Article by Christopher Osakwe
The Soviet conception of equal justice under law projects a particular mode of social engineering. It embodies a distinct political ideology as well as a secular theology. Its purpose is not merely to secure de jure equality for Soviet citizens. It is intended instead as an affirmative catalyst for the future de facto equality of all persons who are subject to the jurisdiction of the Soviet Union. It bears a dialectical relationship to the majoritarian concerns that constitute the cornerstone of the Soviet rejection of judicial review of legislation.
If the institution of equal protection in Soviet law were analogized to a drama it would have its own dramatis personae. In this drama one thing is certain—the courts are not a part of the governing coalition entrusted with the task of determining the policy underlying the Soviet ideal of equal protection. The principal actors in any Soviet equal protection scenario are the Communist Party of the Soviet Union (C.P.S.U.) (especially its central organs), the Supreme Soviet of the U.S.S.R. (especially its Presidium), the Council of Ministers of the U.S.S.R., and the prokuratura of the U.S.S.R. In the management of the Soviet equal protection regime, the courts are brought in only at the operational level. Their sole role is to administer and to enforce the laws as preordained by the lawgivers—the legislature and the executive branch of government—both of which act in tandem and always under the benevolent supervision of the C.P.S.U. The role of the procuracy is to serve as a vital conduit between the engineers of the equal protection machine and its operators (the courts).
The provisions of the U.S.S.R. Constitution that address equal protection should be perceived not as establishing a legal dogma, but instead as providing a legal platform for political action. Their meanings and contents vary from one era to another depending on the shifting conditions in Soviet political life. These provisions can be likened to a sacred text, and for their exposition one must defer to the ‘divine’ interpretations that emanate from the C.P.S.U. As it is envisioned under the Soviet socialist system, equal protection of law is not a goal in itself; it is only a means to an end. In the final analysis, equality under the law is intended to secure and to guarantee the autonomy of the individual within the Soviet democratic society. Until it is possible to proclaim the de facto equality of all individuals in society, it is necessary to resort to law to secure their de jure equality. To the Soviet political mind, an ideal society is one in which equal protection of law will neither be socially necessary nor politically justified. Because all persons will be equally situated in this communistic society, there will be no need for law to secure their equality. Under communism, law and the attendant notion of equal protection of law will become antiquated and take a place in the museum alongside of the bronze axe. The historical mission of Soviet law in general and of Soviet constitutional law in particular is to engineer the advent of such a communistic society.
The Soviet equal protection scheme distinguishes among various types of equality. The first distinction in Soviet equal protection law is between the different subjects of equality, that is, individuals and groups. The second distinction is between procedural and substantive equality. The former grants all individual subjects of equal protection law the same access to justice under the law and the same procedural rights, such as the right to seek protection of their legal interests through administrative or judicial action. Procedural equal protection entails the equal treatment of all similarly situated persons in matters of civil, criminal, and administrative procedure. Substantive equal protection, on the other hand, is a theory which confers the same substantive rights upon all equally situated persons. Depending on the contents of the particular substantive right to be conferred, the Soviet equal protection regime further distinguishes between social, economic, and cultural equality on the one hand and civil and political equality on the other hand. The former permits all persons to participate equally in the cultural, economic, and social life of the society; the latter confers upon all subjects of equal protection the right to participate equally in the political processes within the Soviet Union.
It is important to note that no discernible hierarchy exists among these respective categories of equality. Accordingly, one cannot say that individual equality is either superior or inferior to group equality. In fact, in some situations the equality of individuals can only be realized within the context of a group. Similarly, procedural equality is not more or less important than substantive equality. Any one of the substantive equal protection rights is as important as another. Equal treatment of all similarly situated persons in the allocation of housing is not less important, for example, than the equal access of all persons to education or to health treatment, or the equality of all citizens within the electoral process.
There is no branch of modern Soviet law that is more interwoven with Soviet political culture and historical circumstances than constitutional law. Unless the respective institutions of this law are examined against their proper historical, cultural, and political backdrop, they may be misunderstood. To minimize the chances of any misapprehension of the theories and realities of modern constitutional law, I propose at the outset of this study to establish the conceptual framework for the substantive discussions that will follow.
The first point that must be borne in mind throughout the analysis which follows is that the modern Soviet constitutional system and the Soviet conception of equal protection manifest a confluence of secular and religious legal traditions. The Soviet constitution is neither purely secular nor purely religious. Its purpose is not merely to regulate the relationship between the state and the individual or between private persons inter se, but also, and perhaps most importantly, to engineer the transformation of the present imperfect Soviet homo juridicus into an ideal new man, a perfect homo Sovieticus. What this means is that the Soviet state constitution and its provision on the equality of citizens are to be perceived both as textual sources of aspiration as well as instruments of social engineering. Thus, the Soviet state constitution cannot be interpreted merely as a legal process in its pure form. Rather, it is a politico-legal process. The Soviet state constitution represents a composite picture that consists of three images which exist congruently with one another: it is Western in the manner in which it conceptualizes law, it is socialist in its philosophy and substance, but its spirit is intrinsically Soviet.
Second, it is particularly important to bear in mind that the Soviet state constitution is a social compact among three parties—the state, the ruling communist party, and the citizens. As such, it performs three functions in the Soviet society: it tames the powers of the state (especially in its dealings with the citizens), it gives the people a sense of security and trust in the future, and it serves as a road map for the C.P.S.U. The underlying political purpose of the Soviet constitution is to guide the society in its slow but steady movement towards communism. To this end, the constitution does not merely seek to consolidate the present social, economic, and political status quo. More importantly, the constitution attempts to forge new relationships; it serves as a catalyst for change. Nowhere is this revolutionary vision of the Soviet constitution more readily apparent than in its provisions relating to the equality of citizens.
Another important feature of the modern Soviet constitutional system is the element of dualism that is built into it. Under this arrangement, two constitutional command structures exist side by side within the same system. These two structures are represented by party law on the one hand and by state law on the other. The state constitution provides the basis for the system of state law whereas the Program of the C.P.S.U. is the basic norm of the system of party law. Within this legal structure, however, the two constitutional arrangements are not coequals. The party Program is hierarchically superior to the state constitution. The specific provisions of the state constitution are intended only as refinements of the majestic generalities in the party Program. Accordingly, a provision of the state constitution is rarely inconsistent with a principle of the party Program. Such an inconsistency, however, may occur if a change that was introduced into the party constitution took a long time to find its way into the state constitution. Thus, until the latter is amended to reflect the changes in the superior party law, a gap can exist between the provisions of these laws. In this situation, the general rule is that the principle of party law will prevail over that of the state constitution. As a result, even when the equal protection clauses in the state constitution remain static, their true meanings will depend on the current perceptions of equality existing under the prevailing party law.
Any inquiry into the theoretical foundations of modern Soviet constitutional law must begin with a glimpse into the writings of Karl Marx, Friedrich Engels, and Vladimir Lenin. This is so because the discernible principles of Soviet constitutional law are merely a crystallization of the relevant tenets of Marxist-Leninist philosophy. Soviet constitutional theory is not and cannot be viewed as an apolitical or classless theory. In addition, Soviet constitutional doctrine is not based on neutral principles of justice because it overtly seeks to promote class justice. The task of legislating the general principles of Marxism-Leninism into particular norms of Soviet constitutional law is assigned to the Supreme Soviet of the U.S.S.R., which must discharge this responsibility under the political guidance of the C.P.S.U. Unless a particular principle of law has found expression in one form of legislation or another, it cannot be regarded as a part of the operational law of the land. In this sense, one can describe modern Soviet constitutional law as positive law with a touch of class.
Even though the intellectual origins of modern Soviet constitutional law are deeply rooted in the doctrinal postulates of Marxism-Leninism, this does not mean that Soviet law is in all instances motivated by ideology. It is true that modern Soviet constitutional law is permeated by ideology and that the ideology of this law is grounded upon a systematized collectivism. But, it is equally true that modern Soviet constitutional law is also motivated in part by pragmatism. This means that Soviet constitutional theory might not always be internally consistent. In the area of equal protection of law, for example, what the Soviet legislature does cannot be reduced to any set of mathematical formulas. The law may provide that all citizens are entitled to the same quantum of due process of law, but the law then modulates this general principle by maintaining that given the circumstances in each case certain individuals may be granted more or less due process protection than is ordinarily available in criminal proceedings.
Finally, in order to create the proper backdrop against which the modern Soviet law of equal protection must be understood, it is necessary to explore the relationship between the legislature and the courts within the Soviet constitutional system. The philosophy of modern Soviet constitutional law is premised on three closely related and perhaps overlapping fictions. The first is that the Soviet political system, as envisioned by the framers of the 1977 U.S.S.R. Constitution, entails democratic centralism. This means that the system is democratic yet manifests streaks of authoritarianism. In the words of article 3 of the U.S.S.R. Constitution, ‘democratic centralism combines central leadership with local initiative and creative activity and with the responsibility of each state body and official for the work entrusted to them.’ In the context of equal protection analysis, the courts are free to present to the legislature any suggestions they might have concerning classification of individuals or groups. They can do this by exercising the right of legislative initiative granted the U.S.S.R. Supreme Court by article 113 of the U.S.S.R. Constitution. But, once parliament enacts legislation that addresses individual equality, the courts are not free to subvert the lawmakers' policy by resorting to devious manipulations of that law.
Second, in a democratic system, laws must be fashioned pursuant to an established process rather than imposed from outside the political arena. It is not within the province of the courts to make law. Lawmaking by its very nature involves political choices. The court is not a political organ, and it should not behave like one. Making political choices with respect to equal protection rests exclusively with the political departments of government. The third premise is that the only democratic method of interpreting the constitution is to examine its text in conformity with the original intention of its framers. Taken together these three premises prescribe a severely limited role for Soviet courts in interpreting the constitution. In fact, judicial review ultimately is viewed as countermajoritarian and an undesirable obstacle to the democratic process.
In the Soviet view, it is not the judiciary's function to keep the political system in tune with the times. The constitution gave this responsibility to the properly elected branches of government. Moreover, while the limits placed on the state and federal governments were designed to ensure that the government would not transgress the rights established in the constitution, these limits should be viewed as procedural constraints rather than substantive directives. Although the constitution provides for the separation of functions, it does not obligate the legislative and executive departments of government to take actions to solve problems. Thus, the judiciary's role is simply to ensure that the other branches of government do not go beyond the explicit limits of the authority vested in them by the constitution; the judiciary is not to judge the substance of the other departments' policies. In short, the proper task of a Soviet court is to apply preordained law to the particular facts of the dispute brought before it. The parties in these disputes ordinarily are private citizens. But in some instances, one of the parties could be the state or any one of its instrumentalities. In either situation, the court may not question the intent or purpose of the law nor in any way impugn the integrity of the legislature.
The laws that are propounded by the legislature take on the form of moral goodness because they have been enacted into positive law. Although the people or segments of the people might have strong, deeply felt values, these values remain merely personal until they become law, either through legislation or via constitutional amendments. The unfavored minority has no authority to impose its value judgments on the nation, even if the minority happens to be the Supreme Court. Accordingly, Soviet judicial philosophy embodies a moral relativism that ultimately rests on majority rule in order to define society's values. The theory absolves the judiciary from any responsibility for keeping popular opinion in check. It does not consider the possibility that the majority might be wrong; instead, it denies the existence of natural law or rights. In essence, this moral relativism leads to the rejection of the Supreme Court's role as the guardian of individual rights against an unjust or errant majority. This theory also advocates the wholesale abdication by the Court of its power to review acts promulgated by the other two branches of the Soviet government. The belief that in any constitutional adjudication the courts must adhere to the text of the Constitution and rely on the original intention of its framers can be described as immanent positivism.
Although Soviet law does not recognize the authority of courts, whether regular or specialized, to review the constitutionality of acts of the political departments of government, other institutional methods of securing constitutional justice in the Soviet Union nonetheless exist. The integrity of the constitution within the Soviet system is secured through three methods: supreme supervision by the C.P.S.U. over the activities of all governmental and nongovernmental organizations, general supervision by the procuracy over the operations of all governmental (with the notable exception of the legislature) and non-governmental agencies, and self-restraint by the legislature in the course of exercising its legislative authority. Within the Soviet legal system, the C.P.S.U. performs three very important functions: It acts as the political guardian and moral tutor of the Soviet lawmakers as well as the keeper of the Soviet legal conscience. As the political guardian of Soviet law, the party's role is to guide Soviet state officials and agencies in making political choices. In the same vein, the party perceives its role as the moral tutor of Soviet law insofar as it helps to formulate the moral basis of the rules of Soviet law. This is especially manifested in areas of modern Soviet constitutional law, such as affirmative action programs designed to remedy historical imbalances among different members of the society and the protection of minorities other than racial groups. As the keeper of the Soviet legal conscience, the party's role is to grant individual dispensation from the rigors of state law to deserving persons. This is done through the retention of the prerogative sphere within Soviet judicial procedure.
Inasmuch as case law is not regarded as a source of law under the Soviet legal system, no purpose is served by examining decided cases in an attempt to capture the dynamics of the modern Soviet law of equal protection. Instead, the two most useful sources to assess in this respect are statutory law and legal theory, or doctrine. The next two sections of this article are devoted respectively to the Soviet constitutional theory of equal protection and the equal protection clause in the U.S.S.R. Constitution of 1977.
About the Author
Christopher Osakwe. Eason-Weinmann Professor of Comparative Law and Director, Eason-Weinmann Center for Comparative Law, Tulane University School of Law; LL.B. 1966, LL.M. 1967, Ph.D. 1970, Moscow State University (Lomonosov); J.S.D. 1974, University of Illinois.
Citation
59 Tul. L. Rev. 974 (1985)