Mr. Putin’s “Rule-by-Law State”

In the last couple of weeks, the Russian authorities have increased their efforts to stem the tide of the Russian opposition movement. On June 8, President Vladimir Putin signed a controversial law introducing cripplingly high fines for protest violations. On June 9, six people were detained for allegedly inciting violence in a May 6 protest. On the same day, eight people were detained in front of the Moscow police headquarters on Ulitsa Petrovka for protesting the earlier arrests. Finally, on June 11 – the day before a major opposition protest – men with Kalashnikov rifles raided the homes of prominent leaders of the opposition.

Is Russian history repeating itself? Are we seeing the beginnings of a Stalinist style repression orchestrated by a former KGB colonel? Many Russian bloggers have recently hinted at this: A photograph of a Soviet coin issued in 1937 – the year that marked the peak of the Stalinist purges – has recently been making the rounds with a caption reading: “In circulation once again.” This comparison was carried further when Twitter hashtag #privet37god (hello, 1937) topped the trending charts. Although it might be tempting to take these Stalinist comparisons seriously, they obscure a far different – and more complicated – reality.

From Party Discipline to Legal Discipline

In the Soviet Union, law was a bewildering web of conflicting laws, decrees and regulations. In the absence of clear law, the Communist Party implemented their policy through an appointment system in which party members were parachuted into key state positions to implement party policy (“nomenklatura” system). To function, this system of governmental power relied on personal loyalty to party policies rather than the top-down implementation of legal rules. This lack of clear rules left the Party plenty of room to manipulate the law to advance its interests.

As belief in communist ideology waned and fear of harsh party discipline subsided, however, this system grew increasingly less effective at implementing high-level party policy. Mikhail Gorbachev was the first to try to reform this inefficient system of personalized governance, ending the party’s monopoly on power and attempting to implement policy through presidential lawmaking. This project was ultimately a failure: Without party discipline, law tore the Soviet Union apart as presidents of the Soviet republics, like Boris Yeltsin, themselves passed laws to weaken the Soviet center and eventually declare their independence.

After independence, Russian President Boris Yeltsin continued to use law to battle an openly hostile Russian Parliament, issuing dozens of executive decrees that conflicted with parliamentary laws. This “war of laws” worsened the conflicting system of laws inherited from the Soviet period and paralyzed the Russian government. As parts of the Russian state fell under the control of powerful business or regional players, it was unclear who was actually “running Russia.” In 1997, President Yeltsin declared the need to restore “legal order” in the Russian state and appointed a newcomer from St. Petersburg to carry out this mission: Vladimir Putin.

Strategic Presidential Lawmaking

Mr. Putin would take up this mission in earnest as president. Within months of taking over the presidency in January 2000, Mr. Putin worked to rebuild state power by constructing a “rule-by-law state” where law formulated by the presidential administration would be implemented in the country by courts and prosecutors. This Putinist legal system relied heavily on the “strategic-operational dichotomy” that Mr. Putin had outlined in his plagiarized thesis. The president formulated strategic policy through lawmaking, and judges and prosecutors monitored the implementation of these laws though the judicial process. To implement this legal power vertically, Mr. Putin focused his attention on coordinating legislative policy with parliament by simplifying legal codes and signaling to judges and prosecutors that he would expand their power in return for loyalty.

Since 2000, Mr. Putin has made clear steps toward realizing this system. Parliament has worked closely with Mr. Putin in updating legal codes and passing strategic legislation that re-centralizes power in Kremlin. Newly empowered prosecutors and judges have enthusiastically implemented these “strategic” presidential legal initiatives. The success of this strategic “rule-by-law” state has not, however, led to increased democratic pluralism. On the contrary, it has allowed Mr. Putin to reassert presidential control over two forces that challenged the Kremlin for power during the 1990s: the regional governors and powerful business oligarchs.

This “rule-by-law” state, however, constrains Mr. Putin as well. Unlike his Soviet predecessors, Mr. Putin can no longer indefinitely detain and execute “enemies of the state”. Although the Putin regime can manipulate legal process to its ends, it cannot completely flaunt international standards. The prosecution of Mikhail Khordorkovsky is illustrative. An exhaustive review of the case by the European Court of Human Rights found evidence of abuse of process, but ultimately did not find sufficient evidence to conclude that the prosecution was politically motivated. Even the recent law increasing fines for the protest violations shows these constraints: This law was passed to expand the range of legal tools available to the Putin regime in its attempt to “strategically manage” the opposition movement.

Mr. Putin’s rule-by-law state also provides opportunities – albeit limited – for members of the opposition to fight back against the Putin regime. For instance, opposition leader and lawyer Alexei Navalny has made a name for himself by buying minority shares in sensitive state-owned companies and then scouring the books for evidence of corruption. He remains a savvy user of the law, most recently suing the Russian Investigative Committee for more information on an ongoing investigation. Thus, although there is little question that Mr. Putin’s rule-by-law system is a far cry from a Western-style rule of law system, a simple conclusion is inescapable: Law matters more in Russia today than it ever has before.