Leveling the playing field for religious "liberty" in Russia: a critical analysis of the 1997 law "on freedom of conscience and religious associations".

• Author: Lekhel, Arina

There are five clusters of public opinion in Russia ranging from the retrograde fascism to libertarian democracy ... and each exists to a greater or lesser degree within EACH AND EVERY RUSSIAN. Because these clusters of opinion are pitched in battle with one another, Russia's future remains very much in doubt

Boris Grushin, a leading Russian public opinion specialist(1)

The state is the defense and support of the independent church, and the church is the spiritual leader and guardian angel of the Christian state

I.A. Il'in, Russian jurist and philosopher (1883-1954)(2)

1. INTRODUCTION

   The collapse of the Soviet Union in 1991 ended an acute confrontation between two socio-economic systems. In subsequent years, the West has exhibited both euphoria and exasperation over the developments in Russia. Russia's record in the area of human rights, including religious rights, conforms to the overall "roller-coaster" pattern of its attempts to become a truly democratic state,(3) As a result, the West continues to perceive Russia with a certain apprehension: periodic goodwill among political leaders and the relative CNN silence about the events in Russia have left the West with an uneasy, latent anticipation of what might happen next.

   In the summer of 1997, the acrimonious debate over freedom of conscience and the role of religion and church in Russia attracted international attention. The passage of a comprehensive new law "On Freedom of Conscience and Religious Associations"(4) was a landslide(5) victory for the conservatives, concluding a seven-year battle to amend the groundbreaking, progressive law "On Freedom of Religion."(6) The 1997 law, while enjoying popular support, generated strong criticism because of its effective curtailment of the legal rights of certain religious associations and individuals.(7) Nevertheless, the new law afforded substantial and much needed political legitimacy to the indecisive Russian legislative branch as well as to the President.(8) These diametrically opposed responses to the new legislation naturally translated into socio-political discomfort both in Russia and in the international arena.

   Yet the rigid cultural stereotypes propagated by the Russian and Western media do not provide an adequate understanding of the origins and the repercussions of the new law. The purpose of this Note is to present a more comprehensive framework for analyzing the status of religious human rights in Russia after the enactment of the new law. Following the insights of an eminent scholar on law and religion, Prof. Harold J. Berman, the topic may be evaluated with a view to positive law (Zakon), moral theory (Pravo), and Russian historical experiences.(9) Generally, positive law refers to domestic legal norms. Moral theory also stems primarily from domestic supra-legal sources, but it may connote global human rights principles where a state subscribes to monism,(10) as Russia currently does. Historical contingencies can be described as prior experiences and the related set of solutions developed in the past. Historical experiences are relevant because of a society's natural proclivity to apply these time-tested solutions to new circumstances. Writing about a failed attempt to amend the liberal religious freedom law in 1993, Professor Berman correctly pointed to the overpowering force of historical contingencies in informing Russian legislation and molding both positive law and morality.(11)

   The situation in 1997 mirrored the one in 1993.(12) The dissolving of the Russian legislature in 1993 merely postponed the resolution of a drama surrounding Russian religious policies that reached its expected outcome in 1997. Once again, the needs of the state trampled the legal guarantees contained in the Russian Constitution and numerous instruments of international law adopted by Russia. This Note explores the reasons for such a deplorable detour from the rule of law and attempts to chart the reach of the new legislation.

   The discussion in Part II begins with a synopsis of religious policies in Russian history. It then offers general observations on Russian cultural predilections regarding religion, state, and the people. These constitute the most powerful strand of supra-legal sources--the Russian version of natural law. Part III identifies an alternative set of higher legal norms and principles contained in international religious rights instruments(13) and in the 1993 Russian Constitution. Part IV starts with a description of the post-Soviet religious landscape and focuses on political and cultural motivations for the new legislation. It then lays out the structure of the new law and provides a commentary on important provisions. The Note assesses the law in light of constitutional guarantees, international norms, and practical domestic imperatives. Part V examines the potential effects of law and suggests the ways to resist gross abuses in its application. The Note concludes by asserting that if Russia blindly follows the worst features of its historic heritage the forecast is bleak. Yet, the future looks brighter if Russia follows international and constitutional norms in developing tempered cooperationist or endorsed(14) paradigms of church-state relations. This scenario satisfies both the Russian quest for its unique cultural identity as well as its ambitions to become a truly democratic state.

2. HIGHLIGHTS IN THE HISTORY OF RELIGION AND RELIGIOUS POLICIES IN RUSSIA

   Religious policy is a sensitive area because it is intimately connected with a state's history and is informed to a large extent by elusive national consciousnesses formed over centuries. In order to grasp the motivations and full implications of the positivist norms, one must understand the cultural milieu in which they operate. Russian history reflects a version of religious policies that are in sharp contrast to the Enlightenment-influenced Western European and American traditions.(15) The following discussion explores these differences in a systematic way that adds another dimension to the appreciation of the challenges that Russia currently faces.

   1. Historical Developments

      The following is a brief summary of crucial events that formed Russian attitudes towards religion and the role; of the Orthodox Church. It draws heavily on the political-juridical theory of Russian history.(16)

      1. The Early Period (10th-17th Century)

         If the Russian legacy contains any trace of religious "pluralism," a pre-Christian worship of local natural forces is probably the best illustration of the early decentralized religious practices of various Slavic tribes.(17) In the tenth century, the Kievan princes' desire to unify the tribal lands prompted them to adopt a common religion as a moral foundation for the emerging state.(18) After a careful screening of several predominant religions, Prince Vladimir was baptized by Byzantine priests in 988 A.D. and ordered his entourage to convert to Christianity as well.(19) Thus, from the earliest times, the foreign Church depended on princes for support and legitimization.(20) The intimate relationship between church and state was further reinforced by a doctrine of caesaropapism(21) peculiar to Greek Christianity. In contrast to Western Catholicism, the Eastern Orthodox Church never challenged the supreme role of secular rulers.(22) St. Sergius' blessing of prince St. Dmitry Donskoy before a decisive battle with the Mongols in 1388 exemplifies the symphonia(23) that characterized the relations between the princes and clerics.

         The St. Sergius-Donskoy dynamic also illustrates that the Church extolled civic patriotism as a religious virtue.(24) The Orthodox Church was synonymous with Russian lands and the Russian people as a whole, in addition to being a close ally of the political elite.(25) The people were addressed not as "citizens" but as "rightful worshippers" (pravoslavnye) implying that everyone was Greek Orthodox, and that it was the one and only true religion.(26) The sense of self-righteousness was further enhanced by the notion that Russia had borrowed a doctrinally complete religion.(27) This religious dogma obliterated any need for truth-seeking and fostered six centuries of a virtual absence of internecine conflicts, typical of the Catholic Church at the time.(28)

         In the early sixteenth century, the Church and ambitious Moscow princes allied to proclaim Moscow the Third and Last Rome after the fall of Constantinople.(29) In politics, this ideology justified the rapid expansionism of the Moscow state.(30) In religion, it solidified the Orthodoxy's role as a truly national church.(31) Most importantly, it nourished Russian reveries of grandeur and a special mission(32) in which the Church and secular rulers collaborated in strengthening Holy Russia and imparting its most pure religious and national values on all its subjects as well as beyond its borders.

         Ironically, Russian expansionism also required the nation to come in contact with different ethnic groups and religions. The centuries of cultural and religious isolationism under the Mongol yoke left Russia completely unprepared to productively accommodate foreign influences.(33) An overriding concern to preserve Russian Orthodox values insulated Russia from European developments.(34) From the earliest times, the Russian state projected an intolerance towards foreigners and religious minorities.(35) as For example, medieval Russian rulers symbolically reflected national xenophobia in the ceremony of washing hands after each official reception of foreign emissaries.(36)

      2. The Imperial Period (18th-20th Century)

         The reforms and imperial ambitions of Peter the Great (1689-1725) forced Russia to come face to face with the West.(37) Culturally, it was a painful experience because it exposed Russia to competing socio-cultural norms and demonstrated Russian backwardness, especially in education, economics, and technology.(38) In a truly autocratic manner...