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The Moulding of Ukraine

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Kataryna Wolczuk

Chapter one. Introduction: constitutions and statehood

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1In Western political theory the concept of the constitution is closely linked with constitutionalism, the doctrine that strives to protect individual freedoms and prevent tyranny by putting legal limits on arbitrary powers of the government. However this doctrine is far from a coherent set of normative propositions. Rather it consists of a dynamic but loose cluster of ideas and principles formulated in the course of the eighteenth century, the diverse interpretation of which spawned different institutional arrangements in national contexts. These conceptual ambiguities surrounding constitutionalism obfuscate the diverse meanings of the constitution. While the constitution has been traditionally regarded as an emanation of constitutionalism, their symbiotic relationship was far from evident in the second half of the twentieth century. This parting of company led to the ‘devaluation’ of the written constitution as a meaningful defence against abuses of power. A proliferation of written constitutions without an accompanying intent to embrace the ideas of constitutionalism in new states provoked anguish amongst constitutional theorists. This disillusionment, however, reflected a lack of understanding of the multiple role constitutions play in different polities. In new states, the constitution is developed not only to limit but also to create and organise the state. The key premise of this chapter is that constitutions in new states have to be also considered through the prism of state formation. They ‘constitute’ the state. This function of the written constitution will be elaborated in this chapter in order to guide the empirical analysis of the constitution making process in Ukraine.

2This chapter, first of all, analyses the ‘traditional’ approach to constitutions as an expression of constitutionalism. Secondly, it will briefly discuss the relationship between the doctrine of constitutionalism and constitutions, and then outline the diverse meanings of the constitution. Thirdly, the ‘state building’ role that the written constitution can play in addition to constitutionalism will be discussed. The final section will summarise the key themes of the study and sketch out the layout of the book.

CONSTITUTIONS AND CONSTITUTIONALISM: THE ANGLO–SAXON AND EUROPEAN CONTINENTAL PERSPECTIVES

  • 1 Ulrich K. Preuss, ‘The Political Meaning of Constitutionalism’, in Richard Bellamy (ed.), Constitu (...)

3Preuss believes that constitutionalism avoided (unlike many other ‘isms’) a fall into oblivion.1 However, due to its rich connotations and diverse strands the doctrine became a somewhat incoherent cluster of concepts and propositions; the relationships between them can be contradictory or even mutually exclusive.

  • 2 Gordon J. Schochet and John W. Chapman, ‘Introduction: Constitutionalism, Liberalism, and the Stud (...)
  • 3 In the wider context of the nation-state formation in Western Europe, the nation became a bearer o (...)

4The idea of the legal limitation of the state lies at the heart of Anglo–Saxon constitutionalism. Towards the end of the eighteenth century, when popular sovereignty supplanted absolutism in Western Europe as ‘the state was the consciously contrived creature of the people’,2 liberalism, inspired by the political philosophy of such thinkers as John Locke, promoted individual liberty and freedoms derived from the doctrine of natural law. Locke divided societal interactions into two distinct and separate domains: private and public, and advocated confinement of government to the latter. Thus, parallel to the transfer of the locus of sovereignty from monarchs to people limits were imposed on the arbitrary rule of absolutist monarchs to prevent them from trespassing on the private domain of their subjects.3

  • 4 William G. Andrews, Constitutions and Constitutionalism (Princeton: D Van Nostrand Company, Inc, 1 (...)
  • 5 Preuss, ‘The Political Meaning’, p. 16.
  • 6 On the evolution of the doctrine of the separation of powers in America, France and Britain see M. (...)
  • 7 Those principles have been embodied in a variety of institutional configurations, and the relation (...)
  • 8 Neil MacCormick, ‘Constitutionalism and Democracy’, in Richard Bellamy (ed.), Theories and Concept (...)

5But power is not only circumscribed (i.e. subjected to limitations to prevent encroachment into the private realm of the individual), it is also prescribed.4 Constitutionalism is concerned not only with the relationship between the state and the body of citizens, but also with relations within the state. Procedures, rules and directives are set forth to formalise the making and implementation of decisions within the public domain. The arbitrary goodwill of the ruler is replaced by government through laws (laws are the only legitimate ‘acts of domination’) and by laws (government itself is subject to those laws).5 Thus, governmental institutions are established and their functions, powers and interrelationships are delineated and formalised. Although no one specific institutional matrix was advocated by constitutionalism, structural provisions of ‘mixed government’, ‘checks and balances’, ‘separation of powers’,6 ‘power sharing’, ‘judicial review’ and so on, were the key instruments created to contain and structure state power.7 Institutional mechanisms were devised to constrain government but not to emasculate it to the point of inefficiency or anarchy. American constitutionalism born with the 1787 constitution was designed to avert the ‘tyranny of powerlessness’ after a period of weak and inefficient government; it strove to create limited but effective government. In order to constrain the state, a transparent and stable normative order was deemed indispensable.8

  • 9 However, the issue of the extent to which institutional provisions are merely instrumental in achi (...)
  • 10 As Kommers and Thompson argue constitutionalism is a precondition for liberal democracy as it guar (...)

6To this point, constitutionalism, in its most basic meaning, has been equated with a system of limited government, while its liberal component entails restricting the scope of politics in order to safeguard the individual’s liberties and freedoms.9 Liberal constitutionalism not only imposes limits on government but also on the sovereign people in order to protect the individual. The original drive to impose constitutional government aimed to prevent the tyranny of the absolutist monarch. Yet, the advent of popular suffrage presented dangers of a tyrannous democratic majority oppressing individuals belonging to a minority by infringing their civic liberties. The distrust of a vacillating majority was expressed by the American ‘founding fathers’. Although the people became the bearers of sovereignty (‘we the people’), they nevertheless had to be constrained, firstly by delegating power to representative bodies, so that there was limited scope for irresponsible shifts in popular will and, secondly, that they be limited by the provisions of the constitution. Therefore, constitutionalism with its commitments to rules and procedures also advocates the ‘fencing off’ of certain areas, such as civic rights, from majoritarian control.10 This aspect features prominently in Preuss’ understanding of constitutionalism:

  • 11 Ulrich K. Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, in Joachim (...)

Constitutionalism embraces the idea of the normative penetration of the polity to the effect that its institutions continue and operate irrespective of changing majorities and of the vacillations of politics in general—it is the idea of normative supremacy and continuity.11

  • 12 Jeremy Jennings, ‘French Constitutional Tradition’, in Richard Bellamy, Victorio Bufacchi, and Dar (...)

7Individualism and the negative conception of liberty (with the stress on the judicial protection) is the essence of American (and to a more limited extent Anglo–Saxon) constitutionalism. This, however, has been challenged by continental strands of constitutionalism. In Europe, the republican French constitutional tradition has been centred on priority of the collective will and unity at the expense of the ideals of liberal, individualist constitutionalism. In accordance with the Jacobin universalist vision of republican democracy, popular sovereignty of the people required a special link between the state and its citizens; the former defines the general interest, while the individual’s role as citizen took precedence over private interests.12 In contrast, nineteenth century Germany witnessed the development of legal positivism, which prioritised the formal-dogmatic method and glossed over the ethical, political and economic underpinnings and applications of law. German positivism spawned the idea of Rechtsstaat, in which legality was interpreted as adherence to the formally adopted law, which fulfilled the criteria of procedural legitimacy rather than the demands of more elusive natural law.

  • 13 K. C. Wheare, Modern Constitutions, 2nd ed. (London: Oxford University Press, 1966), p. 50.
  • 14 Bill Jordan, ‘Constitutionalism and Social Rights’, in Bellamy, Bufacchi, and Castiglione, Democra (...)
  • 15 Wheare, Modern Constitutions, p. 52.
  • 16 Bellamy, Bufacchi, and Castiglione, Democracy and Constitutional Culture.
  • 17 Constitutional democracy is based on the representative system, which provides for equal participa (...)
  • 18 Tully, for example, condemns and rejects the imperial domination of universalist constitutionalism (...)

8Notwithstanding the republican strand of constitutionalism and German positivism, in Europe constitutional principles have been increasingly perceived as a vehicle used in the pursuit of the ‘public good’: advancing human welfare, happiness and prosperity alongside defending the liberty of individuals. As a result, striving for ‘the common good’ is not only facilitated by but also reaches beyond narrow negative constitutionalism, which rests on the conception of government that is exclusively devoted to the protection of individual liberties. In particular, Western Europe has experienced long-standing friction between liberal constitutionalism and ‘other traditions in which a paternalistic view of the role of government and a notion of the state as the political expression of a solidaristic society were powerful factors’.13 Throughout the twentieth century the provisions of welfare state have been gradually expanded (with strong support from democratic majorities) on the understanding that the universality of political rights cannot be fully achieved without a greater degree of equality in socio-economic status. With the expansion of the state’s role in re-distributive policies, material benefits acquired the status of socio-economic rights to the effect of—what the German jurists called—the ‘positivisation of natural rights’.14 Effectively, elements of liberal constitutionalism have been supplemented by policies that served broader aims than just upholding liberties against the arbitrary use of power. This utilitarian and communitarian notion of Western European constitutionalism draws upon the political philosophy of Aristotle and Kant, rather than Locke or Montesquieu. (At the same time, the U.S. generally maintains its allegiance to the individualist bias in the interpretation of constitutional norms,15 while Britain remains a somewhat hybrid case.) Today, the liberal versus utilitarian/communitarian notion of rights divides contemporary theorists of constitutionalism. And as Bellamy points out these disparate conceptions of liberty are ultimately rooted in radically different and, as such incompatible understandings of political realms.16 To add to the conceptual and normative opaqueness, lately, political theorists have challenged modern constitutionalism for its exclusionary and discriminatory nature and advocated a radical renewal of constitutional politics through the development of novel forms of recognition and inclusion.17 The key goal is to secure political recognition of identity either within the constitutional frameworks or—as some advocate— by overturning them.18

  • 19 It has to be stressed that the doctrine’s influence in other parts of the world has been more rece (...)
  • 20 This is not meant to be a criticism. As Giddens points out ‘the chronic contestation or disputatio (...)
  • 21 G. Maddox, ‘Constitution’, in T. Ball, J. Farr, and R. L. Hanson (eds.), Political Innovation and (...)
  • 22 Schochet and Chapman, ‘Introduction’, p. 11.
  • 23 The lack of written constitution accounts for the fact that Britain’s constitutional tradition is (...)
  • 24 Schochet and Chapman, ‘Introduction’, p. 11.

9The above sketchy outline of constitutionalism, although far from exhaustive, illustrates the origins and strands of the doctrine that has featured prominently in the political transformation in the West over the last three centuries.19 Even if constitutionalism is far from a coherent set of propositions itself, the picture is even more compounded by conceptual ambiguity about the relationship between constitutionalism and constitutions.20 In principle, the former came first. Constitutionalism pre-dated constitutions: ‘limited government was emblazoned upon the political consciousness of the West as “constitution” long before there were written constitutions’.21 However, America set a powerful and influential example that the principles of constitutionalism are best embodied in and implemented through formal, written constitutions.22 And although the English case shows that constitutionalism is possible without a formal written constitution, Britain’s lack of a documentary constitution, despite being the cradle of constitutional government, has been put down to its particular historical evolution.23 In other words, Britain is the exception rather than rule. Written constitutions have come to be identified with constitutionalism: ‘there is a closeness between constitutionalism per se and the having of a constitution, a closeness that is behind the easy and frequent slippage from one to the other’.24 This conceptual sloppiness, which has lead to the interchangeable use of constitution and constitutionalism, has important implications, because the concept of the constitution itself is far from unambiguous.

  • 25 Andrews, Constitutions and Constitutionalism, p. 21.
  • 26 S. E. Finer, V. Bogdanor, and B. Rudden, Comparing Constitutions (Oxford: Clerendon Press, 1995), (...)
  • 27 Thomas C. Grey, ‘Constitutionalism: an Analytical Framework’, in J. Roland Pennock and John Chapma (...)

10The survey of the literature on the subject reveals two basic meanings of ‘the constitution’: (1) the structure of government and (2) a written constitution containing the basic or fundamental law of a polity (Grundgesetz). Andrews recognised this duality of meaning by capitalising the term ‘Constitution’ to refer to the constitutional document or documents, whereas ‘constitution’ refers to the ‘structure of government and its relationships’.25 Finer adheres to the positivist definition of the constitution as ‘codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and offices of government, and define the relationships between these and the public’.26 Grey, in turn, stresses the legal character of the constitution and argues that constitutionalism is embedded in individual constitutional norms rather than written constitutions per se: ‘a single system, a single constitution may contain written and unwritten, flexible, rigid norms’ and it is effectively ‘a cluster of institutions, rules, principles and practices gathered under the terminological umbrella of the term “constitution”‘.27

  • 28 G. Sartori, ‘Constitutionalism: A Preliminary Analysis’, American Political Science Review, Vol. 5 (...)
  • 29 On the basis of the extent to which constitutions limit government, Sartori distinguishes several (...)

11From the above definitions, it cannot be deduced if the constitution denotes any political system or only those based on the principles of ‘limited government’. In such a context, this slippage from constitutionalism to constitutions, as Sartori argues, is dangerous because the term ‘constitution’ began to denote ‘the formalisation of government, any form of government in fact, whether “constitutional” or not’.28 For Sartori constitution has an unambiguous aim (whether it is written or not is of secondary importance) to achieve quarantissimo—limited government’, so the constitution is a fundamental set of principles and correlated institutional arrangements that would restrict arbitrary power.29 As only this telos makes rules constitutional, Sartori advocates the re-conceptualisation of the term ‘constitution’ to return to the quarantissimo meaning and condemns the value-neutral, descriptive meaning of the constitution. Sartori rightly pointed out the original ‘nuclear’ meaning of the constitution and it is difficult to disagree with his powerful argument in favour of returning to and re-instating the narrower proper meaning. Yet, his plea captured the moment when the concept of constitution developed an inherently confusing diversity of meanings: a written document, a system of government and a telos of limited government.

12Castiglione argues against and abandons the search for one absolute meaning of the constitution. Instead, he offers a taxonomy of the meanings of ‘a constitution’:

  • 30 Castiglione, ‘The Political Theory’, p. 421.

This may be a document, the embodiment of either a norm, a command, a subjective will, or a practice; the organised form of a political society; or, finally, a series of devices through which independent normative principles are given institutional support within the political community.30

  • 31 According to Castiglione, these can be of normative, positivist, voluntarist and organic character

13And he attempts to sort out and clarify the prevailing meanings by distinguishing: (1) a positivist meaning denotes a written Constitution regardless of any historical or traditional interpretation. Because this meaning includes any written document called ‘a constitution’—whatever its origin, content, efficacy or legitimacy—it smacks of formalism and relativist bias. (2) An absolute meaning refers to a certain underlying normative order, which the constitution expresses. Purely formal and procedural characteristics (its written form, a strict amendment procedure) are not enough to constitute a normative order so the constitution must be based on a ‘substantive norm-engendering principle’—some kind of ethical or meta-ethical preconception.31 (3) A functional meaning focuses on the regularity and ordered functioning associated with constitutions and it plays down the normative aspect. Traditionally this meaning has epitomised the political form of the state. (4) An instrumental meaning subordinates the constitution to some ‘external’ principle. ‘Constitution’ is not an expression of the basic norm such as natural law (this would be normative meaning), but simply as an instrument to achieve autonomously defined ends. Those meanings often overlap, and yet have distinctive and even exclusive philosophical connotations. The differences lie in the view taken on the place of the constitution in the conduct of politics (a master or underlabourer) and whether the constitution has any intrinsic value or only instrumental role.

  • 32 Castiglione, ‘The Political Theory’, p. 421.

14Having mapped the conceptual landscape (or rather minefield because of underlying controversies) of constitutionalism and constitutions we will look at the approaches to constitutions in the more specific cases of new states. The way out of this conundrum of diverse meanings, as suggested by Castiglione, will be to focus on the functions of the constitution.32 It will be argued that the continuous world-wide popularity of constitutions can be attributed to their significance and functions in new polities.

FUNCTIONS OF THE CONSTITUTION

  • 33 For the concise argument on the need for constitutions to protect individuals rights from excesses (...)
  • 34 On this approach to constitutions and an expression of disappointments with the slow pace of const (...)

15The relationship between democratic rule of the majority, and constitutions as a superior document binding that majority and committing it to principles of constitutionalism is tenuous. Nevertheless, despite inherent contradictions, constitutions are viewed as the keystone in building liberal constitutional democracies in Eastern and Central Europe.33 The new post-communist constitutions are thus usually analysed as an instrument by which the usurping of power can be prevented, governments can be made accountable and human rights and freedoms enforced.34 In that respect these constitutions seem to institutionalise the anticommunist ‘revolutions’, by imposing democratic restraints on governments after years of unconstrained rule by the communist parties.

  • 35 Unger L. Aryeh, Constitutional Developments in the USSR: a Guide to the Soviet Constitutions (Lond (...)
  • 36 Wheare, Modern Constitutions, p. 75.
  • 37 On constitutions and constitutionalism under communism see, for example, Robert Sharlet, Soviet Co (...)

16This approach is inspired by the backlash against ‘sham’ constitutionalism in which the communist party as the supreme political authority was superior to—rather than subordinated to—the constitution and laws. Despite Marx and Engel’s belief that ‘state and law were repressive phenomena of the “superstructure” of class society and would disappear or “wither away” in direct proportion as the proletarian dictatorship evolved towards the classless communist society of the future’,35 the communist system did not dispose of the constitutions. Instead, it harnessed them to its own ends, disregarding the traditional link between constitutions and constitutionalism. The communist-era constitutions lacked the essential purpose of constitutionalism, namely that of imposing legal limits on the exercise of state power. While the constitutional doctrine in communist states adhered to the principle of ‘popular sovereignty’, the ‘people’ were equated with ‘toilers’ and united by the common aim of building a classless society. Therefore, the interests of the individual were subordinated to those of the collective endeavour to build socialism. Communist parties claimed to be the ‘vanguard force’ in the construction of socialism in the name and best interests of the people. This claim was enshrined in the communist states’ constitutions as ‘the leading role of the Party’. Wheare vividly described the decorative role of the constitution under communism: ‘The Constitution is a mere skeleton; it is Party which provides the flesh and blood, which gives to the body politic its life and individuality’.36 The Party oversaw the exercise of state authority, its institutional arrangements, political interactions and the decision-making process. It had a final say in resolving bureaucratic conflicts between different institutions of the state in the execution of policies set by the Party. Because of the belief that the exercise of state power is indivisible, no ‘separation of power’ nor ‘checks and balances’ were built in, which would have thwarted the Party’s will, or, in the terms of the ruling political ideology, would have impeded moves towards the overriding goal, that of ‘building socialism’. The lack of the limiting function of the constitution was reflected in the fact that control over constitutionality was assigned to the central political organs of the state and no separate constitutional review bodies existed. As the Party played a supervisory, co-ordinating and directing role, its structures were largely intertwined and merged with those of the state to the extent that communist states could be defined as ‘partystates’. The ultimate supremacy of Party over state and the obvious contradiction between the formal provisions of the constitution and actual exercise of power made a mockery of the ideals of constitutionalism, the rule of law and popular sovereignty (see chapter 2).37

  • 38 Stephen Holmes, ‘Conceptions of Democracy in the Draft Constitutions of Post- Communist Countries’ (...)

17The experience of the monolithic, all-embracing Party-state precipitated the focus on the need to guard society against intrusive and arbitrary power in constitutions, and thus their defensive role has been brought to the fore once communism collapsed. As Holmes noticed ‘constitution making was dominated by human lawyers who tended to assume that the main (and perhaps sole) function of the constitution was to de-ideologise the state, establish a bill of rights, limit the government, and outlaw abuses of power’. Negative constitutionalism—he argued—was ‘the notion that constitutions have a primary negative purpose of preventing tyranny’.38

  • 39 Kommers and Thompson, ‘Fundamentals’ p. 27.

18The focus on the constitution as a shield against the abuse of power reflects the original rationale behind the drafting of constitutions in the eighteenth and nineteenth century Western Europe. It was precisely because of the drive to limit government (by requiring those who govern to conform to laws, procedures and rules) that ‘the history of modern European constitutionalism is the history of the progressive transfer of sovereignty from princes or kings, under whom state power had been centralised and consolidated, to the people and their representatives’.39 So if we liken communist parties to absolutist, unconstrained kings, the constitution making drive to re-vest sovereignty with the people and their representatives in accordance with constitutional rules may indeed bear a resemblance, despite all the differences, to the advent of constitutional democracy in Western Europe.

  • 40 Kommers and Thompson, ‘Fundamentals’ p. 27.

19This similarity, however, is deceptive; there is an important difference. During the era of absolutism in Western Europe, a centralised and territorially unified political system was established in which sovereignty was vested in the monarchs. Within such sovereign states new ideas incubated and were implemented. In the eighteenth and nineteenth century, the parallel development of the doctrines of constitutionalism, classic liberalism, popular sovereignty and democratic enfranchisement prompted the diversification of authority in order to defend fundamental values, such as liberty, equality and individual rights and to prevent absolutist tendencies of the monarchs. Institutional arrangements based on the principle of the ‘separation of powers’, ‘checks and balances’, and a ‘balanced constitution’ were devised to limit the ability of the rulers to use the state apparatus in an arbitrary manner and against the will of the sovereign people. Yet, while the locus of sovereignty shifted to the people, and institutional frameworks changed accordingly, the state remained intact: ‘state power continued to exist in all its plenitude, but simply changed hands, residing now in the people rather than in kings’.40 In Western Europe constitutionalism, popular sovereignty, and democracy developed over time within the framework of established states; constitutions reflected a qualitative change in the mode of governing within the existing polities, with few exceptions. These states were bound by law; written constitutions captured that moment and came to symbolise the new mode of governing.

  • 41 Wheare, Modern Constitutions, p. 6. France exemplifies this well as each of its republican incarna (...)
  • 42 Wheare, Modern Constitutions, p. 6. France exemplifies this well as each of its republican incarna (...)
  • 43 Loewenstein, ‘Reflections on the Value of Constitutions’, p. 152.
  • 44 Andrews, Constitutions and Constitutionalism, p. 24.
  • 45 G. Sartori, ‘Constitutionalism: A Preliminary Analysis’, American Political Science Review, Vol. 5 (...)
  • 46 Finer, Bogdanor, and Rudden, Comparing Constitutions, p. 31. Schochet similarly commented: ‘There (...)

20Outside the established Western states, however, constitutions came to mark even more profound political changes. In considering why constitutions are adopted, Wheare points out that they demarcate a ‘fresh start’ and symbolise a break with the past.41 The most radical break with the past is represented in the act of creating a new state, when not only the mode of governing changes but also new territorial boundaries are delineated, new institutions are incubated, and a new political community of citizens is created. In the United States, the creation of new and distinct institutions for governing coincided with a creation of the state in terms of the territory and body of citizens. This coincidence became sine qua non for any newcomers to the international community. Loewenstein perceptively observed that, as in the nineteenth century most ‘old’ states constitutionalised themselves, in the twentieth new states could not emerge unless they had a constitution announcing it.42 ‘This has been the practice certainly since 1787 when the American Constitution was drafted, and as the years passed no doubt imitation and the force of example have led all countries to think it necessary to have a constitution’.43 The act of passing of the new constitution became a universally recognised rite of passage for new states. As Andrews put it: ‘A newly-independent nation may have its birth registered through admission to the United Nations, but a Constitution is normally required as a baptismal certificate’.44 Be it in Africa, Asia or more recently in Eastern Europe, the emergence of a new state has almost uniformly involved the adoption of a new constitution as a way of defining the distinctive, sovereign body politic and its operative rules, institutions and procedures. However, having a constitution was not synonymous with adopting constitutionalism; more often than not the original telos got pushed to one side. The net result was—as Sartori put it: ‘Every state had a “constitution”, but only some states were “constitutional”’ (emphasis added),45 that is, utilise their constitutions as an effective tool for regulating political interactions between the state and the individual. This gulf between constitutions and political practice prevailing in many states has been condemned as the devaluation of constitutions in the modern world. As Finer bitterly admitted: ‘in view of the stark contrast between the rights declared here and the exact opposite, that actually obtains in practically all the states on the globe, one does not know whether to howl with laughter or with anguish’.46

21The disenchanted view stems from an assessment of other countries through Western lenses, which leads to the glossing over additional context-specific ends which constitutions serve. The fixation with the notion of constitutions as an emanation of constitutionalism obscures the wider imperatives for ‘having a constitution’ prevailing outside ‘old’ nationstates. The role of constitutions cannot be reduced to that of promoting constitutionalism, although this role cannot be ruled out either; rather the proliferation of constitutions can be accounted for and attributed to the multiplicity of their functions.

  • 47 Castiglione, ‘The Political Theory’, p. 422.
  • 48 Ibid. Pruess distinguishes a number of functions that a constitution can perform, such as a consti (...)

22According to Castiglione, a constitution in broad terms performs three main functions: it constitutes, structures and limits. First of all, constituting a polity is ‘the act of giving origin to a political entity and of sanctioning its nature and primary ends’.47 Providing an identity through the constitution has a primary symbolic and integrative dimension as the constitution defines a people who as a community aspire to their own way of governing: the state. The second function is concerned with providing an institutional and procedural framework for a political community. This allows the state power not only to be organised, but also for this power to be exercised on the basis of order and regularity. Finally, the third function of the constitution is to limit state power and protect an individual from state interference. The limiting function is associated with the bill of rights and freedoms, which is an integral part of any written constitution, as well as the limits that the constitution imposes in exercise of state powers by its agencies. It is this last function that the doctrine of modern liberal constitutionalism emphasises as it focuses on constitutions as mechanisms of constraining government, although ‘this does not seem to follow from any particular property of the constitution in general’.48 As was pointed out, the limiting function is central to the doctrine of constitutionalism, yet the constitutional guarantee of rights and freedoms is not a sufficient condition for constitutionalism; it can only be a starting point, because constitutional norms only acquire social relevance when they are embedded in and supported by a legal culture. No legal norms, however perfectly designed, can prevent abuses of power, if no cultural expectation develops either in society or the state apparatus, that the state’s organs have to conduct their functions in accordance with formal constitutional norms.

23Therefore, the focus on the role of constitutions as a pre-condition for liberal constitutional democracy is too narrow to encapsulate all the ends that the constitutions play in different socio-economic, political and cultural contexts. Hence, the main conclusion of this section is that constitutions matter, but it may be for reasons additional to the pursuit of freedoms, democracy or ‘rule of law’. These reasons need to be appreciated in order to grasp the role of the constitution and the significance of the constitution-making process in a new polity.

CONSTITUTION AND STATE FORMATION

24Limiting functions alone cannot explain the world-wide appeal of written constitutions. Constitutions do not merely limit the state; they are instruments used in the process of setting it up. In the first place new states have to be constituted and the purpose of constitutions is to create, organise and legitimise the existence, structures and goals of the state rather than merely protect society from it. And in this context, the role of the constitution as a foundation of statehood, nationhood and sovereignty in Eastern Europe needs to be examined, as newly independent states which are being built on the rubble of the communist federations, have been saddled with the task of defining themselves in territorial, cultural and institutional terms. In order to consider the role of the constitution in the state-building process, the nature of the state as a particular form of political organisation needs to be reflected upon.

25Defining a social phenomenon is the daily bread and butter of social scientists. Yet arguably none of the phenomena posed them more difficulties than that of the state, despite its centrality to social life. Historical and geographical variations made the state notoriously resistant to endeavours to single out its defining attributes.

  • 49 Patrick Dunleavy and Brian O’Leary, Theories of the State (London and Basingstoke: Macmillan, 1987 (...)

26From a historical perspective, the Greek polis is identified as the antecedent of the modern state, as the polis had a defined territory, a specific population, an idea of citizenship and legal system. Yet, the polis embraced the totality of life; institutions were not distinguished from the society in which they were embedded, and ethics were integral to politics. In a similar vein, political organisation in the Middle Ages cannot be easily compared with modern states, albeit for reasons different to those of the polis. Medieval principalities and kingdoms not only lacked a clearly defined territory, but also the monopoly over the use of force, because of the Pope’s jurisdiction over the Christian world. Moreover, such principalities and kingdoms were based on kinship and patronage rather than a depersonalised and specialised state apparatus. Thus, the prevailing view is that these polities were ‘pre-modern governing systems’.49 Even those who argue that some forms of state can be discerned in the Middle Ages disagree on the exact time of their inception.

  • 50 On the development of the state in Western Europe see Charles Tilly (ed.), The Formation of Nation (...)
  • 51 Vincent, Theories of the State, p. 51.
  • 52 Poggi, The Development of the Modern State, p. 88.
  • 53 D. Parker, The Making of French Absolutism (London: Edward Arnold, 1983), p. xvi cited in Vincent, (...)
  • 54 Michael Mann, The Sources of Social Power (Cambridge: Cambridge University Press, 1995), Vols. 1 a (...)
  • 55 On the constitutional theory of the state see Vincent, Theories of the State, pp. 77–118.
  • 56 Poggi, The Development of the Modern State, p. 92.
  • 57 On the role stressing the role of politics and the state in nation building see John Breuilly, Nat (...)

27The emergence of the state can be traced back to the sixteenth century Europe. The drive to concentrate political power, to strengthen the capacity of rulers to conduct war and control disorder spawned the modern state in its fullness.50 At that time the idea of sovereignty, that is the supreme, united, indivisible concentration of authority, developed by such thinkers as Bodin and Hobbes, became a conceptual linchpin of the state.51 The Peace of Westphalia of 1648 consecrated the system of states in which ‘each state is a self-organising, self-empowered unit operating exclusively in pursuit of its own interests’.52 During the absolutist era, the role of the church and ecclesiastical supremacy declined, giving way to the divine right of monarchs; they embodied the living law and came to be personally identified as the source of state authority. Even if in practice absolute power proved impossible to install and absolutism ‘was always in the making but never made’,53 the ‘fuzziness’ of political organisations in feudalism came to an end: the state exercised a sovereign authority over a delineated territory through a system of administrative–legal institutions.54 As the state apparatus expanded, it became more differentiated, specialised and depersonalised. As pointed out above, in the nineteenth century such centralised and unified states became bound by the principles of constitutionalism: the use of state power was prescribed and limited by law.55 Also, at that time the state, which operated in its own territory as the sole exclusive fount of all powers, developed national forms: its subjects were moulded into nations.56 The history of Western European states demonstrated that nation building was contingent upon institution building and vice versa, as the institutional framework and policies of the state acted as a powerful agent in the process of forging an ‘imagined community’.57 By the early twentieth century common culture and national identity came to characterise the state as much as integrated and centralised state apparatus.

  • 58 See, for example, D. Easton, The Political System (New York, 1953).
  • 59 J. Hoffman, Beyond the State: an Introductory Critique (Cambridge: Polity, 1995), p. 35.
  • 60 John A. Hall and G. John Ikenberry, The State (Open University Press, 1989), pp. 1–2.

28What is then the essence of the state, the core characteristics that remained constant throughout history? The elusiveness, ambiguity and abstractness of the state prompted arguments that the state is either impossible to define (indefinability thesis)58 or that it is only possible to define the modern state (limitation thesis). In principle, the classic 1918 Weberian definition falls into the latter category, although some argue that with some qualifications the definition may be applied to pre-modern states. Inspired by Trotsky, Weber identified the state in terms of the centrality of force, which is monopolised, legitimate and territorially focused,59 and on the basis of it social scientists constructed a structural definition (which purports to define what the state is rather than what it does) according to which the state is a set of unified institutions that exercise monopoly over the use of force within a geographically bounded territory.60 However, this definition poses more questions than provides answers.

  • 61 Ibid., p. 2 and Anthony Giddens, The Nation-State and Violence (Cambridge: Polity, 1985), p. 1.
  • 62 Bhikhu Parekh, ‘The Concept of National Identity’, New Community, Vol. 21, No. 2 (April 1995), pp. (...)

29First of all, the institutional boundaries of the state are contested, fluid and evolving: in historical terms the institutions of the late twentieth century European state differ diametrically from the seventeenth century state, and, in geographical terms, Germany’s state apparatus and its functions differ from that of South Korea. Despite the fact that the modern (non-totalitarian) state does not aspire to conflate state and society, the expansion of educational and welfare provisions makes the question of which institutions belong to the state notoriously difficult to answer with any degree of trans-historical and trans-geographical certainty. Secondly, the state’s monopoly over the legitimate use of force is tentative at best. This situation prompted post-Weberian theorists of the state to revise the original definition along the lines that ‘the state tends to be successful in asserting monopoly’ or ‘that it is more successful than any other form of political association’ in asserting monopoly over force.61 Although the state purports to achieve a monopoly over the legitimate use of force, in order to generate obedience and loyalty of its own population the state cannot solely rely on coercion. The state does not merely rule the people, but also nationalises them and promotes a collective sense of identity.62 In particular, in the European tradition the association of the state and nation spawned the notion of the nation-state—the state that is predominantly associated with one people. However, national identity is emotive and contested, and the nation-state continues to rely on the power of law and force to assert sovereignty. Thus, Hoffman concludes that the inherent logic of the state is essentially contradictory:

  • 63 Hoffman, Beyond the State, p. 66.

To say that the state merely ‘seeks’ legitimacy, ‘claims’ a monopoly and is only ‘more or less’ successful is to acknowledge that the state’s identity is troubled … A conflict exists between the assertion and the reality, the theory and practice of an institution, which has of necessity to strive towards a goal that it cannot possibly realise.63

  • 64 For an example of such an approach see Poggi, The Development of the Modern State.
  • 65 Easton, The Political System.
  • 66 C. Hay, Re-stating Social and Political Change (Buckingham and Philadelphia: Open University Press (...)

30The functional definitions, which endeavoured to describe the state in terms of what is does rather than what it is, did not fare much better in capturing the essence of the state.64 Theorists try to overcome the problem of defining the state by narrowing their focus to ‘the modern state’, the ‘modern European state’, or ‘a nation-state’; some, like for example, Easton, abandoned such an abstract concept and instead focused on ‘the government’ as a more tangible and observable phenomenon.65 Making such historical and geographical qualifications absolves social scientists of the need to search for a universally valid definition. Hay abandons such efforts on the grounds that dynamism combined with the diversity and complexity of historical incarnations of the state render any generalisations difficult or even impossible. He argues that the state is not amenable to space- and timeless analysis; it is not a fixed and static object of enquiry. Instead of a futile search for a hard and fast definition, which would capture the elusive nature of the state, Hay proposes focusing on three moments of stateness: 1) the state as nation: the state of a national ‘people’, who develop a common identity and a sense of belonging through participation in practices, ceremonies, and rituals; 2) the state as a territory: the demarcated terrain within which the state claims sovereign jurisdiction; 3) the state as an institution: a differentiated, but coordinated set of institutions, which operates within the territorially bounded area. Being inherently related, these three moments of stateness add up to a dynamic constellation of institutions, relations and practices, which characterise the modern state.66 The focus on the moments of stateness overcomes the limitations of the Weberian definition, but at the same time, purports to capture the essence of the state in defiance of the ‘indefinability thesis’.

  • 67 While the term ‘political community’ tends to be used interchangeably with ‘the people’, it was no (...)
  • 68 Dario Castiglione, ‘Contracts and Constitutions’, p. 68. On the linkage between constitution makin (...)
  • 69 The term ‘collective identity of the polity’ was proposed by Parekh as a substitute for national i (...)
  • 70 Ivo D. Duchacek, Power Maps: Comparative Politics of Constitutions (Santa Barbara: ABC–Clio Press, (...)

31In light of the above proposition, the formation of a state, therefore, amounts to establishing sovereign authority, which exercises jurisdiction over a particular terrain through a set of specialised institutions, such as the military, administrative, judicial, and which is recognised as legitimate by the body of citizens (nation) and the international community. What role does the constitution play in state formation? The state building properties of the constitution stem from its role in the creation and authorisation of the power of the state. Although the constitution forms a part of the legal framework of the state, its nature intersects politics and law. As an act of the expression of the will of a political community, the constitution sets up the normative order, which enables the state to exercise its function, that is to realise state’s aspirations to a legitimate monopoly of coercive power on a demarcated territory over the people who inhabit it. In setting up the normative order, constitutional norms ‘constitute’ the state. Firstly, the constitution affirms a sovereign people, that is a population seeking the political expression of its distinctiveness in sovereign statehood.67 (Undoubtedly, the act of constituting a sovereign people by passing a constitution is laden with conceptual difficulties in new states. The constitution, paradoxically, expresses the collective will of the ‘people’ while at the same time constituting the ‘people’. In other words, the constitutional enactment is ‘a hybrid between the free manifestation of an original political will and the capacity to give normative order to an already formed collectivity’68). The constitution (most often in its Preamble) defines the political community and asserts the attributes of the ‘collective identity of the polity’, which define the way individuals (citizens) are united into a political association, and the terms on which they participate in it.69 Secondly, with regard to the state as a territory, the constitution sanctions the jurisdiction of state institutions within particular geopolitical boundaries. When borders are contested and/or territorial sovereignty endangered by external or internal forces, the text of the constitution may explicitly describe the territory as, for example, did the 1917 Constitution of Mexico.70 As an expression of the political will of a people, the constitution lays down a moral and legal foundation for the territorial sovereignty of the new state. Thirdly, the organising function of the constitution stems from its role in identifying the basic powers of the state and providing a basis for the de jure spatial and functional organisation of the state. The constitution outlines the institutions and procedures governing the relations both between central authorities and between national and sub-national institutions, which allow the state to perform a range of functions, such as rule-making, redistribution and arbitration. On the basis of the written constitution, the ‘political constitution’ develops, that is a plethora of rules, customs and routines, which state institutions concoct in the process of carrying out their constitutional functions.

32The role of the constitution as a supreme, fundamental law of the polity is usually sanctioned by the extraordinary procedural legitimacy. Being elevated above ordinary laws, it forms the pinnacle of the state normative order. Therefore, the word ‘constitution’ tends to be used interchangeably with fundamental or basic law, and refers to the properties of the written constitution that transcend its formal attributes, and make it the fundamental law of a polity (Grundgesetz).

33Being an axiological self-expression of the polity, the constitution contains its blueprint. Therefore, the conceptual proposition, which guides the empirical analysis of this study, is that constitution making in new states, first of all, requires the elaboration of the conception of statehood: the political community, goals of the state, and the institutional infrastructure. This study aims to analyse the constitution-making process in Ukraine, one of the Soviet successor states, in light of an instrumental meaning of the constitution. The constitution defines statehood and is one of the key attributes of sovereignty. Although instrumental meaning touches upon the functional meaning, the two are different: the latter denotes the description and functioning of the state (which could be, at least, partially probed by studying the written constitution), whereas the instrumental meaning focuses on the role of the constitution as a written document in the process of defining and asserting statehood. The study will examine to what extent state building became the autonomously defined purpose of the constitution, notwithstanding the aspirations to develop constitutionalism.

PLAN OF THE BOOK

34This book aims to trace the dynamics of state formation in Ukraine by examining the constitutional process between 1990–2000. The overarching thesis of the book is that the length of the constitution-making process and intensity of conflict surrounding the process in Ukraine reflected fundamental divisions over the blueprint and, indeed, even the sheer desirability of Ukrainian statehood. This conflict overshadowed constitution making and pushed other possible aims of constitution making aside. As a result in Ukraine, the primary role of the constitution lies in its state building functions rather than its organising and limiting qualities. This role is amply illustrated by post-constitutional developments, which exposed the shortcoming of the institutional design adopted.

  • 71 Johan Galtung, Theory and Methods of Social Research (New York: Columbia University Press, 1969), (...)

35The book adopts a case study approach, as there are no general theories of constitution making, and comparative studies are few and far between. A diachronic account captures the dynamics of a complex process, which involved decision making on a large number of issues of very different natures; these issues were deliberated in a variety of institutional settings over a prolonged period of time. These conditions necessitate an integrated, time- and space-bound history,71 as no monocausal explanation could give justice to the intricacies of the process and account for the outcome. By linking ideas, interests, structures and constraints, the book aims to show how long-standing ideological traditions are filtered through a series of political contingencies. The inductive logic of the study and the actor-centred approach allows the development of an in-depth empirically grounded, context-sensitive understanding of the origins and some of the consequences of the constitutional model of statehood adopted in post-Soviet Ukraine.

36In its folds of ‘thick description’, the study develops several themes, which capture the idiosyncrasies of state building in Ukraine. The first theme is that independence took place before serious thought was given as to what it entailed. Ukraine proclaimed independence in August 1991 and confirmed it in a referendum in December of that same year. Yet this unexpectedly speedy passage to independence precluded a thorough reflection on the nature, or even desirability, of sovereign statehood. In particular, independence took place in a kind of a historical vacuum as when the republic exited the Soviet Union, no symbolic ‘restoration’ of pre-communist statehood was proclaimed. Even if the framing of constitutions in new states rarely reflects pre-existing beliefs as to the political structure of the state, a ‘fresh start’ as a new state has to be preceded by a broad agreement on the faults of the past, which justify the creation of the new constitutional association. In Ukraine this would require a symbolic rejection of the Soviet past and a basic agreement on the desirability of moving away from its institutional, economic and cultural legacies. Yet, despite opting for independence, there was no such rejection and agreement. This lack of shared understanding of independence stemmed largely from Ukraine’s complex past and societal heterogeneity. Being divided and ruled by neighbouring empires for centuries, Ukraine’s society diverged in terms of linguistic, cultural, religious and economic characteristics. Only after the Second World War were the various ethnically Ukrainian regions, for the first time, united in a single administrative unit, the Ukrainian Soviet Socialist Republic. Ukraine emerged in 1991 as an independent polity with multiple ‘grand narratives’ of its past; this multiplicity was, most of all, reflected in the diverse evaluation, condemnatory and glorifying, of Soviet rule in Ukraine.

37The second theme is that this ambivalence about the meaning of independence amongst the former communist elites, who remained at the helm of the state, accounts for much of the initial inertia and preservationist attitudes towards the Soviet constitutional model. Preserving the 1978 Soviet constitution, albeit with some modifications, compensated for the dearth of any positive inspiration for constitutional reform. During the first years of independence, the elites’ procrastination on the constitutional reform, despite their tinkering with institutional prerogatives, led to a constitutional paralysis, which unfolded into a crisis of statehood.

38The third theme is that when the political actors finally engaged in constitution making after the 1994 elections, the lack of a minimal common platform to build a consensus on the political, national and socioeconomic structure of the state became fully apparent. The constitutional process revealed profound fault lines, the sheer number of which turned constitution making into an unprecedented challenge for the elites’ ability to work out any kind of compromise. This accounts for the delay in the promulgation of the constitution, despite the urgent need to deal with the prevailing legal disarray in the country. Indeed, Ukraine was the last amongst the post-Soviet states to adopt the new constitution in a dramatic although peaceful climax. This lack of a minimal consensus and intensity of conflict until the very passage of the constitution created a sense of profound uncertainty and resulted in a perception of threat to statehood. Therefore, the consolidation of statehood became the proclaimed priority of constitution making. This objective came to overshadow the constitutional process and it inspired some actors to pursue choices which otherwise may have been eschewed. In particular, amongst those choices, which were endorsed with the view to strengthening the state, were that the institutional framework should be centred on a strong, executive presidency and based on a centralised territorial–administrative model. Only a detailed analysis of the shifting constellations of political forces and changing priorities and strategies of individual and collective actors allows a coherent account for such an outcome to emerge.

39The fourth theme is that the Basic Law became a manifesto for Ukrainian state building. The aim of the constitution was not so much the protection of a pre-existing structure of the economic, political and cultural life but the creation of this very structure. This intention shaped the provisions on the institutional framework of the state, the notion of the ‘sovereign people’ and the socio-economic commitments of the state. With the overarching aim of integrating society and consolidating the state, constitution-makers drew inspirations from a variety of sources. The Ukrainian constitution was an endogenous product rather than a wholesale transplant of any particular exogenous constitutional model.

40The fifth theme is that during post-Soviet constitution making highly circumscribed use was made of pre-communist statehood tradition. Undoubtedly, it is difficult to talk about a tradition of a polity, such as the Ukrainian People’s Republic (UNR), which did not even have a chance to function in an orderly fashion. The brief spell of independent statehood under the UNR did not last long enough to leave any lasting imprint on the political organisation of society. Nevertheless, the UNR embodied a particular model of statehood centred on parliamentarism, decentralisation and a pluralistic concept of a political community. Yet little of this found favour when the state building project was embarked on again at the end of the twentieth century. Even the moderate right-wing forces, which asserted the continuity of the pre-communist statehood tradition, especially the UNR, distanced themselves from it. As chapters 5 and 7 will demonstrate, the strongest traits of the pre-communist tradition, namely parliamentarism, decentralisation, and, in particular, federalism, were eschewed for the sake of the consolidation of the state. The pre-communist state tradition was used as a symbolic weapon in the struggle to eradicate Soviet legacies but was not deemed a suitable template for the renewed project of state building.

  • 72 Nor is it the aim of the study to elaborate a normative stance of what it takes to write a good co (...)

41The sixth theme is that the overarching agenda of the consolidation of statehood accounts for the limited role of the constitution as a power constraining mechanism. While the study does not aim to provide a comprehensive account of the discrepancies between the constitution as a written document, and the ‘political constitution’, as ‘the actual political life of society’,72 it will draw attention to the way that the constitution structured political interactions. In the document, Ukraine was bequeathed an institutional framework that has perpetuated rather than moderated a crippling conflict over power. In particular, the interactions between the legislature and the executive have been profoundly unsettled, something that stifled further institutional reforms and the progress of democratisation. The symbolic power of the constitution was not matched by its organising and limiting functions. The multiple aims of constitution making could not be achieved simultaneously. This failure had grave consequences for the path of Ukrainian post-communist political and economic transformation.

42The book examines the constitutional politics in Ukraine in a chronological-thematical way. As the dynamics of state formation in post-Soviet Ukraine can be only understood against the backdrop of Ukrainian history, chapter 2 offers a necessary historical introduction. The chapter surveys Ukraine’s past in order to provide a historical overview of Ukraine’s circumvented tradition of sovereign statehood. The pre-communist experience of statehood has bequeathed Ukraine with diverse and ill-defined institutional templates. In particular, while the UNR aspired to embody certain principles, such as decentralisation and parliamentarism, it was less successful in transcribing them into a workable institutional framework. Nevertheless, it is striking—as subsequent chapters will demonstrate—how little use was made of Ukraine’s pre-communist political tradition, in particular by the moderate Right. Apart from discussing the non-communist statehood tradition, chapter 2 also surveys the Soviet model of statehood as a background to the issues addressed in later chapters, such as difficulties resulting from the improvised attempts to ‘improve’ the system of soviets in the early stages of the constitutional process and the views of the Left, which vehemently advocated the preservation of the Soviet state model.

43Chapter 3 examines the events surrounding the end of the Soviet Union and Ukraine’s passage to independence. Ukraine’s emergence as an independent state in 1991 was made possible by the rapid re-orientation of the Ukrainian communist elite. The key role played by this elite explains the lingering reluctance to abandon the Soviet model, both in institutional and ideological terms, as a template for the constitutional framework of ‘sovereign Ukraine’, and the lack of a desire to embark on a radical overhaul of state structures. Separation from Moscow was not sought in order to eradicate the legacies of Soviet rule in Ukraine. This only became an objective later in the constitutional process. Even then it was not shared by all political forces, as the left-wing made the preservation of ‘Soviet constitutional achievements’ its primary goal until the very end of constitution making.

44Chapter 4 examines the failure to enact constitutional reforms in the first years of Ukraine’s independence under presidency of Leonid Kravchuk. With the communist elites still in the driving seat, the pre-independence ambiguities surrounding the meaning of independence were anything but resolved. Instead, the key actors opted for piecemeal institutional reforms on the grounds of the need to halt the political and economic drift of the new state. The net result was a political stalemate, which was only prevented from escalating by opting for pre-term elections. The lofty proclamations on state building contrasted with the dearth of actual determination and effort needed to pass a new constitution.

45Chapters 5 and 6 scrutinise the decisive period of constitution making in the aftermath of the 1994 presidential and parliamentary elections. After analysing the impact of the elections on the constellation of political forces, chapter 5 examines the diverse conceptions of statehood put forward by the key political forces, namely the Right, Left, centrist factions and the president. Their views on the form of government, the territorial– administrative model and the concept of the political community are examined in detail. It is argued that the models advocated by the Left and Right were diametrically opposed to each other, above all because of their conflicting evaluation of Soviet rule in Ukraine. The presence of the president and the centrist forces, who were particularly interested in institutional prerogatives, added more complexity of the matrix of preferences. However, their shared opposition to the Left’s objectives opened the way to an unlikely alliance of the Right, centrists and the president, which allowed for the constitution to be passed.

46Chapter 6 outlines the dynamics of intensive constitution drafting over 1995–1996. The chapter demonstrates how actors’ strategies either enabled or prevented them from shaping the content of the constitution and accounts for the peaceful passage of the constitution, despite the underlying tensions. The shifting and cross-cutting ideological and institutional cleavages account for the paradoxical outcome of constitution making. Despite the fact that it envisaged a strong presidency, the constitution was passed by a constitutional majority in parliament in defiance of the president. The long-standing line of conflict—between the president and the Right on the one hand, and the Left on the other—determined the content of the constitution, which—to a large extent—excluded the views of the Left. Yet, the passage of the constitution took place in a radically different context: the president and parliament were at loggerheads. The parliament closed ranks behind the relatively still pro-presidential version of the constitution as a ‘lesser evil’, when faced with the prospect of a referendum announced by the president.

47The penultimate chapter examines the product of the seven-year project, that is the conception of statehood that was enshrined in the new 1996 constitution. It is argued that not only did the passage of the constitution itself symbolise a critical threshold in the formation of a polity, but also that the content of the constitution was driven by the imperatives of building a modern European nation-state. The constitution became a manifesto of state formation.

48Chapter 8 deals with political developments under the new constitution. It analyses the role of the constitution in structuring interactions between the branches of power and draws attention to the unforeseen consequences of the constitutional choices. The creation of the semi-presidential system, in which the strong presidency shares power with the parliament over the cabinet of ministers, has proven a recipe for deadlock and a major source of ongoing political instability in Ukraine. The presidency, designed to compensate for a lack of consolidated political system during the testing years of state formation, has proven itself an obstacle to the creation of such a system. The omnipotent executive branch, headed by the presidency, has come to overshadow other state institutions, such as the legislature, judiciary and regional self-government bodies. The case of Ukraine demonstrates the discrepancy between the role of the constitution as a symbol and attribute of sovereign statehood, and its actual failure in securing the functioning of the state machinery, which is—in the longer term—conducive to the consolidation of a constitutional, democratic state.

Notes

1 Ulrich K. Preuss, ‘The Political Meaning of Constitutionalism’, in Richard Bellamy (ed.), Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Avebury, 1996), p. 11.

2 Gordon J. Schochet and John W. Chapman, ‘Introduction: Constitutionalism, Liberalism, and the Study of Politics’, in Roland J. Pennock and John W. Chapman (eds.), Constitutionalism (New York: New York University Press, 1979), p. 3.

3 In the wider context of the nation-state formation in Western Europe, the nation became a bearer of sovereignty. J. Habermas, Facticity and Validity: Contributions to a Democratic Theory of Law and the Constitutional State (Cambridge, Mass., 1993), p. 494.

4 William G. Andrews, Constitutions and Constitutionalism (Princeton: D Van Nostrand Company, Inc, 1968), p. 13.

5 Preuss, ‘The Political Meaning’, p. 16.

6 On the evolution of the doctrine of the separation of powers in America, France and Britain see M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967). The separation of state powers into the legislature, executive and judiciary provides four benefits: (1) it prevents arbitrary use of public power for private ends, (2) individual freedoms are easier to secure in a predictable environment, (3) efficiency gains are made thanks to the division of labour, (4) mutual accountability is promoted. Richard Bellamy, ‘The Political Form of the Constitution: the Separation of Powers, Rights and Representative Democracy’, Political Studies, Vol. XLIV (1996), p. 438.

7 Those principles have been embodied in a variety of institutional configurations, and the relationship between the head of state, legislature, executive and the judiciary does vary widely in Western constitutional states. Parliament-centred systems differ from the presidential system in terms of a mechanism of formation and control over the executive. In presidentialism two directly chosen agents of the electorate co-exist and are mutually independent in terms of their political survival and term of office. In a parliamentary system the executive is derived from and dependent upon the legislature. In the process of the formation of a parliamentary government the political parties play a pivotal role (rarely reflected in written constitutions), though their role is different in Westminster and PR parliamentarism. Presidentialism and two forms of parliamentarism are the ideal types of forms of government. See also Jan Erik Lane, Constitutions and Political Theory (Manchester and New York: Manchester University Press, 1996), chapters 5 and 6.

8 Neil MacCormick, ‘Constitutionalism and Democracy’, in Richard Bellamy (ed.), Theories and Concepts of Politics: an Introduction (Manchester: Manchester University Press, 1993), pp. 124–47.

9 However, the issue of the extent to which institutional provisions are merely instrumental in achieving this goal is contentious. Liberal rights-based constitutionalism of Anglo– Saxon origin is contrasted with a more republican conception of the constitution as a system of procedural politics rooted in popular sovereignty (Bellamy, ‘The Political Form of the Constitution’, p. 437). Those ways are rooted in historical trajectories and cultural predispositions of each polity. Castiglione argues that these diverse approaches demonstrate that there is no (and cannot be only) one way of restraining political power. [Dario Castiglione, ‘The Political Theory of the Constitution’, Political Studies, Vol. XLIV, No. 3 (1996), p. 423]. However, Holmes rejects this dichotomy between liberal and republican strands of constitutionalism and strives to bridge the two by stressing the enabling and facilitating functions of the constitution rather than merely its limiting function. See Stephen Holmes, Passions and Constraint: on the Theory of Liberal Democracy (Chicago and London: University of Chicago Press, 1995).

10 As Kommers and Thompson argue constitutionalism is a precondition for liberal democracy as it guards an individual both against the state and democratic majorities. Donald P. Kommers and W. J. Thompson, ‘Fundamentals in the Liberal Constitutional Tradition’, in Joachim Jens Hesse and Nevil Johnson (eds.), Constitutional Policy and Change in Europe (Oxford: Oxford University Press, 1995), p. 38. For more on this issue see Jon Elster and Rune Slagstad (eds.), Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988), esp. the chapter by Cass R. Sunstein, ‘Constitutionalism and Democracy: an Epilogue’, pp. 327–56; MacCormick, ‘Constitutionalism and Democracy’, pp. 124–47; and Holmes, Passions and Constraint.

11 Ulrich K. Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, in Joachim Jens Hesse and Nevil Johnson (eds.), Constitutional Policy and Change in Europe (Oxford: Oxford University Press, 1995), p. 96.

12 Jeremy Jennings, ‘French Constitutional Tradition’, in Richard Bellamy, Victorio Bufacchi, and Dario Castiglione (eds.), Democracy and Constitutional Culture in the Union of Europe (London: Lothian Foundation Press, 1995), p. 23.

13 K. C. Wheare, Modern Constitutions, 2nd ed. (London: Oxford University Press, 1966), p. 50.

14 Bill Jordan, ‘Constitutionalism and Social Rights’, in Bellamy, Bufacchi, and Castiglione, Democracy and Constitutional Culture, pp. 121–36.

15 Wheare, Modern Constitutions, p. 52.

16 Bellamy, Bufacchi, and Castiglione, Democracy and Constitutional Culture.

17 Constitutional democracy is based on the representative system, which provides for equal participation for all within the political body. However, while its structural provisions recognise plurality of interests and ideologies and allow their mediation, they ignore identity as a locus of difference. See Judith Squires, ‘Liberal Constitutionalism, Identity and Difference’, Political Studies, Vol. XLIV (1996), pp. 620–34.

18 Tully, for example, condemns and rejects the imperial domination of universalist constitutionalism. Derived from a liberal, rational and individualistic Western culture rooted in the Enlightenment, constitutionalism marginalised and excluded minorities, such as for example, the Aboriginal people, who do not share this cultural heritage, but which had been imposed upon them, often by coersion. Thus the existence, needs and rights of such groups cannot be recognised and secured within prevailing constitutional frameworks. James Tully, Strange Multiplicity: Constitutionalism in the Age of Diversity (Cambridge: Cambridge University Press, 1995).

19 It has to be stressed that the doctrine’s influence in other parts of the world has been more recent and its interactions with indigenous culture and traditions have always been complex and often strained. See, for example, Daniel P. Franklin and Micheal Baun J (eds.), Political Culture and Constitutionalism (Armonk and London: M.E.Sharpe, 1995). For an illuminating example of transplanting liberal American constitutional principles to Japan see K. Inoue, MacArthur’s Japanese Constitution: A Linguistic and Cultural Study of Its Making (Chicago: University of Chicago Press, 1991).

20 This is not meant to be a criticism. As Giddens points out ‘the chronic contestation or disputation of concepts and theories in the social sciences is in some part due to the fact that these concepts and theories are caught up in what they are about, namely social life itself’. Anthony Giddens, Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis (Houndmills and London: Macmillan, 1979), p. 89.

21 G. Maddox, ‘Constitution’, in T. Ball, J. Farr, and R. L. Hanson (eds.), Political Innovation and Conceptual Change (Cambridge: Cambridge University Press, 1989), p. 50.

22 Schochet and Chapman, ‘Introduction’, p. 11.

23 The lack of written constitution accounts for the fact that Britain’s constitutional tradition is contradictory, as for example, the principle of the sovereignty of parliament has never been fully reconciled with the sovereignty of the people and the principles of the judicial review.

24 Schochet and Chapman, ‘Introduction’, p. 11.

25 Andrews, Constitutions and Constitutionalism, p. 21.

26 S. E. Finer, V. Bogdanor, and B. Rudden, Comparing Constitutions (Oxford: Clerendon Press, 1995), p. 17.

27 Thomas C. Grey, ‘Constitutionalism: an Analytical Framework’, in J. Roland Pennock and John Chapman W (eds.), Constitutionalism (New York: New York University Press, 1979), pp. 189–209.

28 G. Sartori, ‘Constitutionalism: A Preliminary Analysis’, American Political Science Review, Vol. 56, No. 4 (December 1962), p. 857.

29 On the basis of the extent to which constitutions limit government, Sartori distinguishes several types of them [criteria were put forward by Karl Loewenstein in ‘Reflections on the Value of Constitutions in Our Revolutionary Age’, in Harry Eckstain and David E. Apter (eds.), Comparative Politics: A Reader (London: The Free Press of Glencoe, 1963), pp. 149–63.] What that classification actually depicts is the relationship (or lack of it) between written constitutions and actual political practice of the state through and by law: (1) garantiste constitution (proper) when the telos adhered to; (2) nominal constitution— a collection of rules that organise but do not restrain the exercise of political power in a given polity. This could be called alternatively organisational constitutions. Although the telos of constitutionalism is disregarded the constitution describes the actual working of the system; (3) façade/fake constitution—contains no reliable information about the system.

30 Castiglione, ‘The Political Theory’, p. 421.

31 According to Castiglione, these can be of normative, positivist, voluntarist and organic character.

32 Castiglione, ‘The Political Theory’, p. 421.

33 For the concise argument on the need for constitutions to protect individuals rights from excesses of democracy and the discussion of ‘countermajoritarian’, right protecting devices see Jon Elster, ‘On Majoritarianism and Rights’, East European Constitutional Review, Vol. 1, No. 3 (Summer 1992).

34 On this approach to constitutions and an expression of disappointments with the slow pace of constitutionalisation in post-communist states see Istvan Pogany, ‘Constitution Making or Constitutional Transformation in Post-Communist Societies?’, Political Studies, Vol. XLIV, No. 3 (1996), pp. 568–91.

35 Unger L. Aryeh, Constitutional Developments in the USSR: a Guide to the Soviet Constitutions (London: Methuen, 1981), p. 4.

36 Wheare, Modern Constitutions, p. 75.

37 On constitutions and constitutionalism under communism see, for example, Robert Sharlet, Soviet Constitutional Crisis: From De-Stalinization to Disintegration (Armonk, New York: M.E. Sharpe, 1992); and Teresa Rakowska-Harmstone, ‘Communist Constitutions and Constitutional Change’, in Keith G. Banting and Richard Simeon (eds.), The Politics of Constitutional Change in Industrial Nations (London and Basingstoke: Macmillan, 1985), pp. 203–31.

38 Stephen Holmes, ‘Conceptions of Democracy in the Draft Constitutions of Post- Communist Countries’, in Beverly Crawford (ed.), Markets, States and Democracy: The Political Economy of Post-Communist Transformation (Boulder, San Francisco, Oxford: Westview Press, 1995), pp. 75. See also Preuss, ‘Patterns of Constitutional Evolution’, pp. 95–126.

39 Kommers and Thompson, ‘Fundamentals’ p. 27.

40 Kommers and Thompson, ‘Fundamentals’ p. 27.

41 Wheare, Modern Constitutions, p. 6. France exemplifies this well as each of its republican incarnations was born with a new constitution. In England, the lack of desire to start afresh only partially explains the absence of a written constitution, as after 1688 ‘the development of the doctrine of the sovereign parliament ruled out any possibility of a Constitution which could control the legislature’ (ibid., p. 11)

42 Wheare, Modern Constitutions, p. 6. France exemplifies this well as each of its republican incarnations was born with a new constitution. In England, the lack of desire to start afresh only partially explains the absence of a written constitution, as after 1688 ‘the development of the doctrine of the sovereign parliament ruled out any possibility of a Constitution which could control the legislature’ (ibid., p. 11)

43 Loewenstein, ‘Reflections on the Value of Constitutions’, p. 152.

44 Andrews, Constitutions and Constitutionalism, p. 24.

45 G. Sartori, ‘Constitutionalism: A Preliminary Analysis’, American Political Science Review, Vol. 56, No. 4 (December 1962), p. 856.

46 Finer, Bogdanor, and Rudden, Comparing Constitutions, p. 31. Schochet similarly commented: ‘There is hardly a modern state that does not have a formal constitution that purportedly establishes and defines its governmental institutions. Thus, there is little point in discussing constitutionalism as a significant and distinct political concept; its apparent universality has rendered it vacuous’. Schochet and Chapman, ‘Introduction’, p. 5. Accidentally, the proliferation of constitutions—but not constitutionalism— added weight to the claim of behaviouralists that constitutions are irrelevant to study of ‘real life’ politics.

47 Castiglione, ‘The Political Theory’, p. 422.

48 Ibid. Pruess distinguishes a number of functions that a constitution can perform, such as a constitutive, creating sovereign authority, organising, limiting, power-sharing, authorising, legitimising political authority, and integrative. However, it remains a kind of a laundry list as these functions are only vaguely sketched out and lack conceptual precision. Preuss, ‘Patterns of Constitutional Evolution’, p. 98. The approach adopted by Castiglione whereby he rolls up numerous functions into three main ones, constituting, organising and limiting, is more transparent and at the same time more conceptually refined. Elster put forward another classification, and in his views the functions of the constitution are: 1) to define and protect the rights of citizens, 2) to establish the machinery of government and 3) to regulate changes to the constitution. [Jon Elster, ‘Constitutionalism in Eastern Europe: an Introduction’, The University of Chicago Law Review, Vol. 58 (1991), pp. 445–82.] However, the classification juxtaposes the description of the content of the constitution with the function it serves.

49 Patrick Dunleavy and Brian O’Leary, Theories of the State (London and Basingstoke: Macmillan, 1987), pp. 3–4. However, Michael Mann, ‘The Autonomous Power of the State: Its Origins, Mechanisms and Results’, in John A. Hall (ed.), States in History (Oxford: Basil Blackwell, 1986), pp. 109–96 does not reserve the concept of the state to modern times.

50 On the development of the state in Western Europe see Charles Tilly (ed.), The Formation of National States in Western Europe (Princeton: Princeton University Press, 1975); Gianfranco Poggi, The Development of the Modern State: A Sociological Introduction (London: Hutchinson, 1978), pp. 60–116; Andrew Vincent, Theories of the State (Oxford and New York: Blackwell, 1987), pp. 45–118; Kenneth Dyson, The State Tradition in Western Europe: A Study of an Idea and Institutions (Oxford: Oxford University Press, 1980).

51 Vincent, Theories of the State, p. 51.

52 Poggi, The Development of the Modern State, p. 88.

53 D. Parker, The Making of French Absolutism (London: Edward Arnold, 1983), p. xvi cited in Vincent, Theories of the State, p. 47.

54 Michael Mann, The Sources of Social Power (Cambridge: Cambridge University Press, 1995), Vols. 1 and 2.

55 On the constitutional theory of the state see Vincent, Theories of the State, pp. 77–118.

56 Poggi, The Development of the Modern State, p. 92.

57 On the role stressing the role of politics and the state in nation building see John Breuilly, Nationalism and the State, 2nd ed. (Manchester: Manchester University Press, 1993).

58 See, for example, D. Easton, The Political System (New York, 1953).

59 J. Hoffman, Beyond the State: an Introductory Critique (Cambridge: Polity, 1995), p. 35.

60 John A. Hall and G. John Ikenberry, The State (Open University Press, 1989), pp. 1–2.

61 Ibid., p. 2 and Anthony Giddens, The Nation-State and Violence (Cambridge: Polity, 1985), p. 1.

62 Bhikhu Parekh, ‘The Concept of National Identity’, New Community, Vol. 21, No. 2 (April 1995), pp. 255–68.

63 Hoffman, Beyond the State, p. 66.

64 For an example of such an approach see Poggi, The Development of the Modern State.

65 Easton, The Political System.

66 C. Hay, Re-stating Social and Political Change (Buckingham and Philadelphia: Open University Press, 1996), chapter 1.

67 While the term ‘political community’ tends to be used interchangeably with ‘the people’, it was not to be found within a portfolio of concepts of classic Anglo–Saxon constitutionalism, which was inspired by individualism and contractual relations rather than any notion of collectivity. The concept of the community, which implies a shared identity of its members, was injected into constitutional terminology at the end of the eighteenth century in Germany, and was used by state theorists to boost the moral authority of the state in addition to its purely procedural and legalistic foundation. Vincent, Theories of the State, p. 27.

68 Dario Castiglione, ‘Contracts and Constitutions’, p. 68. On the linkage between constitution making and nation building see Ulrich K. Preuss, ‘Feature: Constitution Making and Nation Building: Reflections on Political Transformations in East and Western Europe’, European Journal of Philosophy, Vol. 1, No. 1 (April 1993), pp. 81–92.

69 The term ‘collective identity of the polity’ was proposed by Parekh as a substitute for national identity to avoid conscious and unconscious connotations with the terms ‘nation’ and ‘national’. Bhikhu Parekh, ‘The Concept of National Identity’.

70 Ivo D. Duchacek, Power Maps: Comparative Politics of Constitutions (Santa Barbara: ABC–Clio Press, 1973), p. 25.

71 Johan Galtung, Theory and Methods of Social Research (New York: Columbia University Press, 1969), pp. 22–25.

72 Nor is it the aim of the study to elaborate a normative stance of what it takes to write a good constitution and what good constitution ought to be like. For the latter approach see Elkin and Soltan (eds.), A New Constitutionalism.

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