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Munk Centre

Serhiy Holovaty

(former Minister of Justice of Ukraine, President, Ukrainian Legal Foundation, Kyiv, Ukraine, Member of the Ukrainian Parliament, Fulbright Visiting Scholar, Yale University)

"The Rule of Law in Post-Soviet Ukraine and Russia: Will It Ever be Possible?"

Forcefully delivered by Serhiy Holovaty, an eminent legal scholar and an accomplished public servant of Ukraine, the January 8 lecture (presented by the Petro Jacyk Program for the Study of Ukraine and the Faculty of Law) on "The Rule of Law in Post-Soviet Ukraine and Russia" was a rare treat. Offering an intriguing comparative analysis of the fundamental challenges facing the development of modern legal systems in these two countries in transition, the presentation sought to ex-pound on a question that has invariably elicited divisive reactions in Western academia and press. Unlike many of the more vocal pundits, Dr. Holovaty is without doubt well qualified to offer a novel and informed insight into the more subtle implications of this contentious issue.

At present a visiting scholar at Yale University's Law School, a distinguished member of the Ukrainian Parliament, and the President of the Ukrainian Legal Foundation, Dr. Holovaty is a former Minister of Justice of Ukraine and a "Founding Father" of that country's modern statehood, being one of the authors of the Ukrainian declaration of independence and its post-Soviet Constitution and Criminal Code. Serhiy Holovaty's impressive expertise and commitment to progressive change in the Ukrainian legal system have gotten him a number of prominent recognitions and appointments with various national and international bodies, and clearly established him as a leading authority on East European constitutional law.

For sure, Dr. Holovaty's crusade to see progressive changes instituted in a country emerging from the wreck-age of 75 years of totalitarian rule has not been without its difficulties. But to seek the principal obstacles to the founding of a legal system in Ukraine that is based on the supremacy of the rule of law solely in the entrenched parochialism of centuries of authoritarian tradition is, Serhiy Holovaty argues, at best myopic. Responsibility for the troubles of legal reform in Ukraine must be equally shared by American and West European donor agencies whose short-sighted policies urged post-communist Ukrainian governments to blindly transplant concepts and values from the Western legal tradition but failed to educate the implementing Ukrainian authorities and the general Ukrainian public about the spirit and significance of these changes.

As a result, such fundamental precepts as the notion of the "rule of law" were never really understood in Ukraine and Russia. Instead, these dignified phrases entered public discourse devoid of any concrete imports and could be thus readily twisted and manipulated to further reactionary political interests. In a typical case of corruption of a notion's very essence, a common Russian translation of the phrase "the rule of law" wrongly makes it synonymous with "the rule of laws." Even though their new Constitution has unequivocally pro-claimed it, ordinary Ukrainians still do not seem to understand that it is the state which is to be their servant and not vice versa.

The post-communist Ukrainian Constitution is unique among those of the former Soviet republics. Its Article 8, penned by Dr. Holovaty himself, proclaims the founding of Ukraine's modern statehood on the principle of the "rule of law." But the practical implementation of this stipulation has been difficult, mainly because the precise interpretation of the "rule of law" was never agreed on by Ukraine's senior magistrates. Is this tenet derived from the Lockean belief in the supremacy of individual rights, which has long bound governments in the Anglo-Saxon world within the strict confines of citizenry- mandated social contracts? Or is it rooted in the German Reichstag tradition-much more congruent with the authoritarian experiences of Russia and Ukraine- of elevating the state to the omnipotent position of an infallible arbiter and recognizing it as the sole genesis of all law of the land? As Dr. Holovaty likes to muse, of the roughly ten thousand judges in Ukraine, only one would concur with the former definition.

In addition to the question of theoretical interpretation, there is also the problem of practical implementation. What government body or segment of society should be ultimately responsible for safeguarding and applying "the rule of law"? Post-1990 experience clearly shows that the majority of the East European political elites are either too inexperienced or too consumed in furthering their own interests to serve as impartial guardians of their countries' constitutional foundations. This predicament has been particularly pronounced in Russia and Ukraine, where attempts to establish a court system completely independent of any parliamentary or executive control have resulted not in the intended founding of fair and impartial judiciaries, but in the creation of unaccountable and uncontrollable bodies wielding fearsome powers.

The centuries of Tsarist absolutism and communist totalitarianism have left an indelible mark on Ukrainian and Russian political cultures. Swift revolutionary changes in the thinking of magistrates and public officials long instructed in devout adherence to strict Marxist principles could not have been feasibly expected. But the problem with establishing a modern institutionalist state in Ukraine is not merely one of overcoming the communist legacy. The issue is further compounded by the strong appeal of Ukrainian traditionalism and Christian morality. This classical conflict between tradition and modernity, Serhiy Holovaty posits, can only be re-solved through the institution of the rule of law as the new fundament of statehood. But, as Rousseau noted about Russia at the time of Peter the Great, the process of "Westernization" cannot simply occur overnight. It requires a prolonged evolutionary period during which society can get gradually accustomed to and embrace the new values.

Nick Roudev, International Relations

Content: © 2002 Petro Jacyk • Design: © 2002 dragandesign.