THE RULE OF LAW, FREEDOM, SOLIDARITY & POWER
INTRODUCTION
Russia’s invasion of Ukraine constitutes the biggest threat to peace and security in Europe since the end of the Cold War. On February 21, 2022, Russian president Vladimir Putin gave a bizarre and at times unhinged speech laying out a long list of grievances as justification for the “special military operation” announced the following day. While these grievances included the long-simmering dispute over the expansion of the North Atlantic Treaty Organization (NATO) and the shape of the post–Cold War security architecture in Europe, the speech centered on a much more fundamental issue: the legitimacy of Ukrainian identity and statehood themselves. It reflected a worldview Putin had long expressed, emphasizing the deep-seated unity among the Eastern Slavs—Russians, Ukrainians, and Belarusians, who all trace their origins to the medieval Kyivan Rus commonwealth—and suggesting that the modern states of Russia, Ukraine, and Belarus should share a political destiny both today and in the future. The corollary to that view is the claim that distinct Ukrainian and Belarusian identities are the product of foreign manipulation and that, today, the West is following in the footsteps of Russia’s imperial rivals in using Ukraine (and Belarus) as part of an “anti-Russia project.”
Throughout Putin’s time in office, Moscow has pursued a policy toward Ukraine and Belarus predicated on the assumption that their respective national identities are artificial—and therefore fragile. Putin’s arguments about foreign enemies promoting Ukrainian (and, in a more diffuse way, Belarusian) identity as part of a geopolitical struggle against Russia echo the way many of his predecessors refused to accept the agency of ordinary people seeking autonomy from tsarist or Soviet domination. The historically minded Putin often invokes the ideas of thinkers emphasizing the organic unity of the Russian Empire and its people—especially its Slavic, Orthodox core—in a form of what the historian Timothy Snyder calls the “politics of eternity,” the belief in an unchanging historical essence.
The salience that Putin and other Russian elites assign to the idea of Russian-Ukrainian-Belarusian unity helps explain the origins of the current conflict, notably why Moscow was willing to risk a large-scale war on its borders when neither Ukraine nor NATO posed any military threat. It also suggests that Moscow’s ambitions extend beyond preventing Ukrainian NATO membership and encompass a more thorough aspiration to dominate Ukraine politically, militarily, and economically.
It also helps explain Russia’s military strategy. Moscow appeared to calculate that enough Ukrainians, at least in the eastern part of the country, would accept some form of reintegration into a Russian sphere of influence because of shared cultural, linguistic, religious, and other ties with Russia. Despite pre-war polls showing large numbers of Ukrainians willing to take up arms to defend their country against a Russian invasion, Moscow’s wager was not entirely implausible given the recentness of the shift and the persistence of family and other ties across the Russian-Ukrainian border. Nonetheless, Russia’s war has become bogged down in no small part because this calculation about Ukrainian identity has proven dramatically wrong.
The past three decades—and especially the years since the 2014 “Revolution of Dignity” and ensuing Russian annexation of Crimea and intervention in Donbas—have witnessed a significant consolidation of Ukrainian civic identity. This Ukrainian civic nation encompasses not just Ukrainian speakers in the western part of the country, but much of the Russian-speaking but increasingly bilingual east as well. A generation has grown up in an independent Ukraine that, for all its flaws, has maintained a robust democracy and is becoming increasingly European in its outlook (thanks in no small part to Russia’s aggressive meddling), even as Putin’s Russia remains fixated on quasi-imperial great-power aspirations. If anything, the current war has further united Ukrainian citizens from all regions and linguistic and religious backgrounds while reinforcing the split between Ukrainian and Russian identities. Thus, whatever happens on the battlefield, Russia is almost certain to fail in its bid to establish lasting control over its neighbor.
Russia’s war has become bogged down in no small part because this calculation about Ukrainian identity has proven dramatically wrong.
Putin and Russia’s Imperial Identity
While his February 21 speech was particularly vitriolic, Putin has long claimed that Russians and Ukrainians comprise “one people” whose common history implies that they should also share a common political fate today. During a 2008 meeting with then-U.S. president George W. Bush, Putin reportedly remarked that “Ukraine is not even a country.” He also described Russians and Ukrainians as “one people” in his March 2014 speech to the Russian parliament (Duma) announcing the annexation of Crimea and has come back to the theme in subsequent years, notably in a 6,000-word article titled “On the historical unity of Russians and Ukrainians” published in July 2021. In his pre-invasion address, Putin further claimed that the current Ukrainian state was a creation of the Soviet Union and should be renamed for its supposed “author and architect,” the Bolshevik leader Vladimir Lenin.
Putin’s historical excursions tend to provoke bewilderment in the West—when they are not dismissed as outright disinformation. Yet his claim that Ukrainians and Russians (as well as Belarusians) are “one people” has a long pedigree in elite Russian circles. It continues to shape not only elite discourse but political practice as well. As Ukraine has become increasingly “Ukrainified” in recent years, Russian officials and analysts (few of whom have ever bothered to learn Ukrainian) were oblivious to the changes.
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https://www.csis.org/analysis/russias-war-ukraine-identity-history-and-conflict
The Russian invasion of Ukraine flagrantly violates the post World War II international legal order. The Russian invocation of individual or collective self-defense is of no legal merit, even on the most elastic interpretation of the notion of imminent attack preemptive or anticipatory self-defense.
Similarly, the Russian references to “genocide” in Eastern Ukraine to justify its intervention cannot be substantiated and offer no justification for military action under international law. Instead Russia has violated the jus ad bellum regime, the conditions under which States may resort to war or to the use of armed force in general. Its actions constitute an act of aggression breaching the cornerstone legal principle of the prohibition of use of force, laid down in article 2 (4) of the UN Charter.
Apart from the jus ad bellum legal framework, Russia’s invasion raises concerns with respect to the application of jus in bello – the body of International Law related to the conduct of hostilities and the means and methods of warfare. As the military operations are still ongoing, it can only be reiterated at this stage that violations of this body of law may trigger war crimes accusations, whereas the particular provisions of the IV Geneva Convention on belligerent occupation will be of high relevance.
Finally, the displacement of many civilians who may ask for protection in other countries will activate international and regional refugee law.
The dramatic events of the last few days fundamentally challenge the basic premises of the international legal order as we know it; the normative consequences of this military operation remain to be seen.
https://www.kcl.ac.uk/how-has-russia-violated-international-law
Leading MEPs strongly condemn the recognition of the non-government controlled areas of Donetsk and Luhansk oblasts of Ukraine as independent entities.
The Chair of the Committee on Foreign Affairs David McAllister (EPP, Germany), the Chair of the Delegation to the EU-Ukraine Parliamentary Association Committee Witold Waszczykowski (ECR, Poland), the Chair of the Delegation to the EU-Russia Parliamentary Cooperation Committee Ryszard Czarnecki (ECR, Poland), the European Parliament’s Standing Rapporteur on Ukraine Michael Gahler (EPP, Germany) and the European Parliament’s Standing Rapporteur on Russia Andrius Kubilius (EPP, Lithuania) issued the following statement on Tuesday on the recognition of the non-government controlled areas of Donetsk and Luhansk oblasts of Ukraine as independent entities.
“We have learned with great concern and we strongly condemn the decision by the Russian President to proceed with the recognition of the non-government controlled areas of Donetsk and Luhansk oblasts of Ukraine as independent entities and to officially send Russian troops into those territories.
Not only is such a step an extremely serious violation of international law as well as of the Minsk agreements, but it also casts serious doubt on the trustworthiness of the Russian Federation as an international actor and on its ability to keep its word in the international arena. Furthermore, the above decision puts into question the actual willingness of the Russian Federation to de-escalate the tense situation around Ukraine and to contribute to the peaceful resolution of the conflict.
We therefore urge the Russian Federation to repeal with immediate effect the above decision and to return to the negotiating table. In the meantime, we call on the European Union to work in close cooperation with its international partners and swiftly adopt sanctions against those involved in this illegal act, as well as a broader package of progressive, proportionate and strongly dissuasive economic sanctions against the Russian Federation. This should be linked to the lifting of the Russian military build-up within and around Ukraine’s internationally recognized borders and its attempted blockade of the Ukrainian economy.
In parallel, we call on the European Union to step up its economic assistance to the Ukrainian economy in order to increase the resilience of the Ukrainian population in these extremely difficult times, and to swiftly put in place contingency measures in anticipation of the possible humanitarian consequences of the conflict.
Finally, we commend the Ukrainian government’s composure in this delicate moment and we call on it to not give in to any provocations.
The European Parliament once again confirms its unwavering support to Ukraine’s independence, sovereignty and territorial integrity within its internationally recognised borders. Parliament reiterates that there is no security for Europe without security for Ukraine and that no decision on the security of Ukraine should be taken without Ukraine, and no decision on the security of Europe should be taken without the European Union.”
The phrase “the Rule of Law” has to be distinguished from the phrase “a rule of law”. The latter phrase is used to designate some particular legal rule like the rule against perpetuities or the rule that says we have to file our taxes by a certain date. Those are rules of law, but the Rule of Law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance.
The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The procedural principles concern the processes by which these norms are administered, and the institutions—like courts and an independent judiciary that their administration requires. On some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights. But these are much more controversial (see section 1 below). And indeed as we shall see there is a great deal of controversy about what the Rule of Law requires. (…)
1. One Ideal among Others
The Rule of Law is one ideal in an array of values that dominates liberal political morality: others include democracy, human rights, social justice, and economic freedom. The plurality of these values seems to indicate that there are multiple ways in which social and political systems can be evaluated, and these do not necessarily fit tidily together. Some legal philosophers (e.g., Raz 1977) insist, as a matter of analytic clarity, that the Rule of Law in particular must be distinguished from democracy, human rights, and social justice. They confine the focus of the Rule of Law to formal and procedural aspects of governmental institutions, without regard to the content of the policies they implement. But the point is controversial. As we shall see, some substantive accounts have been developed, which amount in effect to the integration of the Rule of Law with some of these other ideals.
2. The Contestedness of the Rule of Law
The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.
But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are. Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. The requirement of access is particularly important, in two senses. First, law should be epistemically accessible: it should be a body of norms promulgated as public knowledge so that people can study it, internalize it, figure out what it requires of them, and use it as a framework for their plans and expectations and for settling their disputes with others. Secondly, legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power. All of this in turn requires the independence of the judiciary, the accountability of government officials, the transparency of public business, and the integrity of legal procedures.
Beyond these generalities, it is controversial what the Rule of Law requires. This is partly because the Rule of Law is a working political idea, as much the property of ordinary citizens, lawyers, activists and politicians as of the jurists and philosophers who study it. The features that ordinary people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions. Legal philosophers tend to emphasize formal elements of the Rule of Law such as rule by general norms (rather than particular decrees); rule by norms laid down in advance (rather than by retrospective enactments); rule by norms that are made public (not hidden away in the closets of the administration); and rule by clear and determinate legal norms (norms whose meaning is not so vague or contestable as to leave those who are subject to them at the mercy of official discretion). But these are not necessarily what ordinary people have in mind when they call for the Rule of Law; they often have in mind the absence of corruption, the independence of the judiciary, and a presumption in favor of liberty.
Contestation about what the Rule of Law requires is partly a product of the fact that law itself comprises many things, and people privilege different aspects of a legal system. For some the common law is the epitome of legality; for others, the Rule of Law connotes the impartial application of a clearly drafted statute; for others still the Rule of Law is epitomized by a stable constitution that has been embedded for centuries in the politics of a country. When Aristotle (Politics 1287b), contrasted the Rule of Law with the rule of men, he ventured the opinion that “a man may be a safer ruler than the written law, but not safer than the customary law”. In our own era, F.A. Hayek (1973: 72 ff.) has been at pains to distinguish the rule of law from the rule of legislation, identifying the former with something more like the evolutionary development of the common law, less constructive and less susceptible to deliberate control than the enactment of a statute. There is also continual debate about the relation between law and the mechanisms of government. For some, official discretion is incompatible with the Rule of Law; for others it depends on how the discretion is framed and authorized. For some the final determination of a court amounts to the Rule of Law; for others, aware of the politics of the judiciary, rule by courts (particularly a politically divided court) is as much an instance of the rule of men as the decision of any other junta or committee (see Waldron 2002 for a full account of these controversies).
The fact that the Rule of Law is a controversial idea does not stop various organizations from trying to measure its application in different societies. Groups like the World Justice Project concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard. Countries like Norway and New Zealand rank at the top of the Rule-of-Law league and countries like Zimbabwe and Afghanistan at the bottom (see Other Internet Resources). The criteria can be hardly be described as rigorous. But people in business value these rankings as part of their estimation of country risk for foreign investments (see Barro 2000: 215ff.)
3. History of the Rule of Law
The Rule of Law has been an important ideal in our political tradition for millennia, and it is impossible to grasp and evaluate modern understandings of it without fathoming that historical heritage. The heritage of argument about the Rule of Law begins with Aristotle (c. 350 BC); it proceeds with medieval theorists like Sir John Fortescue (1471), who sought to distinguish lawful from despotic forms of kingship; it goes on through the early modern period in the work of John Locke (1689), James Harrington (1656), and (oddly enough) Niccolò Machiavelli (1517); in the European Enlightenment in the writings of Montesquieu (1748) and others; in American constitutionalism in The Federalist Papers and (and even more forcefully) in the writings of the Federalists’ opponents; and, in the modern era, in Britain in the writings of A. V. Dicey (1885), F.A. Hayek (1944, 1960, and 1973), Michael Oakeshott (1983), Joseph Raz (1977), and John Finnis (1980), and in America in the writings of Lon Fuller (1964), Ronald Dworkin (1985), and John Rawls (1971). Because the heritage of this idea is so much a part of its modern application, a few highlights need to be mentioned.
3.1 Aristotle
The work of Aristotle on the Rule of Law is still influential. Though he formulated the question of whether it was better to be ruled by the best man or the best laws, he approached that question realistically, noting that it depended not only on the type of law one was considering but also on the type of regime that enacted and administered the law in question (Politics 1282b)
But Aristotle did maintain that law as such had certain advantages as a mode of governance. Laws are laid down in general terms, well in advance of the particular cases to which they may be applied.
Moreover, laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice. (Rhetoric 1354b)
There were, he conceded, some cases so fraught with difficulty that they could not be handled by general rules—cases that required the focused insight of particular judges; he used the term epieikeia (sometimes translated as equity). But these cases should be kept to a minimum and legal training and legal institutions should continue to play a role in the way they are disposed of. Aristotle’s discussion of the general desirability of rules and his treatment of epieikeia continue to influence modern jurisprudence (see Scalia 1989 and Solum 1994).
Prepare a lecture on the issues of the project. Add your own comment on how one can apply the Rule of Law individually and why it makes sense.
Western state systems are based on the principle of law. This fact guarantees, as the title suggests, freedom, solidarity and power characteristic for the western democracies. Primarily, however, it guarantees peace.
Similarly to the disregard of the individual meaning (Project 38) and violation of the inherent natural order (Project 39) also the violation of the Rule of Law as „a mode of governance“ (RESEARCH: Aristotle) leads to the most dramatic consequences to be seen not only in the history but also nowadays in the context of Putin´s invasion on the souvereign and independent Ukraine.
This project aims to lead to the reflection on what the application (or violation) of the Rule of Law means concerning the internal and international politics.
Moreover, it should make one interrogate if, how and why this rule applies to the individuals integrated in democratic systems, where the Rule of Law constitutes the basic political and philosophical idea.
