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

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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