The Soft Power of Dissent: The Impact of Dissenting Opinions from the Russian Constitutional Court

By Orlova, Alexandra V. | Vanderbilt Journal of Transnational Law, May 2019 | Go to article overview

The Soft Power of Dissent: The Impact of Dissenting Opinions from the Russian Constitutional Court


Orlova, Alexandra V., Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS  I.    INTRODUCTION                                  612 II.   THE MANY SIDES OF DISSENT                     613 III.  THE ROLE OF DISSENT IN CHALLENGING CONSENSUS  619       A. Anchugov and Gladkov, No. 12-P (2016)      622       B. Yukos, No. 1-P (2017)                      632 IV.   DISSENT, CIVIL SOCIETY, AND DEMOCRACY         637 V.    CONCLUSION                                    641 

I. INTRODUCTION

Do dissenting judicial opinions matter in a state that actively suppresses dissent within the public sphere and views failure to conform as an existential threat? The Russian government has deliberately suppressed dissent on a number of fronts. The state has repeatedly used the 2014 civil war in Ukraine and Russia's annexation of Crimea to discredit any sort of opposition to the regime, with critics painted as unpatriotic and foreign, and as threatening Russia's very existence. (1) While the government has invested significant effort in suppressing dissenting voices, the presence of dissents in the Russian Constitutional Court (the Court) presents an interesting question regarding their impact on democracy, consensus building, and civil society. Due to the nonbinding nature of dissents emanating from the Court, their possible impact on legal and nonlegal communities is an area lacking in scholarship. (2) This Article argues that while dissents emanating from the Court may not be binding, they carry a great deal of "soft power." Judicial dissents aid in challenging commonly espoused consensus both inside and outside the courtroom and provide a legitimizing voice to marginalized groups that have frequently been excluded from dialogue. The possibility of judicial dissents spilling over from the confines of the courts aids the democratic process, not necessarily by convincing the majority of the population to change their minds, but by "forming a polity where people's rights are the subjects of an ongoing political debate." (3) Judicial dissents provide hope by challenging the permanence of both law and consensus. (4)

Part I of this Article deals with arguments of both Russian and Western scholars regarding the benefits and detriments of judicial dissents. It analyzes the January 17, 2012 decision of the Court dealing with the role of dissent. Part II examines how judicial dissents can play a transformative role in challenging the common consensus, thus opening the door for alternative visions and narratives, making the law more inclusive and more just in serving its citizens. It examines judicial dissents in two recent cases--Anchugov and Gladkov (2016) and Yukos (2017)--where the Court attempted to redefine its relationship with transnational institutions, such as the European Court of Human Rights (ECtHR), and to deal with issues of sovereignty and constitutional identity. Part III looks at the impact of judicial dissents on civil society and democracy. The Article argues that in addition to challenging consensus and providing a legitimizing voice to disempowered groups, judicial dissents have the capacity to transcend and exceed the institutions from which they arise, hence impacting public debate and potentially public action. It examines the October 2018 debate regarding the future of the Russian Constitution, Russia's vision of globalization, universality, and local identity, which was initiated by the chairman of the Court and transcended the confines of the courtroom. Finally, the Article concludes that while judicial dissents are not binding, the true "soft power" of judicial dissents comes from their ability to challenge the permanence of both law and consensus. (5) Judicial dissents show that disagreement matters (6) and is fundamental to democracy.

II. THE MANY SIDES OF DISSENT

Russian legal scholars, not unlike their Western counterparts, are divided over the value of dissenting opinions. (7) On the one hand, some of the arguments against dissenting opinions relate to them endangering the unity of the court by impacting collegiality between the judges, as well as impacting the strength of judicial opinions by not making the court speak with one voice in the form of a unanimous opinion. …

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