Russian Constitutionalism

Historical and Contemporary Development

Andrei Medushevsky

• Publisher: Routledge
• Year: 2006
• Print ISBN: 9780415545723
• eBook ISBN: 9781134226481
• Edition: 1
• Topic: History
• Subtopic: Russian History
• Index: History

Medushevsky examines constitutionalism in Russia from Tsarist times to the present. He traces the different attitudes to constitutionalism in political thought, and in practice, at different periods, showing how the balance between authoritarianism and liberalism has shifted. In addition, he discusses the importance of constitutional developments for societies in transition, and concludes that post-communist constitutional development in Russia is still far from complete. As an empirical resource, Russian Constitutionalism takes a longer historical view than other books on this topic, and it also goes further than this in its interpretive approach, providing a greater understanding of Russian constitutionalism.

1 Constitutionalism as a theoretical issue in transitional societies

The history of Russian constitutionalism is of special interest as a case of a transition from authoritarian regime to democratic reforms in recent times. Over a long period, most scholars considered this process to be unique and thus impossible to describe in typological terms. In a contemporary world, as the transition from authoritarian regimes to democracy takes new forms, the need for a typological comparative analysis of its propensity for conflicts is greater than it has ever been. The main issue is how democratic norms and mechanisms can be applied to the societies where both people in power and society at large have inherited traditional features of authoritarian conscience. From this perspective, the existing historiography offers two alternative views. The first assumes that if only the authoritarian government were toppled, society would automatically accept democratic norms regulating market relations and the right to economic enterprise. However, experience has shown that democratic innovations clash with old stereotypes. Here, the second view gains ground: democratic norms in the spirit of western values are totally unacceptable for traditional societies. In that case, the old regime is restored and idealized, i.e. a traditional society regained. These two views are represented in the ideological struggle unfolding today.

The adoption of a new system of democratic values by traditional societies should be viewed as a research problem that can be tackled only through a typological and comparative approach. The world history has demonstrated that traditional authoritarian regimes can shift to modern political systems withstanding challenges of modern and recent times in different ways: either through revolution and complete destruction of the old regime; or through constructive legal self-reforming that is time-consuming and yet fruitful. Russian history has seen both ways in action. However, the experience of constructive and efficient reforms of the state, society and political system – that's what we call constitutionalism – has not yet been synthesized and interpreted as a holistic phenomenon. Neither has the development of Russian constitutionalism been studied in a comparative perspective, unlike the history of revolutionary consciousness. The point is that in the pre-revolutionary science no specific historical study was conducted into this subject, as it would have questioned the very principle of autocracy. The first brief attempts to study the history of constitutional movements that were made at the beginning of twentieth century, when the transition from autocracy to constitutional monarchy was under way. These attempts included such obscure publications as the 1730 political projects, political projects of Mikhail M. Speransky, the scientific publication of Catherine II's Nakaz (Instruction) and others. However, each subject was explored separately, and no comparative analysis was conducted.

Constitutionalism emerging in modern times is a reflection of factual social changes and widespread transition from absolutist monarchy to law-based state, on the one hand; and a tool used for influencing modernization with a varying degree of effectiveness due to various reasons, on the other. The legal norms of constitutionalism should be examined in terms of legal control over relations between the state and society and the mechanisms ensuring a stable social consensus.

The chosen research method is based on the essence of this approach. We focus on constitutions (basic national legislation at any particular moment in time), as well as on changes in constitutions and their replacement. Exploring these changes allows us to re-create the socio-political realities that they actually brought to life. Following this approach, the very fact of major constitutional changes or events (such as constitutional revolutions or radical constitutional reforms analysed further in more detail) demonstrates imbalance in the pre-stability period and the lack of a political consensus in society. These changes and events also demonstrate along which lines the consensus is sought for, and what becomes legally binding within a new public legal structure. Then it becomes clear what norms and rules of interaction have been agreed by those involved in political process.

In the study of constitutional process, the actual stages of transformations and their sequences are of equal importance as their historical and chronological course. Therefore, for a better understanding of contemporary Russian constitutional institutions, we should compare them not only with the Western European institutions of recent times but also with the similar constitutional parameters of modern times. That helps to explain the wisdom of legal norms whose social content varies from one historical epoch to another. In modern and recent times, any crisis goes through the following phases: initial stability, instability and regained stability. And the changes occurring throughout these phases are likely to be transposed into political and legal regulations taking a more or less fixed form. The tendency is also typical of certain authoritarian political systems (illegal per se) where it is manifested in the phenomenon of either nominal or sham (pretended) constitutionalism.

Like all general notions, the key conceptual notions of constitutionalism and constitutional cycles are applicable only in a rather abstract model of research. In this sense, we refer to the big cycles that cover small ones. Big cycles include three main stages: stability, destroyed stability and regained stability. Why does the normative regulation of social relations never lose its relevance? We believe this is due to the quest for consensus and its embodiment in regulatory norms. The constitution, as a code stipulating legislative forms of utmost importance to society, is an essential element of the mechanisms used for solving political crises. Obviously, constitutions (except for provisional ones) represent society's interests and often present an ideal project for its future development. This instrument, however, can be effective only if the legislative forms are accepted by society and their fulfillment is guaranteed by political power. Thus, constitutions can be broadly divided into effective and ineffective. All social and political crises have common features. They initially destroy constitutional stability, pass through identical stages of development, and eventually restore constitutional stability. Therefore social processes are cyclical in nature. And this is reflected in a constitutional cycle.

According to the theory of constitutional cycles, society is perceived as an existing system and objective reality. Society is an integral system tending towards stability. We view the cycle as a shift from one phase to another. In this process the key role belongs to a socio-psychological component: certain ideas take root in people's minds and then gradually change, following the logic of historical development. This process develops in a certain type of homogenous society and political regime. Unlike natural cycles, social ones can be either spontaneous or controllable and manageable from within society. This fact is very important because it allows changing the system not only through destruction, but also through reform and social regulation. Hence, there are several possible ways to do so: first, social process can be independent of people's intentions (spontaneous); second, it can be destabilizing and aim at dismantling the existing system (the so-called “professional revolutionary spirit”); and lastly, it can be driven by a deliberate process of legal regulation. History knows three main types of changes: spontaneous, destructive and constructive. The possibility of deliberate regulation gives rise to ideologies. And the theory of liberalism is the best and subtlest instrument created by science. This theory is aimed not only at overcoming crises, but also at devising strategies for their prevention. The course of history has demonstrated that destruction takes much energy and costs a lot, while constructive analysis of social implications of the measures taken is most appropriate for society in terms of social costs and outputs. We identify this instrument with the liberal theory of constitutionalism. We believe that social processes are regulated by constitutionalism. Alexis de Tocqueville noted that during transition from the old regime to the new one, France could have fulfilled its objectives peacefully, through reforms, if only it had managed to substitute the evolutionary logic for the revolutionary one.¹ The law emerging from the chaos of destruction is of special interest. Of course, this variant of development, which is in fact the triumph of rational thinking, has certain limitations. The law, as a system of social regulation, may fail to meet expectations under certain historical conditions. It is not applicable in the era of destruction. Yet, the holistic approach to this issue shows a connection between social and legal changes, their mechanisms, evolution, as well as the impact of many other factors. The real historical process seems to be a conflict between various social players defending their views on social processes and, correspondingly, on the state legal structure. This phenomenon can be elucidated within the framework of the theory of constitutional cycles. When social phenomena are analysed in a very broad sense, they appear not as isolated and conflicting, but rather as interrelated and interdependent. This approach can be employed for examining the historical and contemporary development of Russian constitutionalism which has seen both illegal and destructive along with legal and constructive stages of social development.

Therefore, the history of Russian constitutionalism should be explored in a long-term dimension. In Russia, real constitutionalism emerged in the form of constitutional monarchy only back in the early twentieth century. Later it entered the era in which the monarchy gave way to a constitutional republic established in the wake of February 1917 events. After that, the legal development of Russian constitutionalism was halted for many years. And only recently has Russian constitutionalism started to recover (at the turn of the twentieth century) to manifest itself in adoption of the Russian Constitution in 1993.

Having presented the thesis on Russian constitutionalism in comparative perspective, we need to answer the question: what is the historical essence of the constitutional phenomenon that we see today? It is acknowledged that English parliamentarianism began with the adoption of the Magna Carta in 1215, and French parliamentarianism originated from the vassal contractual relations inherent in western feudalism. Logically, the pre-history of Russian constitutionalism should be traced from the first attempts to restrict monarchical power. The official historiography of absolutism, of course, could not fully describe the long tradition of limiting monarchical power. The Soviet historiography, which overemphasized the destructive forms of social upheavals and hampered the discovery of successive legal traditions, is not of big help either. This research is based on a number of sources allowing us to describe the historical and contemporary development of Russian constitutionalism as a holistic phenomenon interrelating its past, present and future. Social players begin to come up with ideas on the political system modernization long before politicians put them into practice. But this period is also chronicled in certain documents. Great importance is attached to the review of political projects that never became legally binding but clearly reflected alternative views on and approaches to the modernization of various social groups pursuing their own interests. These historical documents were familiar to contemporaries as an element of the real political and ideological struggle. They originated from the following sources: papers for constitutional assemblies; proposals on constitutional amendments, both adopted and rejected; political parties’ platforms with regard to the constitution and the structure of the state; writings of eminent legal theorists (representing the chronicles and reviews of crisis epochs); legal journalism and notes made by constitutional players, especially the statesmen who streamlined constitutional processes. In Russia's authoritarian past, the programmes of constitutional reforms were for many years based on western constitutional ideas. The ideas explicitly show trends in dynamics; the opportunities and limitations of crisis management; interaction between the government and society; conflict of interests under modernization of a traditional authoritarian system; propensity for conflicts between authoritarianism and democracy in the period of transition.

Historically, Russian constitutionalism has been developing (initially, as a set of ideas and legal guidelines and, only in the twentieth century, as a real political system) in several main areas. It is necessary to define the key notions of our concept in order to interpret comparative, typological and specific parameters of Russian constitutionalism. The cyclical model allows us to compare alternating phases within national constitutional tradition and to explore the typology of constitutional law on a global scale.²

Theory of constitutional cycles

In moments of confrontation, a stable democratic transition can be ensured not only by adopting a liberal constitution but also by rendering impossible a reversion to the former authoritarian system. Moreover, it is necessary to establish and maintain the social constitution-based consensus which was previously non-existent. However, the newly created law does not guarantee a stable system: it may take a whole epoch to bring new constitutional norms into compliance with the existing social reality, including the subsequent stages of their rapprochement, confrontation and further merging of new legal norms with the old ones. It forms the basis of emerging constitutional cycles which can be either small (short), because of the so-called “pendulum effect”, or big (long). Big constitutional cycles are of great interest to legal philosophers, since they reflect substantial contradictions between constitutional modernization and retraditionalization in transitional societies.

It is appropriate to extend the notion of cycle, used by economists and sociologists for analysing the dynamics of social processes, to the area of constitutional cycles. As a rule, it means a movement through the logically related stages: crisis, depression, revival and growth. One cycle is followed by the other passing through similar stages. The concept of economic cycles, worked out by Nikolay D. Kondratiev and Joseph Schumpeter in the twentieth century, profoundly influenced the development of the sociological theory of cycles. The idea of cyclical political development was pioneered by famous ancient Greeks such as Plato, Aristotle and especially Polybius. They formulated a thesis about the rotating nature of the forms of government. In western political thought, the thesis was supported by Machiavelli and Vico, who believed the idea could be applied to the society as a whole. In modern times, the theory is represented by Hegel's dialectical spiral, Marx's doctrine of the movement of socioeconomic formations and Comte's work on the social statics and dynamics. In recent times, it is conveyed in the philosophy and sociology of Oswald Spengler, Arnold Toynbee and Pitirim Sorokin; in the economic theory of the Kondratiev concept; and in the political sociology of Pareto's idea of the “circulation of elites” and by the “iron law of oligarchy” of Robert Michels. The idea of cycles has spread further across many other branches of knowledge affecting the development of the sociology of knowledge (Thomas Kuhn's theory of scientific revolutions), economic crises (Joseph Schumpeter), the stages of economic growth (Walt Rostow), the sociology of conflict and modernization theory. Thus, the concept of cycles is part and parcel of all the major philosophical, sociological and economic theories that try to describe the typologically similar stages of social processes in comparative perspective.

A study into big constitutional cycles (e.g. classical democracies or Russia) allows us to mark the periods and grasp the logic of various stages of constitutional development; to explain substantial contradictions that arise during transition between democracy and liberal constitutionalism, federalism and unitarism, the separation and consolidation of powers; finally, to examine the specifics and prospects of contemporary constitutional development.

The concept of constitutional cycles is intended to describe the relationship between static state and changes occurring within a single constitutional process, to identify its similar phases in various historical periods and cultures, and to explain the mechanisms used for setting up a new constitutional order.

The constitutional cycle embraces the entire spectrum of constitutional conditions that range from repealing the constitution, which lost its legitimacy, to adopting a new one. Therefore, its stages (emergence, development and termination) should be determined taking account of the new form of constitutional structure. In this sense, the main stages of constitutional cycle are similar to those of economic cycle: crisis (declaring the old constitution null and void and acknowledging the need for drafting a new one); depression (termination of application of the old constitution and the split of opinions over constitutional prospects); revival (reaching a certain agreement on the principles to be enshrined in the new Basic Law); and growth (enforcement of the new legitimate constitution along with hopes for political stability). In terms of institutions involved, different stages are marked by the toppling of former government; coming into play of several opposing forces of the new constitutional power, reaching a compromise between them (e.g. within the framework of a common constituent assembly); and official enforcement of the new constitution and its newly created institutions.

Given this theoretical approach, worldwide constitutional development can be conceived as a correlation between two ideal processes: linear and cyclical.

The first type of process (based on Anglo-American experience) is characteristic of stable democracies with long traditions of civil society and law-based state. Even if there is a need for drastic constitutional changes, the latter are introduced through reforms, without impairing the continuity and legitimacy of constitutional process (it is generally recognized that this process is facilitated by the possibility for judicial interpretation of constitutional norms). However, despite the widespread opinion that the linear development of US constitutionalism is progressive and peaceful, insightful researchers speak about crises and well-pronounced cycles emerging in the process.

There are three kinds of crises involving the fundamental revision of constitutional provisions and their new interpretation. The first crisis erupted in 1787, when the US Constitution was adopted. And it is not without reason considered a constitutional coup. The second crisis blew out during the Civil War in the mid-nineteenth century, when the two opposite and incompatible concepts of American federalism clashed. The third crisis arose when US President Franklin D. Roosevelt was implementing a new policy that stirred up a sharp conflict between the presidential government and the Supreme Court, resulting in new interpretation of the constitution from the perspective of the theory of realism.

Some researchers believe that the USA is again faced with the dilemma of choosing a strategy for radical constitutional transformations. They claim American constitutionalism has unobvious but well marked cycles: stability periodically turns into crisis, then into reform and again into stability. This peculiarity of American constitutionalism was especially convincing in the light of the Soviet fetish for the system stability and rigidity. In this sense, the model in question differs from other cyclical models (e.g. the French model) not so much by the absence of constitutional continuity gaps (they were observed several times) as by the fact that constitutional crises did not lead to the adoption of a new constitution coupled with radical changes to the attributes of political regime. It was the Supreme Court that drastically altered the very paradigm of constitutional interpretation, simultaneously acting as a legal and political institution (specifically, when the new policy was announced and pursued). As such, ensuring legal continuity is a fundamental public value and its achievement is the most important argument in any debate on constitutional issues.

The second crisis is cyclical and typical of unstable democracies and states under modernization, where proclaimed constitutional principles can be hardly observed due to acute social contradictions and society's failure to reach a political consensus, usually achieved by mutual concessions.

French constitutional development is a classic example. The 16 constitutions (including the provisional legislative acts of constitutional nature) reflected successive triumphs of different political forces seeking to impose their political philosophy on society at large. French constitutional cycles arise from a conflict between two theoretical principles established in the Age of Enlightenment: the principle of popular sovereignty (Jean-Jacques Rousseau) and the principle of popular representation (Charles-Louis Montesquieu). These are underlying principles of contemporary constitutions, both of them proclaiming popular sovereignty and establishing the institutions of representative democracy and the separation of powers. However, in their authentic interpretation the principles appear incompatible and contradictory. The first principle underlies the concept of direct democracy, whereas the second one underpins the concept of representative democracy. Their conflict broke out during the Great French Revolution and has remained relevant ever since. Due to this conflict, the parliamentary regime alternated with the presidential one (as a rule, it was the Bonaparte regime advocating the idea of representation in a logically extreme form with all powers concentrated in one person's hands). The cyclical development was observed in a gradual transition from republic to empire and from parliamentary regime to presidential one. The Fifth French Republic proposed its own innovative model to resolve the dilemma of the mixed or parliamentary-presidential republic. The Gaullist model of rationalized parliamentarianism not only played an important role in overcoming the French political crisis but also served as a basis for the alternative concept of government oppos...

Table of contents

• Front Cover
• Half Title
• BASEES/Routledge series on Russian and East European studies
• Title Page
• Copyright
• Dedication
• Contents
• Introduction
• 1 Constitutionalism as a theoretical issue in transitional societies
• 2 Proto-constitutionalism in Russia’s traditional society
• 3 Constitutional platform of Russian liberalism and its implementation under the transition from a monarchy to a republic
• 4 Nominal constitutionalism under Soviet dictatorship
• 5 A contemporary model of Russian constitutionalism in comparative perspective
• Conclusion
• Notes
• Index