1. The Soviet government is to be distinguished from the Communist Party of the Soviet Union and the central legislative institutions. The government contains the executive agencies of state and is comparable in formal terms to its namesake in a parliamentary system such as Britain.Google Scholar

2. Weber, M., “Bureaucracy,” in From Max Weber: Essays in Sociology 196–244 (New York, 1946); Cooper, P., Public Law and Public Administration 111–38 (2d ed. Englewood Cliffs, N.J., 1989). Differentiation of roles and jurisdictions in the American and Soviet bureaucracies is the subject of a penetrating analysis by Fairbanks, Charles H. Jr., “Jurisdictional Conflict and Coordination in Soviet and American Bureaucracy,” 21 Studies in Comparative Communism, no. 2 at 153–74 (1988).Google Scholar

3. See, e.g., Rutman, L., “O nekotorykh probelakh v khoziaistvennom zakonodatel'stve,” Sovetskoe gosudarstvo i pravo, no. 7, at 61 (1989); Guliev, V., Kazimirchuk, V., Kartashkin, V., Livshits, R., Malein, N., Savitskii, V., Tumanov, V., & Khalfina, R., “O verkhovenstve zakona i stikhii podzakonnykh aktov,” Izvestiia, 20 Feb. 1989, at 2; and Zinoviev, A., Kommunizm kak real'nost' 182 (Paris, 1981). I am indebted to Peter Rutland for bringing the last source to my attention.Google Scholar

4. “Shag k narodnovlastiiu,” Pravda, 26 May 1989, at 4.Google Scholar

5. Sobchak, A., “Doroga k pravu,” Pravda, 5 Dec. 1989, at 3.Google Scholar

6. Reformists view governmental ministries as part of a “bloc” of institutions standing in the path of reform. From this perspective, “the party-administrative apparatus derives strength not from its ideas but from its institutional linkages.” Linked together to resist reform are the Communist Party, the Young Communist League, the Central Council of Trade Unions, and the branch ministries. “Konferentsiia bloka ‘Demokraticheskaia Rossiia’,” Argumenty i fakty, no. 14, at 4 (1990).Google Scholar

7. Livshits, R., “Pravo i zakon v sotsialisticheskom pravovom gosudarstve,” Sovetskoe gosudarstvo i parvo, no. 3, at 20 (1989).Google Scholar

8. An exception is Frances Foster-Simons, “Towards a More Perfect Union? The ‘Restructuring’ of Soviet Legislation,” 25 Stanford J. Int'l L, no. 2, 356–59 (1989).Google Scholar

9. For a concise and lucid introduction to the structure of Soviet norms, see Vanneman Peter, “The Hierarchy of Laws in the Communist Party-State System in the Soviet Union,” 8 Int'l Lawyer 285–302 (1974). In positioning norms in the Soviet legal pyramid, I am following Vanneman's classification. id at 290.Google Scholar

10. In December 1988, amendments to the USSR Constitution led to the creation of a new legislative institution-the Congress of People's Deputies of the USSR. This “superparliament,” composed of 2,250 members, is charged with selecting the members of the USSR Supreme Soviet, amending the Constitution, and resolving issues of Soviet federalism. The USSR Supreme Soviet remains the primary lawmaking body in the Soviet Union.Google Scholar

11. The actual classifications of central governmental norms are, of course, far more complex. The USSR Council of Ministers issues both decrees (postanovleniia) and regulations (rasporiazheniia), though the latter often lack the general character of a legal rule. For their part, the central ministries and state committees issue instructions under a myriad of titles. Unfortunately, the titles are not reliable indicators of the instructions' scope or significance. Among the more widely used designations of departmental instructions are prikaz, ukazanie, instruktsiia, tsirkuliar, and direktivnoe pis'mo.Google Scholar

12. Letter to the Editor, Ogonek, no. 26, at 5 (1988).Google Scholar

13. Loeber, D., “Legal Rules ‘For Internal Use Only’,” 19 Int'l & Comp. L Q., Jan. 1970, at 76. It should be noted that legal and political reforms in 1988 and 1989 transformed Soviet legislative institutions into more vigorous lawmaking bodies. In its first six months of legislative activity in 1989, the reconstituted USSR Supreme Soviet enacted 24 laws (zakony) and fundamentals of legislation (osnovy zakonodatel'stva), though several of the laws merely confirmed edicts passed by the Presidium of the Supreme Soviet while the Supreme Soviet itself was out of session. See Vedomosti S'ezda narodnykh deputatov SSR i Verkhovnogo soveta SSSR, nos. 1–29 (14 June-27 Dec., 1989).Google Scholar

14. Polenina, S. & Sil'chenko, N., Nauchnye osnov y tipologii normativno-pravovykh aktov v SSSR 93 (Moscow, 1987) (“Polenina & Sil'chenko Nauchnye osnovy tipologii”).Google Scholar

15. A recent article in the leading Soviet academic journal on law and politics observed that if Stalin brought a shift in power from the legislature [and the Communist Party] to the government, the period of stagnation associated with Brezhnev brought a shift in power from the government to its subordinate ministries. Manokhin, V., “Pravovoe gosudarstvo i problema upravleniia po usmotreniiu,” Sovetskoe gosudarstvo i pravo, no. 1, at 26 (1990).Google Scholar

16. These departmental instructions may conflict with each other and with the higher-level decrees of the Council of Ministers. Thus, although the term Soviet “government” (pravitel'stvo) is used here to embrace the Council of Ministers and individual ministries and state committees beneath it, it should not suggest a legal or political monolith.Google Scholar

17. Polenina & Sil'chenko, Nauchnye osnovy tipobgii 93, estimate the number at from 12,000 to 15,000. The 10,000 estimate comes from “Opiat' ob instruktsiiakh,” lzvestiia, 23 Sept. 1987, at 3. According to a group of scholars at the Institute of State and Law, “each year the Supreme Soviet itself adopts 3–5 laws and confirms 15–20 normative edicts. However, in the same period more than a thousand government decrees and tens of thousands of acts of ministries and departments are enacted. And this is only at the all-union level.”“O verkhovenstve zakona i stikhii podzakonnykh aktov,” lzvestiia, 20 Feb. 1989, at 2.Google Scholar

18. “Opiat' ob instruktsiiakh,” Izvestiia, 23 Sept. 1987, at 3.Google Scholar

19. See Wilhelm, J., “The Soviet Union Has an Administered, not a Planned, Economy,” 37 Soviet Studies, no. 1, 118–30 (1985).CrossRefGoogle Scholar

20. “O zadachakh organov prokuratury pri pcdgotovki narodnogo khoziaistva k rabote v zimnykh usloviiakh,” Ukazanie no. 82/7, 23 okt. 1987 (Moscow: Prokuratura SSSR, 1987). This is one of a number of internal directives of the USSR Procuracy read in the Law Faculty of Moscow State University in November and December 1988.Google Scholar

21. The words are those of Guliev, V., A scholar at the Institute of State and Law. “Pravovoe gosudarstvo: kakim emu byt?” Pravda, 2 Aug. 1988, at 2.Google Scholar

22. Belyayeva, N., “Rule Out Loopholes in the Law,” Moscow News, no. 21, at 12 (1989).Google Scholar

23. Enterprises are simply inundated with legal norms. “Each individual enterprise strains under many tens of thousands of departmental normative acts.” The common term for this is “swaddling,” an overly benign interpretation in the minds of some legal scholars. Alekseev, S., Pravo i perestroika: vaprosy, razdum'ia, prognozy 52 (Moscow, 1987).Google Scholar

24. Rationalization of the legal order would erode the party's role as protector of its loyalists and coordinator of bureaucratic activity. Should the market emerge as a regulator of economic behavior, law may well emerge as a regulator of bureaucratic behavior. If that occurs, the Communist Party would be left, at most, with only the commanding heights of the political system, a position Gorbachev seems to have embraced with calls for transforming the party into a purely political institution.Google Scholar

25. “For internal use” is not equivalent to a secret classification that would be used for materials of vital importance for national security. In general, in disseminating material the Soviet bureaucracy operates on a “need-to-know” basis. This principle insures that information flows are vertical within bureaucracies rather than horizontal across bureaucracies. If information is power, the Soviet political and legal system, like many modern organizations, is designed to concentrate power at the center.Google Scholar

26. When the Procuracy recognizes that a norm is not consistent with higher law or policy, it may issue a protest to the enacting department, or to the department's immediate superior. But the Procuracy does not have enforcement authority. Thus, the recipient of a Procuracy protest need not act upon it. In July 1987, an amendment to the Law on the Procuracy granted limited enforcement powers to procurators. But the new right to issue orders to desist (predpsaniia) does not appear to have been widely used to challenge government rulemaking. “O vnesenii izmenenii i dopolnenii v Zakone SSSR'O Prokurature SSSR,” Vedomosti Verkhovnogo Soveta SSSR, st. 349 (1987).Google Scholar

27. A Soviet legal journalist asked, “how, without constitutional review, [can one] halt the avalanche of departmental ‘lawmaking’ that uses thousands of substatutory acts to erode the basic provisions of the Constitution?” I. Gamaiunov, “Nakanune: chto dolzhna nam dat' pravovaia reforma,” Literaturnaia gazeta, 2 Nov. 1988, at 12.Google Scholar

28. “Pravovoe gosudarstvo: kakim emu byt?” Pravda, 2 Aug. 1988, at 2.Google Scholar

29. And, of course, a system of administrative courts or other agencies to insure the integrity of the legal hierarchy.Google Scholar

30. “One holds a bureaucrat accountable not for a ‘violation’ of the Constitution, but a violation of an instruction.” E. Luk'ianova, Zakon kak istochnik sovetskogo gosudarstvennogo prava 33 (Moscow, 1988); Luk'ianova, E., “Verkhovenstvo zakona,”lzvestiia, 23 Nov. 1988, at 2; Alekseev, S., Pravo i perestroika: voprosy, razdum'ia, prognozy 52 (Moscow, 1987). To illustrate the power of the “locally produced” norm, Olympiad Ioffe quotes the old adage, “an order of a chief is a law for a subordinate” (“The Dominant Role of Administrative Law in the Soviet Legal System,” 2 Conn. J. Int'l L 78 (1986)).Google Scholar

31. “Rech' deputata A. A. Kuleshova,”Izvestiia, 29 May 1988, at 4. As noted earlier, serious inconsistencies exist among government norms themselves: vertically, between those issued by the Council of Ministers and by individual ministries, and horizontally, between those issued by the various ministries. Recently, for example, Gosbank SSSR issued a letter on the establishment of credit and accounting practice for cooperatives that contravened a USSR Council of Ministers statute on claim review. “… s N. Zarubinym,”Sovetskaia iustitsiia, no. 1, at 7 (1989). There is still a further level of normative tension, between central and republican laws and instructions and the decisions of local Soviets. In the first months of 1990, the Odessa regional Soviet issued a decision that gave local police the power to search citizens for drugs without cause. Although this decision is in clear violation of the code of criminal procedure of the Ukrainian republic, the local procurator has failed to protest the decision of the regional Soviet, apparently out of deference to local political authorities. Supruniuk, G., “Pravo na obysk,” Argumenty i fakty, no. 19 at 3 (1990).Google Scholar

32. Lobashev, A.V., “Poniatie i priznaki zakonnosti normativnykh aktov ministerstv i vedomstv,” Pravovedenie, no. 3, at 27 (1987).Google Scholar

33. “Pravovoe gosudarstvo: kakim emu byt'?,” Pravda, 2 Aug. 1988, at 2.Google Scholar

34. “O verkhovenstve zakona i stikhii podzakonnykh aktov,” Izvestiia, 20 Feb. 1989, at 2; Iu. Feofanov, “S'ezd i pravovoe gosudarstvo,” Izvestiia, 13 June 1989, at 1.Google Scholar

35. Interview with Petrukhin, I. L., Senior Scholar, Institute of State and Law, Moscow, 14 Nov. 1988. This problem was put delicately by a Soviet legal scholar writing at the beginning of 1987: “in practice legal regulation reveals numerous instances when the implementation of normative orders, formally corresponding to law, results in a substantive restriction of the rights of citizens and organizations.” Lobashev, A. V., “Poniatie i priznaki zakonnosti normativnykh aktov ministerstv i vedomstv,” Pravovedenie, no. 3, at 27 (1987).Google Scholar

36. In a major article in Kommunist last spring, Viktor Chebrikov, until recently the head of the Central Committee's Commission on Legal Questions, attacked the obstructionist role of substatutory acts in economic reform. “The implementation of the laws [zakony],” he complained, “depended on the desire, or lack thereof, of this or that minister. This couldn't help but lead to subjectivism, to departmental diktat, and to other no less negative consequences.” Chebrikov, V., “Pravovaia politika—aktivnoe zveno perestroiki,” Kommunist, no. 8, 9–10 (1989).Google Scholar

37. Letter to the Editor, Ogonek, no. 26, at 5 (1988). On the potential for ministerial obstruction of economic reform generally, see Iu. Kudriavtsev, “Na putiakh pravovoi reformy,”Kommunist, no. 14, at 77–86 (1985).Google Scholar

38. See Tedstrom, J., “New Draft Law on Income Taxes,” Report on the USSR, 16 June 1989, at 8–9.Google Scholar

39. “O regulirovanii otdel'nykh vidov deiatel'nosti kooperativov v sootvetstvii s Zakonom SSSR'O kooperatsii v SSSR,” Postanovlenie Soveta Ministrov ot 29 dekabria 1988 g., Izvestiia, 31 Dec. 1988, at 2; “O verkhovenstve zakona i stikhii podzakonnykh aktov,” Iavestiia, 20 Feb. 1989, at 2; J. Tedstrom, “New Regulations for Soviet Cooperatives,” Report on the USSR, 3 Feb. 1989, at 31–32. A decree issued by the USSR Council of Ministers, such as the one on cooperatives, may then be seized on by republican or local governmental officials who wish to restrict the activities of cooperatives in their areas. In the Kirgiz republic, for example, the republican council of ministers issued a decree in October 1989 banning legal cooperatives, which were competing against the existing network of legal aid offices for the delivery of legal services to the population. B. Kiiashko, “Pochemu zakryto ‘Pravo’,” Sovetskaia Kirgiziia, 23 March 1990, at 2. Legal cooperatives continue to function in most other areas of the country.Google Scholar

40. “… s S. Emel'ianovym,” Sovetskais iustitsiia, no. 1, at 6 (1989). Contrary to art. 9 of the Law on the State Enterprise, Gosagroprom RSFSR issued an order (ukazanie) to collective and state farms prohibiting them from concluding contracts for labor services from industrial enterprises. “… s N. Zarubinym,”Sovetskaia iustitsiia, no. 1, at 7 (1989).Google Scholar

41. “Pravovw gosudarstvo: kakim emu byt'?” Pravda, 2 Aug. 1988, at 2.Google Scholar

42. Letter to the Editor, Ogonek, no. 26, at 5 (1988).Google Scholar

43. Materialy Vsesoiuznoi konferentsii KPSS 62, 146 (Moscow, 1988). There are doubts, of course, about Gorbachev's own commitments to this principle, which has radical implications for economic, political, and social behavior. But certainly progress toward its implementation will not be made as long as specific instructions of the government, not broad legal principles contained in all-union laws, inform social relations. The vision seems to be that of a free space cordoned off by boundaries that cannot be transgressed by the state. At present, government rulemaking directs behavior, it does not provide a protected sphere for spontaneous action.Google Scholar

44. Often the laws themselves will invite corrections by governmental rulemaking. “In the Civil Code all the articles on retail purchase and sale in stores contain references to other acts [otsylki], allowing the Ministry of Trade to interpret the laws of purchase and sale. The Ministry interprets them not in the interests of individuals but in its own interest.”“Pravovoe gosudarstvo: kakim emu byt'!” Pravda, 2 August 1988, at 2.Google Scholar

45. “Zakon vyshe pravil,” Sovetskaia torgovlia, 27 Dec. 1988, at 7. See also Ioffe, 2 Conn. J. Int'l L 85–87 (cited in note 30).Google Scholar

46. Lobashev, A., “Poniatie i priznaki zakonnosti normativnykh aktov ministerstv i vedomstv,” Pravovedenie, no. 3, at 28 (1987); “Pravovoe gosudarstvo: kakim emu byt'?”Pravda, 2 August 1988, at 1–2.Google Scholar

47. New legislation must also be introduced to differentiate between the authority and types of legal norms. Neither the statutes on individual ministries nor the 1968 Statute on Norm-Making (Polozhenie o normotvorchestve) set clear jurisdictional boundaries in governmental rulemaking. See Loeber, D., “Statutes (Polozheniia) of the Agencies of State Administration in the Soviet Union,”in Feldbrugge, F. J. M., ed., Codification in the Communist World: Symposium in Memory of Zsolt Szirmai 221–37 (Leyden, 1975). According to reformists, an early item on the legislative agenda should be the enactment of a “law on laws” (zakon o zakonakh) that sets out clearly the drafting procedures and jurisdictional boundaries for governmental rulemaking. Kazmin, I. & Polenina, S., “‘Zakon o zakonakh’: problemy izdaniia i soderzhaniia,” Sovetskoe gosudarstvo i pravo, no. 12, at 3–9 (1989).Google Scholar

48. Rutman, L., “O nekotorykh probelakh v khoziaistvennom zakonodatel'stve,” Sovetskoe gosudarstvo i pravp, no. 7, at 62 (1989); “…S N. Zarubinym,” Sovetskaia iustitsiia, no. 1, at 7 (1989). For more general proposals on rationalizing legislation, see Vengerov, A., “Pravovoe sredstvo preodoleniia vedomstvennosti i mestnichestva,”Sovetskoe gosudarstvo i pravo, no. 10, at 42–43 (1984).Google Scholar

49. Manov, G., “Sotsialisticheskoe pravovoe gosudarstvo: problemy i perspektivy,” Sovetskoe gosudarstvo i pravo, no. 6, at 4 (1989). It appears that the Constitutional Review Committee will be concerned with the constitutionality and internal consistency of norms issued by the USSR Supreme Soviet and the USSR Council of Ministers. The Procuracy, in turn, will review departmental instructions and the decisions of local soviets. Interview with Iu. Rozenbaum (Senior Scholar, Institute of State and Law, Moscow), in DeLand, Fla., 2 Feb. 1990.Google Scholar

50. Berger, M., “Instruktsionizm,” Izvestiia, 1 March 1984, at 1.Google Scholar

51. “… s S. Emel'ianovym,” Sovetskaia iustitsiia, no. 1, at 6 (1989).Google Scholar

52. Manov, G., “Sotsialisticheskoe pravovoe gosudarstvo: problemy i perspektivy,” Sovetskoe gosudurstvo i pravo, no. 6, at 5 (1989).Google Scholar

53. As early as 1978, A. Pigolkin and others, in Opublikovanie normarivnykh aktov (Moscow, 1978). lamented the limited availability of Soviet legal norms. In 1985, the campaign for glasnost ‘in politics, culture, and history unleashed a flood of articles critical of normative secrecy. See, e.g., “Opiat’ ob instruktsiiakh,” Izvestiia, 23 Sept. 1987, at 3.Google Scholar

54. Manov, C., “Sotsialisticheskoe pravovoe gosudarstvo: problemy i perspektivy,” Sovetskoe gosudarstvo i pravo, no. 6, at 8 (1989).Google Scholar

55. It is not known how much influence government officials retain over the legislative drafting commissions of the Supreme Soviet, which they used to dominate before the seating of a more competitively elected legislature this summer. B. Lazarev, “Pravovoe gosudarstvo,” Pravda, 23 June 1988, at 2.Google Scholar

56. It is unclear what role, if any, joint party-government decrees will play in the Soviet legal hierarchy in the future. These decrees, which became “a part of our political-legal tradition” (S. Alekseev, Pravo i perestroika: voprosy, razdum'ia, prognozy 51 (Moscow, 1987)) cannot be reconciled with traditional conceptions of state law, a conclusion the Soviet legal community is finally able to state openly. A staple of Soviet legislation for decades, the Party-government decrees were a vital instrument of party rule in the early stages of perestroika. In an authoritative recent collection of party directives governing reform, KPSS o perestroike (Moscow, 1988), approximately half of the acts included were issued as joint Central Committee-Council of Ministers decrees. The level of Party usage of such decrees should serve as an indication of the authority that the Party is willing to invest in the newly invigorated Supreme Soviet. According to a prominent Soviet legal scholar, the party ordered a halt to the enactment of joint decrees immediately after the XIX Party Conference in June 1988. Interview with Iu. Rozenbaum.Google Scholar

57. The creation of a powerful new presidency, invested with lawmaking powers of its own, will almost certainly place additional limitations on the government's ability to use administrative rules to direct the behavior of the Soviet bureaucracy and society. At this writing, however, it is still not known to what extent presidential and legislative power will erode governmental rulemaking authority.Google Scholar

58. Zhilinskii, S., “Sovershenstvovanie sovetskogo zakonodatel'stva,” in Problemy partiinogo i gosudarstvennogo stroitel'stva, vypusk 8, at 193 (Moscow, 1988).Google Scholar

59. Hough, Jerry reaches a similar conclusion, although for different reasons. See his “The Politics of Successful Economic Reform,” Soviet Economy, no. 1, at 27–28 (1989). As the Soviet Union moves closer to a Western model of parliamentarism, one would expect the prime minister to assume an ever more important role in politics, and not just in economic management. It may be partially for this reason that Gorbachev stepped in to create a powerful head of state post above the head of government. This move appears to have prevented the post of prime minister from becoming the natural leadership position that it assumes in other parliamentary systems.Google Scholar

60. Mann, D., “The USSR Council of Ministers,” Report on the USSR, no. 32, at 18–21 (1989). I exclude the ex officio members from the union republics.Google Scholar

61. See Urban, M., “Popular Fronts and ‘Informals’,” Detente, no. 14, at 4–5 (1989).Google Scholar

62. Hough, J., “The Politics of Successful Economic Reform,” 5 Soviet Economy, no. 1, at 28 (1989).CrossRefGoogle Scholar

63. As president, Gorbachev is now empowered to nominate the prime minister and to recommend his dismissal to the parliament. See Teague, E., “The Powers of the Soviet Presidency,” Report on the USSR, 23 March 1990, at 4–7; “Ob uchrezhdenii posta Prezidenta SSSR i vnesenii izmenii i dopolnenii v Konstitutsiiu (Osnovnoi zakon) SSSR,” Izvestiia, 16 March 1990, at 2–3; “Stenograficheskii otcher (Vneocherednyi tretii s'ezd narodnykh deputatov SSSR),” Izvestiia, 16 March 1990, at 3–7. It is thus far uncertain where presidential decrees will fir into the hierarchy of Soviet laws and how vigorously Gorbachev will use decrees as an instrument of rule.Google Scholar