American Democracy, Orthodoxy, and the Law
“There have been two major types of ‘corruption.’ First, a great number of cases, primarily political, were removed from the jurisdiction of the courts and submitted to special forms of investigation and trial. Secondly, the independence of the judges was progressively curtailed, and the courts were placed in an ever more dependent position. The government was pursuing strictly political ends in taking these measures. And it is remarkable how it was able to hypnotize the public, too, into focusing on the courts’ political role.”
Written over a hundred years ago on the cusp of the Russian Revolution, these words by Bogdan Kistiakovskii (1868-1920),[1] help to spotlight what is now unfolding in the United States. Regardless of where one stands on the political spectrum, the United States is divided. That the Orthodox churches in the US have not addressed the political, social, religious and moral issues causing this division is disappointing. That Orthodox bishops have not yet added their voices to the Conference of Catholic Bishops in defense of immigrants or publicly stood by Bishop Mariann Budde and her plea for our nation’s president (and his administration) to be merciful to the poor, the stranger (particularly undocumented immigrants), and those of the LGBTQ+ community is regrettable. While the Orthodox churches remain silent, the rule of law is being eroded.
Broadly, most of the history of Orthodox Christianity has played out either within the experiment of the Christian empire—be it Byzantine or Russian—or under the restraints of the Ottomans and Soviets. Today, unlike the mother churches abroad which are either under authoritarian dictatorships or are closely tied to and financially dependent upon democratic governments, the Orthodox churches in America are free from government support and/or interference, which allows them to speak and act freely. Given this relatively novel context, Orthodox churches in America have the freedom to respond to what is perceived by many to be the erosion of American democracy. But will our churches in America speak out and challenge this or any administration that caters to the most powerful and wealthy while instilling fear among the most vulnerable and targeting those most in need? Are the bishops, priests and faithful of the Orthodox churches capable of coming together to provide a unified voice that denounces the banners of “America First” and “Make America Great Again” as they uphold the teaching of Christ who, through his own example, states that the one who would be first and great is “to become last of all and servant of all?” (Mk.9:35)
For the Orthodox churches to respond to our divided nation they need to recognize that American secular culture provides a fertile context from which to proclaim the Gospel of Jesus Christ. Yet, our secular culture is often derided by a religious zeal that purports to uphold the pillars of democracy, particularly First Amendment Rights, while simultaneously eroding their foundation. Consequently, the legally protected democratic givens of equality, justice, representation, and the freedom to worship (or not to worship) are being gradually modified. Long fought gains and opportunities intended to overcome social and economic disparities of persons and communities are being chipped away as misinformation impacting the lives of millions gives rise to a culture of hubris, selfishness, and hedonism.
It is clear that an emerging American authoritarianism looks to restructure and restrict the federal government as it dismantles American democracy. As Kevin Roberts, president of the Heritage Foundation and major architect of Project 2025 has stated, our country is in the “midst of a second American Revolution” that intends to be bloodless provided the “left allows it to be.” Roberts’s reference to a second revolution coupled with his caveat aimed at those opposing it is a threatening trope that raises the question of how a second revolution might be poised for action. One way to do this is for American Orthodox to focus attention on the treatment of law and the ensuing results that occurred in late 19th and early 20th century Russia.
Prior to the 1917 revolution, decisive steps were taken to provide a progressive moral compass for the Russian empire. Under the reign of Alexander II (1855-1881), the emancipation of the serfs (1861) followed by the legal reforms which included open trials, trial by jury and the abolishment of capital punishment (1864), Russian jurisprudence took on the challenge of maintaining the balance between personal rights and those of the collective. However, in spite of the pockets of enlightened jurists within the ancien régime, Russians as a whole remained distrustful of the law. The reasons for this vary though, in the final analysis, the concepts of rights and freedom—personal and/or collective—became the center piece of legal debate that ultimately led to the revolution inaugurating 70 years of brutal socialist dictatorship.
As Russia headed towards revolution, prophetic voices such as Kistiakovskii’s attempted to alert those who were willing to protect the law. Clearly, for Kistiakovskii, the law and the courts were the foundations of freedom for both the person and the collective. He points out that the “essential element” of jurisprudence is freedom and warned of the ensuing disastrous consequences of anarchy and revolution that overtake a society unwilling or unable to uphold the laws and courts that protect freedom.[2] Kistiakovskii also exposes the social, philosophical and religious trends—mainly of the intelligentsia and Slavophiles—that instilled suspicion regarding the necessary relationship between the law, the courts, and freedom. He shows that for many of the intelligentsia, antipathy towards the law stemmed from an understanding that it hindered the individual from freely pursuing the spiritual and creative aspirations of human nature. Counterintuitively, for the intelligentsia, concepts such as freedom, ethical behavior, mutual trust, individual and collective self-perfection and apotheosis would only be hindered by a stable and functioning legal system.
Among the Slavophiles were those who applauded Russia’s weak and underdeveloped legal system. To place trust in the law was a capitulation to the decadent West and the influences of heterodox Christianity. Referring to the notable Slavophile, Konstantin Aksakov (1817-1860), Kistiakovskii offers an example of why the legal reforms of Alexander II struggled to bear any good and lasting fruit for the Russian empire.
Konstantin Aksakov asserted that while ‘Western man’ took ‘the way of formal justice, the way of the state,’ the Russian people took the way of ‘inner justice.’ Therefore, in Russia, especially before Peter’s reign, the relationship between people and Sovereign was based on mutual trust and a sincere reciprocal desire for the common good. ‘But,’ he suggested, they will tell us that ‘either the people or the authorities may betray the other. A guarantee is needed!’ And to this he replied, ‘A guarantee is not needed. A guarantee is an evil. Where it is needed, there is no good; it is better for a life that contains no good to be destroyed than for it to endure with the help of evil.’[3]
Though Aksakov predates Alexander II’s reforms, his naïve cynicism that eschewed the law and favored authoritarianism was already deeply imbedded in the Russian psyche. Kistiakovskii points out how by 1909 Russia’s judicial system was being co-opted by an imploding government. Moving closer to revolution, the effectiveness of the Russian courts and judges was wanning as it opened the way for Vladimir Lenin’s socialist agenda. Prior to this violent transition, Kistiakovskii already sensed that the law as both protector of personal and collective rights was in the process of becoming “a regime of force”[4] which in the final analysis would remove any restrictions from those wielding political power.
For Kistiakovskii, the engine driving the “regime of force” was Lenin’s “state of siege” strategy necessary for striking out against the status quo. He quotes Lenin’s speech given at the second congress of the Russian Social Democratic Labor Party (1903).
“I am not at all frightened by the terrible words ‘state of siege,’ ‘exceptional laws’ against particular individuals and groups, etc. When it comes to unstable and wavering elements we not only can, but we must create a ‘state of siege,’ and our party statutes as a whole, the centralism of which this congress has henceforth confirmed, are nothing but a ‘state of siege’ against the many sources of political vagueness. It is against vagueness that need special, even exceptional laws, and the step by this congress has correctly charted our political course by creating a solid basis for such laws and measures.”[5]
While there are many differences between the Russian empire of 1909 and the United States of 2025, there is a parallel political ideology that seeks to impose restrictions on personal and collective freedoms while eroding due process of law. The MAGA movement and the Project 2025 manifesto are variations of a theme that was forcefully played by Vladimir Lenin and his disregard for the law. Any and all opposition that questioned, challenged, or undermined the emerging Social-Democratic Party was to be stamped out.
The question remains, are the Orthodox churches willing to embrace American secular democracy with its separation of powers as the context to proclaim the Gospel of Christ’s death and resurrection, or will it continue to feed on a lingering nostalgia for a monolithic/theocratic social context?
[1] “In Defense of Law: The Intelligentsia and Legal Consciousness,” in Vekhi (1909/1994), trans. and ed. by Marshall S. Shatz and Judith E. Zimmerman with a Foreward by Marc Raeff: 91-114.
[2] Ibid., 91
[3] Ibid. 95
[4] Ibid. 108
[5] Ibid. 106
