Path-Dependency in Russian Constitution-Making

Richard Albert, Menaka Guruswamy & Nishchal Bansyat (eds.), Founding Moments in Constitutionalism (2019)

26 Pages Posted: 24 Aug 2017 Last revised: 19 Oct 2020

See all articles by Eugene D. Mazo

Eugene D. Mazo

Rutgers Law School; University of Louisville - Louis D. Brandeis School of Law

Date Written: July 14, 2017

Abstract

One theory of constitution-making posits that new constitutions result from a path-dependent process. As such, they tend to reflect those constitutions that were in place before. According to this view, to understand constitution-making, it is necessary to study the period of time between the fall of a one regime and the creation of the new one. This is the period of transitional uncertainty when political actors have the opportunity to create new institutions and when “constitutional moments” take place. This chapter explains how the constitutional moment was exploited during the Soviet Union’s transition from communism. It examines the distinctive features of that transition and how it led many countries in the post-Soviet region to adopt dual-headed executive structures, ones that created a role for a president and a prime minister.

This chapter argues that the theory that goes furthest towards explaining post-communist constitutional choice is path-dependency theory. Path-dependency is a broad term that is often used to convey the idea that one’s range of future options may be constrained by what was in place before. The theory tells us that political institutions may be circumscribed by their predecessors. When new constitutions are written during regime transitions, they are often based on those that existed before. This means that new constitutions cannot simply be, as one scholar puts it, “the product of the self-interest of those who establish them.” Indeed, constitutions are able to reflect the preferences of powerful actors only when the constraints of prior institutions are absent. But in the real world, this rarely happens because constitutional framers do not work in a vacuum. During a constitutional transition, there is a temporary period that occurs during which a new state inherits old institutions, according to the rules of which it must function (for however long) and which it must decide how to scrap or amend before putting something new in their place. These old institutions heavily influence the creation of new ones.

One particularly powerful path-dependency theory is sequencing path-dependency. 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. When we say that a path-dependent historical or temporal process is one characterized by a self-reinforcing sequence of events, we mean, at the outset, that when a particular event happens in a sequence is important, because small events early on can have disproportionately large effects later. During the early stages of a sequence — during the moment often referred to as the “critical juncture” — things are relatively permissive. Yet they get more restrictive as one moves down the path. Every path begins and ends with a “critical juncture."

Like all path-dependent processes, the origins of the constitutional systems that would eventually be adopted in the post-communist world can be traced to an early event. In this case, that event, which took place in 1990, was the superimposition of a presidency over the existing constitutional architecture of the Soviet Union. Gorbachev created this presidency in a deliberate attempt to give the Soviet Union a certain type of presidential system. In a matter of months, his decision would lead to presidencies being adopted in most of the Soviet Union’s union republics. When it came time for these republics to write new constitutions as independent states, they also adopted similar constitutional systems. Thus the original reforms to the Soviet Union’s constitution influenced all subsequent constitutional reforms in the Soviet republics at different points in time afterwards. This chapter describes how this process unfolded, and how path-dependency influenced it.

Keywords: constitution-making, constitutional design, regime transitions, Russia

Suggested Citation

Mazo, Eugene D., Path-Dependency in Russian Constitution-Making (July 14, 2017). Richard Albert, Menaka Guruswamy & Nishchal Bansyat (eds.), Founding Moments in Constitutionalism (2019) , Available at SSRN: https://ssrn.com/abstract=3023606

Eugene D. Mazo (Contact Author)

Rutgers Law School ( email )

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(973) 353-5332 (Phone)

University of Louisville - Louis D. Brandeis School of Law ( email )

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Louisville, KY 40292
United States
(502) 852-6373 (Phone)

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