Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

triumphed, with private property accepted but with a stunted development of a public sphere.2

Atthesametime,thepatrimonialelementsinthedefinitionofpublic power inherited from the Soviet system still exercise a profound effect.

Richard Pipes argues that the roots of patrimonialism reach back into the Tsarist era.3 The state remains the largest employer, and the government does not easily restrain its hegemonic ambitions even in the economic sphere. On the basis of the Russian example, this chapter will argue that three fundamental principles of social organization remain in tension.The division is not only between state and market, but the whole ensemble of interactions that define both.The old-fashioned Soviet purposive nature of political power has given way to a new purposiveness of the post-com- munist regime: not to build socialism but to build the market. At the same time, the profound tutelary role of the state remains deeply embedded in political interactions and social relations.4 Bonds of mutual self-interest transcend the distinction between the public and the private, between state and private property, and between individual rights of citizenship and the imperatives of state construction. The struggle to build communism gave way to “the transition” to capitalism and liberal democracy under the presidency of Boris Elt’sin in the 1990s. Rather than organic development, Russia embarked on yet another state-sponsored modernization project. Under Vladimir Putin in the 2000s, the reassertion of state authority appeared—to many observers—to signal the re-establishment of a patrimonial state that blurred once again the distinction between the public and the private.

Three Orders

In contrast to earlier “revolutions from above”, the current re-modern- ization project is different because of its complexity, with some elements perpetuating earlier patterns of heavy-handed anti-liberal dirigisme, but other processes directly repudiating what are perceived to be traditional features of Russian political culture.5 UnderElt’sinandPutin,atleastthree orders have emerged—each in tension with the others. The firstis the tra-

2See Jerzy Szacki, Liberalism after Communism, Budapest 1995.

3Richard Pipes, Russia Under the Old Regime, Harmondsworth 1974; see, also, Richard Pipes, The Russian Revolution, New York 1991.

4Peter Reddaway and Dmitri Glinski, TheTragedy of Russia’s Reforms: Market Bolshevism against Democracy, Washington, DC 2001.

5The idea that Soviet structures have been progressively restored as part of a natural process of “social regeneration” has been advanced by Alexander Zinoviev in numerous works. See V. Lupan, Russkii vyzov, translated and with an introduction by A. Zinoviev, Moscow 2001, 139-140.

ditional statist one (Napoleonic or Andropovist) in which the emphasis is placed on the power vertical. In this neo-authoritarian model, whenever a potential autonomous center of power—official or civil—emerges, the Kremlin moves to co-opt, incorporate, or suppress it. The second political order is that of liberal democracy, based on normative principles of universal citizenship, the electoral constitution of power and legal and political accountability.

The third is the world based on patronage and patrimonial relationships, in which horizontal networks create clusters that become remarkably impervious to the impartial operation of law and political power. The strongest of these developed in economic society where the fusion of bureaucracy and oligarchic networks—enjoying far greater financial and media resources than political parties—feed back to shape political space. There has been much discussion of the way that the state was “stolen” in the exit from communism;6 the logic of the neo-patrimonial model of politics is that the state itself is privatized and turned to the advantage of a narrow elite group who undermine formal political institutions. These informal relationships were particularly strong in the regions, and they havebeeninfluentialinotherpost-Sovietcountries,notablyUkraine.7 The weakness of the regulatory and legal system has allowed whole swathes of the Russian economy to become part of a system of “fragmented clientelism”: “Sectoral governance is largely shaped by political markets dominated by a number of parallel agencies more clientelistic than collective in character.”8 In these circumstances, it is difficult to tell what is legal or illegal, and indeed what is public and private.

The presidency is the most powerful and, at the same time, the most controversial political institution in contemporary Russia.What has been dubbed a “hegemonic presidency”9 affects all aspects of Russian political life and, under Putin, became the heart of what many see as a system of “managed democracy”. Presidential hegemony, however, can take many different forms: patrimonial, paternalistic, power-maximizing, power-

6Steven L. Solnick, Stealing the Soviet State: Control and Collapse in Soviet Institutions, Cambridge, MA 1998.

7Hans Van Zon, “Neo-Patrimonialism as an Impediment to Economic Development: The Case of Ukraine”, 17 Journal of Communist Studies andTransition Politics September 2001 No.3, 71-95.

8Barbara Lembrusch, “Fragmented Clientelism: The Transformation of Sectoral Economic Governance in the Russian Timber Industry”, in Vladimir Tikhomirov, (ed.), Anatomy of the 1998 Russian Crisis, Melbourne 1999, 238-258, at 239.

9John P.Willerton Jr, “The Presidency: FromYeltsin to Putin”, in StephenWhite,Alex Pravda and Zvi Gitelman, (eds.), Developments in Russian Politics, 5th ed., Basingstoke 2001.

preservingor,ultimately,powerless(asmanyhavesuggestedElt’sin’sleader- ship by the end had become). Whatever the precise form, the presidency became hegemonic in the sense that it is the core of the institutional arrangements of Russian governance and seeks to subordinate all these institutions to its leadership. It is equally hegemonic in that it seeks to dominate, if not control, political processes and outcomes as well. It is for this reason that the presidency is not only institutionally powerful but also politically controversial.

Instructuralterms,Russia’s“hegemonicpresidency”isembeddedin a social context that is fragmented and part of a dynamic and fluid power and elite system. According to Weber, the boundaries of patrimonial are typically unclear, with the powers exercised by leaders and officials con- sidered personal and derived from the relationship to the office-holder rather than a clearly demarcated and institutionalized office.10 Although highly bureaucratized, the state does not function as a clearly delineated bureaucracy. To compensate, there is an expansive dynamic to the powers ofofficeholdersastheytrytoreduceriskbyextendingtheirauthority.This process is characteristic not only of the state but also of all other social organizations; and, in our case, the legislature but it is equally applicable to ministries and enterprises.11 In his study of China, Walder argued that authority patterns in enterprises were “neo-traditional”, with the authority of the director reinforced by the party-state to reproduce in new forms traditional authority patterns of personal loyalty and discretionary powers of leaders.12

Putin sought to use statism and liberalism to challenge the entrenched neo-patrimonialstructuresinheritedfromElt’sin.Thereremaindisagree- ments, however, over how to evaluate the balance between these two.

Many critical voices suggest that the first order greatly overshadows the second to establish a self-perpetuating ruling corporation, a type of elective monarchy that has not destroyed the patronage order but rendered it subordinate to the bureaucratic-authoritarian regime. The lack of independent democratic institutions and the presidency’s attempts to bring all political processes under its control has apparently sapped the energiesofthefledglingdemocracythathademergedunderElt’sin.Rather than an impartial bureaucracy and ordered administrative system on the Napoleonic model, Jacobin state-building (where the emphasis is on the

10H. H. Gerth and C. Wright Mills, (eds.), From Max Weber: Essays in Sociology, New York 1946, 244, 297-298.

11Van Zon, op.cit. note 7, 73-74.

12Andrew Walder, Communist Neo-Traditionalism: Work andAuthority in Chinese Industry, Berkeley 1986.

universal and homogeneous application of a single set of laws) has led to the erosion of federalism and the diversity of the 1990s.

Instead of the development of civic republicanism, a type of Jacobin republicanism has emerged to erode the federal rights of Russia’s regions and the individual rights of citizens and economic interests. One of the conditions for the development of vigorous political and civil associations is the reassertion of an ordered state system, and Putin’s restructuring of political space can indeed be seen as an attempt in the French republican state-building tradition to establish a single legal and political space.

The fundamental question, however, is whether the government (and its apparatus) is willing to subordinate itself to the rule of law. Instead of a disciplined statist neo-authoritarian or liberal system emerging, the te- nacious grip of embedded elite structures suggested that Putin’s reforms could themselves become little more than a modernized version of neopatrimonial clan-type politics.As long as the public sphere remains stunted and civic associations weak, informal and clientelistic relations will remain predominant, together with the lack of governmental accountability and strategies of elite incorporation rather than the pluralistic interaction of independent political and social actors.

Stability versus Order

On coming to power, Putin declared that his main task was—in the words of one commentator—“to transform Russia from a ‘manually controlled’ countryintoafine-tunedmechanismfunctioningregardlessofoneperson’s will”.13 The shift, however, from neo-authoritarianism and patrimonialism to liberalism would prove more complex and contradictory than he imag- ined.The central tension of Putin’s leadership is that his struggle for state reconstitution and liberal constitutionalism is conducted in traditional neo-patrimonial ways, a contradiction that has been both a source of his power and a clear weakness in that it has imbued all that he does with an inner tension.

To understand this we can introduce a set of contrasting concepts. A central feature of post-communist Russian politics is the tension between stabilityandorder.ThiswasafeatureofBrezhnev’srulethatintheendgave way to stagnation. Stability is the short-term attempt to achieve political and social stabilization without having resolved the underlying problems and contradictions besetting society. Thus, Brezhnev refused to take the hard choices that could have threatened the regime’s precarious political stability, and thus his stability gave way to stagnation. Order in this context is something that arises when society, economy, and political systems are

in some sort of balance.14 To a large extent, an ordered society operates according to spontaneous processes, whereas in a system based on the politics of stability, administrative measures tend to predominate. In an ordered society, there are clear rules of the game backed by the rule of law, secure property rights, and governmental accountability. In a stability regime, the bureaucrat exercises arbitrary authority and the government acts in a neo-patrimonial manner. The shift from stability to order is the politics of normalization. As Gleb Pavlovsky argued, the main source of conflict in the Russian political elite at this time is “resistance to normalization”.15 As far as he was concerned, Russia faced a choice between the rule of the new security establishment or “the financial rule of the seven boyars”.

The attempt under Putin to “reconstitute” the state sought to root presidential power in the normative power of the constitution, and thus represented a bid to shift the basis of presidential hegemony away from dependence on oligarchic or other forces. There was an attempt to move away from “manual control” of political processes to allow a more selfregulating (autopoeic) system to emerge, to move away from stability towards order. In this context, arguments in favor of diluting the powers of the presidency or establishing greater parliamentary control over the government are not clear cut.

As Samuel Huntington noted, political order in changing societies sometimes requires the hard hand of the military or some other force that is not itself subordinate to democratic politics.16 Putin—on a number of occasions—explicitly sought to distance himself from this sort of tutelary politics. For example, in his question and answer session with the Russian peopleon19December2002,inresponsetoaqueryabouthowtheexcesses of the media could be curbed, he insisted that “it is impossible to resolve this problem, toresolveiteffectivelythatis [italics added], simply with some kind of tough administrative measures”. This was linked in his view to the fact that the old Soviet-style politics that treated the whole population as infantswasnolongerviablesincesocietyhadmatured:“[…]ourwholesociety is becoming more adult.”17 Rather than seeing politics as a cultural struggle

14The Russian concept of poriadok (order) clearly comes with long historical, and mainly negative, connotations. The argument presented in this section tries to reclaim the concept for liberalism and, thus, to counter the profound prejudice in Russian society against the very idea of liberalism, associated in the popular mind (and not surprisingly), with the “anarcho-liberalism” that had emerged in the 1990s. This anarcho-liberalism was based on proizvol (arbitrariness) and lack of accountability at all levels.

15Izvestiia 9 September 2003.

16Samuel P. Huntington, Political Order in Changing Societies, New Haven, CT 1968.

17V. V. Putin, Razgovor s Rossiei: Stenogramma “Priamoi linii s Prezidentom Rossiiskoi Federatsii V. V. Putinym”, 19 December 2002, Moscow 2003, 14.

to impose a single truth, Putin appeared to accept a more pluralistic vision of societal diversity. It proved difficult, however, to give adequate political form and expression to this diversity.18 In part, the problem lies in the very instrument that could establish a liberal order, the presidency.

The Presidency: The Struggle for Hegemony

François Mitterand referred to the post of president—as created by Charles De Gaulle in 1958—as a “permanent coup d’etat”, and shortly before his death he warned that French political institutions “were dangerous before me and could become so after me”.19 Many felt that this warning was no less appropriate for Russia. The presidency there overshadows all other political institutions, to the degree that Klyamkin and Shevtsova call it an “elected monarchy”.20 The paradox under Elt’sin, however, was the emergence of a strong presidency in a weak state, something that created a whole range of power asymmetries and distortions.This was not a problem uniquetoRussia.AsStephenHolmeshasargued,the“universalproblemof post-communism is the crisis of governability produced by the diminution of state capacity after the collapse of communism”.21 The creation of the presidency had been intended to compensate for the weakening power of theCommunistParty,andnowitfilledthevacuumcreatedbytheebbing of state authority and the weakness of civic initiative.

The experience of Hungary and Italy in recent years suggests that presidentialism alone is not the main cause of democratic degradation, despite the arguments of M. Steven Fish.22 In Russia, the most controversial

18Russia is not the only country where democratic consolidation has lacked depth. András Bozóki notes how the coalition government of Victor Orban between 1998 and 2002 saw electoral victory as an opportunity to achieve a fundamental cultural change. The programme of “more than government change” saw one vision of Hungary being imposed on the rest. Bozóki notes that this sort of Kulturkampf politics has emerged in a mature democracy such as Italy, “where the former power of multiple parties has disappeared and the only frontline of political struggle lies between pro-Berlusconi and anti-Berlusconi people”. András Bozóki, “Hungary”s Social-Democratic Turn”, 11 East European Constitutional Review Summer 2002 No.3, 80-86, at 85.

19Thomas M. Nichols, The Russian Presidency: Society and Politics in the Second Russian Republic, Basingstoke 2000, 2.

20Igor Klyamkin and Liliya Shevtsova, This Omnipotent and Impotent Government: The Evolution of the Political System in Post-Communist Russia, Washington, DC 1999.

21Stephen Holmes, “Cultural Legacies or State Collapse? Probing the Post-Communist Dilemma”, in M. Mandelbaum, (ed.), Post-Communism: Four Views, New York 1996, 50.

22M. Steven Fish, “The Executive Deception: Superpresidentialism and the Degradation of Russian Politics”, in Valerie Sperling, (ed.), Building the Russian State: Institutional

aspects of the 1993 Constitution are those dealing with the presidency. As we know, the adoption of the new constitution took place in the heat of bitter conflicts over the most appropriate institutional arrangements for the newly independent Russia.23 The framers of the constitution sought to avoid the instability and conflicts that had wracked late Soviet and early Russian politics by creating a firm source of executive authority; but—at the same time—they were keen to ensure that the new political system repudiated Russian imperial and Soviet authoritarianism to create a liberal and democratic system. In the event, they were perhaps more successful in enshrining the principles of liberalism than they were in ensuring the balanceddemocraticseparationofpowers.Nevertheless,forthefirsttime in Russian history a constitution made a serious attempt to define, and thus to limit, state power.

The problem, however, is not that the constitution lacks the idea of the separation of powers, but that this separation is allegedly fundamentally unbalanced. The precise responsibilities of executive power outlined in

Articles110-117oftheRFConstitutionareexcessivelywideanddiffuse.24 As Robert Sharlet puts it: “The Russian Constitution of 1993 created a strong executive presidency to which the government is subordinated within an imbalanced separation of powers arrangement. This constitutional model has been a major source of Russia’s chronic crises.”25

Russia’ssemi-presidentialconstitution,modeledonFrenchlines,ap- proximates the “presidential-parliamentary” type of mixed system that Matthew Shugart and John Carey consider the most unstable.26 They distinguish between semi-presidential systems that oscillate between presidential and parliamentary predominance, as in the French Fifth Republic, which they call “premier-presidential”, and systemsthatgive the president greaterpowers

Crisis and the Quest for Democratic Governance, Boulder, CO 2000, 177-192; M. Steven Fish, “When More is Less: Superexecutive Power and Political Underdevelopment in Russia”, in Victoria E. Bonnell and George W. Breslauer, (eds.), Russia in the New Century: Stability or Disorder?, Boulder, CO 2000, 15-34.

23These are discussed in my “The Struggle for the Constitution in Russia and the Triumph of Ethical Individualism”, 48 Studies in East EuropeanThought September 1996 Nos.2-4, 115-157; also discussed in Richard Sakwa, Russian Politics and Society, 3rd ed., London/New York 2002, Chapter 3.

24This is argued by K.S. Bel’skii, “O funktsiiakh ispolnitel”noi vlasti”, Gosudarstvo i pravo 1997 No.3, 14-21.

25Robert Sharlet, “Russian Constitutional Change: Proposed Power-Sharing Models”, in Roger Clark, Ferdinand Feldbrugge and Stanislaw Pomorski, (eds.), International and National Law in Russia and Eastern Europe, in William B. Simons, (ed.), Law in Eastern Europe, No.49, The Hague, London, Boston 2001, 361.

26Matthew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics, Cambridge 1992.

to form and dismiss governments independently of parliament, which they call “presidential parliamentary”.27 The former are considered more likely to create a stable democratic system since there is greater accountability to parliament, whereas in a presidential-parliamentary system the government is torn between accountability to both the president and parliament.While theFrenchsystem’sabilitytoflipbetweenapresidentialandparliamentary mode creates a “safety valve” which ensures that political tensions between president and parliament do not evolve into a constitutional conflict,28 Russia’s“presidentialparliamentary”systemengenderedendemicconflicts under Elt’sin, and under Putin it seemed that the only way to resolve them was by ensuring a compliant legislature.

The Russian system meets the criteria established by Elgie, who de- finesasemi-presidentialsystemasoneinwhichthereisapopularlyelected, fixed-termpresidentworkingwithaprimeministerandcabinetresponsible to parliament.29 The level of governmental accountability to parliament, however, is contentious since the government is appointed by the president and responsible to him or her. The government is chaired by a prime minister, but at the same time a large block of “power” ministries come under the direct responsibility of the presidency. Like theTsar according to the 1906 Constitution, who reserved to himself responsibility for foreign policy, control of the armed forces and the executive, the 1993 RF Constitution (Art.80) grants the president control over four key areas: security, defense, home, and foreign affairs. Russia’s presidency in effect acts as a duplicate government, with the functions of ministries often shadowed by agencies under the presidency. The prime minister exerts only partial control over his or her own ministers and is deprived of control over the so-called “power ministries” (siloviki) responsible for domestic security. The president plays an active role in the policy process, initiating and vetoing legislation.Elt’sinusedhisdecreepowerswithgreatgusto,issuingover1500 policy-relevant ukazy duringhistermsinoffice.30 Thus, the nature of prime ministerial and cabinet responsibility to the Duma is episodic and unclear in the constitutional order that emerged in late 1993. The Duma has the choice of rejecting the president’s nomination to the premiership and can adopt no-confidence motions in the cabinet, but other than that the lines of accountability between government and parliament are relatively weak.

27Ibidem, 23-27.

28Ezra N. Suleiman, Presidential and Political Stability in France”, in Juan J. Linz and ArturoValenzuela, (eds.), The Failure of Presidential Democracy: Comparative Perspectives, Baltimore 1994, 137-162.

29Robert Elgie, (ed.), Semi-presidentialism in Europe, Oxford 1999.

30Willerton, “The Presidency: From Yeltsin to Putin”, op.cit. note 10, 29.

The government is subordinated to the president and, formally, does not have to represent the majority party or coalition in parliament.

Executive authority became more independent of the legislature, though it remained constrained by law and regulated by parliament within the framework of “delegated legislation”. Remington stresses that the 1993 constitutional settlement—while indeed granting the presidency considerable powers as part of the “adaptive evolution” of the system in response to the chronic political crisis of 1990-1993—nevertheless provided significant “compensatory side payments” to other actors to ensure their participation in the new constitutional order. Paradoxically, according to Remington, the Russian parliament emerged as a more effective and representative body than earlier legislatures.31 Manyquestions remained, however, including the limits to presidential power. Would a strong executive encourage the development of democracy in society or would it act as a substitute for popular democratic organization? Would not the “strong hand” inevitably take on aspects of the Bolshevism that it sought to extirpate and perpetuate, rather than overcome, traditions of authoritarianism and arbitrariness?While the 1993 Constitution embodies the principles of liberalism, it is predicated on the assumption that the strong president will also be a liberal. In the event of this not being the case, the authoritative (if not authoritarian) elements in the constitution could come into contradiction with its liberal provisions. Is this what has happened?

The question we ask in this chapter is whether this dual hegemonic ambition—to control the political process and to reduce the level of uncertainty in achieving outcomes (characteristic of all presidential systems)—has, in the Russian case, evolved away from the liberal separa- tion of powers enshrined formally in the 1993 Constitution into something akin to a neo-patrimonial system where all institutions and political processes come under the tutelage of the presidency. In a country where the pluralistic countervailing civil society forces—typical of a mature liberalism—are weak, the presidency in Russia appeared to achieve this dual hegemony. Its leadership, however, was challenged by various projects to establish parliamentary hegemony.

Regime Politics:

Liberal in Form, Neo-patrimonial in Content?

The dissolution of the Communist Party and the disintegration of the

USSRcreatedapowervacuumthatwasfilledbyahegemonicpresidency. UnderElt’sin,executiveauthoritybecamerelativelyindependentfromthe

31Thomas F. Remington, The Russian Parliament: Institutional Evolution in a Transitional Regime, New Haven, CT 2001.

legislature, a trend given normative form by the 1993 RF Constitution. Many functions of the old legislature—including some of its committees andcommissions—were incorporated into the presidential system, provid- ing yet more impetus to the inflation of the presidential apparatus. By the same token, some of the conflicts that had formerly taken place between the two institutions were now played out within the presidential system itself. The institutional aspects of this have been dubbed the politics of “institutional redundancy” by Huskey.32 Instead of achieving the effective separation of powers, the new system established the duplication of powers. The Russian presidency began to take on the features of the Tsarist or Soviet systems, with weak prime ministers responsible mainly for economic affairs, a minimal separation of powers and with politics concentrated on theleader.UnderElt’sin,anunwieldyconcentrationofpowerwasachieved, marked by corruption, clientelism, and inefficiency.

The constitutional order enshrined in the December 1993 Constitution, as we have seen, is focused on the presidency. When the president is weak,soisgovernance.Theeffectivenessofthestateisdependentonthe strength of the presidency in general and on the character of the incumbent in particular. It is this entwining of institutional and personal factors in a weak constitutional order and under-developed civil society that gives rise to what we call “regime politics”.Aregime here is defined as the network ofgoverninginstitutionsthatisbroaderthanthegovernmentandreflects formal and informal ways of governing and is usually accompanied by a particular ideology. The regime in Russia is focused on the presidency but is broader than the post of president itself. As suggested above, the power system focused on the regime could theoretically dispense with the presidency and, instead, could base itself on a parliamentary system, as had earlier occurred in Italy and Japan. In a parliamentary regime system, the power elite is less threatened by the emergence of an independent president appealing to the constitutional powers of the state to curb the political pretensions and social power of the regime bloc. A presidential regime system, however, allows greater room for manoeuvre for the chief executive. The presidency under Putin sought to free itself from societal pressures (above all in the form of oligarchs, regional barons, and parliamentary faction leaders) by appealing to the normative framework of the constitution.

State development in post-communist Russia has, thus, faced distinctive challenges. The country is not only a hybrid system in terms of democracy and authoritarianism, but is also one torn between the market and state patronage. Class and state power is highly fragmented, with the regime mediating between the former communist officialdom, the old