Expanding the Concept
How to talk about legal modernization in Russia? Examining processes occurring with law in Russia through the prism of theories of legal modernization leaves no chance for in-depth and meaningful analysis. The reason is simple: theories of legal modernization are ultimately focused on disseminating Western liberal legalism. According to the theories of legal modernization, the state exercises its control over the individual through law, the law defines and determines behavior of people, the courts have the principal responsibility for defining the effects of legal rules, and the behavior of social actors tends to conform to the legal rules (Burg 1977). David Trubek and Marc Galanter, who were probably the foremost scholars in the field of legal modernization theory, believed that liberal legalism is an instrument of modernization and the measure of the legal modernization is equivalent to its exportation (Trubek and Galanter 1994). From this point of view, the case of Russia is of little interest. The maxims of legal modernization, mentioned above, can hardly be found in their pure form in Russia today, or ever in the past. Most attempts to evaluate the transformation of Russian society from this point of view inevitably come to the conclusion that Soviet and post-Soviet modernization has been a series of fiascos. Historian Richard Pipes (1977) cast the entirety of Russian history as a tradition of “anti-modernism.”
Researchers usually identify two main obstacles that distinguish Russia from successfully modernized countries. These are intermittent development path, which always leads away from a consistent trajectory, and importance of informal relationships and informality in all areas of society (Rose 1998:2–
3; Rose 2001). Meanwhile, exclusion of Russia from the debate on legal modernization is a mistake. Since at least the second half of the eighteenth
century, Russia’s development has been oscillating between attempts to modernize the legal system and backsliding to the old ways. With all the instability of development, and perpetual need to catch up, the attempts of legal modernization in Russia have always been oriented towards the Western model of law. The Western legal system has always been viewed as an ideal model or a desired goal of the Russian legal modernization.
A broader sociologized, critical view of the development of law, legal relations, and legal culture is needed for the case of Russia and other societies that do not fit the Western legal model in their basic characteristics. The sociological ideas about modernization are usually derived from Max Weber’s and Talcott Parsons’s theories (Wagner 2008). Similarly to proponents of legal modernization theories, Parsons argues that modern society came to its full fruition only in the USA after the Second World War and all other parts of the world follow this model (Parsons 1971). However, Parsons considers legal modernization in conjunction with other changes reflecting development of society towards sustainability and self-sufficiency. He suggests paying attention to changes in the economy, society, and politics, emphasizing significance of the development of law and arguing that the establishment of impersonal legal norms indicates successful modernization (Parsons 1964). Such an expanded gaze on modernization allows, firstly, to dissect more critically the processes taking place with the law and, secondly, to get away from evaluating legal modernization ultimately by the development of official legal institutions.
This approach allows to see different ways of conflict resolution, which exist stably not only in, but also outside of the legal system, or only partially intersect with it. The law moves from the position of an indisputable benchmark into a series of multiple instruments for restoring justice that are connected by relations of mutual dependence and mutual influence. Thus, the processes of legal modernization include not only transformation of legal institutions, but also alternative ways of dispute resolution. It seems that this approach makes sense not only for Russia and post-socialist societies but generally for any society. It allows us to look beyond the limits of liberal legalism. There is always something there.
Parsons characterized the Soviet state as an authoritarian state, where the executive power dominated the judicial power. He believed in ability of the
Soviet system to modernize (Parsons 1971). However, Russia’s historical path complicates the situation. Parsons emphasized the importance of continuous, consistent development for successful legal modernization. In case of Russia, the historical way of modernization is full of gaps. Long periods of stagnation were followed by periods of powerful breakthroughs, during which significant advances of the rule of law happened.
Furthermore, research on law in Russia is as uneven as the path of its development. Among scholarship on Soviet society, there is a dominant trend towards the study of official ideology, to the detriment of a substantive study of how Soviet institutions operated. The relationship between political ideologies and actual social processes in Russian studies has been over-simplified, as if social institutions were merely manifestations of ideological constructs.
According to Markku Kivinen, the existing literature on the Soviet period is insufficient, due to the peculiarity of research methodology and the relative inaccessibility of the socialist system for direct research during the period of its existence. Now that information is more accessible, researchers have the opportunity to conduct more in-depth and comprehensive studies (Kivinen 2013:19). On the contrary, processes of legal modernization in post-Soviet Russia are customarily considered and evaluated at the level of institutions (Hendley 1997). This is not surprising, since changes to the Russian legal system during the first post-socialist decades were made primarily at the institutional level (Solomon 1995).
Concentration of the Soviet research around the ideology has also some consequences for understanding Russian modernization. Comparison of the socialist and Western systems was carried out at the level of ideologies.
Confrontation between capitalist and socialist ideologies reinforced the idea that the vectors of legal development were also opposed. Contemporary research shows that these relations are much more complicated. In comparison with the Western models of modernization Russia is neither exactly the same, nor totally opposite. It has different trends and priorities in its development, some of which coincide with those in the West and some others do not.
Investigation of ideology should not be separated from investigation of institutions. It is especially dangerous when we know, that institutions can develop independently on ideology, or even completely contradict it.
Understanding of Russian modernization processes cannot progress without further analysis of the complicated and contradictory relationship between the different levels of rhetoric and reality prevalent in Russian discourses (Kivinen 2013:19). It cannot be full and sufficient also without equivalent consideration of official judiciary and alternative ways of dispute resolution, common in society.
Authors, acknowledging the existence of multiple paths of modernization, tend to consider the communist period as a special type of modernization (Arnason 2002:61; Kivinen 2013:17). According to them, interruption between the past and the future caused by socialist revolutions should be considered as a modernizing transition rather than a rejection of modernization. Contrary to the Parsonian view, the transition to a modern society was not perceived as a gradual development towards the expansion of market orientation and professionalism, functional differentiation and universal value patterns.
Meanwhile, this revolutionary interruption performed important for modernization rejection of the monarchy model. One of the main strategic goals of communist regimes was accelerated industrialization, even if it was carried out on the basis of outdated models of industrial development.
Some spheres of life, such as private property relations, were completely excluded from modernization processes, while others, such as education, got a powerful modernization impetus under Socialism.
The place of law in the Soviet project, and its role in the modernization process, has been least studied. The reason for this probably lies in the fact that law as a regulatory force came into conflict with Soviet ideology.
According to Marxist-Leninist theory, the law should eventually disappear and give way to socialist morality. In reality, on the contrary, the state has vastly increased its power in virtually all Marxist (-Leninist Stalinist) systems;
at the same time, the structures, roles, and functions of law have become progressively more complex, rather than simpler (Baum 1986:72).
The broken line of Russian modernization is still a line. Despite intermittent development, Russia’s past helps to explain its present and vice versa. To understand contemporary processes of modernization in Russia we need creative approaches that take into account the interruptions, institutional patchworks, stable foundations of society, and the entire complexity of the
Soviet and pre-Soviet past, with its natural and undesirable consequences (Giddens 1984; Kivinen 2006; Kivinen 2009; Kivinen 2013:24).
The role of the complaint mechanism in this long and complicated path of Russian modernization is really intriguing. Being marginal to the legal system and almost invisible for researchers of legal development, it functioned as an extremely important way of restoration of justice, available to the majority of people through centuries. It has survived several historical gaps and, in a sense, acts as the thread, stitching different eras. Research of mechanisms like this can explicate the general trends of social development and modernization, smoothing the wrinkles left by Russia’s sociopolitical cataclysms of the twentieth century and the imposed revival of the institutions of the past.
The approach towards comprehension of legal modernization of Russia should be extended even wider. It is necessary to call into question another principle, firmly enshrined in research on modernization. This is a principle that strongly links legal modernization, and modernization in general, with the strengthening of formal legal institutions and bureaucratic mechanisms.
Max Weber suggests understanding modernization as formalization of the informal, when functions of informal relations and networks are neglected.
What makes a modern society distinctive is the predominance, in both the market and the state sectors, of social capital in the form of large, impersonal bureaucratic organizations operating according to the rule of law (Weber 1968).
New studies offer much more flexible approach to understanding modernization in general, and legal modernization of post-Soviet Russia in particular. Within this approach, modernization is understood as a complex and not always unidirectional process. An important advantage of this approach is the fact that it pays attention not only to formal side of transformations, but also includes informality as an important component of the processes of modernization. To study the modernization processes taking place in Russia, this is fundamentally important, since over the centuries informal rules and practices have often been at least as important to understanding the workings of power and commerce as formal constitutions and laws (Ledeneva 2012:18). Their capabilities and functionality changed over time.
Alena Ledeneva (1997, 2008) shows how, in Soviet society, informal practices
were monetized and provided the oil that lubricated a whole society, but were framed firmly within a teleology of modernization.
Informality is present everywhere, albeit in different forms and, though it can be limited in some areas, cannot be liquidated as it is an integral aspect of state-citizen interactions (Polese, Morris, and Kovacs 2016). What we observe as part of a formal justice procedure is the tip of the iceberg. Hours of informal negotiations remain hidden from the sight of researcher. Meanwhile, they are of great importance, sometimes determining the outcome of a trial. As Douglass North assures:
Yet formal rules in even the most developed country make up a small (although very important) part of the sum of constraints that shape choices. In our daily interactions with others, whether within the family, in eternal social relations or in business activities, the governing structure is overwhelmingly defined by codes of conduct, norms of behavior, and conventions (North 1990:36).
A turn to informality, both in the sphere of justice and in the sphere of government, has taken place in a wide variety of countries (Christiansen and Christine 2012). Any system, in the course of its development, goes through stages of strengthening and softening of legalism, solves problems by balancing between formality and informality, and chooses between formalization and efficiency. For instance, in modernized countries like the UK or the USA, accessing the system of justice is getting more and more expensive, and researchers recognize the impossibility of ensuring the equal access of all social groups to justice (Rhode 2003:372). In the late twentieth century, emerging markets and the wave of liberalization and privatization of public services that occurred in the Western world led to the introduction of alternatives to the state judicial system (Mistelis 2006).
It is not uncommon when legal issues, to be addressed in court, are easily resolved through informal or semi-informal ways of dispute resolution. Good example here is the institution of mediation, or pre-trial conflict resolution, formed on the crossroads of law and psychology. This is a structured, interactive process, which is arranged in accordance with formal rules. Simultaneously, it
relies on specialized communication techniques and mutual empathy, which hardly can be completely formalized (Spencer and Brogan 2006).
A similar turn has been noted in the sphere of governance. Many new European strategies of governance are based on the conviction that not all relations need to be governed by law but can be left to etiquette, social discourse, and informal commitments (Shelton 2001:12). Transformations are carried out at both the institutional and normative levels. As a rule, new institutional bodies providing “soft” methods of dispute resolution, such as consumer dispute resolution systems, community methods, Ombudsmen, bureaus of complaints, and others, do not use national legislation as a normative base for the resolution of disputes, replacing them with regulation instruments such as international memoranda, directives, or treaties (Creutzfeldt-Banda 2013:228; De Bruijn and Hufen 1998). For instance, in the UK in 1973 the Office of Fair Trading was given the duty to encourage trade associations to develop codes of conduct (Fair Trading Act, s 124). Consumer Ombudsmen have the authority to develop agreements with trade organizations about interpretations of general fair trading provisions in various sectors (European Consumer Law Group 2001). Institutional providers of soft regulation are usually formed within a national system of governance, claiming to update the entire concept of management (Jacobsson 2001). However, the institutional role of new regulative bodies is not always evident. The European Ombudsman is a relatively new kind of “agent” whose status and role remain unclear. On the one hand, it is formally a parliamentary body, designed to strengthen the control of EU institutions and administrations. On the other hand, the profile and role of this organ is close to that of a court (Magnette 2003).
The problem of unification of the normative base remains unsolved, as well as the problem of legitimacy of those. For comparison, legal regulation gets its legitimacy from the democratic process. Laws are made by governments, which are subject to elections and which are presumed to legislate for the public good. Although monitoring for breaches of the law may be inadequate because of lack of resources for enforcing bodies, both criminal and civil laws almost always carry sanctions for breaches. Soft law, where it is a substitute for, or supplement to, traditional regulation has to receive its legitimacy elsewhere (European Consumer Law Group 2001).
All these examples are taken from the model modernized societies. They show that the concept of legal modernization is not equivalent to the concept of formalization. Authors including Jeremy Morris, Abel Polese, Colin C. Williams, Ioana A. Horodnic, and Predrag Bejakovic suggest a revised comprehension of the role played by informality in the organization and modernization of any society. They argue that understandings of informality as “socialist debris”
or a “byproduct of transition,” as a “pernicious phenomenon, which hinders the ‘proper’ development of the region” is both ideologically flawed and empirically unsubstantiated (Morris and Polese 2014:1). Contaminated by Western centrism, it reproduces the hierarchical ordering of societies from most to least modern and contributes to the othering of the post-socialist world (Morris and Polese 2014:7). At the same time, it fails to explain the pervasiveness of informal practices in former socialist countries dissimilar in economic development and political trajectory. Some authors take the argument one step further, considering that present-day informality is by and large a byproduct of the same neoliberal reforms seeking to eradicate it (Knudsen 2014:42; Cieślewska 2014:131).
Thus, the study of informality can be seen within a wider context of “de-othering” the study of the post-socialist space. While more pervasive and significant to household reproduction and social and economic life generally, informality should be seen contributing to the construction of post-Socialism as a variant of our current modernity.2 As Morris and his co-authors argue,
“this is a version of modernity that the West needs to take note of, as we stand on the cusp of centrifugal economic and social forces at the heart of the formalization project of the EU acquis” (Morris and Polese 2014:7).
In addition to ubiquity, informality is difficult to separate from formality.
Researchers often contrast complaint mechanisms and the judiciary as, respectively, pre-modern and modernized ways of solving problems, as informality and formality. At the same time, they frequently make a clear opposition between these two logics of problem solving. By following this approach, a researcher knowingly ignores everything that happens outside of the courtroom; or, on the contrary, slips into the archaic romance of the
2 See Thelen (2011) for this argument applied to the study of socialist societies.
practice of “writing to the authority” (pisanie vo vlast’). Meanwhile, in practice, anyone who wants to solve a problem may well use both possibilities, sequentially or simultaneously. At first glance, it becomes quite obvious that this boundary, determined analytically by adherents of a clear distinction between the formal and the informal, is conditional.
The complaint mechanism in Russia is regulated by laws or supreme decrees that established complaints as a formal element of the modern national legal system. Meanwhile, the bureaucracy that processes these complaints is based outside of the judiciary. There are rules for filing complaints, there are deadlines; however, they are less stringent than those in a court. The filing procedure, the justification requirements, the review process, the execution of the decision, the oversight procedures are all there, but regulated to a much lesser extent. In reality, complainants often know about the formal rules, but ignore these limits (Minzner 2006:114).
Clear formal boundaries of legal institutions frequently only have the appearance of certainty (especially in socialist systems). When we attribute formality as a defining characteristic of a judiciary, we close our eyes to informal networks, emotionality, and political conjuncture, all of which are a part of law enforcement practice. Informal rules, or occasional obstacles, can play a key role in the judgment of a particular issue. In this thesis, I consider modernization as an ongoing dialogue between the formal and the informal. The formal and informal act simultaneously. A complaint to the authorities exists in parallel with the possibility of going to court. The border that separates one from the other is flexible, changeable, situational. Formal rules may be accompanied, supplemented, or substituted by informal ones.
One cannot be comprehended without the other.
Legal modernization can be judged by how the line is drawn between the complaint to the authorities and the judicial way of solving problems: how
Legal modernization can be judged by how the line is drawn between the complaint to the authorities and the judicial way of solving problems: how