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Federalism, Democratization, and the Rule of Law in Russia$

Jeffrey Kahn

Print publication date: 2002

Print ISBN-13: 9780199246991

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0199246998.001.0001

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(p.279) 9 Conclusion
Federalism, Democratization, and the Rule of Law in Russia

Jeffrey Kahn (Contributor Webpage)

Oxford University Press

Abstract and Keywords

A broad continuum of approaches to federal government exists. What choices are available to ruling elites at any given political moment depends greatly on previous institutional and political choices. The importance of a culture of legality, democratic governance, and a shared appreciation for the concepts and goals behind federal choices cannot be understated. The author concludes that weak conceptual, democratic, and rule‐of‐law foundations continue to threaten the new Russian Federation.

Keywords:   democracy, elites, federal government, governance, institutions, politics, rule of law, Russian Federation

William Riker's classic exploration of federalism in the Handbook of Political Science opens with the observation, ‘An initial difficulty in any discussion of federalism is that the meaning of the word has been thoroughly confused by dramatic changes in the institutions to which it refers’.1 That statement encapsulates a key point of departure for the analysis of federalism in this book. It is also a clue to one of the core problems faced by political elites in the new Russian Federation—conflicting conceptions of what, exactly, it means to be ‘federal’. Consensus about how to build (or rebuild) a new state order would be difficult for any polity to secure. Federalism is a complex political philosophy for the interaction of different levels of government that are somehow simultaneously decentralized and unified. Federalism is based upon a conception of sovereignty that is a radical departure from the traditional understanding of sovereignty as absolute and indivisible. For Russia, a multi‐national state in transition from the debilitating legacy of Soviet power, these conceptual hurdles were monumental.

This book takes an insistently multi‐disciplinary and comparative approach to these and other problems of Russian federalism. In place of a single definition or list of federal requirements, a continuum of federal possibilities has been examined. Acknowledging the enormous contribution (to theory and by empirical example) of the American case to the study of federalism, it is a poor methodology to utilize the American federation as if it were one of Plato's Forms. This is especially true in the study of federal approaches in multi‐national states. Nevertheless, it is impossible to deny that the American experience has deeply influenced both political scientists and legal scholars. It is therefore that much more surprising, given the influence of the American democratic federal system on federal theory, that so many theorists have accepted the assertions of non‐democratic regimes to be federations. In an earlier work, Riker asserted, ‘Since the Soviet Union preserves all the features of federalism, the mere fact that its federalism fails to prevent tyranny should not lead to casting it out of the class of (p.280) federalisms.’2 The Soviet Union, however, preserved none of the features of federalism. An important aim of this study has been to explain why the existence of ‘tyranny’ in a state is one of the clearest indications that, despite august constitutional assertions to the contrary, its political system cannot be considered federal. In particular, this book focuses on the relationship of federalism to sovereignty, democracy and the rule of law.

Building a federal system means creating a culture of legality. Unilateral declarations of sovereignty must eventually give way, if the federation is to survive, to consensus over how best to establish jurisdiction over an issue, what level of government shall possess what jurisdictional authority, and how best to handle the inevitable disputes that arise. Jurisdiction problems require juridical solutions. It is crucially important to develop a mindset that appreciates, responds to, and engages in the exercise of legal self‐limitation. There must be a willingness to be bound by the rule of law. But how is a sense of legal constraint created among ruling elites? Acceptance of the rule of law requires acceptance of the role of law in the state and society. How is an appreciation developed for law as a mechanism for long‐term dispute resolution, not as a short‐term political tool? This is a question that will face Russia for a long time to come.

This book has focused on the institutional asymmetry of Russian federalism. There is nothing inherently pathological about asymmetry in federal systems; in fact, federations are often the product of regional disparities of all sorts. But asymmetry that is built into the constitutional structure of the state must be created and managed carefully, with particular attention to the democratic and rule‐of‐law prerequisites federalism requires. At several points in this book, Russia's federal transition has been compared—unfavourably—to the transition that occurred in Spain. Whereas Madrid co‐ordinated lengthy, constitutionally entrenched, transparent and multi‐lateral negotiations, Moscow relied on short‐term, opaque, bilateral deals between executive branches that were either aconstitutional or brazenly anti‐constitutional. The result for Russia was not a federal system in which institutional asymmetry was accepted (because mutually agreed upon), but one constantly challenged and, consequently, perpetually open to destabilizing renegotiation of the fundamental order.

It is a misuse of terms to characterize non‐democratic regimes as federal systems, even if they appear to adopt various forms of decentralization or even devolution of power. The Soviet Union was no more a federal state than it was a democratic state, or one bound by the rule of law. Such a non‐democratic regime, operating outside the rule of law, is really just a federal (p.281) façade. That is not to say that institutions thus mis‐labelled federal do not have profound and lasting effects on their respective political systems. In several instances, these states have exploded (or imploded, depending on the metaphors and conceptions of the analyst) into competing—sometimes warring—states.

I take issue with such characterizations but not with the underlying premise. Institutions do matter. Tremendously so, in fact. The break‐up of Yugoslavia, like the break‐up of Czechoslovakia and the Soviet Union had much to do with the institutional design of these complex state systems. My refusal to call these systems federal does not devalue or underestimate the influence of their institutional make‐up. On the contrary, by making careful distinctions between federal and non‐federal systems we may better understand why some ‘federal’ systems function better than others, particularly those that have their origins in preceding, radically different, political systems.

Rather than a federal political system, the Soviet Union was a highly centralized authoritarian (and sometimes totalitarian) regime that operated behind a federal façade. Like a Potemkin village, Soviet ‘federalism’ exhibited many of the structural manifestations common to federal systems. But these could not conceal a rigidly unitary state. The federal provisions of its successive constitutions were trumped by organizing principles that privileged a vanguard party with monopoly control over state (and societal) institutions and a governing position always superior to the rule of law. Ironically, it was precisely this façade nature of Soviet federalism, at least as much as its constitutionally enshrined formal provisions, which have helped to shape the new Russian Federation. The very lexicon that republican elites employed—sovereignty, self‐determination, and federalism ‘from the ground up’—owes much to Leninist and Stalinist doctrines that disingenuously used the same vocabulary to beguile from the true foundations for the Soviet state. Republican elites were forced by the weakening power of the Party on one side and the simultaneous growing importance of local constituencies on the other to develop strategies to maintain their authority. The ‘Parade of Sovereignties’ provided a powerful issue around which to unite and a foundation upon which new rules of the political game could be designed. Ethnically demarcated territorial units with traditions of privilege for their titular ethnic (and usually minority) populations provided the building blocks for constructing a new Russian Federation as the institutions of the old Soviet Union were being demolished.

The existing ethno‐federal façade combined with the political machinations of Boris Yeltsin to result in a highly politicized environment in which the vocabulary and conceptions of Soviet federalism were uncritically (p.282) deployed in open debates and closed negotiations. Yeltsin famously urged the republics to ‘take as much sovereignty as you can swallow’, with the intention of creating an environment that would weaken Mikhail Gorbachev's Union centre while strengthening Yeltsin's authority in the RSFSR. This strategy worked well in the short term, unleashing a flood of sovereign demands that overwhelmed the centre and temporarily cast Yeltsin as the marshal of a parade of sovereignties. But as Yeltsin's RSFSR emerged from the fading shadow of Soviet control to be the new ‘centre’, his promises and entreaties returned to haunt him. Republican elites, it seemed, actually expected their sovereign demands to be heeded in a ‘renewed federation’, and Yeltsin soon found himself in a position similar to the one in which he had cast his previous adversaries. Gorbachev was gone but the language and anti‐centrist conceptions that were used to remove him and the system he represented were solidly established in the politics of the new Russian Federation.

The argument of this book has been that such strategies, however politically expedient at the moment, sowed the seeds for deeper problems, and made them that much harder to resolve in the future. Yeltsin's exhortation to ‘take all the sovereignty you can swallow’, like nontransparent bargaining games that followed, no doubt preserved Yeltsin's power vis‐à‐vis political opponents. But such politics did little to preserve federal cohesion (not to mention a federal consensus); in Yeltsin's own words, it could only ‘paper over the cracks’.3 These cracks expanded at the same time that they were being obscured. The short‐term political advantages of conceptual confusion—in speeches, commissions and declarations—resulted in long‐term hazards for what is most fundamental to federal cohesion: consensus on the basic ‘rules of the game’ and purpose of federal unity.

The institutional structure of this new federation, the 1992 Federation Treaty and 1993 Constitution, has been analysed in this book. The former document was a weak, vague and ambivalent political compromise. As republics began to adopt their constitutions and pass new laws, little attention seemed to be spared to ensure their conformity with the Federation Treaty. When pressed to explain these incongruities, republican elites reverted to the language of sovereignty and snizu vverkh, federalism built from the ground up. Taxes were withheld, court decisions ignored, federal presidential and parliamentary directives alike rejected by the leading republics as infringements on their sovereign rights. The origins of a doctrine of (p.283) nullification, inimical to federal theory, can already be seen at this early stage in Russia's federal development.

Yeltsin's federal Constitution, realized in no small part through violence, rescinded the Federation Treaty. A new clause in the Constitution reversed the previous presumption that republics possess all powers not explicitly granted the Federation by the Treaty, to one which left constituent units only the powers not claimed by federal authorities—few indeed. It is an academic but still disputed point whether the Constitution met the required participation threshold for passage in its 12 December 1993 referendum. It is clear, however, that the majority of republics, taken as complete units, either rejected the new Constitution (eight republics) or had voting levels too low to validate the result.

The institutional asymmetry already inherent in Russia's hierarchy of constituent units proliferated in a ‘Parade of Treaties’.4 Although various forms of asymmetry are common in federal systems, this book has examined the theoretical and empirical reasons why Russia's unique brand of bilateral institutional asymmetry is of serious concern. The effects of political brinksmanship and iterated, weakly constrained bargaining on federal structures have been examined. Particular attention has been drawn to the problems such inter‐governmental relations cause for the development of a unified legal space and a stable fiscal system, especially taxation.

Would republics eventually have splintered the Russian Federation apart, succumbing to a ‘bandwagon effect’ of secession and incorporation of various regional associations? The public declarations and private negotiations of regional elites suggest that greater autonomy, not independence, was their primary objective. The federal government's fiscal appeasement strategy, expertly identified by Daniel Treisman, helped regions achieve this goal. Moscow adopted a strategy of rewarding threatening behaviour in order to avert a feared cascade of secession. Republican political elites, however, were not infrequently just as anxious that their bluffs might be called. Federal anxiety was manipulated to prevent a deluge of independence that both sides hoped would never come. Manipulation of the centre's fears of ethnic violence, nationalism, and separatism were arrows in republican quivers, weapons many republics (but by no means all) used masterfully to obtain precisely the fiscal largesse, political appeasement and greater institutional autonomy they desired. But the concomitant effect was to seriously weaken acceptance of the value of federal unity, Bundestreue, and respect for the rule of law to mediate disputes. Instead, law often became just another weapon in federal‐regional disputes.

(p.284) Russia's unique structure of inter‐governmental relations also has had an effect on the development of institutions inside the republics. These republican institutions have been examined in detail both because of their importance from a federal perspective and from the related standpoint of an ongoing transition from authoritarian rule. Republican elites, mostly nomenklatura incumbents, designed rules of the game that provided them with winning strategies to retain power but which have had a debilitating effect on the political development of their republics. Examination of presidential and parliamentary elections reveals some starkly undemocratic practices and very weakly developed democratic structures (e. g. extremely weak party systems). Problematic conceptions of citizenship have been explored and the maintenance of privileges—de facto and de jure—for the titular ethnic group has been revealed. This is particularly apparent in the ethnic composition of parliaments and local administrations. It also goes hand in hand with a blurring of the division of powers, most obvious in intra‐bicameral systems but also existent elsewhere. So remote are many republics from completing a transition to democracy that a different analytical perspective—their varying transitions from authoritarianism—seems a more accurate approach to the classification of republican political systems.

The conceptualization of ‘treaty‐constitutional’ federal relations is perilously close to doctrines of sovereignty and nullification that are direct opposites of the unity and multilateralism that most federal theorists accept to be at the core of federal theory. The over‐centralization and authoritarianism of Soviet ‘federalism’ has given way to a new Russian federalism that approaches the other extreme. The republican conception that the Russian Federation is no greater than the sum of its parts, that federalism is only justified ‘from the ground up,’ and that the sovereignty that the republics have retained permits selective compliance with federal agreements is a significant threat to the stability and integrity of the Russian Federation. Russia's second president, Vladimir Putin, has responded at the other extreme. Declaring a ‘dictatorship of law’, the federal reforms that inaugurated his presidency were designed to ‘strengthen the executive vertical’ of power. Weak conceptual, democratic and rule‐of‐law foundations continue to threaten the new Russian state.


(1) William H. Riker, ‘Federalism’, in Fred I. Greenstein & Nelson W. Polsby, eds. Handbook of Political Science: Vol. Governmental Institutions and Processes (Reading, MA: Addison‐Wesley, 1975), 93.

(2) William H. Riker, Federalism: Origin, Operation, Significance (Boston: Little, Brown, 1964), 40.

(3) Daniel S. Treisman, After the Deluge: Regional Crises and Political Consolidation in Russia (Ann Arbor: University of Michigan Press, 1999), 47, 223, note 33.

(4) Elena Tregubova, ‘Boris El'tsin v Tatarii’, Segodnia, 31 May 1994, 1.