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Russia’s Legal Transitions: Marxist Theory, Neoclassical Economics and the Rule of Law

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Abstract

We review the role of economic theory in shaping the process of legal change in Russia during the two transitions it experienced during the course of the twentieth century: the transition to a socialist economy organised along the lines of state ownership of the means of production in the 1920s, and the transition to a market economy which occurred after the fall of the Soviet Union in the 1990s. Despite differences in methodology and in policy implications, Marxist theory, dominant in the 1920s, and neoclassical economics, dominant in the 1990s, offered a similarly reductive account of law as subservient to wider economic forces. In both cases, the subordinate place accorded to law undermined the transition process. Although path dependence and history are frequently invoked to explain the limited development of the rule of law in Russia during the 1990s, policy choices driven by a deterministic conception of law and economics also played a role.

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Notes

  1. Editorial ( 2009), p. 1; Carothers (2003).

  2. Supiot (2015), p. 51.

  3. World Justice Project, WJP Rule of Law Index 2014. http://data.worldjusticeproject.org/. Accessed 15 July 2015.

  4. Hedlund (2005) argues that the persistent absence of the rule of law is a factor which has impeded reform in Russia over the centuries.

  5. Sachs and Pistor (1997).

  6. McDonald (2011).

  7. On the privatisations of the 1990s, see Glinkina (2004), p. 385.

  8. Although see Darden (2009), on the way in which economic theories including Soviet integralism, liberalism and mercantilism have had a direct impact on policy, including economic policy, in Russia.

  9. Although this did not quite result in the elimination all forms of market-like exchange in the formal part of the Soviet economy: see for example Harrison (2008) on arms procurement under Stalin. Even the Communist Party of the Soviet Union was subject to budget constraints and from about 1948 was ‘run as a serious business with attention to both revenues and expenditures’ with revenues derived principally from membership dues and publishing: Belova and Lazarev (2012). The presence of budget constraints does not however imply that the Soviet Union functioned anything like a modern market economy.

  10. Reddaway and Glinski (2001), p. 26.

  11. Although Engels had an interest in the development of legal institutions: see Engels (2012).

  12. Marx (1859), p. 24.

  13. Reproduced in Marx and Engels (1977), pp. 13–30.

  14. Marx and Engels (1977), p. 16.

  15. See now Pashukanis (2009).

  16. See, for example, the positive if critical assessments made by Fuller (1949), p. 1157 and Kelsen (1955).

  17. Pashukanis (2009), p. 42.

  18. Pashukanis (2009), p. 41.

  19. Pashukanis (2009), p. 58.

  20. Pashukanis (2009), p. 162.

  21. Pashukanis (2009), p. 161.

  22. Ibid.

  23. Pashukanis (2009), p. 61.

  24. Pashukanis (2009), p. 63.

  25. Made by Karl Renner in initially in 1904; see Renner (1949).

  26. Pashukanis (2009), p. 35.

  27. Pashukanis (2009), p. 99.

  28. Under a decree of 10 April, 1923, corporations were permitted to operate within certain financial limits, although there is evidence that the regime found these to be a potential threat and that confusion about the appropriate role of the capitalist corporation continued until the end of the NEP: see Owen (1991).

  29. See Head (2008), ch. 6.

  30. Cited in Head (2008), p. 127.

  31. See Gsovski (1938), p. 27.

  32. Smith (1996), p. 29.

  33. Hostettler (2003), p. 30.

  34. Johnson (1969), p. 9.

  35. Pashukanis (2009), pp. 168–169. The assimilation of criminal laws to prices has been promoted more recently by Gary Becker of the Chicago school (Becker 1968), p. 169, but without allusion to Pashukanis’ analysis of 40 years earlier. See further our discussion of Becker’s ‘economic approach’ in Sect. 3.

  36. Pashukanis (2009), p. 188.

  37. Pashukanis (2009), p. 133.

  38. Cited in Head (2008), p. 147.

  39. Marx and Engels (1977); see above.

  40. Pashukanis (2009), p. 131.

  41. Friedrich Engels, ‘Letter to J. Bloch, 21 September 1890’, in Marx and Engels, Selected Correspondence, 1942, at pp. 394–395, cited in Head (2008), p. 32.

  42. Friedrich Engels, ‘Letter to Conrad Schmidt’, 27 October 1890, in Marx and Engels, Selected Correspondence, at p. 402, cited in Head (2008), p. 32. In ‘Ludwig Feuerbach and the End of Classical German Philosophy’, published in Die Neue Zeit in 1886, Engels wrote: ‘the economic facts must assume the form of juristic motives in order to receive legal sanction; and since, in so doing, consideration of course has to be given to the whole legal system already in operation, the juristic form is, in consequence, made everything and the economic content nothing. Public law and private law are treated as independent spheres, each being capable of and needing a systematic presentation by the consistent elimination of all inner contradictions’ Engels (1946).

  43. Lenin (1964), p. 488. See the discussion of Head (2008), p. 52.

  44. Lenin (1970), p. 138.

  45. See Head (2008), p. 51.

  46. Pashukanis (2009), p. 133.

  47. Ibid.

  48. Reproduced in Beirne and Sharlet (1980), p. 234.

  49. Beirne and Sharlet (1980), p. 297.

  50. Beirne and Sharlet (1980), p. 305.

  51. Beirne and Sharlet (1980), p. 314.

  52. Cited in Berman (1963), p. 55.

  53. Andrey Vishinsky, ‘Zakonnost Revolutsionnaya’, in: 26 Bolshaya Sovietskaya Entsiklopedia (1933), p. 86, cited in Guins (1954), p. 73.

  54. Cited in Head (2008), p. 149.

  55. Cited in Head (2008), p. 150.

  56. Cited in Head (2008), p. 109.

  57. Beirne and Sharlet, ‘Introduction’, in Beirne and Sharlet (1980), p. 34.

  58. Feldbrugge (1993), p. 45.

  59. Guins (1954), p. 82.

  60. Reddaway and Glinski (2001), ch. 2.

  61. Fukuyama (1989), p. 1.

  62. Becker (1976), p. 5.

  63. Becker (1976), p. 6.

  64. The high water mark of this approach was Arrow and Hahn (1971).

  65. The first of the two ‘fundamental theorems’ of welfare economics holds that a market equilibrium will result in a Pareto-optimal allocation of resources, that is to say, one in which there is no further scope for distributional changes that improve the welfare of some agents without imposing losses on others. The second theorem, which is the converse of the first, states that assuming consistent preferences (‘convexity’), any Pareto-optimal allocation can be modelled as a competitive market equilibrium. This is widely taken to mean that policy makers should ‘let the market work’ in order to arrive at allocations which maximise resource efficiency. See Varian (1974), p. 223.

  66. Coase (1960), p. 1.

  67. Posner (1972).

  68. Rowley (1989), p. 125.

  69. The invention of the term ‘Coase theorem’ appears to be attributable to Stigler (1966), p. 113.

  70. On the range of possible interpretations of the Coase theorem, see Cooter (1982), p. 1.

  71. Coase (1960), p. 8.

  72. Coase (1960), p. 15.

  73. Coase (1992), p. 718.

  74. Reddaway and Glinski (2001), p. 12.

  75. Coase (1992), p. 714. To similar effect is the comment of the economist and Nobel Laureate Douglass North (2005), p. 65 to the effect that ‘Neo-classical economic theory provides an understanding of the operation of markets in developed economies but was never intended to explain how markets and overall economies developed’. For discussion of North’s views on institutions and development, see J. Faundez, Douglass North’s Theory of Institutions: Lessons for Law and Development. Legal Studies Research Paper No. 2014/13, Warwick Law School. Available at SSRN: http://ssrn.com/abstract=2493052 or http://dx.doi.org/10.2139/ssrn.2493052. Accessed 17 July 2015.

  76. For (critical) discussion of this tendency, see Stiglitz (1994).

  77. Boycko et al. (1995).

  78. See Freeland (2005), p. 52: ‘Ideally, the reformers would have liked instantly to force out the communist industrial elite and usher in a new capitalist one. But if that was not possible it did not worry them too much. The main thing was to create a capitalist system: it did not really matter who the capitalists were. For them, transforming Russia was sort of like writing a computer program. As long as they got the program right—as long as they created the proper capitalist incentive structure—everything else would automatically fall into place’.

  79. A related motivation of reformers was the desire to dismantle the system of state planning in order to forestall any possible restoration of the Soviet system: Freeland (2005), p. 19; Roland (2000), p. 85.

  80. Boycko et al. (1991). As Stiglitz has observed, the application of the neoclassical model of utility maximisation could lead individuals to vote rationally to ‘postpone the establishment of the rule of law state’: Hoff and Stiglitz (2004). The creation of a constituency for reform may have been seen by the economic advisers to the government as preferable to reform exclusively from above, but it nevertheless failed to result in the legal and institutional change which was anticipated. This supports one of the contentions of this paper, to the effect that although neoclassical economics, with its emphasis on private contracting, presupposes and requires a properly functioning system for the protection of property and contract rights, it nevertheless sees this system as subordinate to and responsive to the market. This gives rise to the difficulty of using the law to restrain the excesses of less scrupulous market-makers, and highlights the somewhat circular perception of the market as both a force for change of the legal and institutional framework at the same time as relying on that framework in order to function properly.

  81. Posner (1998), p. 1.

  82. Boycko et al. (1995).

  83. Yeltsin speech, cited in Reddaway and Glinski (2001), p. 233.

  84. Sergei Vasiliev, cited in Reddaway and Glinski (2001), p. 247. Although the Russian government was advised by Western economists and institutions in the early stages of transition, Egor Gaidar maintained that they were making their own decisions, and not merely following advice: Gaidar (2003), p. 117.

  85. Reddaway and Glinski (2001), p. 278.

  86. The ‘loans for shares’ scheme has been described by Chrystia Freeland in Freeland (2005) as ‘both the cause and symbol’ of the malaise of the Russian market economy although for a more recent argument that its significance has been overstated see Treisman (2010).

  87. Consumer prices rose by 1345 % in the first year of shock therapy after August 1991. Price inflation was 896 % in 1993, 220 % in 1994, 190 % in 1995 and still 48 % in 1996. A principal cause of rising prices was a collapse in industrial production from 1992 onwards. Real wages fell by 25 % during 1992–1996 and again by 42 % in 1998–1999 following the devaluation of the rouble that was triggered by the Russian government defaulting on its sovereign debt. Between 1992 and 1998, Russian GDP declined by 44 %, industrial production fell by 56 %, and capital investment by 80 %. By comparison, the fall in Soviet GDP during World War Two had been 24 %. Reddaway and Glinski (2001), pp. 249–250.

  88. Lawrence Summers, cited in Hedlund (2005), p. 11.

  89. Boycko et al. (1991). Although this research had also shown that Russian respondents’ expectations of the honesty of businessmen and of the security of private property from state expropriation were significantly lower than those of the Americans who participated in the survey, these differences were largely ignored.

  90. Egor Gaidar, cited in Reddaway and Glinski (2001), p. 306.

  91. Reddaway and Glinski (2001), p. 239.

  92. Nicolai Schmelev, cited in Reddaway and Glinski (2001), p. 239.

  93. Jeffrey Sachs writing in Novoye Vremya (1995) No. 28, cited in Medvedev (2000), p. 84.

  94. Shleifer and Treisman (2004).

  95. Anders Aslund in 1998, cited in Reddaway and Glinski (2001), p. 301.

  96. IMF economist Stanley Fischer, cited in Reddaway and Glinski (2001), p. 301.

  97. Owen (1991), p. 196.

  98. Black and Kraakman (1996), p. 1934.

  99. Black and Kraakman (1996), p. 1915.

  100. Black and Kraakman (1996, p. 1940.

  101. Black and Kraakman (1996), p. 1978.

  102. Nor has the corporate legislation always been able to protect the property rights of the owners of businesses: see Firestone (2008), a notorious case being the raid on Hermitage Capital Management, a fund managed by the foreign investor, William Browder.

  103. Adachi (2006), p. 65; Black et al. (2000).

  104. Heinrich et al. (2007).

  105. See Black (2001), p. 89, which demonstrates that Yukos and its three production subsidiaries Yuganskneftegaz, Tomskneft and Samaraneftegaz were at the very bottom of the table for quality of corporate governance of 50 major companies in Russia in 1999; Black et al. (2006).

  106. Russian Trading System, the principal equity index.

  107. S. Guriev, O. Lazareva, A. Rachinsky and S. Tsouhlo, Concentrated Ownership, Market for Corporate Control, and Corporate Governance. nes.ru/~sguriev/papers/CGRussia.pdf. Accessed 17 July 2015), p. 8.

    Guriev et al. (2003), p. 8.

  108. Heinrich et al. (2007).

  109. See Hanson and Teague (2005), p. 659; Tomson (2005).

  110. Although it is rumoured that an English version of the thesis is available on the internet, our discussion of it is drawn principally from Balzer (2005) and Jack (2004).

  111. From Putin’s article of 1999, quoted in Balzer (2005).

  112. Reddaway and Glinski (2001), p. 308.

  113. Art. 1. An alternative term used in the standard English translation of the Constitution (www.constitution.ru) is ‘law-bound state’. Gosudarstvo means ‘state’ and pravovoe is the adjective from the noun pravo, meaning ‘law’ or ‘right’ in English which it is argued is closest to the Latin term jus (lex being the equivalent of the Russian zakon, which carries with it the meaning of ‘legislation’ rather than the rather more abstract ‘law’).

  114. This is a consistent theme in the work of Kathryn Hendley. See in particular Hendley (2009, 2011a, 2011b, 2012).

  115. Hendley (2011a).

  116. On these points, see Ledeneva and Kurkchiyan (2000), Ledeneva (2001, 2002), Hendley (2010, 2011a, b).

  117. Hedlund (2005).

  118. Ibid.

  119. Hoff and Stiglitz (2002).

  120. Black et al. (2000), p. 1737.

  121. Ibid, p. 1803.

  122. Milton Friedman, writing in his preface to a [2002 World Bank Report: Friedman (2002)].

  123. Black et al. (2000), p. 1731.

  124. Granovetter (1985), p. 488.

  125. Ledeneva and Kurkchiyan (2000), Ledeneva (2001, 2002), Volkov (2002).

  126. Ledeneva and Kurkchiyan (2000), p. 90.

  127. Ministerstvo Vnutrennikh Del, The Ministry for Internal Affairs.

  128. Handelman (2002), p. 86.

  129. Ibid.), p. 89.

  130. Chang 2010, ch. 1. To similar effect, see Knieper (2010), p. 115: ‘both Japan and Germany share the experience that the market economy is by no means a private, spontaneous affair which breeds its own dynamics intrinsically’. Proposals for the Russian transition put forward by the Japanese industry ministry MITI in 1992 failed to gain significant support: Reddaway and Glinski (2001), p. 676.

  131. The second Russian transition took place under conditions of extreme turbulence and it is only with the benefit of hindsight that we are now in a position to assess the full effects of decisions taken in the mid-1990s. Thus we wish to emphasise that it is not our intention to add to accounts which have sought, wrongly in our view, to apportion blame to individual reformers.

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Acknowledgments

We gratefully acknowledge support from the ESRC Rising Powers Programme and the Legal Reform Institute. We are grateful for comments on earlier drafts from Sveta Borodina, Jonathan Hay, Rilke Dragneva-Lewers, Ajit Singh and Dmitry Vasiliev.

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Hamilton, J., Deakin, S. Russia’s Legal Transitions: Marxist Theory, Neoclassical Economics and the Rule of Law. Hague J Rule Law 7, 283–307 (2015). https://doi.org/10.1007/s40803-015-0012-8

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