Partlett, William

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Yevgeny Prigozhin and Russia’sExpanding Prerogative StateWilliam Partlett 2023-06-26T10:38:12Over the weekend, the world’s attention was gripped as a well-equipped Russianprivate military company led by Evgeny Prigozhin seized control of a key Russiancity and military hub, and marched on Moscow.Russian president Vladimir Putin gave a televised speech, calling Prigozhin a traitorwho was “stabbing Russia in the back”.It seemed that a real coup attempt was underway and Putin’s leadership was inreal jeopardy.  But, within 24 hours, it was all over and much of the world was leftscratching their heads. Prigozhin had secured a deal for himself and his troops wereheading back to their camps.What happened?The Prigozhin affair was not a serious coup or attempt to challenge PresidentVladimir Putin’s authority.  It was instead Prigozhin’s attempt to secure his ownposition in his ongoing feud with the Minister for Defence, Sergei Shoigu.Prigozhin’s actions reveal a deeper truth about Putin’s Russia: the absence offormalised, legal mechanisms for peacefully resolving high-level, intra-elite disputes.As the war in Ukraine drags on, what Ernst Fraenkel called the ‘prerogative state’is expanding.  This lawless realm of unchecked public power has no rules orinstitutions that can settle disputes among the Russian elite; these can only beresolved by Putin himself.Prigozhin’s actions therefore were not a challenge to Putin, they were an appealto get his attention.  This expanding prerogative state therefore demands moreand more of Russia’s aging president. Putin must be everywhere, solving themanifold problems and disputes that keep emerging from the pressures of the war inUkraine.  If he fails to, things can go wrong quickly. The expanding prerogative statetherefore poses serious challenges to the stability of the underlying system that Putincreated. And it raises important and pressing questions about what will happen tothe Russian state when Putin is no longer in power.Resolving elite disputesIn the 1940s, Ernst Fraenkel wrote an important book about what he called the‘dual state’ in Nazi Germany.  He described how two states co-existed in Hitler’sGermany. The prerogative state, he argued, operated outside of law.  Here, the‘governmental system’ directed by Hitler and the Nazi Party ‘exercises unlimited- 1 -arbitrariness and violence unchecked by any legal guarantees.’   In the ‘normative’state, by contrast, courts continue to follow the law in resolving less high-profilecases and controversies.He explained the co-existence of these two states as an adaptation to the rise of theNational Socialist Party.  When Hitler or the Party was challenged, the prerogativestate would prevail and law would not limit the personal power of those in charge. But, in matters that did not involve the interests of the Nazi Party, the normative statecontinued to operate.Why would the Nazis not intervene here as well?  They needed the law to structureeveryday, commercial affairs and dispute; it is next to impossible to organize alarge system of market capitalism where there is no underlying consensus and trustamong stakeholders on the predictability of outcomes if these vary from case tocase. It would be impossible to have any form of economic growth or exchangeif there are no rules for private and intangible property, entrepreneurial freedom,sanctity of contracts, unfair competition, labour employment.Russia has evolved according to a similar logic. Putin and his supporters use theprerogative state to ensure that they have unchecked, personal power to settledisputes that threaten their power.  In fact, ultimately these disputes are determinedby the personal intervention of Putin himself.But, in other disputes that do not make the headlines or impact major politicalplayers, legal institutions still function.  Political scientist, Professor Peter Solomon,uses Fraenkel’s terminology of the dual state to describe a system where politicisedcases are handled according to power politics while other less high-profile cases “arehandled fairly and expeditiously.”  Without this normative state in place, the Russianeconomy would struggle to function.The Prigozhin affairThe ‘Prigozhin affair’ grew out of an intensifying intra-elite feud between Prigozhinand the Russian Minister for Defence, Sergei Shoigu.This kind of elite feuding is highly common in Putin’s Russia.  In fact, elite splitsenhance Putin’s power by decreasing the possibility of a strong challenge to hispower.  This divide and rule style has played a key role in allowing Putin to preservehis power for decades.For months, Prigozhin knew he could get away with his criticism of the RussianDefence Minister because he was useful to the war effort.  His contributions to thewar – and particularly the role of his private military company Wagner in the captureof Bakhmut – gave him leverage that guaranteed his safety.But, in recent weeks, it appeared that he was losing this leverage.  In the daysbefore his ‘mutiny’, Prigozhin found out that his private military company (Wagner)would be absorbed into the Russian military.  Rumours were also swirling aroundthat Prigozhin would soon be arrested and put in jail.  Seeing his position weakening,- 2 -Prigozhin – a convicted criminal who served time in prison – understood the logic ofthe prerogative state.  There were no regularised ways of defending his position. The best lawyers in Russia could not save him. Any criminal proceeding against himwould be pre-determined and a mere formality before a very long jail sentence.In the end, the currency of the Russian prerogative state was force and power. He had to flex his power while he still had it.  His march on Moscow was thereforenot a coup meant to challenge Putin or topple the Russian state.  In fact, his publicstatements carefully avoided criticising Putin. His actions were instead a way to forcePutin to recognise and protect Prigozhin.And they paid off.  The Russian army was caught off guard and his forces wereable to seize a key Russian city (and military hub) in the south and begin to movetoward Moscow.   But throughout, all sides avoided serious confrontation; it lookedlike everyone understood what was happening.  Prigozhin got Putin’s attention and,ultimately, a deal.The perils of an expanding prerogative stateThe Prigozhin affair shows the changing nature of Russia’s dual state.Although the normative state still operates in Russia today, the war in Ukraine hasundoubtedly expanded the Russian prerogative state.  This has advantaged Putinand his supporters by allowing them more space to crack down on opposition to theKremlin.  A good example is the failure of a recent challenge to a law that has beenused to punish thousands of Russians for criticising the war.The main complaint—filed by OVD-Info—argued (among other things) that this lawunconstitutionally imposed a state ideology in violation of Article 13 of the RussianConstitution.  An amicus brief (submitted by Alexander Blankenagel and myself)argued that the law is extremely vague and clearly not ‘necessary’ to achievingany constitutionally permissible goals as required by Article 55 of the RussianConstitution.The Russian Constitutional Court dismissed these arguments, tacitly endorsing asignificant expansion of the Russian prerogative state.  The Court argued that thelaw was valid because it served a compelling end: the protection of the Russianarmed forces and their duty in protecting Russia (as well as ‘international peace andsecurity’).  The Court did not challenge the relationship between the law and thisend, choosing to take the government’s assertions at face value.  Furthermore, itcompletely ignored whether this law was ‘necessary’ to achieving a legitimate end orif there might be less restrictive means of achieving this end.This reasoning gives the state a blank check in protecting what it claims to be the‘public interest.’ The individual rights provisions in the Constitution—already heavilyunderenforced before the war—are now irrelevant.While the expanding prerogative state allows Putin and the Kremlin more room tosuppress the opposition, it also generated the Prigozhin affair.   In a time of war,- 3 -elite disputes are more likely and can escalate more quickly.  Furthermore, more andmore members of the Russian elite themselves are personally enlisting themselvesin the war effort.  In fact, they are increasingly forming their own private militarycompanies to shore up the military’s war effort.  For instance, the large natural gascompany, Gazprom, is starting its own private security organisation.In this environment, intra-elite disputes are far more dangerous than they werebefore.They are not more dangerous because they are the beginning of the end for Putin,as many are arguing.  In fact, intra-elite feuds enhance Putin’s power because heis the only one capable of resolving them.  Prigozhin’s actions therefore appear tohave been a very noisy way of getting Putin’s attention.  So, if anything, it confirmsthe ongoing personal power of Putin.But, it does show that the system of power that Putin has created is increasinglydysfunctional.  A system that requires the aging president’s personal managementat all time – what many Russians call ‘manual control (ruchnoi kontrol) — isdifficult to sustain when Putin is also overseeing the war.  If Putin is distracted andneglects intra-elite feuds, they are left to fester and, as in this case, erupt. If Putinis unable to develop a more effective way of resolving intra-elite disputes (whichis next to impossible), he and the Russian state along with him might very well bedestroyed by the very war he started. Moreover, a post-Putin Russia looks evenmore precarious as the Russian prerogative state will be unable to regulate the feudsto replace Putin.- 4 -

Yevgeny Prigozhin and Russia’s Expanding Prerogative State

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Yevgeny Prigozhin and Russia’s Expanding Prerogative State

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