(Archived document, may contain errors) The Rule of Law in the Soviet Union: A Necessary Framework for Democratic Reform By DickThornburgh Whether or not the present 28th Communist Party Congress in Moscow is, as some pre- dict and more hope, a true precursor to the "withering away of the Party ," the extraordinary debate which is taking place in that forum parallels in important ways President Gorbachev's stated desire to create a "law-based state" - a Soviet Union founded on the rule of law. Heritage Analyst I-eon Aron has identified the creat i on of "a government vested with au- thority and having enough legitimacy to administer the very bitter pill of radical economic reform... as the central and most urgent issue of Soviet politics today." It is my view, in the context of recent exchanges bet w een the Department of Justice and our Soviet counterparts, that the rule of law provides the only basis upon which such a gov- ernment can eventuate from the upheaval under way in the Soviet Union and in Eastern Eu- rope. Our October 1989 trip to the Sovi e t Union - the very first by a sitting United States Attor- ney General - occurred at the very beginning of the Supreme Soviet's effort at institutional reform and enabled us to open an historic, and continuing, dialogue on the rule of law and human rights . It was a remarkable experience. At the invitation of Soviet Minister of Justice, Venyamin F. Yakovlev, we met for a week with Soviet leaders in the fields of law enforcement and the administration of justice - ministers, jurists, law students, even the C h ief of the KG.B., Vla- dimir Kryuchkov. Our agenda was a full one, devoted to topics central to what makes our democracy work: our Bill of Rights, our federal system, the principle of separation of pow- ers, with its checks and balances, our two-party pol i tical process - all from that curriculum of liberties we teach (but don't always learn) in our basic high school civics courses. Placing in Context. And I have to credit our Soviet hosts, even at that early juncture, with a bold exercise in pursuing polit i cal discussions which were open and free-ranging, cov- ering everything from our mutual interest in stopping international terrorism to their obliga- tion - as we see it, and they increasingly recognize it - to allow freer emigration of Soviet Jews. But o u r talks still took place within an historical legal context that must be under- stood if their present difficulties are to be fully recognized, or ever surmounted. To summarize abruptly a great deal of history, Soviet justice derives from three legal tra- ditions: customary law among the peasantry, the imperial law of the Czars, and, much later, the Romanist law of civil codes. Customary and imperial law have had by far the over- whelming impact, creating a government of men above the law, from the Mongols to the bo-
Dick Thornburgh is Attorney General of the United States. He spoke at The Heritage Foundation on July 10, 1990. ISSN 0272-1155. 01990 by The Heritage Foundation.yars to the Czars and beyond. Various formal codifications of imperial law did appear. But the operative legal power was still vested in what we commonly know as the ukase. "A proc- lamation of a Russian Czar," as Webster's says, "having the force of law." Subordination of Law. This violently changed - yet did not really change - w h en the Bol- sheviks came to power. Initially Lenin abolished imperial law, along with private property, and set up the people's courts. Judges were instructed to follow the decrees of the revolu- tion - or their "socialist conscience." Later, Lenin and hi s successors moved to keep author- itarian sway over the courts by what became known as "telephone justice." Party officials frequently rang up judges, who then ruled in particular cases according to what the Party told them to do. The ukase had been reduc e d, by 20th century technology, to a phone call. The legalistic way was prepared for Stalin's Moscow show trials during the Great Terror and, thereafter, the habitual subordination of the law to Party interests. Against this unpromising background, so-call e d new thinkers in the Soviet Union have now embarked upon what appears to be a truly idealistic and laudable attempt to establish the rule of law - or in Gorbachev's words, a "law-based state." Could it actually happen? So often you hear it optimistically said: remember that Mikhail Gorbachev was trained as a lawyer. Yes, but so was Lenin. The chances are certainly there - as we saw during that week, and continue to see as we visit with Soviet officials and lawyers, both here and in the Soviet Union. Indee d , we are pre- paring for a return visit by Minister Yakovlev next month to extend our dialogue on democ- racy. But chances of success in this endeavor must always be measured against the long fa- tigues of history - the institutional neglect and political disrespect for what we know as the rule of law. What is really missing is what might be called a "legal culture." Time and again, for exam- ple, we found an almost naive belief that all that was needed was to pass the correct stat- utes, to get the right l aws on the books to create a "rule of law." We did our best to try to disabuse them of this legalistic and somewhat simplistic notion. Laws on the books, we ex- plained, must be conscientiously obeyed and impartially enforced within a structure, and throu g h a process, recognized and acknowledged by all - citizen and bureaucrat alike. The rule of law works in a democracy, we pointed out, because of the supremacy of the ju- diciary, because men adhere to a government of laws, and act to see that the laws are en- forced, in such ways that no man is above - or below - the law. Practical Questions. Happily, the very things the Russians found most curious about our democracy let us discuss those practices in our law that really make our democratic process work. O u r Ambassador to the U.S.S.R., Jack Matlock, reports this phenomenon is common - as Soviet citizens seek him out to gain insight into the functioning of the most basic of American institutions. Soviets quiz him on remarkably practical questions. If the Rus s ians are writing a law on the press, they might query, for example, "How do Americans treat libel law? What can your press say? What can it not say?" One of the first, most insistent questions I was asked by nearly everyone was, inevitably, a constitution al one: How does your federal system work? How did you weld together the sep- arate states as the United States? How do you keep things from falling apart through inces- sant struggles between the national government and 50 different state governments?
2Obviously, they are worrying about the unrest among their own republics. You only need look at the independence movements in Lithuania and the other Baltic states - as well as similar secessionist rumblings in the Republic of Russia under Boris Yeltsin an d, most re- cently, in Uzbekistan - to understand their anxiety. They are also looking to us for ways, if you will, to deal with their own diversity. Emphasizing Due Process. We gave them a very pragmatic answer to these inquiries. We did our best to expl a in, "Look, this is the way we do it, but the central thing about our sys- tem is its accommodation to change. Most of the mechanisms and components of our gov- ernment are designed to accommodate change. And mastering that process is going to re- quire fa r more than just the passage of new laws by the Supreme Soviet." It is going to take a commitment to the lawful, democratic process, and we tried to emphasize legal process - due process of law - even over substantive rights, as the true safeguard of the p e ople's liber- ties. Again, they asked us often, and in much confusion, about the separation of powers. The idea of deliberately building in a tension between separate branches of government - our concept of checks and balances - was extremely puzzling to t hem and, to some, utterly in- comprehensible. Accustomed to their own monolithic system, they would have to struggle hard to understand, for example, Justice Brandeis's observation that we adopted the separa- tion of powers in 1787 "not to avoid friction, but by means of the inevitable friction incident to the distribution of government powers among the [branches], to save the people from au- tocracy."
We called attention to their own guarantees of civil rights under the Soviet constitution. There they ar e, all fully documented, like our own Bill of Rights. Only there is also the care- fully worded escape clause: "Civil rights shall be protected by law - " Just as our rule of law would hold, but with this kicker. " - Except as they are exercised in contra d iction to their purpose in socialist society in the period of communist construction." That, of course, admits the ubiquitous specter of Party tyranny. Attempts are being made to toss this offensive language off the train by the new thinkers. But it's not litter down the tracks of history yet. And still to come is the real test as to whether the Soviet courts them- selves can and will act to protect the people's rights. In short, will respect for legal process eliminate the prior abuses of "telephone justi c e"? True reform must reach down into the legal culture itself, and create an inherent respect not only for individual rights, but for legal procedure and due process. In a statement be- fore the Communist Party Congress last Monday, KG.B. Chief Kryuchkov a ffirmed this ele- mental truth: We cannot speak in favor of the universal development of democracy and at the same time refrain from speaking in favor of law and order, and the supremacy of the law. A society which allows the law to be mocked is a disease d society.... Fine words indeed, but one problem is that much of the motivation for legal reform is coming from a different direction altogether.3
The Soviets face one great, dire urgency - besides national unrest - and that is their econ- omy. To survi ve, they must enter the free world marketplace. To do that, they realize they must position themselves to recognize - and take advantage of - the rules of free com- merce. The rule of law is the fundamental prerequisite for turning away from a command eco n omy - to a market economy. Respect for Contracts, Property. One of the Soviets' principal reasons for their great in- terest in the rule of law is just that - they have an immediate and pressing need to jurnp- start their participation in the world econom y , to attract foreign know-how and investment. To do that, they realize they must display the predictability and stability that can only emerge from a body of commercial law - which, in turn, respects the sanctity of contracts and, yes, recognizes property rights as well. Fear of abrogation of contract rights or expro- priation of investments can stunt otherwise attractive commercial and industrial initiatives. This is one reason why property rights have been so hotly debated in the Soviet Union. A young re f ormer, whom my wife and I met last year, Ilya Saslavski, is involved in a property battle which typifies the disputes taking place on a local level across the Soviet Union. Saslavski, an elected member of the Congress of Peoples' Deputies, who is visiting here this week, has announced the take-over - for ordinary families - of an apartment building built for the Party elite. Tbough the controversy will be settled in court, such a confrontation would never have been attempted were Saslavski not assured of a favorable hearing from a pro-reform judge. The action taken by Saslavski is but one manifestation of the myriad cri- ses arising as local leaders vie for power in the communist system which has an endemic an- tagonism to property rights reform. On the ver y day we visited the Supreme Soviet - a semi-democratically elected legisla- ture, and a developing seat of power - debate on the subject of property rights went on seemingly endlessly, and with very good cause. The Soviet Constitution says that property b e longs to the state alone. But might such state property be legally leased to cooperative, joint ventures? And how does a Soviet citizen without ownership "act like an owner," as Gorbachev has instructed, or even enjoy "something close to ownership" as esp o used by BorisYeltsin? As we watched, the late Dr. Andrei Sakharov, among others, rose to voice his objections to the government's bill. Finally, two bills, partially in conflict, were sent off to a commission for a further massaging, which continues to th is day.Adept legal accommodation can also be seen in the liberalization of their emigration poli- cies. We are convinced they are now doing their legal utmost to facilitate the issuance of em- igration visas - as a new exodus follows hard upon a rise in anti-semitism in Russia - but, here again, their interest is not wholly altruistic. They would like to meet the strictures of our Jackson-Vanik legislation in order to secure the most-favored nation status that would much enhance their prestige in world m a rkets. Still, we must be convinced - as in so much else undertaken in the name of Soviet legal reform - that not just the letter, but the spirit, of the law has taken root in the Soviet Union. That is the essence of the agreement reached between President s Bush and Gorbachev dur- ing the recent summit, that any trade agreement remains contingent upon legislative action by the Supreme Soviet in support of free emigration. We are, in short, watching to see that
4oppo rtunities to emigrate are institutionalized in law and practice, and are not just episodic, in the present uncertain flux of Soviet democratization. All that being said, at the same time, I do not want to downplay their efforts to achieve the rule of law, or underestimate the modem-day difficulties of democratization. Two hun- dred years ago, we could call upon our English, common law heritage, and an American over-abundance of legal talent, to create our written Constitution, even in crisis. Also, we were then only four million, relatively homogeneous Americans, mostly concentrated on the Atlantic Coast - not 290 million multi-cultured Soviet citizens, spread across eleven time zones. Moreover, our Constitutional Convention deliberated in secret - not unde r glasnost. Imagine, if you will, George Washington on worldwide television, in the midst of a currency crisis, trying to suppress Shay's Rebellion, letting Vermont and New Hampshire pursue Yankeeism in their own way, negotiating with Quaker Solidarity, wh i le trying to cut an arms deal with the British and French to put a cap on heavy frigates. George Washing- ton, you will recall, said not one single word while presiding at Philadelphia. Ile Soviets suffer all the drawbacks of history, including their own, most recent, flawed history. But do they now recognize these flaws, particularly in law, and do they sincerely want to counter them by establishing, for example, an independent judiciary - an institution they have never known, from Czarist times forward? I le ultimate answers to those ques- tions are unknown, but there are a few signs of an incipient legality. They have doubled judi- cial salaries, formerly below the average wage. And - good news to the Soviet law students I addressed at Moscow State Univer s ity - they are allowing lawyers to charge real fees - in- stead of a scale of meagre fixed fees (plus money under the table) - and are taking steps to allow them actually to represent their clients. Judicial Review. They have also been struggling to estab l ish a rudimentary mechanism for judicial review - not unlike our Supreme Court, but far less august and lawfully empow- ered. A constitutional oversight committee is to review the constitutionality of Soviet law - in a sharp break with the past. But there are strict limitations upon their powers. The com- mittee is advisory only, and it can rule on Soviet federal law, but not on the laws of the sepa- rate republics. In one curious anomaly, if any Soviet law is found to violate human rights - presumably as d efined by the United Nations Charter - the committee is empowered to de- clare said law unconstitutional.'nere is much confusion over how the constitutional over- sight committee will actually operate - let alone, legally prevail. What is needed - as Prof e s- sor John Hazard of Columbia Law School says - is another John Marshall to arrive on the scene and guide their deliberations. So there appears to be a will to a rule of law, if still much wandering in pursuit of untried, democratic ways. Going for such h igh stakes means that it is far too early to determine their chances of success. But I do remind you of two highly successful, post-war experiments in democratic reformations: Germany and Japan. Again, there are large differences in na- tional circumstanc e s - whole histories, wartime sufferings, other relevant factors. But we have seen the political adaptability of West German democracy overcome many obstacles from the totalitarian German past, and witnessed - sometimes to our chagrin - the Japan- ese expe r iment's continuing, modern triumph over centuries of emperor-worship. And both experiments were undertaken in similar adversity: by an undone people - even a conquered people - in economic extremis, at a moment of deep disillusionment with their own socie ty.
5Could something far different, yet alike, happen again? For the sake of world harmony, we can hope so, while also providing whatever encouragement is possible. One final, positive observation. In 1979, when I visited the Soviet Union as a state gov er- nor, I found each official session invariably opened with an almost obligatory denunciation of the United States and our system of government. Ten years later, nearly every meeting with our counterparts began with a litany of woes - their recitation o f the shortcomings of their system - and an almost wistful yearning for more knowledge about how our democ- racy works. So I come away from my most recent visit to the Soviet Union - and our subsequent con- tacts with their legal delegations - well aware t h at Soviet justice does not yet embody what we know as the rule of law, but convinced that patience and example, and even some advo- cacy, might help certain determined Soviet officials to establish their own rule of law. Like everybody else's democratic e x periment, it will have to be attempted and achieved within their own society. If ever we needed dramatic reinforcement of that truth, it has come from the recent elections in Eastern Europe. On the one hand, East Germany has all but reunited with West Ger m any after its first free parliamentary election in four decades. On the other hand, Romania seems to have reverted to a government-sponsored vigilan- tism in the streets following the electorate's return to office of former communists. Rule of Law. We can n ot count upon constitutionalism simply to arise as virtue triumphant from the totalitarian ruins of Europe. Even where constitutionalism seems likely to prevail, the rule of law will be formalized differently by the Czechs, or the Poles, or the Hungarians - and most certainly, by the Russians. Nobody else but their own judges, lawyers, ministers, and citizens can evolve the judicial fairness and institute the legal restraint that underpin any rule of law. And it is only inherent respect for the law - such a s we have seen people steadfastly demanding in the open squares and open parliaments and newly open societies - that will bring to a tolerable end the last vestiges of tyranny in these formerly closed com- munist monoliths. In sum, only the rule of law ca n provide a sturdy bridge over the yawning political chasm between upheaval and democracy. And we will know it when, and if, it appears. By the human rights the rule of law protects, by the governmental powers it limits, by the judicial independence it pre serves. We will know it, constitutionally, when we see it. After more than two hundred years of experience and experiment on our own - who better to judge its emergence elsewhere?