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JUSTIFICATION of the model project "Covenant on Protection of Intellectual Freedom".

Vsevolod Rechitsky.
The Project of the Covenant envisages the construction of an entire international law mechanism for legal protection of intellectual freedom in the conditions of democracy and modern law systems. The project concerns a wide scope of creative activities in the modern societies, from building new scientific concepts and non-standard approaches in business and finances to creating various symbolic patterns. Using Jean Boudrillard’s and G. Lipovetsky philosophical vocabulary, it may be said that the model project will touch upon the topic of „the spiral of simulation that preceded reality“.

If, as Z. Brzezinski wrote, debates concerning the social organization and optimal ways of reaching prosperity had dominated in the passing century, then nowadays we are present in the beginning of a grandiose discussions about the personality angle of human life. It is today that a special demand in intellectually free individuals has a reason: we need ‘guides of progress’, whose ideas will transform the surrounding reality.

Thus, the humanitarian vector of the present model document will touch a wide scope of questions on the growing role of the synthetic ingredient in the life of the modern societies, on constructing life strategies and styles, on creating new symbolic systems. It is intellectual activity that creates artifacts of civilization. At a first glance they seem like modest material objects, but, in the final count, people value them very high.

As to political and juridical aspects of the Covenant project, they are based on the fact that between creative activities and the modern democracy, as a system of taking decisions based on the consensus of the majority, rather complicated relations arise organically. As is known, creative activities are intimately related with the problem of the political freedom and unrestricted social communication, with the civil discourse, the information freedom as a whole. Such relations must be regulated by the ‘freedom’s law’ (R. Dworkin).

Many ways of guaranteeing intellectual activities and freedom are known to exist in the modern Western countries. These ways are rooted mainly in the traditions of the Christian civilization, and they are expressed not only in the written law. As to the post-totalitarian countries, such traditions and customs have not time to arise or were long suppressed. The regeneration of institutes of the intellectual freedom in this political region is carried slowly and with harmful mutations. That is why the goal of the planned Covenant is the codification of the best samples of the written and unwritten norms concerning the intellectual freedom with the aim to efficiently spread its standards to the wider political and geographic space.

As early as on the brink of 19th and 20th centuries the exceptional relations between the industrial (technological) discipline and man’s alive will actually overcame the limits of political expression of the social reality. If in the former times, as J. Ellul wrote, ‘magic was a bridge connecting fantasy and technology’, than in the industrial society the struggle between the mega-machine of progress and the sphere of intellectual freedom of a personality became an inevitable element among juridical notions on justice. That is why such questions were repeatedly considered in the Constitutional aspect. Yet, nowadays it seems necessary to consider them in the context of peculiarities and possibilities of the international public law regulation. Possessing the key to progress, typical of highly developed countries, must stop to be the cultural monopoly. In the 21st century the law guarantees of the intellectual freedom must be represented at the international market of juridical technologies in the adapted form suitable for different nations.

Besides, as the experience shows, in the modern Middle and East European countries the accumulated contradiction between objective regularities of the spiritual development of the society and legal regulation of their intellectual and creative sphere becomes more and more noticeable. The redundant regulation of information processes (up to the state attempts to control the Internet) becomes almost typical. In some countries of this region (Russia, Ukraine) a massive system of laws on information has been written, where information is treated not as especially valuable for the social intelligence ‘quantity of unpredictable in a report’ (A. Mole), but as an important strategic resource of the state.

Formally censorship does not exist in most post-totalitarian countries, but actually attempts to control and to filter information become more and more noticeable, practically everywhere. Sometimes such control is imposed because of the excess of social discipline in technologically super-organized societies, but more often it is a result of the obscurantism of ruling groups, the effect of the ‘inner editor’ of intellectuals.

Possibly, behind these subjective effects and intellectual prerogatives of the power stands more profound misunderstanding by political elites and even experts of the essence of the processes, which cause the fast advance of modern societies. One must confess that the ‘free hands’ principle in economics, business and finances in many countries is applied too restrictedly. Standardized curricula and government-approved textbooks dominate in higher education. The sphere of science in the countries of Middle and East Europe has not an efficient market yet, which enables the activity to be indistinguishable as to quality. Such countries as Russia or Ukraine have a hierarchy of scientific and pedagogical staff; this system is notoriously unable to recognize and remunerate really gifted people. All this leads to explicit and implicit information jams on the international scale, lowers the level of the cultural exchange between countries and nations, generates great professional frustration of intellectuals, robs the society of information novelties.

In many post-socialist countries not a single normal bookstore, such as ‘Chapters’, ‘Waterstone’s’, ‘Borders’, has been opened yet, where scientific literature in foreign languages is sold. The translation program financed by Western charity funds is inevitably too weak and slow: it publishes the most selected samples of scientific literature, which value is undoubtable, but whose peak of actuality has long passed. It is here where the state bureaucracy still remains the only manager of economic and financial reforms, whereas non-sanctioned and non-standard intellectual activity is perceived as something marginal. Unfortunately, this attitude is supported by the national legislation too. For example, the Ukrainian Constitution of 1996 has 15 constraints on the fundamental freedom of speech. Such notions of the social solidarity as ‘interests of society’, ‘protecting rights and freedoms of other people’, ‘social direction of the economy’, ‘harmful for society’, ’motives of public necessity’, ‘interests of national security’, ‘information security’, ‘objective truth’ and the like are used too often. All of them implicitly or explicitly suppress, or essentially impinge upon the potential heuristic ability of an individual.

The problem of the intellectual freedom reveals itself in a broader sense, since public goals under democratic conditions are selected and pursued spontaneously, on the base of many badly predicted factors, while the traditional legislation reflects rigid values described in the terms of non-metaphorical language. It is assumed that the spontaneity and dynamism must be provided for by the lawful category of freedom. Yet, namely this most important guarantor of progress is either absent in many European countries or is fixed without due legal guarantees.

For example, an attempt of independent experts to introduce the category of freedom into the official draft of the Ukrainian Constitution was later rejected consciously by the work group of the National Constitutional Commission. Something similar occurred in other countries. Instead of dynamic elements their legislation was filled with a multitude of immobile concepts. Little applied for the needs of the modern rate of life of the society, hence little applicable. From the viewpoint of the law policy this means the rejection of the liberal scheme of law regulation suggested by D. Rolls: constitutions fixed guarantees of freedom as a superior value, but tactical principles and rights, including economic and distributive ones, were left for the current legislation.

Meanwhile, in highly developed countries the object of the law impact is the social organism in all variety of its components, not an association of citizens with the same interests. That is why a modern law system must be a code of social interaction rules of free people, and not a list of articles on individual and collective priorities, for the sake of which these interactions are realized. From the point of view of modern public interests, the Constitution is a procedural and dynamic, not a material and static normative act. Nonetheless, as a result of conservative inertia and some other reasons, many modern constitutions remain indifferent to challenges of the coming century.

Although the social and economic prosperity assure creative activities and innovations, one must confess that law systems of too many countries do not assure such activities in a special well-planned way. Too often they contain preserving and stabilizing guards, thus suppressing ‘collective imagination’ of A. Toffler and the ‘risk society’ of U. Beck. Analysis shows that many basic laws are written not in the paradigm of modernity. Rather often they are impregnated with moderate virtues and are edifying in their political moral. Their external design and internal logic are intended not for supporting social passionarity of any kind; it suits governments ‘solicitous as a granny’ (T. Green). Yet, social, economic and cultural prosperity are not reached through paternalistic anxiety to protect the universal prosperity.

New ideas, cultural samples, novel types of professional and other behavior, unique psychological attitudes and approaches to solving problems of the surrounding world are created by sparse elites. The face of the world is transformed by a handful of people, at first unknown and scattered, said E. Ionesco. In its turn, the fact that progress is made by ‘a few who convince many’ (F. Hayek) requires the legal protection of the culturally sensitive zones of the society. It is here where the consequences of the legislation expansion of the state and the ‘press of democratic decisions’ is felt most painfully. This is especially true for the former socialist countries, but in the rest of the world the zone where the problems cannot be solved in a democratic manner does exist and is expanding. It is not accidental that in the prognostic analyses made in the USA human imagination is considered as a main strategic resource. Bearing all this in mind, one may say that the main ideas of the given Covenant are generated by the organic contradiction between the letter of national legislation traditions and the necessity to resist the interference of power to the region of spontaneous creative activity.

Although the prediction of the Marxist theory that state will die out appeared, as everybody knows now, somewhat exaggerated, it becomes more noticeable that in the most advanced countries people want to live predominantly in the sphere of private interests, and they do not identify the surrounding political environment with a state. It becomes more and more noticeable that people in the Western Europe and the USA manage their property, cross geographic and political boundaries, work in creative professions somewhat disregarding national frontiers and rules. More and more people realize their interests directly in the civil society and not in a state, outside sanctions of the national bureaucracy. Thus, if such a tendency really exists, it obviously demands its adequate juridical guarantees.

That is why, and by virtue of other above-mentioned arguments, the project of the Covenant suggests a variant of a solution of the problem concerning the relation between the idea of progress, as a way and means of the fast advance of the society to the new manner of living, on the one hand, with necessary limitations of the possibilities of the social dynamics provided for by the modern democracy and the law systems existing in the most of European countries, on the other hand. Thus, the idea of the Covenant on the protection of intellectual freedom is universal since it is based on the recognition of insufficient possibilities of the traditional schemes of the legal regulation of intellectual processes not only in the countries that lived upon the intellectual and moral glacier of totalitarianism.

According to the method of creating the Covenant, the international public law is considered not as a traditional apex of the law pyramid, but as a unique in its role legal plateau — the guarantor of the intellectual freedom and cultural diversity. In this capacity, the regulating potential of the suggested Covenant must be assessed by its opportunities to generate the ‘artificial spontaneity’, i.e. some synthetic cast of the organic construction of nature. If one assumes that the vector of social progress is predetermined by

intellectual efforts of individuals, who create different kind of samples and models, styles, ways of reasoning and other intellectual seductions, then it must substantially differ not only from the vector of state policy, but also from the vector of direct democracy. Upon the whole, all the process looks as if the new samples and patterns of the future are exhibited on the intellectual market, where demand and supply are determined by an uncountable number of factors, including national peculiarities and regional traditions.

As is known, even the vector of liberal democracy in the modern society is determined, as before, by the majority will. By its properties this will looks as a collective or individual capacity to choose among the samples, models and attitudes created within the framework of the progress. Yet, in many countries such a scheme is hardly understood even by experts. On the contrary, the idea of democracy as of the only cause of the social dynamics becomes typical and more and more dangerous exaggeration on the side of young democratic regimes.

As to the most experienced and politically ripe societies, they demonstrate a strong interest to creating guarantees of non-interference into the intellectual and creative sphere; they made restrictions not only for the direct state agents, but for representatives of democracy too. The main result of these guarantees is the encouragement of providing the society with information, understood as a quantity of the unpredicted in a message. That is why creating and preserving the atmosphere of readiness of the society and its members to accept the unpredictable and novel must be considered the most important organizational, political and law precondition of the progress.

In other words, we must create (or reconstruct) the system of making the primary ‘pre-democratic’ decisions of an experimental type, which could later pre-determine the secondary ‘post-democratic’ decisions of a practical type. Obviously, we mean not a reduction of democracy, but only providing democracy with an efficient market of samples to be used in the future. The gift of democracy is not creative but selective: democracy is capable of selecting out of the created. Certainly, this system in its priorities somewhat withstands the usual functions of the state, such as securing social protection and order, political stability and sometimes even personal safety. Yet, if we prefer the progress, we have no choice. Anyway, every state must be kept on a leash; power, even not very conservative, suffers from the chronic will to regulate all. For instance, it demands the science to stay within the bed of the ‘normal development’. Nonetheless, science, this most organized man’s creative activity, resembles more a collage than a system (P. Feyerabend). This thesis seems to be applicable also to the state attitude to culture as a whole. As ideologists of liberalism reminded, the state even now continues to be an referee, remaining simultaneously the strongest player, who, to be sure of the positive result, changes rules during the game.

Thus, the cultural progress, as the main dynamic value of the modern society, must be protected from too much predicted organized stability by introducing special normative acts. A model of such an act in the form of an international Covenant on protection of intellectual freedom is planned to be created as a result of realizing this project.
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