Saturday, November 17, 2012

Window on Eurasia: Communist Legal Theory in 1993 Russian Constitution Opened the Way for the Return of an All-Powerful State, Moscow Legal Scholar Says

Paul Goble

            Staunton, November 17 – Despite democratic slogans, Russian society in the early 1990s continued to be dominated by communist philosophy which among other things led to support for an all-powerful state, albeit one directed toward new goals, according to a leading legal scholar in the Russian Academy of Sciences.

            And because of that, Sergey Alekseyev writes, there was little discussion in the run up to the adoption of the 1993 Constitution of the ways in which that document should have limited state power in order to ensure that human rights were to be protected against abuse by the authorities (

            In an extensive essay in “Nezavisimaya gazeta” yesterday, Alekseyev, a candidate member of the Russian Academy of Sciences who participated with Anatoly Sobchak, Yuri Kalmykov and Stanislav Khokhlov in the drafting at that time of an alternative constitution, explains why this hangover from Soviet times has had such fateful consequences.

            Russia, he observes, is “a country with a unique state-political culture which is split between pre-state values and a tyrannical imperial power,” and that pattern was both reified and intensified by the way in which the Communist Party used the constitution to promote a specific political agenda rather than to limit state power and defend individual rights.

             Alekseyev says that after the collapse of the USSR, there was an immediate need to create a new constitution for Russia, and many were hopeful that just as Russia was breaking away from communist economic norms, it would have equal success in doing so in the political sphere.
             In all this, Alekseyev argues, “Soviet constitutional traditions showed themselves in the theoretical-declarative formulations” of the new document and “what is the main thing were included in the draft the imperatives of communist legal ideology.” As a result, the document’s good words about the supremacy of law obscured but did not do away with “the main postulate of Marxistlegal doctrine in its neo-Stalinist, Brezhnevite form – the all-powerful nature of the Soviet authorities.” 

            To a great extent, he suggests, Russian constitutional development paralleled what was going on in the economy where essentially “Bolshevist and Red Guard” approaches were being used “under the slogans of democracy and the market” to transform the country “into flourishing capitalism.”

            Some scholars and politicians at that time understood this danger, and both he and they came up with an alternative draft for the constitution, one based on the ideas that the document must establish limitations on the state lest it become a dictatorship or tyranny and that the rights of the individual are protected as something “inviolable” and “inalienable.”

            To that end, the drafters of the alternative constitution removed from its text “everything that even in the slightest degree would lead to the rebirth of communist power” and sought to include as the most important feature of the basic law “the strengthening of the inalienable rights of citizens” through “the necessary limitation of the powers of the authorities.”

             In short, the alternative draft sought to ensure that “the basis of the state and constitutional system would be not the authorities,” however limited, but rather be “in correspondence with contemporary humanistic philosophy” and its focus on the individual and his inalienable rights.

            That effort was made more difficult at the time, Alekseyev writes, because “the euphoria of deifying everything American,” an attitude that has dissipated. Such feelings meant that the primary discussion in Russia was not about the state as such and about individual right but rather about an American-style division of powers.

            The alternative draft on which he worked was published in March-April 1992, Alekseyev notes, and it immediately was attacked “both from the side of communist circles and from the supporters of the official document.” But the alternative was important because it sought to deprive the state of “its traditional super-power qualities.”

            The Russian Constitution which was adopted in December 1993 and remains in force reflects communist legal theory in many places and “in correspondence to Soviet traditions,” combines human rights with the rights of citizens “including social-economic rights” while saying little about limiting the state or protecting the individual from it.

             For those who worked on the alternative draft, “the bitterness of a missed chance remains.” Clearly, many of those who worked on the official draft were products of”former leading Soviet institutions” and thus were inclined to follow the “in pro-Soviet fashion the attitudes” of the leaders of those institutions.

             While there has been some progress in the courts, these problems with the Russian Constitution very much remain on view.  “In Russian society today,” Alekseyev writes, ideas and habits rooted in the communist philosophy of law continue to rule, a philosophy which now finds its expression chiefly in the imperial-state, great power views, habits and tendencies toward unrestricted power.”

            “There is no particular reason to hope that in the near future amendments will be made to the Constiuttion that would return the normative provisions about human rights” to their proper and dominant place. But there can be reason for some hope if people begin to struggle so that “fundamental human rights will become the central legal idea and irreplaceable core of he entire Russian legal system.”

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