Focus: Election Roundup

Power and Property in Russia: The Adoption of the Land Code
Andrei Medushevsky

The introduction of private landownership in Russia is a critical problem, and one on which social consensus is lacking. It is also a thorny constitutional issue: each of the solutions put forward entails varying, sometimes conflicting, interpretations of constitutional principles.

Russia is an agrarian country and the problematic issue of private landownership has always been fundamental to its political and legal systems. Particularly during the liberal reforms of the 1860s and, again, during Pyotr Stolypin's agrarian reforms of the early twentieth century, the private ownership of land was viewed as the proper basis of social and political stability-or so it was hoped. A competing tendency was the socialization of land, an arrangement in which land was not private property but could be used temporarily upon payment of a special tax known as ground rent. Eventually, the Bolshevik solution to the land question-forced collectivization-resulted in the population's estrangement from the land, which became, for all intents and purposes, the property of the state.

The 1993 Constitution introduced a radical innovation: new legal provisions to strengthen and normalize the private ownership of land (Arts. 9 and 36). According to Art. 9, land and other natural resources now "may be found in private, state, municipal, and other forms of ownership." The explicit guarantee of the right to private land ownership, in the words of Justice Marat Baglai, concludes "a lengthy and debilitating struggle of the democratic forces in Russia for one of the founding principles of freedom, of a market economy, and of a government based on the rule of law."1 However, since the Constitution's ratification, the implementation of these provisions has been hampered by the lack of a societal and academic consensus on the necessary accompanying legal framework (for example, laws on the sale, inheritance, mortgage, and rental of land, not to mention guarantees of its rational economic use).

The Land Code of the Russian Federation, which came into force on October 26, 2001, is intended to resolve many of these issues. The new code excludes agricultural lands, an enormously difficult subject deferred for later legal consideration (the term "agrarian" used in this essay refers to landownership issues in general and does not, in the case of the new code, refer to arable lands). The task of this essay is to describe the Land Code's overreaching significance to the agrarian issues that have long shaped Russia's history. To that end, I will take up a series of questions: To what degree do the provisions of the Land code reflect fundamental trends in the regulation of private landownership in the post-Soviet period? What was happening within the power structure, and among competing political interests, over the course of its consideration and ratification? Finally, what role will the code play in the modernization of Russia's social and economic relations?

Private ownership of land in the post-Soviet period
The regulation of landownership in the post-Soviet period has exposed three areas of tension: between public and private law and the legal interpretations of private land ownership; between federal law and the laws of the subjects of the Russian Federation; and among the various branches of the federal government, especially between the State Duma and the president in connection with legal policy.

The conflict between public and private approaches to the regulation of land relations is an expression of both the dualistic nature of such property and the traditional Russian land dilemma: Should there be spontaneous development by market forces or purposeful government regulation? In a very basic sense, the dichotomy of private and public law originates in the very nature of landownership or, rather, in the interpretation of it in domestic jurisprudence (where the idea of land is defined as a "special kind of property"). On the one hand, land is defined as real property (imushchestvo) in the sense of being a legitimate item in private transactions (for example, the right to own plots of land, to dispose of, use, and inherit them). On the other hand, land is also defined as a special kind of real property, where it is seen as a natural resource to be regulated on behalf of the public interest, thus requiring that the government play an essential role in formulating regulatory policy and in creating a real-estate market.

The Constitution itself is vague in its definitions. The term "property" (sobstvennost) is used differently in different articles of the Constitution: for example, as a synonym of "real property" (imushchestvo) (Art. 35.2); or, as a type of economic and social organization or system of relations regulated by property law (Art. 9.2). 2 Furthermore, the concept of "forms of ownership" guaranteed in the Constitution (Art. 8.2) is a contentious one. Its critics view it as a relic of the past, that is, not as a juridical concept but as an outdated political-economic concept that gives the illusion that kinds of property other than private and public can exist. According to these critics, there are no other "forms of ownership" beyond public and private, and there is only one law of property with a standard, unified set of rules applicable to citizens, juridical persons, governmental, and other public legal structures.3

Diametrically opposed are those who hold the view that the Constitution locates the institution of private property within a hierarchy of values, thus making it possible to regulate property relations. Some of these scholars have stuck to the traditional liberal principle of the inalienability of private property, while others-giving priority to the concept of a social state and to the principle of the social function of law-have emphasized the provisionality of the law and suggested a number of its possible limitations.4

The main difference between these two approaches (which gives a broader or narrower interpretation, respectively, of the corresponding constitutional regulations) surfaced in discussions concerning the ability to limit the right to private landownership. One area of conflict involved federal relationships. Glaring contradictions between federal constitutional law and the statutory laws of federation subjects were a persistent feature of the transitional period. According to Art. 8.1, the federation's Constitution strengthened "the unity of economic space," meaning it introduced a provision that assured equal protection to various forms of property ownership (Art. 8.2). At the moment of its ratification, the Constitution's consolidation of "various forms of ownership" in Art. 8.2 was a unique political compromise permitting the preservation of existing regional socioeconomic relations in the form of public, collective, and even concessional forms of property. The result was the appearance of a legal conception of regional public property, one not envisioned by the Constitution but no less real because of it. As its theoretical basis, the concepts of the internal sovereignty of Russian Federation subjects and the federal conception of land and landownership were used, and were interpreted as, the unlimited right to property in the corresponding subject territories. Its political basis-and consequences-became evident in the introduction of a number of regional referenda abolishing private landownership.

Arising out of the notion of the sovereignty of the federation subjects, this conception of regional public property identified the lands, mineral wealth, and other natural resources of a republic's territory as its indivisible and inalienable property (dostoianie). This was the case in the Sakha/Yakutia Republic and in Bashkortostan, where these resources were named the "indivisible property" (dostoianie sobstvennost) of its multinational people, as well as in Ingushetia, which declared them property (sobstvennost). As a result, some federation subjects did not recognize the right to private ownership in their territories. Others, while formally acknowledging the transactions relating to agricultural land, introduced an implementation mechanism that, in practice, blocked them. In this way, such regions were able to preserve the status quo. Basically, the absence of a codified land law permitted the regional legislatures to fill the legal vacuum in any way that suited them.

The idea of property in the sense of public or national indivisible property (dostoianie) is a relic of Soviet law and has brought about serious contradictions in the interpretation of the right to private landownership, contradictions that continued to grow as questions of privatization and administration of state property in the regions arose. Opposed to these trends were the decisions of the Constitutional Court, whose legal position was decisively formulated in a resolution of June 7, 2000, and further developed in a decision of June 27, 2000, in the course of examining provisions in the constitutions of the republics of Altai, Tatarstan, Bashkortostan, Ingushetia, Komi, and North Ossetia. The Court found that the nature of the republics' constitutional jurisdiction over land and the definition of the conditions of its possession, use, and disposition; over the mineral wealth, forests, waters, and other natural resources; and over environmental and conservation measures "violate the demarcation, established by the Constitution, of the objects of jurisdiction and competence between the organs of governmental power of the Russian Federation and the organs of governmental power of its subjects." 5 The republics' constitutional provisions were therefore declared invalid.

The third area of tension, with regard to land, was the ongoing battle between the legislative and executive branches over the central issue of which principles were to be used in resolving the agrarian question. This conflict was most apparent in the attempt by the then-Communist majority in the Duma to ratify a version of the Land Code that either: (1) would not refer to private landownership; or (2) would extraordinarily complicate it; or (3) would expressly prohibit it. The first draft of the Land Law ratified by the Duma in 1995 contained important limits on the use and sale of land. The second variant (1996) did not provide for the free sale, purchase, and mortgaging of land. The third variant (1997), although permitting private landownership in pretentious and bombastic terms, prohibited the buying and selling of lands designated for agricultural use.

In the first two instances, the Federation Council overturned the draft law; in the third instance, it passed the upper chamber but was subsequently vetoed by the president. (A 1998 modified version of this same draft law met a similar fate. 6 ) Even with the establishment of a government majority in the Duma after the 1999 elections, the Land Code, over the course of many months, remained the primary bone of contention between the Communists and the rightist majority in the lower chamber. However, in the end it was approved. The Duma ratified the Land Code in a third reading on September 20 and 28, 2001, after lengthy debate and active opposition by left-wing political factions.

One would have expected the battle in the Duma to be continued in the Federation Council, some of whose members were critical of the Code. In addition, more than a third of the subjects' legislative assemblies were opposed to it, a fact that could not help but influence the regional representatives in the Council. However, as in the case of the Law on Political Parties (its ratification was the equivalent of pulling the rug out from under the feet of the regional elite), the result of the vote was unexpected. Against all predictions, on October 10, 2001, the draft of the Land Code received the support of the majority in the upper chamber. Finally, the president signed a federal law, "On the Implementation of the Land Code of the Russian Federation," on October 25, 2001. In his message to the parliament, the president made it clear that the question of lands designated for agricultural use-a subject awaiting future legislation-would also most likely be decided in favor of their free sale and purchase.

During the years of the transition, property rights, landownership, and the concomitant market were all regulated through presidential decrees. Solutions to the questions raised by proceedings in this manner were necessarily provisional and, in theory, were only intended to be in effect until a new land code was devised.7 Given this past, one must assume that the changes wrought by the new code are unusually significant. But how does the code represent a definitive solution to the land question? How had the ratification of such a fundamental, long-delayed document now become possible? And there are other questions. Why was this issue finally resolved apparat-style, without the participation of the public? To what extent can the code, ratified within months, be viewed as a stable legislative achievement? Why did the members of the Federation Council and its chairman, who had been so sharply critical of it, finally to express approval in the course of voting? How could it happen that a draft law, which had incited such a negative reaction among the federation's subjects, come to be ratified by regional representatives in the upper chamber? And, finally, what will the ratification of the Land Code offer in terms of resolving Russia's social and political situation in the future? The attempt to provide answers to most, if not all, of these questions will occupy the balance of this essay.

Trends in the codification of land law: The arguments in favor and against
The Land Code was supposed to regulate the entire sphere of land relations, even though, in the end, the question of agricultural lands was excluded from its purview (the status of these lands will be regulated by a special federal law now being drafted). In spite of this compromise, discussion continued on the fundamental issue: What is private property (sobstvennost)? Is it possible in Russia? If so, what parameters must obtain for its legal implementation? The acknowledged goals of the Land Code were the expansion of a unified policy on private property and market relations to all areas of the economy; the elimination of the contradictions in legal regulation in the area of land relations; and creation of the necessary conditions and rules for Russia's integration into the world economy.

The foremost problem in analyzing the Land Code has to do with the contribution its regulations make in securing the rights of land ownership. The code's supporters saw that its importance lay precisely in the unification and rationalization of property relations through the liquidation of its intermediate forms-those very same "other forms of property ownership" under which lurked the social, collective-farm cooperative property of Soviet-era law. Indeed, the new legislation deals only in the categories of public and private property. The chief merit of the code, then, is the establishment of "a unified policy of property and market relations in all spheres of the economy"(M. V. Odintsov).8

In the opinion of its critics, however, it is precisely the attempt to unify legally the sheer variety of property relations that is the Code's main flaw. These critics, not without cause, suppose that actual land relations (in the form of various public and collective kinds of property [khoziaistvo]) cannot fit into the rigid categories of public and private law. The critics point to the contradictions and inconsistencies in the code's provisions when defining the mechanisms of transition from one form of property to another (such questions will become crucial in the case of land privatization or, contrariwise, of land nationalization).

On the one hand, the Code "plays the role of a quasi-constitutional law," insofar as-unlike the Constitution-it establishes the priority of one federal law's regulations over those of other federal laws (the civil, tax, and budget codes). On the other hand, "it does not fully assure a thorough normative regulation of the conditions and order of land use in a market economy, and it does not give a clear-cut answer to many questions concerning the possession, use, and disposition of land"; it regulates land relations "incompletely and inconsistently."9 The situation is succinctly expressed by Russian Agrarian Party chairman, M. I. Lapshin, in his October 8, 2001, address to the members of the Federation Council. In his speech, he advocated "a conservative and protective approach to the land question" and appealed to this fellow legislators "not to be in a hurry in letting the land genie out of the bottle, since mistakes made in the establishment in new land policy could turn out to be impossible to correct," and he warned of the possibility that rectification of these errors would be possible only "through bloodshed."10

But let us turn, now, to any analysis of the code's provisions relating to legislation currently in force and having as their goal the institutional consolidation of private property.

First of all, the Land Code includes regulations that encourage the transfer of land to private ownership for people who had already come into possession of it in various ways. The Civil Code (Arts. 266 and 268) permits the exercise, unlimited in time, of such substantive rights as the right of continuous land usage and the right of lifelong heritable possession of a land plot. In contrast, the Land Code (Arts. 20 and 21) abolishes these same weighty rights for citizens who had not managed to exercise them prior to the introduction of the Land Code, yet preserves these rights for juridical persons. These regulations of the code, intended to encourage Russia's citizenry toward the acquisition of land and property, signify-in the opinion of its critics-a narrowing of these substantial rights in comparison with the regulations of the Civil Code. In the critics' view, these regulations are also a violation of the principle of equal starting conditions (startovye usloviia) for citizens. These contradictions are clearly spelled out in the October 4, 2001, Conclusion of the Legal Department of the Apparatus of the Federation Council, which provided technical comments on the articles of the Land Code. 11 While some critics think the regulations unify and simplify landownership, allowing for the introduction of land plots or properties into market circulation as objects of sale and purchase, other critics emphasize the element of social inequality intrinsic to the regulations.

Second, the need for industrial investment and providing for the needs of such investors is a dominant concern of the government. It assumes that not only is the introduction of the right to acquire land essential but so, too, is the right "to effectively defend this right." This brings to the fore the relationship between current civil legislation and the Land Code. The principles of landownership and the regulations concerning the contractual transfer of ownership under conditions of estrangement from the objects located on them (Arts. 260 and 273 of the Civil Code) are radically reconsidered in the Land Code (Art. 35), which lays down the principle of the indivisibility of property objects that consisted of a building and land plot. In accordance with Art. 35, the separation of a land plot from the buildings and other structures located on it is not permitted if they belong to one person. The principle of the indivisibility of land from the objects located on it, made possible by the Land Code, is certainly attractive to investors. However, the defect in this principle is seen in the fact that it could allow for covert attempts to privatize land using foreign capital but in the absence of any actual investment, or that it could become an instrument for assuring the advantages of juridical persons over actual ones.

Third, Art. 65.1 of the Land Code introduces the unlimited, chargeable ("for pay") use of land. However, defining the procedures for privatizing various categories of land and for determining their price or the amount of payment for their use remains beyond the bounds of its provisions. As a consequence, the distinct possibility of problems arising from the implementation of other provisions of the Land Code has been noted. In particular, difficulties could occur in connection with regulations concerning the uncompensated (bezvozmezdnyi) transfer of lands under state ownership by a municipal organization (obrazovanie), and with regulations for establishing the amount of payment for land (Art. 28 of the Land Code). One result of all this is that, the legal evaluations of the Land Code directly contradict each other: the reformers believe that the code "guarantees the stability of land relations at the federal level" (V. P. Goregliad), the conservatives have declared it unconstitutional, a legal document whose ratification is tantamount to a "national catastrophe, placing in question the very existence of the Russian Federation as a sovereign state."12

The vital questions of landownership, its various types, and trends in its regulation became apparent early in the course of discussions in the Duma. Three positions emerged: the right wing, consisting of those who defended the concept of private property as recommended by the government; the left wing, which was categorically opposed to it; and the moderates, who tried to bring all sides into agreement through restrictive amendments. These three positions dominated the course of all later negotiations.

The other major reason for the schism in public opinion, over and beyond the basic split of those for and against private property, was the traditional division between the Westernizers, who supported Euro-peanization and the nationalists (pochvenniki). This divide was reflected in the debates on the relationship between land privatization and the preservation of national priorities. The question had three parts: Does Russia develop according to the same parameters as the rest of the world, or is its situation unique? If it is, then Western models of private law will not work in Russia. What should the status of foreigners be? Is the sale of land to them legally permissible? What government measures are essential in the transitional period?

That such questions arise for all developing countries is predictable; they are linked to their modernization strategies. The discussion in the Duma, the regional legislative assemblies, and the Federation Council revealed a variety of extreme positions. The conservative approach was seen in proposals in the Duma giving priority to Russian domestic land legislation over the regulations of international law. The conservatives' position had a serious, rational basis: the agrarian system of the Russian Federation is quite unique, with a lengthy history in which there has been virtually no understanding of, and little experience with, private landownership. Because of this history, the conservatives believed that superimposing Western legal standards on the Russian context would not result in the desired effect but more likely, would only worsen the situation.13 They also believed that the implementation of Western approaches would lead to a destabilization of the situation in the ethnically non-Russian regions, resulting in the eviction (vyselenie) of indigenous peoples from their home territories. This could happen because of the special character of the mentality and culture of peoples unfamiliar with private law.

Especially acute was the discussion that developed around the second part of the overriding question, namely, the right of foreigners to purchase land. This was, in the words of Minister of Economic Development and Trade German Gref, "a very difficult question, which was discussed in detail in the State Duma." Should the rights of foreigners to acquire land be equal to those of Russia's citizens? The most serious argument against was the perceived ineffectiveness of any purely legal resolution to the problems that could arise if such equality were the rule. Opponents believed that formal legal equality of Russian and foreign citizens in the right to acquire land would lead to an actual inequality, as had happened in the course of industrial privatization.

During the spring 2001 legislative session, when the Duma was evaluating the Land Code in its second reading, the deputies revisited the issue of foreign landownership on several occasions. However, in light of a lack of consensus the discussion was suspended, temporarily, "for the implementation of consultations on this question by the leaders of deputies' associations." (The issue was dealt with similarly in the Federation Council.) The government majority subsequently rejected a number of negative amendments that would, for example, have set limitations on the rights of foreigners to purchase land, to rent land, or to acquire lease rights to land. An amendment denying foreign citizens the same rights as Russian citizens in the buying, selling, possession, use, and disposition of land went unratified. By way of compromise, a recommendation was made to tie, more directly, the right to land ownership by foreign citizens to incentives encouraging them to invest in industrial ventures located on the land. The left-wing delegates rejected a compromise amendment that would have permitted foreign citizens and persons without citizenship to acquire lease rights to land plots, with the exception of those instances covered in the Land Code. The amendment was rejected on the grounds that it mentioned nothing about foreign juridical persons. Only after the inclusion of a provision about foreign juridical persons was the amendment ratified on the government's recommendation by 264 votes.

The discussions of the status of property in border territories were stormy. In the end, all the amendments and most of the provisions regarding the borderlands were either defeated or left out of the code. Certainly, the reservations expressed by the governors of the border territories also played a crucial role in the rejection of the various amendments. As a result, a provision in the code prohibiting the sale of land to foreigners in certain border territories (to be specified by a presidential decree) was left deliberately open-ended.

The third aspect, or set of questions, to arise with regard to the land issue has to do with the role government should play during a transition to a market economy. Theoretically, government regulation can take three main forms: 1) legal limitations of the purchase and sale of land; 2) the tailoring of tax policy; and 3) the adoption of a specific monetary credit policy. In fact, it was precisely these three factors and their treatment that found expression in the federal law entitled On the Implementation of the Land Code of the Russian Federation, which was ratified by the Duma on September 20, 2001.

The first factor involves a range of issues, from the introduction of a moratorium on transactions connected to the transfer of lands in the government's possession for temporary use or ownership to the definition of what constitutes governmental ownership of land (in accordance with Art. 3.10 of the Law on the Implementation of the Land Code). As a result, a significant number of regulations of the Land Code, as well as a number of provisions in the Civil Code, have been or will be blocked during the current transitional period, because there can be no analogous rights to these lands.

The second factor-concerning the government's regulatory role in the present transitional period-relates to the priority of the Land Code's regulations over existing tax legislation. Because the provisions were aimed at broadening the government's ability to regulate indirectly the sale and purchase of land through taxation, the provisions of the new federal law necessarily entail a legal collision with the existing tax code.

The third and most contradictory factor of this implementing law relates to the ability of the government to set prices for the redemption of land plots. According to the delegates involved in the discussions, this provision was "the most debated in the State Duma." And Minister Gref remarked, "two days and two nights" had been spent on its formulation. Indeed, with the introduction of land parcels into market circulation, the issue of land prices, the criteria for setting them, what the prices were supposed to reflect, and the ability of the government to regulate them acquired the greatest significance with regard to the success of the reform.

Given the general poverty of Russia's rural population and its lack of entrepreneurial and property-owning instincts, the question of land valuation has become vital. Should the price of land be determined by the free play of market forces, or, on the contrary, should it be established by administrative institutions? Answers to these questions take various forms: pricing though the spontaneous development of market self-regulation; through direct establishment by the government; or by means of indirect government regulation via the revenue system. During the Duma's discussions of the issue, the very idea of a "for pay" use of land occasioned serious misgivings on the part of some delegates-various exceptions to the notion were proposed-and, consequently, a significant number of amendments were put forth with the purpose of strengthening the government's role in setting prices. In particular, the Agrarian Party sponsored an amendment that sought to establish a rigid correlation between the value of the land and the amount of the land tax assessed per unit of land. The method of defining the land's market value according to cadastre value was also discussed. On the other hand, those who were in favor of the consistent implementation of the free-market principle in land relations rejected, out of hand, administrative means of price setting, since it would lead to both the suppression of the real market value of land and the proliferation of a black market and land speculation. This position was most concisely formulated by Moscow mayor Yuri Luzhkov, who stated that "everything that is positive in the Land Code is reduced to naught by various provisions of the federal law On the Implementation of the Land Code of the Russian Federation, which establish price limits on land in populated areas."114

Against the backdrop of these discussions, the government's position appears to be one of compromise. As Gref noted, the government consciously pursued the policy of administratively regulating price ceilings on properties in populated areas based on their size. This was done based on the belief that the fundamental conditions that would permit the establishment of a market price-namely the free will of the seller and purchaser, as well as the unlimited period of time in which the object of purchase or sale could be exhibited on the market-do not exist in Russia. The federal law thus reflects a more pragmatic and shrewd approach. Aware of the fact that administratively established land prices do, in fact, turn out to be lower than real market prices, the government took the path of administrative price regulation because the redemption of land plots had already become an established practice in Russia. Most importantly, however, the government-in light of these facts-was seeking to encourage the owners of businesses or buildings to undertake the redemption and privatization of the land beneath them.

However, even the issue of government price regulation has not been conclusively settled, given the existence of the conflicting perceptions about its essential parameters. If, for some people, price regulation seems fully implemented, to others, it seems utterly lacking or patently insufficient, an extremely dangerous situation during the transitional period.

What, then, is the significance of the recently ratified codification of land legislation from the viewpoints of its adherents and opponents? Does it represent only the systematization of previously existing regulations in the land legislation of the post-Soviet period? Or does it go much further, constituting a genuinely new departure. By submitting the Land Code to the examination of the legislators, and by pressing ahead with its ratification, the government was emphasizing precisely this first, technical side of the codification. In the opinion of the government, the Land Code accomplishes "the systemization of legal standards regulating the procedures for granting land plots located on governmental and municipal property; takes the latest legislative changes into account; establishes the rights and obligations of persons who are owners and users of land plots; and consolidates an exhaustive list of the means and reasons for suspending and limiting the right to land." Consequently, the code is a "codified legislative act that determines the basis for the lawful regulation of land relations."15

In the government's view, existing Russian land legislation is in a state of chaos. According to Minister Gref, "the very procedure legally regulating land relations is so complicated, jumbled, and contradictory, that it is possible to apply it, selectively, in such a way so as to never be in violation of the law" (quoted from the minutes of a discussion of the Land Code in the Federation Council). A similar evaluation is found in expert decisions: "At the present time, land legislation represents a totality of unsystematized normative legal documents whose lack of codification leads to problems in their lawful application."16 According to Gref's calculations, more than 40 federal laws and over 60 presidential decrees and government resolutions exist in this area of law. According to I. V. Starikov, the administrative representative of the Kostroma Oblast, certain other figures are even more instructive: over the last decade, land law consisted of 31 laws, 44 presidential decrees, and over 180 government resolutions and all these, taken as a whole, provided the basis for the local ordinances that have served as the chief means of regulating land relations. The formally declared goal of codification is the elimination of contradictions and the systemization of land law, which under any interpretation will "not introduce anything revolutionary," since, in the words of Starikov, "the code codifies only those laws which are already on the books today."

Opponents of codification, however, saw the process in an entirely different light-as a review and revision of existing legislation. Though formally in agreement with the Constitution, they argued, the Land Code brings about a real revolution in existing legislation. First of all, the code is given priority over other branches of law. Articles 1-3 of the Land Code guarantee the priority of its regulations over all other regulations based on any legislation pertaining to questions of land use and preservation. Second, the code introduces radical changes in existing legislation (the civil and tax codes, federal laws). Third, it is written in such a manner that its regulations may easily be reinterpreted by successive legislative acts and in any way that might prove convenient.17 This last circumstance struck some as especially grave: "The ambiguity . . . of its formulations, its internal contradictions, and its broad and meandering regulations," complained V. E. Vishniakov, representative of the Chita Oblast in the Federation Council, "negate those limits the code allegedly establishes. . . ." The chief argument of the code's opponents lies in showing how the very act of systematizing and unifying land legislation will lead to the legalization of the spontaneous transformations that have taken place in the post-Soviet period, such as the appearance of the black market and the virtual self-arrogation (samozakhvat) of lands designated for agricultural use. "It was painful for me to watch," said the chairman of the Altai Krai Council of Peoples' Deputies, "the best agricultural land being closed off by concrete walls and metal fences without any regulations." The rationale of "Russian partitioning" guaranteed by the Land Code has as its goal a new "black repartition," resulting in still-worse social deterioration. (Black Repartition [Chernyy Peredel] was a radical organization founded in 1879 by Georgy Plekhanov that advocated redistributing land to the peasantry.) The government was thus blamed for distorting the true scope of the planned reform. According to A. G. Nazarchuk, "Those who attempt to say that the Land Code is relevant to two percent of the land in the Russian Federation are either deliberately lying or don't know what they're talking about."

In this way, the two conceptions of codification have collided from the very start: the first-as the simple systematization of existing legislation; the second-as the overall modernization of property relations.18

Any analysis of the discussions of the Land Code will reveal the lack of consensus on fundamental questions concerning the content of the law on landownership, and the law's possible limitations and inadequate criteria for its effective implementation; missing, too, is a unified vision of the political consequences of its ratification. Its provisions are overly capacious and conflicting precisely because the issue is one of the most important for Russia's future. The ratification of the Land Code was the result of a keen political battle between the supporters and opponents of private landownership, a battle that revealed the schism within Russia's post-Soviet elite. Early in the course of its consideration, it became apparent that the question of landownership was significantly broader than even its economic considerations would imply, and this left it uniquely susceptible to political conflict.

The power structure and conflicts of interest during the Land Code's ratification
The conflict over ratification of the Land Code was evident at various levels of government. It revealed the divisions between the center and the regions and, most importantly, between the political groupings in the upper chamber of parliament. The struggle passed through a number of stages, each of which revealed the particular characteristics of the separation of powers within Russia's political system.

One manifestation of the conflict was the factional infighting among political parties in the Duma. It emerged on April 25, 2001, following the government's introduction of the draft law of the Land Code. The more intense struggle came a bit later, however, when the opposition undertook to remove it from consideration on the basis of procedural violations that occurred in preparation for its second reading and to transfer discussion of the code to a conciliation commission. Despite these efforts, the Duma ratified the Land Code in its second reading on September 30, 2001, as a result of the combined vote of the Edinstvo (Unity) and right-wing parties in opposition to the left-wing and agrarian parties. The latter, which had enjoyed political dominance for many years, found themselves in the minority after the voting. As is well known, political parties of all stripes demonstrate a predictable attitude toward legal and parliamentary procedures: the further the party is from power, the more oppositional it is, and the more attention it pays to legal and procedural violations. This explains why the Communists, who had traditionally ignored procedural niceties, suddenly became the avant-garde in the fight for the purity of parliamentary procedures.

Another symptom of basic conflict was seen in the battle between the federal center and the regions concerning the Land Code's content and the procedures for its ratification. Here, a conflict of interest arose between the ethnically non-Russian elite and the center regarding the oversight of lands and mineral wealth. An opposition bloc formed whose members consisted of left-wing Duma delegates as well as a significant portion of the regional legislative assemblies and their representatives in the upper house. The conflict thus turned the ratification of the code into a public-policy issue.

Unable to resolve the question by majority vote, the opposition thus resorted to moving substantive discussion of the code to a procedural plane. When the government introduced the draft law of the code, on May 15, 2001, to the Duma, it was sent (according to Art. 72 of the Constitution) to the legislative assemblies of the federation's subjects for the preparation of comments and proposals. It was this mechanism that the opposition tried to use in order to block ratification. The legislative bodies of 34 subjects of the Russian Federation issued opinions of nonconsent with the draft of the code introduced by the government.19 Over a third of the regional legislative assemblies proposed voting down the code and creating a conciliation commission. However, the government could not or would not agree to this turn of events, and the Duma's majority voted against the recommendation either to remove the code from consideration or to create a conciliation commission.20 This signified the political defeat for the Duma's left-wing opposition.

The third phase of the conflict was the political battle within the Federation Council. In many countries, the upper houses of bicameral legislatures traditionally reflected the interests of the landed oligarchy, which frequently opposed agrarian reforms. The Federation Council's position was no exception as an institution, the Council had come into being as a compromise between the center and the regions during the 1993 political crisis, and to this day it remains a reliable stronghold of regional interests. This final phase of the conflict most clearly exposed the mechanisms for ratifying decisions, the struggle between the political groupings, and the role of the presidential administration in achieving the executive's stated political goals. At this stage, social and political conflicts, and shifting role of the Federation Council, were transformed into a backstage bureaucratic intrigue that determined the result of the final vote.

From the outset, a significant number of the members of the Federation Council made no effort to conceal their critical attitude toward the planned land reforms, since they perceived them as a threat to regional economic independence and an infringement on the corporate interests of regional governors. An analysis of materials prepared by the Legal Department of the Federation Council leaves not the slightest doubt of this.

The Land Code was subject first to an obligatory study in the Federation Council based on Art. 106 of the Constitution, since it contained provisions relating to issues of federal regulation (budget, taxes, and duties). Second, while the analysis and assessment of the proper observance of procedural rules for ratifying decisions by the State Duma or those of regional legislative assemblies did not fall under the authority either of the Council or its apparatus, the Legal Department was not without impact. Although its recommendations to the senators did not, as a rule, contain a definite negative verdict, they nonetheless implied it. Moreover, the mere fact that the Federation Council made a point of studying expert legal opinions is evidence of the issue's contentiousness.

There is no doubt of staunch regional opposition to the Land Code. How, then, does one explain its ratification in the Federation Council? How did the code's supporters succeed in passing it, especially after disparaging the opposition's arguments as "myths," undeserving of serious attention? We should not look for the answer to these questions in the abundant legislative discussions, or in the finer points of parliamentary procedure, but in the logic of the political battle that unfolded within the Federation Council itself. While this struggle, following the traditions of apparat intrigue, was not directly observable, certain manifestations are open to scrutiny. No doubt, too, the nature of the newly overhauled body determined the battle's general institutional limits and character. But more importantly, new laws had radically altered the procedures for bringing the membership of the Federation Council up to full strength; this greatly changed its nature and also introduced new administrative rules. Taken together, these factors determined the content of the minirevolution that turned the Federation Council from a stronghold of regional opposition into a manageable body devoted to legislative discussion. There also existed three main pressure points on the Federation Council-pressure directly from the president, from political factions in the Duma sympathetic to the president, and, finally, from the so-called Federation group whose modus operandi was carried out in the finest traditions of covert bureaucratic machination. These three pressure points were clearly in evidence at the moment of voting.

The internal struggle in the Federation Council culminated in the administration's long-sought-after result: contrary to the initial and, as we have seen, quite negative opinion of the Land Code, it was, by the day of the vote, approved by five committees in the Federation Council. Only one committee (the Federation Council's Committee on Agrarian Policy) voted in favor of rejecting the code and creating a conciliation commission. As a result, all opposition dissent was easily overcome, the creation of the conciliation commission was avoided, and the political influence of a third of the federation's subjects was weakened. In the final analysis, the code's ratification in the Federation Council was guaranteed, and, contrary to expectations, it received overwhelming approval. No less substantial was the approval of the federal law on the Implementation of the Land Code of the Russian Federation. The ratification of this federal law was all the more peculiar, since it was the object of the greatest number of accusations regarding exclusion of the federation's subjects from real participation in land reform.

A comparison of the voting tallies on the Land Code within the Federation Council with those of the Federation group clarifies the situation. Out of 141 votes within the Federation Council, 103 senators were in favor of the Land Code, 29 against, and 9 abstained. Following this, the enabling law, On the Implementation of the Land Code of the Russian Federation, was approved. Out of 137 votes cast, 106 senators voted in favor, 21 against, and 10 abstained. As to the position of the Federation group, it should be noted that by the time of the vote, this group had come to occupy a leading position in the Federation Council, guaranteeing (in the event of consolidated voting by its members) the automatic passage of both draft laws. Within the 178-seat Federation Council, the number of Federation-group members stood at 106 (or 59.5 percent). Out of the 103 members of the Council who voted in favor of the code, 75 (or 72.8 percent) were Federation members: hence the group's dominant role in the code's ratification. As a whole, the results of the voting not only signify the total defeat of the opposition in the upper chamber but are also clear evidence of the change in its political composition.

The function of the Land Code and modernization
As history demonstrates, the agrarian question cannot be resolved without conflict. The only reasonable response to major social crises is the timely implementation of radical reforms undertaken by the government. Ideally, these should be introduced through legal channels and designed to minimize their social cost during a transitional period. Russia today is compelled to resolve issues that most countries in Western Europe had wrestled with during the industrial revolution of the nineteenth century, a time when radical solutions to the agrarian question were the source of such social ills as poverty, proletarianization, and pauperism. Until recently, all attempts to resolve the agrarian question in Russia have been unsuccessful, because they have come up against the overwhelming dominance of agrarian relations and the traditionalism of the peasantry-the most fundamental single segment of the country's population.

The current reforms, however, are being implemented in a very different historical situation: the industrial revolution has run its course and urban populations predominate over rural. Nonetheless, the tasks facing today's reformers remain, in many respects, similar to those of their predecessors. It is important that the agrarian question move away from the arena of social conflict to the area of legal and technological process. Awareness of this is an important conclusion reached by the entire post-Soviet political system. In the opinion of Gref, "Russia has become ripe for the introduction of private landownership." But this statement is only an echo of Stolypin's words. How much does this conclusion correspond to reality?

The legal resolution of the agrarian question in contemporary Russia continues, as in previous times, to run up against a number of obstacles. First, there is the lack of a stable, historical tradition of private property in general and of private ownership of land in particular. Second, there is an incomplete understanding of private property among broad sectors of the population. According to opinion polls, the majority of citizens oppose private landownership, and in rural areas, this opposition is close to unanimous.21 Third, there is the opposition to reform by powerful traditionalist forces in the form of the collective and state-farm lobbies and their closely allied regional bureaucracies that rely on the support of their collectivist-minded electorate. The central government, or more accurately, the enlightened bureaucracy, acting as the initiator of agrarian reforms cannot, therefore, rely on a broad social base (or a stable social consensus) and is forced into political maneuvering and compromises, which can have a retrograde effect. It finds itself on the horns of a dilemma-torn, on the one hand, between the objective necessity for reforms leading to the country's modernization and, on the other, the threat of a loss of social stability, predictability, and control.

This explains a very important characteristic of Russian reforms regarding land-their cyclical nature: each step forward in the area of agrarian restructuring was accompanied, at least until recently, by a movement in the opposite direction, combined with the restoration of earlier institutions in modified form. In this sense, the entire Soviet collective and state-farm system, which contemporary land legislation is designed to destroy, appears in extended historical perspective to be a reaction against the liberal agrarian reforms of the last era of autocracy-from the Great Reforms of the 1860s to the Stolypin reforms of the early twentieth century. The linkage is one of which today's reformers are fully aware. The cyclical nature of Russia's agrarian reforms is a stubborn reality, but the Black Repartition is hardly Russia's permanent fate. It is no accident that today's Communist critics of the Land Code are essentially repeating the arguments of their predecessors, the conservative landowners. Both, in their times, have argued that the reform will lead to the destabilization and disintegration of the state; to the colonization of the country by foreign financial might (and by an ethnically non-Russian mafia); to increased social stratification and poverty, ethnic conflict, a weakening of the national defense; and to a plunge in the people's morale. In the case of land privatization, they predict massive new "agrarian disturbances." Though these arguments are basically demagogic ones, they do have a basis in reality.

The combined difficulties of implementing agrarian reforms in Russia have the effect of narrowing the field of mechanisms available for their realization. Given the present state of affairs, reform is absolutely vital-no reasonable alternative to it exists. However, as was true in the past, its implementation becomes possible only through the active, guiding participation of the government, which must assume responsibility for the social costs the process entails. Consequently, the means for implementing reform take on a bureaucratic character attainable only by way of apparat-style machinations, by excluding the participation of the general public, and by putting pressure on the opposition. To a remarkable degree, this replicates the same model formulated and applied in the practice of Stolypinist agrarian bonapartism.22

The ratification of the Land Code was a political compromise. All the participants in its evolution-the sponsors of the new legislation as well as their opponents-acknowledge this fact. In the words of Gref, "It was a compromise [on all sides], including the members of parliament." Stroev also described its ratification as a compromise. This compromise truly encompassed all sides in the struggle: the supporters of private landownership and their opponents, the political right and the political left, the nationalists and the Westernizers, the supporters of centralization and of decentralization. Yet by the same token, the compromise was not the result of consensus among political groups; it was a bitter clash that ended in the domination of one over the others.

This "forced compromise" ratification of the Land Code accounts for many of its characteristics, as noted by its critics: a general erosion of the legal concept of property and its components (possession, disposition, and so on); a lack of coordination between or contradictions of existing legal regulations in other areas of law (especially civil law), itself evidence of the instability of private law as a whole; contradictions within the code itself; the abundance of exceptions to the law of private ownership (usually for lands designated for agricultural use and other land-based resources); the repeated references to nonexistent federal laws; the absence of clear procedures and regulations in the code's implementation that could result in abuses (in particular, the limitation and abolition of property rights); and lastly, the code's overall tone of bombastic high-mindedness.

The Land Code's limitations are most apparent when compared with Ukraine's Land Code. In Ukraine, the Land Code was ratified virtually at the same time as Russia's. The Ukrainian parliament approved it by a majority of 232 votes, and it quickly received presidential approval. In fact, the nearly simultaneous ratification of the codes in both countries raised suspicions that they were drafted and ratified under Western influence. Yet the Ukrainian law turned out to be more radical than the Russian one; it permitted the sale and purchase of land designated for agricultural use. Its single limitation was a five-year moratorium on its implementation (the commercial exchange of land will begin only in 2005). Under the provisions of the Ukrainian code, any peasant with Ukrainian citizenship will be able to receive up to 100 hectares of high-quality land free of charge. Again, specialists have come to opposite conclusions regarding the code's significance. If some call it a radical revolution, which could turn Ukraine into an agricultural El Dorado, others see it as a largely symbolic step, the result of a tactical compromise between the parliament (which approved the code in exchange for a new electoral law) and the president. However, everyone agreed that this step was evidence of the crushing defeat of left-wing forces, which, for all their unyielding opposition, failed to derail its ratification.

Ukraine's code does contain a legal imperfection-it still lacks a mechanism establishing the procedures for its implementation. Yet, like the Russian Land Code, the Ukrainian legislation leaves oversight and redistribution of real property in the hands of the government. The most significant difference is the fact that Ukraine's legislators took the path of theoretically recognizing the possibility of privatizing lands designated for agricultural use. Thus, political compromise is the order of the day in both countries, but its results are substantially different from one another. What is the reason for this?

In both cases, there is a conflict of a similar sort between similar social forces-between the government bureaucracy and oppositional agrarian bodies, which, in Russia, are traditionally stronger. The development of the conflict also shares analogous parameters: the ratification of the Land Code (which assumes the privatization of land) was initiated by the government as an essential step for a new technological push-the attraction of investment. The chief opponent of the reform turned out to be the collective and state-farm lobby-a social hybrid of the state and its rural population. As the historical successor to the peasant commune (obshchina), many see the collective as a special kind of social stabilizer during the transition to a market economy, one that ameliorates overt social discontent and prevents poverty. In reality, however, it represents a neofeudal structure, the legacy of the Soviet collective-farm system. Putting power and property under the control of one institution, it introduces a superfluous element of traditionalism in contemporary civil society. Ultimately, it leads to the inevitable collision between rural and government interests on the path to a civil society. At a social level, it is expressed in the antithetical principles of agrarian collectivism and bourgeois individualism, in the clash between backward agricultural regions and industrial centers, between indigenous peoples in the national territories and other citizens, between the federation subjects and the federal center, and finally, between the central and regional bureaucracies.

The analysis of this conflict and its resolution reveal a transformation in the Russian political system and in the mechanism of its separation of powers. At each stage of this transformation's development, a different segment of the political spectrum was deactivated. In the first phase, the agrarian and left-wing opposition parties were rendered harmless; in the second, it was the regional elite who found themselves in the minority; and in the third, the long-established membership of the upper chamber of parliament was substantially revised, and the institution ceased to function as an independent political entity.

Thus, despite the fact that the code's supporters were successful in winning its ratification, their achievement cannot be called a decisive victory. The code's passage did not reflect the kind of broad political and social consensus that is vital for transformations of this scale. Because of this, the code's ratification has an impermanent and reversible quality. In theory, it is possible that the code will undergo future reevaluation, either as a result of a realignment of parliamentary forces, or because of difficulties encountered in the course of implementation. The conflicts-between the Russian Federation's subjects and the center, between the legislative and executive powers, between the two houses of parliament, and, in the final analysis, between various groups of the political elite-were resolved not through dialogue (which proved to be impossible), but by excluding the code's opponents from the decision-making process. This was made possible by the unfailing delegation of responsibility to ever-higher levels of government-all the way up to the president as guarantor and supreme arbiter of the Constitution. The president's authority (with the support of a parliamentary majority) played the decisive role in every phase of the conflict. And ultimately, it was the power of the president that guaranteed the legitimacy of the reform.

In this way, the latent conflict between the means and the ends was and, indeed, remains the fundamental contradiction of the reform. Its ostensible goal is the creation of a civil society, yet with limited public support, the means of accomplishing this are inevitably by means of increased centralization and administrative regulation. From this perspective, the Land Code may be seen as a moderate step in the direction of a civil society, if only because it openly articulates the topic of landownership for all that it does not wholly solve its problems.

Andrei Medushevsky is a specialist in comparative constitutional reforms in Russia and a professor at the Higher School of Economics in Moscow, where he teaches comparative constitutional law and political science. He is also a consultant for the Institute of Law and Public Policy in Moscow and a member of the editorial board of Konstitutsionnoe Pravo: Vostochnoevropeiskoe Obozrenie, the Russian-language sister edition of the EECR.

NOTES

1. M. V. Baglai, Konstitutsionnoe pravo Rossiiskoi Federatsii (Moscow, 1999), p. 145.
2. See, G. A. Gadzhiev, S. G. Pepeliaev, Predprinimatel nalogoplatelshchik gosudarstvo: Pravovye pozitsii Konstitutsionnogo Suda Rossiiskoi Federatsii (Moscow, 1998).
3. See E. Sukhanov, "Poniatie prava sobstvennosti v rossiiskom zakonodatelstve i v modelnom Grazhdanskom kodekse dlia stran SNG," Konstitutsionnoe Pravo: Vostochnoevropeiskoe Obozrenie, no. 4 (2000); no. 1 (2001), pp. 85-88.
4. Konstitutsiia Rossiiskoi Federatsii: Problemny kommentarii (Moscow, 1997).
5. See a Resolution of the Constitutional Court of the Russian Federation, June 7, 2000, no. 10-P, evaluating the constitutionality of individual provisions of the constitution of the Altai Republic and the federal law On the General Principles of Organization of Legislative (Representative) and Executive Organs of State Power of the Subjects of the Russian Federation. See also the decision by the Constitutional Court, June 27, 2000, No. 92-O, issued at the request of a group of delegates of the Duma on the consonance of the Constitution of the Russian Federation with individual provisions in the constitutions of the Adygea Republic, the Republic of Bashkortostan, the Republic of Ingushetia, the Komi Republic, the Republic of North Ossetia-Alania, and the Republic of Tatarstan.
6. L. Skainer, "Privatizatsiia zemli: Politicheskii konflikt i pravovaia neopredelennost," Konstitutsionnoe Pravo: Vostochnoevro-
peiskoe Obozrenie, no. 2 (2001), pp. 149-58.
7. Especially important are the presidential decrees of October 27, 1993, "On the Regulation of Land Relations and the Development of Agrarian Reform in Russia," and that of March 7, 1996, "On the Implementation of Citizens' Constitutional Right to Land."
8. Here, and just following, are citations from the discussion of the Land Code taken from the minutes of the Federation Council and State Duma.
9. Committee on Constitutional Legislation and Judicial and Legal Questions of the Federation Council, "Decision on the Land Code of the Russian Federation," October 9, 2001.
10. An open letter (October 8, 2001) written by State Duma deputy and Agrarian Party chairman M. I. Lapshin to members of the Federation Council.
11. Conclusions Regarding the Land Code, by the Legal Department of the Apparatus of the Federation Council, October 4, 2001.
12. Address of the Deputies of the Legislative Assembly of Krasnodar Krai to the Deputies of the State Duma of the Russian Federation, May 29, 2001.
13. Concerns of this sort (such as limiting the traditional rights of land use) are notably expressed in the Decision Regarding the Land Code of the Russian Federation, written by the Committee on Northern and Ethnic Minority Affairs.
14. See the October 9, 2001, recommendations by the members of the Federation Council I. M. Luzhkov and V. K. Plotnikov concerning the ratification of the Land Code of the Russian Federation and the federal law On the Implementation of the Land Code of the Russian Federation by the State Duma.
15. From the official response of the government to the Land Code and the federal law On the Implementation of the Land Code of October 8, 2001, signed by the deputy chairman of the government, Viktor Khristenko.
16. Decision Regarding the Land Code of the Russian Federation, by the Committee on Federation Issues, Federative Agreements, and Regional Policies of the Federation Council.
17. The most concisely formulated negative position is found in the Decision on the Land Code of the Russian Federation, by the Committee on Agrarian Policy of the Federation Council and in a speech given by its chairman, E. S. Savchenko.
18. In this regard, the differences in the interpretation of codification as a concept are quite obvious. In the Government's official response, it is taken to mean "the systematization of legal standards," the codification of "normative legal documents" (in the Decision of the Committee on Federation Issues, Federative Agreements, and Regional Policies of the Federation Council), and as "the codification of laws" (speech of I. V. Starikov). Political reasons-not legal dogma-are behind the differences: Should codification include only regulations in laws, or should it also consider the provisions of a significant number of subordinate acts (acts that, in the opinion of their opponents, changed the content of laws)? Hence, the resulting conflict between the two kinds of codification and the various strategies for its implementation, which is a consistent theme in a large number of documents and speeches.
19. These opinions were explained and justified in a special document, Information on Procedural Questions Concerning the Participation of Subjects of the Russian Federation in the Course of Examining the Draft Law of the Land Code of the Russian Federation, prepared by the Legal Department of the Apparatus of the Federation Council. Its authors flatly rejected the legitimacy of
the decisions made by the State Duma and asserted the necessity
of "creating a conciliation commission with the participation of deputies of the State Duma and representatives of the organs
of governmental power of those subjects of the Russian Federation interested in the issue."
20. For more detail on the ratification of the Land Code and the procedural conflict, see Sovet Federatsii i konstitutsionnye
protsessy v sovremennoi Rossii: Biulleten (October 2001), at www.Ilpp.ru/publications.
21. Rynochnaia transformatsiia selskogo khoziaistva: Desiatiletnii opyt i perspektivy (Moscow, 2000); Transformatsiia ekonomicheskikh institutov postsovetskoi Rossii (Moscow, 2000).
22. A. N. Medushevsky, "Russkii bonapartizm," Rossiia v usloviiakh transformatsii, no. 9 (Moscow, 2001).