Tag Archives: The Rule of Law

Repression, It’s the Law

Vladimir Putin’s Russia has, especially in recent years, come under heavy criticism from many in the West. Much of this criticism, however, deals with Russian aggression toward Ukraine, the extrajudicial killings of critics of the Putin regime such as Alexander Litvinenko, or accusations of widespread corruption. All of these issues are clearly in violation of a multitude of laws, both Russian and international. Focusing on such issues, while undoubtedly important, pulls attention from more sinister subjects, namely the propagation of political repression through the application of Russian law.

Rule of law in Russia is an interesting topic, and the laws serve a variety of interests. The interests they don’t seem to serve, however, are those of ordinary Russian citizens. Take, for example, the story of a family of bakers in the city of Voronezh. In 2015 they were sentenced to eight and a half years in jail for the sale of traditional poppy-seed buns, which prosecutors deemed to constitute large-scale drug trafficking on account of the trace amounts of opium present in all poppy seeds. The motive behind the arrest, according to those arrested, was that they had refused to pay bribes in excess of $800 per month to law enforcement officials.

Taken in isolation, this case could be considered an abnormality, that either the defendants were constructing an elaborate ruse to escape justice (though this by no means appears to be the case) or that a few corrupt officials had played the system to their own gain. The truth, however, is that such stories are relatively common. In 2006, for example, businesswoman Yana Yakovleva, one of the subjects of Peter Pomerantsev’s critically acclaimed 2014 book Nothing is True and Everything is Possible, was reportedly arrested shortly after refusing to pay kickbacks to a special police drugs unit. The technical term for this is ‘state raiding’, where government officials attempt to coerce payments by initiating a criminal case on trumped up or fabricated claims.

State raiding, however, is only one manner in which the letter of the law is used against the interests of ordinary citizens. Two of Russia’s more contentious laws, at least to those of us in the West, are the foreign agent law (officially named “On Amendments to Legislative Acts of the Russian Federation regarding the Regulation of the Activities of Non-profit Organizations Performing the Functions of a Foreign Agent”) and the LGBT propaganda law (officially titled “For the purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values”).

The first of these laws, the foreign agent law, is something of a spiritual continuation of Soviet policy. Designed to curtail the activities of non-governmental organizations (NGOs) engaged in political action, this law requires NGOs involved in loosely defined political activity and receiving foreign donations to register as foreign agents. A Human Rights Watch piece explaining the significance of the law decries the stigmatization of NGOs forced to register as foreign agents, claiming that such a label publically demonizes them. Over 100 NGOs have been registered as foreign agents, leading some to shut down rather than operate under the foreign agent label. Furthermore, NGOs found in violation of the foreign agent law face a variety of penalties, ranging from forced suspension of the NGO’s activities to fines (both directed at the NGOs themselves and at their leaders) or prison. A 2013 report by Human Rights Watch further explains the ramifications of the law, available here, though at this point it should be abundantly clear that this law is aimed at the silencing of NGOs that could criticise the Putin regime.

The LGBT propaganda law, on the other hand, introduced penalties for individuals and organizations aimed at distributing what the Russian government refers to as “propaganda for non-traditional sexual relations” to minors. ‘Propaganda’ is, of course, a loaded term, in this case referring to the mere encouragement of tolerance toward LGBT communities. Moreover, an Al Jazeera article pointed out that, according to activists, this law has effectively condoned violence and discrimination against emerging LGBT activities. In this manner, discriminatory values have been entered into law, allowing for legal persecution of progressive elements and encouraging extrajudicial repression of LGBT communities.

Both of these policies contribute to an increasing inclination toward authoritarianism in the contemporary Russian state, an inclination also demonstrated through the enforcement of laws typical of a Western democracy. Take, for instance, Articles 280 and 282 of the Russian Criminal Code, which outlaw calls for extremist activity and the inciting of religious or ethnic hatred respectively. According to the European Council on Foreign Relations, such laws are utilized to prosecute critics of the Putin regime. In late March, for example, The Moscow Times reported that a criminal case was opened under Article 282 against a deputy from the Kursk region, Olga Li, after she posted a video to YouTube critical of Putin’s policies. Yekaterina Vologzheninova was recently tried on similar charges for her posts on social media criticizing Russia’s actions in Ukraine, according to Amnesty International. Such cases, unfortunately, are far from unusual and represent only a part of the government’s efforts to silence its critics.

Taken holistically, the material presented here represents a limited examination of the perversion of rule of law in Russia. While Western governments are publically focused on Russia’s foreign policy, its actions in Ukraine and Syria, the extrajudicial killings of opposition leaders like Boris Nemtsov, or the prevalence of corruption, it is important to recognize the means by which ordinary Russian citizens are impacted by the Putin regime’s policies. Whether they be victims of state raiding, of silencing through the foreign agent law, victims of violence spurred on by the LGBT propaganda law, or persecuted government critics, it is important to realize that these people represent the greatest hope for a change of course in Russian politics. Indeed, any significant and lasting rapprochement with the West must be preceded by improvements within the political climate of Russia itself.

The Panama Papers: Reimainging the Moral Force of Law


Image courtesy of Dronepicr

The release of over 11.5 million documents from Mossack Fonseca, a Panamanian based law firm, has revealed the lengths to which individuals and companies will go to avoid their national tax obligations. When asked about the problem of tax avoidance, President Barack Obama acknowledged that those with wealth can avoid their tax systems when necessary, especially if they have the right lawyers and accountants. ‘A lot of it is legal,’ the President said ‘But that’s part of the problem.’

Those of us interested in the global rule of law and global constitutionalism should pay attention to President Obama’s point. Promoting the rule of law is hardwired into the international normative order. NGOs, international and regional institutions, and well-meaning liberals argue that law rather than politics ought to guide decisions at the global level. As John Adams, American founder and president maintained, we want a ‘government of laws and not of men’.

But law is not divorced from politics, either at the international or domestic level. A legal system results from political decisions, and those political decisions result, in part, from power configurations. Perhaps we ought to abandon our quest for the rule of law and recognize what Marxists have long emphasized, that law simply reflects a social and economic reality which, for all its pretentions, it cannot transcend. If this is true, does this mean that the quest for the rule of law is nothing but a chimera at the global level?

I’m not ready to give up on the rule of law. Without it, violence and coercive power would dominate the world order. The argument of those working in the realm of global constitutionalism is that we need not abandon the hope of a rule governed order. There must be some way to harness power and law to produce a more just and equal political order.

At the domestic level, this can come about either through representative government, although realizing truly representative institutions which are not tainted by injustice is no easier at the domestic than at the global level. Revolutionary movements to advance the cause of equality and justice are another means, one that has created the representative systems we have in many countries around the world. There is no representative institution at the global level, so perhaps we are left with the revolutionary model?

A third way might be through the device of constituent power. Constituent power is the act of a people to establish its political order through the creation of its constitution. Constitutional conventions remain the paradigmatic instance of constituent power. But as Jason Frank has argued, the constitutional convention is not the only constituent power moment; a constitutional system results from continued engagement of the people with its legal and political order. Those engagements can at times be conflictual and even revolutionary, but at other times they may be more prosaic. The point is that such constituent moments need cultivation and attention, and need to be recognized as such in order to give them the power to shape and reimagine a political order.

Does constituent power exist at the global level? If we name political protests, NGO activism, and forums in which activists and political leaders meet to articulate new agendas and ideas, then perhaps we do have something like this. Especially if those activists articulate their claims in the language of rights, law and democracy, they may well count as efforts to constitutionalize the global order.

The activism of the International Consortium of Investigative Journalists which released the Panama Papers demonstrates how those engaged in the protection of free speech and hardnosed journalism – classical liberal virtues that keep lawmakers honest in domestic societies – provides an instance of global constituent power. This organization does not represent anyone, but constituent power is not just about representative democracy; it is also the moral force that ensures constitutional orders remain true to their purpose.

President Obama is right in recognizing that tax havens are legal. But the constituent power of those who revealed the failure of global law gives us hope that global justice is possible when we make use of the emancipatory potential of law to advance rights and equality around the world. Recognizing the release of the Panama Papers as an instance of global constituent power can play a small but significant role in advancing that agenda.

Anthony F Lang, Jr holds a Chair in International Political Theory in the School of International Relations at the University of St Andrews and is Director of the Centre for Global Constitutionalism.

Image courtesy of Dronepicr

Magna Carta Roundtable Discussion

Pic Alan Richardson Dundee, Pix-AR.co.uk Free to USE Round table discussion on the Magna Carta

Pic Alan Richardson Dundee, Pix-AR.co.uk 

Professor Nick Rengger of the School of International Relations hosted a roundtable discussion on Monday 18 May, Magna Carta: A Global Charter of Liberty for the 21st Century? Participants included Professor Thom Brooks of Durham University, Professor Malik Dahlan of Institution Quraysh (and executive committee member of Harvard Law School), former ECJ judge, Professor Sir David Edward QC of Edinburgh University, and Professor John Hudson. The event was jointly organised by the School of International Relations and the Centre for Global Constitutionalism to discuss the significance of Magna Carta in its 800th year.

Prior to the discussion the participants enjoyed a visit to Martyrs Kirk to view some of the oldest and rarest items in the University’s Special Collections, including the Papal Bull from 1413.

Pic Alan Richardson Dundee, Pix-AR.co.uk

Pic Alan Richardson Dundee, Pix-AR.co.uk

The Global Rule of Law

The Global Rule of Law

The project began with a workshop on The Global Rule of Law held on 22-23 June 2011 at the University of St Andrews. The workshop was launched with a 600th lecture series: Justice Richard Goldstone. This was followed the next day with presentations by key figures in the field of law and political theory: Professor Richard Bellamy, University College London; Professor Susan Marks, London School of Economics and Political Science; Professor Neil Walker, Edinburgh University; and Professor Jeremy Waldron, Oxford University/New York University. The speakers explored the contested nature of the rule of law at the global level and sought to develop an account of how it might function more effectively.

A Global Rule of Law? (PDF, 149 KB)