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.