About site   Contacts   Useful Links   Search  
Number 4(8), autumn, 2003
Number 8 of the journal Kazan Federalist (in english)
KAZAN CENTER
OF FEDERALISM
AND PUBLIC
POLICY
/ Kazan Center of Federalism and Public Policy / Publications / Journal Kazan Federalist / 2003 / Number 4(8), autumn, 2003 / Principles of federalism in Russia and USA: comparative aspect return to homepage
Principles of federalism in Russia and USA: comparative aspect
 
 
 

:
  • Aleksei Avtonomov
The comparative legal method is well-known in our country and is usually considered to be a method of studying legal realities. Of course, we do not imply the generic comparative method, which can be used to study various subjects in various disciplines. In this particular case, we will be using the comparative legal method, or, in other words, the specific comparison of legal phenomena which influence the cognition process in the course of comparison. At the same time, we should use the basics of the comparative legal method, i.e. features similar to those of any other comparative methods in other disciplines, as the methodological basis for cognitive comparison.

Aleksei Avtonomov*
Principles of federalism in Russia and USA: comparative aspect

The comparative legal method is well-known in our country and is usually considered to be a method of studying legal realities. Of course, we do not imply the generic comparative method, which can be used to study various subjects in various disciplines. In this particular case, we will be using the comparative legal method, or, in other words, the specific comparison of legal phenomena which influence the cognition process in the course of comparison. At the same time, we should use the basics of the comparative legal method, i.e. features similar to those of any other comparative methods in other disciplines, as the methodological basis for cognitive comparison.

Thus, when we start discussing the generic comparative method and commonalities between comparative methods used in different disciplines, we compare meanings and definitions as well as examining the criteria for comparison. This is just a common methodological approach to the comparative legal method but not the method itself. A.A.Tille and G.V.Shvekov followed this path when analyzing the development and use of the comparative legal method in their monograph The Comparative Method in Legal Disciplines. Chapter 1 of the monograph (Comparative Method and Comparative Sciences) examines the methodological bases of the comparative legal method [1], while the method itself is examined later.

The comparative legal method requires that certain research techniques defined by the nature of the research subject, such as the nature of relations in the building of federalism or law, be used. At the same time, not all systems of normative phenomena can be approached with the comparative legal method. Back in the first third of the 19th Century, Jeremy Bentham proposed the task of describing legal phenomena in ethically neutral terms, [2] i.e. he argued for the necessity of separating morality from law. In fact, techniques used to compare constitutionality, systems of hierarchy of statutes, and the implementation of legal norms would be meaningless in comparing other normative systems (morality, religion, etc.). When comparing federal principles in two countries, it is important to pay attention to the legal regulation of these principles in each country, since federations are built and developed according to legal rules. At the beginning of the 20th Century, V.V.Ivanovskii wrote: We also use the comparative study of state laws of different countries. () The theory of state law aims at using the similarities in essence, but not in form, between those norms. Only abstract legal principles, based on the most generic norms, typical of any legislation, can be used as such common ground. Based on abstract legal principles, the theory of state law has built its entire system using the method of legal construction. [3]

The comparative legal method permits the identification of general tendencies and patterns of the development of different countries governmental systems and how those tendencies and patterns work under the concrete conditions of a single, territorially-limited community. Similar processes can run with different degrees of intensity and be formed in different manners under the influence of specific local factors in different countries. The comparative legal method uncovers the commonalities in state development, i.e. objective social law, and their concrete manifestation under the specific conditions of a separate country, or, in other words, the peculiar. Disregarding a countrys peculiarities can result in a lack of understanding of the practicalities of certain programs, and this can have serious consequences. Making these peculiarities absolute and disregarding the experiences of other countries produces an anti-academic approach to the problems of a certain country which also might end up being quite unfavorable for the country. Thus, the comparative legal method enables one to gain knowledge about the object under study. The Bulgarian researcher Zh. Stalev emphasized the latter aspect of the comparative legal method: The new knowledge, gained by means of comparative legal research, justifies the use of the method by legal science. [4]

The heuristic possibilities of the comparative method were well-known quite long ago and have been widely used by researchers. Aristotle used the comparative method as one of his main methods of analysis while researching The Politics and mentioned that it is necessary to examine both the state organizations of some admittedly well-to-do states and the seemingly good state organizations projected by certain writers. [5] In order to reach his conclusions on patterns of organization of political power mechanisms, Aristotle examined quite a few contemporary states. According to the estimations of G. Maridakis, Aristotle collected and thoroughly analyzed data on 158 Greek and non-Greek city-states [6]. We also cannot disregard the fact that the comparative legal method can be used to examine legal and state systems as a whole as well as separate parts of law and legislation and the state and its legal institutions.

At the same time, the suggested division of comparative jurisprudence into contrasting and generalizing is hardly justified [7]. The process of using the comparative method in legal science includes various actions leading to generalizations as well as the discovery of discrepancies and contrasts.

Certainly, the comparative method is not an absolute supermethod which will alone produce complete knowledge of the subject. Just like any other method, the comparative method has limits to its own applicability and covers some but not all aspects of the subject being researched. Therefore, it is necessary to use various methods of cognition. Nonetheless, the comparative method is quite efficient for research in state and legal sciences, which is why it has been selected to achieve the objectives of this paper.

Now we need to agree on the meaning of principles which are necessary for this piece of research. I very much agree with N.A.Bogdanova, who defines principles in the following way: The science of constitutional law defines principles as ideas fundamentally important for the development of constitutional-legal knowledge that are based upon a certain vision, a pattern demonstrated by practice, or an abstractly formulated statement, which is usually a result of a scientific idea. [8] Principles are sometimes stated in constitutions or in current legislative acts, where they are directly identified as such. These kinds of principles and norms are quite widespread and form one of the characteristics of constitutional law. In other cases, principles are directly formulated in the main law, but the constitution states certain norms that essentially reflect one or the other constitutional principle. In the latter case, constitutional (legal) principles can be arrived at through interpretation of the text of the document itself.

The principles themselves must be interpreted, too. The range of their interpretation becomes broader based on the content of the documents principles. This permits the interpretation of the full scope of constitutional principles, which produces a variety of legal variants to be implemented and further development of normative regulation. On the other hand, there is a chance of deviation from the principles essence and misunderstanding of its content. In order to avoid such a result, the corresponding principle should be defined concretely and precisely in constitutional norms and other areas of law. Besides, an appropriate interpretation of principles is crucial for their preservation and realization. This is why it is impossible to overestimate the significance of interpretation and explication of constitutional principles produced by the organs of constitutional control.

Federal principles are not stated directly (as set formulations) either in the Constitution of the Russian Federation or in the Constitution of the United States of America (USA). The two documents are similar in this respect, even though they were developed and adopted under completely different historical conditions. Federalism, both in Russia and in the USA, is considered to be one of the fundamental principles of statehood.

N.A. Bogdanova is justified to characterize federalism thusly: The decentralization of power is a necessary precondition for federal relations. The degree of centralization is defined by concrete historical conditions. The latter can even change the content of federal relations to such degree that there the necessity to re-evaluate the term for the concept will arise. [9] However, the essence of federalism cannot be reduced to the mechanical distribution of authorities between the federal center and regional bodies of power and the construction of relations on the basis of such a distribution, although clear and precise distribution of authorities and powers between the federation and its subjects plays is significant for the efficient state decision-making. For this very reason, in 2001-2002, the Commission to the President of the Russian Federation (RF) on preparation of proposals on delimitation of authorities and powers between the federal bodies of state power, bodies of state power of the subjects (RF) and local self-government. As a result of this work, several federal laws were drafted and adopted in 2002-2003. At the same time we should not overlook the following thing: federalism in the genuine sense determines the functioning of the mechanism of political freedom and self-government at all levels of power as well as the power hierarchy and counter-balancing of all government organs.

The development of federalism in Russia and the USA demonstrates that it is important to re-evaluate the contents of this concept over the course of time, even though the base principles preserve their meanings, while asking for new interpretation (the breadth of the principles contents implies a need for their occasional clarification). In such a case, a new federalism arises which is different from the conditions that existed prior to some change in circumstances. This has occurred both in Russia [10] and the USA [11], even though the processes characterized as new federalism were not the same in the two countries.

Both countries are multi-ethnic and multi-religious. However, these factors manifest themselves differently in the federal construction of the two countries. In Russia, the national (ethnic) principle, even though supplemented by the territorial one, has become the crucial one in building federal statehood. On the contrary, the national (ethnic) factor is not a federal principle in the USA and has no meaning in the construction of American federalism. An exception exists in the case of Louisiana, which was once inhabited by francophones who have become a small community these days, as well as some territories that later became states (for example, California, New-Mexico, Arizona) had belonged to Mexico (and even before that had been part of the Spanish colonial empire) with Spanish being their official language. Different approaches to the national (ethnic) situation in Russia and the USA originate from fundamentally different historical roots of these two federations. In Russia, all native peoples who inhabited the federation territory before it became a federation, participated in the building of the federation. Primarily, after 1918 there was formed a federation of peoples rather than a federation of certain state units (lands, provinces, states). Apparently, the subject composition of the Russian Federation is not quite clear because of this fact. It was declared in 1918 that the Russian Soviet Federal Socialist Republic consisted of national Soviet republics. However, this proclamation was never truly realized. On one hand, along with republics, other national territorial units such as labor communes were formed, while on the other hand, some of the newly-formed republics were historical territorial rather than ethnic formations (for example, the Donskaya, Tavricheskaya, and Azovo-Chernomorskaya republics), and in substantial part of the territory of the RSFSR republics were not formed as subjects of the Federation. Later, the problem of the subject composition of the Russian Federation receded in the background. In the 1960s, during the preparation of the new constitution project, a discussion arose as to which autonomous formations should be considered subjects of the RSFSR only the republics or autonomous regions and national okrugs as well. This discussion did not come to fruition. At the turn of the 1990s, in the process of federal reconstruction, the debate began anew. Finally, the Federal Agreement of 1992 secured the status of subjects of the Russian Federation to all administrative-territorial units, both those with and those without defined ethnic characteristics. Nonetheless, the principle of forming some subjects of the Russian Federation according to ethnic characteristics is still preserved at present and is reflected in the Russian Constitution of 1993.

The modern multi-ethnic (polyethnic) population of the USA was formed as a result of voluntary or forced (the negro slaves) immigration. The native inhabitants of America the Indians did not take part in the construction of federalism. Indian tribes were considered to be foreign formations for a long time, and the new population made quasi-international agreements with them. Even today, the Indian tribes have a special status [12]. The newcomers, on the other hand, were mixing among themselves (even though different ethnic communities can be quite independent from each other in the same territory) and did not have any direct connections with a particular territory, which is why there was no need or possibility to create ethno-territorial formations in the USA.

The problems of sovereignty in the USA and Russia are also interpreted differently. In the USA, both the Union (federation) and the states are traditionally considered to have sovereignty. Such an approach to the notion of sovereignty was established by James Madison, who believed that sovereignty was divided between the states and the federation. According to his opinion, the Constitution of the USA created a government in the strict sense of the word in the same way as state governments were initiated by their respective constitutions. Both federal and state governments have legislative, executive and judicial branches of power. Both federal and state constitutions state the limits of authorities of the organs of power. In some cases, the jurisdictions of the federal government and state government coincide, while in others they exclude each other, which constitutes one of the distinctive features of the existing system. [13] In Russia, some of the provisions of the 1993 Constitution could be interpreted as stating that the republics (there called states) have sovereignty until decided otherwise by the Constitutional Court, while sovereignty is concentrated primarily in the Federation. In this connection, we should pay attention to the following circumstance: in the modern world, a federation is considered to be an allied state, i.e. a state consisting of state formations. In the USA, Brazil, Mexico, India, etc. federal subjects are called states that is, the translation of the word state. In the Main Law of the Federal Republic of Germany lands are named states. Since federations include state formations (states), the latter should also have all the features of a state, sovereignty included (the constitutions of Mexico and Switzerland provide certain, even though limited, sovereignty to their states and cantons respectively). We should note that the main difference between a federation and confederation is that a confederation does not have sovereignty, while a federation does. Then the question arises: how can two sovereignties exist on the same territory both that of the federation and its sub-units? It cannot be so. There exists only sovereignty belonging to both the federation and its subjects. Sovereign rights are distributed between the federation and its subjects; therefore, there should be no contradiction there. The sovereignty of the federation and the sovereignty of its subjects are not two different sovereignties but one valid for both the federation and its subjects. Therefore, the sovereignty of federal subjects guarantees the sovereignty of the federation, while the sovereignty of the federation guarantees the sovereignty of its subjects. It is impossible to separate the sovereignty of the federation from that of its subjects, because these sovereignties cannot exist separately. The federal subjects differ from locally-governed administrative units in that the former have sovereign rights, i.e. statehood features; in other words, this constitutes the main difference between federal and unitary states. Then another question arises: was the Russian Constitutional Court wrong when it did not admit the sovereignty of republics and other subjects of the Russian Federation? The Constitutional Court interpreted the Russian Constitution under certain historic conditions, and it is well-known that federalism has been declared but not built, and there is still a long way to go. The contraposition of the Federations sovereignty to that of its subjects can be explained by the immaturity of federal relations. The latter can lead to separatism, the countrys dissolution, and can damage the interests of the federation as a whole as well as those of its subjects. We have already mentioned that constitutional principles can develop and be interpreted differently in the course of the evolution of state and society. When interpreting the Russian Constitution, the Constitutional Court of the Russian Federation follows both the letter and the intent of the Constitution and starts from a perception of whether the society is ready to receive and realize a certain constitutionally-based rule.

Federal principles are not stated in the Constitutions of the Russian Federation or the USA as such; therefore, their exact construction will stay open and vary by different interpretations. However, it is unlikely that one of those inventories will be proven exhaustive.

_____________________________________

* Aleksei Stanislavovich Avtonomov, Doctor of Science (jurisprudence), director of comparative jurisprudence department of the Institute of State and Law of the Russian Academy of Sciences.
[1] Tille A.A., Shvekov G.V. Sravnitelnyi metod v iuridicheskikh distsiplinakh. M., 1978, pp.6-38.
[2] C.: Hart H.L. Law in the Perspective of Philosophy: 1776 1976 //New York University Law Review. 1976. V. 51. V. 4. .540.
[3] Ivanovskii V.V. Uchebnik gosudarstvennogo prava. Kazan. 1913, p. 19.
[4] Stalev Zh. Sravnitelniiat metod v sotsialistichkata pravna nauka // Izvestiia na institut za pravni nauki. V. XXIX. Sofia. 1974, p. 42.
[5] Aristotel. Sochineniia v 4-kh tt. V. 4, M., 1984, p. 403.
[6] Maridakis G. Droit, droit mondial, droit comparé //Problèmes contemporaines de droit comparé. T. II. Tokyo. 1962. P. 214.
[7] See: Luby Š . Funkcie porovná vacej pravnej vedy // Pravný obzor. 1970. # 6.
[8] Bogdanova N.A. Sistema nauk konstitutsionnogo prava. M., 2001, p.166.
[9] Ibid., pp. 146-147.
[10] See, for instance: Ilinskii I.P., Krylov B.S., Mikhaleva N.A. Novoe federativnoe ustroistvo Rossii //Gosudarstvo i pravo. 1992. #11.
[11] See, for instance: Rozhdestvenskaia T.E. Evoliutsia amerikanskogo federalizma. Avtoref. Disskand. Iurid. Nauk. M., 1993.
[12] See, for instance: Avtonomov A.S. Nekotorye aspekty pravovogo statusa indeitsev v SShA // Aktualnye problemy amerikanistiki. Gorkii. 1990; Avtonomov A.S. Pravovoe polozhenie indeitsev v Kanade // Predstavitelnaia vlast. 1997. #1.
[13] J.Madison to N.P.Trist, Feb. 15, 1830 //The Complete Madison. His Basic Writings. Ed. by S.K.Padover. N.Y. 1953. P. 195.


 
In this section
Site sections
Search
 
Registration
:    
:
 
 

  • [ ]
    • -
  • News | Projects | Publications | Employees | Forum | Actions | Help to researcher | Articles about modern federalism
    2001, 2002, 2009 Kazan Center of Federalism and Public Policy. All rights reserved, more ... Kazan, Kremlin, entrance 5. Tel/fax +7 (843) 2925043, federalism@kazanfed.ru