Paradoxically, it doesn’t matter whether they’re written in the Constitution, carved in granite, or exist merely in the minds of citizens. There are countries that don’t have a written constitution but in which these principles are closely adhered to. Yet there are other countries that have detailed constitutions and have these principles written down for every eventuality of life, yet none of them are kept. What matters is not what’s written or where it’s written, but what people consider to be vital.
In my view, one of these basic principles is the idea of freedom. This isn’t surprising. After all, in its own way the law is a measure of freedom. This concept of the law developed as a result of the marriage of the traditions of Western antiquity (from the Greeks and the Romans), and from Christianity. We can extend this to say that herein lies the basis of Europeanism and the modern age.
If we consider our ability to accept such a concept of the law and of just laws we can judge whether Russia is ready to be a European country. All other indicators are less relevant or indicative.
In order to understand whether a particular law is just or not, it must be examined under this political microscope. And whatever formal relationship or coincidence of language there may be with any other law, this is not proof of whether or not a law is just. It’s especially important to stress this, bearing in mind the Kremlin’s habit of pointing to international practice and covering up its despotism by the decisions of the Constitutional Court, which it’s made impotent.
Indeed, laws are passed about gatherings, about extremism, about showing disrespect to the authorities or about mass unrest, on pre-trial agreements with the investigators, on summary proceedings in criminal cases and so forth. We constantly hear how in Russia everything’s the same “over there” as it is “here”; it’s even far better “here”.
Yes, if we’re talking about the way laws are drawn up then we have a lot in common. But here’s the rub: the same way of doing things works differently in different political situations and produces different results. This proves just one thing: comparing the way systems work doesn’t work. We have to look more closely at the details.
In each and every case we have to consider the actual economic and socio-political situation, and ask whether a particular law defends the rights and freedoms of the individual or not.
And it’s not as easy to do this as many seem to think. The principle of freedom is often contrary to other principles and values that are guaranteed by the Constitution. For example, freedom of procession and assembly clearly restrict the rights of those who have no intention of processing or assembling and who just want to have a quiet and tasty meal in a café on the same boulevard. This is a genuine contradiction. So what can we do?
We could decide in favour of those who are taking part in the procession, who are clearly in the minority; or we could rule in favour of those who want to relax in a normal manner; they’re clearly the majority. The Russian authorities decide this in a contradictory fashion, of course, to their own advantage, but in doing so support the majority, who always want to eat. Thus the laws on gatherings in Russia are really just like those in Europe; but in reality they operate in the mythical land of Asiope.
This is because a conflict shouldn’t be decided in favour simply of the majority or the minority, but in favour of freedom as a stand-alone value. In this particular case, the question should be decided in such a way that the freedom of political action is defended.
It is only a law that has this as its basis that can be considered just.
It’s interesting to note that in the years that Putin’s been in power, Russia has undoubtedly distanced itself from Europe and moved closer to Asiope. Some adherents of the dictatorship of the law have even gone so far as to propose revising the hierarchy of the branches of legislation that have been generally accepted since Soviet times, arguing that at the top of the pyramid we should have not constitutional, but criminal law. This, of course, is another loyalist stupidity, but at the same time it is very indicative.
These are the people who say “the law” and mean “autocracy”. And when they talk about “autocracy” they have in mind “the law”.
Why have I spent so much time on this apparently abstract and deeply philosophical question? Because it’s fundamental. There are certain things that you don’t need to prove to anyone. Among those who are opposed to the regime there is agreement that the current law enforcement and judicial system are anti-constitutional and in need of deep revolutionary change. There have been many suggestions as to how this could be done, and most of them aren’t meaningless and are very useful.
Multi-page, detailed reports and brilliant short essays have been written that are full of specific suggestions and complete reform projects. The general outlines are clear. The competence of jury trials should be expanded; the independence of the courts strengthened; the FSB should be transformed from a “second government” into a body focused on combating terrorism and espionage; in general the special services should be disaggregated and diversified; there should be a radical change in the role of the prosecutor’s office; and much more besides. But all of these suggestions will be useless unless the main revolution takes place: inside people’s heads. Nothing will change if people don’t understand the essence of what the concept of just laws really is.
Any structure can be shortened, any mechanism can be perverted, any guarantee can be circumvented if there’s no agreement on the main principle: the criterion by which the success or failure of reforms is judged. And here there is just one criterion: freedom. It is the priority of freedom that overturns the unjust law and accepts the just law; and overturns the dictatorship of the law, that’s dangerous for society (and acts merely as a fig leaf for a new autocracy), and makes the state governed by the rule of law.
Chapter 21. The Moral Choice:
Justice or Mercy?
Max Weber once noted that if you scratch the most rational theory you’ll find that it’s based on some totally irrational idea that we accept on faith. This idea brings together everything that we regard as completely rational and logical.
It’s also the case that at the root of any political programme lies some kind of moral imperative that we vote for not with our minds but with our hearts. This voting with the heart is more important than voting using your intellect. In most cases, logical mistakes can be corrected; but moral errors are usually fatal.
It’s generally accepted that the fundamental moral imperative in politics is justice. Society reacts angrily to any violation of the balance of justice, and if the pendulum swings too far then the balance may be restored by means of a revolution. Yet if you ask the average person what’s the essence of justice, very few can give you an answer. However, ask someone whether they think that Russia is today run “fairly”, then the vast majority – including many supporters of the regime – will answer with a categorical “no”.
In a nutshell, this is the regime’s main problem. On the moral level, it’s rejected by the majority of those who usually ignore politics. The restoration of justice can be delayed, but it can’t be avoided. Sooner or later, this secret political lever will start to operate and turn the next page of history.
You’d think that there would be nothing simpler then bringing morality back into politics: all you have to do is restore justice. But when you look closely at justice, nothing is as simple as it might have seemed.
First of all, each person has their own idea of what justice means, and it’s very difficult to find a definition of what everyone would consider as “justice”. Secondly, and more importantly, the price of restoring the balance of justice frequently seems exorbitant. We must never forget that the Bolshevik Revolution took place on the crest of a wave of a search by the Russian people for justice, and its sworn aim was specifically the creation of the most just society in the world. But what it ended up as was in an even more unjust society, that lasted for decades.