1) The Rule of Law
2) International Law
3) Constitutional Reform
4) State Financing
5) The Struggle Against Corruption
We address these themes in this order so as to find solutions to the problems currently facing Ukraine in the order of the importance of those problems.
Links to my relevant publications:
http://amor.cms.hu-berlin.de/~engleeri/
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2161503
http://books.google.com.ua/books?id=GrjPEY6yQNgC&printsec=frontcover&dq=eric+engle&hl=ru&sa=X&ei=sRcWU-CaA6T9ygPU5YLQCQ&ved=0CCwQ6AEwAA#v=onepage&q=eric%20engle&f=false<
http://www.elevenpub.com/law/catalogus/russia-the-european-union-and-the-cis-1#
(First chapter for free! “Sample Chapter”)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424695
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268555
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=879868
RULE OF LAW
(1) The Command Theory of Law
The command theory of law is the idea that law is simply an order, the legitimate command of a sovereign. This was John Austins theory. The command theory of the law usually equates law and the state.
Pashukanis took up Austin’s command theory of law. However, Marxism sought to abolish law and the state and to replace the state with Civil Society (=Antinomianism).
Russia today basically follows a command theory of law. Law as Закон — the Закон of Путин to put it plainly. Incidentally Putin wishes to end corruption in Russia, but he doesn’t necessarily know exactly how – so he uses a command theory of law.
We will discuss the struggle against corruption later in the course after the crisis is resolved.
What are the problems with the command theory of law (CTL)?
1) CTL is uncertain and unpredictable! How will the sovereign decide?
2) CTL looks arbitrary – the sovereign makes a decision, but we don’t necessarily know why or how the sovereign decided. Since the decision isn’t transparent it is less likely that the loser will think the decision was fair or right.
3) CTL can be purely personal. Does the sovereign like you? Are you the sovereign’s friend?
4) CTL can cause or foster corruption.
5) What if the sovereign’s decision is wrong?
6) Succession – what happens when the sovereign ruler dies? Who is their successor? How is the successor to the sovereign chosen? The problem of succession is: chaos!
Putin incidentally is trying to figure this problem out for Russia.
7) The CTL is simple – but it is also simplistic.
Bad as it is the CTL is better than no law at all. See: Yeltsin…
LAW AS NORMS?
The “law as norms” view is consistent with the command theory of law.
“Law as norms” argues that law is what Ought to happen — not necessarily that which does in fact happen.
LAW AND JUSTICE
Consistent with the command theory of law and law as norms is the idea that Law and Justice are not necessarily connected.
Command theory of law, law as norms, and skepticism about law and justice explain Russian law pretty accurately, and while Russian law is not the best, it is better than no law.
THE INNER LOGIC OF RUSSIAN LAW
The logic of Putin’s law is basically: love Russia, do good things for Russia and the slavs. Putin sees himself as the protector of the Slavs and this logic is popular. Putin seeks simply to advance the Russian national interest and is basicallz rational. P.S. Anne Applebaum is wrong and has no solutions to the problems she complains about — unlike me. I do have solutions.
Putin is basically the strong man Hobbes wanted “to keep them all in awe”.
“during the time men live without a common power to keep them all in awe, they are in that condition which is called warre; and such a warre as is of every man against every man”. – Hobbes
Incidentally, how many funerals has Putin gone to? Too many. No one likes funerals.
What would be better than the command theory of law with law as norms and skepticism about justice?
THE RULE OF LAW (RECHTSTAAT)
The rule of law sees law as an
objective unbiased measure which serves the goal of justice.
The legislature makes rules ex ante
The courts make decision ex post
specialization leads to better decision making
The rule of law enables us to make accurate predictions about our rights and duties.
The rule of law encourages long term planning and investments because it enables us to structure our expectations since outcomes are foreseeable.
Furthermore, the rule of law not only compels us by command it also convinces us by providing reasons for the decision.
Advice: Be incorruptible. Public power is a trust, you are trusted to rule for the people not over the people.
INTERNATIONAL LAW
Nations and States – There is a Partial overlap of nations and states.
Mazzini thought that the Nation constitutes the state and that the nation has at least partial international legal personality
The idea was — if the nation and the state were the same then there would be no international conflicts. That idea was wrong, but this idea is why Putin sees himself as the protector of the Rossisky people, and even of the Slavic peoples generally.
History has proven again and again that the union of territory and nation was impossible (people move there are millions of them) and that the union of territory and trade leads to war for markets and resources.
After the wars we built a world where there is free movement of goods labor capital and services to build peace through interdependence and prosperity.
So it is not “either tamozhni soyuz” or “European Union”: Ukraine is a bridge, not a wall.
Putin’s goal is to have Russia in a free trade agreement with Europe by 2020.
Kerry likewise wants NAFTA and EU to attain free trade
Everyone wants Ukraine to remain united and at peace.
So, we can obtain that goal, somehow.
Putin thinks “Either EU or EurAzEC” but I think we can structure it so it is “both and” not “either or”.
We focus on common goals and finding mutually acceptable solutions. That requires patience, compromise, and creative vision of the prosperous peaceful future we all want.
Ukraine is not a geopolitical chess game or a corporate take-over bid: people are not toys. Ukraine is a diplomatic negotiation to build a better future for all people, especially for the children.
De-Escalation: Everyone wants de-escalation, peace and safety. How to get it?
A U.N. Resolution?
U.N. Observers?
A treaty?
Ask Russia — you can always ask, asking costs nothing and it usually works!
Vision: There are no bad people. Everyone is trying to do their best, trying to be successful and happy. Incidentally, they all feel justified in all of their choices, even that they had no choice. We’re all human, you have to treat the other guy with respect and try to see it from his or her point of view.
Putin probably thinks of himself as a good person, he loves animals, families, kids, slavs, and fights hard to protect them all.
International law: Article 2(4), Article 42 UN Charter
Prohibition of the use of force. Does that prohibit only armed force? Or does it prohibit unarmed compulsion? Probably only armed force, since restrictions on state sovereignty are not to be presumed (Barcelona Traction). Would states give up their right to reprisals and retorsions as justified countermeasures? Probably not in fact. So sanctions, though unfriendly, are not a use of force, in my opinion.
Humanitarian Relief – generally legal
Humanitarian Rescue – Legal if limited to rescue as a form of self defense.
Humanitarian Intervention — illegal without U.N. Security Council Authorization.