Тег: legism

Happy Constitution Day!

At the heart of documents such as constitutions lies a rather peculiar paradox of thinking. On one hand, law is equated with legislation, and any order from the reigning sovereign becomes law. On the other hand, there is a glimmer of understanding that the consistent implementation of such an approach creates conditions that are not very conducive to living and, in particular, greatly hinders long-term planning.

And here is what the creators of the idea of the constitution did. They proposed: let us establish a law that declares the people as the sovereign, and the actual ruler as merely the executor of the sovereign’s will. What would this achieve? This: we will explicitly write the limitations of the ruler’s powers in this very document. And since the ruler is not the sovereign, he cannot repeal them, meaning they must be observed—after all, the law is what is written on the paper.

Over several centuries of implementing the idea of constitutional limits on state power, it became clear how this works.

If relatively simple mechanisms for its amendment are embedded in the constitution, then it will be changed in accordance with the desires of interested parties in the government.

If, instead of concrete norms, the articles of the constitution provide references to laws that the government must adopt to comply with the constitution’s wishes, these laws very quickly become such that, in the name of the sovereign “people,” representatives of that very people—who have nothing to do with the exercise of state power—are repressed, while representatives of the “state” service organization are gently moved out of harm’s way.

Finally, if the constitution contrasts sharply with the wishes of sufficiently influential actors in the government, its norms are simply ignored, since a constitution usually does not contain norms specifying exactly how the sovereign has the right to hold the government—established by the sovereign—accountable when the government refuses to observe the constitutional restrictions established by that sovereign.

In short, the idea of a constitution is an interesting attempt to limit absolute power without departing from the principles of legalism, and this attempt had some success. However, no constitution has ever worked on its own. A constitution always works only on the general belief that, first, a constitution should exist and, second, it must be observed.

So, as long as we still live in a state, it is worth remembering that a constitution is a limitation on state power, not on civil rights. A citizen cannot violate the constitution; only a person vested with state authority can violate it. Since the constitution works on faith, shove this sacred scripture in the faces of government officials more often. Tell them: all laws are what you wrote against us, and only the constitution is what you wrote against yourselves. Therefore, I will demand that you observe the constitution, and specifically as I, the sovereign, understand it—that is, literally. And if any law, secondary act, job description, or oral directive from your immediate superiors violates this very constitution, then I, the sovereign, perceive this as a conspiracy against myself, the sovereign, and I will put a stop to it; so it is better to push aside all other scrap paper and talk about how you must observe my constitutional rights.

As lawyer Mikhail Benyash said in an interview with Mikhail Svetov: be as naive as children, demand the observance of the constitution.

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What happened with Crimea in March 2014—is it legal or illegal, good or bad?

anonymous question

What happened to Crimea in March 2014 was the seizure by one state of part of the territory of another state. Theoretically, such a seizure can lead to either a benefit or, conversely, a loss for the residents of the seized territory. Off the top of my head, I can recall only one precedent where the residents of a territory severed from another state now live wealthier and freer than the residents of the state from which the territory was severed. This refers to Texas, severed from Mexico. As for the territories that the Soviet Union took from its neighbors, all of them now live poorer than the countries from which the territories were severed. Moldova is poorer than Romania, the Kaliningrad region is poorer than Germany, Karelia is poorer than Finland… So history is not on the side of the residents of Crimea, although it is still too early to assess all the consequences of the reconfiguration of state borders for Crimeans.

However, there are also, imagine that, the residents of the Russian Federation itself, and the annexation of Crimea has already made them noticeably poorer, and there are no prospects for a reversal of this process.

Please note that in my analysis I absolutely do not touch upon international law and other interstate complications, because the problems of bandits don’t fuck honest people and shouldn’t. If Russia were minarchist, and the Crimeans had asked to move from socialist Ukraine to a freer Russian jurisdiction, I would have warmly welcomed the Crimeans’ decision—provided, of course, that they were ready to pay for the services they purchased—while the Ukrainian government’s attempts to refer to the sacred right to personally rob its serfs would have been met with a contemptuous “pffft.” But in our case, we are talking about two equally wretched bandits, and I can only hope that they both drop dead, choking on Crimea.

So you look at it—and you wouldn’t say it’s a disaster zone

I hope the answer was unconventional enough; honestly, I’m tired of all the legalists jumping around with papers about what one bandit once promised another bandit. I will gladly accept a reward in unconventional currency to the bitcoin wallet 1A7Wu2enQNRETLXDNpQEufcbJybtM1VHZ8