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Instructing on Russian Legislative Developments and Court Practice of Putin’s Time

Theses for Roundtable at ASEEES Annual Convention (2023) "Building a Free University in the Post-Soviet Space: Challenges and Opportunities"

Published onDec 12, 2023
Instructing on Russian Legislative Developments and Court Practice of Putin’s Time

Free University

I joined the Free University in early September 2020 and started teaching the course “Comparative Constitutional Law: Vertical Comparative Studies”. The composition of my first class was impressively diverse: undergraduate students, graduate students, Ph.D. students, practicing lawyers, faculty members (law schools, history department, foreign affairs department), journalists, etc. This course was mostly demanded by Russian law students (undergrads and graduate students) who were either dissatisfied with the quality of teaching comparative constitutional law in their law schools or couldn’t enroll (the course was either excluded from the law school’s curriculum or was offered as a limited and extremely politicized version of the traditional course on comparative constitutional law). Many students were attracted by the vertical comparative approach: tracking the history of constitutional evolution of the countries of study and the analysis of this constitutional evolution from the viewpoint of path dependence. Several students specifically welcomed the opportunity to discuss the sources that are usually not included in the traditional curriculum of comparative constitutional law (“Humble Petition and Advice”, “La Pepa”, the 1791 Constitution of the Polish-Lithuanian Commonwealth, etc.). In the spring semester, I started teaching my course “Soviet Law And Its Impact on Judicial Reforms in Post-Socialist States”. Most students were interested in the opportunity to learn about Soviet constitutional law, early Soviet criminal law, and early Soviet family law. Many participants were fascinated by the sources of early Bolshevik law and their specific features (the 1918 Constitution of the RSFSR, the 1922 and 1926 Criminal Codes of the RSFSR, the 1918 Family Code of Soviet Russia, etc.). At the same time, this course involved a lot of discussion of contemporary matters (Russia, Ukraine, Kazakhstan, the Baltics, Georgia), which was highly appreciated by the students. Together with judicial reforms, we discussed police reforms in the countries of study and numerous high-profile cases (cases of Pussy Riot, Ildar Dadin, “Memorial”, and others). In parallel with the case studies, we analyzed the main legislative developments in the countries of study (lustration laws, introducing jury trials, plea bargaining, “foreign agents” legislation, new articles of the Russian Criminal Code, etc.).

Shortly, it became clear that the discussion of contemporary issues, especially in Russia, required more detailed explanations of certain concepts and legislative developments. Emphasis was placed on Putin’s legalism, the current state of the rule of law in Russia, and the revival of certain Soviet legal concepts and practices.

The principle of legality sounds somewhat questionable in Putin’s Russia due to the increasing number of unlawful laws adopted by the Russian Parliament under Putin’s rule. Nevertheless, from his first days in office, Putin is usually referred to as “legalist” : “Putin is a legalist, i.e. a public official, who reaches his goals by legal means within the framework of the existing legal order”.1 On January 31, 2000, one month exactly after becoming acting President of the Russian Federation, while speaking at the meeting in the Russian Ministry of Justice, he offered a wording, which immediately turned out to be a slogan : “Whatever we are up to today […], we must remember about the long-standing Russian traditions of fairness and legitimacy, and remember that the dictatorship of laws is the only type of dictatorship we must succumb to”. The dogma “dictatorship of laws” became one of the keynote ideas of the first two presidential terms of Vladimir Putin2.

Analyzing the evolution of the rule of law under Putin, Professor K.Hendley notes a shift from pravovoe gosudarstvo to gospodstvo zakona (supremacy of written law) and argues that literal translation of this phrase reveals its qualitative difference from the Gorbachev-era term.3 Under Gorbachev, “gospodstvo zakona was presented as a necessary but not sufficient condition for pravovoe gosudarstvo […]. For Putin, however, the goal is gospodstvo zakona. […] Belying its literal meaning, it has come to be understood as giving officials a wide berth to decide when and to whom to apply the rules.

Putin’s love for laws drafted in accordance with his preferences should not be mistaken for the love for Law. Putin and his obedient lawmakers repeatedly ignore and violate fundamental legal principles. Numerous unlawful laws adopted under Putin’s rule leave no doubt that in contemporary Russia the word “legalist” has assumed a different meaning: a love for Putin’s laws, some of which not only disagree with fundamental legal principles — they are completely unlawful. If a country adopts illegitimate laws that violate generally accepted legal principles and legitimize arbitrariness at the legislative level, the consequences may be terrifying: it is well-known that the law can be used to legitimize the worst lawlessness. The most glaring example of such a misuse is offered by  the infamous Nuremberg Laws, including the “Reich Citizenship Law” and the “Law for the Protection of German Blood and German Honor”, which deprived Jews of German citizenship, dictated that they must wear clothes in the “Jewish” colors, and forbade marriage and sexual relations between Jews and members of the “Aryan” race. As noted by Dr Rainer Grote, “the experience of the National Socialist regime, which used the legislative and administrative bodies at its sole discretion to enrobe even the most outrageous and egregious policies in the clothes of formal legality, dealt a fatal blow to the positivist concept of Rechtsstaat.”4.

During the last 15 years, we have seen numerous warning signals that the worst legal concepts and practices of the Soviet times are coming back, and the fundamental principle of the Rule of Law is in danger. Here is the open-ended list of the most disturbing legislative developments and practices:

  • personification of punishment (criminal cases of Mikhail Khodorkovsky and Platon Lebedev, Pussy Riot, Alexey Navalny and others);

  • vague and ambiguous wording of legislative provisions, which constitute unlimited grounds for arbitrariness (the 2012 version of the “High Treason” article of the Russian Criminal Code of 1996);

  • unlawful laws (Art. 212.1 — the “Dadin’s Article” — and Art. 207.3 of the Criminal Code, the legislation on “undesirable organizations”, the “falsification of history” provisions);

  • Criminalization of activities that represent no danger to the society (the Dadin’s Article, failure to report the second citizenship, etc.);

  • legislation that has been specifically designed for the purposes of witch hunt; discriminatory legislation;

  • selective application of law;

  • lawfare; intimidation and prosecution of family members of political activists and ordinary people, and show trials;

  • disproportionally severe punishments;

  • the last decade saw an increase in the defensive nature of Russian law (similar to early Bolshevik law): the state protects itself against its citizens;

  • escalation of the role of the state; the state as a constitutional value.

DOI: 10.55167/ff74b8bace87

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