Whether or not the 28th Communist Party Congress in Moscow is, as some predict and more hope, a true precursor to the "withering away of the party," the extraordinary debate which is taking place in that forum parallels in important ways President Gorbachev's stated desire to create a "law-based state" - a Soviet Union founded on the rule of law.
Heritage analyst Leon Aron has identified the creation of "a government vested with authority and having enough legitimacy to administer the very bitter pill of radical economic reform … as the central and most urgent issue of Soviet politics today."
It is my view, in the context of recent exchanges between the Department of Justice and our Soviet counterparts, that the rule of law provides the only basis upon which such a government can eventuate from the upheaval under way in the Soviet Union and in Eastern Europe.
Our October 1989 trip to the Soviet Union - the very first by a sitting United States attorney general - occurred at the very beginning of the Supreme Soviet's effort at institutional reform and enabled us to open a historic, and continuing, dialogue on the rule of law and human rights.
It was remarkable experience. At the invitation of Soviet Minister of Justice Benjamin F. Yakovlev, we met for a week with Soviet leaders in the fields of law enforcement and the administration of justice - ministers, jurists, law students, even the chief of the KGB, Vladimir Kryuchkov. Our agenda was a full one, devoted to topics central to what makes our democracy work: our Bill of Rights, our federal system, the principle of separation of powers, with its checks and balances, our two-party political process-all from that curriculum of liberties we teach (but don't always learn) in our basic high school civics courses.
And I have to credit our Soviet hosts, even at that early juncture, with a bold exercise in pursuing political discussions which were open and free-ranging, covering everything from our mutual interest in stopping international terrorism to their obligation - as we see I, and they increasingly recognize it - to allow freer emigration of Soviet Jews. But our talks still took place within a historical legal context that must be understood if their present difficulties are to be fully recognized, or ever surmounted.
To summarize abruptly a great deal of history, Soviet justice derives from three legal traditions: customary law among the peasantry, the imperial law of the czars, and, much later, the Romanist law of civil codes. Customary and imperial law have had by far the overwhelming impact, creating a government of men above the law, from the Mongols to the boyars and czars and beyond. Various formal codifications of imperial law did appear. But the operative legal power was still vested in what we commonly know as the ukase: "a proclamation of a Russian czar," as Webster's says, "having the force of law."
'Telephone Justice'
This violently changed - yet did not really change - when the Bolsheviks came to power. Initially Lenin abolished imperial law, along with private property, and set up the people's courts. Judges were instructed to follow the decrees of the revolution
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