Conservative Jurisprudence and the Russian State

In the past five years, Russian legal initiatives have been widely labelled as conservative. While attacks on the rights of women and sexual minorities have prompted strong responses from activists, the decisions of the Constitutional Court (CC) in 2015 on the interpretation of the European Convention of Human Rights (ECHR) and consecutive amendments to the Federal Constitutional Law No. 1 ‘On the Constitutional Court of the Russian Federation’ deeply disturbed the legal establishment with its clearly reactionary message of protective sovereignty.¹ Some legal experts attempted to normalise the CC’s protection of ‘national constitutional sovereignty’ by refusing to automatically implement the decisions of the European Court of Human Rights (ECtHR) arguing that in the situation of a collision between ‘Strasbourg’ and ‘national’ systems of human rights protection the Russian CC acted rationally and logically in trying to protect the Constitution and finding a way to implement the ECtHR’s decisions (Kalinichenko 2016). Others used a pragmatic explanation of the CC’s way of dealing with international law insisting that in collisions between supranational and national bodies only ‘judicial cooperation’ and ‘sensible dialogue’ would help to balance national and international law (Vaipan & Maslov 2014; Vaipan 2016). However, the first and immediate reaction to the CC’s decision of July 2015 was caution and fear on behalf of human rights activists and legal practitioners, who saw it as the first step towards Russia’s divorce from Europe (Ivanov 2016). The discussion around these decisions reflects the broader discussion about sovereignty, law, justice, its efficiency, the rule of law and Russia’s attempt to deal with the current challenges of globalisation and geopolitics in a rapidly changing world.

This special section offers a variety of approaches on how to conceptualise Russian legal responses to these globalised challenges and think about future legal developments. The scholars who have contributed to this volume examine a number of issues analysing human rights, migration law, the Russian approach to international criminal law, free speech, the concepts of state and society and the Crimean crisis. The analytical material and empirical evidence they offer could be further conceptualised within the framework of conservative jurisprudence: the Russian legal profession and scholarship have been slowly adapting to it as a method of dealing with the law rather than as an ideology or practical tool for legal implementation. In this Introduction, I focus on how conservative jurisprudence works in the Russian environment to further offer a useful framework for thinking about Russian law.

Conservatism á la Russian: law and politics

The concept of conservative jurisprudence includes two essential elements: conservative contents and the manner in which legal reasoning is used to interpret the norm of law. The first element, that is the conservative contents of law, clearly reflects the conservative political ideology that President Putin acknowledged as a positive political and social concept in his Address to the Federal Assembly in December 2013 (Laruelle 2013).² This recognition gave the green light to a number of essentially conservative legal initiatives all of which appealed to the protection of Russian sovereignty as an important legal and political value (Antonov 2014). As Katja Ruutu suggests in her essay, the concepts of sovereignty and sovereign democracy, as well as being key elements of the state-centred approach to politics, were intended to create social and political unity in Russia, but failed to do so. However, some scholars observe that, as a political ideology and value system, Russian conservatism relies heavily on the past (Medushevsky 2014). On the other hand, others view it as a positionist anthropocentric ideology with a focus on the future (Chebankova 2016). While conservatism is successfully used in Russian populist ideologies to push forward certain legal initiatives, especially in the social domain, such as anti-LGBTQI laws or restrictive migration policies (Makarychev & Yatsyk 2015), it has limited application in economics, although the label ‘conservative modernisation’ has been used to describe Russian economic development (Flenley 2015; Rousseau 2016).

Over the course of recent conservative legal initiatives it has become clear that a certain kind of legal reasoning is required for them to be efficiently implemented. In other words, the lawmaker and the judiciary have to agree on how to interpret the norm of law, for this norm to work in a given context. This is where conservative jurisprudence as a system of interpretation becomes useful for understanding the legal context of the Russian political and legal agenda. Conservative jurisprudence as a methodology is particularly visible in constitutional law as a foundational framework for the state and society to function according to the interpretation of the Constitution.

‘Conservative jurisprudence’ was coined as a term by American legal researchers to highlight the inherent dichotomy of the conservative–libertarian range of constitutional interpretation (Heyman 2014). Conservative jurisprudence is commonly viewed as having an agenda of limiting rights in cases concerning personal, familial and sexual liberty in order to remain as loyal to the past as possible. This is justified by a methodology that only looks to specific traditions that are often arbitrarily picked by the lawmaker. By subscribing to the assumption behind a constitutional interpretation that views the text as a rulebook to be followed as strictly as possible, conservatives are subsequently able to justify employing the narrowest level of generality in their analyses of tradition. This provides justification for the political outcome of limiting rights on legal grounds because it interprets the Constitution as a guide for how to remain as loyal to the traditions of the past as possible (Bignami & Spivack 2014). The most specific view of tradition provides a legal basis upon which to decide a case because it is the closest way to ensure that society continues to follow the Constitution in its most literal sense. With this methodology, conservative justices generally arrive at legal outcomes that are likely to conform to the conservative political agenda of limiting rights to the utmost legally valid extent. The conservative justices are obviously much more likely to rule against the legitimacy of the right in question with a methodology that only encompasses the most specific and narrow traditions associated with that right. Another important issue is the level of generality of the tradition in the scope of its interpretation: in conservative jurisprudence the most specific tradition is a concrete guideline with a lower and upper limit on the scope of interpretation (Brest 2006).

In the Russian case, such a methodology became explicitly visible when the State called upon the CC to legitimise its actions using ‘tradition’, loyalty to the past and originalism as the main techniques for such legitimation (Muravyeva 2014). Therefore, the issue of interpretation becomes increasingly important for contemporary Russian legal theory and decision-making as the CC attempts to establish the normative sovereignty of national legislation over supranational treaties and judgments in its fight for legitimacy.

Uses of conservative jurisprudence in Russian law

In connection with the Ukrainian crisis and the annexation of Crimea, the cornerstone of the constitutional debate for Russia is the discussion of its sovereignty. This has resulted in heated arguments over the scope of intervention permitted in Russian legal space by other legal systems, that is, by the ECHR and its decisions. Coming from the judiciary rather than from the lawmaker, the CC’s decision dated 14 July 2015 is a defining act highlighting the legal reasoning behind insisting on the priority of the Constitution of the Russian Federation over international law (or in Russian terms, ratified international agreements).³ The text gives an interpretation of the Constitution (art. 15.4) in connection with other Codes and federal laws. What is interesting is the method of legal reasoning and interpretation used in this text. Zorkin, the presiding judge and other justices were called upon to provide a grounding for Russian legal sovereignty, that is, to prove that only those decisions of the ECtHR which conformed to the Constitution of the Russian Federation are applicable in Russia. To do that, Zorkin invoked a very narrow level of generality and treated the text of the Constitution as a rulebook (see, for example, para. 2.2) precisely as American conservative justices had done before them. The approach of Zorkin (and the other justices) followed the guidelines of originalism:

If the ECtHR, interpreting the Convention in relation to the case under ruling, uses an unusual or different interpretation of the Convention’s text or interprets it contrary to the Convention’s objectives and goals, then the State, in relation to which the decision is made, has a right to refuse to implement the decision as it goes beyond the scope of responsibilities originally assumed by the State when the Convention was ratified. (para. 3)

What we have here is loyalty to the text of the law without taking into account any possible external frameworks that might influence the text and its interpretation. Such legal reasoning can be called conservative.

The CC judges used Judge Scalia’s originalism theory to make a point about normative sovereignty but within accepted legal theory (Bibas 2016). While common law justices usually seek to discover the original intent of the legal text (the Constitution or the statute) through some combination of the authority of the text, the lawmaker’s intent, history and tradition, and the idea of conventional objective morality (this is called originalism), civil law justices are more focused on the rules of applicability of the authoritative text. Conservative justices adhere to the text and think it legitimate when it is properly applied: they do not welcome interpretation, contextualisation or adaptation to the flexibility of everyday law. The legal text remains an unchangeable framework of rules to protect an absolute norm from the stormy changes of unstable external factors (such as politics or economics). However, politics cannot be ignored in these cases, as it functions as a reason to use the method in the first place. From this point of view, conservative jurisprudence made its way into Russian judicial practices of interpretation.

Russian judicial conservatism and political necessity

According to Medushevsky (2012), in the post-Soviet transitional period, legal theory has been re-shaping three main dimensions of legal interpretation: space, time and identity. I would like to focus on the first two. Space as a legal category becomes the object under construction in the context of the sovereignty debate in the era of globalisation. Legal space is constructed as a type of social space that hangs in limbo between the West and the East. Schematically formulated, this concept is the starting point for the conservative romantic rescheduling of the post-Soviet intellectual debate. Arguing that there is a specific type of ‘Russian (or Eurasian) civilisation’, this debate covers such problems as the approach to European law and, particularly, to judgments of the ECtHR concerning Russian internal politics (Chebankova 2016). However, the spatial dimension of legal reasoning is closely connected to sovereignty and territorial integrity, two major concepts in the Russian defence over Crimea and Ukraine. In his essay, Jorge Emilio Núñez underlines the problematic nature of modern sovereignty debates, in which there is a heavy dependence on the physicality of territorial integrity, which leads to the exclusiveness of sovereignty over a given territory. Núñez argues that modern conflicts over sovereignty are insoluble due to this understanding. Using Rawls’s concept of ‘distributive justice’, Núñez offers a departure from the physicality of sovereignty allowing us to think differently about legal space and practice shared sovereignty based on the principle of egalitarianism. While Núñez’s suggestion is rather radical for the classical modern spatial understanding of legitimate spaces, it does expose Russia’s inability or reluctance to depart from a traditional understanding of sovereignty and favour a narrow or conservative interpretation of sovereignty based on Jean Bodin’s classical formulation (Antonov 2014).

The relationship with the ECHR is not the only domain where conservative interpretation is visible. International criminal law, as Gennady Esakov argues in his essay, provides another excellent example of these same problems but they are framed in a more explicit political discourse. In his analysis of the discourses and scholarship of international criminal law, Esakov highlights how the politically based concepts of international law interfere with the legal practice of international law, which to a certain degree explains many of Russia’s recent decisions, including the refusal to ratify the Rome Statute due to the ICC investigation into the Crimean crisis. Instead of providing balanced expertise, Russian scholarship sided with the government by offering justifications rather than critical responses to the legal issues within international law.

Time is a legal category that relates to the problem of the historical legitimacy of law, that is, to what degree the post-Soviet break with the legal tradition influenced the stability or instability of the transitional legal system, how far back the historical continuity of the contemporary legal system (is it a completely new phenomenon or the continuation of Soviet or pre-Soviet legal reality?) goes, and what a permissible scope for the retroactive interpretation of law should look like. Historicism is proclaimed by many conservative critics of the current Russian legal system as a key method of argumentation regarding not only a general retrospective orientation of sociological theory, but also the romantic idealisation of the future as a return to the past (Chebankova 2016). It means that the search for an explanation of current social events functions using the framework of the so-called ‘national soul’ (in the sense of the German historical school), one that elaborates on such concepts as ‘Moscow—the Third Rome’ and ‘Orthodoxy, Autocracy, Nationality’ reinterpreted for present-day sovereignty discourses (Laqueur 2014; Marsh 2016; Østbø 2016). The conclusion is that the ‘Russian idea’ is profoundly anti-modern and anti-western (Melin 2017). All of these problems are important in the context of post-Soviet legal decisions, because they construct the legal reality not only for the present and the future, but also sometimes for the past. As Medushevsky (2012, 2014) points out, this happens in cases of a change of property relations (such as in cases of restitution—the return of property to former owners); or a rapid change of economic belief that puts into question the principle of equality in legal protection (decisions on banks, taxes and social security in periods of crisis); it may even mean the re-writing of legal history (for example, decisions on lustration legislation). Moreover, using the concept of ‘traditional values’ as historically legitimate and appropriate for the solution of current social problems by legal means, that is, by using law to enforce certain types of behaviour (heterosexual and procreative) results in the further traditionalisation of the law as a specifically ‘Russian’ value system (Muravyeva 2014). In this situation, the discussion of human rights and human rights protection instruments functions within historical assumptions of those rights being foreign to the Russian legal tradition, which reflects the whole painful post-Soviet history of the Ombudsman’s office. Freek van der Vet in his essay shows that while the State was originally eager to develop civil society and protect human rights by establishing the Ombudsman’s office, with the present backlash against the NGOs and civil society in general, activists and political elites in St Petersburg created a meaningful cooperation as a result of both the NGOs’ and politicians’ dissatisfaction with the implementation of the law by the Ombudsman, the disappearance of democratic parties from the city parliament and the loss of parliamentary seats. Both sides shifted identities by transferring between activism and political and legal work to have better opportunities for their short-term and long-term goals. This created a common civil rights agenda at least at the local level.

Spatial and temporal aspects of legal theory in Russia expose political necessity as a crucial element for legal reasoning. In other words, conservative jurisprudence at its theoretical level is prone to use traditional and classic categories and concepts that reduce their interpretive scope to a very narrow range, thus providing the state with convenient legitimacy tools to argue its course. These categories, concepts and tools cry out for proper deconstruction and Alexander Kondakov does that in his essay. Using a poststructuralist approach, he introduces ‘queer coalitions’ as a resistance strategy to essentially modern migration legal initiatives. Having examined the categories used by people involved in the implementation of migration policy, Kondakov explores the potential of coalition-building in this process. The usage of the ‘queer coalition’ as a fluid and unstable political form that rapidly takes shape to challenge an existing inequality, only then to appear or transform into another instance of political resistance, helps to conceptualise legal initiatives in social and economic spheres. In this example, Kondakov shows how the formal language of law, which is based on racism and classism despite its presumed neutrality, facilitates coalition-building among both the recipients of those laws and their creators. His theoretical analysis further questions legal identities and modes of decision-making.

Legal identity and conservative jurisprudence: old or new conservatism?

How does one explain legal practice and legal reasoning that leads to often unbalanced legal initiatives and judicial decisions? Is conservatism a prevalent ideology among legal professionals? What do lawyers and judges know about conservatism? These are the questions that follow the analysis of recent legal initiatives and judicial reasoning.

Before President Putin openly admitted adherence to conservative values in his presidential address in December 2013, conservatism as a political theory had not been perceived positively in Russian political thought. Textbooks on the history of political and legal theories still favour liberals and liberal concepts giving much more space to John Locke, Jeremy Bentham and Mikhail Speransky than to Robert Filmer, John Burke or Nikolai Karamzin and, indeed, Westerners rather than Slavophiles continue to be preferred (Butler 1996; Nersesiantz 2010). Consequently, the training of lawyers is mostly based on liberal political theories. In terms of legal reasoning and theory, legal education relies on German and Austrian statehood concepts (rechtstaat) and the French school of the sociology of law crowned by Kelsen’s normativism and Dwarkin’s liberal limits on legal interpretation (Polyakov & Timoshina 2005). To expect lawyers with such an education to be theoretically conservative is rather difficult as they are trained in a different tradition.⁴ At the same time, the structure of the legal profession and recruitment practices reduce whatever ideological or theoretical background law graduates have to one of pragmatism and necessity. Hendley (2016) calls the Russian legal professionals ‘technicians’, since Russia’s civil law system requires technicians rather than advisers. The Russian judiciary is also predominantly female and recruited either from the court apparatus (that is from assistants and clerks, which might explain its gender specification), or law enforcement (procurators and police investigators). Such recruitment practices make the judiciary a very closed group closely connected to executive agencies (Volkov & Dzmitryieva 2015).

In this situation, the content of the law is unimportant. As the judiciary and other legal practitioners are technicians who are there to properly apply whatever law is passed by the lawmaker, techniques of interpretation become mostly important in terms of how the law works. This has been especially revealing during the conservative turn, which has manifested itself in restrictive legislation on human rights (in terms of freedom of speech and self-expression), the politics of memory, a focus on traditional values and austerity legislation, happening under the scope of a debate between ‘tradition’ and ‘norm’ (although not among legal practitioners). Looking at the 2012–2015 legislation on property, economic policy (notably sanctions), social policy (notably pension reform and social security law amendments) and morality (notably limiting information on sexuality for children or protecting the feelings of believers) reveals that these initiatives became a battle ground between official political conservatism in times of economic crisis and the essentially liberal or neo-liberal ideas of legislation from the 1990s and 2000s that targeted economic growth in a sustainable market economy and modern welfare state. What we have here is an instrumental use of the law by the lawmaker, who invokes positivism to protect so-called ‘national identity’ understood as sovereignty as discussed in the previous section.

The criminalisation of freedom of speech is a good example of how these debates were reduced to the protection of ‘national identity’ against insults from both without and within. As Gleb Bogush’s analysis shows, Russia has a long history of limiting freedom of speech and expression, one that supposedly ended after the collapse of the Soviet Union and the creation of a new liberal agenda with respect for constitutional law. When Russia was aiming at integration and modernisation, the State tolerated freedom of speech and expression. However, once the conservative turn took hold, the restrictive legislation was passed rapidly. It included both anti-LGBTQI laws and the criminalisation of libel as well as ‘protection of the feelings of believers’ and memorial laws (‘rehabilitation of Nazism’). All of these legal initiatives have been passed with the powerful rhetoric of the supremacy of national interests over human rights. It is instructive in this case, that the judges have had no problems whatsoever in applying essentially anti-constitutional provisions in their courtrooms and handing down convictions using a very literal rendering of the norm of law.

The political situation in Russia is becoming more volatile. On this issue, we have attempted to provide an analysis of some of the crucial aspects of Russian legal development to explain current trends and outline possible future legal trajectories. We also hope that this issue will start a broader conceptual discussion on legal issues and concepts.

Notes

¹ The Decision of the Constitutional Court of the Russian Federation No. 21-P dated 14 July 2015 ‘On Assessing the Constitutional Validity of art. 1 of the Federal Law “On Ratification of the European Convention of Human Rights and its Protocols”, art. 31.1 and 32.2 of the Federal Law “On International Treaties of the Russian Federation”, art. 11.1 and 11.4, art. 392.4 of the Civil Procedural Code of the Russian Federation, art. 13.1 and 13.4, art. 311.3 and 311.4 of the Arbitrazh Procedural Code of the Russian Federation, art. 15.1 and 15.4, art. 350.4 and 350.1 of the Code of Administrative Procedure of the Russian Federation and art. 413.2 of the Criminal Procedural Code of the Russian Federation in Connection of the Request of the Deputies of the State Duma’, available at: https://rg.ru/2015/07/27/ks-dok.html, accessed 10 June 2017; The Federal Constitutional Law No. 7-FKZ ‘On Amendments of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”’, dated 14 December 2015, available at: https://www.consultant.ru/document/cons_doc_LAW_190427/, accessed 10 June 2017.

² ‘Poslanie Prezidenta Putina Federal’nomu Sobraniyu RF’, 2013, available at: https://goo.gl/KLzRfY, accessed 10 June 2017.

³ The Decision of the Constitutional Court of the Russian Federation No. 21-P, dated 14 July 2015 ‘On Assessing the Constitutional Validity of art. 1 of the Federal Law “On Ratification of the European Convention of Human Rights and its Protocols”, art. 31.1 and 32.2 of the Federal Law “On International Treaties of the Russian Federation”, art. 11.1 and 11.4, art. 392.4 of the Civil Procedural Code of the Russian Federation, art. 13.1 and 13.4, art. 311.3 and 311.4 of the Arbitrazh Procedural Code of the Russian Federation, art. 15.1 and 15.4, art. 350.4 and 350.1 of the Code of Administrative Procedure of the Russian Federation and art. 413.2 of the Criminal Procedural Code of the Russian Federation in Connection of the Request of the Deputies of the State Duma’, available at: https://rg.ru/2015/07/27/ks-dok.html, accessed 10 June 2017.

⁴ For more on legal education see Hendley (2016).