Liberty in Russia is not for grabs

"Promoter and one of the most outstanding followers of libertarian theory of law, talented tutor willing to combine implementation of dialectical method, sense and emotion in teaching", Wikipedia, the web based encyclopedia project, highlights Vladimir Chetvernin`s features.  

Interviewed by the HSE, professor Chetvernin speaks on libertarian law theory, the Law and State Theoretical Studies Lab research methods and the prospects for theoretical development.

— How long have you been employed at HSE?

— I was invited to join HSE's activities in 2005 and have been officially employed since 2006, with the Law and State Theoretical Studies Lab being formed in 2007.

— Is the Law and State Theoretical Studies Lab equivalent to other HSE units such as the Economic Sociology Studies Lab and the Economic Reforms Institutional Analysis Lab?

— Not at all. Probably, it is scientific unit established "for Vladimir Chetvernin's purposes".  When my employment at the HSE was discussed the HSE rector searched for more "smarty-pants" like me to open new chair. As he asserted the research - lab could be relevant starting point to make students real researchers and grow up scientific clutch. To fulfill this particular sense to the "children" or students is necessary.  That means to "potter about children".  Yet the lab has not obtained educational unit status. But I hope it will be a research and educational unit soon.

— You are said to be an outstanding follower of libertarian theory of law. Who is the author of these paragraphs about you in Wikipedia?

— I don't know, but it's well written.

— But it would be better to talk about the theory itself. There is a "libertarism" as a distinct branch in philosophy. Frankly speaking, it is one of the two paths of thought in the history of humanities and social culture.

— Why only one of the paths? Liberty and authority are two origins or principles in social culture. There are only two paths for humans: to be free and equal among equals or to have one group prevail over another. Culture originating from the first principle is a "law originating" type of culture that is called "libertarism" in theory. Another type of culture and its theory is called "potesterian (power, force) type". Within "potesterian paradigm" all social events are explained through power and superiority phenomena. The libertarian theory of law defines law (and state as legal institution) as inalienable liberty personification.

— Who are typical "libertartarism" followers among researches?

— There are many advocates starting with Aristotle and then continuing with Locke, Adam Smith, Immanuel Kant, Wilhelm Humboldt, James Madison, Alexis Tocqueville, Herbert Spencer, Benjamin Constant, Frederic Bastiat. Ludwig von Mises and Friedrich von Hayek are mentioned as neo-libertarism supporters.

Vladik Nersesiantc, the RAS academic and my scientific supervisor, must be mentioned here. He died three years ago. Recently, we celebrated the 70th of his birth. In Soviet and post Soviet science he is the only person to be elected to the RAS not for administrative achievements. I was terribly shocked by his death. And my personal aim is to save and develop the libertarian school of law that he established.

— Are you outstanding researcher also?

"In science some people run headfirst into a brick wall but others spend centuries checking for splinters", as the academic Sretenski said in the soviet film "Monolog" (Monologue) produced by Gabrilovich. V.Nersesiantc runs head against a brick - wall, but, as to me, I - check for splinters. But I am successful here.

— Who are your supporters out of the lab and the HSE? Are they lawyers, economists, sociologists?

— "Libertarism" as a common social and scientific branch is well supported among economists. As commonly adopted notions of law among Russians demonstrate, lawyers don't widely support it. The theory that I teach at the HSE contradicts with theoreticians or so called theory tutors' outlooks commonly adopted in. Is the difference between theoreticians and theory tutors clear enough?

— In general only.  

There can't be many real theoreticians in science. Lev Landau, for example, was one of them. As a high-level theoretician he was admitted to explain some newly discovered phenomenon by some research institute. It took him about two months to find the theoretical explanation. But physics is a science that avoids many theories. But in the judiciary, the scientific can be substituted with disguised ideology. 

— Is it your personal point of view?

— Not at all. The State and Law theory teaching is an exclusively Soviet practice that is not widespread the World. It is a chapter from so called "historical materialism". During 30s and post - War period all faculties of law were obliged to teach it, faculties where useless subjects were taught, according to the title of Dombrovsky`s novel.

— But what is the name of the lab under your chairmanship? There is something similar in the title, I suppose.  And is there the difference in the sequence of words; "law" first and "state" second.

— In reality it is quite a different thing. As for the sequence of words, if we study the state from the judiciary point of view, it can be considered as a juridical state only. In other cases there is no reason to study something. Among "potesterian paradigm" supporters the state is considered as leading social force but the "law" is seen as leverage for supremacy.

Before 1917 so called "elders", representatives of the positivist "potesterian theory", explained that the state is not a judiciary phenomenon only but also a phenomenon of state power. After 1917 "potesterian theory" was canonized and disguised by Marxist notions. In such variety it is taught at the Universities, with Soviet state being dispersed.

— Why?

— In 90s it became clear enough that all will return to its original pattern and the former soviet chiefs will return and say "we are the personification of the state, the legal system is built up with our orders by which we make the population happy".

— But does libertarism develop in the West? Do you have any opportunities there?  

— It is the region where it is greatly supported by the activities of the European Court of Human Rights.  Some attempts must be mentioned but not in the US only. It is Italy where libertarism supporters are traditionally powerful. I've got some connections there.

But there are no common links between "libertarism" notions and Russian day-to -day practice. And this is the reason for my unstable personal position.  In 1990 I left Russia for Germany with the sponsorship of the Humboldt Foundation. Originally, I planned not to come back. But in 1991 when crucial events happened My German colleagues` warning was: "If thinkers like you don't come back, there will be the system that you are afraid of in Russia". It was a reason to return.

— Is your lab a stronghold for libertarism in Russia and at the HSE?

—It is not a stronghold, but a harbour. I took my own path thank to the HSE and I am very grateful to the HSE.

— And how many people wished for such harbour?

— Many people. But they joined the lab activities in many different ways. Natalia Varlamova, the RAS State and Law Institute fellow, the Peoples' Friendship University tutor, is my main collaborator. She doesn't want to be employed at the HSE because she wishes to be free without any bureaucratic restrictions. Some years ago she visited the HSE University. She talked with the local bureaucracy and she abandoned the idea of joining the staff.

— But is there no bureaucracy at the Peoples' Friendship University?

— She is a part-time employee at the Peoples' Friendship University. Officially she works at the RAS State and Law institute with its lack of finance and unrestricted freedom for professional activities.   But N. Varlamova doesn't search for riches and certainly not through the HSE. (Nevertheless we are going to pay her to publish her essays).

The scientific community exists without any structural forms. Nevertheless the lab is a structural body to unite followers of the liberal theory of law discovered by V. Nersesiants.

— Here there is an obvious contradiction. The Community exists without a structural body but the lab itself is a structural body.

— There were many doubts concerning the new lab. All these structural bodies are boring for me because of necessity of reporting back on the activities. I am tired of being afraid.

As it became clear, postgraduates and students are interested in the lab's activities. And it is clear that it is possible to gather research groups to discuss dissertations and use the lab as an educational centre for students from other universities. It is worth trying.

— But what are the main fields for the lab activities?

— Firstly, research activities must be mentioned. Our scientific projects are greatly enhanced by the efforts of my colleague's, including postgraduate students.

The annual "Recitations on Philosophy of Law in honour of V. Nersesiants" conference is second. Within the conference annual achievements and "libertarian theory" prospects and positions in Russian science are discussed.

But don't be confused with the "Recitations on Philosophy of Law in honour of Nersesiants" at the RAS State and Law institute. V. Nersesiants was the head of the History of Law department there. After that, he presided over the Theory and History of law department. Some of my postgraduates are studying at the research institute. One of them has passed through the viva process by absolute majority of ballots: 13 voted for with 2 against. The Dissertations Commission on judiciary has been established at the HSE for three years.

The third direction is an annual publication on liberal legal thoughts. It aims to demonstrate judicial libertarism as a living branch. In 2007 the first 25 pages volume was published. This year it will be more extensive. Libertarism supporters and people willing to speak out and criticize it in positive way are published. But "mention mistakes and don't criticize everything" is our guideline.

The forth direction is educational activity, meaning working with students. Every week the laboratory holds a seminar "Judiciary libertarianism: theory and practice". It is attended by students of all faculties: Law, Economics, Sociology, State and Municipal Government, It is quite likely that students from the faculty of philosophy will also come. They are not "spoiled" by the judiciary education and I here I can start with the "blank page". There are also other universities (for example the MSU) students. 40 people take part in the seminar, each with personal interests, so the work is really lively.

The fifth direction is scientific and educational interaction through the Lab's website. Here, long debates take place and articles that were not published in the "Annual" can be read.

— Are there any permanent staff researchers in the lab?

— There are two staff members, besides me: Andrey Prohorov, a post-graduate student, Candidate of Science in the theory of law with historical background, and Valeria Morosova, the fourth - year student and a very talented researcher. She is the manager of the lab and has to work with the papers circulating between the teaching office and the central administration on Myasnitskaya Street.

— Why you don't you reserve positions for the junior research fellows?

— There is no need in such positions. It is useless to employ researchers with only formal functions. Real scientists do not need anything like that. If the lab has to hire someone it has money to pay for the contract.

— What are requirements for the HSE student to be admitted to your lab activity?

— First of all, it is necessary to study under my guidance, obtain starting level of knowledge and then become a part of the scientific school. After that I'll see.

At the Faculty of Law I teach with the "Theory of Law Issues" for the fifth year stage students. It seems that the final year students do not need theory. Especially, if we take into consideration that all of them are already employed. They may need it only to prepare for the State Examination. But they all attended lectures and showed such high interest for the libertarian theory that last year I prolonged the course from 24 to 40 lectures. Students from other fields attend our lab's seminars and join my post-graduate programme in the theory of law and comparative judiciary. This year was "productive" - we had enrolment competition for the post-graduate programme. Some of them chose me as academic advisor (among them other universities graduates). I took only three and now I consider them to be the best postgraduates I have ever supervised.

— So only the final - year students have access to your science?

— No, the juniors also come. I have an elective course in theory for second year students. I hold a club for them. Also I teach a special course in philosophy of law for the fourth year students. And it is last but not the least: I read the Philosophy of Law course for the Philosophy faculty students and several sociology faculty students also come there.

— What is the essence of the lab's activities? What is the essence of libertarian judiciary research?

— We are searching to expound judiciary as a science of liberty - such account is demanded by all people adherent to freedom as value. We have to reveal the logic of law as a necessary form of freedom, to show that this logic doesn't coincide with administrative notions, that law and its administration account of law are not the same things and that contemporary Russia with its "semi legal" culture isn't moving forward to a developed legal culture with an emphasis on human rights. Russia is between East and West and the principle of force and the principle of law are traditionally competing here, with the first dominating traditionally.

— So the starting point for conclusions is "Liberal West, Potestarian East"?

— This comes from "East and "West" definitions. Mentioning two types of culture I mean typological constructions or ideal types. In real cultures one of the principles dominates and this makes it possible to relate it to one of the ideal types. But any civilized nation together with the dominating subculture has the opposite subculture's features.

The Law is adopted as a guideline to behavior by all free people. Society may be called "free" if all people are equally free. But if the freedom level varies, it means one is free, another is not. This was the case with the feudal West.

— "Equal among equal...but some are more equal", Orwell wrote.

— He wrote this about a totalitarian society forcing people to be equal without liberty. But equality can exist only within freedom, anything else is mere fantasy

— Do you think liberty is to be somehow limited?

— The Russian thinker G. Belinsky says that for Russians liberty means freedom. But freedom means mischief: the human "breaks the chain" and does anything he likes. Such a notion of liberty can be only called lawlessness. Liberty must exist within some frames and be based on commonly adopted rules.

— Is your theory relevant for practice? Today we speak a lot about the connection between education and practice, about credentials and competency that should be obtained at the university and then used at work. Is it you case?

— Theory can only interpret practice. But we are speaking about social theory, not physics. A physicist with the deep knowledge of theoretical issues may assert that under concrete circumstances concrete phenomenon   can be only in a particular way. But the reality studied by social scientists is created by people who have their ideas, interests, and values. In social reality it can be different, depending on prevailing interests. If most of the resources in the society are appropriated and most of people possess the resources making it possible for them to define their social behavior, liberty in equality and equality in liberty becomes normal for this society. Libertarian theory is appropriate for it. But if most of the people do not possess any resources and depend on public and administrative distribution, society does not adopt the libertarian theory.

Such society brings to mind the paradigm of force when the most important value is neither liberty nor equality but the path to power. My duty is to plant in the student's mind the paradigm of law making it clear that "the society of natural resources" rejecting the legal liberty today may probably offer the HSE graduate a relatively good position but it is historically condemned to failure and tomorrow everything may change for the worse (this prediction is based on Simom Kordonsly`s theory).

I am willing to form a special scientific style, a libertarian judiciary thinking method and then use it to analyze laws. For example, a post-graduate student under my academic guidance is writing an essay on Russian anti-monopoly legislative regulation to reveal (not only in Russia) it as an anti-market measure.

— Are such positions hard to defend?

— It is hard but possible providing you follow many formalities. The Russian scientific community has always been in opposition and ready to protest.

— Can you identify some research - projects your students and post-graduates are involved in?

— These might be projects not only in the legal field but also in sociology and philosophy. But they could be taken into action by paradigm that greatly differs from commonly adopted one. For example, a student is conducting a poll at the HSE to reveal what HSE students think about such phrases as "liberty is the most important value", and whether they think that human rights are violated in Russia. It is interesting to see where libertarian values come in the HSE community's system of values.

If to speak on the judiciary field we are interested in the judiciary sources of law. The court in Russia and in the world - can they be recognized as the source of law? Or let's take the problem of federalism. This word has many meanings. We want to show that in spite of the fact that federalism is a form of state but it also can be understood as division of powers that does not exist in Russia.

— And does your department cooperate with other faculty of law departments? Or is this an isolated "liberty island"?

— Of course, it does. We are willing to maintain contacts with all Faculty of Law departments at the HSE. Today we have strong contacts with the Departments of Constitutional and Administrative law, Criminal Law and Entrepreneurial Law. We will conduct the project on federalism in cooperation with the Department of Constitutional and Administrative Law. We have the methodology and the departments possess a huge amount of empirical material. We would like to cooperate with sociologists: those working "in the field" and gathering the material.

— Are there any long-term prospects for libertarian theory development in Russia?

— Not yet. People will become interested in libertarian theory when the Putin system becomes unsteady and when the repressions start. Today it is peace and quite. Oil prices are high and everybody is content with oil revenues. People aren't interested in rebelling. The system is relatively smooth.

— Smooth?

— We could not speak like that 20 years ago. Nobody abolished the law punishing for anti-soviet propaganda in 1988.

— You are very popular among students. Why?

— I am popular in comparison with those teaching within the "potestarian" paradigm because there is nothing to teach in it. Here all theoretical judiciary can be explained by phrase "If I am the boss, you are a fool, if you are the boss, I am a fool"

— Can a graduate become rich through your theory? The former Dean of the Faculty of Law, Vladimir Sivitsky, once told me that a faculty graduate knows a trade. Does your theory correspond with the trade of a lawyer?

— To be a lawyer but not a footman, libertarian theory is needed. But it is not for contemporary Russia. The other think is that I clear students' heads. If I was able to clear a head of one student a year, at least, I would say I hadn't spent curricula for nothing.  But I thank God for my ability to clear heads of more students.

— Do you intend to form a critical outlook?

— Liberty is not cheap thing for Russia. When a man grows up thinking that liberty is bad, that if you submit to the boss, you'll be in favour and if not you'll be punished, one may think there is no other way in life. The libertarian theory opens new could not even imagine. So they begin to think and even behave differently. Sooner or later someone will say "No" the bosses.

— And how will he provide for high living?

— These are problems for him to solve. But these are problems of the free man. Liberty comes naked, as Velimir Khlebnikov says. But if there are no such men it is necessary to leave the country. I hope there will be more and more free people, in spite of unfavorable reality.

 

Boris Startsev, the HSE News Service