Introduction

The world witnessed an enormous new wave of constitution-making take place during the 1990s. Just as Samuel Huntington famously hypothesised that democratic transitions come in waves,¹ with many countries experiencing their move away from authoritarianism close together in time, so too has constitution­making come in waves.

By Elster’s estimation, the world has witnessed seven waves of constitution­making. The first began in the late eighteenth century when, between 1780 and 1791, constitutions were written for the American colonies and for the US, Poland and France. From here:

The [second] wave occurred in the wake of the 1848 revolutions in Europe... A third wave broke out after the First World War. The newly created or recreated states of

* Thanks to my friend Bob Condlin of the University of Maryland for reading and providing comments on an earlier draft, Sue McCarty and Jenny Rensler of Maryland’s Thurgood Marshall Law Library for helping to track down hard-to-find sources, and Valeriya Zavyalova-Antonsen for assisting with the Russian transliteration.

¹ SP Huntington, The Third Wave: Democratization in the Twentieth Century (University of Oklahoma Press, 1991) 13-16.

² J Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (2005) 45 Duke Law Journal 364, 370.

³ibid 372.

Poland and Czechoslovakia wrote their constitutions. The defeated German state adopted the Weimar Constitution. Next, the fourth wave occurred after the Second World War. The defeated nations - Japan, Germany and Italy - adopted new consti­tutions under the more or less strict tutelage of the Allied Powers. A fifth wave was connected with the breakup of the French and British colonial empires. It began in India and Pakistan in the 1940s, but the process did not really gain momentum until the 1960s. In many cases, the new constitutions were modeled closely on those of the former colonial powers... A [sixth] wave is linked to the fall of the dictatorships in Southern Europe in the mid-1970s. Finally, a number of former Communist countries in Eastern and Central Europe adopted new constitutions [in the seventh wave] after the fall of communism in 1989.^[507]

The vast majority of the world's constitutions were adopted in the last three of Elster's waves. In fact, only 15 of the world's existing states promulgated their current constitution prior to the Second World War, while 14 more adopted their constitution prior to 1960.^[508] Between 1960 and 1974, approximately 50 additional states adopted new constitutions. This means that all the rest of the world's remain­ing states possess constitutions that were adopted after the fall of communism occurred and Huntington's famous ‘third wave' of democratisation began in 1989.

Constitution-making episodes that come in waves provide social scientists with unique data to test their theories. Generalisations about the constitution-making process are easier to make when a group of countries with similar histories or similar paths towards democratisation exhibit a similar set of constitution-making characteristics. In seeking to advance a better understanding of the constitution­making process, scholars have often focused on the period of uncertainty during a democratic transition.

Path-Dependency in Soviet and Russian Constitution-Making 135 or war - when one might expect tectonic constitutional shifts - the resulting constitutional changes are relatively minor.'^[513]

The theory of constitutional stickiness essentially posits that new constitutions result from a path-dependent process. Path-dependency is a broad term and can be used to convey many different ideas. But the main idea it conveys is that one's range of future options is constrained by what was in place before. Path-dependency tells us that political institutions may be circumscribed by their predecessors. When new constitutions are written during regime transitions, they are often based on the constitutions that previously existed. Indeed, this makes sense, as constitutional framers rarely work in a vacuum. During a regime transition, a temporary void is created during which a new state more likely than not inherits its old institutions, under which it must function for a short period of time until its constitutional framers decide how to amend these old institutions or else scrap them in order to put something else in their place. These old institutions often wind up heavily influencing their successors.

One particularly powerful path-dependency theory is ‘sequencing path­dependency’. Sequencing path-dependency stands for the broad idea that an outcome or decision is shaped by the historical path that specifically or systemati­cally leads to it. This theory signifies the existence of a causal relationship between stages in a temporal sequence, where each stage strongly influences the direc­tion of the stage that follows.^[514] As William Sewell observes, ‘what happened at an earlier point in time will affect the possible outcomes of a sequence of events occurring at a later point in time’ ^[515] Sequencing path-dependency finds that the order in which choices are presented can significantly affect later outcomes and even predict them.

When we say that a path-dependent historical or temporal process is one char­acterised by a self-reinforcing sequence of events, we mean that when a particular event occurs in a sequence is important, because small events early on can have disproportionately large effects later.^[516] During the early stages of a sequence - during the moment often referred to as the ‘critical juncture' - things are relatively permissive. However, they get more restrictive as one moves down the path. The further one goes down the path, the more change becomes ‘bounded’^[517] Sequencing path-dependency involves three phases. The first is the ‘critical juncture’ This is the phase at which an event triggers a move down a particular path. The second is the ‘period of reproduction’ when positive feedback mechanisms rein­force movement along that path. The third happens when the new path comes

to an end. At that point in time, new events work to dislodge the old, long-lasting equilibrium. Every path begins and ends with a ‘critical juncture', which is essen­tially a kind of punctuated equilibrium. As James Mahoney observes:

[P]ath dependence characterizes specifically those historical sequences in which contingent events set into motion institutional patterns or event chains that have deter­ministic properties.

This chapter focuses on the wave of constitution-making that took place in the countries of the former Soviet Union after the fall of communism and explains how it was influenced by path-dependency and the constitutional changes that occurred in the Soviet Union before that country ceased to exist. There are numer­ous distinctions that characterise the founding constitutional moments in the post-Soviet space. First, many of these countries rejected popular constitutionalism and drafted new constitutions through the ordinary political process.^[519] As William Partlett explains, ‘parliaments became the locus for both ordinary legislation and constitutional lawmaking' in these countries.^[520] As such, second, constitution­making in the post-Soviet space often lacked a sense of citizen engagement.^[521] Indeed, founding constitutional moments in these countries did not always turn out to be specific moments or events. Finally, many of the countries in this region adopted semi-presidential systems of government, even though the literature strongly cautioned against this^[522] - and even though the Soviet constitutional system had experienced no such thing itself for most of its long existence.

This chapter explains how path-dependency worked to influence the post­Soviet region's constitutional choices. Specifically, it examines the distinctive features of the transition from communism in the former Soviet Union and how this transition led many countries in the post-Soviet space to adopt semi- presidential executive organs and structures, ones that created a role for a president to function alongside a prime minister. Today, this constitutional separation of powers model dominates in the post-communist world, but there has been little scholarly explanation for why it has been chosen.^[523] This chapter argues that the reason this separation of powers model was adopted in these countries is because it already existed there shortly before the post-Soviet states gained their independ­ence.

Like all path-dependent processes, the origin of the constitutional moments that occurred in the post-Soviet world can be traced back to an early event. In this case, that event was Mikhail Gorbachev’s decision in 1990 to superimpose a presi­dency over the existing constitutional architecture of the Soviet Union. Gorbachev created his presidency in a deliberate attempt to make the Soviet Union a semi- presidential republic. In a matter of months, his decision would lead to presidencies being created in most of the union republics of the Soviet Union. When the time came for these union republics to write new constitutions as independent states, they happened to adopt similar constitutional systems. Thus, the original reforms to the Soviet Union’s constitution enacted by Gorbachev influenced the constitu­tional reforms in the Soviet republics at all subsequent points in time. This chapter explains how this process unfolded.

II.