It was a painful sight for all who watched – whether behind the police barricades leading down to the Moscow River or on CNN. Artillery shells blasted gaping holes in the walls of the Russian parliament building where several hundred supporters of Vice-President Aleksandr Rutskoi and Speaker Ruslan Khasbulatov were defying President Yeltsin's decree to disband and submit to new elections. Thick black smoke billowed from the windows of the upper floors, blackening the white marble facade. A Russian woman, watching in disbelief remarked, “This sort of thing doesn't happen in civilized countries.”

At the root of the crisis between President Yeltsin and the Russian parliament that resulted in the violent confrontation at the White House in October 1993 was the conflict over the fundamental constitutional structure of the new Russian state. Constitutions, by their very nature, establish political institutions and allocate power among them. With the collapse of the Soviet Union in December 1991, the necessity of ratifying a new Russian constitution became a matter of utmost urgency. The demise of the Union left a ramshackle array of institutions and laws, some left over from the Brezhnev era, and others the product of Gorbachev's turbulent reforms.

The development in Russia of a modern European legal system incorporating concepts of rule of law, protection of citizens' rights vis-à-vis the state, and judicial independence was, as we have seen, hampered by a sclerotic and reactionary monarchy overwhelmed by social and political forces beyond its control. The collapse of the monarchy and the successful Bolshevik coup d'état against the Provisional Government, rather than destroying the Russian Empire, essentially enabled it to endure, albeit in a new form. For almost three-quarters of a century, power remained centralized in the hands of a few; most citizens were relegated to the status of subjects rather than real participants in political decision-making; Russians enjoyed considerable advantages not shared by other ethnic groups; and law primarily served the interests of the state rather than the individual.

As we have seen, the Russian Empire lagged behind the rest of Europe in developing a capitalist economy, a democratic political system, and a modern legal system, in part due to its physical isolation during much of the seventeenth, eighteenth and early nineteenth centuries.

With the exception of the relatively brief period from 1864 to 1917, courts have not enjoyed much status or independence in Russia and the Soviet Union. The first courts evolved in Russia in the late fifteenth and early sixteenth centuries largely as a mechanism for enforcing the tsar's policies and for resolving disputes between subjects. The notion that the crown could be held accountable to the law – a fundamental feature of English law since the Magna Carta in 1215 – was never accepted by the monarchy nor by the Bolsheviks after the Revolution of 1917. The central problem confronting the judiciary today is establishing the the fundamental norm of an independent judiciary whose decisions are based solely on law, rather than political expediency, and are binding even on organs of the state.

Organization of the courts

With the collapse of the USSR in late 1991, the judiciary underwent substantial revision. Under the former constitution of the USSR there were all-union courts (e.g. the USSR Supreme Court, the Supreme Arbitrazh Court, and military courts) and union-republic courts and their subordinate courts at the regional, city and district levels.

Since the introduction of economic reforms under Gorbachev's policy of perestroika, law has played a major role in setting the course and pace of economic reform. Nevertheless, the legal framework for economic reforms in Russia today is far from being adequate. There exists a plethora of laws governing economic activities, but they are often inconsistent, conflicting, and overlapping and have emanated from many different authorities at various levels in the Russian Federation. Some substantial bodies of law and legal codes of the former USSR are still in force, even with the demise of the Soviet Union. Other areas of law – for example, commercial law and tax law – for all practical purposes do not exist and leave businesses and officials operating in a legal state of nature, bordering on anarchy. The conflicting and confusing legal situation in the Russian economy poses one of the most significant impediments to foreign investment and to the effective utilization of IMF and World Bank funds earmarked for stimulating privatization and economic reform. In this chapter we review the principal pieces of emerging Russian economic law and note the impediments that must be overcome in order for conversion of the economy to be successful.

The challenges and course of legal reform in Russia has been paralleled in many respects by reform efforts in other newly independent states of the former USSR. Each nation has had to struggle with building an independent and just court system, revise existing laws, or draft new codes governing virtually every branch of the law. Several of the nations emerging from the former USSR have adopted new constitutions that delineate the powers of newly established parliaments and executive offices. To varying degrees these new countries have concerned themselves with protecting human rights, overcoming centuries-long legacies of authoritarian rule and absence of civil liberties. Many of the newly independent states have begun to privatize state-owned assets, including the land, and debated how this can be done equitably. Finally, most of these countries have had to address the issue of their multiethnic nature – how much power should reside in central institutions, how much power should remain at the local and regional levels? What rights should be granted to Russians and other non-indigenous peoples residing in these newly independent states? And most importantly, how can governments keep centuries-old interethnic hatreds from erupting into violence?

While the conditions these nations face are in many ways similar, their responses have by no means been uniform.

GENERAL CHARACTERISTICS

In the sixteenth century Europe entered the era of classic absolutism, which for most countries lasted until the second half of the eighteenth century. The Fürstenstaat (‘state of the prince’) of the Ancient Regime, which lasted for three centuries, was characterized by the unbridled rule of kings who were not bound by national laws, and by the sovereignty of the nation states, which were not subjected to any supranational jurisdiction. These liberated states, which chose their political course arbitrarily and in function of their own interest, became more and more menacing as their economic and military strength grew. In the twentieth century the European and world wars caused by this unfettered behaviour led at long last to the realization that unlimited sovereignty was a recipe for disaster.

On the internal level royal absolutism meant that the will of the monarch was law: he could not be bound by laws, as otherwise he would bind himself. The Roman expression princeps legibus solutus or absolutus, which we have already encountered, is the etymological origin of the term ‘absolutism’. This basic principle of autocracy (from the Greek autos, self, and kratein, to dominate) was widely recognized in the sixteenth century and was supported by Roman public law and the writings of Roman-inspired political thinkers such as Jean Bodin, author of the Six livres de la république (1576). Here république did not stand for the republican form of government, but for the state, and the book was in fact an apology for strong monarchy.

Reflecting on fifteen centuries of constitutional experiment readers may feel as if they were visiting a vast churchyard and reading the inscriptions on the tombstones which recall, extol or curse bygone regimes. Some of the dinosaurs in the cemetery, such as the hallowed medieval kingdoms, have been dead for a long time. Others, such as the Nazi or communist empires, were alive and kicking only a few decades or even a few years ago. Not all Constitutions are dead, however. Indeed, some old and venerable political systems are still flourishing but, in this changing world, nobody knows for how long. The variety of Constitutions the West has produced is bewildering. There was the personal rule of monarchs by God's grace in Charlemagne's or Frederick II's post- or pseudo-Roman empires, or in Henry VIII's or Francis I's sovereign nation-states at the time of the Renaissance. There was royal absolutism of the obscurantist or of the enlightened variety, but also modern constitutional and parliamentary kingdoms. There were city-states, democratic or aristocratic, like Florence or Venice, but also confederations of free peasant communities, like Switzerland, and federal, city-based sovereign nations, like the Republic of the United Netherlands. And if the First French Republic was run by the violent ideologues of the comité de salut public, the Third was a sedate regime where a contented population maintained the paix bourgeoise. Is this endless list, which must, of course, include the plebeian totalitarian regimes of our own century, more than a chaotic and meaningless succession of failed, futile or precarious attempts, a ‘tale told by an idiot, full of sound and fury, signifying nothing’?

The dramatic disappearance of the Roman empire in the West left a great void: the political home in which millions of people had lived for centuries was no more. Finally it was unable to survive the twofold onslaught of the Germanic peoples in the north and the Arabs in the south. First the Pars Occidentis, with Rome herself, fell to the tribes from beyond the Rhine–Danube limes; afterwards much of the Pars Orientis, Byzantine ‘new Rome’, fell to Islam. From the storms that raged from the fifth to the seventh century three worlds emerged, three heirs of classical Antiquity. Greek Christendom in Byzantium was the direct, but much reduced continuation of the Roman empire in the east, ruled by a Roman emperor and living under Roman law. Latin Christendom lived under Germanic tribal kings, who had taken their religion from Rome, but little culture and even less law. The Arab world of Islam, stretching from Asia via northern Africa to Spain, had inherited not much law and even less religion from Antiquity, but a good deal of Greek science.

It is in the Latin Christian world of the early Middle Ages, from the fifth century onwards, that our narrative starts. The void which originated there was caused by the loss of some fundamental ideas and structures. The first victim was the centralized imperial state itself and with it the basic notion that its millions of multiracial inhabitants were subjected to one common domination, and that no other autonomous kernels of legitimate power existed beside it: all public authority had been vested in the emperor or descended from him.

THE DISINTEGRATION OF THE FRANKISH EMPIRE

The life of the first united Europe was significant but short. Decomposition started under Louis the Pious, whose quarrelling sons imposed the division of the Treaty of Verdun of 843. The disintegration of the empire of the Franks took place in two phases. There was, to begin with, the division into France (the western Franks), Germany (the eastern Franks) and Lotharingia, Lothair's long, drawn-out middle kingdom, which eventually became part of Germany. So the old Frankish mother country gave birth to two great kingdoms, France and Germany. For a long time they both considered themselves as Frankish, and it is hard to decide when they finally realized that they were Franks no more, but French and German, and that the realm of Charlemagne belonged to the past. The regnum Italiae, the old kingdom of the Lombards, enjoyed a phase of independence, but already under King Otto I (d. 973) it came under German hegemony. The process of disintegration, started under Louis the Pious, did not, however, stop there. Even within the frontiers of the new kingdoms the weakening of unity continued, though not everywhere to the same extent. The German kings had to accept that several regions, where old ethnic feeling remained lively, achieved a good deal of autonomy under powerful ducal dynasties, the Stammesherzogtümer, or ethnic dukedoms. What happened in France went even further. Here royal authority came to be ignored altogether, because of the rise of separate states, which started in the late ninth century and led to the so-called principautés territoriales, the territorial principalities.

AN ‘INTELLIGIBLE FIELD OF STUDY’

Constitutional law may be considered the most important part of public law, beside criminal, fiscal and administrative law, and the law of nations, and it seems advisable at the outset carefully to define our field of study.

Definition of the subject

The concept of public law is itself somewhat problematic. It is true that Roman law expressly distinguished ius privatum and ius publicum, but the latter appears, on closer examination, not quite to cover the same ground as present-day notions of public law. Indeed, we read in Justinian's Institutes that ‘publicum ius est, quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem pertinet’ (1, 1, 4) (‘public law is concerned with the Roman state, private law belongs to the utility of individuals’), and the Digest, the most important part of Justinian's Corpus Iuris Civilis, goes on to explain that ‘publicum ius in sacris, in sacerdotibus, in magistratibus consistit’ (1, 1, 1, 2) (‘public law concerns sacred things, priests and magistrates’). This definition is, to modern lawyers, incomplete as it omits, inter alia, criminal law. Elsewhere the Corpus Iuris mentions ius publicum in a sense that reminds us of the modern notion of public order: for example where the Digest (28, 1, 3) explains that the form of a testament is a matter ‘non privati, sed publici iuris’

The rise of the patrimonial concept of the state in the Middle Ages meant that this fundamental dichotomy was lost.

GENERAL CONSIDERATIONS

The classic absolute regime as described in the previous chapter, also known as high absolutism (Hochabsolutismus), was no more than a passing phase in the development of public law. Unfettered personal rule was eventually contested everywhere, but with varying results. In some cases the monarchy itself disappeared and was replaced by a republican regime, in others it was preserved but underwent a profound transformation: sooner or later perestroika – to use the parlance of our own time – arrived everywhere. In constitutional and parliamentary kingdoms the monarchy formally continued, but assumed a role that was rather symbolic, abandoning political decisions to parliaments and to governments supported by parliamentary majorities. In the lands of enlightened absolutism the monarch kept the reins of power firmly in his own hand, without being accountable to the nation or parliament, but instead of acting in his dynastic interests or the defence of the Church he wanted to implement the ideas of the Enlightenment, promote the happiness of his subjects and establish a humane society. The following pages will be devoted to three models of modern constitutional law.

In the first the monarchy was maintained, but divested of its autocratic aspects. England is the classic example, at least after the dramatic events of the seventeenth century put an end to Stuart absolutism and a constitutional and parliamentary regime was established: here an oligarchy of nobility, gentry and affluent bourgeoisie captained the ship of state and created the appropriate legal framework for a flourishing market economy.

GENERAL OUTLINE

Nineteenth-century constitutional law reflects the political situation. In the age of Gladstone and Thiers the bourgeoisie, which had been locally powerful since the Middle Ages, gained access to the national centres of command.

The existing kingdoms of Britain and France were created not by the middle classes but by the monarchy, so that in those countries the Third Estate could simply pick the nation state as a ripe fruit and even, most notably in France, strengthen its unitary centralism. Elsewhere, in Germany and Italy, the nation itself only came into being in the nineteenth century. It was founded by the royal houses of Prussia and Piedmont-Savoy and their great ministers, Bismarck and Cavour, but with the collaboration and the stimulus of the bourgeoisie, which was interested in the abolition of internal economic barriers and the creation of a national common market. The middle classes understood that they could not play a global role with the old mini-states as bases and that capital and entrepreneurial initiative required wide and, if need be, protected markets.

The constitutional ambitions of the bourgeoisie were expressed in two key words, constitutionalism and parliamentarianism. The former excluded absolute, arbitrary rule and demanded a government operating under the law; it created the Rechtsstaat, where the citizens were no more dominated by individuals, but by laws to which everyone had to submit. The latter keyword signified a regime where the government and the legislature derived their authority from and were accountable to the nation, represented by an elected parliament.

THE POLITICAL FRAMEWORK

In the second half of the eighth and the first half of the ninth century the Franks, under the Carolingian dynasty, founded an empire that united the greater part of western Christendom in one state. The Carolingians, a leading and wealthy family from the non-Romanized eastern part of the kingdom known as Austrasia, had played an important political and military role long before the middle of the eighth century, but it was through a coup d'état, supported by the papacy, that in 751 they acceded to the royal dignity in the person of Pippin III. This date traditionally marks the start of the Carolingian era, whose climax came under Charlemagne (d. 814) and the earlier years of his son Louis the Pious (d. 840). At that time the Carolingian empire contained, in present-day terms, France, western Germany, Belgium, the Netherlands, Luxembourg, Switzerland, north-east Spain (called the Marca Hispanica) and northern Italy (the old kingdom of the Lombards), to which could be added the protectorate over the papal state in central Italy. Within Latin Christendom only the British Isles remained outside. The establishment of this vast complex was realized through the strengthening of royal authority inside the old Frankish lands – which was not always an easy process, as the events in Aquitaine showed – and through conquest and expansion: the Saxons (those that is who had stayed behind on the Continent) were subjected and forcibly converted, and the regnum Langobardorum was conquered by Charlemagne, though it continued as a separate kingdom, united with the Frankish monarchy by a personal union.

Whereas until recently economic problems seemed to dominate the public mind, the debate on the best way of organizing the state has now also come to the fore. Recent momentous developments in Europe have focused attention on such fundamental options as democracy versus autocracy, politics versus ideology, unitary versus federal organization, pluralism versus intolerance, centralism versus regionalism, national sovereignty versus European unity, the bureaucratic welfare state versus individual freedom and a market economy, and a Bill of Rights versus parliamentary omnipotence: in 1990–1 alone I counted six books or pamphlets on ‘Britain's constitutional future’ and a ‘Bill of Rights for Britain’. Third World countries are also interested, as they realize that economic progress is hard to achieve in a backward political regime. Leading economic historians such as Douglass North, one of the 1993 Nobel Prize winners for economics, have shown that the free market alone does not ensure prosperity, but that a stable political and legal organization is also necessary; the role played by a liberal constitution in the industrial take-offin Europe some two hundred years ago was indeed conspicuous.

Today's constitutional debate would be shallow without a knowledge of the historical antecedents. It would be preposterous to imagine that we were the first to discern the fundamental options, and foolish not to try and learn from the experiences of the past.

THE LIBERAL STATE TRANSFORMED

The twentieth century is so different from the previous one that the form of government could not remain unaffected. The oligarchic parliament was questioned, as was the capitalist economy. The role of the bourgeoisie, that relentless motor of the nineteenth century, was contested by new, politically conscious groups, but there was also displeasure within the ranks of the old middle class: the bourgeoisie was not without self-criticism, and the scions of well-to-do families played a conspicuous role in workers' parties. The demand for participation in the running of the economy, for social security and for a fairer share of the fruits of labour could not leave the old-style affluent liberalism and the governments that supported it untouched. Nor could the ambition of previously inarticulate classes to take part in the political power game be ignored, particularly after the old leading groups had seen their world collapse in the terrible conflagration of the First World War. At the same time the proclamation of the right of self-determination by the smaller nations led many to oppose existing governments, which were blamed for oppressing minorities: the time had come for the latter to take their political fate into their own hands.

Discontent was universal, but the forms it took and their impact on the state differed widely. In several countries the liberal state continued on its old foundations, albeit not without some more or less radical adaptations.

GENERAL OUTLINE

The period from the twelfth to the fifteenth century, sometimes called the Second Middle Ages, witnessed the foundation of the political structures of modern Europe. In those years a new model originated in which we can easily recognize the nation state of our own time. Some elements of the older public law naturally survived, in the first place the monarchy itself, even though its character was transformed. Thus the period saw the end of the deeply religious rulers of the type of Louis the Pious (d. 840), who was constantly swayed by the clergy, Edward the Confessor (d. 1066), whose main concerns were his collection of saints' relics and the construction of his beloved Westminster Abbey, or Henry II of Germany (d. 1024), who systematically pursued the organization of the Imperial Church and conceived his policy entirely in a clerical and even monastic perspective. The new kings by contrast found inspiration in Roman law rather than the Bible; they were hard, secular and realistic leaders such as Frederick II in Germany and Italy (d. 1250) or Philip IV the Fair in France (d. 1314). Not only the monarchy, but the state itself changed in character. Whereas previously public life was dominated by the opinionated knights, administration now passed into the hands of centrally appointed functionaries. The old undifferentiated feudal councils, which used to conduct the affairs of state in an amateurish fashion, gave way to established professionals, appointed to look after the financial, judicial and legislative tasks of the monarchy.