What Can Be Done?

This book was completed less than a month before the Russian invasion of Ukraine. In other words, right before the war that changed everything. It changed things all over the world, but primarily in Russia. The near future of Russia has become, to put it mildly, highly uncertain. What happened, of course, somewhat changes our conclusions.

The preliminary results of the state of the Russian society after a month of war were expressed by sociologist GrigoriyYudin. He believes that people in Russia have accumulated a huge amount of aggression, fear, and loss. And unpredictability increases, which is a good base for the formation of mechanistic solidarity. A large number of people are in a state of denial of what is happening—they are trying to pretend that life is going on as usual. Everyone knows what is happening, but many stubbornly chase this understanding away from themselves, resorting to internal suppression, which accumulates heavy energy.

One of the ways to release it is to join a “bunch” and direct aggression against those who are not part of it. In this case, there will be terror, giving even more incentives to join the unity of the majority. Accumulated aggression can also turn in a different direction: unsuccessful external aggressions often lead to civil wars. Can a general military conflict escalate into a civil war on the territory of Russia? Another option: militaristic hysteria can turn into a systemic collapse and revolution. But what will never happen for sure is the former peace. All the gigantic negative energy that is accumulating now will definitely need an outlet.

We are at a crossroads when authoritarianism can turn into totalitarianism:

Authoritarianism rests on passivity, its task is to push people out of political life. People can engage in their private life, but they are prohibited from undertaking any collective actions (regardless of who benefits). Do not support or protest: “When you are needed, they will tell you.” At the same time, you can think about anything and even talk, the main thing is to do nothing.

Totalitarianism, on the other hand, presupposes mobilization. It requires that individual consciousnesses be connected to the totality. Personal views and opinions cease to be the subject of your own decision. You either belong to the totality or you are its enemy and target. Now we are frozen in an unpleasant point, when there are symptoms of transition from the first state to the second state.”1

In such a situation any forecast cannot claim to be reliable.

Before the war, we had the following results: for 20 years, all democratic instruments, procedures and institutions capable of limiting and bringing to its senses autocratic power were completely destroyed, neutralized or simulated. The architects of this system were two post-Soviet presidents, who established a rule of individual power and imposed their interests on the public as being higher than an awareness of citizens’ interests and seeking a consensus in such a complex and large country as Russia.

The configuration of the rest was arranged in such a way that it allowed this power to do whatever it wanted and to bring to life the most incredible, extremely dangerous fantasies—dangerous not only for Russia, but also for the whole world, fantasies based on unjustified ambitions, myths, delusions and unprofessionalism.

A few days before the start of the war that Russia unleashed in Ukraine, political philosopher Kirill Martynov wrote on his Facebook page:

As a result of the institutional conditions of Russian political life, a war is taking shape. The whole question is when it will become a reality.

The threat of war is the only means of conversation left by the Russian government. With whom? Naturally, with those from the former Soviet republics, which are not yet in the EU, but persistently try to distance themselves from the suffocating Russian embrace. Propaganda suggests believing that a fascist occupation regime has been established in Kiev, that such a state as Ukraine does not exist (as well as other “small countries,” by the way), and that Russians and Ukrainians are one people who will applaud the farcical restoration of the USSR.

These myths exist within an archaic system of world views in which “great countries” divide “spheres of influence” and “control their satellites” for the sake of “civilizational choice.” The Kremlin wants a new Yalta conference, and even better a new Congress of Vienna—they would also assume the rejection of Western interference in human rights issues in Moscow-controlled territories.… What kind of resistance will Ukraine offer, what assistance will the EU, the US and NATO provide to the Kyiv government, will a broad anti-war movement arise in Russia and Belarus?

The war was supposed to make propaganda collide with reality. And it did. As a result, we saw a new reality. What do we do in this reality? “The answers to these questions are connected, among other things, with our personal choice, that is, they literally depend on us. The tactical goal of Russian citizens in this war today is not to be left alone in the face of propaganda and the militaristic machine of the state, but to create new public institutions to replace the destroyed ones. Dictatorships are afraid of uniting people and will prevent this by squeezing us abroad and putting us in prisons.” Therefore, the question “what to do?”—is by no means idle and is very difficult.

The collision of myths with reality in the conditions of massive propaganda and forced state restriction of access to alternative sources of information caused an unexpected effect for specialists—a massive psychological block from the cognitive dissonance between the eighty-year-old preaching of peace through the glorification of victory in the Great Patriotic War and the realities of the Russian invasion of Ukraine. Further, I present the last part of this book in the form in which it was formulated before the beginning of the “special operation.” In fact, everything that was written will need to be done. With one single, but, alas, very serious amendment: the depth of deformation of the psyche and consciousness of the population has changed a lot. Therefore, serious psychological rehabilitation is required first.

A Road Map

“Oh, it’s not an easy job to drag a hippopotamus out of the swamp” (K. Chukovsky). GrigoryMelkonyants, co-chairman of the Golosmovement for the protection of the rights of voters, commented on the message that this book was completed with this quote. Indeed, there is no end to the work here. But, as they say, what the eyes fear, the hands do. Every work has a beginning and an end. The main thing is to have a roadmap and not shy away in horror from potential difficulties. Of course, it is now difficult to foresee in detail what obstacles and “hacks” will appear along the way, but a roadmap can be sketched. Finishing the book, we return to its very beginning: we need a lever and a fulcrum that will make it possible to move the authoritarian boulder firmly rooted in Russian soil.

Naturally, any action will be justified when a window of opportunity opens, or even just a vent window. In conditions of war, such a situation can develop suddenly, and it should not be missed.

The main points of such a roadmap, in our opinion, are several:

• to suspend, until the full subsequent abolition by a legitimate representative body, all legal norms and other censorship practices that restrict freedom of speech and the media. Apply during the transitional period the Law of the Russian Federation “On the Mass Media” as amended on Dec. 27, 1991. Restore the activities of independent media;

• to conduct a full-scale explanatory campaign “What was it?” or “How did we get to such a point?” What were the true goals and objectives of the Russian political regime and the means to achieve them since 2000. How, for example, did it become possible that the highest representative body of the country unanimously voted for war and unconditionally sent Russian soldiers to fight on foreign territory? Why can a person be held accountable for providing premises for the training of election observers? And so on;

• form a provisional legislative body for the transitional period, empowering it to determine electoral rules, procedures and strict liability for violation of electoral rights up toand including the formation of a new parliament;

• suspend the activities of existing election commissions;

• prepare and adopt one-time rules for holding free elections of the transitional period;

• form temporary election commissions;

• carry out large-scale propaganda work about how citizens’ future depends only on the citizens themselves, that it is vital for them to come to the polls and vote;

• conduct a competitive, free, publicly controlled election campaign, and draw up honest voting results;

• form a transitional parliament on an alternative basis;

• bring the electoral legislation in line with democratic standards;

• start the installation of a normal remote electronic voting system.

Leaving the main organizational part to the politicians, we will focus on only a few points on this map where scholarly expertise is important. These are points about changing the opinion of the population about the essence of the current government, about their opportunities to correct the current situation and about “bringing to life” the electoral legislation mutilated by authoritarian and corrupted goal-setting. Moreover, it must be said right away that the first two points are immeasurably more difficult to implement than the third.

Call everything by its proper name. Political corruption, its ends and means. It is no coincidence that first Boris Nemtsov, and then the Anti-Corruption Foundation (FBK) branches, became the Kremlin’s main target during the struggle to retain power. Everything that we have studied in this book, all the transformations of the electoral legislation and the political processes accompanying it, are examples of political corruption, the signs and results of which were investigated and published by Nemtsov and the FBK. On January 31, 2015, Boris Nemtsov wrote on his Facebook page: “The task of the opposition now is enlightenment and truth. And the truth is that Putin is war and crisis.” By this time, Nemtsov had already written and readied for publication the report “Putin and the War.”2Twenty-seven days later, Nemtsov was shot dead under the walls of the Kremlin. And Nemtsov’s associates published the report and made it publicly available in May of 2015. This was far from the first report prepared by his team, and each such document was nothing more than an investigation and disclosure of the facts of political and economic corruption, which is the basis of this government. Some of the reports: “Putin. Results” and “Putin. Results. 10 years” were distributed to people in a million copies.3 The Nemtsov case was continued by Alexei Navalny through the FBK organizations, which increased in number throughout the country. Then the political optical sight focused on them. It is terribly unprofitable for the regime (both scary and unprofitable) for its true background to be known both inside the country and abroad: as soon as we begin to look at the entire history of the Putin regime from the point of view of political corruption, it acquires a different sound and a different context.

If we try to set out as compactly as possible the typology of political corruption, depending on the main areas of its application, in combination with the characteristic corrupt methods used, and combine them according to the main goals that corrupt officials are trying to achieve, then the list of types may be as follows:

1. electoral corruption (including the use of administrative resources, vote count fraud, ballot box stuffing, vote buying, etc.)—to ensure a certain composition of the people’s representative bodies;

2. nepotism (including political patronage) and buying of positions in non-elected government positions;

3. legislative corruption (including illegal lobbying) in the form of the technique of “state privatization” for “purchase” or provision of potentially corrupt government decisions;

4. misappropriation of public funds using political procedures or to achieve political goals (including through the methods of “bureaucratic” racketeering)—to acquire property for personal purposes or to solve group corruption tasks;

5. abuse of power for political purposes (including bypassing legally established democratic procedures)—to strengthen personal or group power, to ensure support for a high official status.4

Political corruption at the stage of using public power by political actors who have come to power is called the privatization of power. Iu.Nisnevich defines the privatization of power as the appropriation by persons holding public political positions of all coercive powers and rights of public power, the complete elimination of political opposition through legislative and other normative formation of political orders and rules, as well as personnel appointments in the structure of public power.5 We have analyzed all this using the example of the creation of special electoral rules.

Unlike all other types, only political corruption is not episodic, but is of a comprehensive systemic nature and uses the infrastructure of the entire political process, rather than a separate department or a separate public position, to achieve corruption goals (including for illegal retention of power, strengthening political status, wealth accumulation, etc.). Its special danger also lies in the fact that under the conditions of republican government it is carried out by political subjects authorized to make decisions on behalf of the people. Therefore, such a government, as a rule, does not advertise its corruption goals and is forced to imitate democratic processes, replacing them in fact with authoritarian practices.

That is, almost everything that we analyzed in our book is political corruption. The equation of corruption, derived by the classic anti-corruption researcher, American economist Professor Robert Klitgaard, “Corruption = Monopoly + Freedom of action – Accountability,”6 is a formula for authoritarian power.7

This formula means that corruption always occurs when the following conditions are combined:

1. the decision that a corrupt official would like to “buy” for his own benefit is made by only one subject (monopoly);

2. the boundaries of the powers of the subject-monopolist are blurred (not fully defined), there are no criteria and no clear procedure for making a decision (freedom of action);

3. there are no effective tools for monitoring the quality of decisions made (accountability).

Professor V.V.Luneev defines political corruption as a form of political struggle for power.8 D. Acemoglu and co-authors went further: through formal modeling, they analyzed the relationship between corruption and the political process and drew an analogy between kleptocratic regimes and regimes of personal power as focused on the use of power for profit.9

Political corruption is called extractive institutional corruption. This term refers to the synthesis of administrative and political corruption, when the political elite or class uses the apparatus of the state as a tool to extract resources from society, while the spread of corruption reaches such a scale and level of structure that government decisions are not made in the interests of society, and even not in the interests of private business, but solely in the interests of corrupt bureaucratic structures. Institutional extractive corruption is not a by-product of the development of the socio-political system, but is intentionally used as the main pivotal mechanism providing the increase of the controllability by a corrupt state system in the face of the risk of losing the threads of control for extracting rent and for controlling power and wealth under the threat of any pressure. As a result, it can transform into a corrupt state system and even into a mafia state.10

In order to use the resources of public power for the purpose of personal or group material enrichment, this power must first be won and then held in one’s hands by creating an appropriate political regime. Various types of political corruption serve as tools for solving this problem. This is, first of all, electoral and legislative corruption, because only with the help of electoral corruption as a central element of political corruption is it possible to seize representative power, through which, by means of legislative corruption, formal legal support for the activities of the corrupt regime takes place. Further, other types of political corruption can be used to retain power and achieve corruption goals.

And all this should be explained in detail and clearly, with evidence and examples, and using the maximum amount of media and other resources, explained to the citizens of Russia. We need to prepare for this educational campaign now.

Everything depends only and exclusively on ourselves. This is the hardest part of the roadmap. It is actually much more complicated than opening one’s eyes to the concept, content and true goals of the regime. The question “What to do?” is difficult not just because it is difficult to correct the current electoral legislation in Russia. This would be simple. But how to prove to people who are disappointed in their state and do not trust any government that only their will and their real participation can change the situation in the country? How to get rid of the learned helplessness syndrome? How to convince that the state is a service that we order for ourselves with our own money and the quality of which we have the right and the obligation to evaluate ourselves. A poor-quality service should inevitably lead to a change in the contractor. Everything else is the work of the devil. A citizen with a capital C is a person who is responsible for assessing the quality of government services. Corruption, authoritarianism and repression—all this is the price of non-participation of the population in politics for 20 years. The state, feeling uncontrolled and unpunished for any actions, enthusiastically goes beyond its powers and begins to commit excesses. As a result, distrust of the authorities and the deepest disappointment in the effectiveness of attempts to influence both its replacement and changes in the country over 20 years have become a special feature of the Russian national psychological type. However, it’s not worth guessing. When changes begin, processes in a number of cases become uncontrollable and unpredictable—we observed this effect in the USSR at the turn of the 1990s, especially since the percentage of the democratically educated population today is much higher than it was 30 years ago. If the youth come to the polls in a consolidated manner and bring the older members of their families to the polling stations, they may not have to do anything. Nevertheless, one must be prepared for the need for yet another serious explanatory psychotherapeutic campaign.

Bringing “to life” the electoral legislation. Robert Klitgaard’s corruption equation is also an anti-corruption equation. That is, if power is regularly replaced (lack of monopoly), if a clear and defined list of powers is established, conditions for administrative discretion are minimized (legal certainty), strict regulations and procedures for the activities of authorities and officials are created (lack of freedom), and external control mechanisms are established from other (special and/or governing) bodies, and from the media and civil society institutions (accountability), then the space for corrupt behavior narrows or disappears altogether.11 Translated into legal language, the anti-corruption equation will look something like this: “Regular turnover of power + Power limited by law + System of checks and balances.” The first condition of this equation is rooted in free and fair elections, so the electoral legislation must be brought into line with the requirements of freedom and justice without fail and quickly. There is no question here of in what way to pass the amendments through a parliament formed according to undemocratic rules and, which in fact is not a representative body. Actually, in no way at all. Even if the old parliament suddenly changes its opinion when the regime changes (as can be expected), it will still not become a parliament, since its personal composition was originally formed for other tasks. Therefore, a transitional parliament, which will take on the heavy burden of clearing the Augean stables of the current Russian legislation from twenty years of authoritarian accretions, is necessary in any case.

Despite many years of permanent transformation of the electoral legislation, it is not very difficult to “bring it to life.” If we summarize in a single table (as we have proposed in this book) the entire volume of many years of anti-democratic accretions, then this dirt can be quickly and systematically removed from it in six steps covering all aspects in accordance with the groups of amendments that we elaborated and introduced at different times. That is, according to the classification:

• removal of restrictions on free and equal access to the elections of their collective and individual participants;

• abolition of inequality of subjects of the electoral process;

• the removal of election commissions from the system of executive authorities;

• restoration and development of opportunities for public controlover elections;

• adjustment of the electoral system as a whole and the formula for the distribution of deputy mandates in favor of the representative nature of the parliament that most corresponds to the state of society;

• the abolition of authoritarian amendments indirectly relating to electoral law.

With this approach, only purely technical work will be required to rigorously compile a list of repealed normative acts adopted in different years.

Additionally and at the same time, it is necessary to create (or restore) a set of norms establishing a list of types of violations of electoral rights and responsibility for them, strengthening this set with special administrative and criminal procedural procedures.

Step-by-step program for the introduction of an adequate new regulation of law enforcement and control over its observance

Reviewing the manuscript of this book, the political geographer and political scientist Dmitry Oreshkin raised a problem that we have touched only in passing, but it is important. Important, including for those readers who, unlike lawyers, do not understand well what arbitrary law enforcement and the specifics of legal consciousness are. The law can be very correct. In fact, members of election commissions, law enforcement officers and judges are not necessarily guided by the law or, moreover, by the Constitutional Court. For them, the evaluation criterion when considering a specific case is often a departmental instruction, the practice of their colleagues, or the will of the boss. Lawyers by definition fight for benign formulations. But when it comes to practice, even if the correct formula can be carried out in parliament, in real Russian conditions this may well turn out to be a Pyrrhic victory.

I will cite Oreshkin’s thoughts in full: “My thesis is simple: the norms of law do not live by themselves, but in a specific socio-cultural environment that cannot be described in legal language. We talk about Common Legal Thinking (CLT) and interpret it as “international democratic standards.” I don’t think the translation is entirely accurate. Rather, we need to talk about Common Sense—about “common sense” or “public, general sense.” In a hidden form, it certainly includes the same socio-cultural basis, which is very different in different countries and eras. Therefore, a more accurate translation, it seems to me, is “generally accepted rules of law” (or something similar), with the understanding that they can be very different in different communities.” This is what lawyers call legal custom, which includes business practices. And in legal language, all this is quite well described. Only it is not called law, but the organization of law enforcement. Just as there is medicine, and there is a healthcare system.

Oreshkin continues,

“This is important, either we proceed from some international standard (by default based on the European socio-cultural basis), or we assume that there is no single, universal and global CLT and different societies have their own concept of the norm. I do not know the solution, but it seems to me that in any case, the topic deserves a separate small discussion. Evidence depends on the point of view, and the view is based on the socio-cultural environment that raised and educated us.

In the Khiva Khanate of the 18th century, the CLT was very different from the British. In Soviet Russia, this phenomenon was filled with a radically different content compared to Europeanized pre-revolutionary jurisprudence. With talk about “revolutionary legal consciousness,” aboutthe“queen of trials” (reginaprobationum), about the “severe people’s court.” The Soviet CLT rolled back several centuries. And it turned out to be much more difficult to return to the “normal” (European or international) sense of justice than our democratic brethren thought in the “wild nineties.” Personally, I observed this very closely and concretely just on the example of the elections, when the aunts and uncles in the election commissions of various levels (the lower and the more provincial, the more openly!) did not hesitate at all, but boldly corrected the voting results in a “useful,” from their point of view, patriotic direction. And you never know what is written in the Law “On Basic Guarantees!..” Paper with paragraphs is one thing, and life is quite another. CLT in Moscow and Chechnya are two obvious differences, and I don’t really understand how to deal with this.

The question is why some sociocultural environments accept “electoral authoritarianism” as the norm, while others resist. We will not go far for examples: there are elections in Turkmenistan, and in Chechnya, and in Belarus—but everyone understands that they function in a significantly different way than in Britain or Germany. Are Turkmenistan and Chechnya a deviation in relation to the common European standard or their own separate standard? The truth lies somewhere between belief in institutions and belief in traditions. Not to say that it lies in the middle—but rather still closer to globalization, universalism and institutionalism.

There is a line here that is incomprehensible to my weak mind: on the one hand, a clear simplification in the form of old-fashioned formalism with an admixture of institutionalism (lawyers who are convinced that it is worth adopting the right laws, establishing the right institutions and Constitution, and everything will work out by itself), and on the other hand, a similar simplification in the form of primordialism (this is rather a disease of our brother geographer, who is used to watching how the same (by name) institutions—parliament, press, elections, etc.—are distorted and turned inside out when they fall into a different sociocultural environment). Geography is the science of territorial diversity, while jurisprudence, it seems, is just the opposite, about bringing legal norms to a single standard.

The easiest way is to reduce everything to the primordial template of the twentieth century—they say, “Asians / infidels / savages, what else would you expect from them…” But the examples of Lukashenka’s Belarus and especially Hitler’s Germany interfere (after all, great European culture—and how easily he twisted its neck!) On the other hand we have Singapore, South Korea and Japan. Although the last two were lucky to be under American occupation and under the associated forced introduction of Anglo-American legal institutions. By the way, the example of the Japanese parliament is very interesting, where in the early years various samurai clans were fighting each other with swords, and the invaders separated them until they learned the new rules.

Similarly, with Kosovo, where the completely Turkish (more than wild) political landscape has gradually somehow become accustomed to European rules—but again, under the power control of the West. That is, it seems to me (who, as a geographer, should rather be a primordialist and, following Kipling, repeat that West is West, and East is East, andnever the twain shall meet), it still seems that in the 21st century, institutions—especially in the presence of external deterrents—are stronger than tradition.

There is potential for in-depth consideration of this issue from at least two points of view.

Firstly, Russia itself as a whole, when viewed from above, as a kind of legal entity of an intermediate status, where two instinctive systems of priorities fight (two “evidences”), and in turn the conditionally “European” evidence takes over (this is Yeltsin’s Russia of the 90s, the Russia of large post-industrial cities), then, again, conditionally, “Asian,” “Kadyrovite,” where the priorities of a remote province with a touch of the Middle Ages prevail.

Secondly, Russia is “internal,” deeply heterogeneous and conflicting in the sense of self-evident attitudes dominating in different socio-cultural environments. And this is no longer a legal moment, but a purely political one: the self-evident priority of maintaining a single political space is pushing the country towards a totalitarian model with hyper-centralization and one-man management, to the infringement and impoverishment of the rights of the regions—and, as a result, to the degradation of law, the emasculation of the Constitution, marginalization, self-isolation and, finally to what we have today. (Not to mention macroeconomics.) And the democratization that came from the West, on the contrary, creates conditions for the economic growth of self-governing cities, raising the standard of living on the ground—but automatically entails obvious risks of disintegration into feudal principalities under the leadership of autocratic comrades like Kadyrov or numerousLilliPutins, and not at all European-minded intellectuals like A.D. Sakharov or B. E. Nemtsov…

The electoral map shows this potential threat in all its glory: Putin is supported mainly by the provinces—with Chechnya, Tuva, Kalmykia or Kabardino-Balkaria at the head. And the largest cities do not go to the polls—in connection with which the share of support for Putin and United Russia in terms of the total number of voters (and not the number of those actually casting votes) is approximately two times less there.”

Oreshkin is right. There is a very large set of issues here, to understand which there should be devoted a special interdisciplinary study. Perhaps then our “picture” will become clearer, both clearer and more reliable. It’s great that legal research with elements of mathematics pushes colleagues to new thoughts. Here it only remains for us to clarify our ideas about the work that will need to be done in terms of adjusting law enforcement under the new electoral legislation. After all, even a very good law remains just ink on paper until it is implemented. Any legislative innovation will certainly stumble upon the specifics of its “Kaluga” and “Kazan” perception, as V. I. Lenin once wrote in a letter to Comrade Stalin for the Politburo “On ‘double’ subordination and legality.”12 Here, in such a large and complex country, it is time for us to introduce an additional corrective RLT (regional legal thinking) index and take it into account very carefully when carrying out the reform. Yes, a lot of things, taking into account RLT, will have to be done manually. Especially in established electoral sultanates. But nothing is impossible. Barbarism is cured by education, culture, and strict adherence to procedures.

May we have enough patience in this work and may good luck accompany us!