The Simple Values of Constitutionalism

October 2010
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A review of the “simple” values ​​of constitutionalism—freedom, market, and social dynamics—in some cases may require references to the postulates of political science; however, I would prefer to discuss all political issues in the legal, regulatory aspect. I therefore apologize in advance to everyone who may find my way of reasoning and my overall approach to the interpretation of political problems controversial or unconvincing. Philosophy of constitutional law is the segment of the symbolic space where the method of mastering reality is not fully exhausted by legal concepts. On the other hand, constitutional law (as a normative system) should be a component of litigation, but courts do not work well with ideas that are not “practical.” Therefore, constitutional law has a direct relationship with the practice as well as with the most complex aspects of political theory.

I will begin with a personal memory. When I read Francis Fukuyama’s The End of History in 1994, I was drawn to two of the author’s ideas: the stunning complexity of problems facing the countries of the former Soviet bloc, and that the prosperity of the United States was achieved through its determination to adhere to the ethics of the irrational.

I think that in both cases, Fukuyama was quite insightful. After almost 15 years, post-Soviet Ukraine and, maybe, Russia must agree with at least the first consideration. Fukuyama’s correctness is confirmed, in particular, by the fact that Ukraine’s progress during two decades of independent development was surprisingly modest. By the standards of the UN, 78% of Ukraine’s population still lives below the poverty line. In terms of prevention of corruption, Ukraine ranks 134 out of 180; for ease of paying taxes 181 of 183; for ease of processing permits for construction 179 of 183 (of available worldwide rating positions (see here; article in Ukrainian). In addition, in 2010 Ukraine ranked second-to-last in Europe in terms of the well-being of its citizens. The annual income in Ukraine averages at about USD 2.7 thousand (for comparison, in Poland it is USD 28.6 thousand, in Russia USD 10 thousand, Belarus USD 6 thousand; see here; article in Ukrainian). In other words, Ukraine’s exit from socialism was much harder than even the most pessimistic forecasts promised.

Such naivety in expectations and assessments could not but be reflected at the constitutional level: the Constitution of independent Ukraine, adopted in 1996, was as eclectic, populist, and “frivolous” as was the then attitude of the country’s political elite. As we continue, it becomes clearer: the developers of the Constitution chose to mindlessly copy existing regulatory models. Experts and lawmakers either did not understand the underlying meaning and purpose of borrowed norms and institutions, or they did understand the content, but did not care about its practical application. Sometimes, this caused outright mishaps. For example, the Constitution of 1996:

  • confuses the terms Ukrainian nation and Ukrainian people (Preamble, art. 11);
  • establishes the responsibility before God of a legal entity — the Verkhovna Rada of Ukraine (Preamble);
  • recognizes individual life as the highest social value (first part of art. 3)—which, as a direct effect of the constitutional norms (third part of art. 8 of the Constitution of Ukraine), forces society and courts to accept a soldier’s refusal  to go to war even in a time of war: all that he would defend in war—freedom, independence, territorial integrity, sovereignty of his homeland/country, etc.—matters less, according to the Constitution, than his life;
  • prohibits any kind of child...
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