28th February 2022
As the Russian imperialist invasion of Ukraine unfolds, and as it becomes plain the autocratic hold which Putin has over the Russian state and people, it may not be a good time to point out that – on paper – Russia has a written, liberal constitution.
But let us consider this point any way.
You can look at an English translation of the Russian constitution here (though there have been amendments since this version).
Scroll down – and you will find all the old favourites of liberals and greatest hits of progressives.
You can see almost every provision that would gladden your heart to see written in a codified constitution.
And all…
…completely useless.
For perhaps the least important constitutional thing in any liberal state are the words written down on paper.
More important are checks and balances, by which provisions can be practically enforced against those with political power.
And most important of all is a sense of constitutionalism – the notion that there are political rules that are to be followed, even against the partisan and personal interests of those with power.
Sometimes codification can make a marginal difference in the liberal direction – that because there is a portable instrument certain checks and balances are easier to point to and rely on.
But the difference is only marginal.
A written – that is, codified – constitution is never, by itself, a liberal and progressive panacea.
Just scroll down that Russian constitution, with its nice and attractive ideal provisions, and compare and contrast with reality.
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I have had the pleasure in working with and advising on the Codes of Conduct in a number of tech / open source projects and other communities.
One thing I find myself saying repeatedly is that it doesn’t matter how fancy the words of the code are, there are only two things that really matter:
1. The leadership of the community buy-in to that code wholeheartedly, including that it applies to themselves
2. There is a well defined process and trained individuals to actually enforce that code.
Seems constitutions are much the same.
Absolutely, Rachel
Surely the key thing that is missing is simply the de facto independence of the judiciary? All genuine human progress stems from the freedom to say what one wants, and judges need the freedom to decide cases as they see fit, too. Without judicial independence, the rules are meaningless.
A judiciary is useless unless there is access to the courts for parties to litigate, and mechanisms to enforce court orders
Quite so. But then (assuming the judiciary were to become independent) we are back to saying that we need more written laws, are we not? Unless by access you also mean court processes being reasonably cheap enough to access, too (and I agree there to some extent if so!).
I agree, but to explain:
My experience of UK ‘judicial independence’ is that it is yet another glorified expression with little or no meaning beyond (as with many laws and rules) fooling the unaware and uninitiated.
The UK courts (and doubtless many powerful organizations in UK) are largely under the influence of a secret criminal-minded underworld of sinister bodies like the Freemasons.
Fanciful, conspiratorial? If you automatically fall in with these concepts, you and others (with respect) are the problem.
The UK Goverment previously made a policy to expose these unsavory associations of judges. The Grand Lodge threatened the Government, and forced it to recind.
So who do you think has the ultimate power and control in the UK?
Propergander, indoctrination, deceipt are all mechanisms of control by any subversive establishment. And laws, rules, constitutions etc are just another way of enforcing this onto the ‘people’. But, when it comes to it, corruption will always prevail and the ‘words’ mean diddly-squat.
And then of course there is time – time moves so quickly, faster than a written constitution can keep up with …
Indeed so, but the fact that it has a written constitution does not make it inferior to our own – the difference, surely, lies in the willingness for leaders to be bound by a moral (legal) framework at all.
Johnson’s perrogation of parliament was unconstitutional (verified by the Supreme Court and underscoring your argument), but the fact that he was willing to breach an (unwritten) constitution and suffered no (personal) negative consequences for doing so shows that any constitution can be breached and the presence of checks and balances (may) neither deters nor prevents it.
Again, about the only person in that land that thinks Mr J did not breach the covid rules is the man (nominally) responsible for framing the very legislation that he broke. The rule of law and the tenets of the constitution only mean something to those of us that abide by rules. Perhaps we will eventually be granted justice and the likes of Johnson, Trump, Putin and Bolsonaro will face trial and punishment for what they have done (don’t hold your breath!)
Of course constitutions are not a panacea because there are no panaceas. But I am glad to see that you have come around to the idea that they can be at least a marginal benefit and I, for one, am grateful for all the marginal benefits to freedom and law that I can get.
But, but, but, thank you so much for your regular doses of sanity in a naughty world.
As someone who grew up for most of his life in a country with a dictatorship + a written constitution (Venezuela, if that matters) and has now lived in the UK for a few years, I feel like I half agree with this (probably due to ignorance of how the UK works).
Without doubt, a constitution alone does absolutely nothing against dictators. My experience tells me as much. With no check and balances, it won’t *stop* anything.
But.
One thing it *did* help with, if nothing else, was that there was something a layman could point to when dictators do their thing. “This action you have done violates articles X, Y and Z”, in the perhaps vain hope that one day that receipt will be able to be shown.
Which is where my ignorance of the UK shows. How do you, here, explain to a layman that X is unconstitutional. Is it a “that’s not how we do things” sort of answer? Or is it more andecdotal such as “this past event shapes how the government can/can’t do X”? To my mind, having a concrete thing to point to would be more definitive would it not?
Many thanks for your time!
“How do you, here, explain to a layman that X is unconstitutional”
Yes I think you are right, having a written constitution to refer to gives you a common basis to start from (assuming both sides are acting in good faith).
If you rely on an unwritten constitution, how can you have a conversation when you don’t know what the rules are? I think it also encourages ‘mysticism’, argument by authority, and the belief that the government/politics is impossible for normal people to understand.
The other advantage I see of a written constitution is that changes are documented, so you can point to specific removals, additions, or changes as causing a problem.
There is force in the first of these two points.
Caveat emptor.
It’s all in the small print.
In theory, the United States has a Constitution too, one for which most citizens of the nation are extremely and vehemently proud. Yet, as was so clearly demonstrated by Donald Trump, even a nation with a Constitution and one proud of the separation of powers and the balance of power between citizen and state very nearly descended in to darkness, just because one person decided that they didn’t like an election result.
What we saw in the United States last year was a demonstration of the dangerous of gaps in a constitutional framework. We saw how easy it was for the United States to become complacent that their democratic republic was beyond reproach and proof of the innate superiority of such a democratic system. All to see it almost completely flattened by the steam-roller that was the 45th President.
So when a nation as fervently democratic as the United States can come so close to darkness, you sort of get a perspective of the value of a constitution in a nation that doesn’t possess the same degrees of checks-and-balances, or of the same transparent, objective and fair administration of justice.
But even in the best of nations (and I am sorry, this last piece might be a little too controversial) it is important to recognise that a good constitution conveys both rights *and* responsibilities. In the United States, advocates of the Second Amendment are quick to espouse that it provides that “the right to keep and bear arms shall not be infringed”… but somehow always neglect to mention that part which immediately precedes it: “A well regulated Militia, being necessary to the security of a free State,…”
I wouldn’t recommend it, but if you were to visit the United States and ask all those with a license to “keep and bear arms” which “well regulated Militia” they are members of, I think you’ll likely find that perhaps less than 5% are military reservists or hold some other equally legitimate right to claim membership of a “militia”. Of those, if you then asked how many had actually served their country as reservists, in other words, actually participating in the Militia of which they were members, you’d likely find the number smaller still.
To be properly effective, a constitution needs to be a two-way contract, between citizen and state, that is actively maintained and strengthened. Sadly, as we see here, that isn’t always the case.
Alas the vagueness of the need for the Well Regulated Millitia allowed lobbyists to remove the idea a few decades ago. Hence the NRA and all its works.
I have my problems with your position regarding written constitutions. That is not a fault of your reasoning, which I can accept, but probably simply because as a German citizen I have never doubted that a well-written constitution is a Good Thing.
After WW2 Germans had very little reason to be patriotic. (In fact, patriotism is still slightly dirty word in German politics.) Over time we developed something called „Verfassungspatriotismus“ – constitutional patriotism, meaning that we felt pride in our constitution (as a stand in for all the things that make up a modern liberal democracy), instead of the usual stuff other countries have – history, empire, the army, a clown in a crown… A politician who attacks the constitution, or the values represented by this constitution, will immediately have to look for a new job. Parties will sue the civil service if it indicates that the party might be hostile to the constitution, because such a party is not viable. The constitution is important not because state agencies enforce it, but because the population believes that it is important. And that is where a written constitution may be most beneficial: Not as a guideline for politicians and judges, but as a focal point for the citizenship, representing the values we aspire to.
Well said.
One of the under-stated and not well understood benefits of a Constitution is that it serves as a safety barrier against any attempt by an elected leader to become autocratic. A good constitution does this because it will express certain inalienable rights bestowed upon citizens.
So in a scenario where an autocrat decides that they might want to limit freedoms, or grant excessive authority to the state apparatus – for example to detain without charge – they would find their attempt running up against the Constitution.
It is at this point that a nation will take notice – even though laws may change, any attempt to “meddle” with a Constitution will always generate significant attention, both domestically and internationally.
Of course, a Constitution isn’t a panacea. But, on balance, I have the feeling that it is better to have one than not have one.
Perhaps in that context we might consider that Russia’s Constitution, sadly, might be an exception that proves the rule.
Ever since the Princes of Muscovy became Tsars of all the Russias (and probably before), the Russian system of government has been based on there being a more or less brutal autocrat at the top, who paid no more than lipservice to law – Putin is just the latest example.
As the quote (from an anonymous Russian) puts it “Every country has its own constitution; ours is absolutism moderated by assassination.”
But the secret police have become more effective at preventing assassinations.
In a similar vein, I refer you to the 1936 constitution of the USSR, and in particular, Chapter 10, on the fundamental rights and duties of citizens. Here is an English translation: http://www.departments.bucknell.edu/russian/const/36cons04.html#chap10
Equality of all citizens, freedom of religion, freedom of speech, freedom of the press, freedom of assembly, inviolability of the person, inviolability of homes, privacy of correspondence, etc.
And if you believe that was actually the case under Stalin, you had better watch out for someone trying to sell you a bridge.
This is absolutely right.
With an argument reminiscent of the person (sometimes portrayed as ‘french’) who protests that his failed experiment can’t be right ‘because it works perfectly well in theory’.
But would it not be fruitful to think more about the difference between what is sufficient, and what is necessary?
Written constitutions are totally insufficient. But in what circumstances might they be necessary ?
Were the more egregious failings of Trump those which happened in the non-codified parts of the American system ? Those where the behaviour of the President, in particular his financial and ethical standards, were subject to no rules or constraints. Or electoral gerrymandering in the state legislatures and the absence of codified congressional districting principles ?
Would codification be a necessary part of helping to prevent those legislative excesses in Britain in recent years which have infringed basic rights and freedoms, or given ministers unchecked powers ?
Jackie Weaver should be asked to give an opinion.
I too was a great believer in written constitutions, but over the last few years DAG has chipped away, with the argumentative equivalent of a large sledge hammer (!), at my preconceptions – for that was what they were. The evidence is there, be it USSR/Russia, Hungary etc.
Important aspects of enforcement of a constitution and ensuring checks and balances are the citizens and the media. The former needs an effort in education, free from ministerial meddling. The latter needs a robust system to ensure freedom and to check lies/fraud/propaganda, something along the lines of the now defunct US Fairness doctrine with perhaps a rather punitive (in terms of page/column inches/prime time) retraction mechanism. We might then even be able to do away entirely with libel law.
Russia is not the best example to hold up as a failing of a written constitution as it has no “habit” of a civilisation run in such a manner – to use a idea of historian Micheal Wood.
The circle of power in Imperial Russia was the circumference of the Tsar’s head and he was semi-divine and any dissent was the most foul sin.
No matter how well educated about the outside world the incumbent of the throne rapidly assumed the role of absolute autocrat who really thought he had Gods wisdom.
Very graphically seen with the last Tsar Nicholas II who despite being brought up with extensive contact and education with the Danish and British Royal families was a man who once back in Russia was an absolute autocrat and who genuinely believed he was Gods Regent.
Aside from its poorly trained and equipped forces the reason Imperial Russia was so comprehensively beaten on the field in the Great War was that Nicholas directly took overall command and brought his travelling royal chapel with him and he would make all strategic decisions after hours of prayer in the chapel alone. Hence reaction times were slow and the decisions invariably terrible but they were the will of God via his holy agent so could not be questioned.
If this sounds familiar today it’s because Putin has very consciously taken Russia back to the age old Imperial norm with an absolute autocrat for life (him) and a neo-aristocracy (oligarchs) who like the neo-Tsar are above all law and who own everything (the state is their property) and about whom everything is a secret.
The recent TV coverage of Putin meeting officials is instructive in that the long table is not really because of covid but in place to emphasise his specialness and separation from ordinary mankind. Everything in those huge ornate rooms is telling you here is Gods regent and he must be obeyed.
Here another little known fact about Putin outside Russia is illuminating. The holiest festival in the Russian Orthodox calendar is the Easter Liturgy and especially the mass in the Christ the Saviour Cathedral in Moscow.
In Imperial times the Tsar of All the Russians would attend and sit on a throne at the front by the altar where the Patriarch of All the Russians conducted the mass.
The ceremony was an annual marking of the religious nature of the role of the Tsar and that the whole Church was his servant.
Stalin destroyed the Christ the Saviour Cathedral in 1931 as a symbolic act. After the fall of the Soviet Union it was then rebuilt between 1994 – 2000 and one of the first acts conducted inside was the Canonisation of the last Romanov Nicholas II so restoring the semi-divinity of the Tsars.
Putin has restarted the ancient tradition of the Ruler of All the Russians attending the Easter Mass and sitting alone on a throne before the high altar.
IMO a very conscious act. He certainly has restored the old privileges of the Orthodox Church and it’s primacy in all life especially it’s ferocious conservatism and in return the church is his eyes and ears across what is still today an intensely superstitious nation. This is why Lenin called it the opiate of the people.
So it’s not surprising that this past weekend Patriarch Kirill issued a bull declaring the action in Ukraine a ‘holy’ act. It’s meant to emphasise that dissent with Putin is a mortal sin.
So where did the written constitution come from?
Well the Soviet Union a very splendid constitution but it was meaningless because no laws applied to the Nomenklatura a self selected (and eventually hereditary) elite who because they ‘knew best’ guided and determined the praxis of the ongoing revolution – including deciding what is right vs wrong morally – hence dissent was yet again not just a crime but again a moral sin or illness and had to be ‘re-educated’ in camps or ‘treated’ in psychiatric units.
Post Soviet Russia had a brief interregnum where the Soviet era constitution was abolished in 1993 and replaced by a new one based on Western ideas but there is no ‘habit’ of such in Russia and the ancient curse of what Russians call the Iron Pyramid of Power flowing down from an autocrat soon returned under Yeltsin and then Putin.
Why the preoccupation with Russia? The United States has, I believe, the oldest written constitution in the world. This did not prevent the near extermination of the native population, the existence of an appalling system of race-based slavery – upheld by Supreme Court rulings, a post-civil war century of lynching, the deportation of Japanese-Americans during world war 11, and, of course, innumerable wars of imperial expansion.
It is refreshing to see that that DAG has encouraged a debate on the benefit of a codified constitution versus a non-codified constitution, as does the United Kingdom have, given his often past apparent rejection of the former in favour of the latter.
The codified constitution, as found in South Africa, is one we may all be proud of; as are the Americans equally proud of theirs, albeit with certain flaws. I would suggest that the authors of the former have had the opportunity to learn from the failings of other written constitutions. Not that it is perfect; far from it.
In order for a Constitution to function effectively, it is dependent on the independence of the judiciary when apparent conflicts are brought before it. It our case, a specifically established Constitutional Court has been set up. Consequently, how the judges are appointed to that Court is critical. (Recent interviews (interrogations) conducted by certain politicians of the prospective candidates for the new Chief Justice position is of great concern). In the US case, their Supreme Court functions in this role and the appointment of their judges is dependent on the then ruling party, which makes appointments on a partisan basis as to how they perceive the juror, as being conservative or being liberal. A very unfortunate situation and which potentially undermines their constitution.
To date, in South Africa, the Constitutional Court judges have acted independently, even when this involved the imprisoning the former President Jacob Zuma, and which lead widespread looting in July 2021. This followed his refusal to appear and testify before a commission investigating large scale corruption and the looting of our state owned entities under his watch; apparently with his blessing and/or under his direction.
The United Kingdom is fortunate in that its people perhaps demand higher standards and will call out corruption, though of late, with links to the Russian oligarchs of a certain party via large donations, one begins to wonder.
Certainly, as pointed out by some of the earlier commenters, to have a “rule book” which ordinary people can read and understand would assist greatly in clearly identifying the obvious excesses of those in power rather than having to rely on the almost mystic interpretations of the unwritten constitution by most elite of the legal fraternity.
“apparent rejection of the former in favour of the latter” is false
I am not hostile to codified constitutions, but indifferent – the test is the practical effect: are they liberal and progressive, or not?
Given your mischaracterisation of my view, I cannot place any weight on the rest of your points – sorry!
Brian Mendoza wrote: ‘How do you, here, explain to a layman that X is unconstitutional. Is it a “that’s not how we do things” sort of answer?’
Peter Hennessy would [probably] reply, “That’s not the complete answer. The complete answer is, “That’s not how we do things. Now go back and do it properly, there’s a Good Chap.”
And so rules, law, constitution, regulations etc are only ignored by the likes of Putin?
And the UK is different?
Come on!
When will all intelligent, free-thinking individuals understand that the UK is, fundamentally, no different to Russia (and no different to Hitler)
We can all fool ourselves (as those in power over us do) that the UK is somehow morally superior. Indeed I once did.
My experiences with the UK legal and judicial system (civil matters) have regrettably revealed the truth. (Hitler, Putin, UK? What’s the difference, really)
And access to the court is pointless if that too is controlled by perverse and obscene individuals, supported by a like-minded system.
With respect, I’m afraid I find the slavish devotion to a false system of justice of concern.
You appear to think Russia is at fault for not obeying the ‘rules’, yet seemingly have blind vison to such failings by the UK.
Patriotic or fooled by a perverse system?
Hitler seems to have fooled many in Germany to follow his ideals, and look what history taught us about that.
See also the text of the Constitution of the German Reich adopted on 11 August 1919, commonly known as the “Weimar Constitution”.
Despite the terms of the Enabling Act of 23 March 1933 (which was passed in accordance with it), it remained legally in force until 5 June 1945 and was not technically replaced until 1949 (with many passages copied directly both into the Basic Law of the Federal Republic AND the Constitution of the German Democratic Republic).
For 56 years, therefore, half the country “benefited” from the meaningless words of what might be considered an otherwise fine set of provisions.
The UK is not immune to rule by decree of the sort established by the German “Law to Remedy the Distress of People and Reich”.
The Emergency Powers (Defence) Act 1939 contained powers for the UK government to make Defence Regulations by Order in Council, if “necessary or expedient” for various purposes – securing public safety, defence of the realm, maintenance of public order, etc. That was extended in 1940 so Defence Regulations could require persons “to place themselves, their services, and their property at the disposal” of the government – essentially, nationalisation of property and labour. Some of the Defence Regulations continued to the end of 1964.
But, latent on the statute books, the government has quite significant powers to make binding regulations. Many of the Coronavirus Regulations over the last couple of years were introduced under powers that already existed, under the Public Health (Control of Disease) Act 1984, for example.
Hat tip to Joshua Rozenberg on Law in Action for pointing out two recent items relevant to this concern about an anti-democratic creep in the UK in the last 40 years, as more policy is implemented through delegated legislation.
Recent parallel reports from two House of Lords committees: one from the Secondary Legislation Scrutiny Committee, warning of the risk of government by diktat: https://committees.parliament.uk/publications/7941/documents/82225/default/
And the second from the Delegated Powers and Regulatory Reform Committee, warning of democracy denied, through skeleton legislation (acts allowing important policy decisions to be made and unmade in regulations), Henry VIII powers (delegating power to amend primary legislation), subdelegation to unaccountable bodies, and disguised legislation (such as legally binding “guidance”): https://committees.parliament.uk/publications/7960/documents/82286/default/
A national Constitution should be the supreme document which determines people’s freedom under it, with no exceptions or caveats. The words of the Russian Constitution are apparently very liberal but there are numerous caveats and exceptions to these freedoms. Usually with reference to Federal Law. They are all conditional freedoms. Then there’s the fact that it permits the President to have as many terms as he can win as long as they aren’t consecutive. It is literally not worth the paper it is written on.
The Russian document has 137 Articles which provide plenty of room for weasel words to limit any freedoms it espouses. In contrast, the US Constitution had seven founding Articles which managed to state the guiding principles of the USA clearly and with full authority over the President and Congress. There have been 27 amendments, but it remains a document ordinary people can understand and rely on to protect their rights.
The Russian Constitution is not an argument against having a written constitution per se. It’s an example of a very bad one. Or perhaps an example of one that was very well written to offer much and give very little.
To be fair, it is a warning to us if we ever choose to have a written constitution. If the Government ever got influence or control over its drafting we’d end up with a similarly wordy but unreliable document and be much worse off. The present Government is attempting to pass laws Putin would very much approve of.