Why are Ukrainians are not satisfied with own Constitution?

The theory of the constitutional field and the necessary conditions for creating an effective Constitution of the country and self-improvement of the nation.

13 November, 2024

Politics & Law

Vsevolod Rechytskyi

Law is very closely related to economics (at least at the constitutional level). The theory of the constitutional field is certainly a very ambitious name, but let us use the concept of "field" as a conditional one, since textbooks and monographs should be written about the field separately. What is a field in constitutional law? This is actually the space of transactions. If they are formalized by law, this is the field of legal acts, i.e., transactions can be legal or extralegal. If they are formalized by law, these are legal acts - a symbolic space of social transactions that operate between such powerful large-scale subjects: civil society, its institutions, individuals; the state and its representatives (its agents) - officials, civil servants; and, actually, resources, which can be any - i.e. tangible and intangible.

The constitutional field is the field of constitutional change. It is the interaction between civil society and the state regarding resources, as well as the right and freedom to dispose of resources.

Having quite a significant experience of professing “subversive ideas” regarding our Constitution as a representative of the public sector (Helsinki Union, and later the Kharkiv Human Rights Group) in the working group that was writing the Constitution at that time (1992) and working in it later, when the Constitution already existed, and even becoming a member of the Constitutional Commission under the President on Legal Reform in terms of constitutional transformations, I must admit: if we look back, we were never satisfied with our own Constitution.

The first stage of discontent was during the time of President Kuchma and the referendum of 2000, when the President raised the issue of adopting a new Constitution through a referendum. Obviously, this formulation was rejected by the Constitutional Court, although the issue was timely.

Later, the second one was during the time of Yanukovych's presidency, when the Constitutional Assembly completely rewrote the Basic Law of Ukraine. Only the events on the Maidan (the beating of students and the beginning of the Revolution of Dignity) actually destroyed all the consequences of its activities. As soon as Yanukovych was gone, Poroshenko appeared. He also formed a new Constitutional Commission, and it began to rewrite the Constitution again. When Poroshenko's term ended, Zelensky came, who again created an even more extensive, regular commission. Well, at least today it has frozen, it is not doing anything, but at the initial stage there were several meetings on continuing the reform. That is, the Constitution that we have does not satisfy anyone - not even the highest echelons of power or the establishment.

I would like to present my own view of informal but effective constitutionalism, and what requirements are decisive for it.

The theory of constitutional field is actually a theory about the necessary ingredients for creating effective constitutions in any country in any space.

From the point of view of Niklas Luhmann (a famous sociologist), сonstitutionalism appears at a certain stage, as a mandatory step for any country that reaches a certain level of development of civilization and culture. To put it bluntly, a certain level of capitalism - i.e, if capitalism does not arise, a serious need for constitutions does not emerge.

The fact that today the whole world has constitutions does not mean at all that this world uses the constitutional field and generally understands what a Constitution is and what it exists for. Constitutions are effective only in that “golden billion” of Wallerstein - in the West or in the countries concerned (say, in Japan and Australia); and it is this constitutionalism that we are going to talk about.

When we talk about transactions and interaction between civil society actors, the state and the resources they possess, we are actually talking not just about interaction, but about continuous competition. That is, the state intends to extrapolate its functions as widely as possible, and civil society strives to defend private principles. This is normal, and this competitive interaction between them is mediated by the constitutional law.

In this sense, when we say that Constitutional law is closely related to the idea of the rule of law, we should understand that law is something like the rules of the game of poker. That is, they do not define what is good and what is evil. Effective Constitutional law does not specify the dimensions of good and evil, it only regulates how you negotiate and how you determine what is bad and what is good.

Constitutional law is a basic procedure, but it does not concern itself with the issues of what will be at the output and what should be at the input. At the input there is, say, a republican system or a constitutional monarchical one - in a word, the form of government can be any, but the law shows how, under this system, to come to certain decisions, preferably proper ones. This is the principle of the rule of law.
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The embodiment of the rule of law, constitutional law and the struggle for correct decisions is the field in which national progress is or is not made. The idea that constitutionalism should be associated with progress or with advance is American in origin, and it was Americans who believed that the Constitution is the guarantee of progress, the guarantee of advance. In American terminology, there is an even more precise term of self-improvement of nations.

What leads to self-improvement of nations?

Freedom, which should not be complicated (despite thousands of definitions of freedom). In Western-type constitutional law, freedom actually means the right of an actor, either from civil society or from the state, depending on their positions, to act in their own way. The right to act in their own way is Freedom.
Individualism. Western constitutional law is built on individualism, constitutional law (despite all the rhetoric that is in the Ukrainian version with the consequences of socialism, totalitarianism, and so on) deals with individuals. For the constitutional law, in its effective version, society does not exist.
Simplification and acceleration of social transactions. That is, when an effective Constitution works, its task is to simplify and accelerate all social transactions in the society. The main thing here is the introduction of the market, - and in this area one cannot help but recall Friedrich Hayek, who wrote in his last works: “if there is a threat to democracy and the market, it is the market that must be saved, and democracy will somehow survive”.

This simplification/acceleration of transactions was very clearly reflected in the theory of the so-called economic constitutionalism by James Buchanan, a Nobel laureate, mathematician and an economist, who actually tried to write a new Constitution of the United States from scratch, using mathematical methods. His goal was to check how much the Constitution of the United States, created by the Founding Fathers, corresponds to the modern mathematical model, if it were modeled mathematically. Buchanan wrote that when they completed this work, it turned out that the Constitution, created mathematically, is very similar to the Constitution, created by the Founding Fathers. They did not have computers, they did not have mathematical apparatus, but they did a brilliant thing, using only intuition. Buchanan has since said that the Constitution is the Bible of the Market.

Let us give an example of simplification, acceleration of a transaction - a market request for a place in a good kindergarten, where there are foreign languages, swimming pools, etc. Under capitalism - pay for an expensive kindergarten and get a place. Under socialism, as a rule, there is only one good kindergarten per district, which means you have to call either the prosecutor or the police chief, or the first secretary, etc., and then you will get or not get a place in the desired kindergarten. That is, under socialism we have typical redistribution, corruption, and so on. In market conditions, there are as many expensive kindergartens as are necessary to satisfy demand. These are transactions through money - simple and profitable - and this is how simplification and acceleration work.

In addition, an important requirement is variability. If we proceed from the idea of progress, this requirement means that the Constitutions seek to accelerate progress, and progress is the biographies of specific people. Variability means that somewhere up to 44 years of age (according to the Ministry of Health, this is the age of youth) people accumulate resources - accumulate them through education, knowledge of languages, various practices, traveling the world, when they choose a place of residence. When communicating with representatives of the Western world and post-Soviet countries, even young people, we encounter, in most manifestations, a different scale of imagination, even in the geographical sense of choosing a place of residence: someone thinks in terms of continents, and someone within one country. There is a bold imagination of the Western type, and there is a very modest imagination (almost no imagination) among people in the post-totalitarian world.

Variability means a plurality of practices, a plurality of experiences: if by the age of 44 you have many options for how you can grow, how you fight for recognition (as an evaluation of your individual properties) and prestige, then you will look at the legal field from a completely different perspective. A person with such an experience, for example, looks at modern marriages as a plurality, because in different countries there are 5-10 versions of marriage, and there is only one (as in Ukraine) official, through the law.

The presence of these requirements, which can be satisfied or cannot be satisfied, indicates the existence of true or false, fictitious, informal or formal constitutionalism. That is, if you provide freedom, simplification, acceleration of social transactions, variability of accumulation and expenditure of resources - it is important.

The most important requirement is the last one, which consists in a clear distinction between symbolic space — simply put, human imagination, freedom of speech, mass media, freedom of communication, and physical space of objects. There are several versions of the distinction:

the American version (based on the First Amendment);
the Western European version;
the Eastern European version.

The Eastern European version is, of course, the worst, the Western European one is slightly improved by the legislation of the European Union, which, through Article 13 of the Charter of Fundamental Rights, brought freedom of speech closer to approximately American standards (but these are still not American standards). Finally, the one that is truly American is the prohibition on interfering in symbolic space, i.e., the prohibition of Congress from passing laws that reduce, narrow freedom of speech, destroy freedom of speech, mass media, and conscience (six freedoms). Constitutionalism has many pitfalls. Since when we identify the United States as the creators and inventors of constitutionalism with Western Europe, we should not forget that the United States is the product of a quarrel: a part of the society broke with Europe (comfortable enough for the 18th century) and went abroad. Ralph Waldo Emerson later said that God forbid we restore the Western European patterns of the world perception!

Today we almost identify them, but cool Americanism does not agree to be European. That is, it insists on its own, on its values. In the constitutional law for Ukraine, this means: either we will follow European models (which we very seriously intend to do), or we will take the American version — much riskier, but more effective.

Today, the United States of America has five times more scientists than all of Europe combined. In fact, they make 80-90% of scientific discoveries made in the world. The American military budget makes up approximately 37-38% of the world's military budget. Finally, if we talk about American culture, then Krzysztof Zanussi, analyzing the popularity of American films, and it is undeniable, tries to answer the question: why are American films so influential? Because the model of American life is a model of individualism, in which a person is as free as possible, and makes the main decisions in their biography themselves, and this model, as a temptation, penetrates through cinema. Since the heroes of American films, as a rule, solve problems on their own. They do not turn to anyone and behind this there are a lot of worldview things that we can take into account in the constitutional law - or we cannot.

We cannot, but we must. Since our country has been ranked first in the world in mortality for 20 years in a row. Ukraine is the poorest country with the best resources, but we are the geographical pearl of Europe with an extremely inefficient economy.

It should be added that practically all those who wrote the Ukrainian Constitution had no real experience of being in the West, and did not live in Europe or America. They knew this from books and they were all Marxists who were well-versed in the critical Marxist theory of capitalism, but who doubted capitalism. That means they only doubted socialism in favor of capitalism. If you read the current Constitution of Ukraine, you will see that socialist ears stick out starting from the first section “General Principles”. The Western doctrine says: you cannot force people to do what is not required by law. The law is passed by deputies, and people have feedback: if they do not like the law, they do not vote for this deputy in the future - i.e., this is a cybernetic connection.

The Ukrainian version of the Constitution states: one cannot force someone to do something that is not provided for by law. With this alone, we have actually increased the scope of directiveness by several dozen, if not hundreds of times. According to the Ministry of Justice, there are about half a million regulatory acts in Ukraine today. According to the standards of Western legal regulation, there should be 80% dispositive regulation, i.e., through freedom, and 20% imperative. In Ukraine, 80% imperative and only 20% dispositive. It means we are absolutely totalitarian in the legal sense — we are deeply totalitarian.

In fact, these issues are very serious because we have not been growing, and the gap between us and neighboring countries, which were parties to the Warsaw Pact, has only been deepening, i.e., in absolute terms we have been rising, but in relative terms we have been degrading, regardless of the war.

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Politics & Law

Vsevolod Rechytskyi

Associate Professor of the School of Law of the Ukrainian Catholic University, candidate of legal sciences. Specialist in constitutional law and political sciences, member of the Commission under the President of Ukraine on legal reform, developer of the model draft of the Constitution of Ukraine

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