Etnichnost_i_pravo

Ethnicity and Law in Contemporary Russia

By Valery Tishkov

Corresponding Member of the Russian Academy of Sciences,

Director of the Ethnology and Anthropology

Institute of the Russian Academy of Sciences,

Director of Network for Ethnic Monitoring and Early Warning

(Translated from Russian)

TACIS project of Promotion of Tolerance and Improving Interethnic Relations in Russia presents one of its performance results in the realm of the legal component. This project area studied the basics of legal awareness and the current legal regulations that determine and regulate ethnic relations in such complicated society as the Russian Federation. As the point of TACIS is to introduce in Russia the best of social experience accumulated by European Community countries, the foremost goal of the project was to train Russian lawyers and law enforcers by introducing them to the legal regulations and practices in European countries. At the same time, the project analyzed Russia’s legal framework and law enforcement practices in the area of ethnic relations as well as the influence of the Russian legal system as a whole on this area of social life.

Why is this issue so crucial for Russia, what are the obstacles involved, and how will the application of the best foreign practices aid in improving social governance? First of all, let us note two special circumstances that characterize Russia. First, Russia’s multiethnic, multi-confessional population makes Russia similar to all other large states with complicated ethnic, religious, and racial compositions. Only ignorance or deliberate rejection of the outside world may result in statements about the uniqueness of Russia’s multitude of nationalities. Secondly, Russia’s actual dissimilarity from the rest of the world (except for former USSR countries) lies in the meaning with which ethnic variance is invested in Russia and in the effect of this special understanding of ethnicity on the society and politics.

The thesis about Russia’s similarity and dissimilarity begs for clarification; too frequently two types of opposing arguments are used in order to avoid making a mental effort or to dispute an opponent’s statement, while in essence the meaning of these arguments is identical. The first is, “Russia is not America, which was composed of migrants and where all residents have melded into a single nation of Americans. Russia is a unique country, because over 160 peoples and nations live here in peace and accord.” The second argument is, “Russia has always been and remains to this day an empire. It is not a national, but a multinational state and the inevitable process of self-determination has not yet run its course, because not all peoples have achieved statehood.” Lately, there has been one more theory that explains Russia, stemming from a dogmatic interpretation of the modern approach to national identity as a multiethnic civil society and the issue of the existence of such a national solidarity in Russia. As a reminder, President Vladimir Putin made this important statement on February 5, 2004 in the city of Cheboksary, “I believe that today we have every reason to talk of the Russian people as a single nation…The members of the most diverse ethnicities and religions in Russia feel as one people. They use all of their wealth and cultural diversity in the interests of the entire society and the state. We must preserve and strengthen our national and historic unity.”

This statement, so inconvenient for outdated language and thought, was interpreted to favor the nationalists in the realms of science and politics, who act on the part of “the nation forming the state,” i.e. ethnic Russians. The single nationality suggested by Putin in place of multiple nationalities was interpreted not as an effort to infuse the political and legal concept of “nation” with a civil, rather than ethnic meaning, but in the same old way, as a reminder which ethnic communities are considered nations in Russia, while others are merely national minorities, and who must hold the power in the country: ethnic Russians, of course, since they make up 80% of the population! The more careful “old-school” thinkers began to say that Putin had meant the distant future, that a nation takes long in forming and that this forming of a single whole must be started in Russia, but no one knows when it will be over. As a result, there was no conceptual breakthrough in the realization of Russia as a national state. The 3^rd Assembly of Peoples of Russia, conducted in Moscow in March 2004, showed that “nation members” do not wish to part with the old cliché of a “multinational people” and the motto of “The friendship of people is the unity of Russia.” One people or one nation do not exist according to the overwhelming majority of Russia’s experts and politicians, because these approaches, in their opinion, will dictate the “cancellation of nations” and forcible turning of everyone into ethnic Russians.

This distinctive understanding of the ethnicity factor in people’s lives and the organization of state society is the reason why the updated analysis of the doctrinal equipment used in Russia is so useful and even necessary. If the outdated language spoken by experts and used to pen laws is not dismounted, Russia will never be able to become a fully realized state, and “Russian people” will remain a euphemism for many within Russia, and definitely for the world outside.

Contemporary Russia has adopted many of the Soviet Union’s state-building experiences, such as making ethnicity state-oriented and giving various ethnic communities fundamental meaning under the watchful eye of the Communist Party and the secret police. Even legal norms, which instinctively resist the priority of collective principles as opposed to the principles of civil individuality and responsibility, still have retained the language of ethnic nationalism. The term “national” pertaining to such notions as self-determination, interests, honor and dignity, culture and education is still more ethnically particular than all-Russian. At the same time, it seems to be obvious and universally recognized that collective rights are just a mechanism that completes individual rights and that the realization of “one nation – one state” principle, where “nation” stands for “a single ethnic community”, is dangerous utopia. Nonetheless, Russian legislature and legal practice continue to try and work in this vulnerable semantic field, making it possible to adopt constitutions and laws on federal and regional levels, presupposing the right to indicate (or not to indicate) a “national identity”, meaning not Russian citizenship, but an ethnic identity. These laws guarantee the “forms of self-determination of Tatar (Bashkir, Karelian and other) nations”, recognize and protect “national languages and education” (meaning ethno-cultural aspirations of certain groups of citizens), and make provision for the punishment of those who insult and humiliate “national honor and dignity”, meaning once again the culturally significant valuables of certain groups of population.

Ethno-national mentality has given birth to notions and political and legal practices which divide the citizens of one country or federation subject into those who have “statehood” and those who do not; all of these citizens have Russia’s passports and equal legal rights. The citizens “without a statehood” use the services of the state to the same extent as those “with a statehood”, and they serve the state equally well, even at very high positions of authority. Nonetheless, the laws and legal norms that divide the Russians into different status groups still exist.

What Russia needs is a fundamental clean-up of the legal field, so as to guarantee a more correct treatment of the ethno-cultural needs. International legal norms could be a useful but by no means the only reference point. What of the international experience can be used in order to revise the domestic legal baggage? What shouldn’t we use, since even international legal norms harbor certain politicized absurdities? First of all, it is necessary to be more consistent in administering the principle of citizenship. The citizens of one state cannot be divided into “native” and “non-native” residents; even more so, some citizens should not be considered “state-forming” while others as not; certain populations cannot be labeled the “principal population” while others are dismissed as the diasporas. All citizens, regardless of their ethnic “membership”, are equally the creators and owners of the Russian Federation, all citizens represent the “principal population”, including the so-called “minorities”. The right to territory, resources and power in Russia travel along with the citizen, wherever he or she lives and works.

Certain restrictions might apply to foreign citizens or temporary migrants, but exceptions from this principle have to be made for the former citizens of the Soviet Union, considering the recent break-up of this historical state as well as persistent human contacts and interests, including a special connection many feel towards Russian national culture based on the Russian language. Legal subsidiarity, i.e. special rights to use the resources and to organize territorial self-government, may exist only for a special category of the population, which in the Western world is determined as an “indigenous” or “aboriginal” population. However, the Western definition of this notion applies to the carriers of life-support culture, based on traditional ways of living (deer-raising, hunting, river and marine fishing) and partly nomadic ways of life in extreme climatic conditions. In this instance, special legal norms that could give additional protection to these small-numbered and socially and culturally vulnerable communities are truly necessary. The matter primarily concerns the so-called Indigenous Peoples of the Russian North, Siberia and Far East. The focus of this legal exception is not the indigenousness, since after all it is the representatives of these ethnic communities who are the real aborigines in our country, and not the descendants of recent immigrants. The main argument for the special legal status and additional legal protection norms lies in the factors of minority, the ways of living, and socio-cultural vulnerability.

Renewal of the legal norms that regulate ethnic relations is not limited to the extermination of ethnic nationalist moments and a more consistent realization of the overall principle of equal civil rights. The legal system should also strive to enrich private legal norms that reflect and ensure ethno-cultural diversity. The most important sphere is the area of language and education. Law and bureaucracy, just like military commands, prefer to speak one language, but there is no state in the world whose citizens would be native speakers of one tongue. Multilingual society is a civic norm. At the same time, the aspiration of the citizens to know a common language that is native to the majority of the country’s population is also a civic norm.

Russia has a rich experience in language building and the legal regulation of the language policies. Current laws, on the whole, correspond with the principles of democracy and the best of international examples. But there still exists a problem of legal inertia and ideological unfeasibility in regulating languages in Russians’ life. First and foremost, it concerns a very narrow and nationalist interpretation of the “native language” notion. The “native (rodnoy) language” is often also called the “mother tongue”. It means that the native language corresponds with the ethnic membership of the citizen. Many experts, politicians, and, quite frequently, the law (especially in the Russian republics) ignore the pertinent historical situation that shows that, in Russia, the overwhelming majority of citizens of ethnically non-Russian descent consider Russian language their native (meaning it is the principal language they know and speak). Meanwhile, this is the exact interpretation of “native language” presumed by international legal norms and domestic science. The scientists, infatuated with the study and rescue of small languages, along with nationalist politicians, believe that the transition from one language to another is nothing less that “linguacide”, the loss of “peoples’ soul”, etc. They ignore the rational behavior of Russian citizens, for whom good knowledge of the Russian language is more important than preservation of ethnic roots. It is convincingly shown by the behavior of parents and young people interested in quality higher education and further life and career success. But in the legal norms and practices, in some federal and in many regional laws, language nationalism and politicized unreality are still present. The motives of this are partly understandable, but they do not always serve either the citizens’ interest or the task of socio-cultural integration of the Russian society.

If we continue to instill the understanding and legal norms which say that the Russian language is not an exclusive property of Russians, that it is a native language for everyone who speaks it, thinks it and uses it at home – then where and how will we find a place for other languages spoken in Russia? How should we build a national (Russian!) and regional education system, especially in the regions where the majority (or even a substantial enough minority) speaks a language other than Russian? The legal norm, in our opinion, should be based on the fact that the language repertoire of a modern person is firstly determined by the individual life strategy for personal success, and not by the task of preserving an ethnos or a language. The modern person’s possibilities and the methods of language acquisition are such that they allow to master and use two or even three languages to an equal degree, but in different situations and with different goals. That is why the law should respect and guarantee Russian citizens’ right to master the languages that are necessary for successful life and career both in the local society and within the boundaries of the whole country, or even in the international intercourse. The law should have as its goal not only the mission to rescue vanishing languages or provisions for a full-scale usage of ethnic minority languages, but the development of bilingual and multilingual practices. The reality is such that this aim mainly concerns the representatives of other nationalities, even though Russians who want to succeed in the social competition and to become culturally richer also have to know other languages spoken by the country’s citizens.

The problem of vanishing minority languages and language assimilation in favor of the languages spoken by larger ethnic communities certainly exists in Russia. A good example is Republic of Daghestan situated in North Caucasus where smaller peoples give up their languages in favor of Avar and Darghinian languages commonly spoken in the republic. These problems, however, must be solved not through legal regulation, but through special state-run programs, including the efforts of public enthusiasts from the scientific community and the native speakers of the language, granted they are interested in preserving the language.

A special realm of legal regulation covers the problems of xenophobia and ethnic, racial and religious extremism. The Criminal Code of the Russian Federation has the relevant articles, the wording of which has been recently improved. Experts and politicians, as well as law enforcement officers, see more and more clearly that it is necessary to legally persecute and punish not those who insult the vaguely understood notions of “national honor and dignity” (since it is difficult to explain what is Gypsy, Russian, Chuvash or Tatar honor and how they differ from each other), but those who instigate (consciously or unconsciously) any form of inter-group discord and/or organize and perform any violent actions to this extent. Where “national honor and dignity” are concerned, it seems that the punishment should be exacted against persons who verbally or physically insult the values, norms, and notions collectively honored by the representatives of a community (nationality or religious community) if the offence causes unquestionable moral damage to the representatives of this community.

The analysis of legal norms in this area shows that even in their present form, laws can and should work. It is necessary to act consistently and emphatically throughout the country instead of limiting action to investigations “under special control” by presidents or governors and to broadcast the trials which often turn out to be a negative advertisement thanks to mass media efforts. The main problem here is the mental lack of readiness on the part of law enforcement officers. The conceptions held by prosecutors, judges, assessors, not to speak of rank and file policemen, are no different from the common stereotypes and politicized mythology. If the “Chechens killed so many of ours”, then a lost young widow whose child was forcibly taken from her and who agreed to take part in a terrorist attack in order to pay back the debt to her relatives and thus save her honor (as per Chechen tradition), has to answer fully for her mistake. This is the decision recently made by the Moscow prosecutor, judge and a jury panel, which did not involve a single representative from the North Caucasus peoples, including Chechens. The legal norm has no say in guaranteeing fair justice in cases where ethnicity has to be taken into account. In many societies better versed in securing ethno-racial equality, such an accusation and composition of the jury panel would have been prohibited from the very beginning. But in Russia this important circumstance was simply ignored and as a consequence a law that is inherently good gave a bad result.

All of this means that a special kind of laws and legal practice, as well as a special preparation and enlightenment in the sphere of legal norms regulating ethnic relations, guaranteeing harmony and preventing extremism and xenophobia, are very much needed in the contemporary Russian society. If this is the case, then the materials prepared by the TACIS project will aid all those interested in changing the situation.