7 E. Eur. Const. Rev. 59 (1998)
Legal Transplants and Political Mutations: The Reception of Constitutional Law in Russia and the Newly Independent States ; Sharlet, Robert

handle is hein.journals/eeurcr7 and id is 335 raw text is: Local reallies and Me questionable value of foreign expertise
Legal Transplants and Political Mutations: The Reception of
Constitutional Law in Russia and the Newly Independent States
Robert Sharlet

T        he end of the Cold War set in motion one of
the most extensive transfers of legal ideas in
the modern history of law. And spearheading
this flow of ideas from West to East, from the US and
Europe to the former Soviet Union, were Western
conceptions of constitutional law.
Constitutional reformers in Russia and the other
Newly Independent States (NIS) were eager to replace
their Soviet-era constitutions with models compatible
with the rule of law. Initially, the US-constitutional
exemplar was chiefly favored, but as local constitu-
tional  draftsmen    gained   greater   experience,
continental models attracted their attention as well.
Western governments were equally keen to encourage
the transfer of rule of law ideas to the post-Soviet
countries-apparently on the assumption that the
politically, legally, and  economically   reformed
successor states would be less likely to backslide into
their authoritarian pasts, only recently escaped. Great
sums of money were made available by the West to
promote the reform agenda in the East, including legal
reforms. A veritable industry dedicated to assisting
technically the West's erstwhile adversary arose, both
in the US and Europe. In spite of this effort, however,
and for various reasons to be discussed further on, the
reception of Western constitutional ideas did not
proceed as smoothly as anticipated or hoped, by either
donors or donees. Given the prestige of Western
constitutionalism and the initial enthusiasm of the
small army of advisers assembled for the legal trans-
plant,  it  had   been    assumed-in     retrospect,
naively-that new, liberal post-Soviet constitutions
could be put in place relatively quickly and easily.

In reality, NIS constitution making turned out
differently. The entire process took roughly six years
with high attendant political and social costs in several
countries. (The drafting of the Russian Constitution
began in 1990, while Ukraine ratified its Constitution
in 1996.) Forgotten in the mutual rush to borrow and
lend were the indigenous cultural scrims and even
more-opaque barriers through or over which liberal
constitutional concepts would have to pass in order to
enter each society. Inevitably, this process of cultural
filtering slowed the transfers and produced mutations
in the Western concepts, as the political elites of the
new states modified and adapted the original ideas for
transplanting to their native soil.
The American constitutional model:
its influence and limits
In the early 1990s, after the fall of the USSR, post-
Soviet constitutional draftsmen were initially much
enamored of the American model. On mature reflec-
tion, however, this early infatuation gave way to a
more temperate interest in the historically less presti-
gious, but more adaptable, continental models.
To take Russia as an example, very early in the
drafting process its parliamentary Constitutional
Commission took an active interest not only in the
US Constitution, but in several state constitutions as
well, including   the  constitutions of Illinois,
Oklahoma, and New Hampshire. As the conflict
between Russia's president and parliament began to
heat up over the constitutional design of the polity,
Yeltsin aides came forward with a draft constitution
closer to his position in the debate. Since the first

FALL 1998

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