Russia And Eastern Europe After Communism

The Search For New Political, Economic, And Security Systems

Michael Kraus,Ron Liebowitz

• Editorial: Routledge
• Año: 2019
• ISBN:
  9781000310559
• Edición: 1
• Categoría: Historia
• Categoría: Historia del mundo

The conference on "Russia and East Europe in Transition, " held at Middlebury College in May 1994 under the auspices of the Center for Russian and East European Studies, provided the impetus for this volume. The two-day gathering was made possible by a Title VI grant from the U.S. Department of Education and the Jessica Swift Endowed Lecture Fund of Middlebury College, for which we are most grateful. Apart from the contributors to this volume, the conference participants included: George Bellerose, Raymond E. Benson, Valery Chalidze, Michael Claudon, David Colander, Guntram H. Herb, Lars Lib, Tamar Mayer, Noah M.J. Pickus, Sunder Ramaswamy, David A. Rosenberg, and Mitchell Smith. Acting as discussants, panel chairs, or interested participants, their efforts, individually and collectively, have made this a better book and their contribution to this project is gratefully acknowledged.

1
Post-Soviet Constitutionalism: Politics and Constitution-Making in Russia and Ukraine

Robert Sharlet

Russia has completed the first phase of its post-Soviet constitutional passage; Ukraine is still enroute. Each country is endeavoring to develop a culture of constitutionalism. The efforts of these post-Soviet states to define their futures in constitutional forms offer an opportunity for comparative constitutional analysis between the two major Newly Independent States (NIS) of the former USSR.

In the mid-1980s, one could not have seriously discussed the idea of “constitutionalism” in the Soviet Union. In that time of Communist Party domination of the system, the notion would have been at best utopian and at worst absurd. Nonetheless, a few years later under the leadership of Party General Secretary Mikhail Gorbachev, Soviet political and legal development began to move in a constitutionalist direction. Although Gorbachev became a figure of marginal influence in Yeltsin’s Russia, I have argued elsewhere that with the passage of time he may well be best remembered in Russia, Ukraine, and other post-Soviet successor states to varying degrees for leaving a constitutionalist legacy. Admittedly, much of what he did under the aegis of his reform program of perestroika or restructuring, was self-serving, but, then, this is what politicians do.¹

Gorbachev, nevertheless, did gradually move the public policy process from the closed universe of the Party Politburo and Central Committee to the more open, restructured parliament operating within a constitutional framework. In effect, he began to change the prevailing policy terms of reference from partiynost’, or party-mindedness, to the language of constitutional politics. Although as president, Gorbachev frequently played fast and loose with the new Soviet constitutional rules, credit will eventually be due for his central role in beginning to change the rules of the political game in the Soviet Union. In the end, of course, much to Gorbachev’s chagrin, it was the new constitutional rules which significantly contributed to the USSR’s demise in 1991, as well as the emergence of the NIS and the re-establishment of the independent Baltic states.²

Comparative Perspectives

Constitutionalism and the Rule of Law are closely related concepts in Western legal and political theory. Let me briefly indicate my understanding of the Rule of Law before comparatively analyzing Russia’s and Ukraine’s experience to date. From a macro-legal and political perspective, the Rule of Law is usually understood to mean three things. First, it encompasses the theme of limited government—the idea of a government of laws, not of men and women. Second, it clearly implies a durable due process that buffers the citizen from the state. Third, the Rule of Law is not usually fully attainable without a viable political and legal culture supportive of limited government and due process of law.

The concept of the Rule of Law is also definable from a micro-legal perspective in terms of three expectations: transparency, predictability, and equity. Ideally, these expectations are realized as the transparency of law, the predictability of outcomes, and the equity of results.

This chapter will comparatively analyze constitutional development. But why should one study constitutions to learn about politics in the post-Soviet Union? There are other paths of analysis. Students of the post-Soviet power game could cogently argue that we should focus on public personalities, career cohorts, and political baggage. Another approach might be the study of the new civil codes being drafted in most of the Soviet successor states.³ In the opinion of many legal scholars, the civil code will be the real constitution of Russia, Ukraine, and other states.

Without discounting any of these approaches, the study of constitutions is interesting, important, and revealing in a number of ways. I begin with the premise that a constitution is by no means a narrow legal document; on the contrary, it represents a metapolicy or a broad-gauge policy statement on policymaking in a society.⁴ As a metapolicy on the rules of the game, a constitution includes at least three different aspects. First, it serves as a kind of map or guide to power-sharing in a society, the configuration of the state and polity, and the status of the citizen.

Second, constitutions are revealing because the drafting process and the final outcomes provide a mirror of the past, present, and future. The past is on view in the constitutional drafting process, especially in the draft preambles where drafters tend to lay out the nation’s historical and cumulative grievances. Often a preamble can be read as a précis of perceived political history.⁵ Similarly, in the chapter on rights, constitutional framers sometimes seek to redress historical wrongs. A constitution also reflects the present, revealing prevailing priorities among the principal groups of political actors. For instance, constitutional drafting in the former Soviet states usually involves theoretical and political disputes over the effectiveness of various forms of government—for example, a consensus-oriented parliamentary model of constitutional government versus a strong leader and a presidential republic. Finally, there is the perspective on the future which a constitution foreshadows in its answers to who shall govern, through which institutions, and what images of the post-Soviet polity and society are to be projected for a particular state.

The third and last reason why I find the study of constitutions a fruitful path to the understanding of political and legal development is bound up with the idea of a constitution as covenant. The document and its consensual meaning represent a covenant within a society in the form of an accord between elites within the political class as well as the classic contractual agreement between state and citizen. The constitution, as intraelite and elite-mass covenants, includes three fundamental constitutional principles: (1) separation of powers, particularly legislative-executive relations, with the choice of equilibrium or imbalance as well as several possible roles for the third branch, the judiciary; (2) division of powers, with the choice of a unitary state, a federal system, or various hybrids; and (3) the citizen-state relationship, with the prospects of an empowered or encumbered individual and an activist or acquiescent citizenry.

Various conceptual approaches are available for capturing and analyzing the comparative aspects of Russian and Ukrainian constitutional development. Peter Ordeshook of California Institute of Technology proposes an equilibrium model, which examines the balance among the branches of government.⁶ David Lempert, a private scholar, employs an equilibrium approach as well, but seeks an equitable balance between state and citizen.⁷ Michel Troper of the University of Paris offers a choice between examining constitutions as texts reflecting the drafters’ intentions, or as mechanisms producing results independently of the framers’ visions through a variety of springs, checks, and balances.⁸ There is also the interesting discussion between Cass Sunstein of University of Chicago, and Herman Schwartz of American University, over whether a constitution should be confined to negative rights against the government, or should also include goals and aspirations imposing affirmative obligations on the state.⁹

My own comparative approach to NIS constitutional development draws on some aspects of these conceptual approaches, but focuses on a threefold conception of the constitution as text, as fundamental law, and as metaphor.¹⁰

Russian and Ukrainian Constitutional Development: An Overview

Russia’s first post-Soviet constitution went into effect on Christmas Eve day 1993.¹¹ The new constitution superseded the much-amended Soviet Russian constitution of 1978.¹² In Ukraine, the 1978 Soviet Ukrainian constitution, also heavily amended, still remained in force in 1995. Although Ukraine was the first of the Newly Independent States to peacefully and legitimately transfer power from its first to its second president in 1994, four years after independence the country was still in pursuit of a post-Soviet constitution.

Russia and Ukraine have both incurred costs as a result of their respective avenues of constitutional development. In Russia, the political and legal costs of President Yeltsin pushing through the new constitution were quite high as a result of events beginning with his September 1993 decree partially suspending the extant constitution and dissolving parliament, right through the December constitutional referendum. Because of serious questions about the conduct of the referendum, the new Russian constitution came into existence under a cloud of doubt.¹³ In Ukraine, the failure to promulgate a new constitution during the Kravchuk Administration (1991–94) incurred even heavier political and economic costs, including a paralysis of public policy, minimal economic reform, and raging hyperinflation. While the new Russian charter, whatever its provenance, seems to have stemmed the heretofore steady erosion of the state’s prestige, the absence of a new constitution in Ukraine, with its negative consequences for economic development, has adversely affected the legitimacy and unity of the state.¹⁴

Thus, because Russia has progressed further along the road toward constitutionalism and the tale of its passage is better known in the Western literature, the documentary and analytical emphasis in this chapter will be on the less advanced as well as lesser-known case study of Ukrainian constitutional development. Nevertheless, the more fully examined Ukrainian developments will be framed comparatively within generalizations drawn from Russia’s constitutional experience.

To begin by way of comparative overview, the similarities between Russian and Ukrainian constitutional development are striking: both processes emerge from and carry forth baggage of the Soviet model of constitutional development; in both cases, constitution-making and the task of state-building are indivisible; both states have been or are riven by profound differences in the perspective of their presidents and parliaments, resulting in differing constitutional choices; and in both states, the constitutional drafting process has been conflicted and protracted.

Yet, certain dissimilarities between constitutional politics in Russia and Ukraine are also evident. Russia is more secure in its post-Soviet identity; Ukraine is undergoing decolonization as it undertakes constitutional development. Russia is struggling to define itself constitutionally as an actual federal system; Ukraine, although troubled by an ethnic dispute, is still fundamentally a unitary state.¹⁵ In Russia, the constitutional priority is stability; for Ukraine, the dominant themes are preservation of independence and maintenance of territorial integrity. In Russian constitution-making, Ukraine was a peripheral issue at most, although with the rise of Russian nationalism post-constitutionally, Ukraine is “becoming part of the internal political debate in Russia.”¹⁶ Conversely, for Ukraine the Russian question is unavoidable, particularly in terms of the co...

Índice

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• List of Tables and Figures
• Preface
• About the Book and Editors
• About the Contributors
• Introduction
• 1 Post-Soviet Constitutionalism: Politics and Constitution-Making in Russia and Ukraine
• 2 Endangered Citizenship
• 3 Prospects for Democracy in Russia
• 4 External Transformation in the Post-Communist Economies: Overview and Progress
• 5 It’s Déjà Vu All Over Again: Russia’s Economic Reforms in the 1920s and 1990s
• 6 Reforming Agriculture in Russia: The “Cursed Question” from Stolypin to Yeltsin
• 7 Shock Therapy and After: Prospects for Russian Reform
• 8 Is Russia’s Inflation Inevitable? Macroeconomic Policy in the Transition Period
• 9 Russia’s Center-Periphery Fiscal Relations During Transition
• 10 The Soft State and the Emergence of Russian Regional Politics
• 11 “Internal Enemies, External Enemies”: Elites, Identity, and the Tragedy of Post-Soviet Georgia
• 12 Returning to Europe, Separately: International Factors in Czechoslovakia’s Dissolution, 1989–92
• 13 Political Culture in Transition: Germany and the Return of the Communists
• 14 Sovereignty, Self-Determination, and Stability in the Contemporary Interstate System
• 15 Russia and the West: From Cold War to Cold Peace
• 16 Courting the Generals: The Impact of Russia’s Constitutional Crisis on Yeltsin’s Foreign Policy
• 17 The Price of a Bleacher Seat: Eastern Europe’s Entry into the World Political Economy
• Index