4 December 2021
by Leonid Nikitinsky is a columnist for Novaya Gazeta, a member of the Presidential Council for Human Rights, and laureate of the Moscow Helsinki Group Award for human rights
Behind the large-scale dismissals at a leading university is the fundamental question of what “law” actually is
The unexpected dismissal by mutual agreement in the middle of the academic year of Professors Sergei Pashin and Gennady Esakov from the HSE (National Research University Higher School of Economics) was the continuation of a story that began in July 2020, when Professor Vadim Vinogradov was appointed acting dean of the HSE Faculty of Law. Prior to that, he headed the Department of Constitutional Law at the Academy of the Ministry of Justice, and to HSE he brought along three deputy deans from that institution.
In accordance with the HSE directive dated 7 March 2019, the position of the dean of the faculty is elective: the candidate is nominated by the rector after consultation with the academic council of the faculty, and the appointment is made by the HSE’s academic council. These procedures have yet to be observed, and Vinogradov remains acting dean. Meanwhile, the majority of the faculty at the time, accustomed to academic freedom, did not accept him as a ‘real’ legal expert. Many of the people I spoke to from among dismissed faculty independently used the ill-defined term ‘real legal expert. But what exactly does the term mean, and what qualities and competencies should a ‘real legal expert’ possess?
To understand what happened at the Law Faculty it is necessary to define what exactly ‘law’ is, and to make this simpler, on this question there are two extreme positions.
According to one, the law is based on the natural and inalienable rights of the individual and protects them from the unnecessary interference of the state in their lives. This doctrine is comparatively recent, only three hundred years old, but today it reigns supreme. Much older is the voluntary view of law as an instrument of the sovereign. Marx merely redefined law in terms of the interests of the ‘ruling class’, and yet, since ancient times, all ‘rulers’ have understood the law in this way.
The duality of ‘law’ in today’s Russia is due to the fact that the doctrine of human rights is declared at the level of the Constitution and the general parts of the codes, but at the level of current changes in laws that are continuously churned out by the State Duma, and in law enforcement practice, the voluntaristic understanding of the law as a tool (for the class of ‘siloviki’ or security officials) dominates. But along with the law, there is an equally ancient concept of fairness – in Latin it is one and the same word with ‘ the justice system’. While defending the interests of security officials, judges claim the highest fairness for their rulings – which clearly do not correspond to the spirit or principles of the law – by references to formal adherence to the letter of the law.
This cunning position is called in legal science (which is more a form of scholarship) is called normativism. All professors who have been dismissed or resigned from the Faculty of Law over the past year and a half (and there are dozens of them) adhere to the doctrine of human rights and the ‘spirit of the law’. Vinogradov came to the faculty as part of the project to reorganize it, one of the goals of which was to ‘bring teaching closer to practice’. That is to say, to eliminate the gap between the great theories of ‘real legal experts’ and law enforcement – two things that are very far removed from each other – that future graduates will soon have to plunge into.
As for the theory, the firing of professors, many of whom had been named professor of the year time after time by students, probably dealt it an irreparable blow. Let’s take a look at how much this has brought future lawyers closer to practice.
The first round of layoffs in August-September 2020 came in the Department of Constitutional Law: the administration did not renew term contracts with Elena Lukyanova, Irina Alebastrova, Elena Glushko, and others, and Mikhail Krasnov, who had previously been head of the department, was promoted to research professor, that is, removed from teaching. All of them had spoken out against the amendments to the Constitution in the spring and summer of 2020. The criticism was on various grounds, but all emphasized in conversations with me that this was their professional, not political, position.
In the wake of the constitutionalists, six professors and teachers from the Department of Tax, Customs, and Financial Law, four from the Department of Theory and History of Law and Comparative Law, and two from the Department of Civil and Business Law were fired or resigned from the HSE.
And the hardest blow to the “practice” of law was dealt after the end of the 2020-21 academic year – the self-liquidation of the Department of Practical Jurisprudence. This was the brainchild of faculty alumnus Sergei Saveliev, who, having achieved success as a practicing lawyer but cheering on his alma mater, attracted dozens of other highly successful lawyers to teach short courses on legal practice. Some of them worked full- or half-time, but most worked pro bono – an hourly rate was of no interest to them. These practical courses became the department’s brand; competition among students, including those paying for their own studies, was high at 5-6 students for each place on the course.
Teachers of the unique and, alas, no longer existing department with names well known in the legal world, agreed to answer my questions, but most asked me not to name them. There are still their masters students at the faculty, for whom the dean’s office can arrange all sorts of trouble. This view of the dean’s office speaks for itself, but in conversations, too, these legal experts pointed to the stifling, suspicious atmosphere that has emerged in the department since the mass layoffs of the best members in 2020. Moreover, many of the faculty members who left the HSE have set out their motives on social media.
Students in the faculty are also concerned about what’s going on, and fee-paying students are preparing to defend their rights, although they’re unlikely to succeed in the current system.
Essentially, they bought tickets to see one film and they’re being forced to watch a different one that they don’t like.
Well, this is closer to practice; they’ll have to get used to it.
When I asked for a face-to-face meeting, the dean of the faculty, Vinogradov (until elections are held, he remains acting dean), advised me to put some questions in writing and send them to him through the HSE’s press service, explaining that “that is the established procedure”. I consider this to be the very normativism that he is using to cover his departure from the principle of law known as “good will”.
Our questions aren’t the kind that can be discussed in an exchange of letters. The problems of legal education, which largely determines how a state’s judicial and law enforcement system functions, are inherently public in nature and need to be debated as part of discussions between proponents of the human rights doctrine and “normativism”. Meetings like these were held in the late 1990s, in particular as part of the Moscow Lawyers’ Club. But today, the ruling class of security officials, including deputies, judges and representatives of their kind of “scholarship”, don’t need such discussions.
Sergei Pashin and Gennady Esakov made a commitment to the rector, who negotiated their dismissals “by agreement of the parties”, not to discuss their dismissals in public – probably because of their students, who have not yet graduated from the faculty. At a faculty meeting of the Department of Judicial Systems and Criminal Law last week, Tamara Georgievna Morshchakova managed to raise the issue under “Miscellaneous” and passed a resolution that refers to the dismissals as “unprecedented and outrageous”.
The statement, which was supported by everyone who attended the Zoom meeting, says: “Recognition of academic freedom and the democratic principles of university self-government is precluded by arbitrary, behind-the-scenes decisions that affect the rights of the whole faculty, the students of the university, and, what’s more, the content of its claimed educational standards.” Again, that’s a “beautiful theory”, but there are very few like Morshchakova left in the faculty.
In a country without the rule of law, where’s the need for law professors?