American Power After Afghanistan
How to Rightsize the Country’s Global Role
Mikhail Gorbachev and the Soviet leadership have recognized the need for fundamental legal reform in the U.S.S.R., and their emphasis is well placed. Law is the lifeblood of any democratically organized polity. It shapes social and economic structures and relationships, and provides normative rules for private and public conduct. Moreover, given the tradition of Russian absolutism and some seventy years of Soviet totalitarianism, a requisite component of democratization in the U.S.S.R. must be the development of some form of limitation on government power. This suggests, among other things, a legal system independent of government control.
Last fall I participated in a historic meeting between representatives of the U.S. Department of Justice and Soviet government, party and law enforcement officials.1 The unprecedented candor with which Soviet officials were willing to discuss the ills plaguing their society was certainly refreshing. It reflected the leadership's apparent readiness to put aside ideological clichés and rigid, doctrinaire solutions. I was also impressed by the obvious excitement about change displayed by these officials. My Soviet interlocutors seemed genuinely interested in the American legal and democratic experience, and our discussions, while reflective, were by no means abstract. Clearly the Soviets were searching for ideas that might take root in their own country.
In my view the Soviet leadership should reestablish the legitimacy of the state by basing it upon genuine popular sovereignty-the only acceptable basis of any government in the final decade of this twentieth century. For that, however, the Communist Party of the Soviet Union (CPSU) must relinquish its monopoly on power, in fact as well as theory, and compete alongside other political organizations in the electoral arena.
Furthermore the Soviet Union must create a constitutional structure that includes a legal system that is not subordinate to the state but rather offers equal justice under law to everyone, thus fulfilling the law's traditional role as a mediator among conflicting societal interests. As a predicate to accomplishing these objectives, a "rule of law" must be established in the Soviet Union. By rule of law I mean not just normative rules but a systemic process that inculcates the principles of limited government, due process and a "legal culture." The leadership's initial goal, therefore, should be nothing less than turning the Soviet Union into a law-abiding state.
The task is formidable since there is a legacy of lawlessness and arbitrary rule that must be overcome. The Soviet system today is primarily an amalgam of distinctive legal traditions that, over the course of a thousand years, have stubbornly resisted the inroads of Western liberal thought. In the Russian tradition law has always been the instrument of ruling elites. For the tsar the law was a tool through which to control his empire. Legal power was exercised through what was commonly known as the ukase-a proclamation or decree having the force of law.
This legacy has been worsened by the supervening years of Soviet rule. For the tsar's Soviet successors the law has been a device for the arbitrary exercise of total power as well as for social engineering, essentially for turning a particular social and economic theory into reality. In sum, whether tsar or commissar, Russia's rulers have historically stood above the law, changing or ignoring it at will to meet their own immediate political or ideological needs; law as a replacement for arbitrary political power or a check on despotism has never existed.
Significantly, orthodox Marxism postulated that the law, like the state itself, must ultimately "wither away," a position eagerly embraced by a number of Bolshevik enthusiasts. At the time of the revolution, however, the new rulers of the Russian state had to be more practical. Thus, while the tsarist legal forms were abolished, a revolutionary Marxist structure, designed to oversee the transition toward a stateless society, was adopted. Under the constitution of the Russian Soviet Federated Socialist Republic, proclaimed on July 10, 1918, private property was abolished, universal (i.e., forced) labor was decreed and revolutionary tribunals, free of all procedural limitations and operated by the secret police, were erected to deal with all "enemies of the revolution." In fact members of the "exploiting classes" were formally declared to be second-class citizens and deprived of their right to vote. As in the past, although with a newly enhanced brutality, the law was made to serve the interests of Russia's rulers, now the Communist Party.
In 1921 Lenin changed tack and, in a desperate attempt to shore up the Soviet economy and state, which were battered by the bloody civil war and on the verge of complete collapse, adopted the New Economic Policy. Instead of continuing the failed radical policy of War Communism, the regime now pursued "transitional" capitalism. As part of this program, Western models for civil and criminal law were embraced, at least in theory. This limited Westernization of the Soviet legal system, prompted by the needs of the rapidly growing private sector, was viewed by most Bolshevik leaders as a necessary but temporary evil. Lenin, for one, declared that "we must apply to private law relations, not the corpus juris romani, but our revolutionary concept of law."2 Not surprisingly the rule of law never took hold and, for the most part, the Communist Party continued to exercise authority arbitrarily and secretively.
In any case, by 1929 Stalin had consolidated his power, and what remained of the freer atmosphere of the NEP was crushed. Collectivization was enforced and totalitarianism was finally cemented. To the new leadership of the CPSU, "bourgeois" forms of law were no longer relevant. Codes of law that represented Western values, such as the right to hold private property and punishment calculated according to the seriousness of an offense, were rejected. An effort to move away entirely from all legal precepts, in line with traditional Marxist teachings, was also made. In the 1930s a debate emerged between the so-called legal nihilists, who advocated a swift and complete abandonment of all formal laws and resolution of all disputes by people's courts according to the precepts of proletarian justice, and legal realists, who wanted to retain laws and a judiciary system.
Stalin, in a befittingly cruel irony, recognized the value of retaining the language and forms of a Western legal system and sided with the legal realists. Western-style legal structures (based on the German and French models) were considered efficient methods of furthering the dominance of the state and the CPSU, as well as a means of impressing Western intellectuals with ersatz liberality. Accordingly the new constitution of 1936 had a more formal structure than its two predecessors. It-like Western-style constitutions-combined regularized legal forms and a long list of (mostly fictional) political rights. Stalin preferred to deal with the enemies of his regime through separate legislation and, whenever expedient, bypassed the law codes with "extralegal" procedures.
After Stalin's death the Soviet constitution was amended, yet his legacy of masking totalitarianism with false constitutionality remained. In 1957 the Soviet constitution was again changed, and in 1961 a new law code, the U.S.S.R. Fundamentals of Civil Legislation, appeared, defining and regulating legal relationships such as tortious conduct, contractual obligations, insurance, credit, foreign transactions and treaties, and based generally on Western legal principles.3 Contracts were generally permitted, legal capacity and civil rights were no longer based upon class definition, corporate-type entities gained legal rights and obligations similar to those of natural persons, and even testamentary freedom was guaranteed. The document, however, continued to provide the traditional escape clause: "Civil rights shall be protected by law, except as they are exercised in contradiction to their purpose in socialist society in the period of communist construction."4
Soviet criminal law and procedure in form also resembled Western models (including the right to be represented by counsel), although they contained abusive and arbitrary aspects. For example, "socially dangerous" acts were still punishable as crimes, although such acts remained undefined in law, and agencies such as the KGB continued to routinely harass and persecute dissidents with absolute disregard for legal strictures.
The apogee of the formal "legalization" process was the constitution of 1977 promulgated under Leonid Brezhnev. Twice as long as Stalin's constitution, the 1977 version is far more explicit in delineating the political and legal structure of the Soviet state. Unlike its predecessors, it details the leading role of the party in all aspects of governance. Like earlier Soviet charters, the 1977 constitution contains a long litany of essentially fictional individual rights-leading a generation of courageous Soviet dissidents to declare that their goal was simply to force the Soviet government to comply with its own constitution.
In sum, since the revolution the Soviet leaders have expended considerable energy creating the facade of a legal system similar to that in the West. Throughout the entire period the individual rights and limitations on government power contained in these constitutional provisions were illusory. The law remained a tool of the state and, since any "crime" had political implications, the rule of law gave way to unbridled arbitrariness. Similarly, despite its Western structure the entire purpose of the civil law was to harness the energies of the Soviet citizen in service to the policies of the party.
Recognizing the dire state of the economy and the deep malaise in the country, the Soviet leadership has-under Gorbachev-turned to an increasingly radical program of reform. One part of that effort to restructure the Soviet Union and to modernize its economic and political structures is a new emphasis on the rule of law and encouragement of pluralism. The February 1990 Central Committee Plenum, seen by many in the Soviet political elite as a watershed, took the historic step of recommending the amendment of Article 6 of the 1977 constitution, which guarantees the party a monopoly of power over virtually all aspects of Soviet life. The plenum also advised allowing for some form of party pluralism and adopting a strong presidency.
These government and party changes were approved by the Congress of People's Deputies this spring, and concurrence by the 28th Party Congress is likely this summer. The net result is that Lenin's establishment of a "dictatorship of the proletariat" as the Soviet mode of governance has been undermined. It should be underscored that Gorbachev's willingness to amend Article 6 and to subject the party to electoral competition amounts to nothing less than a repudiation of the major tenet of Leninism-namely, that the party, as vanguard of the proletariat, has the right to hold power irrespective of the actual wishes of the populace.
It is conceivable that Gorbachev expects that the party, once cleansed of corruption, might become a viable political force that can compete in electoral contests. If so, his hope is unlikely to be realized. Just as he has in the past underestimated the extent of ethnic animosity in the Soviet Union, Gorbachev may be failing to grasp the degree of unpopularity of the CPSU.
During my visit to the Soviet Union I was struck by the strident criticism of the party. Significantly, many of these criticisms came from high-ranking party functionaries. In urban areas the party is blamed for food shortages, and in many instances the Soviet populace has literally thrown out corrupt local politicians, either through direct public pressure or in the recent March local elections. Outside of the Russian Republic the party's position is even less tenable-it is viewed not only as responsible for corruption and incompetent economic administration, but also as an occupying colonial force. It is possible that the reforms recommended by the February plenum may indeed lead to the "withering away" of the party.
It should be stressed, however, that electoral difficulties faced by the party do not guarantee that a genuine multiparty system will coalesce in the Soviet Union. The Communist Party still has an organizational structure and financial resources that could tilt the playing field in any election-at least to the extent of preventing the emergence of any major new political organization at the national level. Indeed, in the immediate future, the most likely scenario is that the Communist Party itself may fracture. It appears that many disgruntled Soviet communists prefer this route-a sentiment well expressed in a statement attributed to one party leader, Sergei B. Stankevich: "We are not going to walk away from the party with empty hands and bare bottoms."5
The last time something akin to legal opposition existed within the Communist Party was during the period 1919-22, when this role was played by the Mensheviks. Thereafter, any factions within the party were outlawed and all party affairs were conducted pursuant to the rule of "democratic centralism and monolithic unity." It is quite likely that, spurred by the decisions of the February 1990 Central Committee Plenum, real "intraparty democracy" may emerge, and it is conceivable that Gorbachev will permit a much greater decentralization of the CPSU, whereby local and regional organizations would enjoy greater autonomy. This approach could help the party cast itself as the champion of local interests.
However, when all is said and done, the likely "withering away" of the party offers a number of advantages to Gorbachev. It weakens the ability of the entrenched party bureaucracy to obstruct Gorbachev's reforms. Even more significantly, Gorbachev is trying to decouple his own future from the political future of the party. If he is successful and if the party continues to fail in electoral contests and does, in fact, "wither away" and crumble, Gorbachev would remain at the center of power, through his control of the presidency and influence in the Soviet Union's new legislature. This strategy is not, however, without risks. Eastern Europe has seen many communist reformers swept from power in the rush to multi-party systems. As the father of perestroika, Gorbachev might be spared the fate of the others, but the future course of the Soviet Union's own revolution-and Gorbachev's role in it-is unclear.
The new 2,250-member Congress of People's Deputies met for its maiden session last spring. Its bicameral, 542-member, permanent working core, termed the Supreme Soviet, began last September to consider a number of new legislative proposals. This in itself is a marked reform. In the past, laws were drafted by experts from government ministries or other bodies, such as the Soviet Academy of Sciences. These laws were reworked by other government bureaucrats and were eventually rubber-stamped by the Supreme Soviet, which met for about three days twice a year.
The Supreme Soviet has now been reorganized to act much more like a legitimate legislature, dividing itself into 14 parliamentary committees of about forty members each, which review various proposed bills and draft final versions for consideration by the entire body. There are also competing versions of a small number of proposals and bills, which marks a remarkable departure from past practice. In fact the volume of reform legislation is so great and the attendant confusion so widespread, I was informed during my discussions in Moscow, that many of these laws need to be continuously amended, superseded or repealed.
The Supreme Soviet is currently considering about twenty new laws that, taken together, will amount to a wholesale revision of the country's legal codes. In fact during my fall trip to the Soviet Union I had the privilege of observing extensive debate in the Supreme Soviet on reform measures. Most notable among these are laws concerning private property, leasing of land, "socialist enterprises" (public businesses), cooperatives (private businesses) and taxation. Also included would be laws that establish the right of Soviet citizens to seek redress against their government, party officials and even the secret police. The Supreme Soviet is also considering a Western-style "criminal procedure" bill, in addition to new laws permitting liberalized freedom of speech, the press and emigration. Astonishingly, an oversight committee to monitor such institutions as the military and the KGB has been formed, although it is heavily dominated by members of the Soviet defense-industrial complex.
The introduction of party pluralism in the Soviet Union could create challenges to the operation of the government if the Communist Party once again performs poorly in parliamentary elections. In theory, it would be possible for the Supreme Soviet to pass a law over the objections of both the government and the Communist Party. Further, the entire Congress of People's Deputies has the right to veto any legislation passed by the Supreme Soviet. Of course, given the absence of any organized national political parties in the Soviet Union other than the Communist Party, both the congress and the Supreme Soviet are unlikely to gain a working opposition majority. The future membership is more likely to be divided among a great number of diverse local and regional organizations as well as various factions of the Communist Party. This, combined with what is so far an absence of workable parliamentary procedures, is likely to perpetuate the current state of legislative gridlock.
Nevertheless the establishment of an apparently legitimate legislature raises an issue never before faced in Russia-the separation of powers. At present, the executive (including both the government Council of Ministers and the party Politburo) has no formal authority over the Supreme Soviet. When, cajoled by Gorbachev, the Congress of People's Deputies narrowly approved the creation of a strong unitary executive, the constitutional change far exceeded the American paradigm in that the Soviet president, in addition to having nearly unfettered executive authority, also possesses considerable legislative powers. The decision not to choose the first president through direct national elections, and instead to allow him to assume his new post by vote of the Congress of People's Deputies alone, is also disturbing.
All of this amounts to an unprecedented augmentation of Gorbachev's power-not necessarily a good precedent for Soviet democracy. To be sure, local, regional and republic-level Supreme Soviets are likely to function as real legislative bodies and acquire greater power. At the national level, however, it remains to be seen to what extent legislative power, housed in an unwieldy and fractious Supreme Soviet, would be able to balance the new executive. To make the system work, the Supreme Soviet, in addition to passing new legislation, would need to alleviate its legislative gridlock and develop workable oversight and budgeting processes.
During my trip to the Soviet Union, Justice Minister Venyamin F. Yakovlev also spoke approvingly of inculcating a system of separation of powers that, in addition to an independently elected executive and legislature, would include an independent court system. This is highly important. At present the Soviet Supreme Court, which was established in 1922 as a body to "assist revolutionary justice," and which at first also played a prosecutorial role, has no real judicial review authority. Its current modest function was described by Chief Justice Yevgeny A. Smolentsev as "giving guidance to lower courts to assure uniformity." Even under the proposed changes, the Soviet Supreme Court would not possess a power of judicial review. Instead a Council of Review, made up of leading lights of academia and law, would scrutinize legislation for constitutionality.
Whether judicial review is conducted by a court or by a Council of Review, a "Madisonian dilemma" arises, whereby a nonelected body would be empowered to nullify democratically promulgated legislation. After years of absolutism one temptation inexorably facing the new judiciary or Council of Review would be to advance reforms beyond those contained in legislation. However, it is democracy and the rule of consent by the governed that legitimizes any law. Any judicial review extending or rejecting legislation based on the vision, no matter how well-meaning, of one individual or group of individuals acting as Platonic guardians could weaken the rule of law, the democratic spirit, and even the legitimacy of the new Soviet regime.
The most contentious proposal to be considered by the national legislature will probably be the response to the unrest among the non-Russian nationalities. One must remember that the Soviet constitution provides a right of secession for the union republics. As an inducement to forestall such a move a "law on republican and regional autonomy" has been drafted whereby local republics would exercise some control over their own land and resources and would be able to veto or nullify Supreme Soviet legislation that regulates their natural resources in ways they consider undesirable. Yet laws to that effect enacted by several republics have been declared unconstitutional by the central authorities in Moscow. With the ethnic turmoil in several republics and what can only be termed incipient civil war in Azerbaijan, reform of the Soviet republican federal structure has been shelved for fear of increasing tensions that might split the union asunder.
Significantly, tensions are not limited exclusively to the outlying republics. Even in the Russian Republic itself signs of fragmentation abound, with such key regions as Siberia complaining that Moscow extracts too many resources from them, providing too little in return. Meanwhile many cities throughout the U.S.S.R. have enacted ordinances that require locals to prove residency before they can purchase items in short supply.
A possible solution to the nationalities dilemma might be some sort of mechanism to defend the republics' prerogatives-"states' rights" if you will. There must be some limitations on the central government's authority to bind the local and regional governments. A judicially enforced federalism would be one safeguard against the national government or even against arbitrary republican governmental usurpation of the rights and privileges of resident minorities.
In another area, the most remarkable reforms being considered in the Soviet Union are in the category of property law. Currently, in accordance with tenets of Marxist-Leninist philosophy, Soviet law does not recognize private ownership of the "means of production." The civil codes are designed primarily to protect the property of state enterprises against all infringement, and the property of cooperatives against all except the state's. While theft of private property is punishable under the criminal code, the punishments involved are significantly lighter than those for the theft of state property.
The recent party plenum, however, called for the recognition and legalization of at least some private property. A new proposed property law will legalize various forms of private property, including "joint-venture" and "share-holding" property. "Joint-venture" property would be corporate property, and "share-holding" property is a suitably socialist euphemism for private property owned by a number of people, emphasizing that ownership is shared by many. Both state property and cooperative property would still be recognized. Significantly, on March 6 the Supreme Soviet approved a property law that, for the first time since the NEP, gives private citizens the right to own small-scale factories and protects private property against confiscation by the state.
Indeed, what really matters is that real and equal protection is expected to be accorded to all types of property. A "law of leasing" is also being considered. This would allow lease contracts to be created, and both perpetual and hereditary leases are envisaged, although the long-suffering Russian peasants are still not likely to be able to own their land in fee simple. Since land in the Soviet Union comprises a much greater percentage of national wealth than in any Western country, the decision not to privatize land ownership effectively removes a large percentage of Soviet resources from the market. Meanwhile the decision to register all cooperatives and other forms of free enterprise before they can operate is certain to ensure delays and bureaucratic gridlock.
Protection, therefore, of what Locke called the "fruits of one's labor," the sine qua non of liberty, is still subject to state control. The basis of Gorbachev's new reformed communist state is still the utopian dream of a propertyless, classless society. Protection by law of nearly all forms of private property, including the ability to assign, sell and alienate, is still not simply regulated (as in the West) but prohibited unless the law allows exceptions. Perestroika still has not changed this.
Soviet reformers have proposed several significant criminal law reforms, including expanding access to legal counsel. This proposal stresses broadening the rights of suspects and accused persons and emphasizes the development of an adversarial process-in the pretrial, as well as trial, stage. Included in this reform is the opening up of at least the trial stage to greater public access, under the theory that public supervision would ameliorate mistakes and abuses by investigators in an inquisitorial system.
Another crucial reform is contained in legislative proposals that emphasize the admission of counsel at the time of detention, or at the pretrial stage. Thus, investigators will not be able to question suspects ex parte before the arrival of counsel.
Another significant legislative reform proposal would adopt the presumption of innocence as the standard for Soviet criminal law. This concept, however, is alien to Soviet doctrine, and some public officials have strenuously resisted this effort to reform Soviet criminal law. Indeed, during my visit to the Soviet Union our delegation asked Internal Affairs Minister Vadim V. Bakatin about the need for expanded protection for the rights of suspects and prisoners in particular, and basic human rights in general. His response was that because the crime rate increased last year by at least forty percent (he was not sure about the rate since not all crimes are reported, and opined that the increase was probably closer to seventy percent), it was not yet the "right season" for criminal justice reform. He also stated that one significant problem facing law enforcement was the prevalent "romantic view," persistent in Soviet history, that no crime exists in the socialist paradise.
In addition to the above measures, reform of the judicial structure itself is on the agenda. The leadership, intent on abolishing "telephone justice," has recommended to the Supreme Soviet that party officials should be prohibited from interfering with the work of the courts on pain of expulsion. Furthermore, Justice Minister Yakovlev said during our meetings that a law would be sought setting criminal penalties for obstruction of justice and interference with the judiciary.
It is widely believed that the independence of the courts would be enhanced by giving judges life tenure. Indeed, during my visit Minister of Justice Yakovlev informed me that, in addition to being granted life tenure, judges will be given a 100-percent pay raise-an action presumably designed to remove at least some of the present incentives for judicial corruption and to raise the status and prestige of the judiciary. Other structural proposals include transforming the entire Bar and raising the status of the defense Bar. This is to be done by increasing pay and honoraria of lawyers and encouraging students to study law. It has been proposed that a national association of advocates, free from political control, be formed. Also advanced as a "structural" change is the proposal that political management of the Bar, or "colleges," be reduced, as well as granting the colleges the right to screen candidates without outside pressure.
What is the significance of the widespread changes in the Soviet society and state? It is apparent that the magnitude and the thrust of Soviet reforms are of more than academic interest to the American people. Clearly there is a connection between the content of Soviet foreign and defense policy and the nature of the relationship between Soviet society and its government. So long as Soviet foreign policy decision-making remains the exclusive province of the Politburo, even with the heightened input of foreign policy professionals and a Supreme Soviet Foreign Affairs Committee playing a limited "oversight role," the possibility always exists that the moderation of today can be replaced with a new round of expansionism and aggression tomorrow. By contrast, were the Soviet Union to become a full-fledged participatory democracy, with decision-makers at all levels ultimately accountable to the electorate, the possibility of a reversion of Soviet foreign policy to its old expansionist ways becomes considerably less probable. While democracy does not obviate all foreign policy blunders, the historical experience accumulated during this century, and especially since the end of World War II, indicates that democratic governments are more inclined toward a cooperative and pacific foreign policy than totalitarian ones.
Moreover, only the development of democratic institutions, at both the national and local levels, can possibly ameliorate political and ethnic tensions and stabilize the situation in the Soviet Union. This, of course, is a prerequisite both to much-needed Soviet economic growth and to the Soviet ability to play a positive and legitimate role in the existing international system. Likewise, a principal reason for the Soviets' interest in the rule of law is that only a body of commercial law respecting the sanctity of contract and private property will provide the predictability and stability necessary to attract foreign investment, thus bolstering their ailing economy.
To be sure, only the Soviet Union can reform itself, and the process is in its early-and very uncertain-stage. America cannot, and should not, force its ideals and system on the Soviet peoples. History and culture are important regulators of what is and is not acceptable political behavior in a given society. I do believe, however, that a new Soviet revolution is necessary-one similar to the British Glorious Revolution of 1688 and our own revolutionary period of 1776 through 1787-that is, peaceful (in the sense of avoiding a reign of terror and other accoutrements of a police state) and constitutional in the broad sense of structural change producing a more perfect government and society.
The peoples of the Soviet Union are struggling for democracy and economic freedom against one of the most oppressive tyrannies the world has ever known, the Leninist Communist Party of the Soviet Union. The ethnic nationalities today are asserting political freedom and their cultural heritage against the last vestige of colonialism in the world, the Great-Russian-dominated U.S.S.R. The Soviet republics are confronted with political choices similar to those faced by the eighteenth-century American states, which also had a multitude of conflicting economic, commercial and political interests. Because the underlying problems of the Soviet Union are at least similar to those of eighteenth-century America, Justice Minister Yakovlev was perhaps prescient last fall, several months before the recent party plenum, when he told me that the American system of separation of powers and federalism is a "far better system for the Soviet Union to copy than the parliamentary system."
Accordingly, Americans have much to share with the Soviet reformers. For instance, federalism and federation are lessons from the American experience that may be instructive as the Soviet Union undertakes reforms. Here, however, the comparison between the American experience and the Soviet one must be made with particular care. The United States is a union of fifty separate states. Both the federal government and the state governments may be said to be "sovereign" in their own spheres, as defined by the Constitution. The Soviet Union, on the other hand, is composed of distinct ethnic or national units, added over a period of centuries by conquest or forced annexation. With the decline of communism, there is no overriding uniform culture or belief that unites these "nations." Gorbachev can hold together the Soviet republics only by convincing them that it is in their interest to remain a part of the U.S.S.R. He must, in short, adopt a "new federalism" that will satisfy the national aspirations of the Soviet peoples, as well as give them co-equal status with the presently dominant Great Russians.
Furthermore, while democracy is indispensable, more than mere majoritarian rule is needed to safeguard liberty. In addition to the question of democratic license, the Soviets must address the fundamental matter of restrictions on majoritarian rule necessary to protect minority rights and safeguard personal liberty. This requires establishing some version of a separation of government powers. The purpose of divided government, whether based on the American model of separation of functional powers (executive from legislative from judicial), or on the traditional British model of "mixed government," is to limit the despotic tendencies common to any regime.
But, again, limiting government by separating government functions is not enough. An accompanying system of checks and balances is necessary to prevent one unit of government from encroaching upon the duties and responsibilities of another. I discerned from my meetings in Moscow that the Soviets simply do not comprehend how a political structure can exist with deliberate tensions built in among government branches and political factions, since in their tradition decisions are reached either through the unanimity of dictatorial fiat or by consensus motivated by utopian vision.
We should do all we can to encourage a system of checks and balances. The primary problem before the Soviet people and their leaders is to prevent the new Soviet Union from becoming a revived version of the autocratic monarchy, to foster instead true political pluralism and limited government reflected in the rule of law and respect for natural rights. It is in the interest of the United States, and indeed of the entire world, for Gorbachev to succeed in these endeavors.
1 The October 1989 visit was at the invitation of Justice Minister Venyamin F. Yakovlev, and was the first by a sitting United States attorney general. Its purpose was to discuss the meaning and importance of the rule of law. During my stay in Moscow, I had the opportunity to explore significant legal, political and even philosophical issues with several officials, including Nikolai I. Ryzhkov, prime minister of the U.S.S.R.; Anatoly I. Lukyanov, the chairman of the Supreme Soviet; Vladimir Kryuchkov, chairman of the KGB; Vadim V. Bakatin, minister of internal affairs; Aleksandr Y. Sukharev, chief prosecutor of the U.S.S.R.; and Chief Justice Yevgeny A. Smolentsev. As governor of Pennsylvania in 1979, I also had an opportunity to visit the Soviet Union and participate in discussions with leading government, legal and party officials.
2 I. V. Gsovski, Soviet Civil Law, 28 (1948).
3 "Fundamentals of Civil Legislation of the U.S.S.R. and the Union Republics," in Fundamentals of Legislation of the U.S.S.R. and the Union Republics, at 150. See also Osakwe, "An Examination of the Modern Soviet Law of Torts," 54, Tul L. Rev. 3 (1979).
5 Quoted in Bill Keller, "Upheaval in the East: The Soviet Party is Not Over," The New York Times, Feb. 8, 1990, p. 1.