8 September 2021
Igor Kochetkov, LGBT rights activist, social and political commentator and historian
Russia’s failure to transition to democracy has been recognised by perhaps all the politicians who tried to lead it. However, do they understand the reason for that failure (and do we)? Is it about choosing the wrong goal (“the goal turned out to be unreachable”) or inadequate means? A little story about “foreign agents” can help answer this big question.
Not just institutions
Five or six years ago, when the number of NGOs on the list of foreign agents had become no laughing matter and their prospects were rather frightening, a powerful idea arose among foreign agents – the need to persuade the state to amend the law on foreign agents.
It was necessary – they said then – to make it legally definite, otherwise it is somehow indefinite. For example, there is no definition of “political activity”. It must be defined!
And then all the fuss arose around this, just like in some fable by Krylov: the leaders of well-known NGOs wrote posts on the website of Ekho Moskvy, the Human Rights Council gathered venerable lawyers, they wrote their “definitions of political activity” and passed them on to the presidential administration, and so on.
The presidential administration noticed the initiative and went to meet it. How could it be otherwise? After all, we live in a democratic country! Under, so to speak, the rule of law! A definition of “political activity” was introduced into the law on NGOs. In it, “political activity” was defined as… pretty much everything that NGOs can do.
The public’s requests for more certainty in the legislation were respected, and the law began to work better than before. That is, in the sense that there were more foreign agents, and they were varied and good.
Since then, NGOs have no longer gone on about changes in the legislation on foreign agents. I thought it was because of the understanding that it is impossible to “correct” an incorrect law. The difference between wrong and law is qualitative, not quantitative, and not stylistic.
Years have passed. The number of media outlets on the list of foreign agents is no laughing matter at all, and their prospects are uncertain. Media executives decided: it is necessary to change the law on foreign agents. They gathered venerable lawyers (really the same ones?), who wrote amendments. The media executives outlined the amendments in a letter to the president and others. Among other things, they propose to the president … to clearly define the concept of “political activity”. We repeat ourselves all the time – and there is clearly something wrong.
The “builders of democracy” in post-Soviet Russia focused on rules and institutions, including “good” laws. Since the ’90s: their favourite mantra has been: “Institutions must be created”. How about changing the point of view?
People in society are united not only by rules (laws) and systems of rules (institutions). Our individual and group behaviour is also not determined only by laws or other explicitly established rules. In addition to rules, we have ideas about good and bad, normal and abnormal, true and false – about everything on the basis of which, among other things, rules are established. But that’s still not everything. The third system that defines society, we will call lifestyles – these are the habits that allow us to survive in our specific environment. These systems are not reducible to each other, not interchangeable. Each of them corresponds to its own form of communication between people – agreements, speech and imitation, respectively.
Rules are incentives and constraints for interaction, deliberately created and modified by people. Whether the Constitution and laws or the rules of the game of hide-and-seek, they have meaning for a certain group of people insofar as its members agree to abide by them.
Ideas are not rules, but truths. They are not negotiated, they are either accepted or not. Those who do not accept them cut social relations and are excluded from further communication. By definition, those who are excluded simply cannot be parties to agreements about rules.
During the State Duma’s discussion of the draft law “on the prohibition of propaganda about homosexuality”, one of the deputies answered journalists’ questions about why lawmakers do not want to listen to the opinions of LGBT activists bluntly, as follows: “But we don’t invite terrorists to discuss anti-terrorism legislation.” The identification of LGBT activists with terrorists in this context was quite appropriate: in the ideological system of the authors and supporters of this law, the speech of LGBT activists looked as meaningless and inarticulate as the speech of terrorists opposing anti-terrorism legislation.
When improving bad laws is harmful
In 2021 leading media figures who had signed the appeal to the president mentioned at the start found themselves in the same position as LGBT activists in 2013 and leaders of NGOs in 2016: they tried to enter into negotiations with the authorities about the rules (the norms of the law), holding views on important questions in the given situation incompatible with those of their partners in the negotiations. The result is expected to be the same as before.
We face a dual inconsistency of ideas. Firstly, about the nature of legislation as such. This is an ancient debate, dating back to Plato and Aristotle.
The authors of the appeal made to the president (and I personally share this view) see a law as an agreement between citizens, reached through their representatives, for the common good, and binding on everyone, including officials and politicians. Citizens obey not politicians, but laws. The president and others like him believe that laws are created by politicians and officials to govern citizens. They are one of their management tools. Since you cannot assign a manager and controller to each of the 140 million Russians, the state gives citizens written instructions. But it would be strange to think that the instructions somehow bind their authors. The latter can change them if it becomes clear that they are not good enough for solving problems, or if the tasks change. Citizens obey politics and officials, and laws are needed insofar as direct communication between them is not always possible.
At the same time, the state, while sticking with its understanding of law, can encourage citizens to make proposals for changes to laws. After all, if citizens do not understand what tasks are being set for them, then the instructions are not good enough, and they need to be improved so that they are clear.
Recently the Kremlin announced that it would consider the proposals of the editors-in-chief. Of course they will! Perhaps they will even approve them. Not only approve, but also clarify. The Kremlin may well agree with the editors-in-chief that “the law is badly written” and rewrite it to make it ‘good’. The only problem is the difference in criteria for ‘bad’ and ‘good’.
Here we turn to the second difference between the views of the ‘independent media’ and Putin. It was articulated clearly by Aleksei Venediktov:
I say: “You see, he [Putin] sees the media as an instrument.” In a normal society, a democratic media is an institution. With a variety of views, a variety of owners, a variety of values, and a variety of sources of support. But here it is an instrument. And if this instrument is directed against him, he will either change the owner, taking it out of their hands. Or break it. That’s how it will go.
For the editors, media outlets are institutions (or regulatory systems), but for “Putin’s collective”, they are a tool. Institutions exist for their own agents. In this case, these are journalists, editors, readers and so on. A “good” institution should balance the conflicting interests and goals of each of these agents. And of course, the tool exists for its user. In our case, this is “Putin’s collective”. A “good” tool should be convenient for the user. An inconvenient tool might be replaced by its user or adapted to their needs. If this happens, the tool’s opinion is irrelevant.
An institution can sustain itself. Its goals and the methods for achieving them (which are the same for all agencies) can be described as such: journalists gather, disseminate and comment on information and ensure its accuracy, editors in chief make decisions about the production and publication of content, the audience decides which content to read (or listen, or watch), and so on.
By contrast, the existence of a tool makes no sense without a proprietor (or a user), even for the tool itself. The proprietor assigns the tool its function and methods for fulfilling this. If the tool functions poorly, it is either faulty (as above), or the owner has poorly defined its function and how it is to fulfil it.
Unfortunately, independent media outlets’ ideas about themselves, and the state’s about them, are fundamentally incompatible – so the letter from editors-in-chief to Putin with the message that “the law is badly written” could lead to unexpected consequences for them. He will interpret “the law is badly written” to mean that “there are gaps in the text of the law not allowing outlets to correctly understand and complete the objectives of state propaganda”.
As a result, the law will be changed so that all media which the authorities consider to be working against them will be registered as “foreign agents”, and the rest will have no reason left to consider themselves independent institutions. Recommendations by editors in chief will be “taken into account” beyond recognition, and writers will have nothing left to say to the stunned public but: “This isn’t what we wanted.”
The events of 2016, with the changes to the legislation on NGOs which the state considers to be its tools, rather than independent institutions, could repeat themselves. This is why we need to be wary of Trojan horses; that is, a presidential administration which is prepared to review public proposals for improving inherently oppressive laws.
However, this doesn’t mean that independent media, NGOs and free citizens as a whole in Russia only have one path left – one from independent institutions to tools of the state. With no opportunities to change the law, they can work on new ideas. As the hero of one old film once said: “The one who stands in our way is the one who helps us.”
When the absurd can be useful
The grassroots campaign by NGOs and the media that goes by the code name ‘Foreign Agent is a mark of quality’ has long been an alternative to efforts to “enhance” legislation. The best human rights defenders, charities, and media outlets really did end up in the Justice Ministry’s registries, and so the people put there do well to use their new status to promote their brands. Activists seeking to repeal or amend the law have said that the “mark of quality” is “clearly not that”, but “a wisecrack”, “bravado and satire”. Yet, the ‘Foreign Agent is a mark of quality’ strategy is effective and likely to succeed precisely because in contrast to that of ‘Repeal (well, at least amend) the law!’, it is satirical and humorous.
The persecution of “foreign agents” is not about rules, but attitudes. In its message to society, the government employs the old Soviet idea that “foreign agents are the enemy”: don’t collaborate with or support these organisations, don’t read or watch their material, because they are foreign agents. The laws on “foreign agents” are necessary if and so long as they convey this message.
When human rights defenders started to be registered as “foreign agents”, some of them took exception: “We’re patriots who work for the good of our country, and we find this label offensive!” They had to prove their patriotism, and to forego overseas funding. This predictably meant that their activity was either reduced to an absolute minimum or rendered completely impossible. Some of them dissolved of their own accord in order to distance themselves from the “stigma”. They had gone down that route having taken the official message as it had been written: “Foreign agents are the enemy, and enemies cannot work here”.
Other organisations, however, were proud of their new status and continued to work with foreign cash. “Human rights are universal,” they said, “and we are proud of the support we get from people around the world. We share common values with them. We are agents of human rights”. There has also been more Russian money around for these proud human rights defenders. Their compatriots have begun to donate to them, both for their current activities and to cover fines for violations of unlawful laws. Instead of turning their back on them, their supporters have mobilised and rallied together. They have grown in number. And all this happened simply because the government’s message was not read as it had been written.
How does it work?
The general principle is simple: if you cannot change the rules, try to change the perceptions on which they are based. First and foremost, inside your own head.
Representations – notions, understandings – are signs. They have a signifier and a signified. Their meaning stems from the connection between the two. The good news, as structuralist linguistics teaches us, is that the relationship between signifier and signified is arbitrary. This means that we can change meanings relatively freely. “A foreign agent is an enemy” can be replaced by “A foreign agent is a sign of quality.”
At that point, the state’s instruction, “Do not cooperate with foreign agents,” loses meaning. At the same time, legislation on foreign agents loses almost all of its repressive power. A history of repression turns into a bureaucratic one, as Aleksandr Cherkasov put it. (Memorial Human Rights Centre was declared a foreign agent on the territory of the Russian Federation as early as in 2014.)
It is not at all hard to do this with the concept of “foreign agents as enemies.” Only 37% of Russians believe that the purpose of the relevant laws is to “limit the influence of the West.” Rather, 40% see the laws as “a means of putting pressure on independent public organizations” (Levada Centre, recognised as a foreign agent on the territory of the Russian Federation).
Is the “mark of quality” amusing? If so, that’s good! The response of foreign agents to the state’s message should be surprising and absurd. That’s how humour works, so in this case that is what you need. But you mustn’t just stop at the “quality mark.” There should be more humour and more absurdity. For example, thousands of citizens and organisations could declare themselves foreign agents and send the Ministry of Justice reports on their “political activities” with screenshots of social media posts over the past year and details about funding received from abroad. There’s no need to worry about your security: if you really did receive something, they will already know all about it.
Something that looks even more promising is the creation of a new social movement—the “Union of Foreign Agents”— by thjose that have already been formally designated as “foreign agents.” It is not necessary to register a legal entity, which would only give the Ministry of Justice the opportunity to refuse. Public associations lacking a legal entity are still legal in our country. So too are “foreign agents.” Such a “Union” could freely disseminate information about the benefits brought by “foreign agents” to society; they could also hold rallies, meetings and demonstrations.
Just imagine what interesting dilemmas the officials would find themselves facing in that event! If, for example, a brand-new NGO with that name should be included in the register of foreign agents? “The Foreign Agent ‘Union of Foreign Agents’” sounds great, I think. They would have to respond to this and other equally absurd questions publicly.
What about additional reporting requirements, fines, lost advertising, and other administrative and economic troubles felt by “foreign agents”? As a former manager of an organisation called a “foreign agent” (the organisation is still safely operating) I am aware of these troubles. At this point we move away from rules and representations, to a third type of social connection: imitation, which forms our way of life. We can emulate practices of aid and solidarity with the unjustly persecuted and encourage others to do the same.
There are already a great number of aid and solidarity practices, including those that support “foreign agents.” These include disseminating information on social media, making one-time and recurring donations, making solidarity efforts, fundraising to enable payment of fines, and more. At the end of the day, even reading and viewing independent media sources on the Internet, if access isn’t blocked (and bypassing blocks if it is), are valuable habits and part of a way of life that no law can ever change.
Good habits that create a new way of life clash with harmful habits from the old way of life from totalitarian times. One harmful habit is denying solidarity. In the old days, solidarity could cost you your life and freedom, so people tried to keep away from those who fell into disgrace. Those who initiated the project to “improve” the laws about “foreign agents” faced this more recently: when they realized that the existing law is bad and threatens everyone, the editors of many leading media outlets refused to go along with the proposals to change it.
“We don’t see corporate solidarity,” complained Aleksei Venediktov.
This is a serious problem, but it’s not a problem of rules. It was not repressive laws that eliminated corporate solidarity. On the contrary, the laws were able to be written in part because there was no habit of solidarity in this corporation. There have been isolated cases, like with Golunov, but the habit has not yet developed as part of a way of life.
Robert Dahl, American political scientist and scholar of democracy, wrote: As with much else, you can be sure that a generation from now the political regime in the country will not differ much from what we have today.
In this light, the hopes of politicians in the 1990s for a transition to democracy, and with it the creation of democratic institutions, were doomed from the start. We can expect now what they should have realistically expected then: changes that increase the freedom and independence of citizens from the state today and increase the chances of democratic institutions emerging tomorrow.
What is happening with the “foreign agents” teaches us humility and consistency. The walls of democratic institutions and laws can stand solid on a foundation of representations and habits. All that remains is for us to break the conceptual connections of the many authoritarian representations in our minds and create many small democratic — and not leaderist — communities within which we shall learn a new way of life.