CONSTITUTIONAL STUDIES: Ukrainian Constitution in the modern context
22.05.2000
We offer to our reader a report presented at the international forum ‘Constitutional justice in post-communist countries’. This forum was held by the Center of constitutional studies in Riga on 11 – 12 November 1999. The questions considered at this forum included the problems of constitutional construction in East European countries. The main accent was made on actual and many-sided information in successes and failures in developing Constitutionalism in the post-communist countries.
The title of my report may provoke ungrounded hopes of the audience. So, I want to point out that I am going to consider in my report only philosophical aspects of Constitution with the stress on the difficulty of definition what ‘the modern context’ is. It is obvious that after three years that passed since the adoption of the Ukrainian Constitution, one may say only about the degree of the agreement of the Constitution to emotional civil expectations. To put it simply, if a Constitution has a normative vector, then in the course of practical application a successful or an unsuccessful direction of it is felt rather soon. If the Ukrainian society evolves constructively or destructively, then, theoretically, it is possible to compare the dynamics with the Constitutional vector. Such a comparison could be the basis of the given report.
However, the problem arises at an earlier stage, since the goals of the society under democratic conditions are chosen and realized spontaneously, on the basis of numerous badly predictable factors, while the Constitution is usually compiled from normative fixed values, described in the terms of non-metaphoric language. The traditional understanding is that spontaneity must be ensured by the Constitutional category of freedom, but this main guarantor of the social dynamics of a democratic society in the Ukrainian Constitution is absent. The attempt of the International Constitutional Forum in Nova Huta in winter of 1996 to introduce not an instrumental concept but namely a category of freedom into the official draft of the Constitution was deliberately rejected by the national quasi-scientific community. Instead plenty of clumsy and, hence, little applicable norms were permitted to enter the Constitution. From the standpoint of the philosophy of right this can be described as aversion to the liberal scheme of the rightful regulation suggested by D.Rolls: to fix in Constitutions the highest value and guarantees of freedom, whereas tactical, including economic and distributive principles and rights, should be placed in the current legislation.
I shall offer only a few examples of the unsuccessful, from my point of view, national Constitutional regulation:
The life and health of a citizen are acknowledged as ‘the highest social value’ in Article 3 of the Constitution of Ukraine. Yet, if the state of the physical life is actually a top value, then the life of a soldier may not be sacrificed for ‘the protection of sovereignty and territorial integrity of Ukraine’ or the freedom of the nation. Indeed, in the Constitutional hierarchy of values sovereignty, territorial integrity are positioned below the ‘human life’ and the freedom of the nation is not mentioned at all. Moreover, the right for life (and the following risks) of a soldier may not be less than those of the civilian on the basis of the principle of equality of Constitutional rights recorded in Article 29 of the Constitution of Ukraine.
‘Any violence directed at a child… is prosecuted by law’ according to Article 53 of the Constitution. This statement makes criminals of all parents who make their children leave the sand-box contrary to the wish of children.
‘Everybody is obliged not to bring damage to nature’ declares Article 66 of the Constitution, but every driver by turning the ignition key violates this law.
Judges are directly called in the Constitution as bodies of the state power, which puts them in cases of civil claims versus state to the position of judges in their own case.
According to Article 15 of the Constitution, ‘no ideology may be acknowledged by the state as an obligatory one’, which formally dismisses the state from the necessity to follow the ideology of its own Constitution.
Everyone’s right ‘for a sufficient living standard for himself and his family’ recorded in Article 48 of the Constitution practically exists in Ukraine as the right for equal distribution. As an expression of the liberal principle of ‘inequality profitable to everybody’ (D.Roll’s), it does not work, since the political power in Ukraine behaves like a croupier in the national casino, who controls not the observance of the rules, but the gains of the players. The history of the disgraced prime-minister of Ukraine seems to me rather convincing in this sense.
Providing the economic and informational security are declared in Article 17 of the Constitution as a ‘state function’ and ‘the care of all Ukrainian people’. As a result, the society encounters only 15 Constitutional restrictions of the freedom of speech.
The above-stated illustrations I mention only in order to express the general tendencies of the Ukrainian Constitution.
If one agrees that flourishing of the society is caused by the work, creativity and innovations, then one must agree that the Constitution of Ukraine is not aimed at these activities. What prevails in the Constitution are protective values, so it lacks ‘collective imagination’ according to O.Toffler or ‘public risk’ according to U.Beck. That is why a feeling arises that the Ukrainian Basic Law, as some other Constitutions of post-totalitarian countries is written not within the modern paradigm. The Constitution is impregnated with rather moderate merits and it is didactic in its literary manner. The Constitutional design is oriented not to the social passionarity, but to a ‘granny-like careful government’. Meanwhile, the demands of the Ukrainian modern are practically the opposite. As J.Huizinga once noted, to hit the bull’s eye one must aim a little higher. In other words, the social-economic flourishing may not be achieved by the direct measures on the economic prosperity.
The social-economic flourishing of Ukraine, which we all strive to gain, presupposes, first of all, man’s creative behavior in the conditions of complete freedom guaranteed by democracy and an adequate legal system. Free creative activities cover a wide sphere in the modern society, from creating new scientific concepts to constructing fashions, intellectual and merely behavioral specimens. Separate cases of non-standard behavior are supposed to be included. Using the philosophical vocabulary of G. Bodriyard, one may say that in progressing societies we always have a domineering ‘helix of the symbolic, which precedes reality’. R.Barta characteristically notices that creative activities often appear as the economics of ‘frantic dissipation’, that is, paradoxically, as the contradiction to the ethics of hoarding.
It is worthwhile to point out the following. If, as Z.Brzerzinski wrote, debates about social organization of the society and the best ways of achieving the external prosperity domineered in the passing century, now we have started grand discussions about the personal and internal measurements of human life. That is why today new types of human behavior appear, followed by new types of personalities, new mavericks and new ideas of charisma. As A.Piatigorskiy shrewdly noted, we observe the advent of the error of gifted figures, remote from the temptation of the ‘national glory’. However, the advent of such personalities is possible only in the atmosphere of genuine unrestricted freedom.
Being raised in a wider context, the question of the social and economic progress demands not so much social-economic rights, as the rightful infrastructure of freedom, which presupposes a frightening convertibility of social values to goods, the rightful repression of xenophobia and competition of large-scale individual strategies. In the process the cultural space of any society inevitably points out the questions on the significance of the synthetic (hand-made) environment, style and concrete ideology of life not only of social groups, but of separate individuals. Besides, legal provisions for a social-economic progress are determined by other circumstances that among social creativity, democracy and right very complicated relations are shaping, due to their specific nature.
Unfortunately, in the post-totalitarian space ‘the strained individual solving his destiny’ (M.Mamardashvili) remains in some negligence from the side of philosophy of the Constitutional right. Meanwhile, the relations between technology and the live will of man have gone long ago beyond the limits of only political expression of social reality. If in the previous times ‘magic was the bridge connecting fantasy and technology’ (G.Ellule), then nowadays the struggle between the economic mega-machine, on the one hand, and the ideal sphere of human imagination, on the other hand, has become an unavoidable aspect of rightful relations about justice. Since this struggle is unavoidable, it needs an adequate judicial cell. Having got, comparatively recently, the ‘right for freedom’, the modern man needs another right — ‘the right for creativity’.
Although the general tendency of the philosophy of the right seems to be as indicated above, in modern post-totalitarian countries a contradiction between objective regularities of social-economic progress and rightful regulation of the creative sphere seems to be more noticeable. A redundant regulation of information processes (up to the state attempts to control the Internet) became almost common. At present in some such countries (as Russia and Ukraine) a massive body of laws on information has been created, which regards information not as an especially valuable ‘quantity of the unpredicted which is contained in the message’ (A.Moll), but as an especially important state resource. Although censorship formally does not exist in these countries, the increasing attempts to control information and filter its flows are very conspicuous.
It is obvious that these seemingly subjective attempts disguise a profound misunderstanding by leaders and experts of the processes guaranteeing the social-economic progress. Moreover, in the countries that have passed velvet revolutions the sporadic attempts of the ‘bureaucratic revenge’ are observed more and more often.
Since new ideas, cultural specimens, innovating types of professional and other behavior, unique psychological approaches to solving various problems are worked out by the creative minority, the picture of the world is transformed by a handful of primarily disconnected people, according to Ionescu. The fact that the progress is created by ‘a few convincing many’ (F.Hayek) demands Constitutional protection of ‘culturally sensitive zones of the society’. It is here where redundant normalization on the side of the state is especially dangerous, it is here that consequences of the ‘burden of democratic decisions’ is most painful. That is why I would like to single out the organic contradiction of the traditional legislation, serving as a tool of the state, and the resistance to the interference of the authorities and democracy in the creative sphere, since the new Constitutions, as it is illustrated by the Ukrainian one, often become obsolete at the very start, auxiliary legal tools could become an important stimulus of the social and economic progress. In this light the idea of the ‘International Convention of protection of intellectual freedoms’ could become quite fruitful.
One way or another, turning to the international public right or remaining in the framework of the national legal system, we must criticize the conventional unipolar structure of the legal regulation of creative processes in transitive type societies. From that standpoint any new Constitution is reasonable to regard not as apexes of conventional legal pyramids, but as a unique in their potential guarantor of the creative freedom and cultural diversity. In this capacity the regulating potential of Constitutions must be used, as to their capabilities to reproduce the ’artificial spontaneity’, of some synthetic reflection of the organic natural structure. Certainly, all features of rightful systems seem to be transformed from unipolar to bipolar ones, where on the pole of freedom of the civil society Constitutional tradition seems to be concentrated, whereas at the pole of state order we observe traditional legislative elements. Since from the very beginning it is next to impossible to counterbalance order and freedom in a social system, the bipolar rightful construction will provoke permanent conflicts of freedom and order, Constitutional courts will save civil freedom and all which follows. Of course, such a transformation will add troubles for Constitutional tribunals, but it will also introduce order into social dynamics and economic growth, for which the society must pay much all the same.
If the vector of the social and economic progress is determined by intellectual efforts of individuals, who create various specimens, models, styles and ways of thinking, behavioral examples and other intellectual temptations, then, by its direction, it substantially differs from the state policy constructed on the democratic vector. Usually after the new and promising intellectual specimens are created by innovators, they are exhibited for the social estimation and choice. As J.Bodriyard said, the world functions to the degree it is liable to intellectual seductions. New specimens and approaches are exhibited on the intellectual market, where demand and supply are determined by a great number of factors.
Perhaps, in the sphere where the seduction has not intellectual nature, there the attraction is done by the external, by the shell, by the surface. In the other realm, where the attraction is done by spiritual or intellectual factors, the seduction is done through the artificial, interior, invented, imagined. The seduction by the new of the latter kind is the stronger, the stronger receiving intelligence is. In this sense it is misguiding to speak about the will power in the cultural sense. Instead, it is more convenient to speak about the force of the cultural seduction and the force of an intelligence to perceive the new.
Since the vector of opinion of the masses is determined by the will of the majority even under liberal democracy, the democracy is unable to do anything but choose from what is made by the creative minority. However, in post-totalitarian countries even this scheme is not liked even by experts. On the contrary, they think about democracy as the only reason of the social and economic dynamics. This view is typical for such countries as Ukraine.
If to accept this point of view, then it becomes understandable why more advanced in liberal policies societies are so much interested in creating guarantees of non-interference into the creative sphere by not only state agents, but also by representatives of democracy. The main result of such precautions is the opportunity of permanent provision of the society by the information, understood as the quantity of unpredictable in a message. That is why the atmosphere is created and supported of accessibility of the new information, which must be estimated as the most important rightful guarantee of social and economic rights.
Speaking in a more special way, we must create or restore the system of achieving primary ‘pre-democratic’ decisions which would, later on, provide secondary ‘post-democratic’ decisions of the practical type. It is obvious that we speak not about reduction of democracy, but only of providing it with an efficient market of specimens for the future. The advantage of democracy is not creation, but selection. Democracy can choose from specimens already created. Certainly, the suggested system of relations somewhat contradicts to the customary functions of the state, such as guaranteeing social protection and order, political stability and even personal security. But if to ascribe higher priority to social and economic rights, we have not another choice. In all respects any state needs restriction; any power, even not too conservative, has a chronic will to regulate anything including science, for example. Besides, as ideologists of liberalism often reminde, in our times the state continues to be not only the umpire, but also the strongest player, who, for the sake of victory, changes the rules in the course of the game.
But it is clear, as C.Sontag said, the ‘innovators must have the right to step the bar’, because they have a duty ‘to seduce the traditional way of things by new events’. Thus, the social-economic progress must be defended from too predicted stability measures supported by special normative acts. S.Hantington believes in the third wave of democracy: as a way out of the system he sees the elaboration of the international ‘Convention on protection of intellectual freedom’. Certainly, the situation could be improved by some national ‘information constitution’.
However, the problem arises at an earlier stage, since the goals of the society under democratic conditions are chosen and realized spontaneously, on the basis of numerous badly predictable factors, while the Constitution is usually compiled from normative fixed values, described in the terms of non-metaphoric language. The traditional understanding is that spontaneity must be ensured by the Constitutional category of freedom, but this main guarantor of the social dynamics of a democratic society in the Ukrainian Constitution is absent. The attempt of the International Constitutional Forum in Nova Huta in winter of 1996 to introduce not an instrumental concept but namely a category of freedom into the official draft of the Constitution was deliberately rejected by the national quasi-scientific community. Instead plenty of clumsy and, hence, little applicable norms were permitted to enter the Constitution. From the standpoint of the philosophy of right this can be described as aversion to the liberal scheme of the rightful regulation suggested by D.Rolls: to fix in Constitutions the highest value and guarantees of freedom, whereas tactical, including economic and distributive principles and rights, should be placed in the current legislation.
I shall offer only a few examples of the unsuccessful, from my point of view, national Constitutional regulation:
The life and health of a citizen are acknowledged as ‘the highest social value’ in Article 3 of the Constitution of Ukraine. Yet, if the state of the physical life is actually a top value, then the life of a soldier may not be sacrificed for ‘the protection of sovereignty and territorial integrity of Ukraine’ or the freedom of the nation. Indeed, in the Constitutional hierarchy of values sovereignty, territorial integrity are positioned below the ‘human life’ and the freedom of the nation is not mentioned at all. Moreover, the right for life (and the following risks) of a soldier may not be less than those of the civilian on the basis of the principle of equality of Constitutional rights recorded in Article 29 of the Constitution of Ukraine.
‘Any violence directed at a child… is prosecuted by law’ according to Article 53 of the Constitution. This statement makes criminals of all parents who make their children leave the sand-box contrary to the wish of children.
‘Everybody is obliged not to bring damage to nature’ declares Article 66 of the Constitution, but every driver by turning the ignition key violates this law.
Judges are directly called in the Constitution as bodies of the state power, which puts them in cases of civil claims versus state to the position of judges in their own case.
According to Article 15 of the Constitution, ‘no ideology may be acknowledged by the state as an obligatory one’, which formally dismisses the state from the necessity to follow the ideology of its own Constitution.
Everyone’s right ‘for a sufficient living standard for himself and his family’ recorded in Article 48 of the Constitution practically exists in Ukraine as the right for equal distribution. As an expression of the liberal principle of ‘inequality profitable to everybody’ (D.Roll’s), it does not work, since the political power in Ukraine behaves like a croupier in the national casino, who controls not the observance of the rules, but the gains of the players. The history of the disgraced prime-minister of Ukraine seems to me rather convincing in this sense.
Providing the economic and informational security are declared in Article 17 of the Constitution as a ‘state function’ and ‘the care of all Ukrainian people’. As a result, the society encounters only 15 Constitutional restrictions of the freedom of speech.
The above-stated illustrations I mention only in order to express the general tendencies of the Ukrainian Constitution.
If one agrees that flourishing of the society is caused by the work, creativity and innovations, then one must agree that the Constitution of Ukraine is not aimed at these activities. What prevails in the Constitution are protective values, so it lacks ‘collective imagination’ according to O.Toffler or ‘public risk’ according to U.Beck. That is why a feeling arises that the Ukrainian Basic Law, as some other Constitutions of post-totalitarian countries is written not within the modern paradigm. The Constitution is impregnated with rather moderate merits and it is didactic in its literary manner. The Constitutional design is oriented not to the social passionarity, but to a ‘granny-like careful government’. Meanwhile, the demands of the Ukrainian modern are practically the opposite. As J.Huizinga once noted, to hit the bull’s eye one must aim a little higher. In other words, the social-economic flourishing may not be achieved by the direct measures on the economic prosperity.
The social-economic flourishing of Ukraine, which we all strive to gain, presupposes, first of all, man’s creative behavior in the conditions of complete freedom guaranteed by democracy and an adequate legal system. Free creative activities cover a wide sphere in the modern society, from creating new scientific concepts to constructing fashions, intellectual and merely behavioral specimens. Separate cases of non-standard behavior are supposed to be included. Using the philosophical vocabulary of G. Bodriyard, one may say that in progressing societies we always have a domineering ‘helix of the symbolic, which precedes reality’. R.Barta characteristically notices that creative activities often appear as the economics of ‘frantic dissipation’, that is, paradoxically, as the contradiction to the ethics of hoarding.
It is worthwhile to point out the following. If, as Z.Brzerzinski wrote, debates about social organization of the society and the best ways of achieving the external prosperity domineered in the passing century, now we have started grand discussions about the personal and internal measurements of human life. That is why today new types of human behavior appear, followed by new types of personalities, new mavericks and new ideas of charisma. As A.Piatigorskiy shrewdly noted, we observe the advent of the error of gifted figures, remote from the temptation of the ‘national glory’. However, the advent of such personalities is possible only in the atmosphere of genuine unrestricted freedom.
Being raised in a wider context, the question of the social and economic progress demands not so much social-economic rights, as the rightful infrastructure of freedom, which presupposes a frightening convertibility of social values to goods, the rightful repression of xenophobia and competition of large-scale individual strategies. In the process the cultural space of any society inevitably points out the questions on the significance of the synthetic (hand-made) environment, style and concrete ideology of life not only of social groups, but of separate individuals. Besides, legal provisions for a social-economic progress are determined by other circumstances that among social creativity, democracy and right very complicated relations are shaping, due to their specific nature.
Unfortunately, in the post-totalitarian space ‘the strained individual solving his destiny’ (M.Mamardashvili) remains in some negligence from the side of philosophy of the Constitutional right. Meanwhile, the relations between technology and the live will of man have gone long ago beyond the limits of only political expression of social reality. If in the previous times ‘magic was the bridge connecting fantasy and technology’ (G.Ellule), then nowadays the struggle between the economic mega-machine, on the one hand, and the ideal sphere of human imagination, on the other hand, has become an unavoidable aspect of rightful relations about justice. Since this struggle is unavoidable, it needs an adequate judicial cell. Having got, comparatively recently, the ‘right for freedom’, the modern man needs another right — ‘the right for creativity’.
Although the general tendency of the philosophy of the right seems to be as indicated above, in modern post-totalitarian countries a contradiction between objective regularities of social-economic progress and rightful regulation of the creative sphere seems to be more noticeable. A redundant regulation of information processes (up to the state attempts to control the Internet) became almost common. At present in some such countries (as Russia and Ukraine) a massive body of laws on information has been created, which regards information not as an especially valuable ‘quantity of the unpredicted which is contained in the message’ (A.Moll), but as an especially important state resource. Although censorship formally does not exist in these countries, the increasing attempts to control information and filter its flows are very conspicuous.
It is obvious that these seemingly subjective attempts disguise a profound misunderstanding by leaders and experts of the processes guaranteeing the social-economic progress. Moreover, in the countries that have passed velvet revolutions the sporadic attempts of the ‘bureaucratic revenge’ are observed more and more often.
Since new ideas, cultural specimens, innovating types of professional and other behavior, unique psychological approaches to solving various problems are worked out by the creative minority, the picture of the world is transformed by a handful of primarily disconnected people, according to Ionescu. The fact that the progress is created by ‘a few convincing many’ (F.Hayek) demands Constitutional protection of ‘culturally sensitive zones of the society’. It is here where redundant normalization on the side of the state is especially dangerous, it is here that consequences of the ‘burden of democratic decisions’ is most painful. That is why I would like to single out the organic contradiction of the traditional legislation, serving as a tool of the state, and the resistance to the interference of the authorities and democracy in the creative sphere, since the new Constitutions, as it is illustrated by the Ukrainian one, often become obsolete at the very start, auxiliary legal tools could become an important stimulus of the social and economic progress. In this light the idea of the ‘International Convention of protection of intellectual freedoms’ could become quite fruitful.
One way or another, turning to the international public right or remaining in the framework of the national legal system, we must criticize the conventional unipolar structure of the legal regulation of creative processes in transitive type societies. From that standpoint any new Constitution is reasonable to regard not as apexes of conventional legal pyramids, but as a unique in their potential guarantor of the creative freedom and cultural diversity. In this capacity the regulating potential of Constitutions must be used, as to their capabilities to reproduce the ’artificial spontaneity’, of some synthetic reflection of the organic natural structure. Certainly, all features of rightful systems seem to be transformed from unipolar to bipolar ones, where on the pole of freedom of the civil society Constitutional tradition seems to be concentrated, whereas at the pole of state order we observe traditional legislative elements. Since from the very beginning it is next to impossible to counterbalance order and freedom in a social system, the bipolar rightful construction will provoke permanent conflicts of freedom and order, Constitutional courts will save civil freedom and all which follows. Of course, such a transformation will add troubles for Constitutional tribunals, but it will also introduce order into social dynamics and economic growth, for which the society must pay much all the same.
If the vector of the social and economic progress is determined by intellectual efforts of individuals, who create various specimens, models, styles and ways of thinking, behavioral examples and other intellectual temptations, then, by its direction, it substantially differs from the state policy constructed on the democratic vector. Usually after the new and promising intellectual specimens are created by innovators, they are exhibited for the social estimation and choice. As J.Bodriyard said, the world functions to the degree it is liable to intellectual seductions. New specimens and approaches are exhibited on the intellectual market, where demand and supply are determined by a great number of factors.
Perhaps, in the sphere where the seduction has not intellectual nature, there the attraction is done by the external, by the shell, by the surface. In the other realm, where the attraction is done by spiritual or intellectual factors, the seduction is done through the artificial, interior, invented, imagined. The seduction by the new of the latter kind is the stronger, the stronger receiving intelligence is. In this sense it is misguiding to speak about the will power in the cultural sense. Instead, it is more convenient to speak about the force of the cultural seduction and the force of an intelligence to perceive the new.
Since the vector of opinion of the masses is determined by the will of the majority even under liberal democracy, the democracy is unable to do anything but choose from what is made by the creative minority. However, in post-totalitarian countries even this scheme is not liked even by experts. On the contrary, they think about democracy as the only reason of the social and economic dynamics. This view is typical for such countries as Ukraine.
If to accept this point of view, then it becomes understandable why more advanced in liberal policies societies are so much interested in creating guarantees of non-interference into the creative sphere by not only state agents, but also by representatives of democracy. The main result of such precautions is the opportunity of permanent provision of the society by the information, understood as the quantity of unpredictable in a message. That is why the atmosphere is created and supported of accessibility of the new information, which must be estimated as the most important rightful guarantee of social and economic rights.
Speaking in a more special way, we must create or restore the system of achieving primary ‘pre-democratic’ decisions which would, later on, provide secondary ‘post-democratic’ decisions of the practical type. It is obvious that we speak not about reduction of democracy, but only of providing it with an efficient market of specimens for the future. The advantage of democracy is not creation, but selection. Democracy can choose from specimens already created. Certainly, the suggested system of relations somewhat contradicts to the customary functions of the state, such as guaranteeing social protection and order, political stability and even personal security. But if to ascribe higher priority to social and economic rights, we have not another choice. In all respects any state needs restriction; any power, even not too conservative, has a chronic will to regulate anything including science, for example. Besides, as ideologists of liberalism often reminde, in our times the state continues to be not only the umpire, but also the strongest player, who, for the sake of victory, changes the rules in the course of the game.
But it is clear, as C.Sontag said, the ‘innovators must have the right to step the bar’, because they have a duty ‘to seduce the traditional way of things by new events’. Thus, the social-economic progress must be defended from too predicted stability measures supported by special normative acts. S.Hantington believes in the third wave of democracy: as a way out of the system he sees the elaboration of the international ‘Convention on protection of intellectual freedom’. Certainly, the situation could be improved by some national ‘information constitution’.