Federalism, Democratization and the Rule of Law in Russia.

• Author: Butler, William E.

FEDERALISM, DEMOCRATIZATION AND THE RULE OF LAW IN RUSSIA. By Jeffrey Kahn. Oxford: Oxford University Press. 2002. Pp. xii, 319. $65.

When I took up my appointment in October 1970 as Reader in Comparative Law in the University of London, I was invited to collaborate in teaching the LL.M. course in Soviet Law offered within the University on an intercollegiate basis. The course had been introduced two years previously, the first of its kind within the realm. Originally it was offered by a team of three, regrettably all now deceased: Edward Johnson, Ivo Lapenna, and Albert K. R. Kiralfy. I had come to England to replace the late Edward Johnson, whose untimely death had left vacant the Readership in Soviet Law, tenable at University College London. He had, I believe, been instrumental in introducing the Soviet Law course, having in 1967 launched a series of evening lectures on the subject which were open to the public, were well attended, and resulted in the book that appeared posthumously. (1)

With my arrival, Albert Kiralfy decided to step out of the course and leave it to be taught by Lapenna and myself, which we duly did for the next seventeen years. It soon became clear that we shared a fundamentally different perception of the nature of the structure of both the USSR and, within that entity, the Russian Soviet Federated Socialist Republic ("RSFSR"). Having discovered the differences, we developed a "horse and pony" show over the years to introduce students to what we considered the core issues to be. And great fun it was.

I was away on sabbatical during the 1986-87 academic year, so I never learned Lapenna's latest views on perestroika and its implications for constitutional law. When we last had the opportunity to perform together in autumn 1985, no changes were in evidence. The essence of Lapenna's perception therefore will not, I think, have changed. In his view the Soviet Union as a whole, and the RSFSR as a constituent union republic of the USSR, were thoroughly "federalized." In substance the USSR was a unitary state clothed in "federal" dress. The trappings of statehood for the fifteen union republics, and a fortiori for lesser administrative-territorial entities, were nothing more than a symbolic genuflection in the direction of structures that served, and should serve, ideological purposes against the particular background of Russian history. The Soviet Union in this respect was a triumph of substance over form, and that was all that truly mattered.

Without necessarily quarreling with the perception of substance, which I pointed out did vary over the course of time, I emphasized the importance of form. The Treaty of the Union of 30 December 1922--which formed the Union of Soviet Socialist Republics--was a document of international law concluded, initially, by four independent states. Labels are not easy here, but to me, on the spectrum of "confederation--federation--federal," it was closer to the confederation but supple enough to incorporate strong dosages of federation and federal models. Lawyers tend to focus upon the formal mechanisms of federalism: rights of secession, applicable law, remedies, attributes of statehood, and so on. Lapenna dismissed the treaty and constitutional rights of secession by the union republics as "paper" rights, unrealizable in practice without civil war. To me they were "sleeping dog" provisions, unrealizable at the time, but who could say what their future role might be.

Looking back over the past decade, "form" proved to have been of exceptional, if not decisive, importance in shaping the dismantling of the Soviet Union, and form continues to be a central concern in reshaping the structure of the Russian Federation. Those who viewed the Soviet Union as irretrievably unitary or federal in substance will quite naturally have expected any disintegration of that structure in all likelihood to have been accompanied by widespread violence and civil strife. That disintegration should have proceeded in accordance with the international law of treaties some find as implausible as the peaceful turning over of Hong Kong back to China once the lease and treaty schemes had lapsed there.

Be that as it may, "federationism"--to use the term I preferred in my own study of Russian law (2)--in the Russian Federation has taken new directions to address old problems. Dr. Jeffrey Kahn's (3) admirable and thoroughly researched study offers invaluable materials and insights on what has been transpiring in the world of Russian federalism (and beyond) from the earliest Soviet days to the present, with particular emphasis and depth on the post-Soviet decade.

Kahn's study is a revised version of a D.Phil. thesis completed at Oxford University, and to a certain extent, but not disruptively, it betrays its dissertation origins. As for the Butler/Lapenna dialogue, he would have been strongly pro-Lapenna, although he creates as his nemesis Professor William H. Riker, (4) whose classic study of federalism serves as the foil for many of Kahn's observations and conclusions. Kahn makes his position absolutely clear from the outset:

It has frequently been asserted...