TRYING TO MAKE LAW MATTER by Kathryn Hendley. Ann Arbor: University of Michigan Press, 1996. 265 pp.

Reviewed by William Kitchin, Department of Political Science, Loyola College, Baltimore.
 

Kathryn Hendley’s TRYING TO MAKE LAW MATTER: LEGAL REFORM AND LABOR LAW IN THE SOVIET UNION is an outstanding report of an impressive and informative research undertaking into certain statutory and empirical aspects of Soviet labor law in the 1980's. It is also a challenging model of how one might compare the law in theory and the law in practice in any legal system. And it is an essay into the prospect of Russia’s becoming a law-governed state.

The book is at its strongest when it is comparing the theory and practice of Soviet labor law. Hendley has done a detailed study of that part of the Labor Code in effect in the Russian Republic in the 1980's dealing with the transferring and dismissing of workers in Soviet enterprises, but Hendley has not stopped there. She has analyzed the "guiding explanations" of the Labor Code handed down by the Supreme Court of the Russian Republic and the Supreme Court of the Soviet Union. These are the precedent-like opinions (in a non-precedent legal system!) issued by the supreme courts as guidance for lower courts. Already at this point in the book, Hendley has surpassed the great majority of book length treatments of Soviet law published since 1960, most of which went no farther than simply relaying the content of statutes, usually translating those statutes almost verbatim. Indeed, the articles and books of this period were essentially stripped of interpretation and uninformed by what was really happening in the Soviet legal arena. Hendley exceeds all previous treatments of Soviet law in that she bases much of this book on the extensive fieldwork and interviews which she conducted in 1989-90 with judges, procurators, people’s assessors, scholars, enterprise managers, and others, with the purpose of discovering just how wide the gap between Soviet legal theory and practice was.

The gap which Hendley found is, as expected, wide. She found that Soviet (Russian) statutory law was clearly pro-worker. The Code specified reasons for which a worker could be dismissed, and management’s freedom to dismiss or transfer workers arbitrarily was subject to strict statutory boundaries. Ah, socialist law on the books indeed painted a picture of labor in paradise. Moreover, in their published decisions, appellate judges seemed consistently to hold management accountable to an especially high standard of proof and pronounced stern procedures governing dismissals and transfers of workers. Indeed, in paradise, the worker had a friend in court. At least that is what the unwitting observer would conclude.

But all was not right in this paradise. The law in practice did not mirror the law on the books or appellate pronouncements on that law. The purpose of the labor statutes governing dismissals and transfers was to protect the worker from capricious and arbitrary management decisions. One thing definitely worked in the communist system --- practically everyone learned to "play the game." And the game was for management to create the illusion that its dismissals and transfers were in accordance with the Code. The Party-controlled "trade unions," coopted by management since both the unions and management had a higher interest in meeting or appearing to meet quotas, were in practice no friend of the worker. The unions routinely approved management’s dismissals and transfers.

While the worker may have thought the worker had a friend in the rarified Soviet and Russian Supreme Courts (as reflected in those courts’ pro-worker opinions), the worker clearly knew there was no friend in the trial courts where almost all dismissal and transfer litigation occurred. The (Party) trial judges accepted management’s evidence and proof, formulated by the enterprise’s in-house (Party) counsel, with little question and actually subjected the unrepresented worker to a heightened standard of review, in spite of guiding explanations from the Supreme Court which in tone at least required the worker to receive no such treatment. Soviet trial judges could distinguish guiding explanations as easily as American trial judges can distinguish precedents. Hendley seems to attribute most of this huge gap between Soviet theory and practice to the general nature of the Soviet legal system as one of which the judicial mission was to serve the controlling elite.

However, Hendley does not stop with published opinions and elite interviews. The most exceptional aspect of Hendley’s book is her analysis of the unpublished files of certain trial courts which handled litigated transfers and dismissals. She examined the case files of several hundred labor cases handled in two districts of Moscow from 1983 to 1989. The case files revealed that management’s "evidence" in support of its dismissal or transfer decisions was usually accepted without question. Hendley implies that this is partially because management was legally savvy and knew how to format and present its evidence and partially because the ideological bent of the trial judges was not to interfere with the enterprises’ internal affairs. In contrast to management, the legally unarmed worker either had no access to evidence or lacked the articulateness to take on the formidable team of management-trade union-judge. The evidentiary standard of the trial courts was apparently quite lax and to the detriment of the workers. The trial judges often ignored both the "guiding explanations" from the higher courts and also the worker’s evidence of violated statutory rights. Thus, while the Supreme Court’s guiding explanations and the Code itself sounded pro-worker, in practice, the system was clearly and consistently pro-management.

Hendley has, therefore, provided a model of how to combine statutory and empirical analysis to provide an in-depth understanding of a particular area of law. Her achievement is really almost stunning, given the difficulties of access even in the atmosphere of reform in the late 1980's, the resistance among Soviet judicial officials to observation by outsiders, and the inevitable paradoxes one faces when trying to measure the gap between Soviet legal theory and Soviet legal practice.

From all of this Hendley concludes that law did not "matter" during the Soviet period partly because the judiciary was not independent. Indeed, the Soviet judiciary was completely within the grip of the iron hand even during the reforms of juris perestroika. (The only exception to this is the Soviet Committee on Constitutional Oversight under the astute leadership of Sergei Alekseev, but this institution is outside of the scope of Hendley’s book and never addressed the Soviet code provisions regulating transfers and dismissals.) Law did not matter also because law was rightly regarded by management as no more than a procedural hoop which could be successfully negotiated and by skeptical workers, conditioned by decades of malignant neglect, as but yet another means of control from above and of little relevance to trying to fight an "illegal" transfer.

If Hendley is at her best when describing the divergence between the statutory promises and the practical deeds of Soviet transfer and dismissal law, she is less convincing in discussing the obstacles which must be overcome before law can "matter" in Russia. Her basic answer is one readily familiar to comparativist political scientists since the 1960's --- the major obstacle is the development of a political culture in which law is trusted as a means by which conflicts can be resolved fairly even in litigated situations where the state might lose. What this means, however, is that law will matter when it matters, and that is not much of an answer.

Hendley does allow that in post-Soviet Russia, economic developments can occur which might help create the social and attitudinal conditions in which law can matter. For example, unions, freed of the Party leash, might actually become pro-worker, and management, driven by market forces, will need law as a means of enforcing contracts and solving conflicts. But beyond this, we are not given the benefit of Hendley’s insights about how a legal culture can be created in which law matters. How can an ethos of judicial independence be created? Can judicial role perceptions amenable to a law-governed state be engineered? How can workers who have been conditioned by Soviet decades and czarist centuries to perceive of law as an instrument of elite control now be reconditioned to perceive of law as a means of fair conflict resolution? How can Russia undo the damage done to the concept of law by the Soviet decades? Hendley’s handling of how Russia can rescue its legal self is not much more convincing than other treatments of this same topic by others. She freely admits that there are a number of scenarios of possible futures for Russian law and that how this issue will play out will depend on the attitudes towards law developed by the various segments of Russian society.

Political scientists will admire the empirical-statutory methodology of Hendley’s book and will find few efforts equal to it. More traditional legal scholars might resist Hendley’s approach because it is admittedly difficult, gobbles up resources, and is hostile to easier, conventional explanations of non-American legal systems. My own impression is that comparative law courses in American law schools are still structured á la Blackstone, as statutory, black letter approaches whenever they dare actually to touch on the substance of other legal systems. I hope this book can make its way to the desks of persons associated with those courses in order to bring those courses into the twentieth century while that is still possible. The book is well-documented, clearly written, and will be used in aggressive comparative law courses. Though less useful for courses on comparative judicial behavior, the book still offers some valuable insights into the behavior of Soviet trial judges and should be an optional source for those courses.

In sum, this is the best book on Soviet law out there and, though the prose is not electric, it is a "must read" for anyone interested in this subject.