The Limits of Law in Russian Pseudo-Conservatism: The Case of Valery Zorkin
by Alexey Zhavoronkov
The alleged ‘conservative turn’ in contemporary Russian politics and social and cultural life has profoundly impacted the country’s law system. The rhetoric of normalcy (understood as traditionality in a broad sense) is bolstered by examples demonstrating the contrast between Russia as a bastion of normal values and the ‘collective West’ with its allegedly perverted ethics. At first glance, this type of argumentation fits into the general pattern of conservative thought, invoking comparisons with conservative movements in the U.S. and several European countries. Still, there is a major flaw in the Russian official rhetoric, as it lacks a distinctive normative basis similar to the one in Western conservative traditions. This rhetoric is part of a general tactic of pseudo-conservatism, a phenomenon that bloomed during the contemporary crisis phase of conservative movements worldwide. To understand how the Russian pseudo-conservative tactic transforms the understanding of law implementation, let us look at one specific example: the publications of Valery Zorkin, the current president of the Constitutional Court of Russia and a prominent public figure among Russian officials.
1. Valery Zorkin: A Brief Intellectual Portrait
In most studies on contemporary Russian politics and intellectual movements, the figure of Valery Zorkin is overshadowed by figures like Alexander Dugin or Aleksandr Prokhanov. It is somewhat understandable, as Dugin is, for instance, a more prolific author who takes much care of the reception of his work in other languages. However, in Russia, the role of Zorkin as a public intellectual and authority is not small. Not only does he – since a very long time – occupy a high official position, formally at the top of the Russian legal system. He also is a very active public intellectual, with many publications on a wide range of topics in non-academic media. Moreover, we should not forget the impact Zorkin’s legal commentaries have on his colleagues across Russia, and by colleagues I primarily mean the absolute majority of Russian judges, attorneys and prosecutors who themselves are not public figures but rather serve as elements of the complicated, often self-contradictory mechanism of the Russian legal system.
I will focus on Zorkin’s texts meant for a broad audience rather than on his professional legal commentaries. Thus, I will not write much on the modus operandi of the Russian Constitutional Court. Still, I will make two brief remarks that should help us better understand Zorkin’s position and the development of his views between the 1970s and early 2020s. First, we must keep in mind that the Constitutional Court’s role in Russia does not equal that of similar institutions in Western countries. Formally, it has the means to check legislation to be in conformity with the Constitution. However, he does so only on explicit demand from members of political parties in the Russian Parliament. As there is de facto no political opposition there, the chances of this mechanism to work correctly, let alone be supervised, are non-existent. Second, in contrast to many countries, the Constitutional Court in Russia is not the guardian and guarantor of the Constitution, as this role is assigned to the President, according to Article 80 of the Russian Constitution. This is important, as it is a significant factor not only in the technical modus operandi of the Court but also in the views publicly advocated by Zorkin in recent years.
In his book on Russian Geopolitics, Last War of the World-Island, Alexander Dugin calls Zorkin, together with Prokhanov, fellow members of the revived Eurasianism movement since the early 1990s (Dugin 2015 [2012], 87). His only argument in favour of this retroactive interpretation is that Zorkin was part of the anti-Yeltsin opposition during the constitutional crisis of 1993. Still, I do not think this view does justice to Zorkin – not only because his texts before the mid-2010s are much more coherent in comparison to the ever-eclectic Dugin, but also because his interests of that period are distinctly different from those of Dugin and Prokhanov.
Metaphorically speaking, the broad scope of Zorkin’s early studies and his excellent understanding of the sources he uses makes him appear like Aristotle in comparison to more well-known but utterly unsystematic Dugin. His sources vary from works on theory and history of law to political theory, economy and philosophy. He just as easily quotes from contemporary authors in social sciences as he refers to literature works (be it Pushkin or Kurt Vonnegut). This starkly contrasts a vast majority of Russian officials with their very shallow intellectual pool of relevant sources.
Zorkin begins his career with a Candidate dissertation (1967) on the political thought of the Russian and Soviet diplomat Georgiy Chicherin, whose most well-known accomplishment is the 1922 secret treaty of Rapallo that established economic (and military) cooperation between two politically isolated states – Soviet Russia and Germany, burdened by the heavy weight of the treaty of Versailles. It should be noted here that in Germany at that time, the treaty of Rapallo was mostly welcomed by those who criticized the Weimar Republic, while those who wanted to mitigate the conditions saw the Rapallo treaty as a hindrance on the way to further negotiations with Great Britain and France. Zorkin’s Doctoral dissertation (1978) focuses on a broader topic, that of the positivist theory of law in Russia, which was formed during the second half of the 19th century. (The Russian Wikipedia article on Zorkin states that he also condemns the Stalinist use of positive law, as exemplified by the infamous state prosecutor Andrey Vyshinsky. This statement is misleading, as Zorkin does not study Soviet law practices nor mentions Vyshinsky. His analysis begins with Vassily Katkov and ends with Lev Petrazhitsky.) Zorkin criticizes the attempts by the advocates of legal positivism at de-ideologising law interpretations, as their approach itself was allegedly a product of another ideology, that of the bourgeoisie (pp. 235 ff.). In his dissertation, he explicitly takes the side of the Russian proponents of natural law (B.N. Chicherin, V.S. Solovyev, I.A. Ilyin, P.I. Novgorodtsev, B.A. Kistyakovsky, N.N. Alekseev, I.V. Mikhailovsky) against the supposedly ‘dogmatic’, ‘formal’ and “vulgarly empiric” positive law (pp. 267–268).
During the 1970s and 1980s, Zorkin was a lecturer at the Lomonosov Moscow State University and eventually became a professor of constitutional law and state theory at the Academy of the Soviet Ministry of Internal Affairs. In the late 1980s and early 1990s, he also worked as a law expert for the government. A member of the Communist Party since 1970, he did not leave it until its disbandment in 1991. After being elected by the Parliament (on the proposal of the deputy group ‘Communists for Democracy’) as a member of the Russian Constitutional Court, Zorkin was elected as President of the Court at its first session. However, his successful career had a major setback because of Zorkin’s conflict with Boris Yeltsin during the 1993 constitutional crisis and Zorkin’s dismissal from his position (but not from the position of the Constitutional Court judge). After his second election as President of the Constitutional Court in 2003 (which was by that time a rather unpleasant surprise for the Russian government, as Zorkin still had his rebel reputation), he quickly rose to prominence as a public intellectual.
Zorkin’s academic and non-academic publications between the 1990s and the mid-2010s show a consistent interest in several topics, among them reasons for social and political conflicts, social atomization caused by the general tendency of individualization, and risks of globalisation. These topics remain relevant for the late Zorkin, but there is a significant difference in their interpretation, which I will explain later.
If we look at Zorkin’s commentaries on the Russian Constitution, we gain the impression that he is a decisive enemy of etatist political doctrines, which could be used to explain his conflict with Yeltsin back in 1993. Indeed, in the preface to his commentary (2010, p. 11), Zorkin boldly argues that the Constitutional Court should “protect society against the arbitrariness of the state”, thus preventing the establishment of “the tyranny of bureaucracy”. He adds that society will always be more important than the state, as the latter should serve the society and not the other way round. On the same page, he also claims that the state should be protected against those who “encroach upon it”, specifically against corrupt elites acting against national interests, “arrogant” bureaucrats and “radicals of all types”. This double goal, namely to protect the state from disintegration and the society from state arbitrariness, is, for Zorkin, the foundational principle of the Constitutional Court, as an institution that defends the principles of freedom (p. 12).
Both in his dissertations and in his later publications, Zorkin defends the conservative concept of law that is oriented toward tradition against legal positivism that, according to Zorkin, solely cares for the dogmatic imposition of institutions without concern for their cultural-historical foundations (2010, p. 12). This view, together with Zorkin’s other key interests I just mentioned, shows us that the conservative orientation in his thought was by no means inconsistent, contrary to the claim made by Mikhail Antonov (2017, p. 171) in an otherwise very solid analysis of Zorkin’s middle works.
Both the early and the late Zorkin are concerned with dangers for social structures posed by social and political conflicts on the domestic and international level. The answer provided by the liberal tradition (from Immanuel Kant to Ralf Dahrendorf), namely that social conflicts are necessary for the development of society by achieving a balance between personal interests and the common good, does not satisfy him. Instead, he is more interested in tradition-oriented means of overcoming this problem. His continuous search for means of uniting the society during the crises eventually convinces him in the mid-2010s to accept Putin’s concept of skrepy (‘braces’), connecting it with highly questionable theories, like the one of the necessity of slavery in Russia before the revolution.
From the international perspective, Zorkin always advocated the idea of retaining the Westphalian system (whose foundations are based on natural law). His biggest fear was always that this system would break under the pressure of globalization, creating ‘lawless chaos’ without a working alternative model. Another subject of Zorkin’s concern is the liberal doctrine of human rights, which he considers “groundless” because of its absolutization of personal freedom at the cost of social solidarity. (More on this and Zorkin’s general views of international law see in Antonov 2017, pp. 174–175.)
The picture would not be complete without some liberal elements of Zorkin’s thought, although they do not have as much weight as the conservative ones. A good general example is Zorkin’s rhetoric of modernization and innovation, which he often applies to the law system in Russia and to other areas like economy or healthcare. However, as Zorkin repeatedly specifies from a conservative standpoint, this modernization should not endanger the existing social structures and cultural traditions. Also, despite his consistent criticism of the International Court of Human Rights, Zorkin just as consistently tries to defend human rights and individual freedoms that do not go against the goals of the common good.
As we see, natural law and the criticism of globalization lie at the core of Zorkin’s predominantly conservative views before 2014. In the next step, I will show how and why he abandons these views, switching from legal conservatism to pseudo-conservatism with its legal nihilism.
2. Zorkin’s way to pseudo-conservatism
The gradual changes in Zorkin’s views are characteristic of many intellectuals in Russia with initially conservative views. Their frustration with the present, the strong urge to find an immediate solution instead of carefully planning for a long perspective, and the search for someone or something with enough authority to implement these solutions have induced them to unconditionally accept all actions of the Russian government. The critical points in this part of my presentation are that (1) the changes in Zorkin’s views were radical and essentially anti-conservative, (2) the reasons for these changes were already baked into Zorkin’s early and middle work, and (3) these reasons can be generalized and instrumentalized not only for the analysis of Russian pseudo-conservatism but also for studies of other pseudo-conservative movements in Europe and elsewhere.
The most probable turning point for Zorkin was Russia’s invasion and annexation of Crimea in 2014 and the subsequent support of the separatists in the Donetsk and Luhansk regions. These events deeply divided Russian society and profoundly influenced many areas of the country’s cultural, political, and social life. The legal system did not stand out as an exception, as it had to somehow legitimise the government’s actions. In my subsequent brief overview, I will label Zorkin’s publications from March 2014 onward, after the Constitutional Court’s positive decision concerning the legitimacy of the Treaty on Accession of Crimea to Russia, as those of the late period.
In his earlier works, including his commentaries on the Russian Constitution, Zorkin repeatedly mentions the necessity of a ‘predictable future’. This genuinely conservative concept is based on the idea of a realistic assessment of the present and, based on this assessment, a careful estimation of our future potential and risks we could encounter. To give a specific example related to the contemporary agenda, the concept of a predictable future would encompass a detailed, step-by-step plan of reaching the state of climate neutrality instead of a vague idea that we need to do ‘something’ right now, to quickly and thoroughly reverse the negative ecological tendencies, thus barely avoiding the worldwide catastrophe. After 2014, Zorkin becomes much more interested in historical examples and justifications rather than judgements based on the present situation. In his 2015 article, incited by Elena Lukyanova’s criticism against the decision of the Constitutional Court, he makes a long and messy excursus into European and Russian history, instead of formulating an answer from the perspective of the present international law system and practices – which he essentially dismisses as “legal chicanery” based on this same excursus. In a more recent article on Russia’s 2022 invasion of Ukraine, Zorkin presents his version of Ukraine’s history, which serves as a foundation of his acceptance of the necessity of the war against the ‘collective West’. Another example is Zorkin’s action during a personal meeting with Putin in March 2023, where he presented an old map from the XVIIth century that could allegedly legitimize Russia’s war with Ukraine. These and many other similarly constructed explanations are accompanied by Zorkin’s rhetoric of the worldwide crisis of international politics and law.
Zorkin’s fixation on the past as a source of legitimacy for actions of the present has implications for his understanding of the relations between society and authority. An old topic of his, namely social atomisation caused by globalisation, is given a new spin. While searching for means of attaining social unity and harmony, he stumbles upon and readily accepts the notion of ‘braces’ I mentioned before. One specific example of a social ‘brace’ he digs up from the stock provided by Russia’s history is slavery. “For all the costs of serfdom”, writes Zorkin in an article from September 2014, “it was the main brace holding together the internal unity of the nation.” His point is that the reform of Alexander II severed the link between the two most important social classes, nobles and peasants, ultimately leading to the revolutions of 1905 and 1917. Abandoning the argument on the essentially and undeniably democratic character of the principle of the rule of law, which he repeatedly stressed in his middle works, Zorkin, without much explanation, chooses the ‘master – slave’ relations as an example of a harmonious social structure that could provide an answer to the challenges presented by global crises.
The idea of a global crisis was consistently present in Zorkin’s middle works between the early 1990s and mid-2010s). In his late works, it takes on another role. The scale of his earlier criticism that was equally divided between domestic agenda and problems in international relations explicitly tips in favour of the former, as Zorkin’s picture of Russia’s internal situation becomes more optimistic each year, parallel to the growing frustration with international politics and law. At a certain point, he becomes dependent on sources that were previously of little interest to him but were certainly essential for many Russian officials around Putin – and for Putin himself. For instance, in the previously mentioned newspaper article from 2022, he praises Carl Schmitt as a thinker whose ideas “are becoming more and more relevant” in today’s circumstances.
Mentioning Schmitt serves as a sign of destroying another balance that played a crucial role in Zorkin’s earlier interpretations of the social role of law – the balance between the conservative idea of natural law and the liberal idea of human rights. Contrary to what we might expect, by breaking this balance, Zorkin does not explore other possibilities of a broader implementation of natural law. Instead, he goes down the road laid for him by his opportunistic predecessors before the 1917 Revolution, the one of the shallow bureaucratic conservatism of the late 19th century, as we know it mainly from the writings of Konstantin Pobedonostsev. This kind of dead-end conservatism, born during its crisis in Europe, was brilliantly dismantled by Berdyaev in his 1904 essay The Fate of Russian Conservatism. Of course, even from the background of the Russian Constitution of 1993, this option was always present, given the vast authority of the President, as exemplified in Article 80 I have mentioned before. It was just an easy way out of the conundrum of the conflict between Russia’s autocratic past (as part of its socio-political legacy) and the goals of defending individual rights and freedoms.
Zorkin’s interest in Schmitt has yet another implication for his understanding of law. In his popular book Law Against Chaos (2021), a collection of speeches from 2011 to 2017 held at the International Legal Forum in St. Petersburg, Zorkin pays much attention to the definition of lawlessness. His key example is Germany under Hitler, as the ideology of National Socialism, according to Zorkin, came closest to a state of chaos, an absence of law, morals and humanism (p. 15). If the late Zorkin still advocated this view, it would not make much sense for him to cite Schmitt, one of the most prominent German intellectuals working for National Socialists, without providing a detailed explanation to his readers. Zorkin’s drastic search for new foundations of law leads him to pseudo-conservatism and – by his own definition – into the realm of lawlessness. In this realm, the principle of constructing law practices ‘ex nihilo’, explicitly condemned by Zorkin before 2014, plays a leading role.
These drastic changes, bolstered by Zorkin’s newfound confidence in the President’s absolute authority even in matters concerning law gradually undermine his last conservative bastion of defence – the idea of stability of the Russian Constitution. Even in 2018, in an article entitled Letter and Spirit of the Constitution, Zorkin still insists on the necessity to leave the edition from 1993 as is and to mend its deficiencies by interpretations of the “living Constitution” that help us adapt it to the legal reality of the present. But in March 2020, Zorkin and the Constitutional Court suddenly (albeit not unexpectedly) had no objections to the idea of constitutional amendments. In his 2021 commentary on this decision, Zorkin, contrary to what we might expect from him, provides no lengthy explanation for this decision, limiting himself to the statement that the amendment that, for instance, allowed Putin to remain in power after 2024, “was objectively reasonable” and has given “a new impetus to Russia’s constitutional and legal development”.
In his article on Russia’s invasion of Ukraine and the reasons for conflict with the ‘collective West’, Zorkin claims to preserve a true form of conservatism, a tradition allegedly abandoned by the West. The same claim is made in the Russian Wikipedia article on Zorkin, as he is presented here as a profound connoisseur of this same tradition. One can only look at such statements with a bitter smile. After all, despite his broad intellectual interests, Zorkin never seriously studied Western conservative movements and their origins in the history of law and political thought, as we can conclude from the absence of references to any crucial authors of the English, German, or French conservative tradition. Even more importantly, the explanations and actions he defends here are directly opposite to the principles of mainstream conservatism and the principles he himself advocated in his earlier works.
Contemporary Russia is a haven for corrupt elites acting against national interests, while the democratic foundations of the rule of law are nowhere to be found. “Arrogant” bureaucrats undermine social initiatives and protests, while the government and pro-government media are full of warmongering “radicals of all types”. However, this unfortunate state of affairs is of no concern to Valery Zorkin, as his mind is now occupied with geopolitical matters that, in concert with out-of-context historical examples, serve as a convenient excuse for the decisively chaotic pseudo-conservative tactics of the Russian government and Constitutional Court.
While the case of Zorkin certainly can be instructive per se, it would be much more fruitful to study it from a broader perspective of the impact of Russian pseudo-conservatism on the country’s intellectual circles. Moreover, this case provides interesting material for comparison to other countries, such as Poland (with its own government-made crisis of the Constitutional Court). From a more general perspective, it incites us to think about the relationship between various pseudo-conservative forms of politics and conservative traditions.
References
Antonov, Mikhail. “Philosophy behind human rights: Valery Zorkin vs. the West?”. In: Formalism, Decisionism and Conservatism in Russian Law. Leiden: Brill, 2021. P. 150–187.
Dugin, Alexander. Last War of the World-Island: The Geopolitics of Contemporary Russia. London: Arktos, 2015.
Zorkin, V.D. Vozzreniya B.N. Chicherina na gosudarstvo i pravo [B.N. Chicherin’s Views on State and Law]. Diss. Moscow, 1967.
Zorkin, V.D. Pozitivistskaya teoriya prava v Rossii [Positivist Theory of Law in Russia]. Moscow: Izdatelstvo Moskovskogo Universiteta, 1978.
Zorkin, V.D.; Lazarev L.V. (eds.). Kommentarii k Konstitutsii Rossiiskoi Federatsii [Commentary on the Constitution of Russian Federation]. Moscow: Eksmo, 2010.
Zorkin, V.D. Pravo protiv khaosa [Law against chaos]. 3rd ed. Moscow: Norma, 2023.