Resisting Multiple Narratives of Law in Transition Countries: Russia and Beyond

Abstract

The literature on the role of law in countries with so‐called hybrid regimes that are stuck somewhere between democracy and authoritarianism tends to dwell on the politicization of law and the courts. This has the effect of discounting the importance of the vast majority of cases that are decided in accord with the law. Taking Russia as a case study, this essay reviews a cross‐section of the literature on its courts in order to document this tendency and explore why alternative narratives of law have failed to gain traction: Burbank's Russian Peasants Go to Court (2004); Feifer's Justice in Moscow (1964); Kaminskaya's Final Judgment (1982); Ledeneva's Can Russia Modernise? (2013); McDonald's Face to the Village (2011); Politkovskaya's Putin's Russia (2004); Popova's Politicized Justice in Emerging Democracies (2012); and Romanova's Butyrka (2010).

“When They Come for You”: Legal Mobilization in New Authoritarian Russia

“…In authoritarian regimes, however, rights advocates face at least four obstacles in political lawyering: a high personal risk for participating in activism; unfair trials; fast‐changing legislation; and repressive legislation targeting civil society organizations. Judges in authoritarian regimes may be fair when deciding mundane cases (Hendley ), but politically sensitive cases are prone to political manipulation. A victory in court is an opportunity for politicians to show political prowess and increase their chances for reelection (Popova ).…”

“…Russian citizens are not the victims of a fully broken judicial system (Hendley ), even though they distrust the court system. Although some cases are politicized—for example, the trials of feminist punk band “Pussy Riot” or former oligarch Mikhail Khodorkovsky—citizens can still win mundane cases in court (Hendley ). Russians are savvy users of the court system (Hendley ; Henry ), especially justice‐of‐the‐peace courts (Hendley ).…”

“…Although some cases are politicized—for example, the trials of feminist punk band “Pussy Riot” or former oligarch Mikhail Khodorkovsky—citizens can still win mundane cases in court (Hendley ). Russians are savvy users of the court system (Hendley ; Henry ), especially justice‐of‐the‐peace courts (Hendley ). Hendley () finds that Russia's court system is dualistic: Russians know when to pursue litigation—especially, on social rights like housing or pensions—and when to evade litigation when a case is too “sensitive.” Russian citizens often sue state officials (Javeline and Baird ; Trochev ), lodge complaints ( zhaloby ) against authorities (Bogdanova ), or file applications on social and economic rights—again, especially on housing rights—before national and regional human rights institutions (Henry ).…”

Multiple narratives of il/legality and im/morality: The case of small-scale hashish harvesting in Kyrgyzstan

“…Put simply, by deviating from its own rules and governing practices, the state undermines its own legitimacy. Recent studies in the post-Soviet region argue that this is related to the selective enforcement of laws (Brooke and Gans-Morse, 2016), and the way the criminal justice system operates and interacts with people (Hendley, 2015) Likewise, in their study of attitudes towards law in post-Soviet Georgia, Slade and Kupatadze (2017) argue that procedural injustice encountered by individuals in their interactions with criminal justice representatives have led to a low level of legitimacy of the law and state. In their study of public health programmes implemented in Russia, Brooke and Gans-Morse (2016) argue that individuals reacted to the ways in which laws were actually implemented, noting whether the state itself sent signals that a particular law was going to be enforced, or whether it would be a mere formality.…”

Activist Lawyers in Post-Tiananmen China

“…This means that legal institutions are susceptible to state meddling, and “the interests of the governed” get “short shrift” (2001, 29). Nonet and Selznick penned this archetype during the Cold War, likely with the former USSR in mind (Hendley 2015, 535). Little was yet written about authoritarian law, and the idea that law can serve as a tool of state administration remains insightful.…”