Russian Law Journal, 2021, том 9, № 2


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Volume IX (2021) Issue 2


        International Editorial Council

Loic CADIET
(University of Paris 1 Pantheon-Sorbonne, France)
James KLEBBA
                        (Loyola University, USA)
                        Elisabetta SILVESTRI
(Pavia University, Italy)
                   Albert HENKE (University of Milan, Italy)
Vernon PALMER
                        (Tulane University, USA)
Janet WALKER
(Osgoode Hall Law School of York University, Canada)
Teresa WAMBIER
(Pontifical Catholic University of Sao Paulo, Brazil)
Francisco VERBIC
(National University of La Plata, Argentina)

Russian Editorial Board

Sergey BELOV
(St. Petersburg State University)
Nataliya BOCHAROVA
(Lomonosov Moscow State University)
Gleb BOGUSH
(Higher School of Economics)
Gennady ESAKOV
(Higher School of Economics)
Vladimir GUREEV
(All-Russian State University of Justice)
Nikita LYUTOV
(Kutafin Moscow State Law Univeristy)
Dmitry MALESHIN
(Independent)
Sergey TRETYAKOV
(Lomonosov Moscow State University)
Alexander VERESHCHAGIN (independent)

                 ISSN 2309-8678 e-ISSN 2312-3605

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        RUSSIAN LAW JOURNAL (RLJ)



An independent, professional peer-reviewed academic legal journal.

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    The Russian Law Journal is designed to encourage research especially in Russian law and legal systems of the countries of Eurasia. It covers recent legal developments in this region, but also those on an international and comparative level.
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        TABLE OF CONTENTS



Special Issue: Socialist Constitutional Legacies

   Sergei Belov (Saint Petersburg, Russia)
   William Partlett (Melbourne, Australia)
   Alexandra Troitskaya (Moscow, Russia)
   Guest Editors’ Foreword ..............................................4

Articles:
   Sergei Belov (Saint Petersburg, Russia)
   William Partlett (Melbourne, Australia)
   Alexandra Troitskaya (Moscow, Russia)
   Socialist Constitutional Legacies ....................................8
   Zdenek Kuhn (Prague, Czech Republic)
   All-Pervasive Legacies of Socialist Constitutionalism? The Case of Judiciary................................................26
   Cesar Landa (Lima, Peru)
   Isabel Sanchez (Lima, Peru)
   The Social Issue in Peruvian Constitutionalism of the 20th Century
   and in the Case Law of the Constitutional Court: Influence of Socialist Constitutionalism?......................................44
   Tomas Gabris (Trnava, Slovak Republic)
   The Legacy of Socialist Constitutionalism in Slovakia: The Right of the Slovak Nation to Self-Determination ................70
   Pui-yin Lo (Hong Kong, China)
   China’s Socialist Unitary State and its Capitalist Special Administrative
   Regions: “One Country, Two Systems” and its Developmental Implementation ..................................................... 92
   Jane Henderson (London, United Kingdom)
   Socialist Constitutional Legacies in Regional Constitutions and Charters in Russia..............................................125

        GUEST EDITORS’ FOREWORD



SERGEI BELOV, Saint Petersburg State University (Saint Petersburg, Russia)

WILLIAM PARTLETT,
University of Melbourne (Melbourne, Australia)

ALEXANDRA TROITSKAYA, Lomonosov Moscow State University (Moscow, Russia)


https://doi.org/10.17589/2309-8678-2021-9-2-4-7

Recommended citation: Sergei Belov et al., Guest Editors’ Foreword, 9(2) Russian Law Journal 4-7 (2021).

    The idea of this special issue of the Russian Law Journal was a result of the round table “Post-Soviet Constitutionalism and Peace Building” at the X World Congress of the International Association of Constitutional Law held in June 2018 in Seoul, Korea.
    During the Cold War, socialist constitutions - first developed in the Soviet Union but later spreading to other parts of the world - formally stood for certain values, institutions, and concepts. These socialist ideas, institutions, and values along with those of Confucianism or Buddism were an alternative to the constitutional ideas of the West. The collapse of the USSR and reforms in post-Soviet countries led many people to believe that the world had reached the end of history and that all of the values, institutions, and concepts found in Socialist constitutions were to be placed in the “dustbin of history.” But, despite the rise of market capitalism in much of the post-socialist (and still formally socialist) world, ideas from socialist constitutions have persisted in many post-socialist political systems. Moreover, other countries that were never socialist themselves have borrowed and continue to employ ideas and principles from socialist constitutions.

sergei belov, william partlett, alexandra troitskaya                               5

    This Special Issue seeks to recover the neglected legacy of socialist constitutions. To do so, it will consider what socialist values, institutions, and concepts are and how different countries - with different political cultures and realities - have drawn on them.
    The object of the book is to, first, describe socialist values, institutions, and concepts and, second, examine their role in the contemporary constitutional theory and practice. The aim is to show the ongoing relevance of the values, institutions, and concepts contained in socialist constitutions to constitutional development around the world and to show how this correlates with national political cultures and constitutional traditions, especially those outside Western Europe and Northern America.
    One difficulty is that socialist constitutions were first written in the Soviet Union and then evolved during the 20th century. Marxist writings of 1920-30s were replaced with the constitutional theory and practice of the socialist states up to the end of 1980s. Some of the ideas, such as formal domination of the representative authorities or the system of procuratorial supervision in the system of government, were not really original. Others might have been more original. For the purpose of this research, the authors tried to stress the ideas, principles and values during the whole 20th century and which were strongly associated with socialist constitutions. This could, for instance, include the core ideas made in socialist constitutions in comparison with other approaches to constitutionalism in the world.
    From a practical point of view, it was difficult to demonstrate evidences of borrowing of a principle or institution from the socialist system or to argue that specifics of a principle or institution demonstrate its socialist character. Direct evidence can be found in the materials of debates on constitution, practice of its interpretation (inter alia, by the constitutional or supreme court), scholarship and public debates in media, both in past and in present. Indirect demonstration of the socialist influence requires the comparative analysis of the ideas, notions and values in the socialist system and beyond - to demonstrate following the socialist path (at least in some dimensions) in the constitutional development.
    If you choose to take a jurisdiction or a group of jurisdictions, special attention is to be paid to the context - in terms of values and conceptual identity of the country, the attitude to liberalism and to socialist ideas of social and political organization. You may also want to define which socialist principles (e.g. priority of public interests), notions (e.g. forms of property) or institutions (e.g. centralization of the system of government) could be traced in the contemporary constitutional system and what is the evidence of their Soviet origin.
    The articles included in this Special Issue cover wide range of questions concerning the Socialist legacies as well as encompass different regions of the world.
    The article, which opens the Special Issue, authored by the guest editors of this Issue, represents the basic methodological and values approaches to studying the Socialist constitutional legacies. Sergei Belov, William Partlett and Alexandra Troitskaya demonstrate the difficulties of methodology of study these issues

russian law journal volume ix (2021) issue 2                                         6

(briefly mentioned above), define socialist constitutional values, their relationship with socialist ideology and then address the links between socialist constitutional institutions and the Socialist values. The authors conclude that some socialist values can be used in the prospective development of world constitutionalism, widening the values range of the constitutionalism to make it more universal for the different cultures of the world.
    Zdenek Kuhn - a professor at Charles University in Prague and a judge at the Supreme Administrative Court of the Czech Republic - focuses on the value background of the courts and judicial practice in his home country and other post-socialist states of Central Europe. He argues that the post-socialist legal development bears some legacy from the old legal era, both socialist and pre-socialist periods. The judiciary in postsocialist countries of the Central Europe could be an example, still remaining specific of authoritarian model of judicial process. Professor Kuhn describes some institutions to demonstrate this legacy of authoritarian justice.
    This is the reader to judge how persuasive are the arguments of Cesar Landa from Pontificia Universidad Catolica del Peru and Isabel Sanchez from Peruvian Constitutional Court in favor of showing the socialist origins of some Peruvian constitutional principles, concerning the position of the state, protection of equality, land ownership, status of indigenous people and labor regulation. The authors argue that the socialist principles of social policy remained actual after adoption of the current Constitution of 1993, based on an economically neoliberal and politically conservative model, as well as in the course of its later interpretation by the Peruvian Constitutional Court. The article gives the explanations and proves of such conclusion from the legal acts of Peru.
    Tomas Gabris, a scholar from Slovakia, found the legacy of socialist recognition of the principle of nations’ self-determination in obtaining independence of Slovak republic in the early 1990s. Investigating the history of position of Slovakia within the united Czechoslovakia, author makes analysis of the concept of colonialism in socialist legal and political theory and concludes that today position of this republic goes back to the socialist constitutional system.
    The socialist legacy in Asia is inquired by Pui-Yin Lo from Hong Kong, who addressed the complicated situation of combining socialist foundations of China’s constitutional system and capitalist economic order in Hong Kong and Macao within the notion of “One Country, Two Systems.” From his analysis, the author concludes that socialist principles and values prevail in the legal and political order of Hong Kong and Macao, safeguarding China’s sovereignty, security and development interests. Therefore, the formal preservation of capitalism does not suppose or lead to a capitalist constitutional structure, which has remained socialist.
    Jane Henderson of King’s College London presented an analysis of the wording of the basic laws (constitutions and charters) of Russia’s regions (the subjects of the Russian Federation), searching for legacies of socialist terminology in these laws.

sergei belov, william partlett, alexandra troitskaya                                 7

The outcome of the research showed there were only a few situations where the regional constitutions and charters retained the language of the socialist past, for example in retaining Soviet names of some state authorities. The main substantive issue found by Professor Henderson of a socialist legacy in the federal subjects’ constitutions and charters is the lack of any mechanism for their safeguarding -namely their own constitutional or charter court. These have existed in only minority of federal subjects and are due to be disbanded in the coming years, before 2023. The existence of these courts gave strong support to the rule of law principle, thus their dissolution may be evaluated as mimicking socialist times, when there was no judicial structure to oversee conformity to constitutionality.
    Guest editors express the deep gratitude to all contributors of this Special Issue, who supported the idea and prepared the materials, giving a number of very different dimensions of the socialist legacies in the contemporary constitutions and do hope that this research will continue.

        ARTICLES



        SOCIALIST CONSTITUTIONAL LEGACIES


SERGEI BELOV,
Saint Petersburg State University (Saint Petersburg, Russia)

WILLIAM PARTLETT,
University of Melbourne (Melbourne, Australia)

ALEXANDRA TROITSKAYA,
Lomonosov Moscow State University (Moscow, Russia)


https://doi.org/10.17589/2309-8678-2021-9-2-8-25

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.

sergei belov, william partlett, alexandra troitskaya                         9

Keywords: socialism; socialist law; post-socialist constitutions; comparative constitutional law; constitutional structure; transformative constitutionalism; comparative methodology.

Recommended citation: Sergei Belov et al., Socialist Constitutional Legacies, 9(2) Russian Law Journal 8-25 (2021).


Table of Contents

   Introduction
   1.  Methodology of Socialist Constitutional Law Studies
   2.  Socialist Constitutional Values
      2.1.  The State and the Individual
      2.2.  Constitutional Design and the Proper Organization of the State
   3.  The Possibility of a Synthesis?
   Conclusion


        Introduction

   With the end of the Cold War, many assumed that socialism was dead (or dying), at least as a paradigm of social and political structure, promoted as an alternative to the Western democracy. A state-directed, command economy had lost the global competition with market economies; a centralized “people’s democracy” would be replaced by a Western-style “bourgeois” democracy. This was part of a greater set of assumptions about the end of history in the wake of the end of the Cold War.¹
   Post-Cold War reality did not, however, follow these assumptions. Many countries -particularly in Asia - are still committed to socialism. Other countries that were formerly socialist still adhere to some of the values of socialism. Finally, some of the values widely associated with socialism have important legacies in non-socialist societies today.
   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. In fact, the social and legal orders of many constitutions in the world are the result of social notions, concepts and ideas that stem in part from the socialist world. Some of them are obviously influential today, others only implicitly left their marks, though displaying of them could show social systems in various dimensions and in dynamic. In this interplay, socialist legal ideas continue to exert influence. The

1

   Francis Fukuyama, The End of History, 16 National Interest 3 (1989).

russian law journal volume ix (2021) issue 2                                        10

socialist legal system comprises an important part of the legal map of the world. Its existence - both as a historical fact and ongoing practice - raises questions concerning its specific features and its impact on modern states. The nature of this socialist system of law is often debated; however, we argue that it is a special type, essentially different from the others, in technical as well as in ideological characteristics.²
    For comparative constitutional law, socialist constitutional law remains an important topic for expanding the geography of research. The constitutional systems of the socialist and especially post-socialist world are frequently ignored in textbooks and studies, even in those specifically devoted to legal families and traditions.³ Many casebooks include a minimum of materials for these countries⁴ or do without them at all.⁵ The key principles of socialist constitutions remain a gap in comparative constitutional studies. These constitutions should be studied in a way that are as free from ideological prejudices and the preconceptions associated with specific political traditions. Embracing the diversity of global experience can also be defended at the philosophical level: it is a question of pluralistic principles of recognizing the existence of various communities, and the absence of pluralism deprives comparative legal studies of epistemological validity.⁶ Hence, the idea of “equal discursive dignity to non-Euro-American traditions” requires further development.⁷ This article will seek to understand socialist constitutions by looking to how and why it should be studied, the key values it includes, and how it can helpfully contribute to ongoing constitutional discourse across the world.


        1.  Methodology of Socialist Constitutional Law Studies

    Given the unique nature of the socialist legal system and its continuing influence on other systems, several preliminary methodological considerations should be made. The assessment of legal institutions should attempt to be as unbiased as possible. Constitutional law should not be bound by rigid ideological constructions that limit the questions we ask and proclaim the unconditional advantages of one

² William Partlett & Eric C. Ip, Is Socialist Law Really Dead?, 48(2) N.Y.U. J. Int’l L. & Politics 463 (2016).

³ On the problem of a set of systems to study see, e.g., Peter de Cruz, Comparative Law in a Changing World X (3rd ed. 2008).

⁴ See Norman Dorsen et al., Comparative Constitutionalism: Cases and Materials (2010); Ugo A. Mattei et al., Schlesinger's Comparative Law: Cases - Text - Materials (7th ed. 2009). An exception is provided by works devoted to certain regions, see, e.g., Wen-Chen Chang et al., Constitutionalism in Asia: Cases and Materials (2014) - this book reflects different agendas, including socialist.

⁵ See Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (2006).

⁶ See Pierre Legrand, Comparative Legal Studies and the Matter of Authenticity, 2(1) J. Comp. L. 365, 369 (2006).

⁷ Upendra Baxi, The Colonialist Heritage in Comparative Legal Studies: Traditions and Transitions 46, 50 (Pierre Legrand & Roderick Munday eds., 2003).