by Ian Mitchell

Vlad the Invader

May 26, 2014 | by Ian Mitchell

Anyone seeking to understand the current crisis in the Ukraine would do well to remember that the Russian eagle is double-headed. The people see themselves as part of Asia as much as Europe. All Russians are still either Slavophiles or Westernisers, and many are both. Moreover, they divide all humanity into two categories: Russians and foreigners, and no-one can be both. The question being asked today, from the Kremlin to Kamchatka, is who are Russians and who are foreigners, and which of those foreigners – specifically those holding Ukrainian citizenship – are or should be considered Russian?

This dichotomy goes to the heart of Russians as people. It is a psychological as much as a political condition. Two stories from my own experience may help to illuminate it. The first one concerns a close friend whom I was trying to convince of the ‘Protestant’ virtue of steady labour in one’s trade or profession, rather than indolence and last-minute furious work that is more normal among Russians.

‘Do you know the story of the hare and the tortoise?’ I asked.

‘Yes, of course. We heard it in school.’

‘Well, then?’

‘Well then what?’

‘Slow and steady wins the race. That was the moral of the story.’

‘No it’s not.’

‘But the tortoise wins.’

‘Yes,’ she said, ‘but only because he got his brother to wait by the winning post so he could impersonate him before the hare came running along. We were told that the moral of the story was that if you want to win, you have to be prepared to cheat.’

The second story concerns a village on the banks of the upper Volga where I have spent many a happy weekend with a friend who has built a second home there. Until recently, three of his immediate neighbours were elderly women, but a year ago they all reached the age when they had to move into the nearby town to stay with their children.

The result was that three houses were put up for sale at about the same time. They were almost identical, built solidly of thick logs for collective farmers in the 1950s. They had electricity and about an acre of ground. The general feeling was that the properties were worth about half a million roubles each (about £11,000 then; £8,000 today).

Tyotya (Aunty) Tanya’s one was bought by a relative for half a million. But as it was a family transaction this fact did not become known for a few weeks. During that time, Tyotya Katya had a friend of another neighbour’s in when he was visiting for the weekend. This person, from Moscow, was shortly to be retiring and was looking for a house in the country. Tyotya Katya mentioned that her house was for sale. That was ideal as it was next to his friend’s place. Clearly this was the moment to open the vodka bottle and get down to some serious negotiation.

By the time the bargaining was completed it was nearly midnight and the bottle had been finished. The deal had been done, with the visitor having agreed to pay a million roubles for his retirement home.

He woke up the next morning with only the vaguest memory of what had gone on the night before. He asked his host what had transpired over at Tyotya Katya’s house.

‘You agreed to buy it,’ he was told. ‘For a million roubles.’

‘Oh, no! Did I really? It’s not worth that.’

‘I know, I tried to tell you, but you wouldn’t listen.’

Later that day, they went over to see Tyotya Katya. She said that she knew he was drunk when he agreed to pay such a high price for her house, and she would accept a lower one. But the man was insistent. No, he had agreed to pay that price and the honour of a real Russian man demands that he never cheat family, friends or neighbours.

And he did, despite the fact that he had to raise a loan to make up the full price. The transaction went through, and he lives in Tyotya Katya’s old house to this day, happy in retirement, even though his wife is still in Moscow, having had to delay her retirement for a year or two to pay down the loan.

Meanwhile, Tyotya Galya’s house is still for sale. Why? Because the asking price is one and a half million, three times the generally accepted market value. Tyotya Tanya had one daughter, and she got half a million for the sale of her mother’s house, and Tyotya Katya had two sons, who also got half a million each. Tyotya Galya had three daughters and they consider it only fair that they get half a million each too. Being Russian, and therefore stubborn, none will budge. So their house remains unsold.

I quote these stories because the most important thing to understand about the present situation in what might be called ‘the Slavosphere’ is that, unlike in Britain, there is a substantial disconnect between public and private morality. We tend to think our statesmen should be honest. The height of that fad was Robin Cook’s so-called ‘ethical foreign policy’. Russians do not want their own country to behave so stupidly. Many would consider it idiotic, possibly to the point of treason, to treat foreigners as being inside the ‘no-cheat zone’– especially Americans. An important Russian who falls for American plots is ‘an enemy of the people’.

Take Mikhail Gorbachev, Nobel Peace Prize winner. To most Russians, he is the quisling above all quislings. Most think he was paid by the Americans to destroy the Soviet Union. I know a politician who is invited with perhaps a hundred other Marshals and oligarchs to the Kremlin dinner that Vladimir Putin hosts every year on 9 May to celebrate Victory Day.

The year before last, Gorbachev was one of the guests. After the formal part of the dinner was over the guests got up from their tables and took their glasses over to another table to talk to someone else. People milled around the room in a ‘comradely’ fashion for hours – all of them, that is, except Gorbachev. Nobody came to talk to him. Not one of the hundred or so guests had enough compassion for the 81-year-old man in their midst to exchange a single voluntary word with him – or perhaps they knew that it would be a black mark against them if they showed him any respect. The former President spent the rest of the evening sitting by himself at a table for twelve.

One of the wisest points ever made to me about Russia came from a Swedish lawyer who ran the Ikea legal department in Moscow for ten years. He told me about his professor of Russian at university whose introductory words were: ‘You should all start your course with the clear understanding that, though Russians are very nice and interesting people, there is one major problem with them: they look like us. This can give the illusion that they are like us, when in fact they think completely differently. Really, they should be painted blue and have sticks attached to their foreheads to remind us how different they are.’

Most people, both Western and Russian, respond to that by muttering something about the ‘mysterious Russian soul’. I once put this to Natasha Perova, who edits the magazine Glas, the main publisher of contemporary Russian fiction in English translation. Natasha is bilingual and has an acute view of the differences between Russians and Westerners.

‘There is no such thing as the “mysterious Russian soul”,’ she said decisively, ‘only bad translation.’

Russians do not even agree about their own stereotype. That is a good place to start trying to unravel the complicated interaction of Ukraine, Russia and the West: who is inside the no-cheat zone and who is outside it.

* * *

RUSSIANS who know Britain usually feel closer in spirit to the Scots than they do to the English. Slavs tend to prefer their Teutons to be German. Within Scotland, the Russian preference is very much for the Highlands rather than the Lowlands.

I remember once reading about a Glasgow engineer who spent time in Russia in the 1970s when John Brown’s Shipyard was supplying the pumps for the Urengoy gas pipeline. Those were communist days and intimate conversation was as risky as smiling. This man wrote about his experiences in Russia, specifically seeking to answer the question of why the Scots and Russians seem to get on so well together. He told the story of how, on his last night in Moscow, he got drunk with his Russian ‘minder’ and they fell to discussing the source of this feeling of kinship. They worked their way through Burns, whisky, castles and the Loch Ness Monster – a subject of perpetual fascination to Russians. But they never seemed quite to get to the heart of the matter. Eventually, the Russian blurted out an explanation which the Scot thought pretty much on the money: ‘We are both people with a savage past, and are not ashamed of it.’

That is true of the past, but less so today as Russians, in many ways, have a savage present too. The reason is that there is no statutory basis for no-cheat zones. Each oligarch has his own, but none of them – not even the President – can expect to be inside all of them. And the oligarchy as a whole treats the ordinary people as being outside any form of serious protection – and the people reciprocate by treating state assets as if they were privately owned by a particularly loathsome neighbour.

Ultimately, it is a question of power: I do it because I can. This is reflected in the home, where domestic violence is widespread. In Britain fewer than 200 women a year are murdered by their husbands. In Russia, the figure is around 14,000, or nearly thirty times as many on a per capita basis. A further 50-60,000 are maimed. As Professor Velikanova wrote in 1995, ‘Women who run to the local police station crying, “Help, he’s killing me!” usually get a flippant brush-off: “So? If he kills you, come and see us”.’ I am sure the situation is better now, but I doubt if very much so.

The relationship between the powers and the people is the central feature of Russian constitutional, legal and social history, which is why I am researching a book to be called Russia and the Rule of Law. (‘It’ll be a very short book, then!’ my wittier friends observe.) It is also at the heart of the economic problem here. So what is the root of the Russian attitude to law?

I learned about this in a rather unusual way. I have a friend who is the billionaire owner of an aerospace engineering firm but whose main interest in life is history, partly because about a third of the men in his Stalin-era family were murdered by the state and another third killed in the war which Stalin fought and, as he thinks, partly provoked. We meet in the Irish pub near Prospekt Mira (Peace Avenue) to discuss Russia now and Russia then and the relationship between the two.

We start from a shared assumption that in the very broadest terms you can make a distinction between the Continental (civil law) tradition and the Anglo-American (common law) one. The English-speaking world developed as an essentially maritime community which, due to distances, was quite loosely organised, while the European world developed as a more sophisticated and structured group of societies. It was more compact and more amenable to planning and design because it was based on land.

A sailor, especially before the age of steam, had no such luxury. The sea was trackless, so all navigation had to be, in one sense, original. You also had to wait for the wind, and to be prepared for anything when off-shore. This imposed a different psychology upon the whole community. Planning was subordinated to experience, and opportunism became a virtue. Expediency was axiomatic. Markets ruled.

The common law is a structure based on precedent, which in this context is another word for experience. By contrast, the civilian law tradition, with its Codes from Justinian through Napoleon to the EU Habitats Directive, represents a form of legal planning, with a clear ideal in mind to which all life has to be subordinated. Expediency is frowned upon. Both approaches have their virtues, and both have their faults. I assumed that Russia must be an extreme case of a land-based society. But, to my surprise, my friend disagreed strongly.

‘No,’ he said emphatically. ‘It is a third case. It is like a maritime society on land.’

The starting point for this view is the domination of Russia by the Mongols, the steppe warriors who ruled the country for a period equal to the whole history of the United States. They had a profound influence, not least upon the Russian attitude to power. Towards the end of this period, the power the Mongols had acquired gradually devolved onto the Russian princes who had acted as their agents in controlling and taxing the Russian population.

The first of the princes to act independently of the Great Khan was Ivan the Great (Ivan the Terrible’s grandfather) who ruled from 1462 to 1505. Ivan was a powerful, clear-headed ruler who did many things, often frightful, during his long reign. From the point of view of law, his most important act was to destroy the independence and traditions of the city of Novgorod.

Novgorod was a Hanseatic trading outpost in the north-west of Russia. St Petersburg was established by Peter the Great in 1703 as his ‘window on the West’. Novgorod had been destroyed by Ivan the Great centuries before that precisely because it was a window on the West and, more ominously for him, a place where German law was applied.

My view – which few if any historians share – is that the core problem for Ivan was not Catholicism, the expansionist Lithuanian state, or even the semi-democratic nature of the government in Novgorod. The greatest threat for the Muscovite Grand Prince lay in the law of contract. The reason is relevant to the whole of Russian history, right up to the current problems in the Ukraine. Here’s why. The Hanseatic League was a loosely-organised trading community that operated throughout northern Europe, from Novgorod in the east to Bergen, London and Bruges in the west. It was held together by an explicit body of law, the north German Skra, which was an outgrowth of the law of the Baltic city-states. Within the Hanseatic trading quarter of Novgorod all traders had to accept the jurisdiction of the (German) Court of St Peter. As in any market, the most important rule was Dictum Meum Pactum (my word is my bond).

It is plain from Ivan’s approach to government that anything which created a duty not relevant to the ruler was to be treated with grave suspicion in a private context, and destroyed in a public one. And anything which allowed a foreigner to exercise legal power over a Russian was especially abhorrent. There was to be only one source of law and that was the Prince. So Ivan invaded Novgorod in 1471, and thereafter dispersed the city’s traders, exiling many of them to Moscow. Finally, in 1494, he closed the Hanseatic Kontor altogether.

Three years later, Ivan promulgated a new law code. The few lines devoted to the question of suits between individuals describe a system so primitive that it would render the sophisticated commercial arrangements, from insurance to banking, that were by then common in Western Europe, completely unworkable. There is not one word about corporate rights, for the very good reason that corporations, as independent entities with serious rights in state-supported private law, were, with the exception of the Church, unknown in the Grand Principality of Muscovy – no guilds, no colleges, no communes, no universities, no city-states, no merchant companies.

Not only that, this law code started the process which eventually led to the enserfment of 95 per cent of the Russian population.

For all those who say that autocracy and Russia go together with a sort of historical inevitability, the existence of Novgorod before the Prince of Moscow destroyed its institutions should be a warning. Autocratic Russia was not some sort of cruel accident of history, or a manifestation of the mysterious Russian soul. It was the product of the collective labours – or lack of them – of the Russian people over half a thousand years.

Today the result is an approach to law which means that in order to get an important contract honoured you have to have influence at ‘court’ – that is, with the ‘khan’. This gives protection. It was a major feature of the argument in the case of Berezovsky v Abramovich. In 2012, I sat in court in London and listened while Roman Abramovich explained what he understood the term to mean. It is as alive today as it was in the fifteenth century.

So what was the essence of Ivan’s system? It is what my friend in the pub calls stepnoye pravo, or steppe law. This is law which came from the area which was dominated by the Great Khan for so many centuries, and which the Russian Grand Prince adopted and preserved. And the steppe, like the sea, has no roads. In Russia, much of the more northerly, forested zone is largely without roads too. Over most of the country, a compass is more useful to the traveller than a map.

Mongol law was primitive. Its essential characteristic is best described in my friend’s words: ‘Where is the Khan? There is the law.’ That is what law was reduced to: the locus of power. Today it is Vladimir Putin.

* * *

THE Ukraine is where the steppe meets the rolling countryside of Eastern Europe. It should be no surprise that it is in the Ukraine that the Ivano-Russian attitude to government and law is clashing with modern versions of the Hanseato-European approach.

By chance, I happened to visit Kiev three weeks before Victor Yanukovich, Ukraine’s President from 2010 to 2014, was ousted. Although the atmosphere was friendly, the people occupying the square known as ‘Maidan’ seemed very determined. It was -22C, with a biting wind blowing, yet at 10 p.m. the protesters were preparing to bed down in plastic tents warmed only by smoky, pot-bellied stoves. As we now know, those people were very determined, but determined on what?

In the few conversations I had, I heard only one theme. It was not anti-Russianism, or pro-democractism. The sole hope of the people supporting the demonstration was that Ukraine could move from being an ‘Asiatic’ kleptocracy to having a ‘European’ type of limited government. By this they meant that they could go to work and make some money without having anything stolen by the Great Khan, or his associates. People seemed instinctively to understand that what was needed to become a civilised society was to establish the sanctity of contract, and thereby reverse the five hundred years of damage done to east European commerce and culture by Ivan’s closure of the Novgorod Kontor.

The Ukraine is the new frontier for the battle to make that part of the world safe for markets. The result of Ivan’s destruction of the Novgorod republic was to establish a bazaar mentality amongst the Russians, rather than a market one, and the distinction is crucial.A bazaar opens when the caravan rolls into town, laden with treasures. Tomorrow the carpets will be rolled up and the tents struck. The caravan will roll out of town in a cloud of dust, never to be seen again.

A market, by contrast, is a permanent institution, or corporation, in which you can trade only if you have been admitted as a member. The essence of the Hanseatic League was that members could trade freely with each other, knowing that they had legal recourse if they were sold defective goods or if any provision in a contract of sale was breached.

Both Russia and the Ukraine suffer from a second consequence of a bazaar approach to the economy rather than a market one: extreme ‘short-termism’. One of the reasons for the steady decline of both countries’ industrial sector has been a lack of investment. In a situation where you do not know who will own your business next year, you do not forego present satisfaction in order to invest for the future. The rational businessman takes his money and runs.

Russia, at least, is trying to address this problem. If you talk to foreign business leaders in Moscow, you will find that most consider the Commercial Courts – a separate system in the Russian jurisdiction – work well. They are fair and independent, and litigation goes through them faster and more cheaply than it does in the higher commercial courts in England. But that is only if the litigants are on a similar level in the hierarchy of power. If one of the sub-khans is a party to a case, then things work quite differently. Most probably, he will never have to come to court, since he will find himself in jail on a semi-trumped-up charge of tax evasion or whatever seems most convenient to the police, who will have been either ordered or paid to ‘open a case’. That is why oligarchs still prefer to litigate between themselves in London.

Today’s challenge for the developed world is to get the Russian Khan and his sub-khans to play by a set of rules which they do not believe to be to their personal advantage. So long as a kleptocratic elite rules, it never will be. But change is inevitable, since almost every educated Russian wants to bring up his or her children to be both honest and successful. The same is largely true, it would appear, of the eastern Ukraine. Ordinary people aspire more to having a German car than a Russian ruler, and the local oligarchs want a weak regime in Kiev which allows them to continue to plunder their fellow countrymen. They fear control by Moscow will bring the more powerful Russian oligarchs onto their patch.

The main fault-line which the Ukrainian upheaval has revealed is not political, much less racial or national. It is the fissure between two incompatible legal-mental universes. This is made immeasurably more complicated by the fact that the Great Khan of the moment does not even see this as the issue. Putin thinks it is mainly a question of who is and who is not Russian, when in fact most of the Ukrainians towards whom he is directing his poisonous benevolence are not interested in this distinction. However, the vast majority of Russian citizens support him. They are proud to have a leader who has cocked a snook at the Americans and made the Europeans look clumsy. Since the seventeenth century, it has been they who have progressively made the world (relatively) safe for the law of contract. So the Russian response to Yanukovich’s defeat in Kiev can be read as a celebration of support for Ivan the Great’s approach to law, economics and foreigners.

That is further proof of the fact that the real fault-line is the one which divides the atavistic legal-mental universe of the inheritors of the state of Muscovy from most of the rest of the modern world. Russians may look deceptively like us, but the differences are profound. For all their love of computers and smart cars, they like the fact that a fundamental fissure in the global community is becoming apparent.

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