The Use of Federal Principles and Arrangements
in the Internal and External Reconstitution
of the Ex-Soviet Republics
Daniel J. Elazar
The Historic Setting
It is not unfair to say that federalism in the USSR was a mask for imperialism. Nevertheless, it had a certain reality of its own which was reflected in: 1) Lenin's correct assessment that at least a formal federal structure was necessary for the establishment of the Communist empire in the first place; 2) Khruschev's failure to do away with the federal structure through constitutional change in the 1960s; and 3) the importance of the federal structure in the developments leading to the recent break-up of the empire. Thus, while the USSR may have been a sham as a federation, federalism has played a major role in its history over the past 70 years. Nor can there be a future in the ex-Soviet empire without federalism in some form.
What precisely that form will take is uncertain at this time. It is likely that it will include some combination of confederal and federal arrangements. Confederation and other confederal arrangements, which had some prominence as the original form of federalism in ancient times and in premodern Europe, disappeared with the rise of the modern nation-state. In its place came federation, a form of government by which a country presented itself to the external world as a single nation-state, while internally there was constitutionalized power-sharing among its constitutionally established territorial units.
The essence of modern federation, then, was that matters such as foreign affairs and defense were deemed the exclusive province of the federal government, while most domestic functions were left to the constituent governments. While the federal constitutions of the USSR provided on paper for the possibility of the constituent republics to play a role in foreign affairs, the domination of all units of government by the Communist Party made that provision a sham. In true federations, however, such as the United States, this was a principle modified only at the peripheries, at the intersection of domestic and foreign policy.
Since World War II and the beginning of the postmodern epoch, the world has witnessed the revival of confederal arrangements in the form of new style confederations, inter alia. Chief among them is the European Community, a confederation of previously independent or "sovereign" states, among them the mothers of the nation-state idea and ideology. They have confederated not by forming a single overarching government, at least not initially, but through a congeries of specialized single or multi-purpose "authorities" established as needed and desired, to which the member states have transferred part of their sovereignty to undertake the tasks which they collectively assigned to them in a kind of co-production arrangement.
The European Community has been slowly moving in the direction of more comprehensive confederation. It may even be transformed into a federation, although there are many who believe that being a confederation is sufficient. Other such confederations or confederal arrangements are developing in other parts of the world as diverse as the West Indies and the Association of Southeast Asian Nations (ASEAN).
Once the choice to move in the direction of federalism has been made, the possibilities of enlarging the sphere of federal arrangements become real. We now see this in Europe where overlapping confederal arrangements involving the European Community, the Western European Union, the ECSC and NATO are all part of the emerging structure of European and Atlantic union. Similar developments are possible among and perhaps even within the ex-Soviet republics in ways appropriate to their situation. At the very least we can expect that the sham federation of the USSR will be replaced by a true Russian federation following the steps taken recently by Boris Yeltsin in negotiating a new federal treaty with 18 of the 20 constituent units within Russia itself. Similar federations are likely to develop in the Ukraine and in one or two other republics as well.
It is a more open question as to whether the ex-republics now linked through the Commonwealth (or confederation) of Independent States will develop into a real confederation. Despite the expected tensions between and among them, they still have enough in common to do so, though the passions associated with previous repression and long-sought independence may prevent such a resolution which seems to the outsider to be the most rational. In the meantime there are signs that whatever confederal arrangements will be established to link the republics will follow the EC model of single and multi-purpose authorities rather than a general overarching confederal government. Not only is this not unreasonable, but it is probably the best possible way to secure the blessings of constitutional government and union through sharing where necessary without threatening the newly-won liberties of the individual republics. Moreover, such confederal arrangements will lend themselves to broadened ties with the European states and the confederal arrangements that they are developing.
Federalism in the United States and the ex-Soviet Union
When attempting to compare and learn from the United States, one must begin by noting how different the conceptions and the experiences of Americans and many Americans and many of her peoples are. I bring as an exhibit, the sub-title of this conference, "Relations Between Central, Regional and Local Bodies." While this may be the way that many contemporary academics speak, in truth the American government is not a central government, it is a federal government. American states are not regional governments, they are state governments, only local remains local.
For the ex-Soviet Union, now the Commonwealth of Independent States, these words are even less relevant to describe the fifteen once Union Republics, now politically sovereign republics, that are trying to find a way to maintain some institutions in common, to share those things which they must share or they feel that it would be useful for them to share. They may not be adequate even for Russia, although officially Russia itself was a federation before the break-up and remains a federation. Those federal authorities have had to come to grips with the realities of proclamations of sovereignty on the part of most, if not all, of the constituent units of the Russian federation. In the Spring of 1992, President Yeltsin signed a new treaty with 18 of the 20 constituent units who had so proclaimed sovereignty or something akin to it to adjust relations between the government of the Russian federation and the units or the governments of those units. This may have put Russia at least on the way toward preventing the kind of dissolution that has happened in the ex-Soviet Union.
This problem of understanding can hardly be minimized. In general it is very difficult for Americans to understand how Old World politics is conducted because it is based upon the kind of permanent primordial or intergenerational groups with territorial bases or at least aspirations for territorial bases that are absent even from American ethnic politics. Americans do have an ethnic politics, but it is an ethnic politics that runs counter, in most respects, to the territorial politics of the United States. Indeed, the great political change of the twentieth century United States has been a movement from a territorially based politics, from the smallest precinct and township up through the federal government to a politics which mixes territorial and ethnic elements. Sometimes both sets of elements benefit one from the other. Sometimes they are at cross purposes.
How different is the situation in the ex-Soviet Union, where ethnic politics is so closely connected with territory and with disputes over territory. Moreover, this ethnicity or nationality is permanent. Unlike the United States where people can change identities, in the ex-Soviet Union people see themselves tied to their ethnic group organically, fundamentally, primordially, from generation to generation. No matter where they are, no matter where they might go, no matter what the conditions of their political life or their degree of independence or subordination, these differences are truly great and will not be underestimated. What the United States and the CIS have in common, it seems to me, is that both need, each for its own reasons, federal solutions.
Here I am come to my next point, which is that we are now beginning to realize that federalism is a genus of which there are several species. Because the United States invented modern federation and took the name federalism for it, most Americans believe that there is federalism and there is confederation, a different species of political organization. Indeed, the success of the founding fathers was to make Americans believe that. In fact, as we now see in the post-modern world, federalism is a genus, of which at least two species are federation and confederation. Russia and at least some of the other ex-Soviet republics will have to experiment with federation internally while most of them will be trying to experiment with confederation externally, that is to say, to link what is now called the CIS. They are doing so in a manner that is more reminiscent of, or has greater similarity to, the situation in Western Europe, where the European Community has developed a new style confederation which continues to evolve perhaps into a stronger confederation and maybe even into a federation, than it does to the American experience, where a clearcut decision was made over two hundred years ago to reject confederation in favor of a federation. The ex-Soviet peoples and governments will have to work and experiment in both directions. The situation offers them the possibility of trying different forms including many new forms which we may not have thought of in the United States. We all wish the members of the CIS well in their external and internal efforts both. We will be watching them and trying to help in any way that we possibly can.
How can we help? While the original confederation of the United States may simply have grown out of American experience, the American federal constitution of 1787 was the product of political theory and thought as much as of experience. And I think that is very important precisely because the American experience is not transplantable per se. On the other hand, American political thought is worth studying and exploring by all.
Every political society, every polity, has to develop its own system of self-government through some combination of its experience and reflection and choice based on that experience. In Federalist Number One, the first of the Federalist essays written by Publius (in this case, Alexander Hamilton) to persuade the people of the State of New York and the delegates to that state's convention called to consider ratification of the proposed constitution that came out of the Philadelphia Convention in 1787, he comments that it is given to few peoples of this world to choose this form of government not by force or by accident but through reflection and choice. And it is that critical factor, reflection and choice, that involves the combination of experience or thought. We cannot control our experiences. They are part of our heritage. We can only try to direct and control their effects after they occur.
Each of the ex-Soviet republics has had its own historical experience. They also have a certain collective historical experience, in many cases forced upon them either as polities or on their residents as peoples. These have already had a tremendous impact on what those polities are likely to become in the future.
With regard to the CIS the point that I would make is that while it is not yet a comprehensive integrated structure, it has elements of becoming, at least a confederal arrangement, if not an actual confederation. It is too early to tell what it will become. But as we have seen in Western Europe, the original home area of the absolutely separate sovereign nation-state has, since the end of World War II, the idea of confederal arrangements has been revived, initially through a number of very limited treaties, which very deliberately were described as functional rather than federal so as not to frighten anybody. As recently as the mid-1970s its survival was in doubt. Today the issue with the European Community is not whether it is more or less a real confederation now, but whether it is going to become a federation. There is a dispute about this in Europe that is very real and very legitimate. All this was achieved in little more than a generation.
The CIS states are faced with similar problems coming at them from the other direction. That is to say, it tries to link units that were pre-existing even if only for a short time, in terms of their claim to political sovereignty, yet for a long time, in the minds and hands of their peoples. These entities often are hostile to one another, but have a certain need to undertake certain tasks in common. As Professor Jesse Choper has said, "today the world is not given to establishing federations of new states but rather of restructuring political arrangements among old states or states serving old peoples." The CIS will have to work its way out of its present predicament.
Some Issues of Constitutional Design
The foregoing issues lead us to issues of constitutional design. Here I would like to try to emphasize those principles of constitutional design which are most appropriate for CIS decision-makers to consider. Several are conceptual, others theoretical, and still others very practical indeed. I will try to emphasize what I consider most important from the theoretical perspective of constitutional design. That is to say, I cannot comment directly on the experiences of the ex-Soviet republics except in a very modest way. But I hope I know something about the problems of constitutional design, a field in and of itself, so that perhaps I can suggest some ways to utilize the knowledge accumulated in the field of constitutional design through experience in various parts of the world.
Protecting Rights: In our day the first question to be raised underpinning any polity is the question of rights. Is the local or federal government the best one to protect individual and private rights of citizens?
It depends on whom you want to protect. The American position, which is not wrong, is that if one wants to protect people who are different, who deviate from the local consensus, then indeed the federal government can do better. But today there is some question in the United States as to whether needed local consensus is not at the mercy of every deviate who comes along and claims his or her constitutional rights. This is particularly important where national or group rights are involved because people obviously care very passionately about their national rights even if those national rights might be interpreted in another environment as going against their individual rights. Look today at what was Yugoslavia, not only the former Soviet Union, and one will see this.
People who care passionately about such things will have different ideas of protection. The problem that is faced in the various republics of the once Soviet Union as in other parts of the world is: how do you find a balance in protecting both? The Americans have been able to do that because they have had a very clear feeling -- a very dominant consensus -- that they are more interested in protecting the deviant individual than they are in protecting any kind of collective rights, a concept which they do not even formally recognize. This is emphatically not the case in the ex-Soviet republics.
Questions of Terminology: While we should not make ourselves slaves to questions of terminology and many mistakes have been made in both political science and in philosophy by trying to so agree upon terminology that we become slaves to the words. Still, unless we correctly understand not only each other but the things we are talking about as well then it is very difficult to try and communicate messages. In this respect there are some issues of terminology that cannot be ignored.
Avoiding the Reified State: First of all, the peoples of the CIS, especially those involved in the problems of constitutional design, must jettison the idea of "the state" as a reified entity, as something that exists in and of itself, regardless of its people; regardless of its regime. The peoples of the CIS, influenced first by European history and for the last seventy years by its Soviet totalitarian expression, are quite wedded to the idea of the state as a reified entity. In fact, the great revolution in modern democratic republicanism was to get rid of that idea of the state and to see the people as the source of political power.
Proper democratic theory holds that the people, in their various institutional combinations, delegate from their powers to governments -- in federal systems, to local, state, federal and special purpose governments as necessary. Under democratic-republican theory, especially that animated by the principles of federal democracy, all governments are governments of delegated powers only. None possess powers in their own right, only such as their peoples delegate to them, and what can be delegated can be reassumed, transferred, reorganized, or shifted.
This is a conceptual matter but of immense importance, as it makes possible the distribution of powers and their separation and the constitutional protection of rights. If a reified state is "sovereign," then it decides if and how power should be distributed and divided -- if it so chooses, but in fact it remains the final point of sovereignty where authority and power come together. Thus the state, which means for all intents and purposes those who run the state, determines who grants or guarantees rights and determines the final organization of powers. Whereas if the people are sovereign, then all rights, authority and power inhere in them and government is merely a vehicle for their exercise. Since rights are inherent, people are inherently protected and rights do not come to them as a gift from some external state. Moreover, it is easier to understand government or governments as consisting of the governors, those who empower them, and the institutions and mechanisms for keeping those governors in their place, than when we are confronted by the ostensible majesty of the reified state. To restate matters, the three great elements of democratic republicanism -- federalism, the separation of powers, and the bill of rights -- are all made possible by the idea of popular sovereignty.
The idea of the reified state is a European invention. According to that theory the only thing that democracy brings to the reified state is the possibility that peoples can change their regimes, sometimes democratically, but the idea that there is such a thing as a reified state makes it impossible to properly construct any kind of constitutional regime that will promise democratic republicanism and self-government, much less federalism.
In place of the state, the Americans successfully developed a different approach to understanding how polities are organized. The people as a whole, and in a federal system,the people of their respective entities are the source of political power or, if you will, political sovereignty. (I am not certain that we should not get rid of that term also simply because of the complications that it brings.) The people are politically sovereign. They are the source of the constituent power (in the words of Johannus Althusius, a great European political theorist of the late sixteenth century, who was ignored for 300 years by all those who wanted to built reified states). The people delegate the constituent power to those governments to whom they choose to delegate it.
Under the doctrine of state sovereignty, as opposed to popular sovereignty, there is one state with its government. All the other jurisdictions are mere "authorities" subordinate to the sovereign state, not governments. The government is in the hands of the state.
Under the doctrine of popular sovereignty, the people can determine to delegate their powers to both general and constituent governments. The people can determine how they allocate the powers to govern themselves; to whom do they entrust those powers; to what institutions do they entrust those powers? They do not grapple with abstract questions such as where is "the state," who is the state, what does the state do.
Individuals, people do things. Even "the bureaucracy" is an abstraction. There are people who are working in a bureaucratic framework with certain consequences because of the framework. But they are still people. Anybody who follows the infighting within and among bureaucracies know how unhelpful it is to talk about a reified state bureaucracy. There are many state bureaucrats and departments and agencies who fight with each other for power as much as they fight with others, maybe more. So it is misleading to think that there is not real diversity even in the most centralized state even if the words of reification camouflage it. The words of reification, by camouflaging the reality, hide the diversity from the people and allow bureaucrats to act irresponsibly.
Distribution of Powers: Look for the distribution of powers to build a political society that is democratic and republican. Whether federal or not, there needs to be a distribution of powers. In federal systems, the distribution of powers takes three forms. First of all, there is the form of federalism, the distribution of powers between territorial entities. A large comprehensive entity that we call the federal government, is constituted by smaller comprehensive entities serving pieces of the territory, that we call states or localities. The total is a matrix of governments with the federal government as the framing institution within which there are areas or states, and within those areas, others called local governments.
There also needs to be a separation of powers within each government: executive, legislative, and judicial. There have been efforts on the part of those inspired by certain forms of democracy to eliminate the separation of powers. They have not worked. Indeed, the trend has gone back to making the separation of powers more or less complete in order to preserve democracy in just about every case. The exceptions are in polities where the democratic tradition is so strong that it is able to some extent, to substitute for a thorough separation of powers.
A Civil Society: Finally, there is the protection of the private rights of people, individuals through what we properly call civil society, a term from the age of democratic revolutions in the seventeenth and eighteenth centuries that has gained new currency in the ex-Communist bloc, since its recent revolutions. Civil society is a term that teaches us that not all of society is political, that while framed by the polity, there is a large private sphere rightfully separate from government. Its revival in the East comes in time to remind us in the West, that this is the term that properly describes our own liberties in which there is a separation of governmental and non-governmental spheres and a distribution of powers between them.
I cannot overemphasize the importance of the idea of civil society, of limited government. The term itself is a great invention of seventeenth century political philosophy that teaches us two good lessons: that no society exists without government, without some form for establishing order and security and allocation of powers (as Harold Lasswell said "who gets what, when and how). At the same time, government has to be limited so that there is a sufficient private sphere.
Indeed, in the most successful democracies, we have come to understand that civil society actually has three pillars: a governmental pillar, a private pillar, and a public non-governmental sector, (a civic sector we call it in the United States), where people voluntarily come together (truly voluntarily, not coerced voluntarism), to do as much as possible on a cooperative basis, on a co-production basis, before turning to government. Government does only what cannot be done privately or through the public non-governmental civic sector. So look to the development of those three sectors.
"Soft" Law: As you build your institutions, look for what lawyers call "soft" as well as "hard" law. That is to say, law by agreements rather than by the exercise of the coercive powers of governments. The European community built itself initially upon "soft" law. Much of that law is hardening now but the European community is a model for how such law is developed and used. There is now an international body of "soft" law through the various economic agreements, and to a lesser extent through the security agreements which hold the world together, even if this law is not the same as the law of politically sovereign bodies. But nevertheless, "soft" law is very helpful especially in you case and in the Commonwealth of Independent States.
Comprehensive Federations: You will have to choose to build federations within several of the republics. I believe that Russia and probably two or three of the other republics -- Ukraine, Georgia -- will have to divide the whole territory into constituent units and establish internal federations. The situation in Russia today or the putative situation in the Ukraine, or some of the other republics means that they are not likely to succeed where a good part of the territory is directly under the control or under the direct control of the general government and only selected portions have the equivalent of state or provincial or cantonal governments.
Spain, when it made its move to democracy in the late 1970s, very wisely decided not to just grant autonomy to Catalonia and to the Basque country, but to divide Spain into all of its historical regions, and to give each region similar powers so that the whole country would be divided into constituent governments. Spain is not quite a full federation on paper or in theory, but in practice it is, because they made that move and that move has been successful. Galicia may not want as much autonomy as Catalonia but that is its choice. Madrid may want eve;n less than Galicia but it has the choice. And that is a critical element is creating the basic symmetries required in federal systems. Spain is an excellent model because it has developed some symmetrical federations that could answer similar needs in the CIS republics.
Constituent Units With Real Powers: The constituent units of a federation need to have real power including real powers of taxation. These may be implemented in the way that we do in the United States where, as we discussed this morning, we have parallel federal and state officials in institutions working throughout the United States. Or it may be done the way it is done in Switzerland whereby the federal government utilizes the institutions of the constituent units to implement federal legislation and it has not tried to establish its own institutions throughout the country.
Each system is good in some places and bad in others. For example, in the United States dual structures have worked rather well. In the Latin American countries they have allowed federal government, with its greater resources, to work locally to effectively preempt state and local efforts and has ended up defeating federalism because of the political culture. In Switzerland the other system has worked rather well because of the ingrained federal political culture. It is somewhat more problematic in hierarchical Austria. This is a topic in and of itself. What is necessary in either case is that real powers have to be constitutionally allocated and protected among governments.
Dualism and Cooperation: Federalism works through a combination of competition and cooperation. A dual structure is necessary in one or another of the forms I have described. But there will always be cooperative relationships within the structure because there are too many items that have to be done cooperatively by the governments involved. The United States learned that very early. Cooperative federalism was the norm in this country within a few years after the adoption of the Constitution of 1787. But in our time this thrust toward intergovernmental sharing has gotten out of hand somewhat as it has been used by the federal government from time to time for coercive purposes.
A proper balance between cooperation and dualism is critically important but both will always exist. What makes them work is what in American law is called comity. That is to say a decent respect for the concerns of the other polity. Comity is protected through open bargaining and open government in addition to formal constitutional provisions. This is critically important. There is no political system in the world that does not have bargaining. Even in the most closed and dictatorial system at least those people who sit at the top bargain among themselves. The success of democratic systems is that their bargaining is sufficiently open and accessible to the vast majority of people who choose to make use of that access, and it is visible so that not too much can be done to strengthen the hands of the governors at the expense of the governed.
Slower But Firmer Results: Federalism, because it requires consent, is a slower way to get results but its results are longer lasting. Sometimes a quick fix seems to be possible by the use of force or forceful intervention but in the long run consensus has the ability of generating a wider and deeper desire to support the result. The history of the American confrontation with the problem of the rights of blacks and other non-white minorities is a case in point. The Americans used a combination of federal processes and the coercive power of the federal government and the end result is that today there is sufficient change of heart among Americans in all parts of the country to make the reality of support for civil rights and rights protection much stronger.
I would like to conclude by mentioning three more points. One is that it is obviously easier to build democratic systems, federal systems, where the political culture lends itself to them. It is obviously more difficult where the political culture runs in contrary directions. Where it runs in contrary directions, the constitutional designers must find those elements which are most likely to be in favor of or supportive of democratic and federal institutions. In some cases this is a matter of balancing oligarchies instead of securing broad based participation. It is a matter of working with what is available.
This is especially difficult when it comes to ethnic federations. Some of the problems of unfavorable political culture can be overcome if there is sufficient political will. Such will is best when it can draw from the culture but at times it is used even to modify and moderate the culture.
Fortunately or unfortunately accidents of history have their role to play as well. Some have to do with the kind of leadership that appears. One wonders whether Yugoslavia would have been plunged into civil war if there had not been a certain kind of leader in Serbia at the time. But these are the accidents of history over which we have relatively little control. On the other hand, proper leadership is necessary for federalism to succeed.
No federation freely entered into that has lasted for at least fifteen years has ever failed over its own accord. The Soviet and Yugoslav federations were imposed by force. The results speak for themselves. What constitutes "freely entered into" may be a matter of discussion but no such federation has failed of its own accord. Some have been eliminated by outside conquest, but where the people have chosen this course of political organization they have generally stayed with it. As the ex-Soviet republics make their new beginnings one can be skeptical but hopeful that whether internally or in their relations with one another, they will be able to move from the federalisms of force of the past to useful and democratic federations of consent in the future.
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