Valery Zorkin’s State and Revolution

Last Friday, President Medvedev appointed Valery Zorkin to an additional six-year term as chairman of the Constitutional Court. This move comes in the wake of two high profile articles in which Mr. Zorkin repeatedly stressed the fundamental importance of preserving the legal means for securing Russia’s stable development toward democracy. Mr. Zorkin’s official confirmation as Russia’s top lawyer therefore is likely more than a routine decision: It strongly suggests that the Putin regime endorses key elements of Mr. Zorkin’s legal strategy for handling Russia’s domestic crisis.

The Zorkin Doctrine

Mr. Zorkin was not always a legal pamphleteer for the Russian government. In 1993, he found himself on the wrong side of the barricades, losing his chairmanship of the Constitutional Court for leading a special session that declared President Yeltsin’s coup d’etat unconstitutional. In the years following this humiliation, however, Mr. Zorkin has had a miraculous revival of fortune. Drawing deep legitimacy from his principled stance against President Yeltsin’s violent coup d’etat, he was reinstated to the Constitutional Court in 1993. In 2000, he received a formal commendation from President Putin for his “multi-year service to the Russian state,” and in 2003, he was elected Chairman of the Court once again. As Putin’s top lawyer, he has maintained a lower political profile than he did in the turbulent early 1990s.

That changed in the wake of the massive Bolotnaya Square protests on December 10, 2011. On December 12, Constitution Day, Mr. Zorkin penned an article with a stark warning: The protest movement threatened to throw Russia back into “national catastrophe.” For Zorkin, the protestors are on the threshold of repeating President Yeltsin’s mistake from 1993 — believing that the end (democracy) justifies the means (illegality). Yeltsin’s decision to break with legality for democracy was a “deep tragedy for the country: bloody street clashes, the military destruction of Parliament . . and . . the deepest cut of all was to the respect for law, without which democracy is simply not possible.” To avoid this outcome, he called on the opposition to abandon its disregard for legality and embark upon a legal reform strategy marked by “heroic moderation.”

In his second article a month later, Mr. Zorkin significantly expanded this argument. He condemned a “creeping move” towards an international system where some governments – and here we can clearly infer the United States – believe that they are justified in undermining other countries’ sovereignty and system of legality in the name of democratic revolution. In support, Zorkin cited the example of Libya. The destruction of Libya’s “extremely defective” system of legality by the international community has led to an even worse outcome, a “chaotic intertribal warfare” and “the total destruction of the basis for the legal regulation of life.” Applying these lessons to Russia’s domestic situation, Mr. Zorkin argued that the opposition has no extralegal “right to revolution.” He argued instead that the opposition should pursue its goals through the “mechanisms and procedures for the democratic resolution of conflicts.”

Zorkin’s theory of state and revolution places the state and legal norms at the center of democratic change. Drawing on anti-Bolshevik legal philosophers from the late Tsarist period, his theory implies that the state – no matter how defective – must always serve as the anchor of order and security in any process of democratic change. If the state is destroyed, no democratic progress can be made. Thus, any successful democratic reform movement must find ways to work through the state rather than against it. The model he proposes for a state-mediated “democratic revolution” is the Spanish “Moncloa Pact”, where all members of society sat down together to negotiate a lawful legal and constitutional transition toward democratic governance.

There are strong hints that this “Zorkin Doctrine” is shared at the highest levels of Russian government. Two days after Mr. Zorkin’s December 12 article, Mr. Putin repeatedly stressed the importance of the opposition remaining “within the framework of the law” in his live question and answer session. He later emphasized the importance of “procedures for resolving disputes” and the need to petition Russia’s “energetic and objective” judges.
Furthermore, in recent remarks justifying Russia’s support of Syria, Vladimir Putin used Zorkin-esque language to criticize a “cult of violence” which has “become a trend in international affairs.” Mr. Putin continued his remarks by pointing to the Libya example. “For some reason people are not talking about the terrible crimes being committed in Sirt and other cities who supported Khaddafi today. No one is talking about these crimes because they are the clear consequence of external intervention. Syria is the same.”

Finally, Mr. Putin has placed judicial reform at the very center of his goal of improving the quality of Russian institutions. In the conclusion to his December 6 article, he specifically proposed expanding the rights of citizens to challenge administrative or bureaucratic violations in the Russian court system.

A Convenient Strategy or a Shared Commitment to Legality?

The Zorkin Doctrine might at first seem to simply provide a convenient strategy for a regime that wants to contain a surging protest movement and stress stable democratic development. But the Zorkin Doctrine is far more than that, requiring the state to abandon Bolshevik-style, extralegal means in the defense of its own goals. Mr. Zorkin stresses this point by quoting his legal hero Boris Chicherin, who wrote that “a government is moral only when it is governed by law.” If both society and the state must respect the rules of the game, we are thus left with an important question: Will the Putin regime allow its grip on power to be legally unravelled? Perhaps only one thing is certain in response: If the regime does not follow the law itself, it cannot expect the opposition to do the same.