war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

Constitution of Ukraine: social contract in the trials of war

Vsevolod Rechytskyi

Фото: KinoMasterskaya, Shutterstock Photo: KinoMasterskaya, Shutterstock

Photo: KinoMasterskaya, Shutterstock

Since the adoption of the constitutions of individual states and the US Constitution of 1787 as a whole, as well as the Polish and French constitutions of 1791, Jean-Jacques Rousseau’s “Social Contract” of 1762 is considered to be a classic prerequisite for any republican constitutionalism. After all, the universal principles of political law promulgated by Rousseau allowed considering further the binary opposition: people (civil society) versus the state as the ideological foundation of most basic laws of Western democracies. It is natural that the current Constitution of 1996 should be considered the modern legal expression of the Ukrainian social agreement.

In turn, martial law, in which Ukraine found itself with the beginning of full-scale Russian aggression on February 24, 2022, intensified professional debates around such issues as the constitutional narrative (text of the Fundamental Law), official and unofficial (academic) constitutional doctrine, constitutional process, etc.

We now have to talk about all this in the conditions of war, which requires not only quick formulation of worldview questions but also specific answers to such questions. In this case, even the most profound answers require their comprehensive comparison, selection and pragmatic assessment. Scientists in these circumstances are usually limited to observations and cautious recommendations. The best of the recommendations become policy vectors, which is understandable.

The Ukrainian social contract, which is reflected in law, is the text (narrative) of the current Constitution of Ukraine of 1996 with all its improvements (amendments), changes and additions, as well as the official constitutional doctrine. On the other hand, the constitutional narrative should be distinguished from the official constitutional doctrine, which is a product of the Constitutional Court of Ukraine (CCU) with a much lower level of textual canonicity. Unlike the Fundamental Law, the official constitutional doctrine is not considered to be an intellectual product of the constituent or legislative branches of power. It can be revised at any time upon the relevant submission of the CCU.

Although the CCU is the only source of official constitutional doctrine, it is not responsible for the key parameters of the Ukrainian social contract. The unofficial or so-called academic constitutional doctrine is an intellectual product of all politicians and lawyers, who are competent and sincerely interested in constitutionalism. In particular, this presentation of the author’s observations and generalizations can be considered one of such views on the problem.

As you know, the Ukrainian constitutional process from the very beginning was characterized by discreteness and repeated interruption of gradualism. This is quite understandable given that in 1991-1996 Ukraine was at the stage of only initial comprehension of the transition from Soviet authoritarianism to democracy and freedom. Initially, the working group of the Constitutional Commission chaired by Leonid Yuzkov offered Ukrainian legislators an “American” constitutional model (presidential republic with a vice president, a bicameral parliament, etc.), which did not suit the influential communists and socialists of that time. The social contract was discussed and rewritten, including with the participation of Western experts, and in the summer of 1996, its draft was significantly influenced by the leader of Ukrainian socialists Oleksandr Moroz. Following the spirit of J.-J. Rousseau, he insisted on the inclusion of key provisions of Article 5 of the Constitution of Ukraine on popular sovereignty (sovereignty of the people) and its correlation with state sovereignty.

The first attempt (if we do not take into account the referendum initiated by Leonid Kuchma in 2000) to modify the constitutional narrative during the presidency of Viktor Yanukovych ended in failure due to the “Revolution of Dignity” of 2013-2014.

The judicial reform was much more successful. As for the renewal of the constitutional status of the Autonomous Republic of Crimea (ARC) in 2017 by transforming it from territorial autonomy to national (political) autonomy of the Crimean Tatar people, it also failed miserably.

It is possible that the Ukrainian state in the person of its leaders of that time was not ready to provide the Crimean Tatars — the indigenous people of Ukraine — with a thorough political representation and land on the peninsula in full ownership. In any case, all of this, together with the self-government reform, demonstrates the urgency of a modern rethinking of the foundations of the Ukrainian social contract.

After all, the Russian aggression in 2022 raised a whole block of fundamentally new issues in the constitutional and legal sense:

a) whether Ukraine should continue to limit itself to the political regime of simple (electoral) democracy, or whether, given the prospects of EU membership, it should assert a consolidated liberal democracy, which provides for a significantly higher level of awareness of the content and guarantee of subjective rights and freedoms;

b) whether human rights and freedoms in the Fundamental Law of Ukraine should be rights of a predominantly positive and collectivistic[1] or “negative” and individualistic (according to the American model) nature and direction;

c) whether Ukraine in its constitutional approaches should continue to act according to the imperatives of unlimited freedom of economic maneuver and free export of profits for investors, which automatically implies free movement of people, goods, services and capital, or it will continue to rely on transformations of moderate and controversial content, up to and including “military nationalization”;

d) whether Ukraine, after the end of the war, will dare to establish a real prohibition of censorship (Article 15 of the Fundamental Law) and significantly narrow constitutional restrictions on freedom of expression and belief (Article 34 of the Fundamental Law), following the example of the First Amendment to the US Constitution or Article 13 of the Charter of Fundamental Rights of the European Union[2], or will it continue its current slide into information xenophobia and obscurantism;

e) whether the Ukrainian state will dare to soften the requirements of the Constitution to guarantee state ownership of land and natural resources, or whether it will continue to consider Lenin’s 1917 decree “On Land” as its conscious and subconscious legal reference point and remain a “dog in the hay” in this area.

As the analysis of the official constitutional doctrine of Ukraine as an appendix to its social contract shows, our state in its “conception and execution” (Mykhailo Hrushevsky) continues to rely on the postulates of poorly rethought Marxism. The recent re-privatization of a number of assets and the rhetoric of hunting for oligarchs, which is habitual for the national society, testify to this. It is not surprising that due to the prolongation of this approach, the constitutional law of Ukraine is still not perceived by the state and civil society in the functional quality of the right to freedom (Ronald Dworkin's freedom's law).

In line with this understanding of the law, the idea that civil society is a systemic opponent or even antagonist of the state, traditionally popular in the West, is understood by the Ukrainian political and legal community with poorly camouflaged discomfort. A deeper understanding of the fact that the legal system of prosperous “core” countries (according to Emmanuel Wallerstein’s world-system theory) is bipolar (civil society-sanctioned norms of freedom versus state-imposed rules of discipline and order) is just beginning to make its way.

If the Western paradigm of the social contract in constitutional law is a kind of “secular belief in what is the basis of life” (Werner Heisenberg), this belief is characterized in Ukraine only by outwardly muted sacralization of the Hetmanate on the model of Skoropadskyi's “Ukrainian State”. The actual influence of the head of state, government and state authority in general on the society (de facto constitution) is much greater here than in the European, not to mention in the American, constitutional model.

All this leads to the fact that the development of the social contract embodied in the Constitution is not smooth and gradual, as “a coral reef grows” (comparison of Dainius Žalimas), as literature and art develop in the modern world, but through a rather rigid, abrupt displacement of some constitutional values by others: (presidential (1996-2005), parliamentary (2005-2010), restored presidential (2010-2014), again parliamentary (2014-2022) republic; prohibition (1996-2004) and revival (2005) of the imperative mandate for parliamentarians; controlled (through the right to dismiss justices) and again uncontrolled CCU, etc. That is, the evolution of the social contract takes place in our country according to the rule of a paradigm shift in the structure of scientific revolutions discovered by Thomas Kuhn. Simply put, the new is based on the negation of the old.

Thus, the usual for Ukraine’s non-recognition of the right of citizens to freely acquire and possess firearms changed during the war to direct distribution of weapons “from cars” (Georgy Uchaykin) to volunteers of territorial defense. Civilian circulation of firearms is now being promoted by the Ministry of Internal Affairs of Ukraine, including Minister Denys Monastyrsky. It is difficult to predict whose side will prevail here, but if the increase of trust of the Ukrainian authority in individuals is consolidated in the future, we will have every reason to talk about structural changes in our social contract.

In turn, the constitutional obligation to “strictly abide by the Constitution of Ukraine and the laws of Ukraine (Article 68 of the Fundamental Law) is gradually being supplemented by the unofficial recognition of the people’s right to the democratic revolt”. The right of citizens to democratic revolt is an element of the social contract in such countries as the USA, Germany, Greece, Czech Republic, Slovakia, Argentina, Estonia, Lithuania, etc. However, previously it was not considered in Ukraine as a viable constitutional element. Now the situation in this area has a chance to change for the better.

After all, only armed citizens with high self-esteem of their own dignity can truly effectively defend the highest social values listed in Article 3 of the Fundamental Law of Ukraine: “a human being, his or her life, and health, honor and dignity, inviolability and security”. Having such a list of constitutional values, one can only be surprised by the fact that the right of citizens to personal possession of weapons was not adequately reflected in the principles of the constitutional order of Ukraine earlier. There is no doubt that this right should belong to the key elements of the social contract in a truly liberal democratic Ukraine.

No less remarkable in Ukraine is the discrepancy between norm and reality in the field of intellectual freedom. After all, the prohibition of censorship enshrined in the principles of the constitutional order of Ukraine (Article 15 of the Fundamental Law) coexists with the massive withdrawal of Russian-language literature from sale, as well as the publicly expressed intention of domestic cultural carriers to eliminate up to 50% of the Ukrainian library fund. Such an expected conversion of the “West” into the values of the “East” testifies to the obvious incompleteness of the Ukrainian constitutional process, where ideological pluralism, market, and a plurality of political practices have only formally been established.

All of the above indicates that the official constitutional doctrine of Ukraine as an element of its social contract is in an unbalanced, hot volcanic magma state. At the same time, it serves as proof of the incompleteness of the Ukrainian constitutional process. Currently, the official constitutional doctrine of Ukraine is under the influence of both American and European legal concepts of progress. At least we have grounds to talk about a serious competition of influences in this area. On the other hand, it is too early to talk about the prevalence of North American views and approaches in Ukraine. Especially since the section “Civil Society” in the draft Constitution of Ukraine was once removed by its founding fathers under the influence of completely different sympathies.

If the American constitutional model can be summarized in a short formula: freedom determines the scope of democracy in the political system, the European model, which Ukraine is trying to adhere to, looks different: democracy is designed to determine the scope of freedom permissible in society.

Therefore, it is not surprising that post-Soviet Ukraine in the list of “the highest social values” does not include the categories of freedom of the people, market, and private property. Strange as it may seem, the current Constitution of Ukraine still allows the confiscation of legally acquired property and does not permit domestic tycoons adequate representation in parliament. It seems that the issues of political “glamour" continue to be no less influential in Ukraine than the issues of civilization essence.

As a legal expression of the social contract, the Fundamental Law of Ukraine does not justify the forced deprivation of citizenship as state repression of the “wealthy and dissenting”. However, the official constitutional doctrine as represented by the CCU continues to tolerate hundreds of cases of forced deprivation of Ukrainian citizenship by the head of state. This approach leads to the general belief that the social contract of Ukraine does not perceive the individual as a moral sovereign, whose citizenship is considered an element of his social identity. Meanwhile, this understanding of the role of citizenship is inherent in the modern understanding of the rule of law in the Euro-Atlantic community.

Ukraine, having thirty years of independence and sovereignty, remains today perhaps the richest country in Europe in terms of its natural resources and at the same time the poorest in terms of its welfare. In addition, this status for a long time (20s) was combined with the highest mortality rate among countries with relevant statistics.

Unaware of the paradox that maximizing personal wealth leads, contrary to Marx, to the affirmation rather than the abolition of moral goals, the Ukrainian social contract, through official constitutional doctrine, continues to sustain the perception of the national Fundamental Law as a “constitution for the poor”. This means that in terms of its ethical parameters, the current Fundamental Law of Ukraine remains a utopia full of good intentions. The focus on the war gives the impression of an openly sentimental and populist text.

Unfortunately, the social contract of Ukraine does not properly stimulate individual creativity, risky business, and the market economy in general by legal means, treating them only tolerantly. Capitalism has always been perceived in Ukraine in a purely materialistic way (not according to the definitions of Joseph Schumpeter or Daniel Bell), and therefore for potential reformers of the Fundamental Law, not to mention the masses, the “irrational" motivation of the Finns and Swiss, who refused to receive a guaranteed state income in their referendums, seems to be something mystical. Altruism and self-restraint in the context of Euro-Atlantic prosperity is perceived by the domestic social contract about as incredulously as the price of tens of millions of hard currency for abstract paintings by Mark Rothko at Sotheby’s.

As a communicative construct, the Ukrainian social contract does not absorb federalist and autonomist discussions in any way. In particular, the peaceful separation of Czechoslovakia into two sovereign democracies during the presidency of Václav Havel is not assessed in Ukraine as a positive or minimally useful experience. Such concepts as autonomy for the Crimean Tatar People, the rights of LGBT communities, the diversity of sexual orientation, and the variability of marital practices are perceived quite provincially by the public opinion of Ukraine. Intellectual honesty remains to be a separate serious problem and not only in the process of  dissertation defense.

In the atmosphere of the statehood syndrome intensified by the influence of the war, Ukrainian functionaries often demonstrate courage and determination where wisdom is more needed. It is obvious that the tone of the war elevates the thinking style of generals to a higher political and legal level. On the other hand, the prevalence of the similar practices in the postwar USA got a negative evaluation at one time.

Unfortunately, the Ukrainian perception of unwritten rules of the social contract is still ignoring “frivolous” habits of behavioral economics established in the Prospect theory by Kahneman and Tversky. The fundamental role of nuances of distinction in the live context of culture, as Czesław Miłosz paid attention to, is realized just as unsatisfactorily.

As in Soviet times, the Ukrainian social contract is still striving for the rhetoric of brotherhood and egalitarian democracy. But it was precisely on this occasion that the opponents of Ukrainian “Narodniks” accused Mykhailo Hrushevsky of “peasant-worship”. We don’t have it already today, but the Ukrainian social contract is still demanding the exclusion of residual toxins of socialism from it.

At the same time, the modernization of the Ukrainian social contract can take place only in parallel with the emancipation of the mentality of the constitutional justices. Some problems with this topic were written above. It is important to remind about the need of realizing by the legislators and the highest justices of Ukraine “the paradox of consequences” of Max Weber — the classical manifestation of the regularity of market capitalism, what the young Ukrainian democracy is striving to build now.

At one time, understanding the “paradox of consequences” of Max Weber let us realize how protestant stoicism led to American prosperity and wealth (Bryan Turner); how social harmony emerged from the chaos of the market (Friedhelm Guttandin); why the public profits usually become to be a logical continuation of the individual hedonism (Bernard Mandeville); and also why all attempts of radicalism finish very tragically (Edmund Burke).

Political philosophy has already reliably learned the regularity that the compulsion for equality, justice, and brotherhood actually leads to state centralized control, political tyranny, and concentration camps with the execution of the poets finally. However, academic understanding in this area is not enough. That’s why Ukrainian legislators together with the justices of the Constitutional Court of Ukraine have to realize that intellectual freedom combined with democracy is demanded not by a utopian ideal, but just a real market. A correct understanding of the market demands constitutional warranties of freedom as unconditionally as organic constitutionalism demands the market. Moreover, to ignore this regularity is so dangerous as to conscious neglect the biological instincts of survival.

Since Ukraine has the official status of a candidate for European Union membership, the Ukrainian social contract in its constitutional aspect must not forget about the main political and legal motto of the EU — a market economy where anybody can compete.

It is not a secret that the state of the current Russian-Ukrainian war is provoking a community to consciously downplay the fundamental role of private property in it. Several recent reprivatizations are only one of the convincing evidence of it. However, it is obvious that such an approach leads to the decreasing importance of autonomous individuals with independent fortunes as the main actor of constitutional law at least in its Western sense. The war is not less devastating for the adequate perception of the political role of Ukrainian regions, its economic freedom, ethnocultural differences, and the need for the parliamentary representation of its interests.

The war is stimulating Ukrainians to rethink the social contract namely the emphasis such understanding of people’s freedom where the freedom is not a consequence of another political project (see Friedrich Hayek about the two sources of freedom), but a pragmatic projection of the hopes of the still “lost Ukrainian person” (Mykola Shlemkevych).

As we know, an obscurantist understanding of freedom encourages legislators and justices to control the limits of freedom by political and legal remedies. Such an approach naturally leads to the degradation of heuristics and oppresses individual creative ability. That sounds unfortunate but the Ukrainian community has been feeling the deficit of such legal warranties for decades. Russian-Ukrainian war automatically drowns out the understanding of freedom as an achievement of spontaneous, stochastic, secreted from the rational analysis of evolutionary processes. It hurts national progress because any real productive freedom does not emerge from the directive. 

Organic understanding of freedom is maximally close to the paradigm of the USA constitutionalism. “Guided freedom” as a result of an artificially created project programmed by a revolution or war is closer to the ideological legacy of Bolshevists, the French Revolution (1789), and continental constitutionalism as such. 

Unfortunately, the analysis shows that the Ukrainian social contract still remains to be closer to a frankly moderate, continental understanding of the ways of national progress. Some contradiction appears in this. Because the main military and political guarantee of the preservation of Ukrainian sovereignty is not the European Union, but the USA now.

As already mentioned above, classical North American constitutionalism consistently shows the normative requirement: freedom determines the amount of democracy needed for national progress. Instead, constitutionalism of the continental type requires something different: a parliament has to determine the amount of freedom possible in the society. Unfortunately, the last scheme of cooperating civil society with the state, democracy with freedom prevails in Ukraine. Our prohibition of opposition TV channels and political parties, withdrawal of “subversive” repertoire from the stores and theaters, and banning aggressive bohemians from visiting Ukraine demonstrate that.

As a result, we can understand that Ukrainians have to achieve much more trust in “irrational” behavioral beginning for significant improvement of the social contract. Francis Fukuyama has written that the achievement of this goal will demand “a better theory of the human soul” in his book on identity. In particular, domestic politicians and legislators should think one more time about the real sources of motivations of human behavior are not cold rational calculation but intuition, instinct, charisma, and subconsciousness. Not for anything, totalitarianism has never won in the states of common law, which is maximally close to a good sense.

State protectionism loses to individual creative strategies. That is why ignoring the role of spontaneous, irrational human motivations by the social contract will only deepen the crisis of the Ukrainian historical project, moreover, not only in the situation of war. It would be useful for Ukraine to understand the market economic transformations in the spirit of Balcerowicz are not just the warranties of free exchange of goods in the broad sense of this concept a long time ago. It is equally important to understand that the real market maintains and develops a good sense, encourages people to be open, and stimulates intellectual honesty and a joyful perception of the world.

Unfortunately, left-wing unilateralism still remains to be the ideological pillar of the social contract in Ukraine. The exaggeration of the role of the state, obstacles to the free sale of firearms, sacralization of state ownership of land and natural resources, and conscious and subconscious desire to put mass media “at the service of the people” are the evidence of that. Typical for us, the fate of moderation has already led to the situation that the key constructions of its social contract have for decades corresponded mainly to materialistic (“Latin American”) priorities. Actually, Ukrainians need to have a metropolitan center of arts like The Centre Pompidou in Paris. The modern motto of restoration of Ukraine must not be “another bourgeois republic” (what Mykhailo Hrushevsky was so rightly afraid of), but genuine intellectual freedom and market to compete and truly strive for happiness.

July, 2022

[1] According to Gennadiy Druzenko, the Ukrainian Constitution contains the longest list of subjective rights and freedoms among the constitutions of European countries. At the same time, these rights and freedoms have the lowest level of guarantees in Europe.

[2] It is about the prohibition for the U.S. Congress to adopt laws that may restrict freedom of speech, press, conscience and petition, as well as about the current (since 2009) prohibition in the European Union to impose restrictions on freedom of expression in the field of arts and scientific research, supplemented by the state recognition of the principles of academic freedom.

The essay was written within the framework of the project On a social contract for Ukraine of the Aspen Institute Kyiv, which is implemented with the support of the National Endowment of Democracy (USA)

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