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27 July 2003
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Date: Sat, 26 Jul 2003
From: Alexander Domrin <[log in to unmask]>
Subject: Ten Years Later: Society, "Civil Society," and the Russian State
Table of Contents
The Russian Review
An American Quarterly Devoted to Russia Past and Present
VOLUME 62/NUMBER 2 APRIL 2003
Contributors to This Issue ii
Ten Years Later: Society, "Civil Society," and the Russian State 193
Alexander N. Domrin
Civil Society in Russia: Models and Prospects for Development 212
George E. Hudson
His to Stake, Hers to Lose: Women and the
Male Gambling Culture of Nineteenth-Century Russia 223
Ian M. Helfant
The Poetics of Science in, and around, Nabokov's The Gift 243
Stephen H. Blackwell
Romantic Friendship in the Nicholaevan University 262
Rebecca Friedman
Local Soviets, Public Order, and Welfare after Stalin:
Appeals from Moscow's Kiev Raion 281
Stephen V. Bittner
REVIEW ESSAY
Ideology or People? 294
James R. Ozinga
----------------------------------------------------------------------------
---------------------
The Russian Review
vol.62, No.2 April 2003, p.193-211
© Copyright 2003 The Russian Review
[AD: Used with permission of the publisher].
Ten Years Later: Society, "Civil Society," and the Russian State
ALEXANDER N. DOMRIN
Alexander N. Domrin is a Senior Research Fellow and Head of International
Programs at the Institute of Legislation and Comparative Law (Moscow), a
research and legislation-drafting division of the Russian federal
government. A graduate of the Institute of International
Relations under the USSR Ministry of Foreign Affairs (1985), in 1990 he
joined the professional staff of the Russian Supreme Soviet Committee on
Foreign Affairs and Foreign Economic Relations, as its Senior and then
Chief Specialist. In 1994-96 he was the Moscow Coordinator of
the U.S. Congressional Research Service-Russian Federal Assembly
Parliamentary Development Program. He has taught, as a Visiting Professor,
at major law schools in the United States (Cornell, Penn, NYU, Iowa, etc.)
and was a Fulbright Research Scholar at Harvard Law School.
I.
Grazhdanskoe obshchestvo (civil society) is becoming the new mantra of the
Russian government and the political elite in general. The term is widely
used in the contemporary Russian political lexicon. A reference to the
"creation of civil society" or its "further development" is usually present
in a typical set of arguments put forth by Russian policymakers endorsing
certain political initiatives in the country. Work
on "developing structures of civil society in Russia" is regularly
discussed during meetings between President Vladimir Putin and leaders of
parliamentary factions or presidential envoys, as happened, for instance,
on 28 June 2001 during Putin's meeting with envoys Petr Latyshev
(Urals federal district) and Leonid Drachevskii (Siberian federal
district). Even the formation of a coalition of two political parties-the
pro-Putin Edinstvo (Unity), and Primakov-Luzhkov's Otechestvo-Vsia Rossiia
(Fatherland-All Russia)-was officially welcomed by President Putin because
it was expected to become an "important step aimed at strengthening and
developing the political system, and creating civil society."1
The number of registered public organizations in Russia has reached
approximately 350,000, including more than 70,000 social and noncommercial
organizations, which are actively operational and directly or indirectly
involved in charitable work. According to different sources, charity
organizations unite between 1 million and 2.5 million citizens providing
assistance and free services to some 20-30 million Russians, worth 15
billion rubles a year.2 Reportedly, the number of Russian regions that have
cooperation arrangements with, for instance, groups working with orphans
and the disabled, has risen from 12 (out of 89) in 1998 to 40 in 2001.3
Not by coincidence, it was on 12 June 2001, a symbolic date in Russia's
recent history and an official Russia Day holiday, that President Putin
held a meeting with representatives from a wide range of public
organizations. Attended by twenty-eight nongovernmental organizations
(NGOs)-including the Association of Beekeepers, the Allotment Gardeners'
Federation, the All-Russian Society of Stamp Collectors, as well as those
uniting lawyers, invalids, journalists, consumers, ecologists, and even
bards-the Kremlin gathering proposed the formation of a Civic Chamber
attached to the Office of the President. The Chamber is expected to become
an important component of the process of building a
civil society and developing the grass-roots activities of ordinary
Russians. Concrete preparations for creating such a Chamber are being made
by Gleb Pavlovskii, a former dissident, "political prisoner," and now the
head of a high-profile Foundation for Effective Policy, and Vladislav
Surkov, a senior official of the presidential administration. The Civic
Chamber will be preceded by the Civil Forum, which convened on 21 November
2001 in Moscow with participation of four thousand representatives of
citizens' groups and NGOs.
The rapid intensification of dialogue among the Russian political elite and
social scientists on civil society and its evolution is no accident. Many
observers view the stunning defeat of radical "reformers" in the Russian
parliamentary elections of December 1999, and Putin's decisive victory in
the presidential campaign of March 2000, as the end of "revolutionary
changes" in Russia. In a popular expression, civil
society is the point where revolution ends and the routine (byt) of a
democratic regime begins.
In a certain way, the use of the term grazhdanskoe obschestvo is following
the pattern of the use of another concept more than ten years ago-pravovoe
gosudarstvo (Rechtsstaat, or "law-governed state"). Indeed, "civil society"
is probably now mentioned as often as glasnost or pravovoe gosudarstvo were
used during perestroika in the late 1980s and early 1990s. Back in June
1991 a report prepared for the U.S. Congressional Research Service observed
that "voluntary or involuntary lack of consensus on the meaning of the rule
of law, broad interpretation of the term, and attempts to use it in
political demagogy as a populist tool lead to outright abuses of the
concept."4 In the same way perestroika was transformed in reality and
public consciousness into katastroika-while the "architect of perestroika,"
Mikhail Gorbachev, deservedly enjoys the support of no more than the 0.5
percent of the Russian electorate which voted for him in the 1996
presidential elections- so too might the indiscriminate use of "civil
society" in Russian political doublespeak today lead to similar
consequences. The more politicians speak about "civil society," the less
meaningful it becomes.5
Let us consider, for example, two official documents of the State Duma: the
"Plan for Draft Legislation on the Matter of 'Civil Society," and the
"Recommendations of Parliamentary Hearings on 'Russian Federalism and
Problems of Development of Civil Society.'"6 The former was adopted by the
State Duma in the beginning of 1995 and contained titles of thirty-one
bills. Besides bills aimed at regulating the establishment and activities
of public associations and charity organizations, or formulating "General
Principles of Organization of Local Government in the Russian Federation,"
the list also included draft acts that differed markedly in their
constitutional significance and scope of legal regulation. On the one hand
were bills addressing broad political issues such as "On the Election of
the Russian Federation President," "On Referendums in the Russian
Federation," and "On the Russian Federation Constitutional Assembly." On
the other hand, one finds legislation
focused on narrow issues, such as "On the Distribution of Erotic Products."
Similarly, parliamentary hearings at the Russian State Duma on "Russian
Federalism and Problems of the Development of Civil Society" (15 November
1999) led to an adoption of three sets of "recommendations" in various
areas of social activities. In the area of scientific research, the
participants in the hearings recommended that Russian scholars,
among other things, concentrate on such eternal problems as "humanism and
federalism," and on such vague topics as "fusion of the energy of civil
society with the policy of sustainable development," "federalism and civil
consciousness of Russian society," and "civil
self-governing society-a condition for the creation and development of real
federalism in Russia." In the sphere of information and mass media,
participants advised concentrating on "the need for a productive dialogue
between political parties, social movements, and state authorities, and the
center and regions aimed at reaching political consensus between them."
They also recommended introducing a special section, "The Individual, Civil
Society, Federalism in Russia," in a number of Russian scholarly magazines
(Zhurnal rossiiskogo prava, Pravo i ekonomika, Svobodnaia mysl',"
Sotsiologicheskie issledovaniia, Polis, Federalizm), and starting a new
talk show on TV called "Civil
Society and Federalism in Russia."
Apart from these long-term goals, which, to a large extent, were
hypothetical and detached from current Russian reality (for example, goals
such as beginning "complex programs, federal and regional, aimed at
developing and strengthening civil society," and establishing an "institute
for research in problems of civil society"), the third set of proposals
("in the legal and administrative sphere") contained a short list of six
draft laws which, from the point of view of organizers of the conference
and its participants, would help Russia move closer to "real federalism"
and to "strengthen civil society in our country at the present time."
This set of bills presents some problems. Although it includes a very small
number of titles, two of them repeat each other ("On the Responsibility of
Officials for Violations of Civil Rights and Freedoms, Constitutional
Foundations, and Principles" and "On the
Responsibility of Officials for Violations of the Constitutional Rights of
People"). Two others, meanwhile, envision regulating very similar aspects
of law and could probably be combined ("On Guaranteeing the Consistency of
Legal Acts of Subjects of the Russian Federation with Federal Legislation,"
and "On the Mechanism of Recognizing Unconstitutional the Legal Acts of
Subjects of the Russian Federation Contravening Federal Legislation"). It
is hard to understand from the title of another bill, "On Information
Safeguarding Citizens' Security," what area of social relations it intends
to regulate. In case of the adoption of the last bill, "On the Mechanism of
Rendering Decisions of the Russian
Federation Constitutional Court," the act would most probably be eventually
recognized as violating the Russian Constitution. Indeed, if the activities
of the Constitutional Court are regulated by a Federal Constitutional Law
("On the Constitutional Court of the Russian Federation" of 24 July 1994),
the proposed "mechanism of rendering decisions" of the Constitutional Court
could not, in principle, be introduced by a regular parliamentary act, but
only by another Constitutional Law. The Russian Constitution contains an
exhaustive list of Federal Constitutional Laws (on referendum, on
arbitration courts, on the Commissioner for Human Rights, on martial law,
on a state of emergency, and so on), but the proposed act is not among them.
Finally, and most important in the context of this article, it is
completely unclear what all those bills have to do with civil society, and
in what way their adoption, in the opinion of lawmakers, would contribute
to development of civil society in Russia or its "strengthening."
II.
The concept of civil society has a longer history in the transitional
regimes of Central and Eastern Europe than it does in Russia. By the late
1970s the doctrine of civil society was already understood as a program of
resistance to the Communist government in Poland. To a large extent, the
"velvet revolutions" themselves were "carried out in the name of "civil"
society."7 Unlike in Central and Eastern Europe, where such terms as "civil
society," "citizen's committees," "citizen's assemblies," "citizen's
initiatives," and so on, were the "most frequently
used terms in the public discourse of that time," revolutionary (in their
essence) legal and political reforms were initiated at the end of the 1980s
in the USSR not under "civic" slogans, but under slogans of Soviet
transition to "democracy" and the "rule of law."8 The term "democratic" was
present in the titles of the most radical groups and movements in the
country: from Novodvorskaia's schizoid Democratic Union to the massive (at
that time) Democratic Russia, and from the Social Democratic Platform of
the Communist Party of the Soviet Union to Travkin's Democratic Party of
Russia and Rutskoy's "Communists for Democracy." Symbolically, one of the
very first political groups that
used the term grazhdanskii in its title was Grazhdanskii soyuz (the Civic
Union), the most promising and influential democratic organization standing
in opposition to the domestic and foreign policies of the Russian
government in general, and to the disastrous course of Anatolii Chubais's
privatization and the experiments of market bolshevists with the Russian
economy in particular.9 The refusal of Yeltsin and his radical supporters
to hold a dialogue with the Civic Union in the second half of 1992
marginalized Russian politics and channelled governmental economic and
social policy toward predominantly confrontational and eventually violent
forms.
With the collapse of communism in Central and Eastern Europe, the internal
content of the idea of civil society so drastically changed that some
authors even began speaking about the "fall of the concept of civil
society."10 This observation is probably correct if we mean an exclusively
negative, destructive component of the concept-a denial of the state per se
as an apparatus of force, and a mobilization of societal resistance aimed
at overthrowing the state. However, in the words of Bronislaw Geremek (a
former Polish Solidarity activist and subsequently the parliamentary leader
of the Democratic Union, the largest of the post-Solidarity parties), civil
society today "cannot and
should not base itself on emotions, but on the building of carefully
nurtured institutions. ... The main task now is constructing democratic
mechanisms of stability." In the opinion of Larry Diamond (of the Hoover
Institution), the "single most important and urgent factor in
the consolidation of democracy is not civil society but political
institutionalization."11 "Democratic mechanisms of stability" and
"political institutionalization" are the key words here. And in this
respect the conclusions of Geremek and Diamond are highly relevant to
Russia as well. At first glance, the term "civil society" is quite
extensively represented in contemporary Russian legislation. It has been
used in more than a hundred legal acts and official documents (adopted in
1991-2001). Such acts include at least ten presidential decrees,12 half of
which were issued in March-June of 1996 at the height of Yeltsin's
presidential campaign, two presidential directives,13 three resolutions of
federal legislative bodies (Supreme Soviet and State Duma),14 two
resolutions of the federal Constitutional Court, and one resolution of the
Federal Arbitration Court of the Moscow District;15 three federal programs:
on "Continuation of Reforms and Stabilization of Russian Economy"
in 1993, on support to book-printing in Russia in 1996-2001, and "Culture
of Russia (2001-2005),"16 and at least three resolutions of the federal
government.17 "Civil society" is also mentioned in numerous legal acts and
official documents adopted in regions of Russia,18 including at least six
resolutions of Moscow government,19 three addresses of regional leaders of
Russia (Bashkortostan and Tatarstan), and a number of other acts of
executive and legislative bodies.20
Lip service to the necessity of developing or strengthening "civil society"
in Russia was paid in all of the president's "State of the Nation"
addresses to the Federal Assembly (1994-2002), as well as in the Concept of
Foreign Policy of the Russian Federation and in the Doctrine of Information
Security of the Russian Federation. Yet, apparently, there is only one
federal Law-"On Education" (No. 3266-1 of 22 July 1992)-that uses this
term. One quarter of all official documents mentioning "civil society" (to
be precise, twenty-five) are international agreements, communiqués, or
memorandums (including those adopted by the UN, UNESCO, the OSCE, the G-8,
the Council of Europe and its
Parliamentary Assembly, the Supreme Council of the Russia-Belarus Union, as
well as a joint statement by Russian president Putin and Yugoslav president
Kostunica of 27 October 2000 in Moscow). This figure will become even
larger if we add documents hardly having significant legal meaning (like an
information report of the federal Central Bank of 3 October 1995, or four
orders, three letters, and one resolution of the
federal Ministry of General and Professional Education and Ministry of
Education), plus those adopted by lesser institutions and organizations
(like three resolutions of the Federation of Independent Trade Unions of
February-March 1996, or a resolution of the Third Congress of
Russian Justices of 25 March 1994, "On the Concept of the Russian
Federation's Judicial System"). As a result, a comprehensive Dictionary of
Russian Legislation: Terms, Concepts, Definitions contains about
twenty-five thousand legal terms and definitions, but there is no "civil
society" among them.21 Even the most fundamental commentaries to the
federal Constitution contain no mention of "civil society" in their
indexes.22
III.
Russian legislation is not alone in having an unsettled relationship with
the term "civil society." The concept remains a matter of much dispute
predominantly among scholars of philosophy and political theory. Civil
society itself is a philosophical concept (which is also used in political
science and sociology). Scholars trace the origins of this doctrine to the
works of Plato, Aristotle, Cicero, Bodin, Grotius, Hobbes, Milton, Spinoza,
Locke, to the classics of French and German Enlightenment (Montesqieu,
Rousseau, Pufendorf, Leibniz, Thomasius, and Wolf), as well as to the
system of civil society developed by Hegel. The concept of civil society is
much closer to contemporary political studies rather than to legal
research. A sample search in just one magazine-The Journal of Democracy in
the 1990s-indicated about twenty major articles dedicated to "paradoxes,"
"renovation," "democratization," "resurgence," "awakening," and other
perturbations of civil society
in various parts of the world, including Russia and other post-Communist
countries. On the other hand, publications dedicated to legal aspects of
the concept in Russian or foreign academic periodicals and editions are
extremely rare. In legal terms, civil society does not have a strict
definition either in Russian or Western law. It is practically unknown in
American legislation.23 Naturally, the fact itself that the term "civil
society" can hardly be found in U.S. legislation does not necessarily mean
that civil society does not exist in the United States. It does mean,
however, that civil society cannot be instituted by special parliamentary
acts or executive orders, but is created and nurtured through decades of
social development. Various authors offer different and sometimes
contradictory definitions of "civil society" (or, like Bronislaw Geremek
and contemporary Russian legal scholar V. M. Lebedev, they refuse to define
it or delimit its interrelations with the
law-governed state at all).24 For example, M. Steven Fish's "moderately
restrictive" definition of "civil society" has room for Gaidar's
DemRossiia, but allegedly excludes "fanatical organizations and groups that
seek to seize control of the state and rule exclusively." On the other
hand, Alexander Lukin correctly describes Democratic Russia and other
radical "'democratic' activists" in Russia as viewing democracy "not as a
system of compromises among various groups and interests ... but as the
unlimited power of "democrats" replacing unlimited power of the
communists."25 Thus, Democratic Russia certainly meets Fish's definition of
a "fanatical organization" (even though he favorably evaluates DemRossiia's
role and legacy in Russian politics) and-following Fish's criteria-cannot
be considered a "civil society" group (or "civic group").
Before speaking about the peculiarities of the Russian interpretations of
civil society, it is necessary to state that, despite all misunderstandings
and periodic use of the term in political demagoguery, the rehabilitation
of the concept of civil society in Russian science
and political life is certainly a very positive accomplishment in itself.
Needless to say, for many decades there was no place in Soviet social
sciences (including law) for an objective, unbiased study of such complex
concepts as "civil society," "rule of law," or "separation of
powers." The dogmatic view on the nature of the Soviet society as a
"society without conflicts" (beskonfliktnoe obschestvo) made any serious
research of those doctrines irrelevant. The Philosophical Dictionary (1975)
described "civil society" exclusively as a concept of "pre-Marxist
philosophy." Sergei S. Alexeev, a Sverdlovsk legal scholar and a future
Chairman of the USSR Constitutional Supervision Committee, insisted
that law "by its nature cannot be above the state" and that rule of law is
a "deceitful, false, scientifically untenable (lzhivaia, fal'shivaia,
nauchno nesostoiatel'naia) bourgeois theory." Avgust A. Mishin interpreted
the legal status of President in the United States and
other foreign countries as that of the "constitutional monarch," "somewhat
of an atavism," a "sign of a philistine admiration for Crown." In 1989,
Moscow professor Vladimir N. Danilenko still argued that judicial
constitutional review provides "wide opportunities for an assault on
rights and freedoms."26
IV.
Despite all the differences in how Russian scholars, politicians, and
legislators understand "civil society," we can nevertheless try to
formulate certain common and more or less accepted approaches.27 Unlike
their Western counterparts who consider civil society an
"intermediary phenomenon, standing between the private sphere and the
state," "an autonomous, self-regulating domain independent of the State,"
thus placing a dividing line between civil society and the state, Russian
scholars and policymakers tend to interpret the "law-governed state" as a
political manifestation (ipostas') of "civil society."28 Rule of law is
unquestionably a key element in sustaining the development of civil
society, but a law-governed state is viewed not as if it is separated from
civil society, but as a reality, which is based on the latter. Russian
scholars understand the relationship between the law-governed state and
civil society to be one of form and substance, as a balanced, mutually
restricted collaboration. Civil society is interpreted not as diminishing
the lawgoverned state, but rather complementing and completing it.29
Overall, Russian scholars are hesitant to consider civil society as the
uncontrolled realm of individuals. Following Hegel, they tend to conclude
that civil society does not exist before the state or outside of it. As if
arguing with one of the above quoted authors, Oleg Rumiantsev, the
secretary of the (parliamentary) Russian Constitutional Commission in
1990-93, wrote: "Civil society is not absolutely autonomous, because it
experiences certain influence from the state, doesn't exist before or
outside of the latter, but coexists with its obvious reality which in a way
embraces it."30 The state provides protection to civil society, including
protection of citizens' life and health, and maintenance of law and order.
In the Russian interpretation, civil society cannot be established at the
state's expense. The state is responsible for maintaining social justice in
the country and approximately equal levels of material wealth for its
citizens. With its
protective foreign and defense policy, the state exercises its role as the
ultimate guarantor of the existence of civil society and the Nation.31
Neither Russian nor Western scholars consider civil society an absolute
value in itself. M. Steven Fish, for instance, speaks in quite positive
terms about the absence of a "vigorous civil society" in Russia in
post-Soviet days, which was an "advantage" for Gaidar's "shock therapy"
because it reduced the "strong popular resistance" to "economic
liberalization." 32 Indeed, Russian radical "reformers" (and their foreign
advisors) cannot be consistent, sincere, or logical when demanding the
creation (or development) of civil society in Russia today, because the
absence of civil society (or its weakness) in the beginning of the 1990s
was one of the most important factors that actually allowed them to
exercise the pillage of the country under the guise of "reforms."
It also deserves mentioning that the Draft Constitution prepared by the
(parliamentary) Russian Constitutional Commission in 1990-93 contained a
special chapter dedicated to civil society. The Constitution of the
Republic of Crimea of 1992 actually has such a chapter, and it was drafted
with the support of members and experts of the Russian Constitutional
Commission. Naturally, there was no room for a chapter on civil society in
the Yeltsin's semi-authoritarian, superpresidential, "victor's
Constitution."33
To be successful, civil society in Russia must develop in tendem with the
strengthening of Russian statehood. In Putin's words (from his address to
the June 2001 meeting with NGOs), "Great Russia is a great society."
Russians are tired of the state-weakening activities of radical social
groups and organizations that came to existence at the end of the 1980s and
early 1990s; organizations whose motto can be expressed in the words of an
Osip Mandel'shtam poem: "We live but don't feel the country under our feet"
(My zhivem pod soboiu ne chuia strany). Richard Rose's seven-year-old
observation that, "if forced to choose, a majority of East Europeans would
prefer weak and ineffective
government to strong government," is no longer correct with respect to
Russia.34 One of the main reasons behind the stable (almost guaranteed)
electoral strength of the Communist Party of the Russian Federation (KPRF)
(and an important factor in the victory of the pro-Putin Unity
party in the 1999 parliamentary elections) is the fact that 42.1 percent of
its supporters consider the KPRF program and activities "state-oriented,"35
whereas only 21.6 and 20 percent of voters for Iabloko and the Union of
Rightist Forces find it important that their parties will work for
strengthening Russian statehood.36
A recent study undertaken by the Russian Academy of Science (with support
of Friedrich Ebert Foundation) demonstrates that the restoration of state
power and the "revival of Russia as a mighty global power" is considered
the main "unifying and mobilizing idea" in Russia now: 48.3 percent of
respondents share this point of view (in 1995 it was 41.4 percent),
compared to 10.2 percent who named an "idea of individual
freedom, priority of interests of an individual over interests of the
state." Other respondents named "return to socialist ideals and values"
(15.3 percent), "convergence with the West" (14.5 percent), Russia's
"uniqueness as a nation, special historical mission of Russian people" (8.0
percent), and so on. It is quite remarkable that the percentage of those
who support an "idea of resistance to the West, self-reliance" (in other
words, autarchy) has grown more than fivefold in the last five years: from
2.3 percent in 1995 to 12.2 percent in 2001-the
highest rate of growth compared to ten other "ideas."37
Václav Havel's description of civil society as a "social space that fosters
the feeling of solidarity between people and love for one's community" is
very close to the Russian traditionalist understanding of the concept.38
According to a contemporary scholar from Siberia, "civil society is a
society of citizens having not only a certain level of legal consciousness,
but a sense of national pride ... love of one's fatherland."39 A number of
public organizations may disagree that their views are "destructive," but
that is exactly how they were characterized by Vladimir Kartashkin, a
well-known Russian specialist in international law from the Institute of
State and Law and the head of the presidential administration's Commission
for Human Rights, and it is exactly how the overwhelming majority of
Russians feel as well.40 Although Kartashkin's statement was immediately
dismissed by such NGOs as the human rights group Memorial, which is known
for its
excessive disparagement of Russian history and the Russian state, the same
opinion was expressed by Viacheslav Igrunov, a Soviet human rights activist
and now a leading figure in the democratic Iabloko party, a federal State
Duma deputy, and the director of the Institute of Humanitarian and
Political Studies. At a press conference of the Civil Forum organizing
committee, Igrunov appealed to the Russian public organizations to stop
"futile exercises in fault-finding" (besplodnoe kritikanstvo) and turn
instead to creative work in cooperation with the state.41
Even the U.S. Congress-funded Radio Free Europe/Radio Liberty had to
recognize that "there are, of course those groups which reject any kind of
cooperation" with Russian authorities in their activities.42 Such groups
certainly have the right to "reject any kind of cooperation" with the
Russian state, and the state has a legitimate right to call their
activities "destructive." But in this particular case it is clear which
side enjoys the people's empathy. When a Yaroslavl' Oblast regional branch
of Memorial failed to renew its registration (by September 2000) and a
local court subsequently liquidated the branch (in July 2001), Yaroslavl'
residents reacted favorably and organized no major protests, meetings, or
demonstrations in support of Memorial.
V.
Western theoreticians of civil society agree that "civil society
encompasses a vast array of organizations, formal and informal," and
mention economic organizations (productive and commercial associations and
networks) before any other civil society components: cultural,
informational and educational organizations, interest groups, developmental
organizations, issue-oriented movements, civic groups.43 But the state is
not only a power structure-it is an active subject of economic activities
as well. That is true of any society, including Russia's. The state has
always played a special role in the national economics of Russia, and the
state has traditionally enjoyed special property rights with respect to
state enterprises, land, forests, and the like. About a third of all
property assets in Russia still belong to the state. According to Argumenty
i fakty (quoting officials and experts of the federal Ministry of Property
Relations), "where the state owns from 25 to 50 percent of shares, things
go even worse than at enterprises with 100 percent state participation."44
It is no surprise, then, that 79 percent of Russians "strongly support, or
more or less support," strengthened state control over the economy.45 Thus,
even from a
theoretical point of view it would be wrong to recognize a regular economic
organization or an enterprise as an element of civil society and to deny
this right to the state. Moreover, in the judicial sphere the state is
accountable like any other subject of civil society, be it an individual
citizen or a collective.
More than likely, the Russian interpretation of civil "society" is closer
to "community" in the traditional Russian understanding of that term,
especially because both words are synonyms in Russian-obshchestvo. In this
respect, Grigorii Iavlinskii's recent criticism in a liberal newspaper that
Russia has a "defective" and "unstable" democracy which "is not supported
by the majority of Russians," and that civil society is substituted with
"the Soviet version of community," is close to reality, even though the
same newspaper tried to ridicule him by saying that "the chief trouble with
our democracy is the people. Without them it would work perfectly well."46
Indeed, as far as civil society and its elements are concerned, according
to a poll conducted by the Public Opinion foundation among fifteen hundred
urban and rural residents in June 2001, only 5 percent of Russian citizens
are active in public organizations. 73 percent said they would not like to
work in any public organization, versus 15 percent who said that they
would.47 A recent UNICEF report finds that young people are even less
active in social organizations (or in sport activities) than in the late
1980s.48
The average Russian expresses distrust of seven out of ten key institutions
of Russian society, with political parties as the least trusted (7 percent)
and the courts and the army as the most trusted institutions in the country
(40 percent and 62 percent, respectively).49 Only 14 percent of Russians
(every seventh one of us) consider Russia a democratic state, with 54
percent saying that "overall" it is not. 60 percent do not believe that
their votes are capable of changing anything.50 Although as few as 6.9
percent of the fifteen hundred Russians polled by the Russian Public
Opinion and Market independent research center believe that a situation in
which political leaders make arbitrary decisions as they see fit would be
best for Russia, and although as few as 2.8 percent believe that military
rule would be very good for Russia, only 9.1 percent believe that democracy
is "the best form of rule despite certain problems it poses" (an additional
38.7 percent "to some degree" share this view).51
An analytical report prepared at the Institute of Legislation and
Comparative Law under the Russian Government indicates that 70 to 80
percent of Russians think that "laws overall do not work." 28.2 percent of
civil servants recognize that they have to ignore or violate federal laws
in their work. 70 percent of the population believe that they have to
undertake illegal actions in order to guarantee their legitimate rights
more often now than before the beginning of legal reforms in the country.
56 percent of the population (and 58.9 percent of civil servants) consider
the government and other federal bodies of the executive branch the most
corrupt. Since the end of 1989, people's trust in the federal legislature
has shrunk from 88 percent (for the USSR Supreme Soviet) to 4.3 percent
(for the State Duma). Only 3.7 to 3.9 percent of Russians agree that
Yeltsin's decade was a "necessary stage in the development" of Russian
society (4.8 to 5.1 percent of civil servants; 7 to 8.7 percent of Russian
elite).52 95.1 percent of the population (and 94.4 percent of civil
servants) vote for a "decisive restoration of order in the country."
Although as many as 89 percent of the sixteen hundred Russians polled in
April 2000 by the All-Russia Center for Public Opinion Studies "strongly
support or more or less support" guarantees of the democratic rights and
freedoms of every citizen, an increasingly growing percentage of Russians
(from 71 percent in February 1998, to 81 percent in April 2000) believe
that order is the "most important issue for the country at present," "even
if it is necessary to break some democratic principles and limit people's
personal freedoms to establish it." According to another opinion poll,
conducted by Monitoring.ru, 68 percent of Russians favor such a restrictive
institution as propiska
(versus 23 percent who say that it should be abolished) and believe that
citizens of the Russian Federation should have to register at their place
of residence via the propiska system.53
Wars of kompromat between TV channels controlled by rival oligarchs,
profiteering, 54 overcommercialization, de-intellectualization, and a
general degradation of liberal mass media in Russia, have led to
unsurprising consequences-the second-oldest profession has nearly lost its
function as a means of expressing independent public opinion and, in the
words of Oleg Poptsov, a veteran of the glasnost campaign and the
president of TV Tsentr (under jurisdiction of the Moscow city government),
"has now moved closer to the oldest [profession] than ever before."55 As a
result, although there is not much support for introducing any kind of
political censorship, over 60 percent of respondents (across all
categories) in a May 2001 opinion poll are prepared to approve some sort of
a preliminary checking or censorship of press reports and publications to
ensure "objectivity of information and a balanced evaluation of current
events." An even more significant majority of
Russians (three quarters of respondents, regardless of their age or
education levels) are in favor of censorship aimed at safeguarding public
morals.56
According to a poll conducted by the All-Russian Center for Public Opinion
Research in June 2001, about three quarters of Russians (72 percent),
including Alexander Solzhenitsyn, a symbol of resistance to the Communist
tyranny of the past, federal Minister of Justice Iurii Chaika, and many
other leading figures of Russian society and culture, openly and vigorously
support restoration of death penalty for certain
crimes, whereas only 19 percent want it abolished. Responding to the
demands of society, on 15 February 2002 the State Duma resolved 266-83 to
urge President Putin to reconsider the moratorium on the death penalty.
Another survey held by the same research center was dedicated to the 120th
anniversary of Iosif Stalin's birth and was even more indicative: 44
percent believe that the Stalin era brought good and bad in equal portions
to Russia; 19 percent think that there was more good than bad; and 3
percent more consider that era "absolutely good." This adds up to 66
percent.57
Iavlinskii is wrong, however, to emphasize the "soviet" when he warns of
the creation of a "Soviet version of community," for what was described
above as the current interpretation of civil society in Russia is closer in
its essence to a traditional Russian, rather than
the Soviet version of a community.
It is true that at the turn of the twenty-first century, Russia (in many
respects) lacks a developed civil society in its Western sense of the
phrase. The term itself for us in Russia has more theoretical than
practical meaning. A question that still needs to be answered by social
scientists, however, is whether the civil society concept is universal and
equally applicable to various countries and civilizations. As Harold J.
Berman has observed, contemporary legal systems are only surface
expressions of deeper, broader forces of cultural evolution: "Law cannot be
neatly classified in terms of social-economic forces. A legal system is
built up slowly over the centuries, and it is in many respects remarkably
impervious to social upheavals. This is as true of Soviet [now Russian]
law, which is built on the foundations of the Russian past, as it is of
American law, with its roots in English and Western European history."58
Naturally, that observation concerns the development of civil society (or
community) in Russia. It was already mentioned that civil society can
hardly be instituted by a discrete legal act. Luckily, Russia passed
through the ordeal of legislative euphoria and normative idealism during
the Gorbachev era.59 Overall, it has overcome the tendency to view the law
as a panacea for social problems, to make the law absolute without
recognizing the limits of any legal action. Legislation, as a rule,
reflects various prelegal norms and values (as well as prejudices) that are
accepted by large strata of a society at a given time. Laws can work
effectively when they embody sociocultural principles that are
accepted by the majority of the people. If a new "progressive" or
"reactionary" piece of legislation (usually in a form of a by-law or an
executive legal instrument) is shoved down throats of the majority of the
population, or if people do not accept or understand it, in
all likelihood it will become a dead letter. In the worst-case scenario,
the law will not just be ignored and trivialized by people, but will prove
detrimental to the lawmakers' goals.
The recent abolition of the Clemency Commission (for many years headed by
writer Anatolii Pristavkin) raised a new wave of criticism, especially in
Western press, of the Russian government's ability to strengthen civil
society in Russia.60 The Pristavkin commission had been portrayed
exclusively as "one of the few structures of a civil society," and as a
"humanizing tool" in Russia's "failing," "notoriously corrupt, inefficient,
and highly dependent" judicial and law enforcement system. Members of the
commission were praised as "liberal writers and scholars who worked day and
night, so as to save as many victims of faulty trials as possible."
Pristavkin himself modestly called his
commission "an island of mercy in a sea of cruelty."61
Although right to call the Clemency Commission a "structure of a civil
society" in Russia, these authors otherwise level criticism which does not
hold water. Back in 1992, the idea was to staff the commission with
seventeen representatives from Russia's liberal intelligentsia (writers,
specialists in Russian literature, former dissidents, a reformist
clergyman, and so on). As "holders" of some progressive humanitarian ideas,
they would have an enlightning effect on society and the state.
Unfortunately, the experiment failed, and not because of the state. Instead
of cooperating with the state and its structures, the commission infringed
on its prerogatives, and it was only a matter of time that such
infringement would backfire. The commission was formed as an advisory body
of the federal presidential administration and technically had no formal
power or authority. It could only recommend something to the president, and
while the president could follow its advice, he was not obliged to do so.
When agreeing-year after year-with all (or nearly all) of the Clemency
Commission's recommendations, Yeltsin set a precedent and made Pristavkin
and his comrades believe that they were above the state. The advisory
commission, however, could not and should not substitute court decisions or
the will of the executive, just as no other element of a civil society can
substitute for the state.
Sentiments aside, according to official data (compiled in the beginning of
2001 by the federal Ministry of Justice for the presidential
administration), the number of recommended pardons grew from 2,726 in 1992
(when the Clemency Commission was formed) to 4,988 in 1995, and 7,418 in
1999.62 In 2000 the Clemency Commission considered about 13,300 petitions
and recommended that the president pardon 12,834 petitioners (or more than
96 percent!) Like his predecessor, Putin approved all of the commission's
recommendations.63 Overall, Yeltsin pardoned more than fifty thousand
criminals, and Putin-about ten thousand (by March of 2001).64
What is much worse and troublesome, however, is not even the skyrocketing
numbers of the pardoned, but rather their composition. The percentage of
petty criminals pardoned in 2000 upon recommendations of the commission was
less than a quarter, whereas 76 percent of the pardoned had been sentenced
for murders (2,689), "assaults leading to a severe injury to the health of
a victim" (2,188), banditry (1,848), robbery (709), kidnapping (18), and
the like. One of the latest sets of seventeen draft "pardon decrees" sent
by the Pristavkin commission to Putin (with a recommendation to sign them)
included 2,565 names. 2,449 of them (95 percent) were criminals convicted
for "serious and very serious" (tiazhkie i osobo tiazhkie) crimes.65
Recidivists comprised about 60 percent of the list: 1,070 of them had been
convicted twice; 318-three times; 81-four times; and 37-five or more times.
Prison and penal colony administrations objected to the commission's
recommendations at least 308 times, but the criminals were pardoned anyway.66
The existence of this disturbing trend was confirmed by N. V. Eliseeva, a
Russian lawyer who independently analyzed material from the presidential
administration's Pardons Department. Eliseeva concluded that criminals who
had been convicted for "serious and very serious" crimes received a
disproportionately high percentage of pardons. In 1996-2000 they comprised
between 40 and 58.6 percent of those pardoned; of
the entire incarcerated population, meanwhile, only 23.4 to 23.9 percent
had been convicted for "serious and very serious" crimes-half the relative
size of their group's number of pardons.67
For comparison, although the legal institution of clemency is known in most
countries of the world, it is applied extremely rarely, in exceptional
cases or circumstances. There are about twenty-seven thousand names, for
example, on the comprehensive list of acts of clemency for U.S. federal
crimes-these acts of clemency might include a reprieve, remission of fine,
commutation, or pardon)-and this list comprises the 206 years from George
Washington to Bill Clinton (but it excludes the scandalous pardons Clinton
granted to 140 crooks and criminals on his last day in office).68 In the
last eight years only 0.3 percent of convicted criminals have been pardoned
in the U.S. (on the federal level). In 2001, President George W. Bush
received almost nine hundred requests, but did not grant clemency to
anybody. In Germany, 111 people were pardoned in 1994-99. Nobody has been
pardoned in Japan in the last thirty years. The president of France
receives 25,000-35,000 pardon petitions a year, but grants no more than
1.5-2 percent of them.69
VI.
Although virtually all participants in the Civic Forum's July 2001 press
conference spoke about the need for "constructive cooperation" between the
institutions of civil society and the state, full-fledged cooperation
between them is still in the realm of wishful thinking. If
distrust was indeed a "pervasive legacy of communist rule," as Richard Rose
claims, it is even more so in post-Communist, "democratic" Russia.70 And it
is not the peculiarities of the Russian statist, conservative, and
traditionalist understanding of civil society that poses
the main problem to the development of civil society, but rather the
current condition of Russian society itself.
Vladimir Putin inherited a crushed, looted, and humiliated country
struggling to survive the "liquidation regime" of the "reformers." In just
ten years the country has lost about 44 percent of its GDP. Russia's
population has been shrinking by up to half a percent a year, and its
increase in mortality rates (60 percent since 1990) has been "unprecedented
in any country during peacetime since the Middle Ages."71 After ten years
of anti-human "reforms" Russia ranks 134th among all states in terms of
male life expectancy, and 100th in terms of female life expectancy (by
1997, the death rate among Russian males had equaled that of war-ravaged
Liberia). Men in "democratic" Russia have a
smaller chance of surviving to age 60 than under the tsar a century ago.
The country has more homeless children today (between one and two million)
than after the Bolshevik Revolution or World War II.
An unprecedented social catastrophe in Russia, which the UN Development
Program calls "a human crisis of monumental proportions" and which has been
largely ignored by the Western community, makes any discussion of "civil
society" in Russia today even more artificial and irrelevant than ten years
ago.72 The concept of civil society implies a (relatively) high level of
well-being. Destitute people are unable to form a civil society. At the
turn of the twenty-first century, the Russian nation must first concentrate
on stopping the depopulation and degradation of Russia and on overcoming
the disastrous consequences of Yeltsin's regime, rather than on involving
the country in another round
of radical economic "reforms" and futile social engineering. Otherwise,
there will be no Russia or Russian society, whether civil or uncivil.
Notes
1 Polit.ru, 28 June and 12 July 2001.
2 Interfax, 4 September 2001 (quoting Evgeni Vodopyanov, the vice president
of the Union of Charitable Organizations of Russia); Izvestiia, 21 November
2001.
3 See "Good Works," The Economist (24 March 2001): 61-62. For further
research in the Russian nongovernmental
sector see a number of useful websites: www.ngo.ru (Catalog of Social
Resources on Internet); www.trainet.org
(Virtual Resource Center for NGOs); www.hrights.ru (Human Rights
Institute); www.hro.org (Human Rights Online);
infohome.dcn-asu.ru and infohome.alt.ru (InfoHouse-Altai); www.cip.nsk.su
(Inter-Regional Public Foundation,
Siberian Civic Initiatives Support Center); and www.hartia.ru (Information
and Discussion Portal for Civil Society in Russia).
4 The report was later published as Alexander Domrin, "Issues and Options
in the Soviet Transition to the Rule of
Law," in Coexistence. A Review of East-West and Development Issues, no. 30
(Dordrecht, 1993).
5 This observation applies not only to Russia and other former Soviet
republics. In some other areas of the world the
use of the "civil society" formula often lacks any legal meaning and serves
as an element of a pseudo-legal justification
for purely political goals; for example, ethnic Albanian terrorists and
separatists in Macedonia demand recognition of
the Albanian language as the second official language of the republic,
their pretext being the need to "secure the
adequate development of a civil society" and to "secure the full
integration of all citizens of Macedonia into the civil
society" (Vecer, 12 July 2001, quoted in Ulrich Buechsenschuetz,
"Macedonia: Speaking a Different Language," RFE/RL Newsline [26 July 2001]).
6 "Plan zakonodatel'nykh rabot po tematike 'Grazhdanskoe obshchestvo'" and
"Rekomendatsii parlamentskikh
slushanii 'Rossiiskii federalizm i problemy razvitiia grazhdanskogo
obshchestva'" are available in the Parliamentary
Library under RF/PM2-3/sl/95-84, and RF/PM2-3/sl/99-552, respectively.
7 Aleksander Smolar, "Civil Society After Communism: From Opposition to
Atomization," Journal of Democracy 7
(January 1996): 24. Compare to the following observations: "With all the
fuss and noise not a single new idea has
come out of Eastern Europe in 1989" (French historian Francois Furet); and
"a peculiar characteristic of this revolution,
namely its total lack of ideas that are either innovative or oriented
towards the future" (Jurgen Habermas), both
quoted in Mary H. Kaldor, "The Ideas of 1989: The Origins of the Concept of
Global Civil Society," Transnational Law and Contemporary Problems 9 (Fall
1999): 475.
8 Smolar, "Civil Society after Communism," 24.
9 It was already 1993 when Peter Stavrakis, at that time associate director
of the Kennan Institute, concluded that
"Bolshevist monetarism adapted quite comfortably to the historical terrain
of Soviet experience, as the Gaidar team
exhibited the same ideological fervor that had motivated its Leninist
precursors." See his State Building in Post-
Soviet Russia: The Chicago Boys and the Decline of Administrative Capacity
(Washington, 1993), 56. The term
"Bolshevist monetarism" was later transformed into a similarly appropriate
version-"market Bolshevism." See, for
instance, Peter Reddaway and Dmitri Glinski, Tragedy of Russia's Reforms:
Market Bolshevism against Democracy
(Washington, 2001). See also K Rossii edinoi, sil'noi, demokraticheskoi,
protsvetaiushchei: Politicheskaia programma Grazhdanskogo soiuza (Moscow,
1992).
10 See, for instance, Smolar, "Civil Society after Communism," 24.
11 Bronislaw Geremek, "Problems of Postcommunism: Civil Society Then and
Now," Journal of Democracy 3
(April 1992): 12; Larry Diamond, "Rethinking Civil Society: Toward
Democratic Consolidation," ibid. 5 (July 1994): 5.
12 Decree No. 354, 13 April 1992, "On the Secretary of State of the Russian
Federation"; Decree No. 673, of 6 July
1995, "On Drafting the Concept of Legal Reform in the Russian Federation";
Decree No. 424, 27 March 1996, "On
Certain Measures Aimed at Strengthening State Support to Science and
Institutions of Higher Education in the Russian
Federation"; Decree No. 440, 1 April 1996, "On the Concept of the
Transition of the Russian Federation to
Sustainable Development"; Decree No. 803, 3 June 1996, "On Basic Provisions
of Regional Policy in the Russian
Federation"; Decree No. 864, 13 June 1996, "On Certain Measures of State
Support to the Human Rights Movement
in the Russian Federation"; Decree No. 909, 15 June 1996, "On Approval of
the Concept of State National Policy of
the Russian Federation"; Decree No. 1300, 17 December 1997, "On Approval of
the National Security Concept of the
Russian Federation"; Decree No. 1370, 15 October 1999, "On Approval of
Basic Provisions of State Policy in the
Sphere of Development of Local Self-Government in the Russian Federation";
and Decree No. 24, 10 January 2000, "On the National Security Concept of
the Russian Federation."
13 No. 360-rp, 14 July 1992, "On Ensuring the Activities of the Research
Center of Private Law"; and No. 589-rp, 18 December 1996, "On Support to
'People's House' Public Institutions."
14 Resolution of the RSFSR Supreme Soviet No. 1801-1, 24 October 1991, "On
the Concept of the RF Judicial
System"; and resolutions of the State Duma No. 450-1 GD, 13 January 1995,
"On a Tentative Program of Legislation-
Making" [of the State Duma in 1995]; and No. 359-II GD, 17 May 1996, "On
Holding Elections of the RF President in Constitutionally Defined Terms."
15 Respectively, No. 7-P, 30 April 1997; No. 14-P, 22 November 2000, and
No. KG-A40/2488-01, 22 May 2001.
16 The federal programs were adopted, respectively, at a session of the
federal government on 6 August 1993 (a
month and a half before Yeltsin's coup d'etat in Russia), by federal
government Resolution No. 1005, 12 October 1995, and by federal government
Resolution No. 955, 14 December 2000.
17 No. 939, 19 September 1995; No. 327, 23 March 1996; and No. 547, 1 May
1996.
18 See also V. N. Yuzhakov, ed., Stanovlenie institutov grazhdanskogo
obshchestva (Materials from the interregional
scientific and practical conference "Formation of Civil Society
Institutions in Saratov Oblast [1989-1999]," 20-21 January 2000) (Saratov,
2000).
19 See, for instance, Resolution No. 392, 4 May 1999, "On the Concept of a
Moscow Program of Social Development,"
and Resolution No. 87-PP, 23 January 2001, "On the Complex Program of
Development and Support of Small Business in Moscow in 2001-2003."
20 See, for instance, decision of the head of administration of Astrakhan
Oblast, No. 598-r, 31 May 2001, "On the
Organization of a Scientific-Practical Conference 'A Civil Society for the
Children of Russia.'" For more on the 1999
address of the president of Bashkortostan see A. Makhmutov, "Sem'
kluchevikh problem Poslaniia-99 Prezidenta
Respubliki Bashkortostan Gosudarstvennomu Sobraniiu," Ekonomika i
upravlenie, 1999, no. 3:3-7.
21 L. F. Apt et al, comps., Slovar'-spravochnik po rossiiskomu
zakonodatel'stvu: Terminy, poniatiia, opredeleniia (Moscow, 1998).
22 See, for instance, B. N. Topornin, et al., eds., Konstitutsiia
Rossiiskoi Federatsii: Kommentarii (Moscow, 1994); and V. A. Chetvernin,
ed., Konstitutsiia Rossiiskoi Federatsii. Problemnyi
kommentarii (Moscow, 1997).
23 The term and its definitions are absent in such sources as
Merriam-Webster's Dictionary of Law (1996), Ballentine's
Law Dictionary, with Pronunciations (1969), Mellinkoff's Dictionary of
American Legal Usage (1992), or in Brian
A. Garner's A Dictionary of Modern Legal Usage (1995). Burton's Legal
Thesaurus (1998) contains twenty-seven
associated concepts of "civil," but there is no "civil society" among them.
A fundamental reference edition, Words and
Phrases: Permanent Edition, 1658 to Date (1964-2001), consists of more than
one hundred volumes and includes
"all judicial constructions and definitions of words and phrases by the
state and federal courts from the earliest times,
alphabetically arranged and indexed," except "civil society." Black's Law
Dictionary (1999) is presumably the only
known American law dictionary which contains a legal description of "civil
society," but that does not help either
because that source defines the term as "the political body of a state or
nation; the body politic" (p. 1396), which basically incorporates the whole
spectrum of sociopolitical relations in the country.
24 In Geremek's words, "We don"t need to define [civil society]. We see and
feel it" (quoted in Flora Lewis, "Civil
Society: Its Limits and Needs," International Herald Tribune [30 September
1989]). According to V. M. Lebedev,
"specialists in political science refuse to draw a clear-cut distinction
between [civil society and law-governed state];
they consider it a difficult task. As a lawyer, I find it an irrelevant
task as well." See his "O systeme grazhdanskogo
obshchestva Rossii," in Grazhdanskoe obschestvo i regional'noe razvitie,
(materials from a conference on Civil
Society and Regional Development, 22 April 1994), ed. E. I. Cherniak
(Tomsk, 1994), 16. Václav Klaus, former
prime minister of the Czech Republic, also confesses that he finds the term
civil society "superfluous," a "hollow
phrase," and claims that he does "not think that a civil society is
different from a democratic society." See "Civil
Society After Communism: Rival Visions. Václav Havel and Václav Klaus, with
Commentary by Petr Pithart," Journal of Democracy 7 (January 1996): 18.
25 M. Steven Fish, "Rethinking Civil Society: Russia's Fourth Transition,"
Journal of Democracy 5 (July 1994):
41; Alexander Lukin, "Forcing the Pace of Democratization," ibid. 10 (April
1999): 39
(emphasis added in both quotes).
26 M. M. Rozental, ed., Filosofskii slovar', 3d ed. (Moscow, 1975), 93; S.
S. Alekseev, Sotsial'naia tsennosti prava
v sovetskom obshchestve (Moscow, 1971), 193; A. A. Mishin, Tsentral'nie
organy vlasti burzhuaznykh gosudarstv
(Moscow, 1972), 10; V. N. Danilenko, Deklaratsiia prav i real'nost': K
200-letiiu Deklaratsii prav cheloveka i grazhdanina (Moscow, 1989), 55.
27 See, for instance, A. S. Avtonomov, "Pravovoe oformlenie grazhdanskogo
obshchestva v Rossii," Predstavitel'naia
vlast': Monitoring, analiz, informatsiia, 1995, no. 1:73-88; E. Iu.
Dogadailo, "Grazhdanskoe obshchestvo i
gosudarstvennaia vlast'," ibid., 1996, no. 2:48-56; V. V. Lapaeva,
"Obshchestvennoe mnenie kak institut grazhdanskogo
obshchestva," Advokat, 1997, no. 3:69-81; idem, "Obshchestvennoe mnenie i
zakonodatel'stvo," Sotsiologicheskie
issledovaniia, 1997, no. 9:16-27; and Iu. Nisnevich, "Problemy
vzaimodeistviia obshchestva i vlasti v Rossii," Informatsionnie resursy
Rossii, 1997, no. 4:6-10.
28 Larry Diamond, "Civil Society and Democratic Development: Why the Public
Matters," in Democratization:
Does the Public Matter? (Papers from the 1996 Distinguished International
Lecture Series), ed. Cheri Long and
Douglas Midgett, Issue Editors (Iowa City, 1999), 6 (emphasis added); Adam
B. Seligman quoted in Susan Shell,
"Conceptions of Civil Society. Review of The Idea of Civil Society, by Adam
B. Seligman and of Civil Society and
Political Theory, by Jean L. Cohen and Andrew Arato," Journal of Democracy
5 (July 1994): 124 (emphasis added).
According to Diamond's more detailed definition, civil society is the
"realm of autonomous, voluntary associations
that pursue limited ends in the public sphere, self-generating, (largely)
self-supporting, autonomous from the state, and
bound by a legal order or [a] set of shared rules" ("Rethinking Civil
Society: Toward Democratic Consolidation," 5).
29 See, for instance, Grigorii N. Manov, "Vstuplenie," in Grazhdanskoe
obshchestvo i pravovoe gosudarstvo:
Predposylki formirovaniia, ed. G. N. Manov (Moscow, 1991), 5-6; Pravovoe
gosudarstvo v Rossii: Zamysel i
realnost' (K desiatiletiiu perestroiki). Kruglyi stol iuristov, 19.04.1995
(Moscow, 1995), 16.
30 Oleg Rumiantsev, Osnovy konstitutsionnogo stroia Rossii (Poniatie,
soderzhanie, voprosy stanovleniia) (Moscow,
1994), 76 (emphasis added). See also idem, "Stanovlenie grazhdanskogo
obshchestva v Vostochnoi Evrope," in Sovremennyi sotsializm i problemy
perestroiki (Moscow, 1989), 6-31.
31 See, for instance, Z. M. Chernilovskii, "Grazhdanskoe obshchestvo: Opyt
issledovaniia," Gosudarstvo i pravo,
1992, no. 6:142-51; and O. V. Martyshin, "Neskol'ko tezisov o perspektivakh
grazhdanskogo obshchestva v Rossii," ibid., 1996, no. 5:3-13.
32 Fish, "Rethinking Civil Society: Russia's Fourth Transition," 34.
33 Robert Sharlet, "Citizen and State under Gorbachev and Yeltsin," in
Developments in Russian and Post-Soviet
Politics, ed. Steven White et al (Durham, NC, 1994), 128. Robert V. Daniels
concluded, alarmingly, that Yeltsin
"demonstrates how attempts to copy the American system are likely to end up
in dictatorship, as they have so often in
Latin America" ("Yeltsin's No Jefferson. More Like Pinochet," New York
Times, 2 October 1993).
34 Richard Rose, "Rethinking Civil Society: Postcommunism and the Problem
of Trust," Journal of Democracy 5 (July 1994): 19.
35 A slightly smaller percentage of supporters of Unity-41 percent-explain
their choice by the "state-oriented" policy of the party.
36 Otnoshenie naseleniia k federal'nym zakonam i organam gosudarstvennoi
vlasti (Moscow, 2000), 11. The analytical report was prepared for the
Russian Government and is on file with the author.
37 "Anatomiia russkoi dushi: Desiatiletie otechestvennykh reform v
rasshifrovke sotsiologov," Izvestiia, 16 April
2002. Another opinion poll had similar results. 35 percent of respondents
named "the revival of Russia as a mighty
global power" as the main unifying and mobilizing idea in Russia, compared
to 13 percent who named communism
and socialism; 7 percent who named capitalism; 6 percent-democracy; 5
percent-Russia's "uniqueness as a nation";
and 3 percent-religion (Nikolai Popov, "Kakaia vera nas spaset," Novoe
vremia, 14 October 2001).
38 "Civil Society After Communism: Rival Visions," 18.
39 B. G. Mogilnitskii, "Grazhdanskoe obshchestvo i istoricheskoe soznanie,"
in Grazhdanskoe obshchestvo i regional'noe razvitie, ed. E. I. Cherniak
(Tomsk, 1994), 6.
40 In Kartashkin's words, "many human rights activists, particularly in the
capital, unfortunately continue their
destructive struggle-they have not forgotten their dissident past, although
the situation has totally changed" (Interfax, 22 June 2001).
41 For many years, in Igrunov's words, the confrontational attitude was the
most essential and characteristic element
of certain NGOs, but now it is outdated. Confrontation leads to the
marginalization of members of such groups and of
the groups themselves, and eventually marginalizes the ideas which are
exploited by such people and organizations (Polit.ru, 11 July 2001).
42 See Alexander Verkhovsky, "Operation Civic Forum," RFE/RL (Un)Civil
Societies 30 (1 August 2001).
43 See, for example, Diamond, "Civil Society and Democratic Development:
Why the Public Matters," 7.
44 As of 1 September 2001, state property in Russia includes 9,855
federally owned state unitary enterprises, 34,868
institutions, and 4,308 share packages. The share packages differ in size.
In 84 joint-stock companies the Russian
Federation owns 100 percent of the authorized capital, in 605-more than 50
percent, and in 1,719-less than 25 percent ("Na prodazhu," Argumenty i
fakty, 26 September 2001).
45 Polit.ru, 21 April 2000.
46 Grigorii Iavlinskii, "Liberalizm dlia vsekh," Obshchaia gazeta, 28 June
2001; Dmitrii Furman, "Kogda vozmozhen liberalizm dlia vsekh," ibid., 13
July 2001.
47 Interfax, 2 July 2001.
48 The report, Young People in Changing Societies, is available at
www.unicef-icdc.org/presscentre/presskit/monee7/ youth.
49 Rose, "Rethinking Civil Society," 25-26. Russia is not unique in this
respect. Rose finds a "similar level of
distrust" in the Czech Republic, Slovakia, Hungary, and Poland (p. 25). A
new study also finds that the "distribution
of attitudes toward democracy within the Russian population is not so very
different from many other countries in
transition" (Timothy J. Colton and Michael McFaul, Are Russians
Undemocratic? (Washington, 2001), 21). Overall,
the results of Colton and McFaul's study corroborate the conclusions of a
group of Iowa scholars made several
years ago (based on 600 completed interviews in 1990, 1,400 in 1991, 1,300
in 1992, and 1,750 in 1995) that
Russian legal values are close or similar to those in other former Soviet
republics or in the United States: "The Russian
mass public is not ... hostile to the rule of law. ... We discover more
support for legal procedure [in Russia] than might
have been expected. ... On the whole Russians show greater support for
legality than do Lithuanians. ... We find
American and Russian publics to have a very similar proportion of those
willing to jettison suspects' rights in the name
of fighting crime" (William M. Reisinger, Arthur H. Miller, and Vicki L.
Hesli, "Russians and the Legal System: Mass
Views and Behaviour in the 1990s," Journal of Communist Studies and
Transition Politics 13 [September 1997]:
24, 25, 45). See also William M. Reisinger, Arthur H. Miller, and Vicki L.
Hesli, "Political Values in Russia, Ukraine
and Lithuania: Sources and Implications for Democracy," British Journal of
Political Science 24 (1994): 183-223;
Arthur H. Miller, Vicki L. Hesli, and William M. Reisinger, "Comparing
Citizen and Elite Belief Systems in Post-
Soviet Russia and Ukraine," Public Opinion Quarterly 59 (Spring 1995):
1-40; and William M. Reisinger, "Legal
Orientations and the Rule of Law in Post-Soviet Russia," in Constitutional
Dialogues in Comparative Perspective, ed. Sally J. Kenney et al. (New York,
1999), 172-92.
50 See Nikolai Popov, "Fantazii na temu demokratii," Novoe vremia, no. 34
(2001).
51 Interfax, 19 April 2000.
52 The report was titled, "Attitudes of the Population toward Federal Laws
and Agencies of State Authority." A later
opinion poll by the All-Russia Center for Public Opinion Studies in
mid-January 2001 indicated similar results, showing
that 75 percent of Russians believe that, in historical terms, the Yeltsin
era did Russia more bad than good (with 15 percent who do not think so).
See Strana.ru, 1 February 2001.
53 The All-Russia Center for Public Opinion Studies conducted its poll on
14-17 April 2000, in 150 polling locations
in 83 areas of 33 regions of the country (Polit.ru, 21 April 2000;
Interfax, 12 July 2001).
54 A recent survey of four hundred journalists across Russia, conducted by
the Institute of Sociology of the Russian
Academy of Sciences, found that 30 percent of them had inserted hidden
advertising into stories "regularly" or "occasionally."
Overall, 67 percent of journalists had done it "more than once."
"Journalists ... themselves have destroyed
their image as defenders of liberties," admits the political editor of the
St. Petersburg-based daily Nevskoe vremia
(quoted in Galina Stolyarova, "Poll Highlights Media's Weakness," St.
Petersburg Times, 28 August 2001).
55 See Oleg Poptsov's interview in Aleksandr Gubanov, "Televidenie-eto
mekhanizm upravleniia stranoi: Mekhanizm upravleniia stranoi nuzhdaetsia v
remonte," Obshchaia gazeta, 26 July 2001.
56 Iurii Levada, "Sotsvopros," Novaia gazeta, 30 July 2001.
57Interfax, 28 June 2001; Trud, 6 January 2000.
58 Harold J. Berman, Justice in the USSR: An Interpretation of Soviet Law,
2d ed. (Cambridge, MA, 1963), 5; idem, Justice in Russia: An Interpretation
of Soviet Law (Cambridge, MA, 1950), 3.
59 Legislative euphoria had some positive effects at the early stage of
legal reforms in the USSR. For example, from
June 1987 to just the autumn of 1988, approximately 1,200 federal and 7,500
republican decrees that hindered the
Soviet transition to the rule of law were repealed. In the same period,
more than 33,000 federal and 80,000 republican
ministerial and departmental rules and regulations concerning economic and
social relations in the country were abolished.
60 In legal terms, clemency (pomilovanie) (exercised by the president
according to Article 89 of the Russian Federation
Constitution) should not be confused with amnesty (amnistiia), which is a
prerogative of the State Duma (Art.
103). For details see I. L. Marogulova, Amnistiia i pomilovanie v
rossiiskom zakonodatel'stve (Moscow, 1998). The
whole controversy caused by the reorganization of the Clemency Commission
is a good illustration of how the concept
of civil society is being misunderstood and misused, not only by the
Russian federal government (which is natural) but
also by another Russian elite-the liberal intelligentsia-as well as by
Western experts and the Western mass media,
who "have always seen Russian politics through the eyes of the radical
Moscow intellectuals" (Jerry F. Hough, Evelyn
Davidheiser, and Susan G. Lehmann, The 1996 Russian Presidential Election
[Washington, 1996], 14). See also
Gennadii Ponomarev, "Pomilovanie ne dolzhno nosit' massovogo kharaktera,"
Obshchaia gazeta, 28 March 2002.
61 See, for instance, Kathy Lally, "Pardons Turn Rare in Putin's Russia,"
Baltimore Sun, 14 June 2001; Masha
Lipman, "How Putin Pardons," Washington Post, 17 July 2001; and Sophie
Lambroschini, "Russia: Pardon System Plays Mercy Role Amid A Cruel
Society," RFE/RL, 23 February 2001.
62 Sergei Pykhtin, "Privatizatory miloserdiia?" Rossiiskaia Federatsiia
segodnia, no. 18 (2001): 8. Commentary
to the Russian Constitution (prepared five years ago by the Center for
Constitutional Studies of the Moscow Public
Science Foundation, with the participation of a justice of the federal
Constitutional Court [Gadis Gadzhiev] and a
group of distinguished foreign scholars [Peter Solomon, Stephen Holmes,
Andras Saio, Michel Lesage, and so on]),
gives more specifically a number of commutations of death penalty on the
recommendation of the Pristavkin commission
in 1992-94. In 1992 the commission considered 56 death penalties and
recommended that the president commute
55 of them. Two years later the commission considered 137 death penalties
and recommended 124 commutations.
(Konstitutsiia Rossiiskoi Federatsii: Problemnyi kommentarii [Moscow,
1997], 141). As we see, the numbers
of commutations correlate with the commission's recommendations about
pardons in general.
63 Every Tuesday (the only day when the Clemency Commission held it
meetings), members of the seventeenmember
commission considered between 200 and 700 cases. The journal of the Russian
Federal Assembly calculated
that members of the Pristavkin commission spent between 17.5 seconds and 2
minutes to consider each case (Sergei Pykhtin, "Privatizatory miloserdiia?"
8).
64 N. Demidenko, "Konstitutsionno-pravovoe regulirovanie voprosov
pomilovaniia v Rossiiskoi Federatsii," Pravo i zhizn', no. 38 (2001): 191.
65 The categorization of crimes in the Russian Criminal Code is more
complex than the felony-misdemeanor division
in the United States. The four categories of crimes and their maximum
punishments are: minor crime (up to 2
years in prison); moderately serious crime (up to 5 years in prison);
serious crime (up to 10 years in prison); very
serious crime (over 10 years in prison, life imprisonment, or death,
although the death penalty has not been carried out since Russia was
admitted to the Council of Europe in February 1996).
66 The Russian press has written about defense attorneys who proudly
advertise their service, saying that they have
access to the Clemency Commission, but that the "fee for that service is
high" (dorogo stoit). Reportedly, $5,000 was
the going rate for commutation of a one-year prison sentence. See Marina
Gridneva, "$5000 za kazhdyi god svobody:
Pochemu prezident perestal proshchat' ubiits i banditov," Moskovskii
komsomolets, 26 December 2001.
67 N. V. Eliseeva and A. S. Mikhlin, Pomilovanie v Rossiiskoi Federatsii
(Moscow, 2001), 50.
See also A. S. Mikhlin, V. I. Seliverstov, and L. V. Iakovleva,
"Pomilovanie v Rossii," Zakon, 2002, no. 3:137.
68 Ronald Reagan, for instance, pardoned 406 people in 8 years. 70 people
were pardoned, only one commutation
granted, and 1,554 executive clemency applications denied from 1989 through
1993. See the remarkable studies of
clemency in the United States by P. S. Ruckman, Jr., "Executive Clemency in
the United States: Origins, Development,
and Analysis (1900-1993)," Presidential Studies Quarterly 27 (Spring 1997);
and "Keys to Clemency Reform:
Knowledge, Transparency," Jurist (7 March 2001), both available at
jurist.law.pitt.edu/pardonop5.htm. A complete
list of executive clemency applications from 1953 through 1999 is available
at www.rvc.cc.il.us/faclink/pruckman/pardoncharts/jopdata.htm
69 To our knowledge, the memo of the federal Ministry of Justice which led
to the reorganization of the Pristavkin
commission was never published in its entirety in the open press. However,
it was quoted several times in the Russian
mass media. See, for instance, Marina Gridneva, "Nasil'nik mil ne budet,"
Moskovskii komsomolets, 9 July 2001;
and L. Kazik, "Miluiut tut vsiakikh," Kommersant - Vlast', no. 28 (2001):
23-25. It is amazing that criticism of
Putin's decision to improve the effectiveness of the Clemency Commission's
work comes mainly from the United
States, a country that has the largest prison population in the world
(approximately 2 million in 2001-more than
twice the size of Russia's), executes somebody every five days on average,
and, according to numerous reports of
Amnesty International and other human rights organizations, continues "to
violate international standards by using the
death penalty against the mentally impaired, individuals who were under 18
at the time of the crime, and defendants
who received inadequate legal representation." Between 1977 and 1999 state
authorities in the United States commuted
only forty death sentences on "humanitarian grounds." See U.S.A: Killing
Without Mercy: Clemency Procedures
in Texas (Amnesty International, 1 June 1999), available at
www.web.amnesty.org/ai.nsf/index/AMR510851999.
70 Rose, "Rethinking Civil Society," 18. According to a recent poll
conducted by ROMIR-Gallup International,
45.3 percent of Russians do not trust their government, compared to 45.1
percent who do (Interfax, 30 August 2001).
71 The conclusion belongs to Murray Feshbach, a former branch chief at the
U.S. Bureau of the Census and research
professor at Georgetown University, and now a Senior Scholar at the Wilson
Center (Washington Post, 12 July 1995).
72 UNDP Press Release, "Men Hardest Hit by Hurried Transition to Free
Markets in Ex-Soviet Countries," in Transition
1999: Human Development Report for Central and Eastern Europe and the CIS,
available at www.undp.org/rbec/pubs/hdr99/pr.htm
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