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Vol. 40, Nº 72 (2022), 704-715
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 14/09/2021 Aceptado el 22/11/2021
Approaches to the denition of
constitutional traditions
DOI: https://doi.org/10.46398/cuestpol.4072.41
Maria Nikolaevna Kokina *
Abstract
The author of the article analyzes the denition of
constitutional traditions under the inuence of various legal
cultures; It also considers the various existing approaches to
the denition of constitutional traditions and, at the same time,
proposes its own approach to understanding these traditions
in their particular context. The results show that constitutional
traditions are formed over several generations, therefore, they
always reect the fundamental specicities of a sociocultural
system. The author also highlights the factors that inuence
the perception of constitutional traditions in dierent legal-
constitutional cultures. For the rest, the article studies the most
widely disseminated approaches to understand constitutional norms that
do not always fully coincide with the canons of constitutional and legal
culture. Methods of scientic and general philosophical cognition are
used to explore the constitutional tradition from dierent perspectives of
analysis. It is concluded that constitutional traditions, as a whole, can be
characterized as elements of the constitutional legacy that preserve the
fundamental values of democracy, the constitutional order, the mechanism
of state power and the constitution-based political system, as well as the
constitutional forms of government enshrined in law.
Keywords: constitutional tradition; constitutional and legal culture;
constitutional law; cultural factor; legal norm.
* Siberian Federal University, Krasnoyarsk, Russia. ORCID ID: https://orcid.org/0000-0002-1999-
4821
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CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 704-715
Aproximaciones a la denición de tradiciones
constitucionales
Resumen
La autora del artículo analiza la denición de tradiciones constitucionales
bajo la inuencia de diversas culturas jurídicas; ademas se consideran
los diversos enfoques existentes para la denición de tradiciones
constitucionales y, al mismo tiempo, propone su propio enfoque para
comprender estas tradiciones en su particular contexto. En los resultados
se demuestra que las tradiciones constitucionales se forman a lo largo
de varias generaciones, por lo tanto, siempre reejan las especicidades
fundamentales de un sistema sociocultural. La autora también destaca los
factores que inuyen en la percepción de las tradiciones constitucionales
en diferentes culturas jurídico-constitucionales. Por lo demas, el artículo
estudia los enfoques de mayor divulgación para entender las normas
constitucionales que no siempre coinciden plenamente con los cánones
de la cultura constitucional y jurídica. Se utilizan métodos de cognición
cientíca y losócos generales para explorar la tradición constitucional
desde diferentes perspectivas de análisis. Se concluye que las tradiciones
constitucionales, en su conjunto, pueden caracterizarse como elementos
del legado constitucional que preservan los valores fundamentales de
la democracia, el orden constitucional, el mecanismo del poder estatal
y el sistema político basado en la Constitución, asi como las formas
constitucionales de gobierno consagradas en la ley.
Palabras clave: tradición constitucional; cultura constitucional y
jurídica; derecho constitucional; factor cultural; norma
jurídica.
Introduction
In the rst decades of the 21st century, a very ambiguous and exible
legal-political environment developed in Russian society due to both
ongoing internal transformations and global transition processes. Dynamic
social and legal processes become a stimulus for new research on Russian
constitutionalism. After comprehending the existence of the Russian
Constitution of 1993, we face important scientic questions regarding such
a unique source of Russian constitutionalism as the constitutional tradition
on the eve of its 30th anniversary. There is a growing interest in the balance
between traditions and innovations in law, the real inuence of law and
constitutionalism on modern social life and the possible future of Russia.
706
Maria Nikolaevna Kokina
Approaches to the denition of constitutional traditions
There is a need to rethink some signicant issues of state transformations
at the turn of the 20th and 21st centuries that have been already described.
In connection with the appearance of new states on the political map of
the world instead of the former Soviet Union (USSR) at the end of the 20th
century (mainly, the largest country – the Russian Federation), it is necessary
to provide a clear denition of the legal basis and political structure of these
states. In the legal sphere, the main challenge was associated with nding
out what model the new legal system of Russia should be built on: either it
should use the foundations of the Soviet legal system and become its legal
successor, or it should form its own legal system according to other models,
for example, the most developed states (the so-called Western countries).
1. Methods
Due to the widespread criticism of the legal foundations of the previous
state (the Soviet Union) in the relevant scientic and journalistic literature
and the demonstration of advantages of the Western way of life, some
experts believed that the best way could be to build the new Russian
legal system over the Western model, with a predominance of liberal and
democratic values enshrined in an organized legal system, primarily in the
country’s constitution.
The other experts claimed that each nation has its own centuries-old
traditions and typical forms of organizing social and state life, i.e. forming
an appropriate legal system. In addition, there are convergent views,
according to which the Russian Federation is the legal successor of the
Soviet Union and should form its legal system, on the one hand, based on
the previous Soviet experience and the evolution of the Russian statehood,
on the other hand, it should adopt the Western experience of building
liberal-democratic legal systems.
The latter approach was chosen. The legal system of the Russian
Federation partially consolidated the experience of the Russian Empire,
the USSR and the Western countries. The formation and development
of the Russian state system underwent certain changes, during which it
moved from the socialist system to the liberal and democratic one. Large
transformations in public life, the adoption of a presidential system, an
actively pursued course towards developing a market economy, overcoming
the dictate of the previous single political ideology, forming a civil society
and the rule of law entailed many changes in all the spheres of life, including
economic, political, legal, socio-cultural, educational, etc.
Both in theory and practice, dierent approaches, views and ways of
social transformations collide. The legal sphere is no exception:
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In 1992-1993, the sovereign statehood of Russia was forming. There were three
types of power: legislative (the Congress of People’s Deputies and the Supreme
Council elected the former body), executive (the President and the Government
appointed by the former) and judicial (the Constitutional Court). The process
of choosing a specic form of statehood (either a presidential or parliamentary-
presidential republic) was not easy (Kashchenko, 2009: 24).
Due to drastic social transformations, the Constitution of the Russian
Federation was adopted in 1993 in a rather hasty manner. It constituted the
milestone of political and legal reforms in renewed Russia (The Constitution
of the Russian Federation, 1993).
2. Results
Currently, there are several approaches to the denition of constitutional
traditions in the science of constitutional law.
Some supporters believe that constitutional traditions were formed and
exist in those countries where the Protestant religion predominates. One of
such advocates is K.V. Aranovskii (2003; 2004).
At the beginning of the 21st century, one of the most famous scientic
studies on the constitutional tradition is K.V. Aranovskii’s monograph
dedicated to the spread of the constitutional tradition in Russia (Aranovskii,
2003; 2004). This research is practically the rst to highlight and present
scientic analysis in this area. The author analyzed state and legal traditions,
which is necessary for understanding and characterizing the constitutional
tradition. As a result, he dened the state-legal tradition as the historical
and legal formation expressed in stable skills, conditioned by religious or
secular beliefs, worldviews, feelings, the quality of information consumed
and perceived, one’s own understanding of law, power and statehood
(Aranovskii, 2004: 26).
In general, K.V. Aranovskii regarded the constitutional tradition as a
sustainable and holistic legal formation capable of renewing (Aranovskii,
2004: 26). The constitutional tradition is inuenced by Protestantism,
individualism, pragmatic rationality, traditional beliefs and images, equality
and inalienable rights, which conditions certain behavioral patterns. It
is characterized by the perception of legal conventions, the selection and
control of feelings. Standardization and legal awareness are typical of the
constitutional tradition (Aranovskii, 2004: 38).
According to the author, the constitutional tradition has a holistic and
sustainable legal nature, when state and legal traditions share the features
of a legal formation. However, he did not consider the historical impact on
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Approaches to the denition of constitutional traditions
constitutional traditions in the process of their formation since this feature
is common only to state and legal traditions (Aranovskii, 2004: 38).
Answering the key question of his research about whether the Russian
society can become constitutional, and if so, how this is achievable, K.V.
Aranovskii believed that there were some similarities between the Russian
environment and the environment with the dominance of constitutional
traditions (for example, respect for law) but there were much more
dierences between them. This applies to both the ethical values that have
developed over centuries and the practice of implementing power relations
(Aranovskii, 2004: 38). In Russia, the ideals of conciliarism, collectivism and
the common good were always fundamental. In the Russian environment,
the triumph of truth and justice is the supreme value in contrast to the
West, where more attention is paid to the correct and proper execution of
laws (Aranovskii, 2004: 38).
It is worth mentioning that this study was conducted 10 years after the
formation of the Russian Federation, therefore its objective and main tasks
were fully justied. Since the country had a 70-year experience in building
a communist society (diametrically opposite to the constitutional one), the
results of this 10-year development show how the idea of constitutionalism
was accepted in society and whether society wanted to further move in this
direction. K.V. Aranovskii neglected the historical impact of Russian law on
constitutional traditions in the process of their formation and development.
He expressed the idea that such continuity can be inherent only in state and
legal traditions. In his opinion, the constitutional tradition can be renewed
in contrast to the Russian state and legal traditions.
Knyazev (2015) claimed that the constitutional tradition aimed at
achieving a balance between individual freedom and public power. The
essence of constitutional traditions is nothing more than a set of inalienable
features of constitutional ideology that are understood as: the rule of law,
recognition and respect for human rights and civil freedoms, democracy
and popular representation, private property and entrepreneurship, the
separation of powers and decentralization, equality before law and court,
political and ideological diversity, multi-party system and freedom of
association, independent judiciary and adversary proceedings (Knyazev,
2015). In general, the author discussed the constitutional tradition but did
not dene this phenomenon.
Another approach presented by Latskii (2013) provides that the
constitutional tradition is formed under the inuence of national legal
systems, including Slavic, Romano-Germanic, Scandinavian and Latin
American. In this regard, the scholar highlighted, for example, the Slavic
constitutional tradition.
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While describing typical features of the constitutional tradition, Latskii
(2011) proposed to combine states with certain features into a specic
group, for example, the features of the Slavic constitutional tradition.
The scholar analyzed the constitutions of states with pronounced features
of the Slavic constitutional tradition and referred to the basic laws as a
source of such traditions. At the same time, he used the revealed patterns
(including comparative jurisprudence) as a source of the Slavic (Russian)
constitutional tradition. The classication of the Slavic constitutional
features corresponds to the general structure of basic laws common to a
number of the Slavic states. According to the scholar, Russia belongs to
the states with pronounced features of the Slavic constitutional tradition
(Latskii, 2011).
Latskii (2011) believed that the preambles of the Slavic constitutions
(new basic laws of the Slavic world) contain the main features of
constitutional traditions. All these preambles proceed from the need to
restore the lost connection of times, preserve the heritage of ancestors,
create a democratic, legal and social state (Latskii, 2011).
Special dictionaries (Avakyan, 2001; 2015; Arutyunyan and Baglai,
2006; Baglai and Tumanov, 1998; Tolkovyi slovar konstitutsionnykh
terminov i ponyatii, 2004; Azriliyan, 2007; Kutan, 2003; Sukharev,
1987) contain legal vocabulary and summarize legal features, as well as
constitutional terms, but do not provide any denition of the constitutional
tradition. This only testies to the fact that the term “constitutional
tradition” is new and insuciently studied within the framework of the
science of constitutional law in Russia. Such a gap allows us to analyze this
issue, discover interesting facts and answer the questions posed, as well as
provide an original viewpoint.
3. Discussion
At the beginning of the 21st century, the scientic community repeatedly
emphasized the need to amend the current Constitution of the Russian
Federation, transform or even adopt a completely new Basic Law. Before
2020, several amendments were adopted in 2008 and 2014.
However, is such a regular “intervention” in the country’s Basic Law
really necessary, or is it universal enough?
According to Zorkin, the deep legal meaning embedded in the
constitutional text allows to adapt it to the changing social and legal realities
within the doctrine of the “living Constitution” adopted in the world practice.
The reliance on this doctrine helps identify its actual meaning in the context
of modern social and legal conditions without distorting the legal meaning
laid down in the Constitution of the Russian Federation (Zorkin, 2018).
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Maria Nikolaevna Kokina
Approaches to the denition of constitutional traditions
Salikov noted that “evaluating the 25-year functioning of the Russian
Constitution, it should be said that it has not exhausted its potential. Being
a constitution, it contains considerable reserves that must be put into
practice” (Salikov, 2019: 12).
At the same time, “the constitutional reform can hardly change the
legal life in Russia and can only restore the current government to ease the
existing social tension” (Ignatenko, 2020: 90).
The universality of the Constitution of the Russian Federation might
mean that this law is based on signicant national foundations of the Russian
statehood and, as a consequence, traditional foundations of the Russian
mindset. The fundamental principle of this Basic Law can be preserved
through the spread and consolidation of constitutional traditions. Only this
form of law can serve for the benet of its citizens, accept and adequately
respond to external factors for more than a decade while allowing positive
transformations to be adopted.
However, not only political events aect the development and formation
of Russian society. As 2020 has shown, the current situation connected
with the COVID-19 spread and anti-coronavirus measures makes the
global population reconsider the basic needs and rules of life to preserve
their own health, the health of their loved ones and sometimes even their
lives. Such prevention and control measures led to the closure of borders
and restricted the movement of people across borders. We began to feel
the need to study and perceive ourselves in this world. The question arises
about basic human values, cultural origins and traditions.
In the course of the COVID-19 pandemic, the Russian citizens had
another signicant event, namely the all-Russian national voting to adopt
amendments to the Constitution of the Russian Federation on July 1, 2020.
These amendments should determine the further development of Russian
society.
These factors also inuence the scientic sphere that directs its vector
towards the study of unique sources conditioning the development of
Russian constitutionalism in the form of constitutional traditions. In
Russian science, discussions about the concept of “tradition” and its role
in the formation of modern Russia became more frequent, which indicates
a growing interest in the new knowledge based on the specic Russian
thinking and experience. A tradition is considered the most important
factor in the stability and eciency of any state (Chuvilkin, 2013).
In recent years, there has been an oversaturation of foreign ideas and
views on the formation and development of a democratic society in Russia.
We need to remember that Russia has a centuries-old history of state
development and was able to preserve its sovereignty during this period.
The unique experience of Russian statehood should be studied and used.
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If the nature of legal traditions, their specics and content are studied in
detail in the relevant scientic literature (Marchenko, 2008; Medushevskii,
2014; Sulipov, 2013; Chuvilkin, 2013; Shatkovskaya, 2014), there is not
enough research on the constitutional tradition. The existing references
to the latter are mostly of an applied nature. Fortunately, the resulting
discourse attracts the attention of scholars and contributes to the creation of
new scientic works on this topic (but their number is still small). There are
many applied publications about the constitutional tradition in connection
with the classication and functioning of the main branches of law having
their own specics of legal traditions, for example, such phenomena as
constitutional aspects of civil-legal traditions, state-legal traditions, etc.
The “constitutional tradition” term is used in scientic literature as a
comparative tool without considering this concept as an independent
category.
Of course, the constitutional tradition originates from the legal tradition.
However, the constitutional tradition should be regarded as an independent
scientic category that has a denite role in the science of constitutional law.
This is conditioned by the current relevance of the special constitutional
formation and development of Russia, as well as the preservation of its
unique traditions. Thus, it is relevant to study the constitutional tradition
as an independent scientic category related to the legal eld of knowledge
and practice, i.e. constitutionalism, whose basis is the Constitution of a
particular country as the main organizing center of modern constitutional
and legal systems.
Currently, there are scientic studies concerned with the constitutional
tradition in general, including the Russian constitutional tradition. In these
studies, the meaning of the constitutional tradition does not reect its special
role in Russian society. Most scientic works in which authors mention the
constitutional tradition are associated with their desire to show mental
and ideological dierences in its distribution. The signicance of research
on constitutional traditions as a scientic category of constitutional law,
the theory of state and law is that the constitutional tradition ultimately
receives a conceptual description, including a general denition, the
identication of characteristics and distinctive features. Thus, it can become
an independent category of jurisprudence and philosophy, consolidate its
status in the development of Russian constitutionalism.
All this requires comprehensive analysis, the development of a scientic
denition, a study of the essence, uniqueness and specic features of the
national constitutional tradition.
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Conclusion
Realizing that this article covers several scientic areas, we propose
to use general scientic methods, as well as interdisciplinary methods of
cognition (legal, cultural and philosophical).
We actively used comparative methods to view an object from
diametrically opposite perspectives. We also referred to the historical
method since the research object is characterized by a long development
time.
The dialectical method helped us study dierent forms of the above-
mentioned object from the standpoint of its unity and inner contradictions,
as well as the struggle of opposites.
The stable constitutional construction of the state and the Constitution
of the Russian Federation stipulates a thorough study of the constitutional
tradition in Russia and its impact on the development of Russian
constitutionalism in general.
There were certain preconditions (almost 30 years) for the development
of constitutionalism in modern Russia. Indeed, this is a very short period if
compared to the Western countries, where such history goes back centuries.
At the same time, unique features that distinguish it from the other states
are manifested in Russian constitutionalism. The traditions that existed in
the Russian Empire and the Soviet Union are reected in modern Russia,
t into its Constitution and state system.
While analyzing the above-mentioned scientic studies and guided by our
own reasoning, constitutional traditions as a whole can be characterized as
elements of the constitutional legacy that preserve the fundamental values
of democracy, the constitutional order and the Constitution, the mechanism
of state power and the political system based on the Constitution, the
constitutional forms of government enshrined in the main the law of the
state.
The constitutional tradition expresses an ingrained view and attitude
prevailing in society towards constitutional values as the heritage of
generations formed under the inuence of various factors (including
national mindset, religion, cultural and personal values, the values of state
and law) and continues to be relevant in modern days. It has a long-term
character, is preserved and passed on to generations.
We cannot dwell only on the general approach to the denition of
constitutional traditions. This category should be considered not only in
general but also from dierent perspectives. Assuming that the Western
constitutional tradition means a tradition based on the constitution, the
Russian concept has a slightly dierent meaning.
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For example, the main democratic terms can be disclosed with due
regard to the Russian mindset and experience, i.e. it is relevant to highlight
the Russian constitutional tradition that greatly diers from the one that
prevailed in Europe. Although Russia borrowed the ideas of democracy
from the Western countries, they need to be interpreted exclusively in the
“Russian” way.
We believe that it is necessary to distinguish between the Russian and
foreign constitutional traditions. In this case, the foreign heritage formed
within the framework of some constitutional tradition will inuence
the constitutionalism of another state. Despite long-term adoption, the
constitutional tradition tends to succumb to inuence and, as a result,
change. Another question is whether the receiving party or the party
inuenced by a foreign constitutional tradition is ready for such an impact.
It is worth mentioning that the Russian constitutional tradition is based
on its experience, transmitted and consolidated in constitutional norms,
has unique legal and cultural features for citizens and compatriots living in
this territory.
Based on the above-mentioned reasoning, we can conclude that there
are two opposed approaches to the constitutional tradition. This opposition
can be expressed in the form of a “traditional” constitutional tradition
and an “anti-traditional” constitutional tradition (or a constitutional anti-
tradition).
The “traditional” constitutional tradition should be understood as the
constitutional tradition characterized by long-term constitutional culture
and values. On the contrary, the “anti-traditional” constitutional tradition
acts as an alien constitutional tradition, not inherent and opposite to the
rst one. This tradition inuences the development of the “traditional”
one from the outside and can be perceived in relation to the “traditional”
constitutional tradition either negatively or positively. The constitutional
anti-tradition is outside inuence.
Dierent views about the constitutional tradition indicate that this
category is being studied by scholars and arouses their interest due to
the lack of sucient elaboration. The discussion of this issue allows us to
consider the constitutional tradition from dierent perspectives and reveal
new non-specic features. A separate study should be concerned with
unique features of the national constitutional tradition.
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Esta revista fue editada en formato digital y publicada
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