University of Washington, Political Science Department
Post-Soviet Courts and the Rights of Religious Minorities
The courts in all of the former Soviet countries show a strong tendency to rule against religious minority groups, even though the laws in these countries provide for religious liberties. They can deny these groups the right to acquire property, ban their registration, or make them non-legal entities. These deviations from the law are especially peculiar since they are being conducted in authoritarian regimes, where non-compliance with institutional boundaries can be costly. In this paper I examine the reasons behind such a discrepancy in judicial decisions in Tajikistan, Azerbaijan and Ukraine. I argue that judicial non-compliance with formal institutional boundaries with regards to the rights of religious minorities in authoritarian and hybrid regimes is affected by public norms, defined as socially enforced self-serving beliefs (a concept developed by William Talbott (2005)). I further argue that public norms are, in turn, affected by the identity-building processes, which are a part of the post-Soviet national revival.
Western scholars often tend to assume that human rights are equally understood in the non-Western world; scholarly writings revive around cultural vs. universal rights debates, which discuss given nations’ willingness to protect individual rights. There has been little discussion, however, about how rights are defined by the populace, how they fit into construction of new national identities, and how these views affect law enforcement practices. In other words, while the West expected that the collapse of the U.S.S.R. would result in a popular embrace of individual rights and freedoms, those who lived there saw freedom as a possibility to restore what was lost due to the Soviet suppression. It meant freedom of speech and the press. It also meant revival of national identity and religion, which were heavily suppressed during the Soviet rule. And the latter meant suspicion of Western proselyting religions, which would challenge a local religion and, thus, become a threat to survival of national identity. Thus, some – but not all – individual rights are challenged by majority’s aspirations to restore national pride.
I argue, then, that if expansions of certain rights are not supported by the majority, police and courts are not likely to act/rule in favor of these rights. In fact, they might even violate a legal code to further suppress these individual rights. Thus, I challenge an assumption of counter-majoritarian nature of the courts, claimed by a number of scholars. In doing so, I build on Girardeau Spann’s work who argues that judges are much more likely to reflect social prejudices, than rule against the majority (1990). I claim that this premise is especially applicable in the post-Soviet context, where a legal code is not perceived to be reflective of local social norms. In other words, being, for the most part, based on the Soviet code, is it seen as imposed by a foreign power; and judges and police take the liberty to incorporate social norms into their decisions even if, sometimes, they have to bend the law. The research strikes at the core of democratization processes in these countries by exploring the role of law enforcement, public norms and the influences of the international community.