How Do We Tell a Legal Modernization from a Complaint?

authorities have repeatedly tried to reform, but from which it was never able to escape completely.

2.5 How Do We Tell a Legal Modernization from a Complaint?

The reason for filing a complaint is a particular problem situation, an imperfection in social reality. Compilation of the text of the complaint is accompanied by the selection of certain critical arguments by a particular complainant. Luc Boltanski and Laurent Thévenot offer a universal methodological instrument for the analysis of critical argumentation. Both Soviet and contemporary complaints allow for free narration of the problem.

No code or set of rules of complaint drafting has been established. An author compiles and argues her complaint on the basis of her own comprehension of what is important and what is unimportant. How the authors of complaints learn which arguments carry more weight with the authorities—this is one of the central questions in the conception of critical capacity.

On the most general level, complainants are guided by common sense.

Here certain explanations are needed. Common sense in Soviet society was

a phenomenon repeatedly questioned by Western scholars. According to Frank Ellis, common sense, as well as reason and decency, “are assaulted often enough…. The barrier between truth and lies is effectively destroyed”

(Ellis 1998). It is most likely that there was no universal common sense that would be meaningful in all fields and dimensions of Soviet society. However, the late Soviet complaint produced a fairly reliable system of commonly known codes, understood both by addressees and complainants, which facilitated communication and enabled mutual understanding. It is obvious that justifications and arguments formed a quite sustainable system guiding the communication between citizens and public officials in cases of injustice.

This system had its own axioms, rules, and taboos.

Complaining to particular authorities is a specific situation that requires specific justifications. The concept of a situated sense of justice, developed by Boltanski and Thévenot in later works on the analysis of everyday disputes (Boltanski and Thévenot 2000; Boltanski 2011), seems largely appropriate for analyses of complaints addressed to the authorities. According to this conception, the range of relevant justifications is restricted by the situation in which persons are placed (Boltanski and Thévenot 2000:211). Argumentation that is valid in one situation may be not valid in another. Yet Boltanski and Thévenot relate the situated sense of justice to general moral values existing in a particular society.

The situational sense of justice allows us to assume that sets of norms, rules, and generalizations which are used in argumentation—and which we perceive as common sense—are also multiple. Investigating the argumentation of complaints addressed to the authorities, we will not be able to reveal a general common sense prevailing in whole the society. We may find out, however, which norms, rules, and generalizations the author found appropriate to use in a situation of complaint in a particular socio-political context.

In his recent work On Critique: A Sociology of Emancipation, Boltanski links critique firmly to institutions, by which he means those elements that define or construct social reality. These are always necessary to deal with

“uncertainty, which is at the heart of social life” (Boltanski 2011:70). The semantic function of an institution (Boltanski 2011:75) helps one to navigate a situation of uncertainty. The task of articulating and confirming what

matters falls to institutions. This operation assumes the establishment of types, which must be fixed and memorized in one way or another (in the memories of elders, written legal codes, narratives, tales, examples, images, rituals, etc.), and often stored in definitions, so as to be available when the need arises, to qualify, in a situation of uncertainty, states of affairs that are the object of ambiguous or contradictory usage and interpretations.

In particular, institutions must sort out what is to be respected from what cannot be (ibid.). For the complainant, this requires the skill of knowing exactly which institutions would consider their appeal. An appropriate setting of the vocabulary shows which institutions are granted the highest hope and trust. The presence and absence of a direct continuity between the declared problem and the responsibility of the institution is also informative.

As elsewhere, there is no formalized vocabulary and argumentation assigned to a specific institution. Everything that occurs in “institutions”

constructed in the sense, is therefore far from being of a special institutional order, with a number of situations even unfolding in the register that we might characterize as “practical” (Boltanski 2011:80). To a greater or lesser extent, any complainant can possess so-called institutional competence. In the understanding of Boltanski and Thévenot, this competence is not only cognitive, but is above all a moral and practical quality. This is the ability to express universal value judgments and to coordinate actions and interactions on the basis of generally accepted higher principles, appropriate to specific situations (Koveneva 2007:61–62) and oriented towards a particular institution.

The relationships between institutions and criticism are mutually directed.

On the one hand, institutions determine the semantics and argumentation of an application. On the other hand, institutions are formed under the influence of constant criticism from outside. Criticism is what ritualizes an institution, and what questions its expediency, provoking changes. The more opportunities for criticism an institution allows, the more easily it is able to transform, and vice versa. The more closed and regulated the institution, the less space for criticism it leaves. The rules established by the institution are primary, and criticism is derivative.

As indicated by the example of “wooden language” (Vail and Genis 1996; Kotkin 1995) be it of a state, a party, a church, this use of language is

founded on a catalogue of prescriptions and prohibitions—that is, on the basis of semantic violence. Semantics, which is the domain par excellence of institutions, would then completely prevail over the pragmatics of influence on the institute (Boltanski 2011:92). “Wooden language” has a very weak ability to provoke changes in an institution. In the case of Soviet and post-Soviet complaints addressed to the authorities, we can only talk about how the authors of complaints find, through a specific institutional vocabulary, a capable person who has sufficient power to help them.

Thus, in studying the text of complaints, I try to find sustainable generalizations that are clichéd. I draw attention to the arguments and justifications used by complainants. Remembering the limits of outcomes, which we may extract from the study of the complaints, I expect that the situational sense of justice is determined in many respects by contemporary ideas about political legitimacy, the operation of bureaucracy, and the general model of state-society interactions. Transformation of the language of complaint informs us first about transformations to the institutions of power. Examining the vocabulary of complaints, I do not expect to see the transformation of the legal consciousness of the people. The language of complaints was, and remains, too dependent on external discourses. What may be reliably suggested is how far the addressees will allow discussion in terms of law or, in other words, recognize the law as a norm of justice. It also reflects the search of complainants for the most influential and powerful force capable of protecting justice outside of the judiciary. Finally, institutional markers of language show the separation of the complaint mechanism from the judiciary.

3 Development of the Soviet Mechanism of