a russian constitutionalism

8/16/2019 A Russian Constitutionalism

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Review of Central and East European Law 35 (2010) 77-110

Future, Past and Present in RussianConstitutional Politics: Russian Constitutions in

a Conceptual-Historical Perspective

Katja Ruutu

Abstract

The present article uses the methods of conceptual history to investigate thetransformation of Soviet and Russian constitutional concepts. My intentionis to show the whole constitutional movement of Russia, and to focus on the‘time layers’ (future, past and present) used by actors in constructing the keyconcepts that inform the narratives of the constitutional unity of the SovietUnion/Russian Federation. By focusing on the six constitutions adopted in theSoviet Union/Russian Federation, the article will seek to show that Soviet/Rus-sian conceptual history is more multifaceted, and more political in nature, thanis commonly thought. Because the political unity of the state was restrictednot only by the constitution, but also by the party ideology of the CommunistParty of the Soviet Union, political debates concerning constitutional concepts

represented the key discussions for all the reformative pursuits of Soviet politics.Constitutional concepts were the most important means to argue and createa basis for a new political presentation and new political programs. This pat-tern has also been typical of present-day Russian politics, with the dierencethat, so far, only one constitution has been adopted in the Russian Federation.Specically, we will seek to relate Putin’s constitutional concepts to the textualbase, and the political background, of the previous constitutions. On a more general level, the present article should contribute to the development of atheory of periodization that takes into consideration the shifts in a period’skey concepts and vocabularies.

Keywords

conceptual history of Russia, constitutional history of Russia, federalism, glasnost’ , party system, perestroika, politics

1. Introduction

It was typical of the new Soviet leader to distinguish himself from hispredecessors in order to stabilize his power; to achieve that aim, each new

leader would present his political agenda in constitutional terms. That too,is one of the main reasons behind the large number of constitutions thatwere adopted in the USSR In the post Soviet context that dynamic has


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78 Review of Central and East European Law 35 (2010)

if not the exclusive, source of continuity in present-day Russia. The pres-ent article will explore the role of constitutional concepts as key tools of

political presentation, as well as their special status and characteristicsin Soviet and post-Soviet political discourse. Its main objective will beto investigate the transformation of those concepts in relation to plansof political leaders for continuity and change, and to show how thatconceptual history—in many respects—is more multifaceted, and morepolitical in nature, than it has usually been deemed to be. It also discussesthe traditional continuities and changes between the constitutions andparty programs adopted in Russia/the Soviet Union. In the nal part, itattempts to connect Vladimir Putin’s political era with the textual base

and the political backgrounds of the previous constitutions.From a methodological point of view, Russian constitutional concepts

make a conceptual-history approach very suitable and change the focus onhistory. The conceptual-history approach studies history in contemporarycontexts that follow one after the other, and whose texts are the main re-search object. The picture of history is created through the interpretationof the original sources of contemporary contexts. The aim of conceptual-history research is not to form an understanding of the chronologicalhistory of the events, but rather to examine the presented ideas about

history, interpreting the sources in their contemporary contexts.The conceptual-history approach thus always focuses on both

the dynamic and traditional characteristics of concepts. In thisstudy, I refer to a certain kind of value and the task of conceptsto justify and dene the political and societal unity in every situa -tion by combining the pursued future orientation of political unity with new acts of preservation of the principles of old tradition.In addition, the conceptual-history approach shows dierent time layers;the past, the present and the future are the key aspects of the politicalstorytelling in justifying the continuity and redening the constitutionalunity for the sake of reform.

The present article attempts to deal with the topic of Russian con-stitutional history from the perspective of conceptual change, payingparticular attention to the political relations among the various actors,and to the latter’s political presentations. Specically, it focuses on thoseactors’ speeches and on their mutual relations and, through them, on thepassage from one contemporary context to another.

I will try to show that Stalin’s era represented a watershed in Sovietconstitutional and political development, a fact that becomes readily ap-parent when that period’s concepts and vocabularies are examined Stalin’s


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Future, Past and Present in Russian Constitutional Politics 79

tion and to justify the creation of the absolute centralized state, whichrepresented its realization. Thus, in Stalin’s plan with regard to the 1936

Constitution, there was no longer a need for ne rhetorical distinctionsbetween dierent ‘unions’, which had been important elements in the1918 and 1924 Constitutions, legitimating the single state and the specialduties of the classes. Stalin’s intention was to create something closer toa purely administrative model. The concept of the state took over fromall other ideological structures.

As Stalin’s concept of state concerned the institutionalized rela-tionship between the state and the Soviet people, his successors wereconfronted with the challenge of maintaining the maximally expanded,

ideological class-based state and the concept of Soviet citizenship in asituation where there was no maximal control apparatus. I will arguethat, after the Stalin period, it became dicult to reuse and reconnectthe constitutional concepts that were related to the revolution as newinterpretations. Put another way, the central problem was how to main-tain Stalin’s administrative rhetoric and his connection with the Sovietpeople, as well as his class-based justications in the concepts of the stateand the nation, in a context where Stalin’s control apparatus had beenconsiderably weakened. The outcome of this process was the introduction

of concepts that emphasized people’s participation and representation— for example, the concepts of an ‘all-people’s state’ and ‘all-people’s party’.These were pre- perestroika concepts that radically changed the ‘original’Marxist-Leninist concepts based on the Revolution and the state. I willattempt to show that the conceptual changes—initiated during the so-called ‘de-Stalinization period’ ( destalinizatsiia )—played a crucial role inthe eventual destruction of socialism in the Soviet Union.

2. The Role of Constitutional Concepts inSoviet/Russian Political History

The rst modern Russian Constitution had its one hundredth anniversaryin April 2006. Following its late start, Russia has adopted ve constitu-tions, four of them during the Soviet era. That relatively large number canbe explained by the changes in Russia’s political system: from one statesystem into another. From a monarchical state power, it rst changed, with the October Revolution of 1917, into the Russian Soviet FederativeSocialist Republic (RSFSR), and then, in 1924, into the Union of Soviet

Socialist Republics (USSR). In 1993, the Constitution of the RussianFederation was adopted.


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party system, the modication of constitutional concepts became one ofthe most important methods of introducing political programs. Because

the political unity of the state was not only restricted by the constitution,but also by the party ideology of the Communist Party of the Soviet Union(CPSU), political debates concerning constitutional concepts representedthe key discussions for many of the reformative pursuits of Soviet politics.In the context of a one-party system that restrained political discussionsand debates, with the exception of small Party circles, constitutionalconcepts were the most important means to discuss and create a basisfor a new political presentation and new political programs. I would fur-ther argue that this pattern has also been typical of present-day Russian

politics, with the dierence that only one constitution has been adoptedin the Russian Federation, so far.

Adopting a constitution in the Soviet Union was not a public pro-cedure. In the one-party system, a small group of political leaders pre-pared the document in secrecy. That there was a strong opposition toconstitutional reform, rst under Khrushchev and then under Brezhnev,indicated the diculties in adopting it. However, the literature about thetopic is sparse. It was only after the draft of the 1977 Constitution waspublished—and particularly after its adoption—that Soviet legal journalsbegan to publish comments on the new constitution. Only at the endof the Soviet era could the writings of the Soviet jurists be interpretedas being aimed at inuencing — rather than reecting —the views of theSoviet leadership.1

Thus, a basic feature of Soviet and post-Soviet political discoursehas been the continuous competition over the meaning of constitutionalconcepts. It can, therefore, be argued that—in the Soviet Union—muchof the political discourse dealt with constitutional concepts. By altering

the constitutional concepts, political elites sought to confer upon theOctober Revolution a new meaning of their own, which would enablethem to dierentiate themselves from their predecessors in power.

The proposition that political programs are debated and realized bymeans of vocabulary innovations is a good starting point for introducingthe conceptual-historical approach to the study of Russian politics andconstitutional concepts. That approach has been adopted only in a few works, in part, I would argue, due to the fact that the political characterof constitutional concepts has generally not been acknowledged.2

1 See D.D. Barry, “The Specialist in Soviet Policy-Making: The Adoption of Law”, Soviet Studies (1964) No.3, 152-165, at 158.


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As to the methodological basis of the present article, I have used theconceptual historian Reinhart Koselleck’s idea of ‘time layers’ in exploring

the key constitutional concepts of the Soviet Union/Russian Federation.3

Koselleck’s methodological innovations make it possible to re-interpretthe source material from a novel perspective. In his view, the dierenttime layers of concepts—the past, the present and the future—constitutethe key narrative aspects both in justifying continuity and, also, for thepurposes of redening constitutional unity for the sake of stability orreform.

Inspired by Koselleck’s ideas, I seek to focus on the time layers usedby actors in constructing the key concepts informing the narratives of

the constitutional unity of the Soviet Union/Russian Federation that theyused in political debates. A central element of the conceptual-historicalapproach is the idea that, for political actors, the interpretation of his-tory and the understanding of the future are debatable as the analyses andinterpretations of the present.

From a more specic methodological standpoint, the Russian con-stitutional concepts themselves make a conceptual-historical approachparticularly suitable. The main merit of this approach is that it makes itpossible to view history as consisting of a succession of contemporary con-

texts the texts of which constitute the primary research target. A pictureof history is thus created through the interpretation of the contemporarycontexts’ original sources, the aim being not the typical one of construct-ing a chronology of the events, but of investigating the ideas present inthe textual sources within the framework of the specic contemporarycontext to which they relate.

By focusing simultaneously on the dynamics of change and the tra-ditional elements embedded in Russian constitutional concepts, I wishto illustrate how those concepts play a key role in dening and justifyingthe political and social unity of the state through their combination offuture orientation and new variations on the traditional principles thatundergird this unity.

The conceptual-historical study of the process of constitutionalmovement particularly emphasizes the past and the present time layersof constitutional concepts. Moreover, it aims to show how constitutionalconcepts make up a code. That last point is made especially signicantby the fact that Soviet and Russian political rhetoric has relied on consti-

tutional terms for much of its vocabulary. This ‘codication’ was central


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during the Soviet period, but it has also been typical of the politics of theRussian Federation since Putin came to power.

In dierent periods, new dogmas applying to various social situationsand to the CPSU can be observed. Such dogmas were regarded as usefulmeans to build up the concepts underlying the Soviet state. In spite of theone-party system, the Soviet Union was not conceived of as a monolithicpolitical entity. Similarly, Soviet political actors regularly articulated aneed for reforms.

By focusing on constitutional movement, it is possible to examine thereformative as well as the preservative features of constitutional concepts, which together transform the basic understanding of the state and of its

unity from one political era to another.In the following sections, I will briey present my ideas regarding

constitutional movement in the context of the six constitutions adoptedin Russia/the Soviet Union.

3. From the Monarchical Constitution to theSoviet Constitutions

The rst constitution of Russia—adopted during the reign of Tsar Nicholas

II—was not called a constitution ( konstitutsiia ) but was widely recognizedas such. Its ocial name was the Svod osnovnykh gosudarstven nykh zakonov (Compilation of Fundamental State Laws), for the reason that the term‘constitution’ connoted more representative power than the emperor was willing to concede. What is of greater signicance, however, is that—withthat constitutional document—a new concept of the state was introduced,one based on more openness and on the written word. The sovereign em-peror was dened as sacred and inviolable and his power as being deriveddirectly from God.4

Before the adoption of the 1906 Constitution, the October Mani-festo of 1905 had already radically widened the electorate and establishedcitizens’ rights, such as the right of assembly and the freedom of formingassociations. In addition, a new electoral law had given the peasants— as well as workers—wider presentation in the Duma than they had everenjoyed.5

For the purposes of charting the conceptual history of the Russianconstitutions, the 1906 Constitution represents a doubly relevant start-ing point, because—in addition to being the rst Russian constitutional

document—it inaugurated a new paradigm for the presentation of state


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power in Russia . For the rst time in Russian history, a central repre-sentative body was established: the State Duma. According to the 1906

Constitution, the tsar exercised his power jointly with the State Counciland the Duma. This concession concerning the redistribution of powerhas clearly been deemed to be signicant.6

However, while in principle the Duma could restrict the power of theemperor, in practice it could not resist his will. He had authority over thelegislature and the executive, as well as over foreign policy and the armedforces (Arts.6-14). The constitution did not make it possible to form a government that would be representative of the legislative sector. This factprompted Max Weber to claim that the 1906 Constitution represented

“sham constitutionalism”.7There was a strict guideline for the politics of nationality in the rst

article of the Constitution: the Russian state was declared to be “one andindivisible” ( gosudarstvo edino i nerazdel’no). That formulation referred tothe terminology of the French Revolution. According to Article 1 of the1791 French Constitution: “ Le Royaume est un et indivisible”. That declara-tion was made in order to resist strong federalism.8

After the 1917 October Revolution, the context of constitutionalrhetoric changed completely—as did the basis for the restricted unity

of the state, which was now being argued by means of Marxian conceptsand by their interpretations.

The rst constitutions of the Soviet state were not only organizationaland foundational documents for various state bodies, but also plans foraction. They developed the aims of the central administration and createda purposeful political agenda. “This is our policy”, said Lenin in 1921, “and you will nd it in our constitution.” Stalin, on the other hand, argued: “Theparty program speaks of that which does not yet exist, of that which hasto yet be achieved and won in the future, a constitution, on the contrary,

must speak of that which already exists, of that which has already beenachieved and won now, at the present time.”9

Thus, the Bolsheviks legitimated their power by adopting the rstConstitution of the Russian Socialist Federative Soviet Republic eight

6 See, for example, Georey A. Hosking, Russia: People and Empire, 1552-1917 (Fontana, London,1988), 426.

7 Max Weber, Political Writings (Cambridge University Press, Cambridge, London, 1988) (PeterLassman, ed. and Ronald Speirs, transl.).

8 In the nineteenth century, there were national uprisings in the Northern Caucasus and Poland/


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months after the October Revolution, in July 1918.10 The 1918 Constitu-tion insisted on a complete break with the barbaric politics of bourgeois

civilization (Art.5). It reected the thrust of the Revolution. However, it was not founded on the notions of individual freedom and equality, as theFrench Revolution had been; instead, it openly professed its dictatorialessence, as well as its class character. The 1918 Constitution was createdfor a transitional period, during which the classes would be abolishedand conditions created for the complete disappearance of the state. Itdespised what it identied as bourgeois and legal appeasement and openlyadvocated the undiluted power of the oppressed. Lenin and the otherBolshevik leaders who drafted that Constitution often stated that it was

a practical product of the Revolution, not an institutionalized solutioncreated by lawyers.11

The 1918 Constitution began with the “Declaration of the Rights ofthe Toiling and Exploited People”, which Lenin himself had written in January 1918. The rst article declared: “Russia is proclaimed a republic ofsoviets of workers’, soldiers’ and peasants’ deputies. All power at the centerand in the peripheries shall be vested in these soviets.” In this context, itis apposite to remember that Marxism-Leninism rejected the principle ofthe separation of powers as developed in the Western political and legal

traditions on the grounds that it would impede the representation of thepeople. Marxist-Leninist authors argued that the principle of separationof powers served only to mask the oppressive rule of the bourgeoisie.Instead, the soviets represented a revolutionary form of self-governmentdesigned exclusively for the proletariat.

The principle of federalism was declared in the second article of the1918 Constitution: “The Russian Soviet Republic is established on the basisof a free union of free nations, as a federation of soviet national republics.”The Constitution was not limited to a single state or nation, but applied toevery nation that joined the union. Thus, starting with the rst Constitu-tion of Soviet Russia, federalism was accepted as a form of governmentalongside the soviet model in order to complement and counterbalancethe power basis of the latter, although the concept of federation was notthe soviet paradigm. There is no mention of federalism in the Manifestoof the Communist Party written by Marx and Engels. Thus, the Bolsheviksaccepted it as a form of government, a key to the singular union between

10 “Konstitutsiia (Osnovnoi Zakon) Rossiiskoi Sotsialisticheskoi Federativnoi Sovetskoi Respubli-ki”, adopted 10 July 1918, SU RSFSR (1918) No.51 item 582, available at


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the soviets and the state. Soviet Russia was the rst modern state in whichthe nation-state formed the basis of the federal structure.12

Bolsheviks who had objected to the federal model until November1917 quickly became its supporters. They saw federalism as a means tocombine the areas under Soviet rule, which had been dispersed until thelast few years of Tsarist authority. Nation-states such as Poland and Finlandhad already begun to form. Consequently, Lenin’s government did nothave much choice but to build a new federation on the basis of nationalautonomy of the republics.

In 1918, Lenin said:“In rational and economic connes, federation could be useful in certain limits, and

it in no ways contradicts democratic centralism. The example of the Russian SovietRepublic demonstrates [to] us that federation is the surest step to the union of dier-ent nationalities of Russia towards [a] democratic and centralized Soviet State.”13

Therefore, federation meant a shift from the union of soviets towardsa more centralized Soviet state. Stalin, who was appointed as People’sCommissar of Nationalities, said in April 1918 that “federalism is meantto serve as a [means for] a transition to [...] socialist unitarism in thefuture”.14 This model was used in the Bolshevik Party Manifesto of 1919 when Soviet federalism was described as one formulation in the transition

towards full unity.15The 1924 Constitution repeated the basic structure of its 1918 counter-

part, consisting of two separate parts, the declaration of the formation ofthe Union of Soviet Socialist Republics and the treaty on the formation ofthe USSR.16 This was important in order to maintain the political messageof the 1918 Constitution and adapt it to a new context, in which a widerstate—the Soviet Union—was established. The class consciousness thatanimated the 1918 Constitution was only proclaimed in the introductorypart of the 1924 Constitution; but this did not include articles on citizens’rights or duties since constitutionally guaranteed rights concerned onlythe oppressed and the workers.

12 See Victor Zaslavsky, “Success and Collapse: Traditional Soviet Nationality Policy”, in Ian Brem-mer and Ray Taras (eds.), Nations and Politics in the Soviet Successor States (Cambridge UniversityPress, Cambridge, 1993), 29-42, at 31.

13 Vladimir I. Lenin, Collected Works, Vol. 1-45 (Foreign Language Press, Moscow, 1960-70), Vol.19,243.

14 Josef V. Stalin , Works (Foreign Language Publishing House, Moscow, 1954), Vol.4, 75.

15 Programmy i Ustavy KPSS 1969 (Politizdat, Moscow, 1969), 41-42.16 “Konstitutsiia (Osnovnoi Zakon) Soiuza Sovetskikh Sotsialisticheskikh Respublik”, adopted


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The rst part of the 1924 Constitution justied the establishmentof the socialist state and expressed the wish to keep open admission to

the union for all socialist Soviet republics, “those existing now as well asthose arising in the future”. It was also stated that:“The new union state is a tting consummation of the principles of peaceful coex-istence and fraternal cooperation of peoples established in October 1917, that is arm bulwark against world capitalism and a decisive step toward the union of thetoilers of all countries into one world Soviet socialist republic.”

Those statements presupposed the unication of the Soviet republics intoa ‘single union state’ ( odno soiuznoe gosudarstvo ). According to the preambleof the Constitution of 1924:

“The will of the people of the Soviet republics, unanimously proclaimed at theirrecent congresses of Soviets in the decision to form the ‘Union of Soviet SocialistRepublics’, is a sure guarantee that this Union is a voluntary association of peoples with equal rights, that each republic is assured the right of free secession from theUnion.”

In Chapter Two of the 1924 Constitution, “The Sovereign Rights of theUnion Republics and Union Citizenship”, a single union citizenship ( edi-

noe soiuznoe grazhdanstvo ) was established. This was a special feature ofRussian federalism, which made the boundaries between the respective

jurisdictions of the union state and the union republics far from clear,but at the same time eectively furthered the centralization of power.The background to that particular clause was the dilemma of the poli-tics of nationality: hence, the need to create a very open constitutionalagreement between the union republics and the central government.The various nationalities wanted to have the certainty that they hadcommitted to an agreement, and in this way it was possible to legitimatean empire based on Soviet nationalism. However, the wider backgroundto that compromise was constituted by the centralizing impetus of the

one-party rule, Marxist class-consciousness and the ‘old empire’ inheritedfrom Tsarist Russia.17

When drafting the 1924 Constitution, special attention was given tothe multinational character of the Soviet Union. The so-called Bilateral Assembly was established, formed from the Union Council ( Soiuznyi Sovet )and the Council of Nationalities ( Sovet Natsional’nostei ). The formation ofa bicameral assembly was a concession to accepted notions concerning thestructure of federal legislatures. The Bolsheviks had earlier opposed secondchambers as typical institutions of a class society. The union republics had

the right to have their own ags, constitutions, organs of government


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and representation in the central legislature. This played some part inencouraging national aspirations and in introducing national minorities

into the political system. The fact that the federal framework had beenconsiderably extended since 1918 is evidence that the Soviet leadershipfound it a useful form.18

The right of secession from the union was the only element thatradically diered from the otherwise centralized tone of the constitution,and it recalled older concepts of federation as a treaty of union or peaceleague between sovereign states. The right of secession from the USSRmust be understood as a rhetorical element embedded in the constitu-tional concepts during the Revolution, during which time the ‘founding

fathers’ of Soviet power thought of the nationalities’ right to secede asbeing entailed by the autonomy of the republics. In the opinion of Sovietlegal theorists, however, the right of secession from the Soviet Union had amore declaratory than legislative character.19 It represented an importantpart of a revolutionary rhetoric that strived to be integrative and stirringrather than strictly formal and constitutional. However, that characterchanged towards the end of the Soviet Union’s development.

Following the adoption of the rst two Soviet constitutions, the ba -sic rhetoric of the Revolution was also maintained in the last two Soviet

constitutions, those of 1936 and 1977. The basic components of thoseconstitutions were the power of the soviets, the Great Socialist Revolutionand the voluntary union of the Soviet republics. Besides this core revolu-tionary vocabulary, there were signicant conceptual reforms. Especiallyafter Stalin, rhetorical solutions and emphases based on constitutionalconcepts became very important.

4. Stalin’s 1936 Constitution: The Watershed of

Russian Constitutional RhetoricStalin’s ideas about the necessity to develop socialism in one country andthe need to establish a strong Soviet state diverged from the CommunistInternational’s stance on those issues. Those ideological dierences explain why Stalin modied both the aim and the rhetoric of the previous twoSoviet constitutions. As a result, the concept of state replaced the conceptof revolution at the apex of Soviet ideology. Similarly, the interpretationsof socialism present in the 1936 Constitution deliberately diered from theutopian and futurological perspectives of the October Revolution. Those

changes together obviously represented a momentous transformation ofthe Soviet constitutional concepts.


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Stalin declared that he was carrying on the revolutionary struggle begun by Lenin; however, he had to justify the continuation of that struggle

after the successful establishment of socialism in the Soviet Union. Heovercame that diculty by devising the theory that, as the nal victory ofsocialism was drawing nearer, the resistance of its defeated enemies wasincreasing. “The class struggle becomes sharper as a revolutionary statemoves closer to achieving communism.”20 Those words were universallyacknowledged to constitute Stalin’s personal theory regarding the inten-sication of the class struggle under socialism. At the same time, Stalintransformed the radical Marxist state into a more pragmatic institution.He legitimated the use of terror towards the party itself and made it pos-

sible to claim that mistakes were caused by the enemies of the people.21In relation to this, Stalin declared in 1939 that: “We need the stabil-

ity of laws more than ever.”22 That statement represented an importantdeparture from the revolutionary interpretation, which argued that thelaw was part of class society. In Stalin’s view, changes in the tools of pro-duction and in the relations of ownership needed to be reected in thelaws. The demand for laws that reected the contemporary reality of theSoviet Union—as opposed to expressing expectations for its future— was one of the main reasons invoked by Stalin to justify the drafting of

a new constitution, instead of merely amending the existing one. Theoriginal Marxist-Leninist idea of the law withering away under socialism was replaced with Vyshinsky’s theory, which stated: “Capitalism will leadto degeneration of law and legality; instead history will show us that insocialism the law is raised above the highest development level.”23

In this context, the most important conceptual reform was to basethe constitution directly on the denitive idea of the state. The 1936 Con-stitution began with the words: “The Union of Soviet Socialist Republicsis a socialist state of workers and peasants.”24 Because of the changes madeto Marxist theory, there was no preamble to the 1936 Constitution, un-20 Neil Robinson, Russia: A State for Uncertainty (Routledge, London, 2002), 41.21 Ibid ., 41.22 Josef Stalin, “Report to the XVIII Party Congress, March 10, 1939”, in Hugh W. Babb and John

N. Hazard (eds.), Soviet Legal Philosophy. 20th Century Legal Philosophy Series. Vol. V (HarvardUniversity Press, Cambridge, MA, 1951), xxix.

23 Andrei Vyshinsky, The Law of the Soviet State (Macmillan, New York, NY, 1948), 48-50.24 “Konstitutsiia (Osnovnoi Zakon) Soiuza Sovetskikh Sotsialisticheskikh Respublik” (with sub-

sequent amendments), adopted 5 December 1936, Izvestiia TsIK SSSR i VTsIK (1936) No.238,available at (hereinafter“1936 Constitution”). English-language translations of, and a commentary upon, the 1936 and


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like those of 1918 and 1924, which had begun with a “Declaration of theRights of the Toiling and Exploited People”. The break with the basic

arrangements of the previous constitutions was made in a simple manner.The rst part of the 1936 Constitution did not play the role of a foundingcharter, as the corresponding passages had for its predecessors, althoughit was based on existing structures. Article 2 stated: “The soviets of toil-ers’ deputies, which arose and grew strong as a result of the overthrowof the landlords and capitalists and the victory of the dictatorship of theproletariat, shall constitute the political foundation of the USSR.”

A radical change in relations between Soviet nationalities was alsointroduced in the 1936 Constitution. Harmony between the classes

meant harmony between the nationalities. Stalin stated: “The mutualdistrust of the soviet nationalities has disappeared and been replaced bythe brotherly cooperation of the nationalities in the form of the uniedfederal state.”25

The regulations concerning the national republics were dened in thesecond section of the 1936 Constitution, which was entitled “Structureof the State” ( gosudartsvennoe ustroistvo ). Article 13 of that section stated:“The Union of Soviet Socialist Republics shall be a union state, formed onthe basis of the voluntary association of equal soviet socialist republics.”

The union republics’ right to secession from the USSR remained in theConstitution. A list of the eleven republics that formed the Soviet Unionin 1936 followed. Article 15 declared:

“The sovereignty of the union republics shall be restricted only within the limitsspecied in Article 14 of the Constitution of the USSR. Outside these limits eachunion republic shall exercise state power independently. The USSR shall protect thesovereign rights of the union republics.”

Thus, a specic feature of Soviet federalism was that two kinds of sov-ereignty could coexist: one at the republican and the other at the union

level.In addition, Stalin promulgated a new declaration of the rights and

freedoms of the Soviet citizen, spanning fteen separate articles. Therights of the citizen were based on positive freedoms; the state guaranteedcertain rights to all Soviet citizens—for example, the right to work, theright to rest and leisure, and the right to education. Furthermore, a citizenof the USSR had guaranteed freedoms—for example, the freedom of as-sembly and of the press. According to Stalin, those explained that theserights and freedoms were owed to the ending of the class struggle, whichresulted in friendship between the classes in the Soviet Union.26 It was in


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that context that a universal, egalitarian and direct electoral system wasestablished, in Chapter 11 of the Constitution.

Stalin’s Soviet state, thus, represented a remarkable reform, one thattransformed the Soviet Union into both a state and a society. The 1936 Con-stitution did not need to rhetorically emphasize the distinctions betweendierent ‘unions’, as its predecessors had done in order to legitimate theunied state, because it subordinated all other constitutional concepts,such as ‘republic’, ‘federation’ or ‘union’ to the overarching constitutionalconcept of state. The state was no longer a tool of class oppression; on thecontrary, it was presented as a requirement for a balanced class society.

Stalin’s massive control system enabled the existence of both the

Soviet state and of a rm connection between the state and the Sovietcitizen. The Constitution marked a departure from the principle of classdictatorship towards a wider social base, which was declared to includeall ‘working people’, i.e., practically the entire population. However, inpractice, it meant tougher social control on the part of the state, whichproclaimed its inseparable unity with society.27

To conclude, some words should be added regarding the role of theCommunist Party in the context of the 1936 Constitution. As one of themerits of the new Constitution, Stalin mentioned the fact that it pre-served the regime of the dictatorship of the working class, just as it alsopreserved, unaltered, the leading political position of the CommunistParty of the USSR.28

However, the Communist Party was mentioned only once in the1936 Constitution, in relation to the right to form dierent kinds of organizations. The relevant passage read: “The most active and consciouscitizens from the ranks of the working class and other strata of the toil-ers shall unite in the All-Union Communist Party (Bolsheviks), which is

the vanguard of the toilers.”29

Thus, Stalin was not interested in eitherdening the role of the Communist Party or relating it to constitutionalconcepts. In a sense, keeping the Communist Party separate from theconstitutional concepts continued the tradition begun in the rst twoSoviet constitutions. On the other hand, the 1936 Constitution can besaid to have started a tradition of its own, one that made the party anintegral part of the state structure.

27 Andrey N. Medushevsky, Russian Constitutionalism. Historical and Contemporary Development(Routledge New York NY 2006) 159


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5. Constitutional Rhetoric after Stalin

The post-Stalin political debate had diculty returning to class-basednotions of the state and Soviet society. Whereas Stalin’s administrativerhetoric was focused on direct control, political discourses following hisdeath went back to constitutional vocabularies; the emphasis was nowon wider participation and democracy. This shift represented a deliberateattempt to escape from Stalin’s monolithic and absolutist concept of thestate. Following his death, Stalin’s successors had two crucial problems with which to grapple: the image of the Revolution he had created andnurtured, and the minimalist expectations he had set for the future evolu-

tion of the Soviet Union’s power structure. For the new political elites, thepolitical and administrative legacy of Stalin’s years in power representedas strong a historical tradition as did the 1917 October Revolution.

The new leadership’s rst task was to rehabilitate the developmentalprospects of the Soviet Union in the aftermath of Stalin’s mass terrorismand ‘real socialism’. What was needed was a way to foster belief in thereformative capabilities of the Marxist constitutional concepts—and ofthe political system itself—without calling into question the role of theCPSU, the authority of the Soviet government or the international status

of the USSR. This conundrum prompted Khrushchev and his allies to focustheir reforming eorts on those concepts that concerned the function ofthe CPSU and the relationship between state and society.

Emphasizing the role of the CPSU and undermining the position ofthe state bureaucracy was also integral to Khrushchev’s personal campaignfor power, by which he tried to gain the support of the Party, as well assecure the latter’s preeminence in the post-Stalin USSR.30

The political dynamics of the Khrushchev era were, thus, character-ized on the one hand by a tendency to decentralize power and to increase

participation and, on the other, by the will to buttress the power andinuence of the new elite.

After Stalin’s death, the Soviet leadership was in unanimous agree-ment regarding the need to put an end to the terror he had institutional-ized. In that regard, the question of the proper role of the CPSU duringthe period between socialism and communism was raised. The passivityof the CPSU towards the state administration was identied as one ofthe previous era’s central problems. The Soviet system now needed to beput back on the right track, the nal goal being to achieve communism

in the future.The main goal of Khrushchev’s reform of constitutional concepts


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ers and the people, and which would consequently increase the latter’sinvolvement in the workings of government. Concurrently, both the party

apparatus and the state administration were made more receptive to the‘democratic’ guidance of the CPSU.Khrushchev’s interest in administrative reform was not conned to

the organs of government: the CPSU was also aected. Khrushchev sup-ported a greater turnover of party ocials. Posts in the CPSU were madetemporary, and people other than members of the CPSU were allowed totake part in the Party’s work. Those reforms had two objectives: to increasepeople’s participation and to control party ocials more tightly.31

In 1956, Khrushchev gave his famous ‘secret speech’ at the twentieth

Party Congress of the CPSU, during which he condemned Stalin’s cult andpromised to take the country back onto the Leninist path in the nameof ‘socialist legality’. Nevertheless, there was no need for constitutionalchanges yet. As Unger wrote: “It was the observance of existing constitu-tional provisions, rather than the enactment of new ones, that was neededto ensure the return to ‘Leninist norms’ in general and ‘socialist legality’in particular.”32

Instead of a new Soviet constitution, a new program was adopted bythe CPSU in 1961. Unlike Stalin’s ‘real socialism’, the new program was

based on a utopian and future orientation; it was called the “Program ofthe Future Communist Society”. The program stated that, in contrast tothe previous eras—which were characterized as periods of gradual changetowards communism—Soviet society had now entered the age of the fullrealization of communism. In the spirit of the realism of Stalin’s consti-tutional concepts, it was stated that the dictatorship of the proletariathad performed its historic task and that the state had now accomplishedthe will of the people. Nevertheless, the new party program of the CPSUdistanced itself from Stalin’s realism by making the following statementregarding future-oriented tasks: “The proletariat will have fullled itstask as a leading force of society when communism has been built andthe classes have disappeared.”33

The program also included a promise to the Soviet people that thetransition to full communism would be carried through. The Soviet Union was said to have entered a new and momentous age, as a result of whichthe building of a communist society had become an immediate and prac-tical task. The program additionally stated that: “The state has become a

state of the entire people, representing the wills and interests of all people31 Ibid ., 55.


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[…] Social classes have become homogeneous.” The concept of socialistdemocracy was also mentioned: “Proletarian democracy is growing more

and more into a socialist democracy of the people as a whole.”34

Thisprocess meant that the state, which had emerged as a vehicle for the dic-tatorship of the proletariat, had now become a “state of the whole people”( obshchenaro dnoe gosudarstvo ). It was now a vehicle for the interests and will of the people as a whole. The state as an “organization of the entirepeople” ( obshchenarodnaia organizatsiia ) would survive until the complete victory of communism.35

Khrushchev had thus introduced a new concept, that of an ‘all-people’sstate’, into Soviet political discourse. That concept was developmental in

nature; as such, the idea of historical movement was central to it. Thisinnovation can be interpreted as a shift away from the traditional Marxistconcept of state and the revolutionary rhetoric of the previous periods. According to Khrushchev, the modern state was not an instrument ofclass power. It was an instrument used by the whole Soviet people on theroad towards full communism.36

An all-people’s state meant that party members were not the onlyones to be politically conscious. Instead, every Soviet citizen, worker,peasant and member of the intelligentsia was politically conscious ( ideinye ).

All Soviet people were ready for disciplined revolutionary action.37 Thisnotion represented a break with the ideas of Lenin and Stalin, as theyhad both emphasized the ‘vanguard role of the party’ ( avantgard ), as wellas the ‘dictatorship of the proletariat’.

The role of the CPSU was in transition. The 1961 Program referredto the CPSU as a party “of the whole people”, the role of which—as theleading and guiding force of Soviet society—would be enhanced and wouldrequire “a new higher stage in the development of the party itself”. Theparty represented the brain of the new era, and its task was to show thepeople the scientically determined paths along which to proceed. Theparty thus maintained its leading role as “all-people’s party” under the“all-people’s state”.

6. Brezhnev’s Constitutional Reforms

Leonid Brezhnev’s rule has typically been described as an ‘era of stagna-tion’. However, from the rhetorical point of view, the Brezhnev era wasquite interesting. It produced some particularly interesting changes in34 Ibid .35 Ibid.


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constitutional concepts. Actually, the term ‘stagnation’ ( zastoi ) emergedonly in retrospect, during the Gorbachev period, when the socialist system

was undergoing rapid transformation.During the Khrushchev era, the constitutional scheme was being for-mulated in relation to the developmental stage of ‘full-scale constructionof communism’. That concept was abandoned by Brezhnev and his associ-ates, who replaced it with their own new contributions to the language ofSoviet developmental dynamics: the ‘developed socialist society’ ( razvitoe

sotsialisticheskoe obshchestvo ) or with the ‘mature society’ ( zreloe obshchestvo ).Those phrases started to appear with greater frequency following thetwenty-fourth CPSU conference, in 1971.38

In contrast to the utopian and transformational implications ofKhrushchev’s ‘full-scale construction of communism’, the concept of ‘developed socialism’ aimed to convey the maturity of the existing system andto dene it as perfect. The emphasis was on present tasks, to be carriedout during the socialist phase, not to its future, as in the idea of utopiantransfer to the future. The leading role of the CPSU in the developedsocialist society was accordingly stressed.

When Brezhnev reported to the Supreme Soviet on the new consti-tution, in 1977, he remarked that:

“The stage of the perfection of socialism on its own basis, the stage of a mature,developed socialist society, is a necessary element in the social transformation andconstitutes a relatively long period of development on the path from capitalism tocommunism. Moreover, knowledge and utilization of all the possibilities of developedsocialism is at the same time a transition towards the construction of communism.The future does not lie beyond the limits of the present. The future is rooted in thepresent, and by accomplishing the tasks of today—of the socialist present—we are gradually entering tomorrow—the communist future.”39

The Brezhnevian leadership, thus, moved sharply away from Khrushchev’sutopian concept of the ‘withering away of the state’ to embrace ‘developedsocialism’. Another central idea of the era’s political discourse was that of‘scientic-technical revolution’, much stress being also laid on the relatednotion of a ‘scientic approach’ to decision-making. The concept of ‘developed socialism’ denoted a new stage in the development of the state,democracy and society. The wide use of information technology and ofthe latest scientic achievements were characteristic of that new era, as were a systematic attitude towards decision-making and all-inclusivenessin relation to citizens’ participation. Indeed, it was thought that the lat-

ter was being increased by the high level of education resulting from the


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‘scientic-technical revolution’. Essentially, the Brezhnevian discourseaimed to present the Soviet Union as an information society.40

Thus, the retreat from Khrushchev’s utopian language did not involvean abandonment of his endorsement of civic participation in decision-making. A developed socialist system was always said to involve a largedegree of political participation. The soviets were found to have the bestpotential for integrating the administrative load and distributive dutiesin the context of de-Stalinization, for they represented the whole Sovietpeople, rather than any particular section or class, as was the case withthe Party, trade unions or collective farms ( kolkhozy ). Civic participation was treated by the regime as an important and necessary part of the in-

formational input required for “scientic decision-making”.41The emphasis being laid on citizens’ political participation has led to

Brezhnev’s program being described as a sort of ‘pre- perestroika’ in somequarters, the purpose of which was to create a virtuous circle according to which the higher education levels brought about by the scientic-technicalrevolution would lead to increased participation because the latter wasone of the requirements of scientic-technical development.42

Regarding the text of the new 1977 Constitution, while its preamblemaintained continuity with the ideas and principles of the rst three So-

viet constitutions, there also were changes in the constitutional concepts.Three new concepts that had not appeared in earlier constitutions wereintroduced: the “all-people’s state”, the “developed socialist society” andthe “new historical community of people, the Soviet people”. 43 Anothernew formulation was stated that “all power in the USSR belonged to thepeople” and was realized through “people’s deputies”. Earlier constitutionshad established no clear connection with the power of the people andpeople’s deputies. The crucial role of the Communist Party was specicallydened properly in Article 6 of the 1977 Constitution, which representedthe rst time a Soviet constitution had done so in such terms. There was no reference to its social composition or its status as a vanguard, asin the 1936 Constitution. The party was now “the leading and guidingforce of the Soviet society and the nucleus of its political system, of allstate organizations and public organizations”. Soviet legal experts of the

40 Fjodor Burlatsky, Nykyajan valtio ja politiikka (Progress Publishers, Moscow, 1978), 56 (Contem-porary State and Politics).

41 Jerry Hough and Merle Fainsod, How the Soviet Union is Governed (Harvard University Press,

Cambridge, MA, 1979), 255-256.42 See Sandle, op.cit. note 38, 339.


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Brezhnev era were explicit in their predictions that the role of the party would increase markedly during the period of developed socialism.44 The

party embodied the interests of all segments of the community; it was an‘all-people’s party’. At the same time, it would retain its ‘class essence’ asa party of the working class throughout the developed socialist stage.

In spite of his innovations, Brezhnev preserved the transitionalfeatures of Khrushchev’s rhetoric. As a concession to Soviet tradition,development was stable and respected Marxist political values. It wasstated that ‘mature socialist society’ had come into being as a result of thetransformation of the state from the ‘dictatorship of the proletariat’ intoa ‘state of the entire people’. This form of state was said to be founded on

universal socialist democracy and the strengthening of social homogeneityresulting from the ‘convergence’ ( sblizhenie ) of all classes, social groups andnations, as well as on the strengthening of the leading role of the CPSUin society and the state.45

The concept of ‘developed socialism’ referred to an evolutionarystage marked most signicantly by its own inherent stability and by theslow-paced and non-traumatic nature of its evolution towards even highersocio-economic forms. Thus, the pace of change characteristic of theKhrushchev era was a thing of the past and, accordingly, party cadres did

not have to be frightened of losing their places.46

It can be concluded that, during the Brezhnev era, the concepts ofsocialism, transition, evolution and communism were all used to refer tocentralized politics and as values shared by everyone. Society ( obshchestvo )began to be seen as a systematic unity that it was possible to guide. It wasnatural for the constitution to be changed so that it reected the new,scientic-technical political system, the central idea of which was to trans-form utopian principles into objective legal actions. The persistence of

strong central authority, in the shape of the party and the state, emphasizedthe hegemony of statism and centralism in ‘Brezhnevian’ discourse.

7. Constitutional Rhetoric during the PerestroikaPeriod

Despite the fact that a new constitution was not adopted during theGorbachev era, Gorbachev radically reformed the Soviet constitu-tional concepts. The use of terms such as ‘ perestroika’ (restructuring),

44 According to Burlatsky, the tasks of the party were the following: (1) scientically informed

policy development; (2) fostering cadres; (3) dening the scientic management principles andmethods of analysis; (4) general supervision. See Burlatsky, op.cit . note 40, 116.

45 B h i


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‘ glasnost’ ’(openness), ‘ pravovoe gosudarstvo’ (law-based state) and ‘ gumani-tarnyi sotsializm’ (human socialism) brought new meanings to the unity of

constitutional concepts. Gorbachev ocially introduced the term ‘ glasnost’ ’ in 1986, at thetwenty-seventh Party Congress. During his speech on that occasion, hedeclared that the better the people were informed, the more reasonablythey would act and support the party and its plans and objectives. He alsostated: “We have to deepen glasnost’ in the work of the party, soviet, stateand social organizations. Lenin said that the state is rich when its peopleare responsible. Our experience has strengthened this conclusion.”47 Thisconstituted the political logic of glasnost’ , which, of course, was considered

very radical in the aftermath of Leonid Brezhnev’s regime.Beginning in 1987, Gorbachev started to sound a note of caution:

saying that perestroika was a social movement and that the CPSU was indanger of failing to adapt to the development of society. This was seenas a clear divergence from Lenin’s thesis, which stated that there wasdanger in social spontaneity and that the working class needed to be ledaway from it. Gorbachev, however, ignored the conict between his ownideas and those of Lenin and the Revolution. In his diaries, published in1987, he focused on his antagonism towards the Brezhnev era. According

to him, the Soviet Union was at a “turning point” ( perelom ) in its develop-ment and it was time to guide the country into a new era, away from thestagnation of Brezhnev’s period in power.

In Gorbachev’s view, the core of perestroika was that it united socialism with democracy and revived the Leninist concept of socialist constructionboth in theory and in practice. Perestroika meant the combination of theachievements of the scientic and technical revolution with a plannedeconomy. It represented an addition to socialism, in the shape of the mostmodern social developments.48

Thus, Gorbachev did not dene perestroika as a transition, becausehe did not envision a shift from one system to another. On the contrary,he believed that the same type of socialism as that introduced by theOctober Revolution, and founded on it, was still developing; perestroika would merely assist in the further development of socialism’s potentialand in its implementation. This process would not usher in a new politi-cal system or a new era, but a more progressive, moral and liberal formof socialism.49

47Mikhail Gorbachev, Izbrannye Rechi i Stati.Tom 1-5 (Izdatel’tsvo politicheskoi literatury, Moscow,1989), Tom 2, 130-131.

48 Ibid


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One of the most far-reaching reforms of Gorbachev’s perestroika wasthe formation in 1988 of the Congress of People’s Deputies, which was set

up in order to help transfer control of perestroika from the CPSU to gov-ernmental bodies. Gorbachev concluded that the resistance to perestroika was so strong among CPSU ocials that a reduction of the CPSU’s power was necessary in order to implement the reforms of perestroika.50

In relation to the formation of the Congress of People’s Deputies,Gorbachev wanted to revitalize the old concept of ‘all power to the soviets’.

In eect, Gorbachev sought to ‘democratize’ the soviets by enhanc-ing their position and the role of the legislative sector in relation to the

executive sector, namely by making the executive accountable to the legisla-tive. It was an application of glasnost’ to implement reforms. The reformsmeant that the soviets would elect the executive body and its leaders. Thisrepresented a radical step, because traditionally the CPSU had made alldecisions concerning the appointment of executive personnel. Gorbachevused the soviets as part of his strategy to widen glasnost’ . However, while

glasnost’ loosened the ideological control exercised by the CPSU, it alsothreatened the basic principle of the Soviet system—the one-party systembased on the Communist Party—and helped generate radical movements,

among which the most visible were the national movements. As regards the formation of the Congress of People’s Deputies, Gor-

bachev’s statement that deputies would be elected to it, and also to regionaland local soviets, by competitive elections represented a radical departurefrom the past. This reform struck at the Achilles heel of the CPSU becauseit introduced an alternative to the political nomination process, whichit had hitherto dominated. It resulted in a revolutionary transformationof the Soviet political landscape. A number of non-Communist politicalparties emerged and had their representatives elected to the Congress ofPeople’s Deputies, as well as republican and municipal bodies.

Gorbachev stated that the Congress of People’s Deputies representedthe socialist pluralism of opinions and the socialist ‘law-based state’( pravovoe gosudarstvo ). It was made the highest power in the country byconstitutional amendments of December 1988, and Gorbachev was electedchairman of the new body following the elections of March 1989.51 Whilethe electoral reform introduced by Gorbachev was intended to introducea degree of popular sovereignty into the operations of the Soviet system,52 50

Thomas F. Remington, Russian Parliament. Institutional Evolution in a Transitional Regime, 1989-1999 (Yale University Press, New Haven, CT, 2001), 24.

51 V d SSSR 88 N i


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the reform of the Supreme Soviet was intended to provide greater legiti-macy to the whole constitutional restructuring.

Besides making radical changes to the basic components of the Sovietadministrative system, Gorbachev and his allies introduced new conceptsof freedom and human socialism. These concepts transformed the core ofthe class-based system by putting forward the principle that the individualhuman being would be raised above the class from then on.

The program called ‘ gumannyi demokraticheskii sotsializm’ (humandemocratic socialism), which opposed the class-based ‘hatred’ approach, was launched in 1989. Gorbachev’s idea was that common human valuestook precedence over class values. He explained:

“in the name of wrongly understood collectivism, human individuality was ignored,the development of the personality was hampered, and the reasonable connes offreedom were drastically narrowed under the pretext of the priority of the collectiveover the individual.”53

During the February 1990 meeting of the Central Committee of theCPSU, Gorbachev declared that it was no longer necessary to guaranteethe CPSU’s position in society by means of the constitution. This led tothe removal of Article 6 from the 1977 Constitution.54 The Party, thus,lost its monopolistic position in Soviet society; from then on, it had to

compete in elections with other parties and organizations. In the spirit ofGorbachev’s reform policy, the rst democratic local- and regional-levelelections were held in March 1990. The purpose of the elections was tobring to the local councils perestroika-minded people. In some localities,such as in Moscow and St. Petersburg, the democrats managed to get amajority in the regional and local councils. Elsewhere, the so-called oldmembers of the nomenklatura managed to retain their places. And so it was that the democrats received most of the votes in the big cities whilethe old members of the elite instead won at the oblast’ level.55 Gorbachevthus managed to create a representative system at the regional and locallevels, where the elected organs of government were higher than the ap-pointed ones.56

Gorbachev wrote: “A large democratization is presently taking place inour society. New social and political organizations will be born.” He added:

53 Quoted in Sandle, op.cit. note 38, 392.54 Ved. SSSR 1990 No.12 item 189.55 Jerey W. Hahn, “Democratization and Political Participation in Russia’s Regions” in Karen

Dawisha and Bruce Parrot (eds.), Democratic Change and Authoritarian Reactions In Russia, Ukraine, Belarus and Moldova (Cambridge University Press, Cambridge, 1997), 133-136.


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“The CPSU is ready to work and have a dialogue with all the new organi-zations which work according to the basis of the Soviet constitution.”57

In Gorbachev’s view, however, maintaining the leading role of theCPSU in the new multiparty system constituted a primary objective.Thus, the new situation represented a sort of test for the CPSU, a chal-lenge to win the battle for people’s votes. It was in this context that theparty put forward its main electoral arguments, which emphasized thepreservation of the uniformity of the political system, the protection ofits social ideals and its successful reform. These concepts, it was hoped, would help legitimize the leading role of the CPSU. As can be seen, politi-cal arguments could no longer be founded on traditional Soviet tenets,

such as the ideological justice represented by the class state.Typically, the new concept of ‘democratic human socialism’ had been

introduced into Soviet political discourse in the aftermath of a change ofleadership; this matched the traditional, ritualized Soviet pattern wherebynew concepts were required, and were developed, in the wake of eachleadership change. Gorbachev stated that ‘democratic human socialism’ would lend legitimacy, direction and content to perestroika as a whole. Fol-lowing the historical pattern set by previous reform strategies, the newprogram of perestroika contained elements of the political system that it

was meant to supersede. Hence, the purpose of perestroika was to con-nect socialism and the new reforms. Gorbachev’s program, therefore, canbe interpreted as a traditional Soviet reform project, the central idea of which was to promote the transformation of the system while defendingthe old principles and values of Soviet socialism.

Although Gorbachev radically transformed the system of one-partyrule, his opinions about the role and structure of the Soviet Union remainedtraditionalistic. In 1989, he stated that the Soviet people had becomeunited in a common interest and had committed themselves to the 1917Revolution. He wanted this union to develop and, to this end, the CPSUneeded to demonstrate its commitment to socialism by showing that itspolitics reected the people’s will. This would legitimate the party andthe “new Soviet system”.58

It can be concluded that Gorbachev’s program was paradoxical be-cause its aim was to preserve the Soviet Union’s integrity and—at thesame time—to radically reform socialism. In other words, the problemfacing Gorbachev lay in the intractable diculty of maintaining the role

of the party as the conceptual base of the system while reforming it inthe name of perestroika. By endowing parliament with a measure of real


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power and moving in the direction of meaningful parliamentary elections,Gorbachev was undermining the authority of the party. Once he initiated

this process, there was no going back.

8. El’tsin’s Concepts towards the Soviet State

While forming the ‘new Russia’ in the beginning of the 1990s, an inter-pretation of Soviet constitutional concepts giving crucial importance tolocal politics became extremely important for El’tsin. In this context,understanding the Soviet Union as a union of regions made it possible todene it from the bottom up, and thus to delegitimize the central state.El’tsin’s constitutional rhetoric was based on the traditional rhetoricalelements of the Soviet constitution, which dened the formation of theSoviet Union as a voluntary combination of ‘sovereign’ unions.

El’tsin gave key signicance to the concept of ‘sovereignty’ when he gave his speech to the rst Russian Congress of People’s Deputies in May1990, stating: “The problems of the republics cannot be settled unlessthey are given full political sovereignty.”59 In contrast to Gorbachev, whodened sovereignty as the organic participation of the republics in thedivision of the state’s labor, El’tsin gave ‘sovereignty’ political meaning.

During the debate about the Baltic states, El’tsin introduced his mainidea of the Soviet Union as a future ‘kingdom of freedom’. By means of thisconcept, El’tsin took away all the repressive bonds between the republicsand the union state and changed the whole meaning of the latter. He spokeabout the absolute sovereignty of the republics and their almost maximalindependence within the Soviet Union. And in no way did he activate thedualism of the Soviet Constitution, whose purpose was to protect thecentral government of the USSR, as well as the CPSU.

Gorbachev, as El’tsin’s opponent, strived during the Baltic debate to

stick to the old constitutional bond, according to which it was the coher-ence of the CPSU and the ideological centralization of the state that madeit possible to decentralize the state and achieve regional autonomy. El’tsin,on the other hand, continuously sought to loosen the Party’s dominanceas a means of weakening the power of the union state and thereby buildstrong regions. For El’tsin, the most important outcome of the strugglefor independence of the Baltic States was that the union state and theparty were now separated from each other.

El’tsin’s leading idea, at the end of the 1980s, was to get rid of the

old Soviet state structure, where the federal level rested on the CPSU. In


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this model, the regions were fastened to the hierarchically organized network of the soviets. In his eort to alter the old system, El’tsin achieved

remarkable success. And once the Soviet Union had collapsed, the centralquestion became: how to build up the ‘New Russia’. The Russian Federation was—following the pattern of the Soviet Union—a federal state, whoseregions were supposed to be integrated with the center.

The most integral institution of El’tsin’s reforms was the post of governor, which was established after the August Putsch of 1991. AfterGorbachev had tried to democratize the soviets by making the executivebranch accountable to the legislative branch, El’tsin used the regions aslegitimate sources of central power. After the August Putsch, El’tsin and

his group saw the soviets as opponents of their policy and—with the helpof the governors—wanted to get rid of them. The idea was to strengthenexecutive power in relation to the democratic bodies and ll the crucialexecutive posts with local ocials who supported the president.60

After the debate over the Baltic states, it was no longer possible touse ‘the Party card’ to refer to the unity of the Soviet Union. Khasbulatovrejected the possibility that Russia might become the Soviet Union again.Instead, he defended the idea that Russia would become a union of sovi-ets. El’tsin, on the other hand, wanted the more politically independent

regions to replace the federal unity. El’tsin based the rebirth of the Russianconstitutional order on the pre-Soviet era and saw the Soviet period asillegitimate, an interregnum in Russia’s search for democracy.61

El’tsin’s revolutionary federalism emphasized the role of the regionsbut not the Soviet identity of the citizens. His program focused on thedissolution of the Soviet system, and his major criticism was aimed at theconcept of the soviets themselves, which—in the Soviet model—had playeda central role in both the key concept of democracy from below and thatof the federal union of soviet states. The purpose of El’tsin’s politics wasto develop a federal model in which the soviets played no role at all.

When studying the process that led to the coup and eventually tothe new 1993 Constitution, it can be noticed that El’tsin’s argumentationradicalized after the rst coup in August 1991. El’tsin was suspicious of theleaders of the republics because during the blockade of the White House,the regional leadership’s general tendency was to use the crisis to advancetheir own interests. After signing the federal treaty in 1992, the role ofthe regions culminated in the debate over Russia’s new constitution.62

60 Jerey W. Hahn, “Reforming Post-Soviet Russia: The Attitudes of Local Politicians”, in Friedgutand Hahn, op.cit. note 56, 208- 238, at 211.


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In order to have the regions on his side against the policies of PresidentEl’tsin in the constitutional debate, the chairman of the Supreme Soviet,

Ruslan Khasbulatov, started to make trips to the regions. He announcedin April 1993 that he had returned the “power of the soviets to the regions, which would soon return the power to the central level”. Khasbulatovproposed the establishment of a central parliamentary republic and therestoration of the power of the soviets in the regions and localities. Hefavored the restoration of the power of the soviets in which local executiveauthorities would be subordinated to local soviets, which in turn wouldbe subordinated to the presidium of the Supreme Soviet.63

El’tsin also tried to get the regions on his side in the constitutional

debate, oering a federal model in contrast to Khasbulatov, who had of -fered the regions the “original” Soviet model.64

In May 1993, El’tsin decreed that a constitutional convention was toconvene to rene and adopt a new constitution in nal form. In his openingspeech to the Constitutional Assembly in June 1993, El’tsin compared thattime with 1917 in that the new Constitutional Assembly was continuingthe work of the Provisional Government, which was brought to an endby the Bolshevik seizure of power and the dispersal of the Constituent Assembly in January 1918.65 El’tsin thus based the rebirth of the Russianconstitutional order on the pre-Soviet era. The Soviet period was por-trayed as illegitimate, an interregnum in Russia’s search for democracy. According to El’tsin, the soviets and democracy were fundamentallyincompatible.66

The Constitutional Assembly approved by a large majority a newconstitutional draft in July 1993 that diered from the president’s draft.The Assembly’s draft envisioned a rather weak president, who was de-pendent on the parliament. As a response, El’tsin issued an edict ( ukaz )

in September 1993 on gradual constitutional reform in the RF.67 This dis-solved the Supreme Soviet and the Congress of People’s deputies, whosepowers were to be transferred to a new Federal Assembly ( Federal’noe

sobranie ). This institution, in turn, would be made up of the State Duma and the Federation Council ( Sovet Federatsii ). Deputies would be elected tothe Duma for a term of four years while the Federation Council would be63 Ibid ., 125.64 Gorshkov et al ., op.cit . note 59, 406.65

Konstitutsionnoe soveshchanie, op.cit . note 62, tom 2, 4.66 Sakwa, op.cit . note 61, 58.


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composed of the heads of the executive and legislative branches of eachsubject of the federation.68 The draft constitution to be considered at the

referendum was published on 10 November 1993. A national vote on a newdraft constitution was organized on 12 December, and the constitutionentered into force the same day.69

The 1993 Constitution is the rst basic law ever adopted in Russiato be based on the idea of universally recognized human rights. It intro-duced the concepts of freedom ( svoboda ) and free participation ( narodosushchestvliaet svoiu vlast’ neposredstvenno ) as its key constitutional notionsin Russia. Additionally, it is addressed to all human beings and—throughthe concept of freedom—conceives of human rights as being universal and

unrestricted. This constitution thereby represents a mixture of patriotismand universal justice. Along the same lines, the concept of ‘ideologicalmultiplicity’ ( ideologicheskoe mnogoobrazie ) is mentioned in Article 13. Thus,it is obvious that there was no place for Marxist and ‘radical humanist’citizenship in the 1993 Constitution. Moreover, it abandoned the statistideology and introduced a Russian model of representative democracy,as well as a multiparty system—new concepts in Russian constitutionalhistory.

For the rst time in Russian history, a constitution made a seriousattempt to dene—and, thus, to limit—state power. However, it alsoestablished a strong executive presidency to which the government issubordinated within an unbalanced system of separation of powers. Thatled to continuous conicts between the parliament and the presidentduring El’tsin’s period in power.

Furthermore, the 1993 Constitution denes Russia both as “Otechestvo”and “ Rodina” (fatherland, homeland) as well as a certain kind of administra-tive entity. As a form of state organization, it introduces the federal state,

in which the tools of the central government are “vera v spravedlivost’ ” (“abelief in justice”) and “ priznanie, sobliudenie i zashchita prav i svobod cheloveki grazhdanina” (“the recognition, supervision, and protection of the rightsand freedom of man and the citizen”) (Preamble and Art.2, respectively).In its original scheme, the region was one of the loci of political operations.Those elements are the bases of a very federative structure. The Constitu-tion introduces a multifaceted local and central network the raison d’êtreof which is to defend the freedom of the individual. The Preamble of the

68 Thomas F. Remington, The Russian Parliament, Institutional Evolution in a Transitional Regime,1989-1999 (Yale University Press, New Haven, CT, and London, 2001), 166.


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Constitution is a declaration of the nature of the state, in which the past isstrongly present. It is written in the development-historical style in order

to justify the unity of the new state and the self-determination of nations.The concepts of ‘fatherland’ and of the sovereignty of the Russian stateand federation are both embraced on a constitutional, as well as national,level. On the other hand, notions of a unied Russia and fatherland foundin the Constitution took on new meaning in 1994 in the context of therst Chechen war. Svoboda rhetoric was shelved, and economic reformsincreasingly came to be seen as only proting those participating in thefree market. Monolithic concepts of politics and society were used tocounteract multiparty chaos and the anarchy of the free market.

9. Putin’s Constitutional Reinterpretations

While President Vladimir Putin did not engineer the adoption of a newconstitution, he has radically transformed Russian constitutional think-ing, in particular as concerns the understanding of federal unity. At rst,such novel concepts as ‘dictatorship of law’ ( diktatura zakona ) and ‘power vertical’ ( vertikal vlasti ) reected the unstable state of the Kremlin afterEl’tsin’s time in power and Russia’s pressing need for more stability and

cohesion, domestically as well as internationally.70 Essentially, the newconcepts of Putin’s ‘command administration’ represented guidelines onhow Russian national unity must function.

Thus, the term ‘dictatorship of law’ was targeted against the legislativechaos of El’tsin’s years in power. Within the framework of the ‘dictatorshipof law’, every Russian citizen was guaranteed the same rights, and federallegislation was to be understood in a uniform manner throughout thefederation. These reforms were legitimized by referring to Article 78 ofthe 1993 Constitution, this idea of which is that federation ocials—the

president and the government—have the right to create regional bodies with undened powers and to order ocials to implement the power andauthority of the federation. This has made it possible for Putin to createthe so-called seven ‘super districts’ ( federal’nye okruga ) and appoint as theirleaders ( polpredy ) former generals and ocials from the FSB.71 The taskof those seven leaders is to oversee the complex process of bringing theconstitutions of the republics and the regional charters in accordance withthe federal constitution and federal laws. The new law placed the presiden-tially appointed ocials higher in the political-administrative hierarchythan the elected governors and the presidents of the regions. In regard


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to the regions’ autonomy, soon after Putin’s election to the presidency in2000, the Constitutional Court ruled that the declarations of sovereignty

of the republics, typical of the early 1990s, were incompatible with thesovereignty of the Russian Federation.72

The further strengthening of vertical power continued when Putinannounced, at an autumn 2004 meeting with regional governors, a newstance towards the regions. In the context of the Beslan school hos-tage siege, he declared that the reforms of the executive sector wouldunite all the regions in the ght against terrorism. Putin claimed thatfederal unity was already proclaimed in Article 77 of the 1993 Constitu-tion, which states that “the federal organs of executive power and the

organs of executive power of the subjects of the Russian Federationform a unitary system of executive power in the Russian Federation”.Putin’s interpretation of that Article was that “the executive power of thefederation and the dierent regions of Russia form(ed) a single system ofpower and must work as an inseparable entity of executive power [edinaia

sistema ispolnitel’noi vlasti ]”.73 New legislation on regional governors wasintroduced later in 2004. This provided that the legislative bodies of theregions henceforth would have the right to elect the governors after thepresident of the Russian Federation had rst nominated the candidates.

The new system also removed the governors and elected heads of the locallegislatures from those same bodies, replacing them with appointed ocialsfrom the executive and legislative branches of regional government. Bycontrast, the Federal Council in the El’tsin era consisted of the membersof the regional governments and the heads of regional legislatures whohad been elected by people’s direct vote; the Council could, thus, work asa force of opposition to the president.74 This was demonstrated in 1996, when the Federal Assembly tried to remove El’tsin from oce on the basisof accusations that he had started the war in Chechnia.

It has been argued that the reform abolishing the democratic elec-tion of governors violated Article 55 of the 1993 Constitution, which72 RF Constiutional Court, Ruling ( postanovlenie ), 7 June 2000, No.10-P, “In the Matter of Ex-

amining the Constitutionality of Several Provisions of the Constitution of the Altai Republic[...]”, Vestnik Konstitutsionnogo Suda RF (2000) No.5, available at , and RF Constitutional Court, Decision ( opredelenie ), 27 June2000, No.92-O, “Regarding the Inquiry of a Group of Deputies of the State Duma in the Matterof Examining the Conformity of Constitutionality of Several Provisions of the Constitutionof the Adygei Republic [...]”, Vestnik Konstitutsionnogo Suda RF (2000) No.5, dissenting opinion(of Justice Luchin) at Vestnik Konstitutsionnogo Suda RF (2000) No.6, both available at . See, further, Ross, op.cit . note 70, 42.73 Vladimir Putin, Speech delivered at the Enlarged Government Meeting with the Government

d H d f h R i S b il bl h // k li


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states that: “Laws abolishing or diminishing rights and freedoms of manand citizen must not be issued in the RF.” Additionally, the reform also

arguably infringed Article 11, which declares that: “State power in the RFis exercised by the RF President, the Federal Assembly (the Council ofthe Federation and the State Duma ), the RF Government, and the RFcourts.” Those arguments are consistent with a 1996 decision of the Con-stitutional Court. The Court found that the election of the Altai district

krai leader by a resolution of the Altai regional legislative assembly wasunconstitutional and caused damage to the balance of powers.75 The deci-sion further stipulated that the same principles applied to the election oflegislative bodies at the regional and federal levels.

Another important aspect of Putin’s policy of tighter political andsocial integrity concerns the adoption of a party-list proportional votingsystem for the elections to the State Duma. The new voting system favorsbig parties, the biggest of which is Putin’s own United Russia. The new voting arrangement went from 50% single-member districts and 50%party list to 100% party list. A similar reform was implemented by a 2001law on the strengthening of the federal multiparty system in the regions.76

The purpose of this legislation was to prevent the formation of regionalparty coalitions, which were seen as political vehicles of the regional elites

and, therefore, potential sources of opposition to government policies.Following the law’s enactment, a majority of regional leaders joined theranks of United Russia.

Indeed, in the context of the history of Russian constitutionalconcepts, the transformation of the concept of the party is the mostsignicant change of Putin’s era. To be sure, constitutional regulationsconcerning the multiparty system and, in particular, the prohibition onsetting up a one-party system have not as yet been overturned. However,the status and inuence of United Russia in present-day Russia—of whichthe overwhelming majority of deputies in the Duma are members—mayseem to leave open such possibilities for the future.77 It remains to be seen

75 RF Constitutional Court, Ruling ( postanovleniie ), 18 January 1996, No.2-P, “In the Matter ofExamining the Constitutionality of a Number of Provisions of the Charter (Basic Law) ofthe Altai Krai”, Sobranie Zakonodatel ’stva Rossiiskoi Federatsii (1996) No.4 item 409, available at.

76 RF Federal Law “O politicheskikh partiiakh”, No.95-FZ, signed 11 July 2001, Sobranie Zakonodatel ’stva Rossiiskoi Federatisii (2001) No.29 item 2950. It has since been amended; avail-able at .

77 See Vladimir Gel’man’s remarks about the role of the United Russia at “From the Frying Paninto the Fire? The Dynamics of Post-Soviet Regimes in Comparative Perspective”, 50(1) Rus-


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how the respective roles of party, state and citizens will evolve in the longrun. So far, there has been no question of returning to a one-party system,

because United Russia has not adopted an active ideological role; rather,it has been acting as a political organization that guarantees the popular-ity of the president and, lately, of the prime minister. Nevertheless, thereare fears in some circles that United Russia will be used to strengthen thepower of the central government by bringing its own networks closer tothose of the state.78 So far, the role of United Russia is not so powerful thatit can be compared to that of the CPSU in the late 1980s. Additionally,the theory of a multiparty system and free elections confer at least theappearance of representative democracy on Russian politics, an advantage

that the rulin

a russian constitutionalism

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