A Legislative (Logico-Linguistic) Analysis of the Common Law Components of the Russian Constitution

• Author: Nigel J. Jamieson/Alexander Trapeznik
• Position: Senior Lecturer in Law/Senior Lecturer in History
• Pages: 432-495

BA(NZ) LLB(VUW) LLD(Otago), Senior Lecturer in Law, University of Otago, Dunedin, New Zealand and Legislative (formerly Parliamentary) Counsel. The author gratefully acknowledges Simon Currie LL.B for research assistance in this paper; Dr. Alexandr Krouglov for lengthy discussions on comparative linguistics; and the late Dr. Nicholai Danilow for his persistence in encouraging the author's pursuit of Russian law, language, and history. In turn, the author would dedicate whatever success he may have in this present pursuit to the memory of the late Dr. Alexander Maximovich Yakovlev, whose foundational work in correlating constitutional law with linguistics will become apparent in this paper.

BA(La Trobe) MA(Tas) PhD(ANU) Dip Hum(La Trobe) GdipMusStud(PCAE), Senior Lecturer in History, University of Otago, Dunedin, New Zealand.

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I Introduction

Anglo-American common law concepts rarely translate into Russian idioms with juristic precision. When transplanted from the Anglo-American common law system into the predominantly civilian system of Russian law, these common law concepts can pose problems at both logico-linguistic levels of understanding and politico-legal levels of operation. The problems arise for both the Russian indigenous reader, oblivious to the way in which these legal transplants operate in their original jurisdiction, and the Anglo-American common lawyer, assuming from the English translation that their accustomed common law meanings operate in the Russian text. Until identified and resolved, these problems of transnational communication carry the potential to provoke deeper misunderstandings of a political and legal nature. It is the purpose of this paper to explicate these transnational problems, both in the logical and linguistic areas where they originate, as well as in the political and legal areas where they eventuate.

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The common lawyer¹, when looking at any English translation of the Russian Constitution, will likely overlook differences in the language, law, and logic between the translation and the original text. Western legal transplants, such as the rule of law or separation of powers, may have different operations for Russian constitutional law, and this is true in any post-Soviet context. This Article follows from earlier investigations into source and target-oriented comparative law² by highlighting and quantifying many of the risks of misinterpretation inherent in these issues. It does so by coordinating the historical, political, and legal bases required to understand and resolve these issues. In addition, by closely correlating the law, politics, and history of the Russian Constitution³with logic and linguistics, this Article takes on the interdisciplinary task of attempting to isolate, identify, and promote a means of resolving these risks of misinterpretation.

The prevailing Russian Constitution incorporates much of the Anglo-American common law, especially that which concerns constitutional matters. For instance, the Russian Constitution now explicitly upholds the rule of law and separation of powers: doctrines backed by centuries of Anglo-American constitutional history.⁴ The common lawyer is obligedPage 434 to remain critically aware of such doctrines for the well-being of his own legal system.

Such common law doctrines can be equated as much with the adjectival or procedural operation of the law as they can be equated with the conceptually substantive part of the law. The result is the more direct equation of due process (as a juristic means) with the well-governed state (as the juristic outcome of the process). This equation of due process with the well-governed state is seen by the common lawyer to originate in the heritage values of the custom-based common law.⁵ This same equation, even within the typically similar and English-speaking trans-Atlantic democracies, may still develop and manifest itself differentially in each. Sometimes both of these constituent common law countries draw juristically together while at other times, they draw juristically apart. Nevertheless, both trans-Atlantic democracies still keep alive the same autochthonous roots of the common law expressed currently in such concepts as the separation of powers and the rule of law. These concepts of the common law feature so large in the global consciousness as to be sought after as legal transplants in other, often linguistically remote, jurisdictions, including for the present analysis, that of the Russian Federation.

The concept of the well-governed state cannot simply be explained in terms of basic rights and freedoms, but must also accord with due process at the highest constitutional levels. A reborn global consciousness for jurisprudence may bring together what were once seen to be the disparate and even conflicting elements of civil and common law. These disparate elements, interactively affecting common law and civil law systems, often hold conflicting claims as to what juristic methods best produce a civil society. Common law and civil law systems are two of the world's most transnationally extensive, yet strikingly different legal systems. Because of such striking differences, it is not surprising that the civil lawyer's readiness to conflate a civil society with the civil law system is provocatively disturbing to the common lawyer.⁶

Reaching a fittingly systemic integration of the constitutional matters of common law transplanted into the Russian legal system requires thePage 435 most cautious exercise of comparative understanding.⁷ Without such caution, we would agree with Feldbrugge that the distinction between civil and common law systems "confuses more than it enlightens."⁸However, to overlook the systemic distinction altogether would seem only to postpone and intensify one's sense of confusion.

The offshoots of such doctrines as the rule of law and separation of powers may allow for the supremacy of legislatures-as held in check by the independence of judiciaries and balanced by the neutrality of the executive. Nonetheless, the focus of the formula-minded and ideologically-remote common lawyer remains on the rule of law and the separation of powers. These elements of legislative supremacy and judicial independence are found in the prevailing Russian Constitution.⁹However, the common lawyer cannot have confidence that these transplants can survive independently of their common law history, nor that abstract constitutional reform can fill this experiential vacuum by legislating for their supportive culture.

It may be helpful to briefly explain the distinction between continental and common law jurisprudence in terms of logic rather than of law. In terms of the Aristotelian metaphysics distinguishing between material and instrumental causation, the common lawyer's constitutional focus is traditionally on the instrumental process-namely on how things are done. In being also historically-minded, the common lawyer's focus, likewise in terms of Aristotelian metaphysics, is on ontological (arguing from origins) rather than teleological (towards ends) reasoning. This ontological reasoning of the common lawyer explicitly focusing on due process is very different from European civil law jurisprudence placing explicit emphasis on teleological ends such as those of the well-governed state. This teleological reasoning of the civil lawyer risks totalitarianism in terms of "state power."¹⁰ This risk is notPage 436 lightly avoided without the historical concern of the common lawyer for ontological or first beginnings (such as the autochthonous or grassroots character of so-called "peoples' power"). Due process will secure the right ends, although this teleological outcome may also rely on one's faith in having ontologically made the right beginnings.

Success in transplanting instrumental doctrines such as the rule of law¹¹ and the separation of powers¹² into the Russian Constitution remains, as yet, equivocal. Will the result of this transnational interaction prove to be just as facilitative of good government as its facilitators intended, or, by being constrained within too historically sudden and tight a cultural casing, will it prove to be explosive?

This Article does not explain the facilitative formula¹³ for how East meets West by way of incorporating common law transplants in the Russian Constitution. "During the last years of its life," writes Rudden, "the Soviet Union turned to law like a dying monarch to his withered God."¹⁴ Rudden's conclusion suggests that instead of upholding the exuberance of the dying Union's...