After his reelection as head of the Constitutional Court in 2003, Zorkin became the Putin regime’s chief legal pamphleteer. In dozens of articles and speeches published in the official government newspaper, he has expanded Putin’s attempt to ground his legal policy in czarist-era legal and political thought.

Zorkin argues that Russia must avoid the temptation to impose universal democratic rights on a Russian polity that still requires strong authoritarian rule. If the court or any other institution were to move the nation in that direction, he argues, it would weaken the state and engender the true enemy of democratic and market reform: chaos. Instead, Zorkin argues, the court and the country’s constitution should play a stabilizing role in Russian politics by securing a strong, authoritarian state and protecting it from its real enemies—“corrupt elite clans,” “overweening bureaucrats” and “radicals of all stripes.” In emphasizing that the conservative-liberal mantra of “liberal measures and a strong state” remains relevant in modern Russia, Zorkin, like Putin, draws on pre-Soviet Russian history.

Zorkin also criticizes fellow judges who complain about Russia’s disregard for universal human rights. In a heated exchange with a liberal former Constitutional Court judge, he warned about the dangers in a blind transplantation of “transcendental” democratic values:

You sit behind your desk, surrounded by legal literature and hoping to create the ideal constitution. But beyond those windows and walls where you have your dreams, passions rage and real life seethes. . . . If you do not consider the laws of this struggle, the historical tradition, and the content of this social progress, at best your legal creation, no matter how perfect it may be, will be a barren utopia. At worst, it is the road to a hell of real chaos, boasting an amoral dictatorship that neglects any legal norms.

This rejection of Western-style legalism also reflects deep suspicion of the West drawn from the Russian experience of the 1990s, when Yeltsin won praise in the West for promoting policies that Zorkin considered ruinous for Russia. In another article, he dismissed Western criticism of Putin by asking, “Why are these criticisms only being voiced now and not in October 1993 when tanks in the middle of the Russian capital were firing point-blank range on the legitimate and democratically elected parliament?”

Zorkin has argued that judges, in interpreting the constitution, should draw as much on Russia’s unique history and heritage as from universal democratic values. This uniquely Russian context, which he calls Russia’s “fundamental reality,” necessarily includes “authoritarian elements” that can ensure Russia’s stable “transition” from “a lawless past to a new democracy.” He explains that the constitution “forms the basic regulatory framework in a constantly changing world and must be considered in the context of this world. Its principles . . . must be interpreted and filled with a rich concrete social content relevant to each new historical stage of development.” That is why, he adds, any discussion of the constitution’s meaning and implementation “cannot be separated from politics.”

This authoritarian version of “living constitutionalism” is broadly influential among many members of the Constitutional Court. In fact, recent court opinions have upheld progovernment legislation in part based on the argument that Russia is at a stage in its democratic development when a strong president is required. Consider, for example, a 2005 decision upholding a law giving the Russian president the power to appoint regional governors. The court reasoned that the law was valid given Russia’s “developing social-historical context” and “concrete social-legal conditions.” The implication was clear: laws strengthening the state were constitutional because the need to strengthen state power was obvious.

GIVEN HIS deep understanding of the late czarist conservative-liberal intellectual tradition, however, Zorkin must realize that Putin has done little to construct a law-based state as a vehicle for gradual change. In fact, Putin’s lawfare state bears no resemblance to the kind of strong German-style rechtsstaat advocated by the conservative liberals. The leading conservative liberal, Boris Chicherin, wrote that

law and order will never be able to establish itself where everything depends on one personal will and where each person can have the power to put himself above the law. . . . If a legal order is the most urgent need of Russian society, this need can be satisfied only by transition from an absolute monarchy to a limited one. There is no other way for Russia.

By tolerating lawlessness in return for personal loyalty, Putin’s lawfare state therefore violates the central principle of conservative liberalism: its insistence on clear and rigidly enforced legal rules.

So what motivates Zorkin’s outspoken support? Two possibilities: First, he might genuinely believe Putin’s use of lawfare to enforce an informal, top-down “vertical of power” is a necessary transitional stage before Russia develops a true law-based state. For a man who remains scarred by his experience of the 1990s, Putin’s anti-Western style must have strong emotional appeal. In the beginning this might have been true: the regime’s attention to formal law helped inject needed money into legal institutions.

This rationale, however, is quickly losing force. Putin shows no sign of moving toward a true law-based state. In a question-and-answer session with the Russian public, Putin was asked when he thought he would no longer need to “manually control” Russia. Citing the experience of Franklin Roosevelt in the United States (another of Putin’s favorite historical comparisons), Putin argued that it often took a long time to emerge from a crisis. He then explained that he could relinquish his personal control over the country only “after we create the necessary legal conditions and mechanisms, when all parts of a market economy work to the full extent.” These conditions would be in place, he speculated, at the very end of his fourth presidential term in 2024.

Furthermore, Putin’s persistent use of the law to reinforce his personalized style of rule threatens to delegitimize the court system altogether. Even today, the growing protest movement expresses a lack of trust in the courts’ willingness to vindicate their rights in cases involving powerful officials. Will Zorkin realize that the Putin regime—recently labeled “The Party of Crooks and Thieves” by its opponents—is actually weakening the legal institutions necessary for a law-based state?

The second possible explanation is that Zorkin’s support for Putin merely reflects a cynical desire to enhance his own privileges and the prestige of the Constitutional Court. Clearly, Zorkin’s support for the Putin regime has helped the court regain many of its old powers. If true, Zorkin wouldn’t be the first major official of Russia—or anywhere else—to choose political expediency over the rule of law.

The answer is likely to emerge in the coming years. Putin recently has turned the lawfare state against the Russian opposition with greater force and frequency, as seen in the recent prosecution of the band Pussy Riot. In so doing, Putin also has expanded his menu of legal options for controlling the Russian opposition, drastically increasing fines for unsanctioned protests and reintroducing criminal liability for libel. Furthermore, Russian investigators have increased their surveillance of opposition members in search of more and more compromising information.

Zorkin’s court has accepted a number of constitutional challenges to these laws. Members of the Putin regime are openly nervous that the court will strike down some of them. In fact, Putin’s representative on the court recently proposed that it disqualify judges from cases involving issues in which they had previously dissented. The obvious goal was to remove from these cases any judges who seem skeptical of presidential power. The court refused. A big question, therefore, is whether the court will strike down these laws or limit their scope. The answer will provide a hint as to whether Zorkin’s 1993 opposition to errant executive power will be repeated—and whether Putin can indefinitely maintain his precarious balancing act between extolling the rule of law and exploiting Russia’s legal system to secure his political position atop the Russian state.

William Partlett is an associate-in-law at Columbia Law School and a nonresident fellow at the Brookings Institution.

Image: Wikimedia Commons/Politsurfer. CC BY-SA 3.0.

Pullquote: Strong legal institutions were a means to an end—a tool for ensuring that Putin could punish those who did not comply with his informal rules of the game through selective prosecution.Essay Types: Essay