• Social Sciences
• 2006-03-31SSC-No. 001
• Size: 29.5 Kbytes .
• Pages:60-69.
• Words: 4744

Author: Aleksey ALYUSHIN

The Present Constitutional and Legal Order: Nonlegal Sources

Those alarmed by the possibility of the present power going beyond the limits of the existing constitutional field in an effort to settle the "problem-2008" think about the constitutional field as an institution firmly rooted in a solid legal foundation. The Constitution, that registered Russia's present state order, they argue, was approved by a referendum, the free and supreme expression of the nation's will.

Is that so? Is the current situation absolutely straightforward and legally flawless? Far from it. The process that ended with a new Constitution and the elections to the newly established parliament was started by the Presidential Decree of September 21, 1993 "On the Stage-by-Stage Constitutional Reform in the Russian Federation." This document discontinued the functioning of the Congress of People's Deputies and the Supreme Soviet of Russia and suspended the absolute majority of the articles of the Constitution of the day.

The preamble to the Decree offered the following stipulation: "The security of Russia and its peoples is a much higher value than formal observation of the contradictory norms created by the legislative branch of power." The Decree ruled, among other things, that "The Constitution of the Russian Federation, the laws of the Russian Federation and the constituent entities of the Russian Federation retain their validity if they do not contradict the present Decree" (Paragraph 1, Part 2).

Obviously, between September 21, and December 12, 1993, or rather before the Constitution came into force and formalized the new legal system, the President of Russia was acting in violation of the formal laws in force by the time the Decree was issued. President Yeltsin immediately recognized and openly admitted this. In other words, the new legal order created by the new Constitution was the result of actions by a person operating outside the field of legality. The Decree of September 21, 1993 was a factor of force rather than law; it did not fit

A. Alyushin, Cand. Sc. (Philosophy), research associate, Chair of Theoretical Political Science, Department of Philosophy, Moscow State University. The article appeared in Russian in the journal Politicheskiye issledovaniya (POLIS), No. 3, 2005.

Pages. 60

the old legal system. It destroyed the old system while not being supported by a new, still nonexisting one. The new legal system was born in the nonlegal field.

Two more circumstances are of fundamental importance here: first, the President, who had controlled the process of drafting the new Constitution, influenced its content to the greatest and decisive degree. Second, in violation of the Law on Referendum of October 16, 1990 the threshold of popular support of the draft was lowered by two times. Under the new rule the Constitution could be adopted if over a half of registered voters and came to the polls and over a half of them voted positively.¹

The above shows that between September and December 1993 the President not only removed political obstacles in the way of the nation's ability to pass a decision about the country's future state system. To a great extent the President predetermined the concrete content of this decision and the rules according to which it was to be adopted. This is quite understandable: otherwise he could have found himself in a situation opposite to which people say: success is never blamed.

Leaving aside the legal meaning of what the President did I want to point out that we witnessed a breach of legal continuity-a leap from one legal state into another, from one legal system to another-both acts accomplished in the nonlegal field.

Breach of Legal Continuity

It was two years earlier that Russia and other union republics were first confronted with a similar breach of legal continuity when on December 8, 1991 the heads of Byelorussia, the RSFSR, and Ukraine signed an Agreement on Setting up a Commonwealth of Independent States, thereby in effect dissolving the Soviet Union. This is directly confirmed, in particular, by Art. 11 of the Agreement according to which "legal norms of third countries, the former Union of SSR included, are inapplicable on the territories of the signatory states." The reference to the fact that the three republics had set up the Soviet Union by signing the Union Agreement in 1922 and were therefore empowered to denounce it served as the legal substantiation.

There are counterarguments to: first, the Constitution of the USSR while empowering each of the republic to withdraw from the Soviet Union did not envisage the possibility of liquidating the Union as a whole. Second, even if the possibility of liquidating at once the Soviet Union is accepted, the right to do so belongs to all the constituent republics rather than to three out of the four initial founders. After all, the initial 13 states that formed a federative state have no right to disband the United States of America. Third, under no conditions this decision could be adopted by republican leaders meeting behind closed doors, without taking into account the will of the peoples inhabiting those republics.

In fact, only the first of the above arguments is legally valid: by signing the Agreement (irrespective of the weighty political considerations that guided them) the heads of the three states flagrantly violated the Constitution and found

Pages. 61

themselves in the nonlegal field. Formally, the new legal status was supposed to appear as soon as the Agreement was ratified by the republics' legislatures and that did happen in due course.

The deliberately vague wording of the Agreement indicates that the initiators had no clear ideas about the legal meaning and substantiation of their juridical actions. The document says: "We, the Republic of Belarus, the Russian Federation (RSFSR) and Ukraine as the founders of the Union of the SSR that signed the 1922 Union Treaty... establish the fact that the Union of the SSR as a subject of international law and as geopolitical reality no longer exists." This means that the sides were unwilling to formalize their decision as a legal act of disbanding the Union and confined themselves to an extremely ambiguous phrase: "establish the fact that the Union of the SSR ...no longer exists. "

Finally, let us examine the situation that predated the appearance of the RSFSR and the USSR The February revolution of 1917 and the czar's abdication did not cause a breach-rather those events changed the Russian Empire's legal status. From the point of view of the legal continuity of state power the Provisional Government's legal basis was solid enough. It did not abolish the laws of its predecessor the czarist legislation-and, despite the reinstatement of the Constitution of Finland and the declaration on setting up independent Poland, the Provisional Government stuck to the "united and indivisible Russia" policy.

The country was plunged into nonlegal status when the Petrograd Military Revolutionary Committee deposed the Provisional Government and issued its own legal acts. This caused a breach of legal continuity. "The Declaration of the Rights of the Peoples of Russia" was one of the key acts of the new rulers. It opened the road toward a revision and a free "re-assembling" of the administrative-territorial structure of the former Russian Empire.

It was assumed, however, that all the changes made by the Bolsheviks were provisional in character and they would be put before the Constituent Assembly. Therefore it could be said that, having disbanded the Constituent Assembly, the Bolsheviks irrevocably quitted the old legal field. Finally, in January 1918 the 3rd United Congress of Soviets that adopted the "Declaration of the Rights of Working and Exploited People" and set up the RSFSR formalized the new status.

Thus, in the 20th century Russia experienced at least three breaches of legal continuity and of irreversible transformation into a new legal status: in January 1918, when Russia was formally proclaimed the Republic of the Soviets and the RSFSR was formed; in December 1991, when the Soviet Union was liquidated and the Russian Federation became a sovereign state, and in December 1993, when the new Constitution that formalized Russia's new state system was adopted.

Specifics of Russia's State and Legal Tradition

The above suggests that Russia's legal tradition has its clearly identified distinguishing features. As distinct from Britain, in which the legal tradition looks like a ramified tree growing for over 300 years from the same root, the United

Pages. 62

States, that has known no legal continuity breaches, and even from Germany, that having officially condemned the Nazi system as criminal and therefore, having started from scratch acquired a legal status that differed radically from its predecessors, in Russia every new legal status began with a breach of legal continuity. Metaphorically, this can be described as three cones placed one upon another, each of which widens from the tip (that represents a nonlegal act) to reach a more or less stable legal system and after that, to collapse into another nonlegal act.

There is another specific feature of the Russian legal tradition: even though at the moment of breach the previous system is declared to be insolvent and "flawed" politically and otherwise, the new system inherits many of its legitimacy elements. This is true, in the first place, of its administrative-territorial system. Contrary to the statements that the Soviet Union was an obsolete and worthless imperial shell, the Russian Federation that emerged on its ruins is still appealing to the "common past" of the nations living on its territory and the "historic unity of the state" (Preamble of the RF Constitution).

The fact that neither an official nor well-substantiated theoretic assessment of successive legal statuses between 1918 and 1993 - that is, four Russian states-has been offered so far is one of the main problems interfering with the legitimization of the present state structure. This is much more than a mere declaration of legal succession and recognition (or refusal to recognize) foreign debts. This assessment, coming among other sources, from the highest judicial bodies, would be very important for an understanding of the legal continuity of Russian statehood in the 20th century.

Qualification of actions or organizations as illegal or criminal should entail certain legal consequences. First and foremost, this concerns the CPSU and the state institutions it established. Unfortunately, in its time the Constitutional Court of Russia avoided providing a general legal assessment of the CPSU's activities and limited itself to particulars. It should be said, however, that despite the limitation of the prescriptive right that makes it impossible to call concrete people to account the issue of the state and legal consequences of the CPSU's activities is not closed. The failure to settle this problem contains a serious destabilizing and de-legitimizing potential.

Indeed, if the CPSU is recognized as an illegitimate organization, can the administrative-territorial division of the country and its borders inherited by Russia be regarded as legal? In the same way, since the Supreme Soviet of Russia that ratified the Agreement dissolving the Soviet Union was itself dissolved as legally and politically untenable, how should we assess its legal act and to what extent can they be regarded as mandatory?

Utilitarian Substantiations and Law

The fact that the legal justifiability of acts performed in illegal status is hard to determine is explained by the absence of the ideas of natural law and the law of equity from Russia's state and legal tradition. Natural law offers certain

Pages. 63

absolute criteria applied to assessments and comparisons of different systems of written law; the law of equity is used in cases when formal law offers no solution in situation that calls for a legal assessment. As distinct from the Western countries where these legal ideas play a prominent role, in Russia the positivist interpretation of law (that reduces it to formal law) has been accepted.

This is directly related to breaches of legal continuity.

* First, the paradox of self-justified systems of legality is a direct result of this approach to law. In the absence of supreme legal criteria we should qualify the activities of the Communist Party as legally impeccable if we admit that it observed the laws it itself had formulated. If the Communist Party violated laws, this can be assessed only inside the legal system the Party itself created. Neither the previous nor the subsequent legal system is applicable here since the first has lost force while the second is not working, by virtue of the principle that the law has no retroaction. Therefore, the Russian tradition is a sum total of self-contained legal systems not mediated by any highest and shared by all legal criteria or institutions² empowered to assess such systems.

* Second, in this situation not legal but, rather, utilitarian arguments (which being mostly relative create the groundwork for arbitrary rule) serve as the ground for the compulsory removal of former institutions and normative systems. In the absence of the idea of law as a higher value the law as such is devalued while the immutable legal landmarks of political and state life are removed.

Meanwhile, these utilitarian arguments may boomerang against the new rules that have replaced the old ones. Indeed, if the decision to liquidate the Soviet Union was justified by its inefficiency as a state with no geopolitical meaning, the same can be said about the Russian Federation as the Union's core was keeping it together. By rejecting the argument that the dissolution of the USSR undermined the might and historical integrity of the Russian state we devalue the same arguments used to oppose the separatist intentions of certain constituent entities of the Russian Federation.

The Decree "On Stage-by-Stage Constitutional Reform in the Russian Federation" clearly demonstrated that utilitarian arguments dominated legal ones. To justify the decision to cease the functioning of the highest legislative body of the country it offered the following arguments: the legislature opposed reforms and obstructed the President's policies; curtailed constitutional reforms; posed a security threat; undermined the authority of state power, and systematically violated the Rules and even the fact that its quality of work that does not meet parliamentary standards." This brings to mind the Imperial Manifesto of June, 3 1907 that disbanded the State Duma: "We regret to say that a considerable part of the members of the second State Duma have failed to live up to our expectations. "

The Decree mentioned only in passing, the attempts of the Congress and the Supreme Soviet to usurp the functions of the executive and judicial branches of

Pages. 64

power although this could have served as the main and practically the only legal argument in favor of the decision.³

By introducing amendments to Art. 104 of the then Constitution saying that "the Congress of the People's Deputies of the Russian Federation has the right to discuss and pass decisions on any issue related to the jurisdiction of the Russian Federation" the Congress relegated itself to the position of usurper of federal state authority. It unambiguously violated the constitutional provision on the division of powers as the "unshakeable foundation of Russia's constitutional order" (Art. 1. Part 2). I wonder how the Congress would have responded to a similar amendment, coming from Boris Yeltsin, in which the word "Congress" would have been replaced with the word "President." Is a collective usurper better than an individual one?

The presidential oath (Art. 121.4 of the Constitution) "to observe the Constitution of the Russian Federation" provided the President with legal justifications. The President fulfilled this oath when as the highest executive he restored the principle of the division of powers. From the point of view of the law of equity (here law is different from formal laws) this chain of arguments seems to look absolutely justified and does not call for an eclectic set of utilitarian and fairly weak arguments.

Transition from Nonlegal Status to a New System of Legality

There are three ways out of the nonlegal status:

- return to the old legal state;

- gradual development from a nonlegal state to a new system of legality;

- using one of the recognized procedures to make nonlegal actions legal.

A return to the old legal status is possible if not much time has elapsed since a nonlegal act and the physical and legal persons wishing to have their rights restored still exist. This method can obviously be used in states where the old legal system collapsed not because of its internal organic development but under external pressure. This happened in the Baltic countries and in the majority of East European countries. No wonder Lithuania and Estonia applied this principle when dealing with the property rights issue.

Obviously, if the state has lived through several consecutive legal continuity breaches and elements of several consecutive systems have become intertwined it is hard to return to the old legal status. In the case of Russia this raises a hypothetical question: Which of the legal statuses should the country return to: the monarchy, Provisional Government, Constituent Assembly, Republic of Soviets or the Soviet Union?

The road of evolutionary development from a nonlegal act or the use of force into a system of legality is the most typical one. In the course of history force gradually evolves into law. The building of legality put on the foundation of an illegal act is initially, very shaky yet after a while it becomes a self-supporting

Pages. 65

system. This leads to a situation in which people forget its questionable origins. We all know that the United States used force to annex the lands by ousting the autochthonous population. Even if the moral side is questionable after many centuries the results cannot be revised from legal point of view.

In Russia, too, nonlegal status gradually became a new legal system after the Bolsheviks seized power. But if they had not disbanded the Constituent Assembly but brought their victory to the Assembly's feet, so to speak (which was the initial intention), events might have developed in accordance with the third variant-using one of the recognized legal procedures to make nonlegal actions legal. However, whether the Constituent Assembly would have legalized what the Bolsheviks had done is a matter of conjecture.

By the same token the newly elected parliament was expected to approve the extraordinary nonconstitutional measures taken by the President of Russia in September-October 1993. Paragraph 16 of the Decree "On Stage-by-Stage Constitutional Reform" insisted that the Decree should be submitted to the Federal Assembly of the Russian Federation for consideration. The nonlegal initially stipulated variant to come out of the nonlegal state, however, was greatly distorted; as a result nonlegal acts developed into a new legal system of their own accord. What were those distortions?

First, the question of presidential elections envisaged by the Decree of September 21, 1993 was removed from the agenda. Second, the presidential decrees issued in the "interconstitutional" period were never discussed in the Federal Assembly not because the parliament refused to do so but on the strength of the legal casuistry to which the president's team had restored.

The Presidential Decree of December 24, 1993 declared the Decree "On Stage-by-Stage Constitutional Reform" null and void with the exception of several provisions. Thus, the object to be discussed by the Federal Assembly seemingly disappeared. The Decree of September 21, 1993 turned out to be a "disposable" and self-contained act. Having created a new legal reality, it became invisible both in the new and old legal system of coordinates. When the Federal Assembly raised the question of discussing the decrees, the presidential side explained that according to the Decree's original wording, "consideration" did not mean "approval" but "taking note of" or something like that.

Even if the Federal Assembly had assessed the presidential decrees, the legal value of such assessments would have been doubtful. Even though there was a strong antipresidential opposition in the Federal Assembly, its position could hardly be described as impartial. If it had refused to recognize the president's actions as legal and passed a decision on returning to previous legal status, it would have committed legal suicide.

The Time Bomb

On the strength of the above one can say that despite its stabilizing and constructive effect the new constitutional order in Russia introduced in December

Pages. 66

1993 rested on a contradictory legal foundation. Its contradictory nature was caused by the absence of an unambiguous legal assessment of the continuity of the legal systems that came one after another between 1918 and 1993 and serious flaws in the legal mechanism used to move to the new legal status. No matter how legitimate and solid the present constitutional order of Russia looks its foundation is wobbly.

Can these flaws trigger a delay-action mine? I think that the explosive potential of past legal errors and even serious breaches of law is negligible per se. Political and legal experience of other countries has demonstrated that in several decades or even years the bumps and fissures of the legal field are "all gone and forgotten." The latter starts looking like a legal and legitimate reality, as an initial system of coordinates for an assessment of all subsequent legal acts and events.

This fully applies to mankind's political history-a history full of wars, coups and revolutions-in which there is no place for legal "niceties." Anybody wishing to go to the bottom of crimes committed by rulers and states should start with the Vikings' European conquests, the Spanish invasion of South and Central America that destroyed the local civilizations, the European extermination of Indian tribes in North America, and colonization of Africa by France and England, "that trailblazer of liberalism. "

In fact, Britain that nowadays looks like a bulwark of legal stability experienced its share of political turmoil in the latter half of the 17th century; France entered the age of upheavals a hundred years later, while Russia's turn came 150 years after that. There is no absolute immunity to political upheavals-any country has to live through the inevitable stages of national statehood; Russia is trailing behind others in this respect.

A sober approach to the problem says that the process of leveling out the legal field has always meant not so much finding and removing all legal thorns, but tending to the turf that alone can soften the thorns and level off the bumps so that the world legal system would not bog down in the quagmire of illegality. The turf begins growing when the new phenomena are generally recognized as inherent facts of reality and included into the legal fabric and when leaders and nations agreed on mutual absolution. The American occupation of Iraq is a crime from the point of view of international law. Even though it is only two years old, it is no longer legally and morally condemned but rather taken philosophically ("what's done can't be undone, you know"); efforts are being made to adjust to the new situation and fit it into the normal flow of political processes.

The international legal system survives not because it is allegedly absolute and irrefutable in principle but because it is a self-referential system where mutually supporting parts that also support the entire edifice. For this reason, if certain quarters resolve to completely re-divide the world, the system will either explode (when the conventional allowances keeping the world legal system together is repudiated and the mutual drawing up of historical bills begins) or its main subjects will continue deliberately overlooking the legal sins of one another.

Pages. 67

An idealistic approach suggests the question: Are the crimes of the past completely removed from all legal records? I believe the answer is "No." Strictly speaking, delicts remain delicts whether or not there are debtor, creditor, and the courts. In fact, the majority of the debtors are present: they are successor states.

There is an asymmetry of rights: the states are willing to assume as natural and inherited the title of ownership while just as willing to discard without a lot of reflections the burden of debts and guilt. The basic laws of inheritance presuppose that the rights and duties should be inherited either together or not at all.

Here is an example of the Spanish state that ushered in the age of colonization of the New World. If the contemporary Spanish state bases its right of ownership of the territory called Spain on the fact that it inherited the right from the Spanish state as a historically extended entity, by the same token it should automatically inherit the state of a competent respondent on the hypothetical claims for recovery of the material and cultural values taken away from the Aztecs. To my mind there are no inhibitors, or "legal semi-conductors" that would separate the rights from the duties.

Present-day Spaniards may say that "we are not the same nation that plundered the Aztecs -" therefore we cannot be held responsible. This would amount to the statement that they have no right to live on these lands: by blocking the flow along the chain of the right of ownership succession they would block their legal right to own the land of Spain. They would deprive themselves of an important legal argument against those who might decide that they need this territory more than the Spaniards and would order them to move out. This is the objective logic of law, which still survives even though camouflaged by the veil of "political realism" or refuted by an argument of the absurdity of its consequences (What if everybody start finding out "Who are you?").

The Coming Battle Around the Elections

The shakiness of the foundation of the legal foundation of Russia's state structure may be used, in an indirect way, in the coming battle over the elections. It seems hardly probably that anybody would exploit the legal flaws described above to insist that the current Constitution in invalid and that it should be abolished to return the country into one of its former legal statuses.

At the same time we should bear in mind that the Russians do not look at the Constitution as "their own" rather as a document Yeltsin offered in extraordinary circumstances and part of the population passively accepted. For this reason public consciousness is open to arguments about the 1993 Constitution's temporal nature and the possibility of amending it or even adopting a new constitution.

The presidential side that wishes to retain power may exploit the idea that the Constitution is of a temporal nature. Appointed by Yeltsin President Putin might follow the "good tradition" within which the current Constitution appeared. This means that he will move into the nonlegal field under the pretext

Pages. 68

of extraordinary circumstances, adjust the Constitution to his own needs, promise to put victory at the feet of the parliament or an ad hoc "popular chamber" only to forget about his promises afterwards or reduce them to a mere formality.

In principle, the anti-Putin forces could exploit the Constitution's temporal and transitory nature. The arguments are galore: the Constitution bears an imprint of the Yeltsin era; it was tailored in haste to fit a particular person; it was never widely approved by the nation; it failed to express and offer a unifying national idea, etc. The anti-Putin opposition cannot afford to talk about the need draft and pass a new Constitution before the elections have produced at least relative success and the opposition seizes the initiative. If the opposition tries to exploit the slogan in an election struggle, the powers that be will don the garb of true protectors of the Constitution and law to accuse the opposition of an attempted coup. This is true, regrettably. Strategically, charting the country's further progress through nationwide discussion of a new Constitution and a set of relevant referendums would be quite in order.

NOTES

¹ Here I want to remind that on December 12, 1993, 58.4% of those who came to the polls (54.8% of the total number of voters) supported the Constitution. This means that it was supported by less than one-third of the electorate.

² Theoretically this role might be assumed by a monarch or the irremovable Constitutional Court or a certain Church institution.

³ The security-related argument does not hold water since there was no real danger at the moment the Decree was signed.

Translated by Valentina Levina

Pages. 69