7. November 2004

Civil society and legal culture in Russia

1) What does “civil society” mean?

What conclusion we draw on civil society in Russia depends largely on our notion of civil society. The majority of scholars today tend to define it in terms of NGOs, i.e. as various non-state associations, groups and sometimes also individuals who take part on public discussions and represent or pursue their own interests in the public sphere. According to this definition the state does not belong to the civil society. This understanding goes back to Hegel and more currently has been typical for Western Marxists or Semi-Marxist and so called dissidents in communist countries. All of them were suspicious of the state, although for different reasons and, of course, with different justifiability.

There is a further tradition of defining the civil society that partially differs from this approach. Although this definition is less popular today it has nonetheless been represented by great thinkers of the occident, Adam Ferguson as a leading example, and it was he who first used the term “civil society”. For the adherents of this tradition civil society is a Western political society, with the state naturally belonging to it. If we think about civil society this way, we must recognize its attributes, which make it unique when compared with other societies. These attributes are:

• first – the mentioned autonomy of societal actors,

• secondly – the autonomy of the economy and politics (which is caused by the

strength of the economy in Western societies),

• thirdly – ideological pluralism, and

• finally – state limited by law (the Germans call it “Verfassungs- und

Rechtsstaat” – constitutional state). The latter works well only, if there is either

“support for law” or “demand for law”. “Support” means infrastructure of law

(judges, courts, laws, money spent by state for legal system) and “demand”

encloses both need for the law and ability to use it inside society.

2) Lack of respect for the law in Russia

Russia’s rulers after communism have claimed their willingness to build a representative democracy as it is known in the West. In this respect they have not differed considerably from other politicians who acted after the dismantling of a non-democratic regime or system. In order to introduce a democracy, free elections must be held which unfortunately can still be altered into a staged plebiscite by powerful actors of politics and the economy. For this reason the very democratic potential of free elections can only flourish in a society where, on the one hand, all actors are subordinated to legal norms and, on the other hand, politics and the economy are autonomous. Russia and other post-communist countries have to create their constitutional states while building up a democratic system, e.g. while holding free elections. Under such difficult conditions crucial political actors have to subordinate themselves to the law. The elites in countries like Russia which hardly have a tradition of power limited by law obviously have the biggest difficulties in fulfilling such expectations. All in all: the infrastructure, i.e. the support for law has been considerably improved after the communism, the demand for law has remained weak.

3) What has been done wrong in Russia in order to create a civil society?

As already stated Russian political leadership has failed to subordinate itself to the law – with partially disastrous consequences. A political system in which the informal rules of game prevail has thus emerged und been institutionalized. Russia has neither broken with its tradition of an arbitrary state (“Willkürstaaat”) nor given democracy a real chance. Instead, free elections have been held which helped the authoritarian political leadership to pretend to be democratic and to act in a democratic system.

Indeed, from the Western point of view this failure to institutionalize of democracy must be seen as disastrous. From the popular Russian point of view, however, a country without a significant tradition of a constitutional state, current political system even with mainly informal rules seems either acceptable or at least more human than the former totalitarian one.

Despite the popular Western beliefs, that everybody in power in the Kremlin is a reformer, political leaders in Russia do not aim at a separation of politics and the economy. This has been demonstrated by both careers of Russian oligarchs under Yeltsin and falls of some oligarchs under Putin. The careers were possible because of the state’s support and the falls resulted from attempts to liberate themselves from the state.

Nonetheless, although the elites have failed to establish a democracy which would support the civil society, they also took it upon themselves to create economic conditions for the emergence of a Russian civil society.

4) What has been done correctly in order to create a Russian civil society?

The biggest step was the economic reform at the beginning of 1992. A very small and almost completely unknown group of economic liberals in the government headed by Jegor Gajdar was given the task of changing the economic system. This small group of liberals had their five minutes in the history of their country and they did well. Although the opposition forced the reform government to resign the same year, developments had been already set in place which started to change the Russian society profoundly.

Today Russia differs significantly from its “Slavic brothers” – the Ukraine und Belarus –, where liberal ideas have not even had their five minutes. In Russia we are facing forces which could speed up the development of a Western civil society. For this to happen, their activities must be either constrained or supported by an efficient legal system. These forces are: a vital stratum of small entrepreneur, oligarchs, some independent associations, among them funds, many intellectuals, remaining free media and so on.

But the overwhelming majority of Russians belongs as before to the passive sphere of society, which is accustomed to state paternalism and longs for a strong power (“zestkaja ruka”) on the top of the state’s hierarchy.

5) What can be done in Russia in order to foster civil society?

First: The so called oligarchs must recognize that their profits are in danger as long as the Russian state does not function in a constitutional way. In other words, the oligarchs have to gather the demand for law. Unfortunately, I am not confident, that this will happen soon, because the tycoons are still profiting from their connections with the corrupt state apparatus.

Secondly: The development of medium-sized entrepreneurs must be speeded up. They are not able to compete with the oligarchs for the state bureaucracy’s favour and therefore have a deep rooted demand for law. But many of them have still to recover this demand yet.

Third: A self-constraining political leadership can not at present be expected but it will be necessary in the future. This process must also gain an institutional dimension. For example federalism must be strengthened through the abolishment of Putin’s reforms and the constitutional court must be strengthened through the appointment of judges only by parliament.

Fourth: The enclaves of civil society in Russia must be defended, also with the help of the West.

6) What can be done by the West?

It would be a big step forward if Western elites would recognize Russia for what it is: a non-civil society with an authoritarian political system. Also it would be helpful if Western authorities in their policies towards Russia did not pretend not to see what they actually recognize. Further: the West must support independent forces in the Russian society. And last but not least Russian students and scholars must be systematically supported, especially by the EU-countries.