Leonid Nikitinsky: The ethics of barbarism and the law

15 May 2024

by Leonid NIkitinsky

Source: Novaya gazeta

To justify the monstrosity of repression, the procedural status of ‘defendant’ is replaced by the figure of an ‘enemy,’ defined in terms of a system of ethics

We usually perceive the word ‘ethics’ with a plus sign. But this is a philistine, layman’s approach. Group ethics that have usually developed over centuries take different forms. They can be compared with each other, but from the academic point of view it is incorrect to say that one is better than another. I shall try to discuss this matter of ethics as respectfully and neutrally as possible. I shall only be considering the compatibility of ethics with the principles of equality and law. Those that are poorly compatible are called barbaric – and here it is not an evaluation, but a scientific (historical) definition.

Justice does not have a woman’s face

  • Rostov regional court rejected an appeal against the verdict in the case of 72-year-old pensioner Evgeniya Maiboroda, prosecuted on charges of military ‘fake news’. ‘I am an old person, with a lot of health issues. I can’t live for long without medication. It is very difficult for me here, due to my age. I just ask the court to be merciful,’ Evgeniya Maiboroda is quoted as saying by Mediazona, a media outlet designated a ‘foreign agent’ in the Russian Federation and blocked. The appeal court left her sentence unchanged – five and a half  years in prison.
  • Liliya Chanysheva from Ufa, charged with creating an extremist community (one of Navalny’s banned headquarters), in her last speech at her trial spoke of a woman’s understandable desire to give birth. She is 42 years old, and she would have had time, if the court had given her at least three years’ imprisonment. However, the court handed her 7.5 years, and when the prosecutor’s office appealed the sentence ‘for being lenient’ the Supreme Court of Bashkortostan added two more.
  • Evgeniya Berkovich recalled her adopted daughters at every day of the hearings on prolongation of her pre-trial detention, but this made no impression on the judges of the Basmanny district and Moscow City Courts, who handed down and upheld the decisions.
  • – Sasha Skochilenko, who suffers from illnesses that make her incarceration unbearable, was given seven years in prison.
  • Nadezhda Buyanova, a paediatrician who allegedly told a patient’s mother that his father, who was killed in the Special Military Operation, was a legitimate target for the Ukrainian military, has recently been remanded in custody. The conversation was a private matter between two people, and even if the offended mother accurately conveyed the doctor’s words, what is the evidence of a crime here? Buyanova is 67 years old.

According to the OVD-Info website (also designated a ‘foreign agent’ and blocked in Russia), every third of the approximately 150 charges under Article 207.3, Part 2 of the Criminal Code (‘fake news’ with aggravating circumstances, for which the standard punishment is 5-7 years’ imprisonment) is brought against women.

Most judges are also women. Ten years ago, two-thirds of the judiciary were women. The Russian Supreme Court broke off contacts that allowed independent  sociologists to conduct such research, but the trend was already evident at the time: most of the judicial vacancies were filled by former clerks of court sessions and judges’ assistants.

These former court clerks and assistants, invariably young women, having served their time by working from seven to 10 years’ gruelling labour for meagre salaries, are now dressed in the coveted, albeit ridiculous, judges’ robes and have can count on receiving the recently increased ‘lifetime allowance’, which includes the years they served ‘in the galleys’, what kind of mercy can prisoners – seeing them face to face – expect from them?

Of course, there are those who cannot stand the cruelty and hypocrisy of the system, but the system rejects them early in their careers. Probably, outside the courts, most of the remaining former ‘clerks’ and ‘assistants’ are caring mothers and wives – roles in which they profess the ethics that we usually perceive with a positive connotation. But in courtrooms, their ethics are different.

Such inhumanity, which has become the norm today in courts in cases involving anti-war statements, was not to be seen in the late USSR. And even in the most terrible Stalinist times, humanity could make a rare appearance between the teeth of the repressive meat grinder. How did they manage to ‘exclude ‘ humanity so completely?

Mercy, which in Christian tradition is linked to the figures of the Myrrh-bearing Women, is not a legal but an ethical principle. But some versions of ethics allow leniency in sentencing, while others on the contrary exclude it – on the grounds that their superiors may not understand, and a humane sentence will still be overturned.

Ethics is a tricky thing, unlike law it can be tried on and selected, like in a shop: you can have one to wear to work and another, say, for going to the theatre.

In place of positivism

In past years, judges, whose group ethic always seemed to me to be more important than the formal legality of their decisions, would speak quite openly with me. This changed about 10 years ago when membership of the judicial community had been renewed and turned inwards on itself. At that time the justifications they used for less severe, or not so obviously unjust verdicts, was based on the theory known as legal positivism (legalism). Leaving ‘nuance’ out of the equation, this was effectively the selective enforcement of laws. Judges invoked the ancient ‘Dura lex sed lex’ – the law is harsh, but it is the law.

This argument, in some measure, still works now, but the formula is closer to ‘in for a penny, in for a pound.’ Any lawyer understands that in reality the laws on ‘fake news’ introduced in connection with the start of the Special Military Operation are incompatible with the Constitution (and, for example, the play by Berkovich and Petriichuk contains no justification of terrorism). And a lawyer who has studied well will ask themself why such laws must be applied, and not the Constitution as a law with direct application (which it does).

Legalism proves to be too weak a pill, but the ‘former clerks and assistants’ must somehow keep things in accordance with their conscience.  And the State Duma comes to their rescue right out of the gate. But its help to judges and other legal professionals is expressed, first and foremost, not through laws – these are technical details – but in the speeches of deputies transmitted on television (more rarely, but significantly, the same motifs are heard in speeches by the president and the patriarch). 

The rhetoric of these stunts closely approximates the speeches of the prosecutor Vyshinsky during the trials of the 1930s: all who advocate peace are ‘traitors’ and ‘enemies.’

It is unimportant that these speeches are not heard in court (though responses are heard in the statements of prosecutors). This is state discourse, in which violence by some against others is not only recognized as ‘lawful,’ but also, more importantly, supported ethically. In just this way law is supplanted by ethics, and the ‘former clerks and assistants’ have nothing left to do but make a fair contribution to the ‘discourse’ in the form of legally dubious but ethically supported verdicts.

The grounds for application of extreme measures of state violence recall the Bolshevik terror. The Bolsheviks also demanded that the judges they appointed (usually without legal training) be guided by a ‘revolutionary sense of justice.’ And what is ethical is that which is in keeping with the interests of the proletariat, V. I. Lenin taught. Put ‘Russian people’ in the place of ‘proletariat,’ and you will hear the voice of current leaders.

Ethical systems, being group-oriented and often aggressive, invariably pretend to universality, looking upon those who do not share ‘our’ principles as subhuman. One must first dehumanize the victim, and then the executioner dehumanizes themself. Subhumans are subject to unforgiving reeducation, and in cases where they are not responsive – annihilation. ‘He who is not with us is against us’ – this Bolshevik slogan is erroneously derived from the Gospels, but there the sense it quite different: ‘He that gathereth not with me scattereth abroad.’ The divide between the ethics of the Old and New Testaments lies precisely between ‘we’ and ‘I’.

In some respects, ethics are a more subtle instrument than the law, but, in contrast to the law, ethical systems have have not formulated such principles as presumption of innocence, proportionality of punishment, forms of guilt and individual responsibility, strict definition of procedural requirements, lack of retroactivity, and the the rule against double jeopardy – and many others. In contrast to the law, ethics do not know what a guarantee is. The main thing that distinguishes the law from real-world ethics is the principle of equality.

A history of barbarism

Ethics primarily develop naturally, as they always have, over the course of many years of human interaction. Communications among the general population is organized as politics. As a community solves its vital issues, institutions of power emerge that monopolize political functions and seek to impose certain ethical systems, including religions, on the community. Historians use precedents to prove that traditions too are often ‘invented’ to meet authorities’ needs, but the greatest human invention of all has certainly been the law.

Law is based on the idea of equality, which is, generally speaking, unnatural and does not emerge from the natural order of things. Hierarchy and the subordination of the weak to the strong are natural in the animal world. The theory that became known as ‘Social Darwinism’ at the end of the 19th century is based on the animal nature in man (a theory practiced widely before the 19th century as well, just without a name, among others by those who considered themselves Christians.)

The idea of equality is a purely legal one. A populist can only promise actual equality in the language of a homogeneous group’s ethics, in which the stronger will in fact always subjugate the weaker.

Equality was most likely originally formalized through the institution of citizenship in the Roman Empire, which was also granted to the inhabitants of the annexed provinces and was independent of ethnic, linguistic, and religious affiliation. But Rome fell in the fifth century under the pressure of barbarian tribes, each of which knew only its own system of ethics. It took the onetime barbarians another thousand years to grow the ideas of equality and liberty to maturity again. The result of this is called (European) civilization.

We began by explaining that the word ‘ethics’ by no means necessarily carries a positive connotation. We also showed that arguing for the superiority of one set of ethics over another is, at the very least, unethical. Let’s try to take the same approach with the word ‘civilization.’ Whether civilisation is a good thing is a contentious point. Rousseau thought otherwise, and many philosophers and artists have celebrated barbarism. Here we’ll also attempt to not be unequivocal in writing it off. These are simply the traditional terms: ‘barbarism’ means a rejection of the inventions of ‘civilization,’ nothing more. You can reject law in the same way you could reject — theoretically — the use of the wheel. And that happened in the 20th century. The question is whether we should repeat this experiment.

The idea of ​​equality found its way into Russia in the 19th century. In 1917, however, internal barbarians ridiculed it and stamped it out in the name of an enforced levelling. Realizing the danger of ‘revolutionary law and order,’ the top Communists who were lucky enough to remain unscathed after Stalin’s death set course for the law. There developed a very strong legal school in the late years of the USSR, and the ideas of equality and the law were the central motives of perestroika. Under Gorbachev, laws were passed in the USSR that established the framework for the rule of law — there really was hope, but it was short-lived.

The changeover to civilization was blocked by the ‘war of laws’ deployed by the elites of what were at the time formally still Soviet republics, primarily the Russian and Ukrainian Republics. They simply declared that the laws of the USSR were null and void. The law lost its status as sacred, and the best lawyers soon emerged as raiders who would use laws as cudgels and means to pick locks. A struggle for power and the Soviet legacy unfolded, one that was naturally barbaric, in which the strongest would win. This struggle returned the peoples of the USSR from what was at least some kind of legal equality to an era of ethical division between ‘us’ and ‘them.’ This was what the philosopher Fedor Stepun, who was exiled by the Bolsheviks, called the returning waves of the barbaric ‘steppe,’ a phenomenon which has determined the history of Russia.

Stepun’s waves swept across Europe as well. National and group-based ethics continue to exist, often in one and the same sovereign (legally speaking) territory. Although in 1950 the recognition of the law’s primacy over ethics by the signatory states of the Convention for the Protection of Human Rights and Fundamental Freedoms seemed like the defining safeguard for European civilization, that wasn’t the case. 

However, the waves of barbarism are receding in European countries. It has not proved possible to destroy the legal structures that have been growing stronger century after century. Meanwhile in Russia, every time they emerge they have completely destroyed the legal institutions that have not yet had time to take root.

This is the only difference between us and the Europeans, of which the ‘patriots’ now urge us to be proud. 

The Utopia of Universal Ethics

Is an all-embarcing, universalist ethics possible, that ‘maxim that could be a universal law’ of which Kant spoke? Such an ethics was practiced by Jesus in his encounters with Samaritans and tax collectors, unthinkable from the point of view of the Jews and which the Apostle Paul preached. Marx (and Gorbachev, in which we see his great naiveté) based their views on a universalist ethics. And Jesus, perhaps, understood the utopianism of such a project, and therefore He did not promise peace or happiness in this earthly life to anyone (the Beatitudes: ‘Rejoice, and be exceeding glad: for great is your reward in heaven’).

What is imposed on us under the guise of ‘Orthodoxy’ by the state-sponsored Russian Orthodox Church has nothing to do with the Good News of the Gospe. It is a militant ethics of ‘us’ set against ‘them’, from which the principle of equality is excluded and freedom, and with it, as a consequence, individual responsibility, is thoroughly obliterated. Not Christ, ‘crucified for us under Pontius Pilate,’ but the triumphant Leviathan now claims to take on itself the collective sins of ‘the people,’ but I would not trust it, speaking in terms of eternal life, with my soul.

Faith cannot ever be imposed, and Jesus never did that, and earthly life is best built on rational grounds.

According to Max Weber, rational legitimacy is synonymous with legal legitimacy, in contrast to the so-called charismatic legitimacy, the remains of which underlies the current Russian regime. This residue requires constant support through the irrational the division into ‘us’ and ‘them’.

Not every form of ethics leaves room for the law, but within the framework of law, a more or less peaceful coexistence of different ethical systems is possible. This construction is called multiculturalism or an open society. The inventor of this concept, Karl Popper, pointed out that originally human communities lived in isolation, with each adhering to their own ethical systems. But when history mixed up these communities, people managed, without giving up their own identity, to agree on mutual respect for different values and taboos on a rational level. In essence, this is the invention – or yet another reinvention – of law.

The philosophers of Dugin’s ‘community’, saluting the Special Military Operation, celebrate ‘Russia’s liberation from three hundred years of Western captivity’ (counting, apparently, from Peter the Great). ‘Captivity’ is too strong a word, but yes, the ideas of equality and the law have, occasionally, not to say triumphed here, but during periods of friendship with ‘Europe’ Russia has tried to conform to them in certain ways. It is time, Dugin and his followers believe, to finally throw off the shackles of law and rely on the ethics of the ‘Russian world’.

Come on, you philosophers! The shackles have been gone for thirty years. Equality was supposed to have been given a long life back in Yeltsin’s second term, while Putin’s regime raised the banner of a ‘unity’ within which Russia’s citizens were soon ethically divided into ‘us’ and ‘them’. Selective application of the law (and non-application) is not, in the precise sense of the word, the application of law. The use of law as a whip or a means to pick a lock is preceded by an ethical choice that eliminates equality. This choice means that ‘we’ are in favour, while ‘they’ can and must be oppressed and dekulakised.

What happened is what Giorgio Agamben talks about when he says that every state ultimately seeks to become a concentration camp, using for this purpose the tools of exclusion.

The principle of exclusion is evident in the consistent strengthening of discrimination against those whom the Russian state designates as ‘foreign agents’ (the latest innovation which has just been adopted is a total ban for ‘foreign agents’ standing as candidates in elections). Perhaps, in 2012, when this innovation was first introduced, those in power, starting with the president, actually believed that the status of ‘agents’ would remain a purely legal form and would, without limiting their rights, only serve to label those who receive funding from abroad. But the principle of exclusion is not a legal, but an ethical, notion and it has its own Agamben-type logic.

Equality has survived, albeit in the Constitution, but only on paper. When the Constitution was amended in 2020, the changes of an ethical nature were decisive. ‘The ancestors who bequeathed us ideals and faith in God’ became a cancerous tumour alien to the rule of law, eating away at the Constitution from within. And a form of ethics that was becoming ever more aggressive spilled over beyond the borders of the Russian Federation.

The ‘new ethics’ and Pevchikh’s version

Isn’t this what Maria Pevchikh told us about in her just-released and hotly debated three-part documentary? It is about the same thing, but not in the same way – and most of all not even about ethics, but about aesthetics.

It is the same Bolshevist ‘who is not with us is against us’. A severe ethical pathos, brought to boiling point, makes the real historical picture flat, while facts are simplified and adjusted to fit a predesigned schema that is possible only in law, but not in ethics.

This primitive picture is seductive for a very complex generation of young people who have grown up under the ever-increasing (at least, from the time of the 2012 presidential inauguration) pressure of state violence.

Brutal ethical selection is practiced not only in the judicial system, as we discussed above, but also in any public office and not only those. Repetition of the rhetorical mantras of ‘us’ against ‘them’ is the password for access to the elevators of vertical mobility. And most people start using them – simply because, in order not to be torn apart by cognitive dissonance, it is easier to believe what you are forced to repeat time after time.

Today, the entire Russian state machine, using the tools of coercion, primarily in the spheres of education and culture, seeks to form a new ‘united’, ‘people’ that is not based on notions of law. This goal is no longer hidden: human rights are trampled on and ridiculed as a ‘Western fiction’ – which, in general, is what they are. A ‘new elite’ is coming (which is unlikely to include many ordinary members of the Special Military Operation), but the tendency to pardon serial killers who have proved, through their use of armed force, their willingness to be one of ‘us’ is obvious enough.

But there are others – those who don’t accept the ethics of collective Social Darwinism. If we count up those who did not vote for Putin in March, there are between fifteen and twenty million of them who, no matter where they may live geographically today, remain mentally within the domain of Russian language and culture.

These individuals respond to the increasing pressure of maxims that are unacceptable for them by dyeing their hair green and adopting a ‘new ethics,’ something which at times causes consternation among the older generation, including, I have to say, me. This ‘new ethics’ consists of a frantic arrangement of ‘personal boundaries’, within which it is easy to end up absolutely alone, and the search for a special identity, including gender identity. All these are excesses of what can be called ‘emancipation’ (liberation) and are, in my opinion, largely a reaction to the pressure of collectivism.

But those we can call Duginists, insofar as they adhere only to the conservatism of actually existing traditions, cannot be discounted. They will not allow it. They are in the majority. Indeed, it is they who have already discounted the ‘liberals’ and deprived them of any representation. If the point of no return has been passed and barbarism (remember, this is a neutral term in our country) wins, the space occupied by historical Russia will once again turn into a swamp that lies outside the realms of history.

For the present time, within the framework of Putin’s promised ‘stability,’ we are sitting on a volcano. The main ‘enemies’ are in prison or have been liquidated. Yet nevertheless, the fifteen or twenty million who did not vote for Putin (one fifth of the political nation) is a not inconsiderable reserve consisting of people who cannot be ignored.

And then the ‘swamp’ will come to Bolotnaya Square – we have seen how this can happen. Maybe the cards of world history will fall in such a way that a compromise will become possible. And compromise on a basis of ethics is impossible, it is only possible on the basis of law.

I must confess that I myself can’t stand jurisprudence – it is casuistic, vexatious, bringing boredom and gnashing of teeth. This was the reason why I changed my profession forty years ago. But now I am ready to admit, before Professor Tamara Morshchakova, with whom I have talked about this, that I was not wholly right. Only law creates the possibility for peaceful coexistence, only within its framework are security and mercy possible.

Translated by Alyssa Rider, Nina dePalma and Simon Cosgrove

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