about Russia’s peculiar relationship with the law. 

By reason of history, Russian society has almost no experience dealing with laws created by citizens’ representatives. Historically, the law has been—and has been seen as—the tool of the powers that be. 

After assembling their systems of political dominance, most Russian leaders would then proceed to give their creations some features of legality. Save for a few exceptions, it was the power center in Saint Petersburg or Moscow (depending on the time period) that would undertake to “juridize” the kinds of relationships that the czars, the Communist Party bosses, or post-Soviet leaders had established. Soviet law, including Soviet constitutions, was the high point of that tradition.

Stalin’s (1936) and Brezhnev’s (1977) constitutions were lavish documents complete with generous social guarantees and all kinds of rights and freedoms. None of those provisions were meant to function as real law. Proletarians in the West were supposed to read those documents, accept them as articles of faith, and start preparing to move to the Soviet Union. Domestically, the Soviet legal system was called “socialist legality,” which in practical terms meant that all individual rights were subordinate to the communist cause. The government would defend freedom of speech or assembly only if it was a speech or an assembly in favor of communism. Otherwise it was not a freedom but an act of subversion.

Putin’s amendments to Russia’s constitution are similar to Soviet legal documents in genre and intention, although of course not in ideology. Putin’s approach could be described as “sovereign legalism,” in which his understanding of sovereignty—just like Stalin’s or Brezhnev’s understanding of socialism—takes precedence over individual rights and freedoms.

This sort of legalism is very familiar to many in Russia. In fact, it is the very reason why laws are so commonly dismissed here as something thought up by the higher-ups to go after the lowly folk. The people’s response to this has always been to come up with their own, informal and down-to-earth ideas of what is just and fair.

Formal and informal rules coexist, which is the reason for an understanding that it is only possible to do business or conduct any private transactions in Russia by breaking the law and sticking to an informal social order known as poniatia (literally “notions,” meaning a code of mutual understanding). “People live according to the poniatia but interpret other people’s behavior according to the law. Everyone is breaking the law, they often conclude,” the sociologist Simon Kordonsky told me in an interview.

“There is a centuries-old dualism between a set of rules described by the Russian word zakon (law) and a set of rules that are known as pravda (truth, justice),” Nikolaj Plotnikov, fellow at the University of Ruhr’s Lotman-Institut, tells me. “While the law comes from the top down, the truth comes from the bottom up.”

None of this means that Russian society is destined to be this way forever. In fact, lots of political and demographic factors are present today that are causing a demand for defensible guarantees of personal inviolability, the inviolability of property, enforcement of contracts, and control of corruption.

Throughout the 2020s, Russian society will have to work out a way to transfer a substantial amount of wealth and experience from one generation to the next. This will be happening for the first time in more than 100 years. The massive destruction of value that was held in private hands before the 1917 revolution was one of the Russian twentieth century’s tragic aspects. Throughout the entire Soviet period, not a single generation was able to pass any substantial inheritance on to children or grandchildren.

Russia’s vested interests should have been working on promoting strong institutions, including an independent legislature and judiciary, that would have helped to make at least some rules from the ground up, not from the Kremlin down. But the Kremlin has been successful in preventing anything like this from happening.

This is one of the reasons Putin is reluctant to show he may be leaving. Any certainty about him leaving might trigger a redistribution, a nasty and violent reallotment of assets because there are no laws that will work beyond the current leader. As long as the transfer is conducted according to poniatia rather than the law, it is likely that most of Russia’s largest fortunes will not be passed on to the next generation intact. “Properties that are contingent on political power are impossible to pass on to the next generation,” one of the high-ranking officials told Levada Center in the center’s recent study of Russia’s political transition.

The kinds of laws and rules that might solve the inheritance problem can only be worked out in a conversation that involves all groups in Russian society. The Kremlin is loath to do this because to Putin and his inner circle, it feels like a compromise on the centralization of power that they consider paramount. That is why the Kremlin, with its rewrite of the constitution, made sure that the next ruler will redraw it again.  

The opinions expressed in this article are those solely of the author and do not reflect the views of the Kennan Institute.