RUSSIA'S CONSTITUTIONAL REVOLUTION: LEGAL CONSCIOUSNESS AND THE TRANSITION TO DEMOCRACY, 1985-1996 by Robert B. Ahdieh, University Park, Pennsylvania: Penn State Press, 1997, 255 pp.

Reviewed by Kathryn Hendley, Law School and Department of Political Science, University of Wisconsin-Madison.
 

In RUSSIA'S CONSTITUTIONAL REVOLUTION: LEGAL CONSCIOUSNESS AND THE TRANSITION TO DEMOCRACY, 1985-1996, Robert Ahdieh sets himself two distinct but inter-related goals. The first is to provide a critical history of the development of the Russian constitution and the constitutional court. The second is to analyze legal consciousness in Russian society. Given his very different levels of success in achieving these goals, it is important to discuss them separately.

The first half of the book is an engaging account of how the present-day Russian constitution came into being. Ahdieh obtained access to many of Gorbachev's closest advisors and succeeded in getting them to describe their thought processes at many key points along the road, and to reflect on the political system produced by the constitution ratified in 1993. Ahdieh also talked with the top Russian legal scholars of constitutional law, many of whom participated in one or another stage of the drafting process. Scholars have traditionally played a critical role in shaping law in Russia and, consequently, these interviews provide a more dispassionate account of what happened.

Ahdieh does an excellent job of explaining how the constitutional court evolved from the Gorbachev-era Committee on Constitutional Supervision. The latter was a largely toothless body, but nonetheless represents an important step toward meaningful constitutional review. He then explains how the constitutional court was reformed following the 1993 October events. He provides considerable detail about the court's review of the constitutionality of Yeltsin's outlawing of the Communist Party. Ahdieh argues that the court erred in accepting the case. As he points out, "[a]s the hearings progressed, it became impossible to distinguish the legal proceedings from the political games of its central players." (p. 83). In his view, the public perceived the "trial in a political light ..." And while this accusation was untrue it served to undermine the court's credibility at its very inception.(p. 83) He buttresses his criticism of the court's behavior in this case by noting that, "[s]ignificantly, every member of the court and its staff with whom I spoke (including the ambitious former chairman Valery Zorkin) had come to recognize this mistake by the end of 1993" (p. 85).

Although regretful that so much time and political capital was wasted on the Communist Party case, Ahdieh finds much to admire in the work of the constitutional court. He argues that, as the constitutional court reconstituted itself following the aftermath of the events of October 1993, they learned from this case that procedural rules could not be allowed to evolve gradually on a case-by-case basis. Learning from its past mistake, the court members insisted on the passage of a comprehensive law to govern their operations before they began to hear cases again. More importantly, Ahdieh argues that the court touched a nerve among ordinary citizens, from whom it received many petitions. He believes the court should have eschewed involvement in high politics, and should instead have concentrated on resolving low-level disputes.

Much of the story of the maturation of the constitutional court and the 1993 constitution is, of course, familiar to specialists on Russia from books and articles by both Western and Russian scholars and participants. Ahdieh brings a richness of detail previously unavailable. At the same time, the non-specialist may have some difficulty following the thread of the story, since Ahdieh has a tendency to get bogged down in detail. With the understandable enthusiasm of an author for his subject matter, he sometimes exaggerates the importance of the political battle over the constitution. Few would agree with his contention that, "all politics in Russia was constitutional." (p. 49) Indeed, as someone who lived in Russia for much of the period covered by the book, one of the most jarring aspects of reading Ahdieh's account is the virtual absence of the battle over privatization which was just as politically divisive as the constitution. Certainly most recognize it as one of the reasons for the breakdown in political order in the fall of 1993. Moreover, due to the specific nature of his access, his version is not entirely even-handed. This is particularly true of his discussion of the creation and development of the Russian constitutional court and of the dissolution of the Soviet Union (which he describes, in the terminology of the Gorbachev insiders, as the "Byelorussian coup.") Specialists will appreciate the importance of understanding the point of view of the now-discredited Zorkin (who was the first chairman of the Russian constitutional court and remains a member of the court). Yet the uninitiated reader is likely to emerge with a somewhat skewed impression of the court.

The second half of the book is devoted to an analysis of legal consciousness in Russia. Ahdieh's argument that a lag in legal culture is a key obstacle to meaningful changes in the role of law in Russia is well founded. He points to the fundamental changes made in the institutional structure during the decade covered by the book, but contends that many such reforms have ultimately collapsed in failure because they were not embraced by the populace. He argues that the critical flaw is the insistence of the Russian state for top-down reform, and the unwavering assumption by the political leadership that changes in incentives will effect the desired changes in behavior. He does a good job of grounding this analysis in Russian history. He believes that change will come only when state and society work together in partnership.

Ahdieh's recommendations are mostly prescriptive, and reveal a strong faith in direct democracy. Many of these recommendations now seem dated. For example, he writes, "The Russian press, which is gradually freeing itself from the few remaining constraints that have survived the Soviet period (a process the political elite must continue to support), must become a dispassionate educator of public mores." (pp. 131-32) In reality, financial oligarchies have replaced the Communist Party as the arbiter of press content. This is vividly demonstrated during every campaign, and was particularly evident during the 1996 presidential election. Similarly, his advice about political parties, focusing on the importance of parties building strength through participation in local and regional elections (p. 127), now represents a path not taken, as many municipal and regional leaders work to build political machines that are largely independent of national-level parties. The book's analysis ostensibly continues through 1996, by which time many of recommendations had been rendered moot. It is odd that the author did not update the analysis to reflect the reality at that time.

Ahdieh correctly notes that most studies related to Russian law tend to focus on the institutional aspects of reform, i.e., changes in substantive law and the introduction of new institution and/or the reconstitution of Soviet institutions. One of the reasons for this propensity is the virtual absence of systematic information about legal culture, either present-day or during the Soviet period. The Soviet leadership would not allow the necessary research, though important insights emerged through the memoir literature. Now some research projects are underway and others have been completed. Ahdieh makes use of none of this secondary literature. Instead, his analysis is rife with impressionistic claims about what Russians think and how they reacted to one or another event.

Ahdieh's use of the concept of "constitutionalism" is also not entirely successful. When first defining it, he stresses that it includes both institutional and cultural elements. At later points in the book, the term is used as a synonym for the rule of law (both the Western notion and the Russian concept of PRAVOVOE GOSUDARSTVO or a rule-of-law state) and even civil society. It is not limited to the constitutions, but is used as a shorthand for general respect for law. As a result, "constitutionalism" is amorphous. The reader is never entirely sure to what aspect the author is referring at any given point.

RUSSIA'S CONSTITUTIONAL REVOLUTION: LEGAL CONSCIOUSNESS AND THE TRANSITION TO DEMOCRACY, 1985-1996, is an important contribution to the rapidly developing literature on the Russian constitution and the constitutional court that should be read carefully by Russian specialists and others interested in comparative constitutional law.