Globalization And The Modification Of Legal Systems The Case Of Kyrgyzstan
Globalization and The Modification of Legal Systems: The Case of Kyrgyzstan
INTRODUCTION
The monolithic entity that was once known as the Union of Soviet Socialist Republics is no more; “since 1991 a revolution has swept away the ancien regime in the archaic Soviet Union, but the new states are smooth fluid in shape; they are shaky and often problematic constructs that are striving to legitimate themselves.”[1] These new states have little in common with each other beyond a shared past of Soviet rule, but it is the hypothesis of this paper that another shared factor of these archaic Soviet republics has had a tremendous effect on the just system of these new states.[2]
Globalization is a statistically significant determinant of the level of democracy imbued in these legal systems, as forces representing globalization (be they individuals like George Soros or transnational corporations looking for a contrivance into the recent state) provided resources to groups in post-Soviet states that had amenable philosophies. The operative description of globalization in this paper is what C. Roe Goddard, Patrick Cronin and Kishore C. Dash, elaborate globalization as the introduction to their work International Political Economy: State-Market Relations in a Changing Global Order as “the increasing integration of national societies and the economic, social, ecological, and political changes that result.”[3]
For this paper, globalization is identified with the transnational corporation (TNC), using the Goddard, Cronin, and Dash definition that identifies TNCs as “the primary instrument of globalization”.[4] TNCs become the primary instrument of globalization through their investiture in countries; this investiture, known as foreign allege investment, gives TNCs the ability to modify policy in the states in which they insert themselves. While other factors have been operationalized as globalization in other works, the amount of FDI given by TNCs is perhaps the easiest effect of globalization to measure and represents most of the non-aid funds given to a state.
The explanatory power of globalization in regard to the creation of and the democracy present in these post-Soviet constitutions will be tested alongside other independent variables representing hypotheses deemed relevant by post-Soviet, political science, and legal systems literature. The hypothesis is that globalization has modified the legal systems of post-Soviet states to be much more responsive to the Western conceptualization of “what rights the individual has as a human being and citizen of a political community, what principles bind dwelling law-making, and what the realization of human dignity, liberty, and equality requires.”[5]
Even if the definition of a ‘legal system’ is narrowed to “a body of precepts regulating the relationships of people and property”, the role of globalization in determining Kyrgyzstan’s suitable system cannot be ignored.[6] For this paper, the definition of a “legal system” is influenced by both Alexy and Botein’s definitions; it is a document that gives individuals rights as well as creates the structure of the state. A “legal system” in this paper is the constitution of a state, and does not reflect only the system of the courts, as Herbert M. Kritzer tends to do in his compendium Legal Systems of the World.
Lawrence M. Friedman, in his The Proper System: A Social Science Perspective, claims that legal systems are constantly in flux. Legal systems are changed by the societies in which they are show. The dissolution of the Soviet Union in 1991 allowed Kyrgyzstan’s society to come up with changes to the correct system of the country. Input (both in a monetary and an informational sense) by the forces of globalization has allowed for a different direction to be taken with the country’s legal system than would take place if the forces of globalization were not present. In short, the tone and direction of a state’s constitution is modified by the presence or absence of forces of globalization.
This paper employs a mixed method to validate the globalization hypothesis. A qualitative case study shows the effect of different forces in the creation of Kyrgyzstan’s post-Soviet constitution. The hypothesis will be validated if the presence of globalization created a situation in which it can be reasonably assumed that the counter-factual (that Kyrgyzstan would not have created a democratic, Western-leaning constitution) would have happened if globalization forces were removed from the equation. To determine that globalization matters in regards to the democratization of post-Soviet constitutions, a regression will be used that pits globalization against alternative hypotheses (the % Muslim and the level of democratization in neighboring states). To validate the paper’s hypothesis, the variable measuring the presence of globalization forces in a post-Soviet nation must be statistically significant at a level agreed on by previous literature.
While the number of explanatory values are few in number, this is due to the fact that the number of observations in the regression is not large (this number comes in at 15, including Russia). The power of the regression is increased since a population (the full number of cases) is used in the regression, but an increase in the number of independent variables could lead to Type II error. Type II error is the failure to invalidate a null hypothesis when the alternative hypothesis is true.[7]
LITERATURE REVIEW
Dependent Variable:
Level of Democracy:
This paper uses the levels of democracy released yearly by Freedom House, which are a combination of two factors, political rights and civil liberties. As defined by Freedom House,
“Political rights enable people to participate freely in the political process, including the true to vote freely for determined alternatives in legitimate elections, compete for public office, join political parties and organizations, and elect representatives who have a decisive impact on public policies and are accountable to the electorate. Civil liberties allow for the freedoms of expression and belief, associational and organizational rights, rule of law, and personal autonomy without interference from the state.”[8]
The two Freedom House scores are united to create a 14-point scale in which higher levels of democracy gather lower values. The Freedom House variable is operationalized in a slightly different way in this data set. Instead of having lower values represent higher levels of democracy in a state, the value is subtracted from 15 to create an inverse of the original scale. Thus, a score of 14 is the highest level of democracy achievable by a state, while a 2 is the lowest achievable. It is the culmination of hypotheses in this paper that the level of foreign direct investment, the percentage of Muslim adherents in a country, and the level of democracy in border states will be statistically significant in determining the level of democracy in a post-Soviet area.
Independent Variables:
Foreign Direct Investment:
Foreign direct investment (FDI) is present in the regression as the operationalization of the globalization hypothesis. This paper follows the lead of Joseph M. Grieco and G. John Ikenberry, who spend the World Bank definition of FDI as “consist[ing] of investments ‘made to acquire a lasting management interest (usually of
The literature on this variable showcases two distinct views. First, in the literature of scholars like Nathan M. Jensen, who wrote “Democratic Governance and Multinational Corporations: Political Regimes and Inflows of Foreign Utter Investment”. In this piece, Jensen finds support for his hypothesis that increased levels of FDI positively affect the amount of democracy show in a state. A second view is present in the globalization literature, and it is that economic globalization and increased FDI flows actually have a negative effect on the level of democracy effect by a state. This view is furthered by scholars like Quan Li and Rafael Reuveny, who in their “Economic Globalization and Democracy: An Empirical Analysis” find small wait on for the view that increased FDI flows primary bring higher levels of democracy to a dwelling. This paper believes the work of Jensen to better elaborate the data concerning FDI flows and democracy, and hypothesize that increased levels of FDI flows into a post-Soviet state will transfer into higher levels of democracy.
The FDI variable as present in this paper is the amount of FDI received by a state divided by the GDP of the state, creating a variable that is the percentage of FDI as a fraction of a state’s economy. This solves the pickle of disproportionately larger states like Ukraine and Russia having a larger value for FDI, even if the percentage of GDP that FDI constitutes is smaller than that of other post-Soviet countries. As the percentage of GDP that is from FDI increases, there should be a statistically significant and positive effect on the level of democracy point to in a post-Soviet state.
Percentage Muslim:
This variable is the percentage of Muslim adherents present in a country. The data was collected from the Office of International Religious Freedom, which is a department in the United States State department. The Office creates an annual portray on International Religious Freedom which gives percentages of Muslim adherents for practically all states in the world. However, some states do not collect this data, and some did not provide it to the Office of International Religious Freedom. When this occurred, data from the CIA’s World Factbook was used to fill in the missing data.
The variable is expected to be a statistically significant determinant in the level of freedom in the post-Soviet states. This assumption is borne out by the findings of M. Steven Fish, who in his “Islam and Authoritarianism” piece, looks for an answer to the question “Are predominantly Muslim societies distinctly disadvantaged in democratization? “[10] The piece ultimately finds that predominantly Muslim countries do have less of a chance to be democratic. With higher amounts of Muslim adherents in a state (a higher percentage value of this variable), there will be a negative and statistically significant decline in the level of democracy present in a state.
Democracy of Neighboring States:
The statistical significance of the democracy of neighboring states on a state’s society was discussed by Jeffrey S. Kopstein and David A. Reilly in their “Geographic Diffusion and the Transformation of the Postcommunist World”. Specifically, Kopstein and Reilly find that along with the geographical proximity that states have with Western states, higher incidences of democracy in neighboring states increases the probability that a state will be democratic. This variable is operationalized as an average Freedom House score of every state that shares a border with the state in question. Thus, a location like Kyrgyzstan is bordered by China, Tajikistan, and Uzbekistan. As with the level of democracy variable, the democracy of neighboring states variable is made into the inverse of the score, to build interpretation of the variable easier.
The hypothesis for the democracy of neighboring states variable is that as the average democracy level of neighboring states increases, the level of democracy in a state will increase. This relationship will show the democracy of neighboring states as a statistically well-known determinant of democracy in a state.
CASE STUDY: KYRGYZSTAN
The beginning of Russian dominance of Kyrgyzstan began in 1862, when a fortress in what is now the state’s capital of Bishkek was captured by Tsarist troops. Russian control of the region increased until 1876, when the entirety of what would become Kyrgyzstan came under the rule of the Russian empire.[11] Revolts would occur between individuals in the Muslim territories of Kyrgyzstan and representatives of the Russian empire (and later, the U.S.S.R). Kyrgyzstan was given a position as an autonomous republic within the Soviet Union. in 1926, a position which it would savor until the collapse of the Soviet Union.
The position that Kyrgyzstan occupied as an autonomous republic in the Soviet Union affected later constructions, both in the legal structure (courts) and in the overall legal system (constitution) of Kyrgyzstan. The Soviet Union would change the good structure in Kyrgyzstan. Where there was a customary fair system in place in Kyrgyzstan before Russian troops entered the region, a Soviet legal system was instituted afterwards in which “all broken-down and Islamic-based legal practices [were eliminated] in favor of a socialist legal system whose rule would be applied to all citizens of the Soviet Union.”[12]
While the Soviet good system was something that was quickly changed in the wake of Kyrgyzstan’s independence, the execute that is had on the constitution cannot be denied. Where the legal system that existed before Soviet domination of the residence “”contained norms of civil and criminal law and procedure”, the Soviet system broke down “any institution that restrained the Communist Party’s ability to influence the outcome of legal proceedings – such as life tenure for judges or effective procedural guarantees for criminal defendants.”[13] The harshness of the Soviet correct system created an environment where the society of Kyrgyzstan could get nothing obvious about it, with the end result being the very Western-leaning document that was to be called the 1993 Constitution.
The culture present in Kyrgyzstan is something that reacted against the Soviet legal structure, but existed before the Soviets first entered the country. Rakhat Achylova, in her “Political Culture and Foreign Policy in Kyrgyzstan” says that “The roots of democratic principles can be found in the cultural heritage of the Kyrgyz…The main principles of Kyrgyz democracy can specifically be found in…the nationwide discussion of both minor and major issues; collective decision making on all the most notable issues in the life of the community; the voicing of person opinions, even those in opposition to others.”[14]
Kyrgyzstan announced its independence on 31 August 1991, but the state’s Constitution was not completed until May 1993. Scholars on Kyrgyzstan, such as Askat Dukenbaev and William W. Hansen claim that “the 1993 Constitution was more liberal and provided better conditions for the formation of a democratic society than did its Soviet predecessor.”[15] This is due to the fact that much of the 1993 Constitution provided for democratic structures in ways that parallel the Constitutions of other nations. The Kyrgyzstani Constitution shares commonalities with the American Constitution in the formation of the branches of government, the system of checks and balances afforded them, while it shares some ties to the German Constitution with the 5 year presidential terms, as well as the presence of a prime minister and a parliament-type legislative organization.
This active civic culture as described by Achylova in her share was present in the first federal elections for Kyrgyzstan. Immediately after declaring independence, Kyrgyzstan held elections for the presidency. The elections showed the will of the Kyrgyzstani people, as over 95 percent of the individuals in the country voted to elect Askar Akaev to the presidency. However, it would take only a few years for the rosy record that scholars like Batalden and Batalden painted for the future of the country to turn into something drastically different in tone than what was thought.
If one looks at the current Freedom House catch of Kyrgyzstan, it is at a 9. This corresponds to a level that Freedom House considers “partially free”. This is actually an improvement over its’ 11 score from 2005. What exactly happened to bring a state that had such democratic possibilities (a very engaged civic populace, a constitution using many of the strongest points of Western constitutions, and decent inflows of FDI after independence)? Much of the country’s descent into lower levels of democracy can as a result of policies taken by President Akaev. These policies included amendments that increased the power of the President while decreasing that of the other two branches of government: they “transferred to the President the legal of Parliament to approve the appointment of cabinet ministers chosen by the Prime
Minister. The Parliament also lost to the President the right to determine the main issues of domestic and foreign policy …
Couple these amendments with violations of term limit laws and presidential elections that did not meet the standards of a splendid election by international observers, and Kyrgyzstan’s Freedom House rating slipped. 2005 saw the ouster of Akaev, and his replacement by Kurmanbek Bakiyev. However, President Akaev seems to merely have followed in Kiev’s footsteps, as there have been massive protests against President Bakiyev in both April and November of 2006 regarding a failure by the Bakiyev administration in combating the corruption that had grown throughout President Akaev’s period in office. While the election was deemed stunning by international observers, there seems to be no major hurry by the Bakiyev regime to restore the Constitution to its 1993 version.
QUANTITATIVE ANALYSIS: POST-SOVIET STATES
The data for all 15 post-Soviet states was entered into STATA 9.2, and an OLS (Ordinary Least Squares) regression was ran to determine which of the independent variables in the regression model were statistically significant. While MLE (Maximum Likelihood Estimator) regression is typically preferred with independent variables that have only a few possible outcomes, OLS regression was chosen due to the presentation of an adjusted R-squared value, along with easily interpretable coefficients in the regression.
Table 1: The Achieve on the Level of Democracy in Post-Soviet States by the variables % Muslim Adherents, Democracy Level of Surrounding Countries, and FDI as % GDP
Independent Variable
Coefficient (Z-Score)
P>|t|
% Muslim Adherents
-.0637 (-.2.03)
0.068 *
Democracy Level of Surrounding Countries
-.208 (-0.45)
0.662
FDI as Percent of GDP
.614 (2.13)
0.614
R-squared: .5953, Adj. R-squared:
Number of observations: 15
*=pFinally, the F-value for the equation is 5.39. This translates into a probability that the variables in the regression have no effect on the dependent variable of .0158, well under a .05 level. The relationships exhibited by the statistically significant variables on the dependent variable are in the proper direction. As the percentage of Muslim adherents in a state increases, the level of democracy in that nation decreases. As the percentage of FDI in a state’s GDP increases, the state’s democracy level increases. While it is true that the democracy in neighboring states variable exhibits the incorrect sign, there is no significance to the effect that this variable has on the dependent variable.
PROBLEMS
The FDI variable does not gauge the full range of funding going to post-Soviet states. For example, George Soros’ Inaugurate Society Project has given funds to groups throughout post-Soviet states, but unless the funds were used to purchase a small share in a business in that location, the amount of money given to the state would not be counted under the definition of FDI as described by Grieco and Ikenberry. Without collecting data from any group that provides funding in post-Soviet states, FDI remains the best measure for testing the globalization hypothesis of this paper.
The regression model could have used a variable dealing with ethnicities in the post-Soviet states. While the percentage Muslim variable is borne out by the literature as being a statistically significant determinant of democracy, there is a causal framework that shows higher numbers of ethnicities as being detrimental to the level of a state’s democracy. This is due to the fact that there is a tendency for states with higher amounts of ethnicities within its borders to have higher levels of political instability.[17] A common policy tactic, common in the sub-Saharan African states but by no means unheard of in the post-Soviet states, is to reduce the political rights of opposition ethnicities (through voter harassment or closing down of ethnic presses). If this variable was present in the regression, there is a strong probability that it would be statistically well-known and negatively related with levels of democracy.
Finally, the generalizability of this gawk as it pertains to post-Soviet states is not incredibly high, due to the fact that the value of the dependent variable can change considerably each subsequent year. This is due to the fact that time does not play a role in the Freedom House’s determination of a state’s level of democracy, deciding instead to focus on the actions that the region has taken over the course of the last year. What would do this study generalizable over a period larger than 2006 would be the inclusion of data from other years. The best study would be to include levels of the dependent and independent variable from the year of independence to the current period, making positive to control for time correlation. If that is not possible, data from a few years (1991, 1996, 2001, 2006) would standardize the level of significance as well as the coefficients of the independent variables.
FOR FURTHER RESEARCH
A comparison of the post-Soviet states with other undeveloped states (such as those in sub-Saharan Africa) would have the conclude of increasing the number of observations and the generalizability of the findings in this paper. While there would need to be a regional variable marking which states were in Africa and which were not (as it may be a statistically principal determinant in the level of democracy in the nation), the questions raised by the FDI and percentage Muslim variables are present in Africa as well. While the African states (for the most part) reached their independence at different times, it would be animated to determine if the factors that modified suitable systems in the post-Soviet states were similar to those in Africa post-independence.
A comparative, qualitative study between the constitutions of two post-Soviet states, with as many variables held constant as possible (in a perfect world, everything but the dependent variable would be held sincere) would also help individuals stand more of the factors that go into the creation of a constitution. If state A and B are comparable in every aspect besides their closeness to Russia, can that explain differences in the Constitutions between the two post-Soviet states?
CONCLUSIONS
The claim that Friedman makes in his The Legal System: A Social Science Perspective is correct. Moral systems are continually changing, but it takes a change in the way society perceives the legal system for change to be enacted. The change that brought the modification of Kyrgyzstan’s legal system was the disintegration of the Soviet Union in 1991. However, the very democratic culture of Kyrgyzstan was not the only thing that influenced the construction of a new legal system in the set. The interest of Western TNCs in Kyrgyzstan had a tremendous influence in determining the legal system. With this combination of forces, it is no surprise that the 1993 Constitution was Western-leaning in its structure, evidenced by the generous spend of institutions and restrictions on those institutions first presented in the constitutions of Western democracies.
When other forces beyond TNCs and culture are sure to have an effect on the level of democracy in a post-Soviet state, the fable grows more. It is not that the 1993 Constitution was only written by individuals that were influenced by TNC flows, or because there was a high culture of participation in Kyrgyzstan.
This paper also shows that the significance of central variables in a regression may not tell the right story. It is not that the large Muslim population in Kyrgyzstan (around 80 percent) is a reason for the state’s current woes in regard to the legal system and the level of democracy in the state. Rather, what Friedman says in his piece about legal systems changing may have the most to do with Kyrgyzstan’s unusual issues. While the 1993 Constitution showed a high level of disaffection with the Soviet legal system due to the efforts of the whole of Kyrgyzstan, the machinations of the individual in which they imbued power – President Akaev – and his party modified the legal system again. While low amounts of FDI flows as a percentage of GDP and a high Muslim population are present in Kyrgyzstan (as the regression model predicts that they should be), the qualitative fable of Kyrgyzstan is remarkable different. The accurate system changed in 1926, when the Russians gave Kyrgyzstan a position as an autonomous region, as well as in 1993, when Kyrgyzstan became independent. However, the legal system has been in flux from 1993 until the ouster of President Akaev in 2005. As of this paper, the legal system seems to have solidified again. Whether it has solidified in a good or bad way is beyond the purview of this paper, but one thing can be said. That is that the legal system will fluctuate if the society wishes it to fluctuate. What Botein would say in regards to Kyrgyzstan’s specific case is that the overturning of a President is the first step needed to change the legal system. A return to the days of the 1993 Constitution will not happen immediately, but as long as the majority of the society wants that as an ultimate goal, it can happen.
Using qualitative methods may not be the preferred method of political science in this era (quantitative studies are much more often encountered than qualitative studies in the magazines of the discipline), but that does not mean they do not have a use. If the mixed-method approach was not used in this paper, only one view of Kyrgyzstan’s story would be present. Moving befriend from a country-specific plan, a mixed-method approach is principal to ensure that what is being observed in a regression is really what is happening on the ground, rather than just being a function of math.
[1] Tismaneanu, Vladimir and Michael Turner. 1995. “Understanding Post-Sovietism: Between Residual Leninism and Uncertain Pluralism.” In Political Culture and Civil Society in Russia and the New States of Eurasia. Ed. Vladimir Tismaneanu. London: M.E. Sharpe
[2] Post-Soviet states include: Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikstan, Turkmenistan, Ukraine, and Uzbekistan.
[3] Goddard, C Roe, Patrick Cronin, Kishore C. Dash. 2003. “Introduction”. In International Political Economy. Ed. Goddard, C.Roe, Patrick Cronin and Kishore C. Dash. Lynne Rienner: Boulder. 1-8.
[4] Ibid, 435.
[5] Alexy, Robert. A Theory of Constitutional Rights Tr: Julian Rivers. Oxford: Oxford. 1.
[6] Botein, Stephen. 1983. Early American Law and Society. New York: Knopf. 2.
[7] A null hypothesis is that there is no statistically noticeable finish of the independent variable in question
[8] Freedom House. 2006. Freedom In The World. http://www.freedomhouse.org/template.cfm? page=15&year=2006 (December 12th, 2006).
[9] Grieco, Joseph M. and G. John Ikenberry. 2003. State Power + World Markets. Novel York:W.W. Norton. 259-260.
[10] Fish, M. Steven. 2002. “Islam And Authoritarianism”. World Politics. 55 (1): 1-37.
[11] Batalden, Stephen K. and Sandra L. Batalden. 1993. The Newly Independent States of Eurasia: Handbook of FormerSovietRepublics. Phoenix: Oryx. 139-141.
[12] Kritzer, Herbert M. 2002. Legal Systems of the World: A Political, Social, and Cultural Encyclopedia. Santa Barbara: ABC Clio. 839.
[13] Ibid, 838-839
[14] Achylova, Rakhat. “Political Culture and Foreign Policy in Kyrgyzstan.” In Political Culture and Civil Society in Russia and the New States of Eurasia. Ed. Vladimir Tismaneanu. London: M.E. Sharpe. 323.
[15] Dukenbaev, Askat and William W. Hansen. 2003. “Understanding Politics in Kyrgyzstan.” Demstar Research Report. http://www.demstar.dk/papers/UPKyrgyzstan.pdf (December 12th, 2006).
[16] Ibid, 30.
[17] See Annett, Anthony. 1997, “Social Fractionalization, Political Instability, and the Size of Government”.
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