Since the dissolution of the Soviet Union, Russia has declared its commitment to values that the United States also subscribes to: democracy, human rights, and free enterprise. A fundamental American belief is that the rule of law, including separation of powers and judicial independence, is needed in order to achieve and protect these values.
What has been the Russian understanding of the rule of law? What is the current status of the rule of law in Russia, and what developments can be expected in light of Russia's perspective, Anglo-American legal history and the European legal systems that have most influenced the Russian legal system?
DANIEL ROTHSTEIN: Very quickly, I'd like to try to set the stage for our topic today. Law follows the lead of political and economic events. And the events in Russia over the past sixteen years have been tumultuous: the break-up of the Soviet political and economic system, separatist wars, the creation of a new market economy, mass privatization, hyper-inflation leading to the collapse of the financial system in 1998, recovery and dynamic economic growth over the past ten years, and, through it all, intense competition and fighting over property and over political power, including substantial renationalization of natural resource assets over the past several years. All this would be too much for any legal system to digest, I think, especially a new legal system in a country with little historical experience with the rule of law.
In a speech in January, Mr. Medvedev, now the President-elect, said: “Russia is a country of legal nihilism. Not a single European country can boast of such contempt for the law. We buy pirated disks without blinking. Contracts for many millions are written on a slip of paper with three clauses, and payment in cash. The organs of state administration are corrupt.”1
Historically, one of the common explanations for the weakness of the rule of law in Russia has been an authoritarian political tradition. Mr. Sergei Ivanov, the First Deputy Prime Minister and one of the main people named as a potential successor to the presidency, had this to say in an interview with the Financial Times last April. The Financial Times asked, “What's your reaction when people talk about ‘Kremlin Incorporated?’” Mr. Ivanov: “You need to understand our history, our mentality. Russia is a huge country, and mentally, unfortunately, the majority of the population as before relies on the Tsar. Our civil society is still weak. It can't be strong because only fifteen years have passed since it began to be created. Before then, you'll agree, there was not the slightest condition for it to be created. It is still very young.”2
The cover story on Russia in this week's Economist magazine reports, on the one hand, rule-of-law problems, concerns among foreign investors about corruption, and so forth. On the other hand, surveys report high investor satisfaction with the business and investment climate in Russia.3 At the same time, I don't think it's very controversial to say that Russia needs to strengthen the rule of law in order to solve basic economic problems, in order for the government to function, and in order for individual rights to be secured. So the question that I've asked our panelists to boldly speculate on is: how can the rule of law take root in such a big country going through such tremendous transformations, and in light of its history?
Thank you again for coming, panelists, and for contributing your time. In order of presentation: Jane Burbank from the NYU History Department has written extensively on the pre-revolutionary Russian legal system, and also to some extent about the Soviet legal system.
To Jane's left: Richard Wortman, from the Columbia University History Department, has written extensively on the Russian legal system and other aspects of pre-revolutionary Russia, in particular the legal reforms of 1864.
To Jane's right is Katharina Pistor of Columbia Law School, who is a German lawyer by training, which is helpful to us, because Germany is closer in its legal traditions to Russia than the Anglo-American system. Katharina worked in Russia as a lawyer in the 1990s, and has written extensively on post-Soviet legal developments.
William Nelson, to my left, from NYU Law School, is a U.S. legal historian, not a Russia specialist. I've asked Bill to share some of his views, which already surprised me on the phone, about our own notions of the rule of law and how peculiar they might be in world experience and how relevant they are to the modern world – or not relevant.
I would suggest that after each speaker, if there is a question or two for clarification, something quick, we can field it, and then have discussion after all the presentations. So, please, Jane.
PROFESSOR JANE BURBANK: Thank you very much, Dan. And thank you all for being here.
Many Russians believe that Russian law is an oxymoron. But law has been part of Russia's life and history both before the Bolshevik Revolution of 1917 and after, and both before 1991 and after. Lenin was a lawyer. Gorbachev had a law degree from Moscow State University. Putin graduated from the law faculty of what was Leningrad State University. And the new President, Dmitri Medvedev, is also a graduate of the St. Petersburg State University law faculty. So Russia in the recent past has been led by people trained in the law, and the law faculties continue to prepare young people for careers. The number of lawyers has doubled since 1996. The case loads of Russian courts grow yearly.
At the same time, Western, and particularly American, lawyers are repeatedly perplexed by what they see as an absence of “rule of law” in Russia. So what is the problem here? In my remarks, I want to suggest that we need to open up our considerations of “rule of law” beyond the American context and beyond American assumptions. If we do this, we can see that Russia has a long tradition of legal rule vital to the ways that the polity was held together, and that the subjects of the Russian empire a century ago used courts in their own interests, expecting to get justice from those institutions.
I will also suggest that misunderstandings of Russian law derive from listening to the wrong people, looking at spectacular cases and not at ordinary ones, and from imagining that our legal system is the normal universal standard by which other legal systems should be measured. If we can look at the law at work in ordinary circumstances, we will see that Russians do seek to use the courts to resolve conflicts — the ultimate testimony, in my view, to law's importance in social and political life. But their expectation that the courts will be useful to them is not accompanied by a belief in separation of powers, at least not on the part of the ordinary citizens. So, engaging with Russian law effectively means recognizing that the legal system operates with quite different assumptions and structures than does ours.
I'm going to go briefly to imperial Russia before 1917 — I've written a big book about the use of the courts by ordinary people at this time — and talk about the law before the Bolshevik revolution. First of all, before 1917, as now, intellectuals and other elites would have told foreigners that the legal system was fatally flawed, that it was abnormal, that it was not Western, and that it was corrupt. They would have blamed this on two things: on the autocracy with its monopoly on power, and on the people whose backwardness meant that they were not ready for the rule of law — very similar comments to what we've just heard from Medvedev and Ivanov. But these informants in pre-revolutionary times lived in a country where courtrooms were full of litigants seeking justice from the legal system, where legal decisions were made and enforced, and where, as I argue in my book, peasants and other lowly subjects were familiar with legal procedures and used them.
Let me describe very briefly some of the features of the imperial legal system in practice as opposed to myth. The emperor's ultimate power was set forth in law. Subjects possessed rights of various kinds defined in legal codes and enforceable in courts. Administrators issued their decisions within the framework of a legal order. Litigators took cases to courts that were legitimated by imperial authority.
One vital aspect of the legal system in the past was the devolution of authority to lower level courts. Misdemeanors and small suits would be judged by low-level courts and local authorities. Another aspect of the imperial legal system was the pragmatic recognition of an array of populations in the empire and a corresponding practice of allowing an array of local courts to judge according to local or religious norms. The local courts of imperial Russia included rural courts, shariah courts, mullahs' courts, township courts or peoples' courts (as in native peoples' courts). Those were all places where litigants, clerks, judges, and witnesses engaged with the law in different languages, different rules, different social referents, and still with the legitimation of imperial majesty. What this meant was that a lot of judicial activity went on below the lofty horizons of intellectuals and other engaged elites. The most-used courts in the empire were — and this is perfectly normal — the lowest ones.
In the nineteenth and early twentieth century, in rural Russia, the first place for legal contestation for a small civil matter or a misdemeanor charge was a township court, where cases would be judged and decided by three or four elected peasant judges. In these courts, arguments were made by the parties themselves, no lawyers were allowed, and the clerk was obliged to record elements of the case. In my book on these lower-level courts, I show that justice at the township courts in rural Russia in the early twentieth century was accessible, cheap, fast, and effective. Starting a case meant simply filing a petition with the local authority. There was no charge for this. Cases were heard promptly: the average time from registering a case until the court hearing was eight weeks. In Moscow Province, for example, for the entire period between 1905 and 1914: between 90 and 94 percent of all cases registered at the 168 township courts were decided within the same calendar year in which they were registered.
Enforcement was rapid, too. Verdicts were supposed to be fulfilled within six months, but in most cases the rule of courts worked much faster. Accessibility, speed, and effectiveness — these qualities of Russian law in action may explain why the case load of rural courts grew relentlessly over the years between 1905 and the outbreak of the World War in 1914. Just to give you an idea of the scale: in Moscow Province, these 168 township courts heard 48,000 cases in 1905, and 84,000 in 1913.
A couple more qualities of these township courts: for one thing, both men and women could bring suits and accusations. And my calculations show that there was absolutely no effect of gender on the outcome of the case. Of course, women brought fewer cases, because they generally possessed less property.
So why did Russian peasants go to court in the early twentieth century? This question can help us think about the place of law in Russian life at the time.
As lawyers, you'll not be surprised to know that civil suits were more numerous than criminal charges at the lowest-level courts. The most common kind of case to come before a township court was a suit, and that meant collecting a debt. And the second-most common kind of case was a misdemeanor charge of “insult in word or deed” filed under statutes that criminalized personal insults. There were many other kinds of cases, of course, including disputes over family property, inheritance, theft. But these two most common cases — disputes over a debt (debt collection and payment), and an accusation of insult — show that Russian subjects went to court over things that concerned them and not things that particularly concerned the state. In both cases, they went to court in large numbers in order to find justice through the law.
If this picture of Russian peasants spending their holidays in courtrooms — these courts held their sessions on holidays (often Sundays) — is unfamiliar to you, it's not your fault. For over a century, Russian intellectuals and scholars, and foreign scholars who followed after them, have been telling themselves and outsiders that Russia is a lawless place and that peasants could not understand the law. If we can look back at court documents from an earlier period to disprove this myth of lawlessness in the past, can we do the same for today's Russia?
I'll conclude with a few remarks. My suggestion is that we look at law in Russia rather than looking for it; that we go to the lowest-level courts to observe how ordinary people do the things that count for them: collecting a debt, adopting a child, settling an inheritance dispute.
My colleague Kathryn Hendley at the University of Wisconsin has looked at the lowest judicial instances: the new Justice of the Peace courts established in 1998. She finds that indeed these courts are an active element of the judicial system. She notes that in 2004 almost 65 percent of all civil cases, and slightly more than 30 percent of criminal ones, originated in the first instance at these Justice of the Peace courts. And she found that the case load of all courts of general jurisdiction has grown rapidly, while the criminal case loads in these instances have dropped. Maybe this is because insults are no longer punished! But I have really no basis for saying this. Thus, despite the survey data showing that Russians have little faith in the courts, Russian citizens are going to courts in growing numbers.
This disparity should give us pause. Russians may be saying — and they are — that the courts don't work, but they are going there anyway. And more and more people are training to become lawyers.
So to sum up: my historical study shows that in the imperial period, Russian subjects were active litigants in lower-level courts. Peasants were familiar with legal procedures, and used them in their own interest. As today, spectacular trials — trials in cities, or ones with political significance or social interest — those are what attracted elite society's attention. The ordinary life of the law remained invisible to elites, including foreigners. Russia was not a blank slate in 1917, but what was written on the slate may not have revealed the law in action. Some part of this lower-level legal activity carried through the Soviet period where people had to register adoptions, settle alimony cases, etc. So, too, did a fundamental linkage between law and the state, courts and administration — a linkage that was characteristic of the imperial period.
Nothing that I've said about the avid use of courts should be taken to imply that justice was seen as separate from administration. On the contrary, a tight connection between state power and court institutions is a strong continuity from imperial times, through the Soviet period, and into the present.
The point I want to leave you with is that Russians have lived under a “rule of law,” and have used legal institutions for settling disputes, but they do so in a political tradition that is fundamentally different from ours. From their perspective, the state should provide courts and should see to it that judges are not corrupt, and that judgments are enforced. Rule of law, Russian style, still means that the emperor issues laws and is responsible for institutions that make legal decisions. Separation of powers would be a violation of the sovereign's power and responsibility, from this perspective.
My recommendation to those trying to understand Russian law is to avoid the myth of lawlessness and instead examine legal practices. These reveal people's expectations of and engagement with the legal system, and their use of courts whose actions enable them to gain lawful decisions about matters of local, but real, significance.
MR. ROTHSTEIN: Thank you, Jane. Are there any questions?
JOHN ZULACK, ESQ. (Flemming Zulack Williamson Zauderer LLP): I found that a fascinating presentation. Do you think that is an observation that can be generally asked in many countries, for instance, China? There is a whole Confucian system of courts, where you go to administrators and they have justice, and yet we come in and say there's no legal system, there's no rule of law. Aren't we provincial in our rebuke of other countries when we say that they don't have any laws and they don't abide by the rule of law?
PROF. BURBANK: Yes, I would not hesitate to generalize what I've said to our understanding of other countries in the world. In fact, from my perspective — and perhaps Bill and Katharina will say more about this — it's ours that's quite the outlier system. And hence we could be engaging in a futile effort to impose this term “rule of law” in accord with our own understanding. Maybe the others have something to say about this.
PROFESSOR KATHARINA PISTOR: Yes, in China, Madeleine Zelin, who teaches in the History Department and Asia Studies at Columbia, has just written a book where she also went into the archives and looked at litigation in imperial China and found something very close to what Professor Burbank is saying. The magistrate courts were actively used, and people used them for dispute resolution in the former system. It wasn't only administrative, top-down, but also horizontal dispute resolution in those courts. So there's much more there than meets the eye, basically.
GARY M. KELLY, ESQ. (CAPMEX, Vienna, Austria, for the Asian Development Bank): Thank you for your presentation. In your research and in the research of your colleague in Madison, is there any suggestion that the administration of justice was viewed as a national enterprise as opposed to a local one? Were there substantial national resources committed to this exercise, or was it primarily local? Could you elaborate on that?
PROF. BURBANK: I'm beginning a new project, which actually investigates the linkages of local activity to the top and looks at what I call the “law in the middle,” that is, appeals courts and other supervisory institutions. The best evidence that this was a state enterprise is that people could appeal from these lower-level courts, from almost all of them. They went up into a kind of county level, then they could go to the governor's office, then they could appeal all the way to the Senate. Litigants were very familiar with that. In fact, one of the best ways to trace some of these cases is to find them at the top and look down to the bottom. I think that is the best evidence for people's understanding that this was part of a state enterprise.
VITALY ZURKOVSKY, ESQ. (Flemming Zulack Williamson Zauderer LLP): I was wondering if you've found in your research whether people of different classes — whether a peasant could hold someone of a higher class accountable.
PROF. BURBANK: The courts I studied, these lowest-level ones, were part of an official estate-based system which endured until March 1917. People of different statuses had different rights and different access to different legal institutions. At a higher-level court — the circuit courts — peasants and people of all different statuses were mobilized as juries and could be taken to court or were taking people to court. In the lowest-level courts, in theory, anybody in the township could take a case there, but the rules were actually set out to ensure all the judges would be peasants. In my huge data base, I found two cases out of thousands where a person of noble estate took a case to this court. But I did find occasionally, very occasionally, peasants suing a noble, probably a good-for-nothing in the area. People who had the townspersons' estate — this is really a society with estate-based rights — went to these courts, too. That would be the estate most proximate to that of peasants; a peasant could have changed status from being a farmer to being a merchant. I found a lot of those people in these courts.
MR. ZULACK: I have a question that's the converse of this gentleman's question. Did the people who went to courts have the assurance that the national government wouldn't be involved in the administration of justice? That is, that justice would be local and it would be really within their territory, so that someone from the state could not come in and say, “Wait a second, that's not fair because this person is a minister, this person is a this or that.” Is there a benefit to not having the national government involved in the administration of justice? Certainly, if the national government is a totalitarian government.
PROF. BURBANK: I'm speaking of the period of the imperial regime. In my view, the imperial regime worked in a very flexible and subtle way, and it deeply believed in supervision. In theory, the thick book of records that a peasant court clerk constructed was to be reviewed by an imperial official, also from the locality, from the noble estate, whose job it was to oversee administration of the township level. I never saw an official ever take a book and then leap into a review of the case. However, speaking in the other sense, peasants knew very well that if they didn't think that they got justice at the lower-court level with their judges, they could try to reach to that same official. And they did. So I don't think they were thinking in a conscious way about the primacy of local rights. The law codes, on the other hand, tell them that they are to use local customs to decide certain kinds of disputes.
MR. ROTHSTEIN: Thank you. Richard?
PROFESSOR RICHARD WORTMAN: I'm afraid I may be one of the wrong people Jane has said you should stop listening to. My book on Russian legal consciousness came out quite a while ago. Since then, I've been working on Russian autocracy, its symbolism, and myth. I think these are very much connected with the rule of law. Rule of law means to me — I think we have a different definition — a significant role of law in the entire governmental system — not just that there is a lot of litigation — and that people at a certain level respect the law. I think Jane's book, which is a brilliant study in social and legal history, does show that peasants developed a strong sense of law, and in the pre-revolutionary legal system could pursue it.
But there is on top of that, as was asked, a national system which rules in urban areas, and which deals with governmental authority, which is a different story. Here the law reforms of the 1860s did bring into being a group who could defend the law: a professional bar which did not exist before 1864 and which was pretty much destroyed, or subordinated to the Communist Party after the Bolshevik Revolution. To me, the rule of law requires that the law enjoy the same acceptance and respect as the Executive Power — as much, or more — and a certain independence. Otherwise, it's not a rule of law; it's a system of law. I think one has to distinguish the two.
I would be sympathetic with Mr. Medvedev's views on legal nihilism, and let me tell you why. One is that the legal systems that were developed to create law in Russia suffered a whole series of upheavals, so that you will not find the type of tradition you have in England or in France or in the United States, of a system of law that comes out of the nation's past. These upheavals were the reign of Peter the Great, the Great Reforms, the revolution of 1905, the revolution of 1917, the revolution of 1990. But the revolution of 1917 was the most complete in destroying the old legal profession and subordinating it to the state. It did preserve the old codes, but rule in the Soviet period was the rule of the Communist Party, which was able, through telephone justice, to intervene in cases throughout the system.
One of the problems today is that legal reform has, since 1990 changed direction very rapidly, and its very hard to tell what's happening. A Constitutional Court was established in 1990 and Yeltsin in his first years took measures to ensure the independence of the courts. But after 1993, court reform was overshadowed by crises in the economy and politics. This is a pattern of Russian history — that efforts to advance judicial reform, which were undertaken traditionally at the beginning of a reign, came to an end when political or economic issues became more urgent, the courts remaining a victim of a system continually in crisis.
However, with Putin's appointment a jurist, or semi-jurist, came to power. He was graduated from the law faculty of Leningrad State University (now St. Petersburg State University), as was Medvedev. Even before the Revolution, the legal profession also fed into the procuracy, the judicial arm of the Executive Power and since the last decades of the tsarist regime close to the political police. Putin is actually very typical of this type of half-lawyer, half-policeman, and policemen are not always regarded as the best guardians of the law.
Nonetheless, Putin has introduced a great number of reforms, some of which have been quite successful. And we are seeing an increase in legality. I'm not going to go through them in detail, but he provided a sharp increase in salaries of judges, raised the respect and prestige of judges, and introduced new civil and criminal codes. In addition, the system of administrative justice now works extremely well in handling grievances against administrators. Pre-revolutionary Russia had no such thing. The administrative guarantee always existed. That meant that you could not sue a government official without the agreement of his superior. You can imagine how that worked; it basically barred successful prosecution.
I agree with Jane completely that there has been a great increase in the popularity of the judicial system. The number of civil cases according to my data in 1990 was 1.65 million. In 2006 it was 7.5 million. Young people, some observers report, are increasingly eager to study law, which now enjoys considerable prestige. Their enthusiasm is in part due to the connection between law and business, but that does not diminish the significance of the change.
One problem that persists is the problem of informal structures — parallel informal structures — which often are more powerful than the legal system itself. Peter Solomon has shown the importance of informal connections in regard to chairmen of the courts, who control appointments and very often decide according to their own personal interest. He has also shown, in terms of the criminal courts, the collaboration between procurators and judges against the defense, which continues even after the procuracy's role has been diminished by the legal reforms. I think one has to feed into this what Medvedev is talking about, that is, a basic problem of legal culture — not legal culture in minor civil cases, not legal culture among the population where they do pursue it quite extensively, but throughout a governmental system that does not endow the courts with great respect.
This goes back to tsarist Russia and what is called authoritarianism. I think authoritarianism has a very specific meaning. It is not simply a ruler with great power. In Russia there is also a tradition of the ruler standing above ordinary mortals, standing above the state, a super-ordinate figure inhabiting a sacral realm, a kind of demigod not subject to limitation. My point is that you cannot have a rule of law when the sovereign not only does not accept limitation, but when being without limitation is a sign of his authority. The image of ruler as absolute and transcendent cannot be, in the nineteenth century, sullied by compromise. We all know that the tsars accepted no political participation of any kind. They also were reluctant to delegate authority, even to a prime minister. There were a few alter-egos and dictators assigned at moments of emergency, but they were removed as soon as the emergency ended. The Russian system could not tolerate the kind of compromise with society, rich society, noble society, that characterized the Austro-Hungarian or the Prussian monarchies. In other words, the Russian tsar would not accept a Bismarck. If Germany didn't have a Bismarck, it would be a different country than it turned out to be. The prime-ministerial system ran contrary to the Russian system of total power.
This goes along with what Jane says about the role of law in the Russian monarchy. The monarchy was the palladium of law in Russia. Peter the Great, Catherine the Great, Alexander I, Nicholas I, Alexander II all believed in a legal system. It made Russia like Europe. With Putin it's the same thing: he wants a legal system so that investment will take place. (Whether you need to have a legal system for investment to take place, I think is a big question.) The legal system was the law of the monarch's will. Later it was the law of the Communist Party. There was a saying in the nineteenth century: the tsar must obey the law or change it; you see it in a number of jurists' writings. Well, this is true, except in many cases the tsar simply did not bother changing the law, but in fact ignored it. One can list the cases of this. In other words, what you have here is a formal principle conflicting with a symbolic imperative, and the symbolic imperative usually took precedence. The ability to disregard the law became a sign of power, status, and influence.
This worked also to discourage professionalism. The tsar did not permit any organization or governmental institution to develop that would determine the law of the state. The Senate, which acted as a cassation court after 1864, did to a certain degree, but this was cut off of course by the Revolution. The tsarist government allowed independent court decisions in most legal cases, but limited the courts when it came to political justice. Another result was to forge informal hierarchies of power outside the administration — client networks. These could involve the nobility or governors who shared the tsar's disdain for legal restrictions. A governor's ability to transgress the law, to do what he wants, to act arbitrarily, in a way was an indication of his authority.
This alliance between the police and the procuracy persisted and developed much further in the Soviet period. This encouraged not so much contempt for the law as a sense that the law was made for underlings, and that one's status depended on one's evasion or immunity to the law. In the Soviet period, this was widespread, of course, particularly in the economy. When I started going to Russia, in the 1960s, you usually didn't do things through ordinary channels. You did things through blat (personal connections), or nalevo (in an underhanded manner). What was going on was in a way rather attractive — a spontaneity of action with disregard for the state. The state was weak in the 1960s, it was stronger in the 1970s, but this went on nonetheless.
The other side of the coin is that while everything in a way is permitted, almost nothing that goes on, then, is legal. So you have a sense of universal culpability — not psychological culpability, but personal, legal culpability. The sense is that one cannot act according to law. Therefore one acts in disregard for the law, as of course the oligarchs did on a wide scale. Then anything they did was subject to the intrusion of the Executive, which would come down arbitrarily on anyone the Executive Power — in this case the President — didn't like. This is really counter to a system of rights.
We've seen this in two recent incidents, and, of course, with many of the oligarchs and particularly Khodorkovsky. Whenever these people came in contact with power, law was ignored. Khodorkovsky made the mistake of politicking, trying to become President, influencing the Duma, on the one hand. On the other hand, he tried to reach a deal with Exxon-Mobile, which would have traded off Russia's major resource to us. It was no surprise that Putin not only slapped his hand, but slapped him into prison. Then all sorts of wrongdoing came out. All of it was correct: Khodorkovsky didn't get where he was by obeying the law. That was quite clear. But other oligarchs who showed the same disregard of the law are flourishing.
In an incident that is closer to us, in the last few weeks, many of you may know about it, St. Petersburg European University was just closed. It was closed formally because it had violated fire rules, though it had never been in violation of those rules before. They appealed to court, and the court upheld the fire department's ruling, so it's going to be closed for three months, perhaps longer. It looks as if the university may be destroyed. It is one of the great universities in Russia at the present time. The reason this happened was that they received a European Union grant of about 160,000 Euros to investigate election procedures in Russia. One requirement was to train monitors for the election, but they had withdrawn from that program. Well, Putin might have 70 percent popularity, but he didn't want organizations supported by foreigners monitoring the Russian political system, or monitoring the Russian sovereign. In a sense this then extends down through the system and is a feature of its political culture. I would agree that it's not a disrespect for the law in terms of remedying particular grievances, but it is a kind of legal nihilism when it comes to wielding power and making governmental decisions.4
In the last few years, there have been changes, and the whole situation is extremely ambiguous. There's been more law, and less law. There's been more capitalism, and less capitalism, and we're having a mix here. The only thing I would emphasize is that unlike China and some other cases, conflicts between the executive branch and other parts of Russian society, particularly the intelligentsia, are endemic to Russian history, and I don't think they are going to stop. I would not look forward to a period of great stability, though it's possible that the rates of return on investment would be higher in those circumstances.
MR. ROTHSTEIN: Thank you, Richard. Questions before we go on? Katharina?
PROF. PISTOR: Thank you very much. It's a pleasure to be here.
Let me first make one footnote to the two previous presentations. I don't think that they're irreconcilable. Actually they mesh quite well. You have people on the ground seeking justice and having a desire for that. Russians are not genetically deficient in any way, trying to have justice and maybe even the rule of law. But there's a different discourse among the political elite, and I think the critical issues are really whether there are constraints on the Executive, on those in power, and how those with either control of economic resources or political power relate to each other and what the role of law is in that particular context.
I think here the transition period since 1991 is really a very interesting period. We know from comparing the data, of course, that any country that tries to transform from a more autocratic regime to a more democratic one faces huge obstacles. Usually, if they haven't been a stable democracy for at least ten years, they tend to collapse again. There is a high failure rate in the early years, so you shouldn't be surprised that there are failures in Russia, as there have been in so many post-colonial countries, or also in countries like Germany or Italy in their transformation to a more democratic type of regime. And given the upheavals in Russia that were described earlier, it's not surprising that they did struggle, certainly. Nonetheless, I think 1991 was a turning point that could have been used in different ways that might have increased the probability — in no way guaranteed — but increased the probability of building the rule of law. I think some major mistakes were made.
I fully agree that by and large law follows the economy. But there are some points in history where we can make choices. You can make a choice whether you launch radical economic reforms in the fall of 1991 based on the authority granted by the Supreme Soviet of the Russian Federation for twelve months, or whether you engage in trying to build some constituencies to engage in constitutional reforms and redefine the powers of the Executive, including the Russian President and the Supreme Soviet. Many people, including western advisors (this is not only a Russian phenomenon) — I had many fights over that with my good friend and colleague now, Jeff Sachs, but at the time I was fighting him tooth and nail over those issues, that economic reforms trumped everything else. It was regarded as a total waste of time to engage in either constitution-building, or even to engage in political party-building. Yeltsin wanted to stay above the fray; he never joined a party. Yegor Gaidar, or any of the other young reformers, never thought it was worth their while to try to build political constituencies.
Looking at this early period and how, I think, they stacked the cards at the time, I don't find the outcome so terribly surprising. The Constitutional Court of Russia dates back actually to the Gorbachev era, so this was already developed in the late 1980s as part of glasnost. But with Yeltsin trying to push through economic reforms no matter what — you remember, of course, the big clash between the Constitutional Court and Yeltsin, the shouting match between Valery Zorkin and Yeltsin, and he dismissed the Constitutional Court and then reconstituted it. There's no better sign of how Yeltsin perceived constraints the law might have placed on him. He had the political card of saying: “They are just Communists, the Supreme Soviet. They are trying to constrain us. They are just trying to uphold the system. The constitution of 1976 should not be binding on us because it is a Soviet constitution and does not have political legitimacy.” But here we are running in circles. If you don't create a new constitution that sets the stage for how you will resolve political issues in the future, of course all you have is 1976, plus extraordinary decree powers that were granted in an ad hoc fashion by the Supreme Soviet.
I think the reformers were trying to make a bet. They were hoping and gambling on being able to push through economic reforms fast enough so that the benefits would pay off, and so that the Supreme Soviet would not have a choice but to renew the extraordinary powers; or that in any other way they could build enough support to be able to continue. But that bet simply did not pay off. I think that is what led to the major constitutional crisis which led to the really unfortunate events in October of 1993 and onward. I think that at the political level, many mistakes were made.
Now just to be clear, one of the major debates I have always had with Jeff Sachs over these issues is whether they had another opportunity in the fall of 1991. I am very aware of the fact that of course the Soviet Union was dissolved only in December. So this was a very uncertain moment, and maybe not the best moment to call a constitutional assembly. But neither was it a great moment to launch radical economic reforms on the basis of a decree that lasts exactly twelve months. That is my opinion on that.
So, I think major mistakes were made. Were they not made, would things have panned out completely differently? I would not make any bets on that. But if you start from a situation where you do not want to be — and that goes back to one of the famous jokes that circulated in post-Soviet systems in Eastern Europe. Two peasants meet in Donegal, Ireland and one asks, “What is the best way to Dublin?“ The other says, “You don't want to start from here.” If you want to build a rule of law you don't want to start from where Russia was. If you want to build a decent market-based economy, you don't want to start from a centralized planned economy. But if you have to, you really want to think about the process of how to do that. I still think that major mistakes have been made.
Clearly Russian legal history is different. Russian thinking about the law is very different — I fully agree with that — but so are, of course, other legal systems. Just a footnote on the civil law comparisons, since my background is in German law: I've had many conversations with American lawyers who practice in Russia. If all they know about civil law systems comes through the lens of Russia, it is a little bit distorting as well, because Russia is also an outlier in many ways as well. I would be happy to respond to questions, if there are any, with regard to that.
I want to mention a couple things about the courts, as well, because they featured so prominently in Jane's discussion. I have not looked at the courts of general jurisdiction — civil courts in Russia — but I have looked at data on the arbitrazh courts, which are in Russia the state courts, not arbitration courts, but arbitrazh courts, which come out of the state arbitrazh system of the Soviet Union. Basically, they handle economic disputes, that is, disputes between two private parties that are defined as merchants according to the relevant statutes, or disputes between such entities or individuals and the state. So they handle tax matters, but they also handle bankruptcy law, and they handle any kind of contract enforcement in corporate law, etc., among economic entities.
What I found stunning is comparing Russia and litigation rates in the early 1990s to Poland, the Czech Republic, or Hungary. Whereas in Poland you have an explosion of lawsuits in economic matters right when the radical reforms were introduced, in Russia during the first couple of years (1992 through 1995) they decreased by 30 percent per year. If you take as a benchmark 1991 — these were all disputes among state enterprises and the state planning system, so you have to discount for that a little bit — there were over 300,000 cases at the time. They decreased radically in the first couple of years. I interpret this to suggest that the new entities that were trying to figure out how this new system worked did not trust these courts. They would not take their disputes to these courts. The rate of litigation has increased since and has recovered, but not by much beyond the level it had in 1991. Where you have actually seen a tremendous increase is in the litigation between private entities and the state. So there is a lot of litigation against the state, a lot on tax issues. We can interpret whether this is trust in the court system or whether it is just desperation, because you have to somehow try to fight the taxman somewhere.
One final note that I would like to make: I violated another rule that Jane suggested — one should not talk only about the outliers; one should look at ordinary business. I think there is a lot of truth to that. But I think that sometimes crises or outlier events can illuminate some basic features about the system.
I have just completed a book, which is not published yet, called Law and Capitalism: What Corporate Crisis Can Tell Us About Comparative Legal Systems, in which we look at major corporate scandals around the world, Yukos being one of them, Enron being another; so you get a flavor. And we do what we call an institutional autopsy. We dissect these cases as a doctor would, trying to learn something about the system, as such. When you look at the Yukos case, and you trace the case back to the mid 1990s, what is interesting is that the way in which Yukos was acquired by Khordorkovsky or Menatep and his other affiliates — in the infamous loans-for-shares program of the 1990s — in style and process does not differ at all from the way it has been re-nationalized by Putin. In both ways, in both cases, the law has been instrumentalized by those in power. It just happened to be the case with Yukos that Khordorkovsky was now on the other side and was not a buddy of the Yeltsin crowd essentially, but had to deal with Putin, who did not want to be held accountable or be too close to the oligarchs at the time.
If you look at how the rules for the loans-for-shares program were made — very often with the participation of the banks who controlled the auction system and the outcome of the auctions, with everybody very closely tied to the Yeltsin family and those in power at the time, GKI,1 etc. — and then you compare the way in which bankruptcy courts and the tax authorities use the law to re-nationalize assets, I think the style is the same. In that sense, I think the Yeltsin administration also demonstrated a lot of not ignorance, but contempt for legal constraints on the ends they were trying to achieve. Law was an instrument in trying to push through something; they thought the ends justified the means. The major failure in my view was that there was no attempt to try to build legal constraints that would be valid for anybody and that would have given some kind of hope to build the rule of law in Russia at the time.
MR. ROTHSTEIN: Thank you very much. Any questions?
VITALY ZURKOVSKY (Flemming Zulack Williamson Zauderer LLP): Do you have a sense that Russians may be somewhat against judicial supremacy because it's undemocratic? Even though we're classifying their government as autocratic which in a sense is undemocratic, courts may be even more undemocratic.
PROF. PISTOR: Yes, I think you get this in many systems in continental Europe, where there's no tradition of judicial supremacy. In France you wouldn't even have a full review of laws once they have been enacted, right? So, in Russia, I think if you would take a poll asking people whether they were willing to have a constitutional court trump everything that the President says, they probably would say no. But that is not necessarily the relevant issue, or the only relevant issue. I think that some constraints imposed by the judiciary on the Executive would be appreciated by many Russians, as they would in many other countries, which does not mean necessarily that they could trump anything. On the other hand, they have a Constitutional Court. Under the constitution, the Constitutional Court can review even laws in a certain procedure. So it's not anathema to the ways things are done, and there also you can point to court cases where courts have ruled against governments. It is not totally dismal. I think you just have to select the cases. Where it's sensitive for the government, I guess, the government can make sure that it wins in ways that are a little disconcerting if you think about a more neutral instance. I think the U.S. is an extreme country in the sense that any court can strike down any law. You won't find this in any other country. So it's an outlier case. That kind of judicial supremacy would be resisted not only in Russia but also in many other countries, which doesn't mean they couldn't achieve the rule of law.
MR. ROTHSTEIN: So, Professor Nelson, tell us about ourselves.
PROFESSOR WILLIAM NELSON: I'm going to cover two-hundred years of American history in about ten minutes. That's the goal.
I want to start out in, say, 1760, roughly. One has to understand how intensely local power was in the United States, or what would become the United States, as of 1760. There are essentially three local institutions that control everything. There is the local county court. Judges on the county court are officially appointed, usually by the colonial government. But the reality is that they are nominated by local elites. The county court is essentially a self-perpetuating institution. People get nominated to the county court by the existing court when they are 40 years old. They sit on it for about thirty years. When they are about to die, or retire, or get ill, the court will nominate someone else to replace them, and the governor will almost always go along and appoint that person.
The second important county institution is the militia and what I want to call the police, but they're the constables. The militia is a local community body made up of local people. They elect their own officers. Constables maybe are appointed by the county court, maybe they're elected by a county or local town electorate. The people with actual coercive power — the people who have the guns — other than all the citizens who are armed, are the militia and the constable.
The final ultimate source of local power is the jury. Colonial juries, or at least revolutionary-era juries, decide law as well as fact. They ignore judicial instructions, and judges can do nothing about it. If they are not happy with what they hear, they can — there's a procedure in Massachusetts, for example, where they can ask for advice from anyone they want to ask advice from, like a local minister. They can go outside the trial system and talk to whomever they want to talk to for advice about how to resolve cases. There are also very few lawyers. Typical trials happen without lawyers participating. A party will come in, tell their story, and the jury will resolve it.
So this is an intensely locally oriented political system. And liberty is understood as the preservation of this local power. There is Parliament, which arguably can pass statutes and restrain what these local institutions do. Parliament does pass navigation acts, does choose to get involved in wars, for example, when the English declare war on the French, and there's a French army on the American frontier. So Parliament has some power, and colonial legislatures also have some power. But their power is very limited, because in the end they've always got to come back to these local institutions to get anything enforced.
We need to understand the American Revolution essentially as the effort of Parliament to change this, to centralize power within the imperial British system. Because of the power of these local juries, these local militias sitting with their guns behind stone walls, and the like, the British fail to do that. That leaves the United States with basically a bunch of local communities governing themselves, with state governments a little bit on top of that, and essentially up until 1787 no national government whatever.
There are two problems with this — and I don't want to talk about the constitution, I want to talk instead about John Marshall — there are two problems with this local power. One is that dominant majorities within local communities can be extremely oppressive to minorities they don't like. Quakers, for example, in 1660, when they appeared in Massachusetts, were told to leave. If they returned, they were hanged. We should understand that these local communities were not the rule of law or liberty in any way we understand it. They were about local majorities in total control of their local communities.
The other problem is that these local juries, which are somewhat unpredictable, do not create a very good legal order, we might want to call it, for inter-jurisdictional investment. If one wants to think forty years in the future of building a railroad line, for example, one might need help getting across a locality that the locality is not willing to render. There's the problem of protecting local minorities and the problem of creating a better atmosphere for trans-jurisdictional investment that leads to an effort by what I think we fundamentally have to call Federalists — who, even though they're driven out of political power in the election of 1800, remain in control of the judiciary for the next twenty years — to create a system of law, essentially to constrain these localities.
The system of law involves things like setting aside jury verdicts when they ignore judicial instructions; having judges state the law to the jury; having those judicial statements go up on appeal to be tested by an appellate court; having the opinions on appeal published so that they could create precedents for people in the future to follow; legalizing the whole trial process by creating a legal profession without which it became, as a practical matter, quite impossible to go to court and function in court; creating a system of legal education, especially a system of interstate legal education.
The first law school is in Litchfield, Connecticut and gets up to about 100 to 200 students at any one point in time. They are from all over the country; this is not a local school. The idea was to bring together people from all over the country so as to build interstate connections that will enable people to function as members of an interstate profession rather than a local community. And it's curious that right next to the law school, which of course only admitted men, there was a women's school, a finishing school for women for which women also come from all over the country, the idea being that we're going to create this interstate elite through marriage. It happened all the time. When Litchfield collapses, Harvard replaces it.
The whole idea in the 1830s is to create what we would understand to be the rule of law: a legal profession talking to judges who were functioning independently of the real power center, localities, in order to control the excesses of local self-rule and to create a better environment for inter-jurisdictional investment. But one has to understand that in pre-Civil War America power still remained very, very intensely local — so intensely local that when some people in the South don't like who wins the 1860 election they decide they're going to leave. They are quite convinced, when they leave, that they're going to win. The precedent is the American Revolution. No military force, it was thought, could control that vast a territory as the South. They think they will win. They lose. And everything is changed by that loss. Suddenly what becomes clear, which had never been clear before, was that a coercive institution of a central government could actually go out to the localities and impose law, we might call it, or maybe we ought to call it, instead, the will of the central government.
That terrified people who were worried about what they understood to be liberty. It's important to realize that the engine of this central government is not the Executive; it's the Congress of the United States which is threatening to create a British parliamentary system by impeaching the President, by passing a statute prohibiting the President from firing his cabinet, by passing the Military Reconstruction Act of 1867 which provided that the President could not issue any orders to the army except through the General-in-Chief Ulysses Grant, who could not be fired without the consent of Congress. This is an attempt not at executive despotism, but at legislative despotism. And people who were worried about traditional liberties were terrified about this.
They go about further institutionalizing what we would now call the rule of law. They establish things like the civil service system in order to limit the power of Congress, really, over the bureaucracy. It wasn't the President who controlled the bureaucracy because civil officials were appointed on the recommendation of senators and representatives, not really the President. The civil service system is designed to restrict congressional power.
The rule of law, in a sense, is further institutionalized. Judicial review, which is essentially invented by Marshall in the nineteenth century, never has any significant role until the late nineteenth century, when suddenly the Supreme Court and state supreme courts start striking down legislation on a routine basis. We now start creating a number of law schools instead of one. Harvard is reorganized by Langdell. Columbia is organized as the second dominant school in the country on a different, much more interdisciplinary lecture model rather than the Socratic model. Great institutions are also created at Michigan and Penn. A number of law schools are created, and again, the aspiration of all of these is to be national institutions. The American Bar Association is created. The Association of the Bar of the City of New York is created. Instead of having opinions published by sort of ad hoc state systems, West goes into business, publishing reports on a routine, totally organized basis. The kinds of institutions that had been initially created in 1800 are strengthened post-Civil War, and, as I've argued in a book, strengthened as a device to limit the centralizing power of the majority party in Congress.
But again, it is not the Executive we are worried about when we think about separation of powers or the rule of law; it's Congress. It's the New Deal that makes it the Executive. I'll just mention the word “court-packing.” Much more important is the creation of all the administrative agencies, and again what we see is the legal profession reacting to this. I think one of the most important statutes in the twentieth century is the Administrative Procedure Act, which legalized the administrative process. If the administrative process functioned as most New-Dealers initially thought it would, a lot of you folks sitting in this room would be out of work. You can't go to any serious administrative agency today without a lawyer to represent you. And that's because of the way in which the Administrative Procedure Act legalized the administrative process.
What I see in America — which I think is peculiarly American — is the start with an idea of liberty as the local community doing what it wants, the idea that that's not very good for dissidents in the local community. We used law to protect them, but also to create a coalition of business people and potential dissidents — often property owners — who turn to the legal profession to protect them against the excesses of local power. Over time, the locus of excessive power becomes Congress and state legislatures. We used the legal profession to object to that. That gets transferred to the Executive in the course of the New Deal, World War II, and post-World War II, and, again, we turned to the legal profession with its already established set of institutions.
That's the other thing: what we're referring to here as the rule of law — at least as Jane and Katharina, I think, understand it — is created against very weak, decentralized institutions that don't have a great deal of capacity to resist it. One wonders whether a national President or a national legislature might have a lot more power to resist it. The institutions get initially created and then continually recreated as different threats to what people understand as liberty come into play.
MR. ROTHSTEIN: Thank you, Bill. We're on schedule, and we have some time to open it up to discussion, but before we do that, I'd just like to say that the questions are complicated, but the presentations have been very rich and excellent. Thank you.
MR. ZULACK: If each person who spoke could introduce herself or himself and their background, because I didn't quite get that. It's very helpful for us who are lawyers to hear from people who are intellectuals and academics.
PROF. BURBANK: Okay, I'll start. Jane Burbank, I'm now a professor at NYU in the History Department. I have taught at Harvard, Santa Barbara, and the University of Michigan before coming to NYU. My intellectual interests — I wrote one book on the Russian intellectuals' interpretations of the Revolution of 1917, opinions they created before 1922, from the extreme right to the extreme left, and I tried to show that there was a vast array of intellectual opinion that came straight out of Russia at the time. So you see, I'm not as anti-intellectual as my presentation might have suggested.
Now I've been working on law and empire, and I'm also the co-author of a book which I hope will come out this year on empires and world history, from Rome and China to the present.
PROF. WORTMAN: I received my Ph.D. from the University of Chicago. I began working on the Populists — everyone was working on intellectual history and I was working on the Russian Populists. Then I went on to institutional history and studied with the great Soviet historian Peter Zaionchovsky to write my book on the development of the Russian legal consciousness, which has, by the way, been recently translated into Russian with a new introduction that I wrote in an English version trying to bring it up to date. That got me interested in the autocracy as a part of the system that was resisting liberal reforms. Nothing had been written, to my knowledge, on the autocracy, so I've written two rather weighty books on the symbolism, ritual, and mentality of the Russian autocracy. That more or less has sort of capped my career. I'm now entering the pleasant sphere of retirement.
PROF. PISTOR: I got my legal training in Germany, as has been mentioned, and I was sufficiently bored with German law that after I graduated, I went to London and did an L.L.M. in 1988-1989 and studied Chinese and Soviet law. I came back in the fall of 1989, and the Wall fell. I started to take intensive Russian classes. I spent some time in a law firm in Moscow in the fall of 1991, when the first series of decrees about privatization and economic reforms came out.
Then in 1992 I came to the Kennedy School to do a masters degree, because I felt my legal training was not enough to understand something of that dimension — it wasn't about law in Russia, it was much more about institutions and social and economic change. So I did a two-year program at the Kennedy School, and there I got involved with almost everybody around Harvard who was doing something in Russia with privatization and the political reforms.
I spent one fantastic summer in 1993 travelling through Russia and interviewing managers of companies that went through privatization, to get their perspective on what they thought a corporation was, what relation they had to their shareholders, and how many shareholders they had already struck from their registry, which was firmly sitting on their little desks in their offices, of course. So that was field work and was just fascinating to me.
I then spent many years here in the U.S., went back to Germany for a couple of years and started teaching in 2000 in the Kennedy School of Government at Harvard, first, and then in 2001 came to Columbia and have been teaching there since.
PROF. NELSON: I've been at NYU Law School since 1979. I've published a number of books. The first one I published was on the legal system of Massachusetts from 1760 through 1830 — a snap-shot before the Revolution and trying to understand the impacts of the Revolution on the legal order. Another book is called The Roots of American Bureaucracy: 1830-1900. The post-Civil War part of the lecture is drawn from that book. I've done a legal history of twentieth-century New York, a book on Marbury against Madison, and now I'm working on a four-volume history called The Common Law in Colonial America. Volume One is scheduled to appear in July. So I've tried to cover most periods in American history and tried to cover it by looking — in this sense I'm much more a historian than a lawyer — I actually look intensely at the sources, which is a thing that most legal academics, Katharina excepted, do not do.
BRECK N. HANCOCK, ESQ. (Goodwin Procter): One question that I thought of when Mr. Nelson was speaking is that it seems that the development of both the American system and the Russian — and probably every other legal system — was largely reactionary. I was wondering, from the perspective of the post-Soviet era, whether there have been any developments that have been more proactive? And what reforms have been deliberate as opposed to reactionary? And how you all felt those might have a different impact than the reactionary changes?
PROF. PISTOR: There's been a ton of reforms in Russia, everything from experiments with jury trial in the criminal arena all the way to corporate law and a securities law that's very much borrowed from the American system. I think very often law, of course, is proactive, even in our society. Sometimes you're trying to change something or you're correcting something that the courts are doing, or you're really trying to accomplish different state policies. I think Russia has tried some of that as well, with varying success.
My sense — and that goes to some comparative research I've been doing about legal transplants — by and large, is that they do work if there are local constituencies who really have a demand for a particular legal arrangement or a particular legal area and invest in making it work. If you don't have that, it really doesn't necessarily work that well. I think a good example is the Russian corporate law introduced in 1996, two years after the complete mass-privatization of thousands of corporations floating around Russia with a very weak legal framework. The effectiveness of that law took quite a while to develop. You can still dispute it.
And I think that the 2002 reform has been Russified a little bit more, and probably works a bit better in that regard. Proactive reforms — one of the problems of Russia was that there were so many foreign advisors who were trying to dump their particular legal version of the Russian civil code or the corporate law. Many of them conflicted with each other. You exacerbated a situation where law was already a difficult animal with a war of laws, [inaudible].
PROF. WORTMAN: Katharina is the expert on the contemporary period. I have just superficial knowledge of that, but I would say that the law reform of 1864 was extremely proactive. It was led by intellectual bureaucrats. In a way you could see Medvedev and Putin under the shadow of these people who were rigorously well read in Western legal theory and went around studying institutions and worked out the most successful of the Great Reforms. They took the lead — a rare exception — away from the bureaucracy and the administration. That was certainly very proactive.
PROF. BURBANK: I would agree. I would say that the Russian tradition overall is very proactive. But I think that the terms are useful, actually, in thinking about the differences between the American and Russian systems in, as Bill described it, the ongoing intersection between society and the state in a number of different ways. It doesn't seem to fit very well when we think about the way Russian law works. One of our colleagues wrote a wonderful article called “The Reforming Tsar.” And in some ways that activity of reform, taking the lead, making a new regime, is very much a part of the imperial Russian tradition as well.
PROF. NELSON: I guess I should say something about how typically, in the United States, there's never any one person that's really setting about to do something. And to the extent that there is one person, it's often a person behind the scenes, and leaving little in the way of good records or evidence of their roles.
I think that the person behind the scenes in the 1800 period is Alexander Hamilton — buried right out there, I guess it is, if I've got my direction right [pointing south to Trinity Church]. Hamilton in 1798 persuades a guy named Theodor Sedgwick, who is Speaker of the House, to appoint a committee to revise the federal judiciary, which was only eight years old. One member of that committee, who becomes very much the dominant member of that committee, is a freshman congressman named John Marshall. At the same time, Hamilton persuades the governor of New York, a close friend of his, John Jay, to appoint James Kent to the New York State Supreme Court. When the Federalists lose the election of 1800, Sedgwick retires back to Massachusetts and becomes judge of the Massachusetts Supreme Judicial Court. Marshall goes on to become Chief Justice of the United States.
These three, kind of working together, all are doing the same thing. If you watch what they're doing to trials, they are professionalizing the trial structure — Sedgwick in Massachusetts; Kent in New York; and Marshall as Chief Justice of the United States, but even more important, riding circuit in the Richmond, Virginia circuit. Then, this guy named Gould, who founds the law school at Litchfield, was also a Federalist. He's a judge of the Connecticut Supreme Court. These folks write between each other. They talk to each other. But it's very much a committee of people that Hamilton got started. When he's assassinated, they keep going on and doing it anyway.
It's not clear what role FDR actually plays in the New Deal other than to give fireside chats and keep getting himself re-elected, and then appointing a bunch of folks to pass this statute, that statute, administer this agency, administer that agency. They would get together — I think it's every Thursday night — at the White House for a poker game. But it's a very different process in the United States from what I understand and hear our Russian experts telling us is the process of reform in Russia.
PROF. PISTOR: If I can just make a final footnote. In this book that we're writing, where we compare six different legal systems, we are basically comparing them along two dimensions. How centralized or decentralized is the legal system? And is the function of the law primarily to protect legal rights, or is it to coordinate government activities? Of course they overlap to some extent. Russia and the U.S. are at two ends of the spectrum. There is no other decentralized system like the U.S.; in Russia it is extremely centralized.
MR. ZULACK: I think if we take into consideration the context, Professor, that Roosevelt was acting at a time when there was a tremendous tendency towards totalitarianism in the world, and there was a tremendous depression, and people were saying, we need to have an answer to this problem — so, is the answer of administrative systems and law and jobs a fairly decent answer compared to what was the possible alternative in all societies? Look what happened in Germany. Look what happened in Japan. Look what happened in Italy, in France.
PROF. NELSON: Well, part of it may be — I'm always arguing with people about George Washington. I always argue that Washington was not a saint after all. And when he refuses to be king, I argue, it's not because it might not have been a nice job; it was because he was realistic. The country was so big, so spread out, and the structure of existing institutions was so weak, that it was impossible to do it. When you think about Roosevelt and the New Deal, it may be, again, that when Roosevelt and the New Dealers look at the structure of the American administrative state — which was a pretty thin institution compared to what it is now — anything other than spending some money here to try to create some jobs, creating the SEC to try to deal with stock market problems, creating the Social Security system to deal with old people who had no income, etc., a patch here, something here, something there, it may be that — and this goes back to what I said — we start out in the United States with a society in which power is intensely localized.
It's only now that we in a sense have the mechanisms of a real national state in existence. People like me worry about that. But maybe so much of American history and American law has to be explained by the fact that there have never really been the central institutions capable of exercising broad coercive powers. We have to work with a committee of one guy in Massachusetts, one from New York, one from Virginia — Sedgwick, Kent, and Marshall — writing letters back and forth, talking about what they can do in their localities, and working together rather than imposing from the top.
JAMES P. DUFFY, III, ESQ. (Berg and Duffy, LLP): I'd just like to make an observation about the architecture in the capital, having been counsel to a Senate committee a number of years ago. You've got the Capitol building, of course, several Senate office buildings, a number of House office buildings. Not too far from there, you have the Supreme Court, which is one single, relatively small building. The rest of the city is all administrative agencies. I think that tells you an awful lot.
PROF. NELSON: Yes, but it wasn't that way in the 1880s when the Capitol building kind of dominated as the biggest structure there. It doesn't anymore.
MR. DUFFY: The administrative agencies are of course now all the Executive.
PROF. NELSON: Right.
MR. ROTHSTEIN: Bill, you said, when we were preparing for this on the phone, something which I'm not sure I've heard today. It was that, if I understand you correctly, our notion of judicial independence in the United States today — judicial independence is not what we think it is. Or it's under attack, or it certainly wouldn't be that way if we were starting out today in the modern world with everything that a government has at its disposal.
PROF. NELSON: Yes, I think that that's right, that creating the judiciary as a check on local entities means that it has to be, obviously, independent of those local entities. And there isn't a great deal of pressure to make the judiciary dependent on any powerful central, federal, or state institution. When we think of state governments in the early nineteenth century, there's the governor, there might be an attorney general, there might be a treasurer. The legislature met for two weeks maybe every other year. Courts are a bigger part of government when we create our ideas of what a judge is, and what judicial independence is, than they are now.
My book on Marbury v. Madison argues — Marshall is an incredibly key figure, and it is the case that Jefferson is very much trying to control the federal judiciary. I read Marbury v. Madison as obviously being important in the creation of the idea of judicial review, but I think that is the third most important thing that Marbury v. Madison does. In connection with what the Federalist judges are doing about jury control and creating a legal profession and the like, Marbury is also centrally important in articulating the idea of the rule of law as we in this room as American lawyers understand it today. And in order to articulate the idea that there are some things that are ruled by law that is independent of the next thing, namely politics, Marshall basically articulates the beginnings of the political question doctrine. And Marshall is clear that there are some things that are legal — namely, individual rights are legal — and there are other things that are political. Marbury v. Madison is clear that the courts will not get involved in political issues, and it's clear that on issues of individual rights, especially property rights, the political branches have no business interfering with the courts other than through appropriate kinds of legislation that the political branches are permitted to adopt legislatively. But certainly the Executive cannot be interfering with the law and the rule of law when it comes to individual rights.
Marshall is able to get away with this partly because the Jeffersonian presidency isn't that powerful, and in the end Jefferson doesn't want to be a powerful President. Jefferson is elected basically on a program of taking power away from the federal Executive and Congress, because the Adams administration had been too powerful. Marshall gets away with it because of Jefferson getting involved in other nasty political things that take his attention away from the courts, like buying Louisiana, like the embargo of 1807. And Marshall gets away with it simply because he has staying power. He's there for thirty years in case after case after case, reiterating the principle of the rule of law and the separation of law and politics that he articulates in Marbury v. Madison. He reiterates this over and over again for the next thirty years, and he sees a number of presidents go by as he's doing that. By the 1830s, the principle is beginning to be established.
MR. ZULACK: I don't mean to be very simple, but what is the heritage of Gorbachev, in terms of the rule of law, human rights in Russia? I know what his heritage is in terms of trying to do away with nuclear weapons, which is quite extraordinary, but what is it in this other area?
PROF. PISTOR: I think it's ambivalent. We see both things: on the one hand we see the creation of the Constitutional Court, which is more a concession to what we might call a rule of law principle. Gorbachev coins in this period the term “socialist rule of law system.” It's still socialist, but it is a rule of law. So he's pushing on that front. At the same time, when the Baltic republics first tried to begin some rebellions, he did send in tanks without hesitating a second. I think he worked very much under the pressures of a system that he knew was crumbling. He was part of a group that had investigated how the agricultural sector was going wrong in the early 1980s — the Novosibirsk Manifesto. He was very much aware of the major problems that the country was facing. But I think he was still a Party figure. He was still trying to preserve the Soviet Union. And to make sure this would happen, he was also taking measures that would be in clear violation of our norms of human rights. Nonetheless, I would give him credit for trying to instill more principles of accountability through legal mechanisms, through some local elections, by bringing that process on the way. But it is ambivalent.
PROF. WORTMAN: I feel the same way. He is sort of a tragic figure in that he brought down the structure he was trying to perpetuate. I can say that when he was at Columbia — we've had all three at Columbia: Gorbachev, Yeltsin, and Putin — Gorbachev and Yeltsin were really super, larger-than-life figures, who orated. Putin was the most human. He got up there and answered questions directly to students with no help, very intelligently, and you did not have a sense that this was a super-ordinate figure. But the one thing in Gorbachev's speech which was interesting is that even though he talked about humanity and ideals, the person he defended in Russia — this was when Yeltsin was in (whom he hated, obviously) — was Aleksander Lukashenko. And he made a very strong defense of Lukashenko, which does not say much for his respect for the law.
PROF. BURBANK: I'd like to say one thing about that, and that is that the idea of human rights, especially individual rights, is, I would say, not deeply embedded in Russian legal culture or society at all. Perhaps one could even safely say that in much of the world it's not there, and it's not a “natural” idea for people who are brought up in systems of strong, top-down political power. So even in the imperial period, while we have eloquent jurists and intellectuals defending notions of “natural rights” in a nineteenth-century context, the legal system itself simply does not address itself in the nineteenth century (until arguably 1906) to the notion of individuals possessing rights. Instead, rights in the Russian tradition, in my view, are granted by the sovereign to collective groups of subjects. That principle of granting or taking away rights, as opposed to the notion of a natural, individualized human being with rights, is the dominant one in Russia.
MR. ZULACK: My last question: do demographics really trump everything that we're talking about? Was the crumbling of the economic system in the Soviet Union really directly related to the Stalin massacres of the 1930s, and is the resurgence now a recovery from that period of time? There was a demographer in Paris in 1976 who basically predicted precisely what was going to happen to the Soviet Union in the 1980s from demographics. So the question is: is all of what we're talking about really governed by how many people there are, how much grain there is, what the production is?
PROF. PISTOR: I think there's a lot to do with demography. People have also shown this with the East Asian Miracle. There's a lot of demography in play, and I think we ignore that because we focus so much on the institutions. But I think that there is also substantial evidence that the entire production assets were deteriorating rapidly throughout the 1970s and 1980s, so I don't think that it's only demography.
MR. ZULACK: I'm not saying only, but it's something we never really talk about, you know.
PROF. PISTOR: It's an important factor.
MR. ZULACK: We talk about Reagan taking down the Soviet Union. How much nonsense is that? It has absolutely nothing to do with the crumbling, which had to do with demographic and political and other factors.
PROF. BURBANK: I would like to suggest, though, that there's no way that we could argue that the 1991 collapse has to do with a kind of welling up of discontent from below, a kind of revolutionary model. Those political scientists, who predicted that the USSR would come apart on national grounds, ethnic grounds, and so on, were wrong. It didn't happen that way. There were incidents. But it was not a welling-up and a huge popular rebellion; otherwise you would have had enormous civil war, which is actually what intellectuals feared.
Elite desires and the inadequacy of this particular system for a style of life for elites scattered throughout the system, I think, are profoundly important for 1991. We've talked a bit today about a divide between popular uses of the law, or popular attitudes, low-level participatory justice, and this question of how elites regard the law, the economy, and so on. I think elite desires and elite familiarity with Western lifestyles, ways of doing things — and including Western vocabulary — such as human rights and so on, all those factors are extremely important for why the system, so to speak, broke down.
PROF. WORTMAN: As a footnote to this: I don't know if any of you saw Paul McCartney's concert on Red Square, where the Russian population — well, there was an introduction of some young man who said, “The Beatles brought down the Soviet Union.” And then I went to Russia, and being a scholar, of course, I pooh-poohed this and said, “They even said the Beatles brought down the Soviet Union.” My Russian friends who had been there said, “That's right! They did!” So the cultural influences that were percolating in were enormous. If there's one thing that I think brought down the Soviet Union, it's the Afghan war. Anyone who goes into Afghanistan suffers defeat. I think we should take a lesson from that.
PROF. NELSON: I want to make a pitch for demography in the United States. Religious variation has been an important support for local power from the seventeenth century on. The British government in New Hampshire in the 1680s really tries to put the Puritan Congregational Church out of existence. New Hampshire is a very small colony. It is arguably feasible that one can re-Anglicanize them. The crown, Charles II, after all — the Puritans had chopped off his father's head. So it's understandable that he would like to get rid of Puritans. He didn't start in Massachusetts first, where there are a lot of them. He starts in New Hampshire. But that reverberates for the next eighty years in Massachusetts history. A lot of the insistence of the people of Massachusetts on preserving these local forms of control is a fear that if they don't do it, their religion is going to be undermined by the imperial government back in London, and religion matters to them.
Early nineteenth century in America is this explosion of Protestant evangelical religion — the emergence of sect after sect after sect, all of which insist on the importance of independence as the way to heaven. As a practical matter, nobody has the resources or is willing to expend the resources to put these folks out of existence. So what do you do with Mormons? You ship them out to Utah, you let them go to Utah. What do you do with Shakers? You let them form their own little communities and die out.
Then, the other place of enormous religious diversity is New York City in the early twentieth century. There are a lot of people who are deeply anti-Catholic and deeply anti-Semitic, but the fact is that these people are here; these people get educated; these people have skills as a result. And in the long run they become a part of the system, but always a part of the system with a deep commitment to not letting the state interfere too much with their religious beliefs. Religion and religious diversity, and the insistence of religious people — who remain probably more numerous in this country than anywhere else — on not letting government interfere too much has been an important force for preserving local power and restricting central bureaucracies.
There's a woman at Penn — Sally Gordon — doing a fascinating book now on religion in the late twentieth century. She's got one wonderful chapter on prison authorities and the Nation of Islam. Even in prison, where you've got enormous coercive control over people, it turns out that the prison authorities just could not control the black Muslims. It's easier to let the Nation of Islam have some religious freedom in jail, rather than to try to control them.
MR. ROTHSTEIN: Thank you very much, everybody, for coming.
1 Prime-Tass, January 22, 2008 (in Russian), http://www.vedomosti.ru/newsline/index.shtml?2008/01/22/536208
2 Interview by N. Buckley and C. Belton, Financial Times, April 18, 2007
3 “Briefing — Russia's Economy,” The Economist, March 1, 2008, p. 28
4 On March 21, 2008, a higher court reversed the lower court's decision, after an international outcry and extensive coverage in the foreign press. Nonetheless, the university had been suddenly closed without due process for a period of nearly six weeks. [RSW]
5 GKI - Goskomimushchestvo, State Committee for Management of State Property, the main government agency responsible for privatization in the 1990s.