Researching Legal Culture in Russia: From Asking the Question to Gathering the Evidence Marina Kurkchiyan
what decisions were made and why; what was lost and what was achieved in the process of moving from the abstract initial research question to the practical business of collecting data; and the eventual outcome of the enterprise, which consisted—as is often the way with scholarly research—of realising the need to formulate a whole new set of questions. Hopefully, those new questions will be better-informed, and there will be some benefit to socio-legal studies in recording the internal logic that guided the project. Because the focus here is on the method rather than the substance, the findings themselves will not be discussed in detail.2
It follows that this paper deals with only some of the tasks required for a description of a completed project. The full sequence goes from stating an initial puzzle [the research question] to formulating practical questions about it [the research design], then to collecting answers to those questions [fieldwork], onward to analysis of the answers [findings], and finally to assessing the findings in the context of the initial puzzle [conclusions]. In the present discussion, the emphasis is on the first two stages. I shall look back at the questions that I had to ask myself and answer, from posing a research question through to collecting data about it.
Through its concentration on empiricism and on the formal requirements of disciplined method, the paper supports the validity of the research. Validity is generally defined as a consistency between what we measure and what we believe we measure. It is often a painful issue for researchers involved in empirical study, because they are vulnerable to the charge of employing what may appear to be a messy and iterative process of conceptualisation and data collection.3
Although in this study of Russian legal culture the appropriate methodological procedures were scrupulously executed and the volume of data collected was substantial, the project did have at least one characteristic of a pilot study. It started with a very broad research question, which caused it to lead to a correspondingly broad set of findings and conclusions. For this reason, the conclusions are probably best regarded as a set of hypotheses accompanied by suggestions about how to test them, even if the hypotheses are firmly grounded and the procedural recommendations are suitably well informed. Nevertheless a project aimed at a dependent variable as abstract as ‘culture’ did make it possible to acquire some insights into the overall shape of large-scale social change, and it also opened avenues for further inquiries into the specific processes set in motion by societal transition.
A. THE RESEARCH QUESTION
As is often the case, my basic question about Russian legal culture was formed at a crossroad where intuition, direct observation and research experience all came together. Being a researcher interested in all aspects of the post-soviet transition, I wondered whether people’s dealings with the law might be changing. My interest was in the causal relationships at work in contemporary Russian society. The idea that socio-economic change tends to transform a society’s legal culture is not new; mention of it can be found in the work of leading authorities on the sociology of law.4 But is the amount of change in the legal culture significant enough to be treated as a dimension of the transition, and if so how could it be measured?
As a regular visitor to Moscow, I have noticed that since the mid–1990s law has steadily gained in prominence as the society has acquired a post-communist pattern. The country has been equipped with a relatively coherent body of legislation, and the process of lawmaking has become more transparent. There is more attention to law, so that ordinary people are becoming more knowledgeable about legislation and more willing to consult professionals if they get into trouble. In media analysis of public affairs, legal arguments have become common although they were once a rarity. Business is being conducted in a more orderly way, even at the level of street trading. It is clear that the law has changed, in procedure, content and institutions, and the changes seem to be continuing.
What is not clear, however, is whether thirteen years of transplanting, adapting and introducing the letter of the law have brought about a popular acceptance of a spirit of law. Have the expanded volume of laws and the increased number of lawyers created more genuine legality and respect for law into Russian society? What path is Russia following towards the development of its legal environment? Taking all these together, how has the post-soviet transition affected Russian legal culture? That is the question that inspired my research in the autumn of 2002.
B. EXPLORING CONCEPTS
To break the general research question down into a set of researchable ones, three concepts were adopted: legal culture itself, tradition, and transition. As the principal concern of the inquiry, ‘legal culture’ demanded a workable definition. What could the term mean? Which indicators would capture it? How could it be made ‘visible’ in concrete research? The second concept, tradition, emerged from the realisation that if the study dealt with change, there had to be something to compare the findings with. I settled upon the concept of ‘traditional Russian legal culture’, to be used as a starting point against which both transitional change and the current status of legal culture in Russian society could be examined. The final concept to be held up for examination was the post-communist ‘transition’. In what ways, and why, was the transitional process thought likely to affect legal culture, and where should the changes be looked for?
1. Legal Culture
A browse through the literature on legal culture suggests that the concept is vague and open-ended. When scholars attempt to define it, they find themselves dividing into different camps on a variety of aspects. Clearly it is at its most useful for empirical research if it is defined narrowly, but most writers see benefit in defining it widely. Which social entity should be identified as a carrier of legal culture—the law professionals alone, or specific social groups who are not themselves associated with the law, or society as a whole? Or would it be reasonable to go even beyond that to the international level?5 Should the definition lead to a quantifiable measure of legal culture, such as the number of litigated cases? Or can legal culture be understood better by observing people’s behaviour and recording the attitudes that they adopt and the language that they use whenever they speak about topics related to the law?6
Among these competing opinions on the interpretation of legal culture, two of the more prominent approaches deserve to be singled out. One is strict and narrow, focussing on the legal institution. It deals with issues related to law itself such as the activities of courts and other legal organisations, the models used for legal education in different countries, the values and behaviour of law professionals and the history of legal tradition.7 The other is more contextual, analysing law in the setting of the wider context of the numerous social relationships that feel its impact. In this perspective law is embedded in the texture of a particular society and cannot easily be separated from it.8 The approach lays particular emphasis on the law’s main function, its contribution to the maintenance of order.
Having a research interest in how the post-Soviet transformation of social environment has affected the way in which people deal with the law, left me with no choice but to adopt the broader approach. It would have been inappropriate (though it was tempting) to simplify the inquiry by examining a single example of legal culture such as the newly introduced jury system, or an important social group such as the politicians. From a methodological point of view it would have been even safer to opt for a statistics-based procedure and examine the trends in litigation, or the patterns displayed by human rights cases, or the characteristics of economic disputes brought before the arbitration courts. If I had chosen to take that path I would have gained the benefit of unquestionably valid research findings and perhaps also some insight into the dynamics of a particular, albeit narrow, aspect of legal culture. But I would have lost the larger perspective and the overview of the way in which social institutions relate to one another. A wide-focus approach also supplies the data needed to address the largest questions, about the role of law and the meaning that Russian society allocates to law after having had its basic principles reshuffled by the transition. In other words, there was a tradeoff; what I would gain in the certainty of my findings, I would lose in perspective on Russian society during the Putin era.
I therefore decided to work with the concept of legal culture as a reflection of the role that law plays in the society. If the role of law depends on the social environment in which it operates, then it will not be the same from one country to another. It is determined by such variables as people’s attitudes to law, their expectations of how everyone else will behave towards the law, and the interplay of political institutions with the agents of the law such as police officers, lawyers and judges. Most importantly, it is determined by the professionalism—or lack of it—of those who work in the legal institution itself. In the widest possible terms, then, the role of law depends on the principles upon which social order is founded in that particular society; on what its dominant values happen to be; and on which form of problem-solving people are in the habit of choosing.9
With the definitional choice made, the next methodological question was how to measure legal culture when it is used in such a wide sense. I answered that by choosing to interpret the way in which people use language as an index of cultural meanings. I then set about recording what people said when they told me what they thought of the law, and also what they said indirectly about it while describing their own or other people’s dealing with it. I also observed directly how people handled matters relating to law, both in their business dealings and in their instinctive reactions to challenging situations in everyday life.
2. Traditional Legal Culture in Russia
Any discussion of social change must begin with a judgment about where it starts from. So in this study, before I could test to establish whether there had been a shift to a new legal culture, I needed to have a clear understanding of what the old one was like. But how could the traditional legal culture in Russia be described? What were the distinct characteristics that needed to be monitored? The literature showed that everyone who was familiar either with soviet society or with pre-communist Russia would agree that law had never been among the dominant forces there, either in organising everyday life or in maintaining political stability. Commentators also agreed that the Russian people had long been cynical about law, and would not normally take it for granted either that legally correct behaviour would be rewarded or that illegal behaviour would be justly punished.10
In the literature on transition one can identify at least three explanations of the disrespectful way in which the public deals with law in post-Soviet Russia. Some authors attempt to explain it by current economic difficulties, or by the shortage of resources, or by the obviously bad leadership.11 They argue that the questionable practices that they observe cannot be ascribed to culture. Their underlying argument is that although corruption is pervasive and illegalities of every kind are widespread, ordinary people in Russia should not carry the blame. In my view this argument is weak. It is significant that appropriate responses, such as making increased resources available for the public services or disproportionately increasing the salaries of civil servants, do not usually reduce corruption; often the opposite is true. Also, the emergence of an honest leadership within a corrupt environment is known to be unlikely, and in any case it is never clear whether leaders corrupt their followers or vice-versa.
Others tend to explain the Russian approach to law by attributing it to the soviet legacy.12 The habits of being negative, cynical and disposed to cheat, they suggest, can be put down to the communist past. When ideological politics dominated all spheres of public life, the consequential hypocrisy encouraged sinecures, nepotism and bribery. There is little doubt that those 70 years did indeed leave a strong imprint on popular psychology and behaviour. But the Bolshevik Revolution did not happen in a historical vacuum. Lenin and his colleagues were attracted to the omnipotent secret police, the total centralisation, the instantly enforceable decrees and other features of the way things were done by the Tsars before 1917. They might not have admitted to such anti-progressive decisions, but they certainly adopted some features of the pre-existing political, social and legal culture.
My inclination, however, leans toward a third group of scholars, who suggest that in order to understand Russian society we need to probe farther back in history.13 In doing so it is important not to fall into the trap of determinism, because societal modifications clearly do follow from explosions like 1920s communism and 1990s capitalism. But even a glance at Russian legal culture through history reveals points that are relevant to research on today’s legal culture.
To understand the Russian way of thinking and doing things, it is helpful to bear in mind that the Russian tradition was rooted in the Byzantine culture and then cultivated throughout the Middle Ages by the Russian Orthodox Church. Being part of the ‘Byzantine Commonwealth,’14 Russia adopted the Roman legal code at an early stage. Thereafter it never experienced a formal separation of civil law from canon law, and until the 1990s it never had to adjust to the emergence of independent institutions.15
The scarcity of surviving data on Byzantine society leaves considerable room for speculation about how to interpret it, but it is widely accepted that it was a highly efficient social order held in place by a rigid political framework. Its organising principles were the primacy of political relationships, the dominance of a single undivided power, and a complete hierarchy of statuses from the top to the bottom of the whole society. It was radically different from the slowly evolving legal norms, the continuous interplay between different branches of power, and the shifting coalitions of loyalties found elsewhere.16
In such a system, it is the power hierarchy, not the body of law, that keeps society together and enables it to function. Like all forms of social organisation, the model both shapes and is shaped by the way of thinking that rationalises it. It is underpinned by appropriate values such as loyalty, stability, patronage, and authority. The values are continually reaffirmed by habits and accepted practices in legal and bureaucratic activity that correspond directly to them. For example, one of its expressions is the Byzantine tradition of legal argumentation, which puts the recitation of dogma and the citation of authoritative quotations firmly ahead of logical reasoning, empirical analysis of evidence and resort to independent judgment.17 Furthermore, the Byzantine tradition esteems an ability to take this style of discourse to the greatest possible lengths.
A society organised along such lines does not favour the growth of formal institutions managed by impersonal bureaucracies in the Weberian sense, and Russian institutions evolved quite differently.18 At every level, those in superior positions would grant special favours in exchange for the promise of loyal support by their inferiors, so that the working relationship was based on maintaining that relationship—not upon the law, nor upon the rationality of an order, nor upon getting the job done. What mattered was the political power of the person giving the instructions. If there was a universal understanding that loyalty was extended to a person, not to an office, and was always conditional upon reciprocal benefit, then rights and obligations were meaningless ideas.
The well-recorded attempt of Peter the Great to modernise the system in the 17th century was followed by that of Catherine II in the 18th century, by Alexander I and then by Nicholas I in the 19th century, and of course in the 20th century twice, by the early Bolsheviks and yet again by Gorbachev under late communism.19 However, none of those reforms went far enough, which is why the Byzantine resonance remained so strong in the Russian society of 2002. Whenever reform was tried, the ‘new’ law was imposed by power—power being a commodity of which the state had a generous supply. While ordinary people changed their ways to fit the new law, the dominant elites stayed above it, unchanged. Although each reform did have a noticeable impact, none succeeded in modifying the fundamental interplay between law, politics and society. Even the revolution, despite being violent enough to tear most pillars of the social structure of the society away from their foundations, actually reinforced the political pillar—thereby extending the traditional Russian dominance of the political forces in society over the legal and economic ones.
In short, injections of law in Russia were never intended to make it competitive to the political will, and certainly never succeeded in doing so. Consequently law was never sufficiently empowered to enable it to become the main ordering principle in society. The entire legal institution in Russia has always been politically weak and underfunded, with little social prestige, and vulnerable to the manipulation that perpetuates its low status. Russian bureaucracy, in addition to being powerful and corrupt, has always worked on the basis of exchange of favours. Being secondary to political forces, law in Russia long ago acquired an instrumental character. It was used as a tool of the political leadership, for social engineering, for education, for moral instruction, for legitimisation of policies, for whatever task the rulers might choose—but never for creating a rule of law and not of men.20