AT 8:00 P.M., Moscow time, on September 21, 1993, Russian president Boris Yeltsin read out an emergency decree on national television. Blaming Russian parliamentary leaders for ignoring the will of the Russian people, Yeltsin abolished the existing constitution and disbanded every legislative assembly in Russia. Russian parliamentary leaders immediately called an emergency session and removed Yeltsin for treason. They named his vice president, Alexander Rutskoi, acting president. The Russian Constitutional Court chairman, Valery Zorkin, then appeared before Parliament and reported that a majority of the court had found Yeltsin’s decree unconstitutional. Russia now had two presidents.

These two presidents eyed each other warily across a tense Moscow for more than a week. They issued competing laws and decrees to strengthen their respective positions. With the backing of the West and the Russian armed forces, Yeltsin quarantined the Russian Parliament in its building. The Parliament surrounded itself with armed supporters and called for a general strike. Fears of civil war spread as both sides sought to gain support and project political legitimacy. Amid this “war of laws,” legality broke down. Chairman Zorkin frantically sought to forge a compromise that would restore the political struggle to a legal plane.

Zorkin’s effort failed. After a series of armed street clashes, Yeltsin ordered the army to storm the Russian Parliament. A shocked Russian populace looked on as tanks took up positions across from Parliament. As tank shells slammed into the building, Rutskoi called Zorkin and asked him to alert the embassies. He went on: “They won’t let us out of here alive. Is the world community actually going to let them shoot the witnesses? There’ll have to be an investigation later, you know. They’re murderers! Do you understand me? You’re a believer, it will be on your head.”

It was too late. Moments later, Russian special forces entered Parliament and arrested Rutskoi and his parliamentary supporters. The following day, Yeltsin indefinitely suspended the entire Constitutional Court for “political activities” and relieved Zorkin of his chairmanship.

Meanwhile, law remained an instrument of high-level political and economic warfare. Legality suffered as powerful elites deployed formal law to weaken their enemies and protect their wealth. The widespread use of law as an instrument of power politics threatened to pull Russia apart. In early 1994, Zorkin helped found a movement called “Accord in the Name of Russia.” The movement’s manifesto called for the restoration of a top-down hierarchy in law and order to preserve Russia’s territorial integrity and restore Russian greatness. Although the movement was ultimately unsuccessful, this embittered elite remained.

VLADIMIR PUTIN became Russian president in 2000. He promptly promised to fulfill the dreams of this disillusioned elite by restoring top-down legality to Russia. Most have dismissed this pledge as Soviet-style subterfuge, a veneer of legality to paper over Putin’s personalized system of authoritarian rule. And it is certainly true that Putin has come to dominate Russian politics by successfully managing the personalized, mafia-style world of politics inherited from the 1990s. Numerous commentators have documented Putin’s role as the “godfather” of Russia’s extralegal, personalized world of power. Furthermore, many reports suggest that official corruption has increased during his thirteen years of national dominance. Recently leaked WikiLeaks cables have provided juicy details about the shadowy underworld in which Russian power operates. One cable describes a network of bribes and kickbacks that stretches all the way from the streets to the highest levels of Russian government.

At the same time, however, Putin has delivered on his promises to reform Russia’s formal legal system. In his first term, Putin pushed through ten new legal codes. These reforms helped create a legal foundation for free market economics in Russia, including the introduction of Russia’s first-ever land code, a new tax code that introduced a 13 percent flat tax and a new labor code, which sought to regulate employer-employee relations and make it easier to lay off employees.

Putin initiated a number of other legal reforms and alterations. He sought to update Soviet-era codes affecting individual rights. In 2002, he scuttled a Soviet-era criminal code that allowed near-unlimited pretrial detention and searches without judicial intervention. In its place, he pushed through a new criminal code that greatly expanded access to jury trials while limiting prosecutorial power and the amount of time for pretrial detention. But he also pushed through legislation limiting individual rights when these rights were seen as threatening the state.

In addition, Putin substantially increased federal funding to Russian legal institutions, raising judicial pay while expanding the number of justices of the peace who handle local disputes. He pushed through legislation furthering the professionalization of the legal system by requiring the use of licensed lawyers (advokaty) in criminal trials. He has ratified international agreements, including the UN Convention against Corruption, and made Russia part of the Financial Action Task Force. Finally, Putin has faithfully implemented a number of decisions rendered by the European Court of Human Rights.

This formal legal reform raises some intriguing and sometimes troubling questions. How does Putin’s personal style of rule fit in with these formal legal reforms? And why haven’t these legal reforms reduced corruption?

The answer is that Putin never intended his legal and judicial reforms to stamp out corruption or replace informal, personalized rule. His plan was to use reformed formal legal institutions to complement his personalized rule. In fact, strong legal institutions were a means to an end—a tool for ensuring that he could punish those who did not comply with his informal rules of the game through selective prosecution.

PUTIN’S “LAWFARE STATE” is hardly a new innovation. As the saying attributed to multiple Latin American strongmen goes, “For my friends, anything—for my enemies, the law.” This lawfare system is seductively simple: in return for elite adherence to informal rules and personal loyalty, the state tolerates corrupt activities. Meanwhile, the regime closely documents this corruption, building dossiers on key members of the system. If these players violate the informal rules of the game, compromising information is passed to the formal legal system, which then goes after them. Yale’s Keith Darden describes this system as a set of informal contracts in which “receipts from bribery and embezzlement would be granted in exchange for effective implementation of central directives and a share of the proceeds.” These formal legal sanctions are a powerful incentive for ensuring elite cohesion and personal loyalty: a disobedient individual faces the prospect of jail time as well as full-scale seizure of all of his or her wealth.

Putin first turned this lawfare strategy against the regional political elites. During the 1990s, members of these regional power elites worked with organized crime to build powerful political machines that turned government into for-profit enterprises. To ensure their continued loyalty, President Yeltsin signed bilateral treaties with these regional leaders allowing them to pass their own laws, appoint their own judges and groom their own prosecutors.

During the spring and summer of 2000, Putin made clear that the age of regional autonomy was over. Thus did the new rules of the game emerge: the governors would send tax revenue to the center and implement central directives or face the formal legal system. These new rules triggered a “cold war” between many entrenched regional power elites and the Kremlin.

To gain advantage in this cold war, Putin worked methodically to undermine the legal protections enjoyed by regional elites. First, under the slogan of building a unified political space in Russia, he empowered federal courts to strike down regional laws that were inconsistent with federal law. Thousands of laws were removed. Second, Putin pushed through legislation that increased his formal legal leverage over the governors. This legislative package included laws that increased presidential control over the upper house of Parliament, a body that had become an institution for protecting local interests; allowed him to remove governors who did not comply with federal law; and created seven federal districts with presidential envoys who projected federal power into the Russian regions.

With this formal legal infrastructure in place, Putin targeted his first political prey: Yevgeny Nazdratenko, the governor of Primorsky Krai in the Russian Far East. During the 1990s, Nazdratenko had built one of the most powerful and corrupt regional party machines in Russia. His unsavory schemes exploited Russia’s vast fishing resources in the northern Pacific and included a massive kickback system for unregulated crab fishing in Russian waters. Despite attempts by high-level Russian officials to remove him from power, Nazdratenko remained highly entrenched.

In late 2000, however, Putin signaled that he wanted Nazdratenko out. As rumors circulated about imminent corruption charges, Putin visited the governor. Shortly thereafter, Nazdratenko resigned and was promptly appointed head of the State Fisheries Commission. In this position, Nazdratenko became the fox guarding the henhouse: during his tenure as head of the commission, according to reports, Japanese fishermen paid commission officials some $10 million in bribes for the right to fish in Russian waters. But Putin’s new system worked as he intended. Nazdratenko had complied to avoid prosecution. The lawfare state had its first “victory,” and a fundamental reality of Putin’s governing approach became apparent: he was not a foe of corruption per se but rather of corruption he couldn’t control.

Putin’s next targets were the oligarchs—the powerful clique of bankers who had enriched themselves through insider privatization deals during Yeltsin’s 1990s leadership. On July 28, 2000, Putin sat down with the most powerful oligarchs and set forth the system’s new reality. As long as the oligarchs paid taxes and did not criticize the Kremlin, Putin pledged to respect their property rights and refrain from prosecuting them for any past (or continuing) corruption. Many complied. But in 2003, Mikhail Khodorkovsky, the chairman and CEO of Russia’s largest oil-producing company, began funding opposition parties and independent media critical of the Kremlin. The result was a harsh hammer blow. The lawfare state jailed him, destroyed his oil company and forced most of his family into exile. The message to other oligarchs was clear: follow the rules or face devastating legal consequences.

There is little doubt that Putin’s lawfare state has fostered elite cohesion—and loyalty to Putin. New York University’s Mark Galeotti recently described “a middle-ranking official within the security apparatus” who “was thoroughly disillusioned by Putin but feels he has no alternative but to support him precisely because he has accumulated such wealth through tacitly-sanctioned embezzlement.” Galeotti concludes that “there are whole regional leaderships whose loyal adherence to the Kremlin line is bought and paid for in this manner.”

A FUNCTIONING lawfare state of the kind Putin has built requires two key institutions. First, it must have a sophisticated surveillance operation that has a monopoly on gathering sensitive financial intelligence. Without complete control over compromising information on individuals, the system has no leverage to enforce the informal rules of the game through legal blackmail. Second, a lawfare state must have clear and broad legal prohibitions and a loyal legal elite. This helps ensure the application of strong and efficient legal sanctions against those who violate the informal rules.

Putin began building the surveillance wing of this lawfare state as early as 1997, when he was head of the Kremlin’s Main Control Directorate under Yeltsin. In that job he was responsible for collecting information on the Russian business and political elite. Drawing on his KGB skills, Putin accumulated critical financial intelligence on the illegal dealings of Russia’s power elite. After becoming president, he created a new financial-intelligence unit (Rosfinmonitoring) from the ground up. Putin has kept this agency under his direct control since his emergence as Russia’s top leader thirteen years ago. Before becoming prime minister in 2008, he transferred the agency to the prime minister’s office. Upon resuming the presidency in 2012, he moved it back to the presidential administration.

A month before beginning his first term as president in 2000, Putin turned his attention to building the legal side of his lawfare state. With a strong parliamentary majority, he could push through favorable new laws with little difficulty. But, unlike with his centralized surveillance agency, which he could delegate to a close network of loyal associates, he needed to carefully stock the legal system with loyal members of the elite to ensure that the new laws would be enforced as he wished. To that end, Putin pitched an emotional message to key members of the legal elite disillusioned by the 1990s.

This ardent appeal began in his preelection “Millennium Manifesto,” which declared a new path for Russia on the eve of the new millennium. Putin’s manifesto reasoned that the 1990s demonstrated the failure of “abstract models and schemes taken from foreign textbooks.” Drawing heavily on opposition language from the Yeltsin era, Putin proclaimed that Russia must return to its roots by creating a powerful Russian state with a renewed emphasis on law and, as he described it, “constitutional security.”

In his first month as acting president, Putin delivered four major speeches to key members of the legal elite about the importance of law to his governing philosophy. On January 13, 2000, he accepted an honorary degree from his old law school and described “the influence” of “Russian legal thought” on his own political career: “For people like me who are now engaged in the construction of a new Russian state, we know that this project must be founded on the principles that have for decades been developed within the walls of the Faculty of Law of the University of St. Petersburg.” Eight days later, he delivered a speech to Russia’s equivalent of the FBI, declaring that law enforcement must be central in eliminating two threats to the Russian state: terrorism and economic crime.

On January 24, Putin urged the heads of regional federal court systems to end their dependency on regional power structures and work closely with the Kremlin. He linked this centralizing mission with Czar Alexander II’s period of “Great Reforms.” Finally, in a January 31 speech to the Ministry of Justice, Putin asked officials to work with him to unify the Russian legal system by striking down regional laws that conflicted with the federal constitution. He argued that this legal reform would reflect Russia’s commitment to “legality and the state” and explained that “our traditional approach to law and the Russian state were not born in 1917 or even in 1991. And therefore, whatever we may be doing today—judicial reform or nation building—we must remember the age-old Russian tradition of fairness and justice.”

By harking back to czarist traditions, Putin sought to link his own governing philosophy to the nonrevolutionary but reformist “conservative liberals” of pre-Soviet history. Led by Boris Chicherin, the intellectual founder of conservative liberalism and a strong supporter of the liberal Czar Alexander II, the conservative liberals argued that Russia should chart its own path between the lawless absolutism of the traditional Russian autocracy and revolutionary socialist ideas drawn from the West. This special path envisioned gradual reform of the Russian political system anchored in a law-based state. In advising Czar Alexander II to follow a policy of “liberal measures and a strong state,” the conservative liberals were proposing a kind of authoritarian, German-style rechtsstaat for Russia.

Putin repeatedly has sought to link himself to the most prominent statesman from this tradition: Pyotr Stolypin, the prime minister under Czar Nicholas II who ruthlessly worked to strengthen the Russian state against revolutionaries while building a legal framework for individual property rights amid Russia’s vast peasantry. Putin, who invokes Stolypin’s approach to government as a model, even rigged a contest so that Stolypin would be named Russia’s second most important historical figure. Furthermore, in a meeting devoted to organizing a celebration for Stolypin’s birthday, Putin warmly described how Stolypin’s “strong and effective government . . . could ensure progressive development and guarantee tranquillity and stability in a large multinational country and the inviolability of its borders.”

MANY MEMBERS of the legal elite enthusiastically supported Putin’s attention to formal legal reform and his decision to turn the lawfare state against the regional governors and the business oligarchs. For many, this was a matter of self-interest, as Putin’s formulation served to increase their salaries and personal prestige.

For others, these reforms were an important step in overcoming the legal anarchy that reigned during the 1990s. Perhaps the clearest and most vocal representative of this school of thought is the current chairman of the Russian Constitutional Court, Valery Zorkin. A religious believer, Zorkin spent his student days at Moscow State University studying the political ideas of the czarist conservative liberals. In 1984, after taking a teaching job at a KGB-affiliated think tank, Zorkin published a book on Boris Chicherin, the pioneer political thinker in the time of Alexander II.

After the Soviet collapse, Zorkin rocketed to prominence as chairman of the newly created Russian Constitutional Court. Described as “Russia’s answer to Chief Justice John Marshall,” Zorkin worked to preserve constitutional legality during the struggle for power between Yeltsin and the Russian Parliament. In 1992, Zorkin complained that Russian authorities were not paying sufficient attention to law and therefore were endangering the strength of the Russian state: “If the government issues decrees, and not one of those decrees is implemented—this is a sign of catastrophe. . . . We are suffering from a deficit of power. Not any power, just capable and effective power.”

Zorkin’s attempt to keep the conflict between Yeltsin and Parliament on a “legal plane” ultimately failed amid open warfare in the streets of central Moscow. After losing his position as chairman of the court, which itself was disbanded, Zorkin became the leading member of an embittered legal elite and dabbled in opposition politics. Returning to the newly reopened court in 1995, he became one of a handful of judges who openly criticized Yeltsin for his neglect of law and order.

With Putin’s rise to the presidency, Zorkin quickly reemerged as part of the legal elite. In March 2000, Putin gave Zorkin a formal award for his “multi-year service to the Russian state.” A year later, he endorsed the Zorkin court’s decision to declare Yeltsin’s 1993 decree disbanding Parliament unconstitutional, commenting that the court had “responsibly” struggled against “politicians who appeal to political expediency rather than the standards of law.”

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