Russian Law Journal

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Vol 9, No 2 (2021)
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8-25 755

With the end of the Cold War, many assumed that socialism, together with the specific constitutional values and political structures was dead (or dying). This article will challenge these assumptions. Post-Cold War reality did not, however, follow these assumptions. Some countries, especially in Asia, continue to adhere to socialist constitutional approaches. Some cannot fully overcome their socialist legacy. And still others include socialist values in their constitutions and practice. These values and ideas warrant study. Most notably, socialism carries with it a certain set of values and, consequently, a corresponding pressure on legal institutions. The authors, guest editors of this special issue of the Russian Law Journal on the socialist legacies in the world constitutions, outline a general approach for the study of socialist constitutional legacies. The article therefore addresses (a) the methodology of socialist constitutional legacies analysis, (b) the core values of the socialist constitutions and (c) ways in which socialist constitutional ideas and concepts can be combined with the principles of constitutionalism. This analysis raises a number of important – but under-researched questions. One is the extent to which these socialist ideas or concepts are actually socialist. Another is the extent to which these ideas can be included in constitutional discourse.

26-43 397

The success of the legal transitions occurring in the 1990s was quite dubious. Although, as a result of enlargement of the EU, much of the “other Europe” became part of the European Union, it would be too simplistic to assume that, with the fall of the Berlin Wall, the region became part of Western European political and legal landscape. While the books of the old era were discarded, legislation repealed and new institutions created, one should not underestimate the continuing strength of the old values, principles and legal thought in general. After all, the authors of those discarded books remained in the academia, even if they seemingly started to produce – virtually overnight – new works, while defending new values and principles. Alongside with the academics, the entire legal personnel of the old era survived the systemic change, and this contributed to the persisting spirit of old legal culture. That is why the philosophies of the old socialist legal system were able, not only to survive, but to govern a substantial portion of the post-socialist legal and judicial discourse. The deepest layers of the old legal culture are resistant to sudden changes by their very nature. They seldom have a direct connection to the former official political ideology, and they are often clothed in the new legal vocabulary. Furthermore, the most persistent features of socialist legal culture are often those linked to the region’s illiberal pre-socialist past, although substantively modified during the era of socialism. I will show some examples of old socialist concepts which seem to be alive and well in the new legal system. First, I am going to deal with the authoritarian model of judicial process, which appears to prevail in the region of Central and Eastern Europe. The socialist conception of a judicial process continues to haunt the region even several decades after the fall of “existing socialism.” The parties continue to be viewed as passive objects in the post-communist litigation. Second, I am going to explain a specific socialist novelty, the concept of supreme courts’ interpretative statements, legislating from the bench without any real-life case pending before those courts. Last but not least, I will show the gradual decline of the activist role of constitutional courts in the region and the return to the tradition of self-restrained judiciary influenced by politics and politicians.

44-69 378

The socialist ideas of Russian Revolution were well-known in Peru, according with the struggles of working-class and student movements and the birth of socialist and communist parties. But the Peruvian Constitutions of 1920 and 1993 only opened someone social rights, not only for the workers, but also for the indigenous people to protect their community territories. Only with the Constitution of 1979 the leftwing constituents were almost one third of the constituents. In this way the Constitution included social ideas in the type of State as social and democratic Rule of Law, the equal rights between all persons, particularly between men and women, the employment was protect by the State, the public education cost-free, the property had a social function, the natural resources were of the Nation, and the indigenous and Amazonian communities were protected, etc. But, with the neoliberal Constitution of 1993 the economic model was liberalized in favor of the market and the international investors, reducing the social rights, and the national power was centralized in the Executive Power. But, since 2000, after the fall-down of Fujimori’s regimen, the Constitutional Court played a role of balanced the impact of this new model, according with the international treaties of human rights and social rights. In this sense, the Constitutional Court was able to give the Constitution of 1993 a social content.

70-91 324

Albeit in 1918 the Slovak nation voluntarily became a “branch” of the single Czechoslovak nation and of the unitary Czechoslovak state, the connection with the Czechs was rather perceived as a strategic move until the Slovak nation develops its capacity for the execution of its own right to self-determination. In the context of Czechoslovakia being under pressure of Hitler’s Germany in 1938, Slovak autonomists managed to exploit the situation and Slovakia was granted autonomy within Czechoslovakia. Soon thereafter, in March 1939, an “independent” Slovak State was created, in fact being under direct control of Nazi Germany. The authoritarian political regime of the War-Time Slovakia was soon rejected by Slovaks themselves and the Slovak nation was rather willing to sacrifice its independence in order to return to the democratic regime of Czechoslovakia in 1945. Still, there were attempts to change the position of Slovaks and Slovakia within Czechoslovakia, which eventually materialized in the form of the federalization of the Czechoslovak Socialist Republic in 1968/69, giving Slovaks for the first time (apart from the Hitler-sponsored statehood in 1939–1945) their formal republican statehood, albeit only within a system of limited socialist federalism. Still, this allowed for a relatively simple change of this formal statehood into an internationally recognized independent Slovak Republic in 1993. The socialist constitutional recognition of self-determination of the Slovak nation in the form of a Socialist Republic thus paved the way to the currently existing Slovakia, hence making it the most important legacy of the (Czecho-)Slovak socialist history.

92-124 426

The People’s Republic of China is, according to its Constitution, “a unitary multi-national state” based on the socialist system. The Constitution also allows the state to establish “special administrative regions” in light of “specific conditions.” This provision backs the principle of “One Country, Two Systems” that China applies to achieve territorial reunification, through allowing the relevant territories to continue with their capitalist system and way of life. This principle was operationalised in the cases of Hong Kong and Macau, resulting in the establishment of two Special Administrative Regions, each of which governed by a “Basic Law” prescribing the systems of the relevant region, when China resumed the exercise of sovereignty over them on 1 July 1997 and 20 December 1999 respectively. This article considers the two decades of constitutional and legal interactions between the Chinese “Central Authorities” and these sub-national Special Administrative Regions, so as to highlight the socialist mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure that “One Country, Two Systems” with not be “distorted,” that national sovereignty, security and development interests are safeguarded, and that these regions will play a positive role in national economic development. It is clear from this study that the implementation of “One Country, Two Systems” in the two regions has been “developmental,” with the law serving the interests of the “Centre” under the leadership of the Communist Party of China.

125-147 371

Russia has a federated structure. It is quite complex, with five different types of subjects of the Federation: republics, territories, regions, an autonomous region, cities of federal significance, and autonomous areas. Each of these subjects of the Federation has its own constitutive law. For a republic within Russia, this document is called a constitution. For each of the other subjects of the Federation, it is called a charter (ustav). These “figurehead” constitutions and charters obviously have great significance for their respective subject of the Federation. However, there are interesting disparities between them. This article explores one aspect of these. It considers the legacy of the Soviet approach to law in the precise wording of the constitutions of Russia’s republics and charters of the other subjects of the Federation. This careful textual analysis reveals that there are a few – although only a few – traces of Russia’s socialist past in the wording of these constitutive documents. However, that may not be the only “remnant of the Soviet past” in the approach taken in relation to these important laws. It is argued that the scarcity of an enforcement mechanism which might allow judicial consideration of any breach of a republican constitution or subject of the Federation charter is strongly reminiscent of the situation of constitutional unaccountability which existed under the Soviet regime.

ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)