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38PHILOSOPHY OF LAW
ON THE PHILOSOPHICAL AND LEGAL MEANINGS OF THE RIGHT OF A PEOPLE TO BE THEMSELVES
DOI: http://dx.doi.org/10.14420/en.2014.2.2
Gadis Gadzhiev, Justice of the Constitutional Court of Russia, Prof., doctor of Law, e-mail: ksrf@ksrf.ru.
Abstract. In the present article the author makes an assumption that the
wording of the preamble of the Constitution of the Russian Federation of 1993 that the multinational people of Russian «is united by a common fate on their land» is not just a decorative declaration, but has a profound philosophical, cultural, historical and legal grounds. This formula reflects the specific tradition, cultural identity and the «independence» of the Russian law and Russian statehood, the path of becoming of which at times diverge from the western, European one. This discrepancy can be explained in terms of philosophical debate between realists and nominalists, which, in part, is being continued by J. Rawls and J. Habermas. This debate, in author's opinion, can bring clarity to the understanding of modern concepts of human rights, the idea of socio-historical basis of limitation of rights. This aspect is particularly important, bearing in mind the unfolding conflict of matching of so-called liberal European and traditional Russian legal values.
Keywords: preamble to the Constitution, the people, ethnicity, Law, statehood,
traditions, cultural identity, nomenalizm and realism, selfdetermination, liberalism, minority rights, collectivism.
L1. The eighty four words of which the preamble to the Russian Constitution consists include some fervent, politically impassioned words. In fact, the Constitution begins with the first statement that we, the multinational people of the Russian Federation, are united by a common fate on our land.
Of course, we could suggest that the writers of the text of the Constitution demonstrated a tendency towards simple rhetoric in the preamble. However, legal experts take the position that every word in such important texts as the texts of fundamental laws embodies attributes of legal concepts. These legal concepts are often a specification of philosophical concepts. Such, in our view, is the concept of a «common fate», in the way it characterizes the people who created the constitution.
The concept of a «common fate» was not developed further in the doctrine of constitutional law. However, recent dramatic political events place it at the epicentre of legal and philosophical discussion.
The common fate on our land for a thousand years, the multitude of peoples living together, some of whom have disappeared and been assimilated, has resulted in both genetic and social unity, with a common spirit. This commonality has a will, which is realized in the political form of the Russian state, the birth of which can be associated with the Rurikid Dynasty, or, in Nikolai Trubetskoy’s concept, with the empire of Genghis Khan.
The notion of common fate reflects not only genetic relationships, but also common cultural and societal relationships. Common fate as an objective given is seen in the way in which the current generation of Russians follows in the path of a specific cultural tradition that has developed over many centuries. Understanding this, we can comprehend the ontological, legal status of the Constitution in a different manner: it is not simply a codification of the most important legal principles, many of which were adopted and adapted from the laws of other countries. Simultaneously, viewed through the prism of a «common fate» and the responsibilities between generations, the Constitution is also a unique codification of our relationships with the past. The German legal philosopher Josef Isensee formulated this idea of the need to consider the historical process, a unique idea of historicism in the doctrine of constitutional law. A new constitution is always only partially new, since, unavoidably, it must embrace some elements of the past. «Here lies the boundary of political possibility», writes Isensee, «beyond which not a single creator of a constitution can escape from any postulates on the sovereignty of power. He is only able to give new outlines to certain aspects of the life of a people, but he cannot transform that life entirely, because a people cannot be separated from their history and the tide of life cannot be stemmed for even an instant.
This theory, which connects the present Constitution to the past, allows us to obtain an unvarnished picture of the state corresponding to the constitution. Constitutional law is not only the result of the codification of fundamental legal norms, it is also essentially a codification of their relationships with the past, which give these norms their meaning, content, form, and validity»1.
Taken in its philosophical sense, the concept of a «common fate» is the reality of a non-universalized existence of a community of people who consider themselves one nation. This is the idea of unity, which forms the foundation for the principle of federalism (it is no accident that Part 3, Article 5 of the Constitution of the Russian Federation declares that the federal structure of the Russian Federation is based on its state integrity).
Common fate as an attribute, a feature of a society of people also requires the energy to resist those forces which demand that the people of this society subordinate themselves to a level of universalization that exceeds the reasonable minimum of commonality. Here, it is very important not to allow extremes.
According to the preamble of the Constitution, we, the multinational people of Russia, recognize ourselves as part of the world community. But this refers specifically to the world community, not individual parts of it. A correct understanding of the idea
1 Constitutional Law of Germany. - M., 1994, Vol. 1. - P. 12.
of common fate from the viewpoint of ideology must help us to avoid the extremes of nationalism, which is always based on the cult of selectiveness and exclusiveness, and which is always dangerously expansive. These negative aspects of nationalism are clearly visible in Fichte's address to the German nation, in which he competes with the supporters of French nationalism. For the idea of common fate to be useful as part of an ideology of patriotism, it must always be purged of everything excessive, such as claims to special abilities, to messianic ideas, and to other ever-present myths about the exclusivity of one nationality or another.
Common fate primarily gives rise to cultural identity, one of the manifestations of which is tradition or mores - the traditions of patriotism, solidarity, support of the family, etc. It is clearly possible to acknowledge the ontological nature of the traditions of the Russian state. In that case, an entire programme for research arises: can these traditions be viewed as a value exceeding the Constitution; what are the strengths and weaknesses of the traditions of national identity; is it possible to construct a system (gradations) of such traditions; is it possible to assess the repressive force inherent in any of these traditions so that we can learn to control it, just as man has learned to control the braking of a car (from which the braking force has not completely disappeared).
2. As a strictly legal concept, the notion of «common fate» is relative to the natural collective right to identity, distinctiveness, and preservation of the cultural traditions of all peoples of the Russian Federation. In the community of world nations, Russia has the right to cultural relativism. Manifestations of this constitutional right can be seen in public discussions about modern society. When a decision is made to establish a limited quota on the screenings of American films in Russian cinemas, this is also a realization of the right of the people to a non-universalized objective reality.
The idea of a common fate means that constitutional law must confront a totally new issue: the reality of the constitutional rights of future generations of Russians. Is it possible to recognize a future generation of the Russian people as having rights under the law? This is far from an idle question; in particular, the rates at which oil and gas are pumped out of the ground and the state of the country's environment depend on the answer to it. But the most important thing is that the Constitution of Russia confers a number of important cultural rights on future generations. In particular, the state must concern itself with preserving a historical and cultural legacy and caring for historical and cultural monuments on behalf of future generations (Article 44 of the Constitution of the Russian Federation). Despite the fact that Russian is the official language throughout the territory of the Russian Federation, the republics have the right to establish their own official languages. The Russian Federation guarantees all its peoples the right to maintain their national language, creating conditions for its study and development.
Thus, the idea of a «common fate» embodies the idea of identity and freedom. Hermann Lübbe wrote that it is not only this freedom which makes individuals equal to one another. Freedom may differ in the world - it is a unique manifestation of the legal principle of equal rights. The requirement that we acknowledge such a right in international law is fully legitimate, since we are dealing with the freedom of our reality
in the contingent historical identity1.
Of course, the traditions of national identity differ from those traditions that are the subject area of ethnography, although these and others have historical roots and can only be objectified in the collective understanding of people. Mores is closer to the concept of archetypes of consciousness introduced into scientific use by Carl Jung.
As a society undergoes the process of modernization, old traditions collide with new norms, most often from a borrowed culture.
If the old traditions are engrained in the society, then a mechanism for reconciling them with modern norms must be found. The type of culture where modernization, especially in the economic, scientific, and technical spheres, can occur without discarding old traditions has arisen not only in Russia, but also in many other nations2.
The concept of 'common fate on our land’ is entwined with a system of ideas intended for finding a reasonable balance between the values of ancient traditions and the values of modernization.
3. As a legal concept, the right of a people to be themselves can be characterized from the viewpoint of its content, i.e., legal possibilities, and guarantees. As a legal concept, this right of peoples is the foundation for the formation of a given system of world order.
The content of this right is contained in the concept of fairness. In particular, from the idea of fairness, we can extract the authority of each people to insist on equality in asserting their rights for identity on an equal basis with other peoples.
When developing the legal concept of the right of a people to be themselves, it is preferable to focus on the philosophical tradition of nominalism, rather than the tradition of realism. As is known, the argument between these two philosophical traditions is essentially the selection of a moral world outlook, which has always occurred, is occurring, and will occur. We will note that realists, i.e. the proponents of the tradition of realism, have gained epistemological and metaphysical primacy, and the ontological superiority of the common and ideal over the private, empirical, and diverse. The proponents of the tradition of nominalism are inclined to declare that the world of facts, the empirical world, is the only true reality. Realism and nominalism are two different schools of academic thought encountered in all types of knowledge. For example, as the proponents of the realistic tradition reason, if they need to evaluate a president, judge, or professor, they want to see in them first of all an ideal president, judge, or professor created by their imagination, a certain archetype, which generally is not found in reality. But when they encounter a president, judge, or professor who has, like any empirical man, his virtues and deficiencies, when they discover that a president, judge, or professor is not the ideal figure their imagination created, they are disenchanted. This phenomenon is expressed by the Turkish proverb: «I thought a pasha was a pasha, but it turns out that a pasha is a man»! A nominalistic thinker generally is not taken in by ideal concepts. Such people generally understand people
1 Lübbe Hermann, The Right to be Different. On the Philosophy of Regionalism // Political Philosophy in Germany. - M., 2005.
2 Stepin V.S. The Value of Law and the Problem of Building a New Society in Russia // Legal Philosophy at the Beginning of the 21st Century. - M., 2010. - P. 18.
better and do not commit mistakes of self-delusion. The enthusiasm for traditions of realism and abstract concepts in the very sensitive sphere of civilizational differences between peoples leads to tragic consequences. John Rawls and his concept of a rationally thinking society of peoples, which he used in his book The Law of Peoples, offers an example of this. For Rawls, a rationally thinking society of peoples consists of liberal societies and hierarchical societies.
He defines the idealistic concept of a liberal society as a society with law and order, permeated with the concept of common wellbeing, guaranteeing that human rights are observed in society. It is not considered at all here that the idealization of the rights of certain minorities, such as the proponents of homosexual love, carries serious risks of a creating a schism in a society. Recall how in Mark Twain's The Prince and the Pauper, the latter used the government seal to crack nuts. Using this comparison, I would like to show that, in unskilled (or, conversely, devious) hands, the extremely abstract category of human rights can have a destructive force.
The attraction to the realistic tradition of thought is dangerous in that a bias towards other civilizations and cultures, and even explicit snobbery, is programmed into it. The Western tradition of individualism is viewed as obviously the most perfect, as an axiom that requires no proof, despite the fact that in the majority of countries in the world there is a tradition of viewing individuals as members of a society, community, and labour collective.
The freedom of self-determination and self-expression, as defined constitutionally, cannot be extended so broadly as to ignore the constitutionally recognized and valuable preferences of the democratic majority that are the foundation for the organization of society and thus to raise doubt as to the historical and cultural self-definition of a nation, its development under conditions of civil peace and agreement on the basis of an understanding of the historical, cultural, and other national traditions, as well as responsibility to future generations.
Enchantment with realism to the detriment of nominalism leads to inertial thinking. Without any great proof, John Rawls suggests that the culmination of the development of civilizations is the development of a world system where the sovereignty of the state must be limited using human rights, the standards for which are created in one workshop, in one part of the world, which is clearly always right, because it is the repository of reason. However, if the human rights concepts of any nation contradict these standards, then that nation must be counted as one which is in need of forced correction.
Regrettably, John Rawls distorts the ideas of Kant, who wrote that the first political responsibility of a man is his responsibility to abandon his natural state and subordinate himself to the standards of rational and fair law. I do not think that Kant would be pleased to learn that, if human rights in one society are not esteemed in accordance with unified standards that do not account for differences in civilizations, then the liberal avant-garde of the community of liberal nations has the right to start bombing such a nation.
On the subject of John Rawls' book, a discussion arose between Rawls and Jürgen Habermas. In his address to the World Congress of Philosophy in Istanbul, Jürgen Habermas showed that he does not follow in Rawls' tradition of realist thought.
He stated that, unless we are dealing with genocide or crimes against humanity, defence of the integrity of forms of life and the usual way of life of a community of people organized into a nation takes precedence over abstract principles of fairness on a global scale.
The framework of my address does not enable me to go into the details of my argument. I will limit myself to the conclusion that the tradition of realism conceals the risks of hazardous cognitive situations in those cases where theory is the foundation for policy, i.e. the course of actions taken by nations. A cognitive situation, an orientation towards the abstract concepts of a liberal society, a hierarchical society, is certainly not harmless.
Rawls proves, using the abstract concept of justice, the right of civilized nations to wage «just wars». Jürgen Habermas is right in stating that the criteria for assessing whether a law is just or not cannot be translated into the language of law, and the use of such criteria by nations cannot be verified by international courts.
Furthermore, there is too much relativism there: who can determine on a supragovernmental level whether Western legal values deserve universal acceptance?
Thus, the right of a people to be themselves is the right to have a historical memory, which is a part of a historical legacy, and the right to have a national spirit, which, in the case of the Russian people, is the spirit of the undefeated, and ultimately the right to the identity of a civilization.
4. There has been a debate for many years in jurisprudence on the nature of constitutional courts - is such a court less a court, and more a qualitatively new authority? I think that if we assess the procedure for decision making in constitutional courts and in courts of law, we must acknowledge that the former differ substantially from ordinary courts, which rule on cases using simple legal syllogism. It is sufficient for ordinary courts to evaluate the factual circumstances of a dispute which arises, to seek a legal norm in the law that applies to this dispute, and to draw a legal conclusion. Everything is more difficult in constitutional courts. In addition to the positive constitutional law contained in the texts of constitutions, in order to make decisions, it is also necessary to master a much more complex methodology - the methodology of the philosophy of law.
Only this philosophy can help to find a balance between universal legal values and those legal values which traditionally separate the majority of a nation and which are not in any way evidence of its conservatism. To be different does not mean to be conservative, since there are no generally accepted criteria in this sphere. The European Court of Human Rights' claims that its court system is based on the «sovereignty of universal morals and law» and that the sovereignty of nations in this connection should be significantly limited is viewed with scepticism in Russia. It is possible that, after the Second World War, after the adoption of the Universal Declaration of Human Rights, man actually became more homo universalis (Latin), but the manifestation of this concept in the spirit of realism does not cancel out the differences in civilizations in the spirit of nominalism. Samuel Huntington wrote about this in his prophetic paper on the clash of civilizations. We can discard Marxism, but this does not mean that Russians are becoming Westerners.
That is why we strive for our own understanding of our own constitutional values, and this is part of the right of a people to be themselves. We cannot accept the Western formulas that are proposed to us regarding the neutrality of the government on the problem of propaganda of homosexual love. The freedom to preach homosexual love is associated in our society with the public indecency discussed by the multinational Russian people. A pro-gay demonstration may end in beatings and disorder. We cannot accept such recommendations on the total liberation (liberalization) and propaganda of human instincts aimed at disrupting the moral authority of the Russian Orthodox Church.
Our opponents in the West must know that their purely Western legal values are causing a schism in Russian society. However, the social value of constitutional law is to reasonably combine the rights of minorities with the principle according to which the exercising of the rights and freedoms of men and women cannot be allowed to violate the rights and freedoms of other people.
In Russia, there is a strong historical tradition of tolerance between the many peoples populating its territory. Careful respect for national cultures is a tradition of the Russian state. We did not have a unification of cultures in the sense that it occurred in Europe during the era when nation states were created, when many ethnicities and ethnic cultures disappeared. In Russia, ethnic enclaves have always been preserved, but the price for this was a contradictory combination of cultural patterns and traditions.
Of course, this circumstance makes our path to perfect superiority of law longer and more winding. Our opponents in the West need to understand this. They still adhere to the battle cry, «Be realists: demand the impossible».
References
1. Constitutional Law of Germany. - M., 1994, Vol. 1. - P 12.
2. Lübbe Hermann. The Right to be Different. On the Philosophy of Regionalism // Political Philosophy in Germany. - M., 2005.
3. Stepin V.S. The Value of Law and the Problem of Building a New Society in Russia // Legal Philosophy at the Beginning of the 21st Century. - M., 2010. - P 18.
