Assessing the Rule of Law in Russia. Kathryn Hendley. Cardozo Journal of International and Comparative Law. Fall 2006.
In this article, Prof. Hendley assesses three major issues – how the term ‘rule of law’ should be defined; the history and current state of the rule of law in Russia; and the methods used to evaluate the rule of law in Russia. For our purposes here, I will focus on Hendley’s arguments and conclusions that specifically relate to Russia.
I really enjoyed this article for two reasons. First, Hendley handily summarizes the evolution of the rule of law in Russia from the late-Soviet reforms under Gorbachev to the present. This is no easy task, considering the monumental changes that occurred. Second, she accurately identifies the failings of mainstream rule of law scholarship on Russia and proposes new methods of measurement.
Hendley provides the reader with an understanding of the current state of the rule of law through several ‘snapshots’ of the judicial process. These snapshots are organized into three different categories – procedural regularity, accessibility, and efficacy. For example, Hendley discusses changes in the Judicial Qualifications Commissions, which select and discipline judges (Hendley, 354). In the Putin era, the membership of the JQCs has been modified so that they are now composed of judges and laypeople, a change which brings Russian JQCs closer to their European counterparts (Hendley, 355). With regards to accessibility, Hendley notes several positive trends. For example, in the case of individuals, “[c]ivil cases doubled between 1996 and 2004,” and for firms, the arbitrazh courts have proven “both useable and are actually being used” (Hendley, 366). Interestingly, cases where the government is a party have also increased, reflecting “a more aggressive posture of the state … [as well as] a greater willingness on the part of individuals to confront the state” (Hendley, 367). Finally, in the area of efficacy, Hendley also finds reason for optimism in the area of enforcement of court judgments. For example, she cites one study that tracked 100 cases in the arbitrazh courts. The study found that “[a]lmost two-thirds of the firms ended up recovering something” (Hendley, 370). Overall, Hendley concludes that Russia “has surely moved closer to the ideal of the ‘rule of law’” (Hendley, 370).
The last section of the article turns the tables and looks at how the rule of law in Russia is assessed. Most significantly, Hendley notes the rise of the ‘indicatorocracy’ where a country’s rank on a list of nations purportedly captures the state of the rule of law in that country. Hendley looks at the following major indicators that are often quoted in the press and by politicians when discussing Russia: the World Bank Institute’s World Governance Indicators; Transparency International’s Corruption Perceptions Index; Freedom House’s Nation’s in Transit report; and the Central European and Eurasian Law Initiative’s various rule of law assessments. Hendley has nary a kind word for these ratings systems. Specifically, she notes that the process used to compute a country’s score is not transparent, the number of sources used for different countries are inconsistent, and the over reliance on anecdotal opinions from ‘experts’ rather than broad statistical data. Finally, Hendley notes the unfortunate yet “familiar tendency to reduce the state of the Russian legal system to a few high-profile cases” (Hendley, 376).
Lastly, Hendley proposes alternative approaches to assessing the state of the rule of law in Russia. For example, she argues against using “fuzzy” terms like the rule of law and for “assessing Russia’s progress towards various sub-goals” (Hendley, 379). Furthermore, Hendley argues that observers of Russia should move away from their heavy reliance on “expert reports grounded in expert opinion” and rather focus on behavioral data (Hendley, 379). As an example, she cites the Business Environment and Enterprise Performance Survey (BEEPS), which assesses to what extent firms are embracing the market. Hendley suggests pulling the few law-related questions from that survey and combining them with other legal questions (Hendley, 380).
Overall, I think Prof. Hendley does an excellent job of both describing the current state of the rule of law in Russia and of the scholarship on this subject. Hopefully, other Russia scholars will heed her call and help develop a more accurate approach towards understanding the rule of law in Russia. In a broader context, Hendley’s article is a breath of fresh air compared to the glut of Chicken Little-esque tirades that have recently clogged the editorial pages of Western newspapers.