Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

【Research Article】

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal
Transformation in Asia
Andrei N. Medushevskiy *Abstract
Global constitutionalism become the main theoretical ground, form and practical
instrument for the international legal integration after the end of the Cold War in the era of the“triumphant liberalism”. Based on classic Western liberal values and principles of human rights
it emphasized the role of international constitutional law and courts as a principally new formof supranational regulation trespassing the national borders, identities and state sovereignty. Up
to now this trend took its practical implementation mainly in the Western part of the world(European Union) and partly associated regions (Latin America), but demonstrated growing
difficulties in Eurasia (Post-Soviet region), and Asia.
The Asian region, in spite of great difference between more than 50 respective countries,
demonstrated the growing common trend to legal fragmentation and state-oriented constitutional
agenda. That resulted in visible asymmetry of the Asian constitutional development: the absenceof the common Asian legal identity; priority of hierarchy in international system over state
equality principle; the rebirth of Westphalian concept of sovereignty instead of post-national
concept, the search for separate national legal identities. This variety of constitutional forms
deeply rooted in colonial and post-colonial past of different Asian regions, cultures, nationalist
beliefs, and current pragmatic interests.
In systematic and very clear form this new trend and its theoretical background represented
in the Russian constitutional reform of 2020. The Russian Constitution of 1993 as adopted after
the collapse of USSR and Communism in 1991, become one of the most liberal and pro-Western*

Andrey Medushevskiy, Dr., is a professor at the Higher School of Economics in Moscow, where he teaches Legal Philosophy,
Comparative Constitutional Law and Political Science. He is Chairman of the Scientific Advisory Board of the reputed Russianjournal “Comparative Constitutional Law” and the leading expert of the International Institute of Law and Public Policy, theauthor of 20 books and more than 500 articles in Russian and international learned journals.

3

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

legal acts of that period, but later appeared to be transform by different revisions towards
conservative constitutional authoritarianism. This evolution of liberal constitutionalism in theform of legal retraditionalization, legitimized as anti-globalist restoration of national sovereignty,
formed the crucial challenge for both Eurasian and Asian constitutional development – thenecessity to make decisive choice between global constitutionalism and the protective
constitutionalism as two opposite forms of adaptation to legal globalization in process.

Contents
I.

Introduction

II.

Integration and fragmentation as two opposing trends in international
constitutionalism

III.

Global East: Asian constitutionalism in search of identity

IV.

The unstable place of Eurasian Post-Soviet constitutionalism in international powergame

V.

Russian 2020 Constitutional reform in comparative perspective

VI.

Russian statehood in the process of current transformation

VII.

Conclusion: The importance of the new Russian constitutional concept for Eurasia legal
constellation

I.

Introduction
On the current stage of global development, many conventional ideas adopted earlier as auniversal values, common standards or even as irreversible embodiment of the “common sense”
demonstrate a strange paradox of eroding cognitive sustainability. They are still at presence inacademic discourse and political agenda of international community and governments but lost a greatpart of their explicative force and practical importance for the real policy-makers in different regionsof the world. This fate more or less characterizes the whole block of classic liberal legacy formed in
the period of great revolutions of XVII-XIX-th centuries in the so called Western hemisphere of theworld to become the theoretical ground of the liberal democracy in XX-th century, especially after theend of the Cold war. Ideology, theory and language of constitutionalism were formulate in aframework of this holistic vision of its role, substance and main building blocks – democracy, rule oflaw, human rights. The essence of global legal development according this outlook consists in the4

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

adoption of these premised common rules, institutes or practices of international constitutionalism inorder to create universal constitutional establishment. Establishment, presumably more faire andeffective 1 .
In this idealistic vision, all attempts to rethink this paradigm in critical and more pragmatic terms
which taking place in many regions of the world means the “twilight of constitutionalism” – skepticism
about the very idea of transnational constitutional guarantees in their authentic vision, the movement
to illiberal democracy, populism and authoritarianism 2 . The clash between global constitutionalism
and global authoritarianism in this logic is the crucial aspect of this complex dilemma. Leading
authoritarian countries—including China, Iran, Russia, Saudi Arabia, and Venezuela—havedeveloped new tools and strategies to contain the spread of democracy and challenge the liberalinternational political order. At the same time, the advanced democracies have retreated, failing to
respond to the threat posed by the authoritarians 3 . This fundamentalist logic, as binding
constitutionalism with liberal democracy, is perhaps irreproachable from theoretical point of viewproviding instruments for the clear and precise distinction between “normal” and “abnormal” formsof constitutionalism, healthy and pathological legal behavior of political regimes, and providing
criteria for finding deviances on that road. Meanwhile, theoretical integrity of any abstract concept
does not automatically imply the integrity of explanation, which presume more diversified view on
different forms, historic periods and regional specificity of constitutional experience in its connection
with social reality.
From this point of view, the whole system of established criteria, based on ideology rather thanon pragmatic vision, could become ineffective: exception could become rule, deviance tends tobecomes norm, and norm appeared to be deviance or a kind of abstract ideal model, which stay in a
sharp divorce with political or legal reality 4 . For understanding Asian constitutionalism the simple
value-oriented approach is not productive, because the result of investigation is in some way premisedby the research hypothesis itself with quite predictable outcome – by definition this type of
constitutionalism differ from Western ideal model, demonstrate more variability, deviances andinconsistences regarding the adoption of the rule of law standards. There is nothing new in thisconclusion. More interesting is the question about cognitive motivation and internal logic of decisionmaking process in the adoption of different constitutional strategies and forms of their implementation
Lang A.F., Wiener A. (eds.). Handbook on Global Constitutionalism. Cambridge: Edward Elgar Publishing, 2017.
Dobner P., Louglin M. (eds.). The Twilight of Constitutionalism? Oxford: Oxford University Press, 2010.
3
Diamond L., et al. Authoritarianism Goes Global: The Challenge of Democracy. Baltimore: John Hopkins University Press, 2016.
P. 5-7.
4
Brozek B., Stanek J. (eds.). Russian Legal Realism. Springer, 2018.
1
2

5

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

in the real world of international and domestic politics. Why this logic of constitutional engineering 5
is so mobile, and whether cognitive motives are really matter for projecting structures, incentives andoutcomes of constitutional process of different global regions, countries? From this comparative pointof view we will try to understand the role of the 2020 Russian constitutional reform for the Eurasian,
Asian and global constitutional development.

II.

Integration and fragmentation as two opposing trends in international constitutionalism
Global constitutionalism apparently become the main theoretical ground, form and practical

instrument for the international legal integration developed after the end of the Cold War in the era of
the “triumphant liberalism”. Based on classic Western liberal values and principles of human rights it
emphasized the role of international constitutional law and courts as a principally new form ofsupranational regulation trespassing the national borders, identities and state sovereignty 6 . The
practical implementation this trend has found in the creation of the European Union – newcommunitarian project, realized after the collapse of the Soviet Union – another integration project
pretended to be the universal matrix of the global integration based on Marxist philosophy and Soviet
theory of law.
Integration project of EU predisposes the gradual adoption of the common European legal
standards by all member-states through the constitutionalization process fulfilling in order to create
supra-national unity, capable to transform the nascent confederation into federation – United States ofEurope, and in ideal to become a model for the world-vide constitutional settlement 7 . The
constitutionalisation means the commitment of all involved states to adopt the convergence process ofinternational and national constitutional law in order to create new form of the European andinternational legal regulation – global, transnational or international constitutional law (European law
is the main example) 8 . The structure of these regulation is based on three main levels - global
constitutionalism; regional constitutionalism; bilateral framework. The third concept is a moderate
formula for the description of constitutionalism in a proper sense as synthesis of international anddomestic norms in one legal framework. Main prospects of this development are associated with theSartori G. Comparative Constitutional Engineering. An Inquiry into Structures, Incentives and Outcomes. London: Palgrave, 2002.
Medushevskiy A. Global Constitutionalism and Legal Fragmentation// Studia Iuridica Lublinensia, 2021. Vol. 30 (4). P. 393-440;
Medushevskiy A. Global Constitutionalism: Integration or Fragmentation of International Relations during an Economic Recession//
Social Sciences, 2021. Vol. 52, N. 2. P. 47-66.
7
Klabbers J., Peters A., Ulfstein G. (eds.). The Constitututionalisation of International Law. Oxford: Oxford University Press, 2009.
8
Koskenniemi M. From Apology to Utopia: The Structure of the Legal. Cambridge: Cambridge University Press, 2006.
5
6

6

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

concept of multilateral constitutionalism, which grounded on three fundamental characteristics legitimacy, authority, validity 9 . They forms as well the basis of the global governance regime as asystem of generally adopted norms of international, constitutional and administrative law.
Up to now this trend took its practical implementation mainly in the Western part of the world(European Union) and partly in associated regions or countries (Latin America), but demonstrated
growing difficulties

in Eurasia (Post-Soviet region), and Asia. The crucial obstacle to its

implementation seems to be not fundamental values (hypothetically be common to all participants of
the international dialog) but interests – economic, security, and political priorities of different world
regions and the so called great powers like USA, Russia, China, India as well as involved regional
state-unions. In this context the potential of integration process in international constitutionalism
seems to be not great as well as the mediating role of the United Nations Organization, it’s Security
Council, and the International Court of Justice often incapable to resolve aggravating polarization of
the world political actors. Actually, the UN Charter, which has been interpret by some authors as aprototype of the world constitution 1 0 , does not play this role.
Fragmentation in international affairs – is another competing trend in global legal development.
In reality, the actual stage of global development demonstrates the prevalence of fragmentation overintegration, the predominance of national interests over international values, and the growing intentionof developing countries to reconsider the dominant system of international law. The theoretic
background of anti-globalist constitutional agenda was create by various intellectual currents -Criticalschool, New Approach to International Law (NAIL) or the Third World Approach to International
Law (TWAIL) 1 1 . All of them represent the current trend of legal globalization as theoreticallycontradictory, morally inacceptable and even dangerous as practical tool. This Critical approach tointernational law involves rethinking of its theory and methodology 1 2 , the rejection of its traditional
reading, reconsideration of the changing place of global regions, correction of historical disproportions,and the search for its target-oriented transformation. That reevaluation should have place in theinterests of global regions, which historically were exclude from international process in the period of

Bhandari S. Global Constitutionalism and the Path of International Law. Leiden: Brill-Nijhoff, 2016.
Fassbender B. The United Nations Charter as the Constitution of the International Community. Leiden. Nijhoff, 2009.
11
См.: Mutua M. What is TWAIL? // American Society International Law Proceedings, 2000. Vol. 94. P. 31-40; Gathi J. TWAIL:
A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography// Trade, Law and Development, 2011. Vol. 3.
N. 1. P. 26-48.
12
Okafor O.C. Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?// International
Community Law Review, 2010. Vol. 10. P. 371-378.
9

10

7

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

Europe-centrism, imperialism and colonialism 1 3 . All that provide a very emotional reaction in the
deliberations about unfair character of international law 1 4 as a system of “false universalism” 1 5 .
This international system seems to critics unfair and interpreted as created by Western countries inorder to keep their dominance over non-European parts of the world, including Asia region.

III.

Global East: Asian constitutionalism in search of identity
The idea of Global East and protection of its special interests in competition with the Global

North or global West is, perhaps, the main item in the rethinking of the mainstream program ofinternational constitutionalism. In this context, the place of Asian region is very important. Is it partof the global constitutionalism or is it an alternative concept, based on principally different identity,
values and traditions as well as on another vision of international law and its future?
The actual debate about integrity of Asian constitutionalism is not complete. The legal conceptof critical school contraposes Global West and Global East. The Global East (or Global South) could
be interpreted in more broad sense (include all non-Western countries) and in more narrow sense(include typical geographical regions) 1 6 . In this narrower sense, the Asian region means the original“Asian approach to international law” or “Asian vision” of constitutionalisation, oriented on thelimitation of Western domination in constitutional debates 1 7 . In this context, different concepts ofAsian constitutionalism includes various definitions of global constitution, its Asiatic implications andcategorical apparatus for the practical delimitation of the border between Asian and Westernconstitutionalism and prospects for their future relations 1 8 .
There are two contrasting positions in the current debate about the Asian legal identity. One groupof experts thinks that common Asian approach to the international law really exists or eventually

Anghie A. Imperialism, Sovereignty and Making of International Law. Cambridge: Cambridge University Press, 2004; Pahuja S.
Decolonising International Law: Development, Economic Growth and the Politics of Universality. Cambridge: Cambridge University
Press, 2011.
14
Ramina L. Framing the Concept of TWAIL: Third World Approach to International Law// Revista Justica do Direito, 2018. 32 (1).
P. 5-26.
15
Xavier S. 2015. False Universalism of Global Governance Theories: Global Constitutionalism, Global Administrative Law,
International
Criminal
Institutions
andthe
GlobalSouth.
PhD
Dissertations.
20.
2015.
Accessed:
http://digitalcommons.osgoode.yorku.ca/phd/20
16
Maldonado D.B. (ed.). Constitutionalism of the Global South. Cambridge: Cambridge University Press. 2013.
17
Aydin C. The Politics of Anti-Westernism in Asia: Visions of World Order in Pan-Islamic and Pan-Asian Thought. New-York:
Columbia University Press, 2007.
18
Suami T., Kumm M., Peters A., and Vanoverbeke D. (eds.). Global Constitutionalism from European and East Asian Perspectives.
Cambridge: Cambridge University Press, 2018.
13

8

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

possible 1 9 . The Asian region, in spite of great difference between more than 50 respective countries,
demonstrated the growing trend to legal unification in terms of common vision of the global
challengers. The ground of this position includes seven arguments - concepts diffusion, uniform
identity, collective interests, uniform norms and facts, common process, uniform outcomes 2 0 .
Another group of experts does not agree with this approach, because Asian legal systems are very
different 2 1 . They emphasize another trend –- fragmentation, and state-oriented constitutional agenda
in Asia. That resulted in the visible asymmetry of the Asian constitutional development: the absenceof the common Asian legal identity; priority of hierarchy in international system over state equality
principle; the rebirth of Westphalian concept of sovereignty in its authentic meaning instead of postnational concept, the search for separate national legal identities 2 2 .
Typology of Asian constitutional models is possible on the ground of different criteria. The mostimportant of them for our research is their potential place in a system of global constitutionalism underformation.

Classification of models of Asian constitutional settlements reveals variety of theiradaptation strategies to global constitutionalism. Schematically, five main types could be represent:
1) Assimilation. In Japan – constitutionalism is by-national product, the hybrid of American andlocal traditional culture, a unique system of absolute pacifism (art. 9) 2 3 . This concept is interpret bysome authors even as a constructive program for the civil society of the whole North-Eastern Asia
region (the so-called Northeast Asia Regional Action Agenda (Tokyo Agenda), declared in 2005 as acommon platform for the group of countries as a strategy of global constitution promotion 2 4 .
2) Gradual transformation of the national tradition. India is perhaps the best example of country
with a huge variety of legal traditions historically based on different confessional values, which werereevaluate according common Anglo-Saxon (British) constitutional standards, but with careful regard
on stability, peaceful development and modernization purposes 2 5 .
3) Successful catch-up modernization. After many constitutional experiments, South Korea,
according many observers, fulfilled this option by creation of constitutional democracy and

Jin-Hyun Paik, Seok-Woo Lee, Kevin Y.L. Tan (eds.). Asian Approaches to International Law and the Legacy of Colonialism.
Routledge, 2012.
20
Bhandari S. Global Constitutionalism and the Path of International Law. Leiden: Brill-Nijhoff, 2016.
21
Chimni B.S. Is There an Asian Approach to International Law: Questions, Thesis and Reflections// Asian Yearbook of International
Law. 2008. Vol. 14. P. 249-265.
22
Belov M. (ed.). Global Constitutionalism and Its Challenges to Westphalian Constitutional Law. London: Hart, 2018.
23
Higuchi Y. (ed.). Five Decades of Constitutionalism in Japanese Society. Tokyo: University of Tokyo Press, 2001.
24
Kimijima A. Global Constitutionalism and Japan’s Constitutional Pacifism, 2011. P. 43-60. Available at:
http://www.ritsumei.ac.jp/ir/isaru/assets/file/journal/23-3_03_Kimijima.pdf
25
The Constitution of India. With Selective Comments by P. M. Bakshi. New Delhi: Universal Law Publishing Co., 2003.
19

9

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

independent constitutional justice 2 6 .
4) Uneven constitutional modernization 2 7 . The adoption of the universal legal standards at
Philippines and Indonesia in the era of triumphant liberalism of 1990-s confronted later with thephenomenon of divided society 2 8 , or the growing trend to conservative restoration in the form ofnational special way 2 9 and constitutional populism 3 0 .
5) Full rejection of Western constitutionalism in favor of the legal self-determination. China is
an open adversary of the global constitutionalism, the last protagonist of Westphalian system in its
classic form and supporter of sovereignty and authoritarian government. Liberal constitutionalism inthat concept seems to be a kind of Trojan horse introduced in the country by its Western enemies.
China produced alternative vision of constitutionalism, based on original Asian values – Confucianand Marxist principles instead of human rights; priority of economic and social rights instead of civil
and political rights; education (or informed participation) instead of democratic elections andmeritocracy instead of democracy. Chinese approach to global constitutionalism often interpreted byWestern scholars as “revisionist”, “deviant” and “exceptional” because it stay in a sharp contradiction
with the set of rules and moral priorities, which are normally associated with the global
constitutionalism in formation 3 1 .
This variety of constitutional forms deeply rooted in colonial and post-colonial past of different
Asian regions, cultures, nationalist beliefs, and current pragmatic interests. The degree of pro-Westerntransformation depends on the role of USA and Britain traditions of dominance in different countriesof that region if not come from much deeper heritage of Western colonialism – British, Dutch, Spanish,
and Portugal, Russian or Soviet empires. In this context, typology should involve a group ofundemocratic countries, which reject not only global constitutionalism, but as well constitutionalism
as such, realizing different concepts of undemocratic development in forms of theocracy (Iran),
totalitarianism (North Korea), ethno-confessional domination (Myanmar) or staying in the area of
imitative or pretended constitutionalism (Thailand), demonstrating the special place of constitutions

Kang-nyeong Kim. Korean Politics and Diplomacy in the Global Society. Shinji Press, 2011.
Piccone Т. Five Rising Democracies and the Fate of the International Liberal Order. New-York: Brookings Institution Press, 2016.
28
Choudhry S. (ed.). Constitutional Design for Divided Societies: Integration or Accomodation? New York: Oxford University Press,
2008.
29
See, for example,: Reynolds C.J. (ed.) National Identity and its Defenders: Thailand Today. Bangkok: Silkworm books, 2002.
30
Daly T.G. Democratic Decay in ‘Keystone’ Democracies: The Real Threat to Global Constitutionalism? International Journal ofConstitutional Law (2017). Available at: http://www.iconnectblog.com/2017/05/democratic-decay-in-keystone-democracies-thereal-threat-to-global-constitutionalism-i-connect-column/
31
Carrai M.A. Global Constitutionalism and the Challenge of China’s Exeptionalism// Global Constitutionalism without Global
Democracy? Ed. by C. Coradetti and G.Sartor. Working Paper LAW 2016/21. Badia Fiesolana: European University Institute. 2016.
P. 95-113.
26
27

10

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

in authoritarian regimes 3 2 .
This multifarious development opens the way to quite different role of “Asian values” in the
global constitutional agenda transformation. Asia as a global region could play different roles in theformation of global constitutionalism – to be recipient or designer of global constitutional settlement.

IV.

The unstable place of Eurasian Post-Soviet constitutionalism in international power-game
The so-called Post-Soviet constitutional transformation demonstrates very clearly the conflict
between two opposite impulses – integration of the regional countries in a framework of Western typeof global constitutionalism, and fragmentation – the search of their own separate ways for stability
and preservation of the ruling elites in power 3 3 . The constitutional development of Post-Soviet area
in a narrower sense (former republics of the USSR) has some particular characteristics in comparative
perspective:
1) Uneven character of Post-Soviet constitutionalism in all countries of the region, which
proclaimed their independence only after the collapse of the USSR and had no constitutional traditionsin their history. The situation, perhaps, comparable with new post-colonial states in other parts of theworld standing in front of similar challengers to their statehood, sovereignty and national identity.
2) The great variability of the constitutional models under consideration in the formative period,
which illustrates the “privilege of retardation” phenomenon. That means: theoretical possibility toadopt different foreign models, to transplant them voluntary from more advanced/conservative
countries or, rather, to dispose historical possibility for the experiment with them without any criticalregard to their historical origin, based on different legal cultures.
3) Unpredictable and controversial selection of constitutional priorities –from their partial
corrections to adoption of models, which earlier were already reject as inadmissible. The result is theeclectic hybridization of constitutional blocks taken from different constitutional settlements which indifferent countries obtaining their own way of life.
4) The multiplicity of constitutional amendments to each adopted constitution, taken often
without great respect to the formal procedures of amending process which demonstrates the absenceof deeply rooted constitutional culture of respective countries.

32
33

Ginsburg T., Simpser A. (eds.). Constitutions in Authoritarian Regimes. Cambridge: Cambridge University Press, 2014.
Fruhstorfer A. Hein M. (eds.). Constitutional Politics in Central and Eastern Europe. Berlin: Springer, 2016.

11

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

5) The absence of the stable constitutional design (system of government) – the permanent searchof the balance of power’s process motivated more by political than legal logic and combined with thedeficits of the neutral constitutional justice. A part of this instability is a precarious role ofconstitutional justice, which is fare from sustainable position and real independence in most countriesof the Post-soviet region.
6) The unresolved question of finality for the crucial constitutional and judicial solutions: after
the adoption of every new constitution or amendment the debates normally has not coming to end
providing new bulk of projects and proposals. This “constitutional game” looks like a form of politicalself-identification for political parties or groups in power rather than a coherent and substantive legal
discourse.
7)The acute necessity for all countries of Post-Soviet area to coordinate their constitutional
experiments with the position of global actors in the region –Russia, USA, European Union, China as
well as with the position of their neighboring countries like Turkey, Iran and Afghanistan.
The separation of ways in the regional constitutional development makes it possible to identify
three main strategies:
First. The so-called “color revolutions” - the direct and sometimes law-braking search ofparliamentary alternative to the Russian model, which has been established itself after the collapse of
USSR in Russia and many other countries of the region (color revolutions in Moldavia, Georgia,
Kirgizia, Ukraine before 2014, Armenia in 2016);
Second. The gradual “step by step” constitutional reform strategy undertaken by the authoritarian
governments for their self-preservation in power in the form of transition from more presidential tothe mixed (presidential-parliamentary) system of government (Kazakhstan, Uzbekistan after 2014
including recent constitutional amendments and public debates on their implementation in 20222023);
Third. The establishment of the rigid mechanical legal stability by avoiding substantive
constitutional reforms or by the presence of quasi-reforms fulfilled by the use of cosmetic changers(Azerbaijan, Belorussia, Turkmenistan, Uzbekistan before 2014), and otherwise, bloody coups andrevolutions without any regard to the established constitutional guarantees and procedures (Kirgizia2010 and 2020-2021, Ukraine 2014, the failed coup attempt in Kazakhstan in January 2022 withsubsequent constitutional reform process) 3 4 .
Medushevskiy A.N, Tendentsii postsovetskich politicheskich rejimov v svete noveisheiy volny konstitucionnych popravok [PostSoviet Political Regimes in the Light of Current Amendments Wave] // Social Sciences and Contemporary World [Obschestvennye
nauki I sovremennost’]. 2018, № 2. P.49-65.
34

12

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

Reciprocal influence of two factors - the constitutional design and the political regime, - is the
subject of vivid debates in legal as well as in political science literature of all Post-Soviet region 3 5 .
The change in the system of government (for example, the move from presidential to moreparliamentary one) could be a proof of the real regime liberalization, but otherwise it could symbolize
the deterioration of democracy if used only for protection of the established elites or clans in power.
It could be as well both in one: constitutional reforms, undertaken in support of parliamentary system,
could be initiate by the ruling elite and president in order to reproduce his power as prime minister
resulting in a deeper political transformation (as it was in Georgia and later in Armenia). This
interconnection of the legal and political parameters of the reform agenda reveals the importantcommon characteristics of the unstable constitutional modernization process in the region underconsideration and the role of Russian constitutional model as the main positive or negative orientation
for all Post-Soviet constitution-makers.

V.

Russian 2020 Constitutional reform in comparative perspective
Anti-globalist political turn become both the result and vehicle of fragmentation process in theinternational constitutionalism. In systematic and very clear form this new trend and its theoreticalbackground were represent in the Russian constitutional reform of 2020 3 6 . The Russian Constitutionof 1993 as adopted after the collapse of USSR and Communism in 1991, become one of the mostliberal and pro-Western legal acts of that period, but later appeared to be transform by different
revisions towards conservative legal populism 3 7 and constitutional authoritarianism. Psychologicalfactors for that reportedly grounded in historical traditions of the Russian statehood 3 8 , Soviet mental
See more about that debate in our publications: 1) Political Regimes of Central Asia: Constitutional Reforms in a Framework ofAuthoritarian Modernization// The Soviet Legacy and Nation-Building in Central Asia. APRC Proceedings Series, Seoul, 2011. N. 4.
P. 5-28; 2) Konstitutsionnaia reforma v Turkmenistane: perechod k demokratii ili modernizacia avtoritarisma? [Constitutional Reformin Turkmenistan: Transition to Democracy or Modernization of Authoritarianism?]//Comparative Constitutional Review[Sravnitel’noe Konstitutsionnoe obozrenie], 2008, № 6 (67). С. 5-16; 3) Revolutsia v Kirgizii: itogi I perspectivy konstitutsionnych
preobrazovaniy [Revolution in Kirgizia: results and prospects of Constitutional Transformation // Comparative Constitutional Review[Sravnitel’noe Konstitutsionnoe obozrenie], 2011, № 1 (80). С.13-33; 4) Konstitutsionnyi kontrol’ I politicheskiy vybor v obshestvach
perechodnogo tipa: k problem legitimnosti sudebnych resheniy na postsovetskom prostranstve [Constitutional Control and Political
Choice in Transition Societies: Towards Legitimacy of Judicial Decisions in Post-soviet Region] //Zanger. Law Messenger of the
Kazach Republic [Зангер. Vestnik prava respubliki Kazachstan], 2011, № 1 (114). С. 11-17; 5) Constitutional Transformations in
Post-Soviet Region: Results of Previous Studies// Armenian Journal of Political Sciences, 2017, 1 (16). P. 81-112.
36
Konstitutsia Rossiyskoiy Federatsii s Poslednimi Izmeneniami na 2022 god [Constitution of the Russian Federation with Recent
Changes held on 2022]. Moscow: Ecsmo, 2022.
37
Crawford C. et al. (ed.). Populism as a Common Challenge. Berlin-Moscow: ROSSPEN. 2017.
38
Bodin P.-A., Hedlund S., Namli E. (eds.). Power and Legitimacy – Challenges from Russia. London and New York: Routledge,
2012.
35

13

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

stereotypes 3 9 , original combination of formal and informal practices 4 0 , but motivated as well bydifficulties and mistakes of transformative period 4 1 .
Being designed as a temporal constitutional settlement for the transitional period, Russian
Constitution produced the original synthesis of liberal legal guarantees (based on the international
human rights treatises), and rather authoritarian construction of the presidential power interpreted as
the main force and the guardian of irreversibility of the democratization process. Formally the adopted
form of government was similar to the presidential-parliamentary model of the French Fifth Republic
but avoided some important checks and balances of this system. In reality, this construction paved theway to the system of plebiscitary authoritarianism with overrepresented presidential power andpersonified rule. This “authoritarian component” of the Russian constitutional and political system
was the main problem for all Post-Soviet political debates, and kept staying at place as the main theme
for all current projects of the constitutional modernization.
Key innovations produced by Russian 2020 constitutional amendments continued thisauthoritarian backslide but represented it in a new form, more systematic, structured and cohesive 4 2 .
In sum, they reflected three broad areas of regulation actualized in the context ofglobalization/fragmentation competition.
The first one is the new approach to international law. The priority of the ratified international
treatises over national legislation, as fixed in Constitution, stay at its place but according to the new
redaction all decisions of international courts made on the basis of these treatises could be overruledby the national Constitutional Court if only they contradict Russian Constitution or public order of thecountry. The result is a new interpretation of human rights – gradual movement from the absoluteguarantee of the natural or fundamental rights priority towards their more conditional interpretation
formed in the context of obligations of the person to the state if not to political regime. The long storyof debates between ECHR and the Russian Constitutional Court over many politically sensitive cases
Plotnikov N. (Hrsg.). Gerechtigkeit in Russland. Sprachen, Konzepte, Praktiken. München: Wilhelm Fink, 2019. S. 423-460
Medushevskiy A.N. 2019. Russian Constitutional Development: Formal and Informal Practices// BRICS Law Journal. 2019. Vol.
VI. Issue 3. Special Issue: Russian Constitutionalism: 25th and 100th Anniversaries of the 1993 and 1918 Constitutions. P. 100-127.
41
Osnovy Konstitutsionnogo prava Rossii: Dvadtsat’ Let Razvitia [Fundamentals of the Russian Constitutional Law: Two Decadesof Development]. Moscow: ILPP, 2013. Res Publica: Russkiy respublikanism ot srednevekov’ia do konca XX veka [Res Publica: The
Russian Republicanism from the Middle Ages to XX century]. Moscow: NLO, 2021.
42
Analysis of 2020 Russian constitutional amendments see in our publications: 1) Konstitutsionnaia reforma 2020 s poziciy teorii
legitimnosti [Constitutional Reform of 2020 in a framework of Legitimacy Theory]// Theoretic and Applied Jurisprudence[Teoreticheskaia I prikladnaia jurisprudentsia], 2020. № 4. С. 15-30; 2) Konstitutsionnye popravki v Rossii 2020 kak politicheskiy
project pereustroystva gosudarstva [Constitutional Amendments in Russia as a Political project of the State Transformation] // Public
Politics [Publichnaia politika], 2020. Т.4. №1. С. 43-66; 3) Perechod Rossii k konstitucionnoy dictature: razmyshleniya o znzchenii
reformy 2020 goda [The Move of Russia to Constitutional Dictatorship: Reflections on Russian 2020 Constitutional Reform]//
Comparative Constitutional Review [Sravnitel’noe konstitucionnoe obozrenie], 2020. Т. 136. № 3. С. 33-50.
39
40

14

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

now came to its logical end than Russia definitely withdraw from European Council and jurisdictionof ECHR.
The second area of constitutional changes concerns with ideological priorities in domestic
regulation. This attitude to international law in terms of countries’ legal protection from negative
global trends transformed the role of the national legal tradition reconsidered by Reform as a groundfor the national legal order. Constitutional reform agenda fixed new cognitive orientations in terms oftime, space and the sense of life – common history, language, shared religious and patriotic feelings,
traditional gender priorities, traditional family values, respect to older generations and others toprovide the sense of common national identity. New social contract is a part of this ideologicalconstruction. It has been ground on solidarism instead of liberal market economy – loyal citizenshipbased on social guaranties provided by the state in terms of minimal wages, indexation of salaries andpensions on the inflation level, etc. What is important – the reintroduction of some Soviet-kind
stereotypes as for example, the guiding role of the state in social policy standards implementation, therole of the universal education standards, and protection of the “working people”. Identity, hence, isconstruct on basis of convergence of the legal and extra-legal criteria incorporated to the text of therevised constitutional norms. Pluralism as a constitutional principle was not remove. Still,conservatism has been officially proclaim as quasi-official doctrine of the state.
The third area of regulation reflects the concept of the strong statehood in international anddomestic policy. The main preoccupation of reformers become the protection of the sovereignty – asnational and state sovereignty. In the context of Reform, that means the reevaluation of three important
items:
1) Reestablishment of the legal continuity of the Russian Federation with the USSR and cultural(political) continuity with the Russian Empire, broken by the Revolution of 1917 and the collapse of
the state in 1991;
2) Declaration of non-changeable character of the national borders and prohibition of any
discussions on that matter (it is possible to debate only the right to integrate, but not the right to leave
the Russian state for any territories);3)”Nationalization of elites” – the system of restrictions for the highest officials in terms of
double citizenship, possibility to have accounts in foreign banks, etc. Plus, the declared protection of
Russian citizens all over the world against all kinds of discrimination or pressure of any kind.

Thisimportant in the context of official declaration that the whole zone of Post-Soviet region is an area of
the Russian political responsibility.

15

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

VI.

Russian statehood in the process of current transformation
The legal theory of proclaimed constitutional amendments is the unitary concept of the federal

state and its main institutes. This concept is represent by the “unity of the system of public power”
principle, introduced to revised text of the Constitution. For contemporary Russian legal regulation,that means constitutional transformation in five main areas:
1) New interpretation of federalism in order to make it more centralized and prevent any potential
conflicts between three levels of regulation – federal, subjects of federation and local self-government
units by their incorporation in one vertical of the state public power.
2) Reconsideration of bicameralism in order to transform the upper chamber of parliament(Council of Federation) in a least dangerous institute at the whole architecture of coordinated state.
This target achieved by transformed principles of formation of this institute making it more loyal topresidential power.
3) Reestablishment of the local self-government as a part of the unified power vertical in aframework of “unity of the system of public power”.
4) Reinterpretation of the separation of power’s principle in the triangle – State Duma,
Government, President, in terms of their functional efficiency, centralization and coordination byfederal administration. In the ideal, they should be treat as united system, separated only by theirfunctional role in a state machinery, headed and coordinated by presidential power.
5) Dubious role of the Constitutional justice in treatment of constitutionality of international
obligations, federal legislation (including acts of subjects of federation) and even treatment of draft
laws on constitutional amendments. From the one hand, Constitutional Court received the new
prerogative of preliminary control of laws and become the important institute in final conflict
resolution between Duma and President on legislative matters. From the other hand, many of these
new competences could be realize by Court only on the initiative of presidential power, which as wellreceived new prerogatives in formation of Constitutional Court, nomination and denomination ofjudges which made the Court more dependable on behalf of the President 4 3 .
The special area of constitutional transformation, perhaps the most important one, reflects thechanging place of the presidential power itself. 2020-es Russian Constitutional reform demonstrates
the further evolution of the system of government - from the mixed system to quasi-presidential system.
The system of government originally adopted in the Russian constitution, has been construct on

Konstitutsionnyi Sud Rossii: Osmyslenie Opyta [Russia’s Constitutional Court: Rethinking its Experience]. Moscow: Tsentr
Konstitutsionnych Issledovaniy, 2022.

43

16

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

the model of Fifth French republic (1958) but consequently eliminated some important checks andbalances of this form. It gradually transformed its nature through the past 30 years to become the quite
original system, combining elements of mixed and presidential systems. Here, the president has huge
legislative prerogatives, control over the government, but can dissolve the Parliament as well. All theselines of institutional coordination are concentrate in the hands of the all-powerful head of the stateplaying in reality the role of latent monarch 4 4 . Personified character of that power has been emphasizeby amendments in the transition of power question tactical solution. The mandate of the President wasformally limited by two cadences, but the actual President (V. Putin) could stay in power two morecadences a cause of that constitutional reform fact itself – theoretically, until 2036.
The new meta-constitutional status of the Russian President is the most characteristic feature ofthis transformation. In spite of important prerogatives of the Russian president, which were alreadyfixe in the original text of 1993 Constitution treating him as head of the state, guarantor of theConstitution and human rights, his real power grown substantially by consequent modification of
constitutional legislation, judicial interpretation and political practice of two passed decades. Besides
that, in 2020 the President received new and very important symbolic and real prerogative - asprotector of civil peace and agreement, the guardian of countries’ sovereignty, independence andintegrity, the promoter of functional cohesion of the whole system of public power (art. 80). This
formula makes him the crucial element of meta-constitutional regulation in the country and outside it– in representation and promotion of ideological and symbolic image of the state in international affairs.

VII. Conclusion: The importance of the new Russian constitutional concept for Eurasia legal
constellation
The unstable perspectives of global constitutionalism in its classic Western or liberal
understanding opens the way for the transnational experimentation process – elaboration of newmodels of constitutionalism based on principally different pictures of the past and future, and the placeof global regions in the international, regional or local governance. This experimentation process
reveals quite different concepts of globalization and fragmentation, implying symmetry or asymmetry
in international relations, legal identity and forms of adaptation to new reality of legal globalization
Medushevskiy A. Vozrojdenie Imperii? Rossiyskaia konstitutsionnaia reforma 2020 na fone globalnych izmeneniy [The Revivalof the Empire? The Russian Constitutional Reform against the Background of Global Change] // Messenger of Europe [Vestnik
Evropy], 2020. Т. 53/54. С. 82-97. Available at: http://www.vestnik-evropy.ru/issues/the-revival-of-the-empire-russianconstitutional-reform-2020-against-the-background-of-global-change.html
44

17

Nagoya University Asian Law Bulletin Vol.8 (February 2023)

regarding reconsideration or modification of established constitutional forms and standards.
The Asian region, in spite of some common cognitive attitudes, intentions and reactions on globalchanges, demonstrated the great difference between more than 50 respective countries, and thegrowing trend to legal fragmentation and state-oriented constitutional agenda. That resulted in visible
asymmetry of the Asian constitutional development: the absence of the common Asian legal identity;priority of hierarchy in international system over the respect to presumed state equality principle; therebirth of Westphalian concept of sovereignty instead of post-national or transnational concept, thesearch for separate national legal identities. This variety of constitutional forms deeply rooted incolonial and post-colonial past of different Asian sub-regions, cultures, nationalist beliefs, and current
pragmatic interests. The crucial problem of this new development consists in the possibility to findsome reliable combination between high standards of international constitutionalism and stable
governance in order to maintain cultural values and traditions, regional and national interests,
including the enforcement of modernization and pragmatic realpolitik agenda.
In this comparative context, the Russian 2020 constitutional transformation demonstrates animportant turning point in the legal globalization debate. This transformation has been realize in theform of constitutional reform, which formally did not break with fundamental liberal values (fixed inunchangeable chapters 1, 2 and 9) promoting the legal continuity of the country since 1993. From theother side, the whole bulk of amendments (to chapters 3-8) demonstrated a juridical coup fromsubstantive as well as procedural point of view. More than 50 articles were change in direct or indirectway, the whole logic of constitutional expectations was redefine, as well as amending procedures,
which has been substantially revised during the process of reform itself. The old constitutional form
has been fill out by new normative substance, reflecting changed legal and political priorities in a very
consistent representation.
That constitutional transformation does not mean the simple rejection of transnational
constitutionalism but the clear proposal of its alternative version, based on the adoption of the world’s
fragmentation – inevitable asymmetry of global regions guided by most powerful countries. That formof international constitutionalism concentrates not on values rather on interests of global actors inprevision of the forthcoming reconfiguration of global spheres of influences. The new legitimacy
formula of the Russian political regime combines three guiding principles. Limited functional adoptionof international law in the strict accordance with national (regional) sovereignty protection; restorationof highly centralized system of public power in neo-imperial ideology style; and the over represented
institute of imperial president, which becomes the meta-constitutional symbol and driving force of thepolitical regime in domestic and international relations.
18

Global Constitutionalism under Stress:
Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia

The essence of the whole system could be describe in terms of protective constitutionalism,
constitutional authoritarianism (constitutional dictatorship), or authoritarian legalism. Authoritarian
nature of this political system obviously makes it incompatible with established international liberal
democracy standards but does not exclude its pragmatic efficiency in forthcoming international power
game. Thus, the Russian reform formed the crucial challenge for both Eurasian and Asian
constitutional development – the necessity to make decisive choice between offensive and defensive
legal strategies - global liberal constitutionalism and the global protective constitutionalism - as two
opposite forms of adaptation to the legal globalization in process.

19