A while ago I met a businessman working for a large multinational corporation in Russia. Apparently, Russian tax officials are paid according to how many tax violations they report, creating an incentive to accuse companies of violating the tax code even when they haven’t. As a result, the Russian tax authorities regularly accuse this businessman’s company of breaking the law. According to him, every time that this happens his company takes the case to the Russian courts, and so far they have not lost a single case. Or to put it another way, on every single occasion the Russian courts have judged against the Russian state.
The businessman and I agreed that this wasn’t how the Russian legal system was generally portrayed. As Kathryn Hendley says at the start of her recent book Everyday Law in Russia, ‘Russia consistently languishes near the bottom of indexes that aim to measure the rule of law.’ In her book, Hendley examines whether theses indexes are justified and whether the common perception of Russia as essentially lawless is correct. To do this, she looks beyond highly publicized cases of allegedly politicized justice to see what ordinary Russians think about the courts and their experiences of them. The result is an extremely important book which challenges common stereotypes and should be read by anyone interested in Russia.
In previous book reviews, I have occasionally complained about the lack of evidence produced by authors to justify their claims. This is not a problem here. Hendley, a professor at the University of Wisconsin-Madison, backs her conclusion with prodigious research. She has analyzed surveys, carried out scores of focus groups and interviews, and spent 20 years observing Russian courts in action. What she says deserves attention.
After a brief historical and theoretical introduction, Hendley starts her analysis by examining survey data about Russians’ attitudes towards law and the courts. From this she concludes that, ‘The assumption that Russians have little respect for the law … is simply erroneous.’ The data suggests that the level of general trust in courts expressed in surveys doesn’t reflect Russians’ actual willingness to go to court. In general, Russians prefer to avoid litigating their disputes, but this is not due to fear that the courts are corrupt. One ‘surprising finding’, says Hendley, ‘is the unimportance of bribery.’ Rather, the reason that Russians prefer to avoid court proceedings is the ‘time, expense, and emotional energy required for litigation.’ In this sense, Russians are no different from people anywhere else.
To further make this case, Hendley first examines cases in which Russians have suffered damage from water leaking through their roofs from the apartments above them. This is apparently quite a common problem. As a rule, Hendley says, Russians prefer to settle such disputes without recourse to the law. Within the small-knit community of an apartment building, suing a neighbour is considered un-neighbourly and frowned upon. Generally, therefore, those who suffer damage in this way will speak to the person responsible and endeavour to get him or her to pay compensation without threatening court proceedings. Most of the time, this works. On the rare occasions when it doesn’t, those who have suffered damage often drop the matter as not worth the hassle. They go to court only when they feel that there is no alternative left to them. They are also more likely to sue people they don’t know well than those they are close to. The stronger the sense of community, the less likely they are to resort to formal law. That said, Hendley notes that the ‘informal norms’ which govern such matters are perhaps becoming somewhat weaker. The population of apartment blocks changes more rapidly nowadays than in the past, meaning that the sense of community is weaker. Also, as Russians become richer, they are finding legal proceedings more affordable. Consequently, resort to law to settle disputes is rising. Interesting also, Hendley writes that, ‘Prior experience with the courts seemed to embolden my respondents to go down that route again,’ suggesting that Russians are not too unhappy with their actual experiences with the law.
Second, Hendley looks at how Russians deal with the aftermath of motor accidents. Once again, she finds that they prefer to settle matters through informal mechanisms, especially because they distrust insurance companies, which are felt to try to minimize claims and drag their feet in paying out. Issues of power and corruption affect the way Russians deal with motor accidents much more than in the instance of apartment leaks. When there is a clear difference in the wealth and power of those involved, the weaker party is very likely to choose to do nothing. Nevertheless, Hendley says that the ‘ most commonly cited obstacle to going to court’ was not fear of corrupt judges but the difficulty of proving one’s case. In reality, concludes Hendley, ‘ordinary citizens get a better shake in courts. It is in their cases where judges are able to apply the law without fear of political repercussions.’
Third, Hendley describes how Justices of the Peace (JPs) in Russia approach their task. JPs act as judges in the lowest rung courts and deal with three quarters of all civil cases. As described by Hendley, they are overwhelmed by an enormous workload which causes them to deal with cases with great rapidity. She concludes, ‘What I found in the JPs was a judicial corps that was characterized by patience and efficiency, but where political courage was nowhere to be found.’ In the very small minority of cases where the last point matters, this is a severe weakness, but overall Hendley says, the political unimportance of most of their cases means that ‘what marks JP courts as unique is their relative independence.’
Fourth, and finally, Hendley describes litigants’ experience of JP courts. Too often, she says, they lack knowledge of what is required. Few Russians hire a lawyer, largely because they don’t think that they need one. Litigants, Hendley says, ‘go into the process with an undeserved bravado that, according to my observation, quickly crumbles when subjected to questioning from JPs.’ Nevertheless, the data suggests that ‘litigants are generally satisfied with their experiences of the JP courts’, even when they don’t get the result they want. According to Hendley, ‘Over 80 percent believe that JPs are well trained and competent. Only 10 percent said that their judge had been biased.’
Hendley concludes that it is wrong to consider the rule of law to be something that a country either has or doesn’t have. In Russia’s case, it is better to recognize the existence of a ‘duality’. On the one hand, the vast majority of cases are mundane and do not interest those with wealth and power. In such cases, ‘the parties can reasonably expect the case to be decided according to the written law.’ On the other hand, there are a small number of cases which attract unwanted attention. In such instances, power rather than law determines the outcome. But, Hendley notes, cases of the second type ‘actually amount to a drop in the bucket.’ Most people most of the time will have their cases dealt with fairly. This is true even when they are suing, or are being sued, by the Russian state. Less than one percent of defendants in criminal trials are acquitted, but in other cases the state does much less well. As Hendley writes,
State agencies are frequent litigants in civil cases, both as plaintiffs and defendants. Both in JP and other courts, they are more likely to lose these cases than are private actors. Their victory in administrative cases involving private citizens, such as traffic violations and fines for noncompliance with various laws, is far from automatic. The same is true in the business setting. Economic actors’ challenges to their treatment by the tax and other regulatory authorities are frequently successful.
It turns out, therefore, that the positive experience that my businessman acquaintance has had with the Russian courts is far from unusual. Kathryn Hendley remarks that this doesn’t mean that Russian courts are perfect. But for the most part, they’re not nearly as awful as people imagine them to be. Hendley is to be congratulated for making this clear, and one must hope that her findings become much more widely known.