Tuesday, November 5, 2013

Window on Eurasia: Russia Still Held Back by ‘Pseudo-Constitutionalism,’ Ufa Legal Scholar Says

Paul Goble

            Staunton, November 5 – The pseudo-constitutionalism (“Scheinkonstitutionlismus”) that Max Weber identified as a chief characteristic of Russian political life more than a century ago is still holding Russia back despite all the changes since that time and threatens to keep the country at the level of a third world state for the forseeable future, according to a Ufa-based scholar.

            In an article for the RB21vek.com, Anatoly Timonin, who teaches the history of law at Bashkortostan State University and who is most well-known for his research on the genesis of Russian statehood, argues that pseudo-constitutionalism is doing more harm to Russia than almost anything else (rb21vek.com/ideologyandpolitics/751-an-timonin-o-problematichnosti-konstitucionalizma-v-rossii.html).

            While there is no doubt about the existence in Russia of constitutionalism as an ideal or scientific conception, he writes, numerous Russian specialists on constitutional law have strong doubts about the existence of constitutionalism “as a reality of our days,” as a set of principles that actually guides practice.

            Anyone who considers the way in which the 1993 Russian Constitution is used, Timonin says, will immediately recognize that many of it sformulations are “decorative” rather than defining and that they remain in effect “lifeless.”  That of course leads to the two classic “Russian questions: ‘who is guilty?’ and ‘what is to be done?’

            “The standard answer”to the first is that Boris Yeltsin is guilty of everything because he “by his incompetent policy” pushed Russia in this as in so many areas “onto the tracks of an imitation path of development.”  But of course, the problem has far deeper roots in time and culture.

            Long before Yeltsin appeared on the scene, the CPSU “imitated ‘social democracy’ and ‘developed socialism’ and ‘an all-peoples state.’”  Today “all these ‘realities’ of [Russia’s] recent past are conceived of as simulacra” of reality than as realities as such. But if one goes back to tsarist times, one sees a similar pattern.

            “Uvarov’s triade ‘orthodoxy-autocracy-nationality’ lost is importance long before it was promulgaged. Patriarch Nikon by his reforms not only made possible the split of the Orthodox church but contirubte to the bureaucratization of official Orthodoxy.”  And that list can be extended almost at will.

            Thus, Timonin continues, it should come as no surprise that the Provisional Government failed so quickly and that the entire effort at “the accelerated Europeanition of Russia ended with the grandiose catastrophe of 1917.”

            What kind of political systems last the longest? Those which have real political institutions including constitutions or those which have only the appearances of such things? The answer is obvious. Russia, although a daughter of Byzantium, which did have a kind of constitution, became a state “in which Roman law played an insignificant role.”

            Instead, Russia despite all its claims about Byzantium and even Europe “was created according to the so-called ‘steppe model,’” a reality that has shown itself at every turning point in the history of the country and one that justifies the continuing use of Weber’s term “Scheinkonstitutionalismus.”
            Today, many Russians say that there country is descending ever more toward the “third” or even the “fourth” world. The economic situation only explains part of these fears; the political system explains rather more. Although it has dispensed with “socialism,” it hasn’t been able to escape from the category of countries which have “administered democracy.”

            Among them is Cameroun, a plae where “there is no real division of power” and where parliamentary life, laws, and the freedoms of citiens bear a formal character,” here the supreme power is characterized by “concentration and personalization” and where “the party structure is intermixed with the state.”

            While the survivals of the Soviet past like fundamental science and the military set Russia apart from Cameroun, the Soviet inheritance in legal culture is pushing the country precisely in that direction, Timonin argues, however much people talk about the creation of “a state of the European type” in the near future.

            Because of a genuine as opposed to “pseudo” legal culture, Russia has become “a normal Byzantium,” as V.B. Pastukhov writes, with its  endless “intrigues, clan struggles, universal bureaucracy and cosmic venality.”  What the post-1991 government has done is instill “respect for ‘the market;’” what it hasn’t done s promote “respect for law.”

            Other countries that have tried to dispense with real constitutions and the rule of law have not been able to prevent the onset of serious economic crises or the rise of fascism, Timonin says. And Russia is one of them, even if it contantly refers to its Byzantine roots, to a society that had a genuine and thus long-lasting constitutional tradition.

            “In contrast to continential Europe and English, even ‘a national law’ did not become ‘one of the foundation of society’ in Russia,” he writes.  Instead, Russia has remained pulled in the direction of the East with its arbitrary authoritarianism rather than the West with its law-base arrangements.

            Indeed, the 1993 constitution is lessaconstitution than a nod toward “the political fashion” of the day, an attempt to suggest that Russia was something it was and is not, a constitutionally-defined, law-based state by invoking principles others followed but that the Russian leadership had no intention of following.

            That is true in China today and “iin the recent history of third orld countries when the ideas ofArab, African or Burmese socialism became fashionable” and were enshrined in basic texts.  Soviet authors often called such statements “radicalism in words,” without admitting that their country’s constitution was the same.

            It is completely obvious, Timonin writes, that no one in the third world thinks eriously about a legal state; and it is also completely obvious that neither there nor in Russia has there ever been “a sacralization of law.” What there has been and what pseudo-cosntitutionalism does not prevent is “the sacralization of supreme power.”

            That is what is pushing Russian toward third world status. “Under such conditions, the ideas of a legal state of the rule of law, of the division of powers, and of human rights are pushed out to the pereiphry of public consciousness, and their sad fate yet again testifies to the problematic nature of constitutionalism in contemporary Russia.”

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