In the article, in the context of the basic discursive and legal characteristics of transitional societies of the traditionalist type, the structural components that cause the specificity of policy-legal communication are revealed. It is argued that these components determine the respective roles and functions of law and are responsible for the political realization of rights and freedoms in transitional societies. It is argued that the forms of political and legal communication are conditioned by the existing type of society, which in turn influences the whole set of relations formed and is reflected in the inextricably linked manifestations of law and political power. Despite the fact that in the context of globalization, the legal systems and legislations of different countries are unified in accordance with the rules of international law, and state institutions take liberal forms, in transitional societies the regulator of relations are not the liberal legal norms and principles, but the unwritten rules of social actions that have formed arbitrarily. On the understanding, that the transition to a liberal system of relations in transitional societies has not taken place, the political and legal mechanism becomes dysfunctional and the laws do not meet the criteria of justice. In this way, instead of the legal one, the legalistic model of the state is formed, and the legal consciousness takes on a deviant form. This determines the repressive role of law, which in the illiberal system of relations is revealed as its opposite, that is, in fact, non-law. Under these circumstances, the simulation of law is rooted in the political discourse, when the support and production of fiction becomes the only possible sociality.
The key feature of legal norms is their obligatory character, as well as the conditionality of the development of society and the real relationships, that have been historically developed between people in the process of their relations. At the same time, in the modern world, the legal systems of different countries are unified in accordance with the rules of international law and, in the integration and communication processes course of globalization, are implemented at the domestic level, being implemented in the political form of international legal obligations. In the course of these integration and communication processes, international political and legal standards are incorporated into state institutions and national legal systems of countries that are at different stages of social development. This raises a number of questions: are countries being integrated into the globalized community politically capable of ensuring the practical implementation of international legal obligations in their legal systems? And if not, is each state having national legislation legal in the sense of not only the actual existence of a legislative framework containing liberal declarations, but also in the context of the practical assurance of equal access to the rights and freedoms of all citizens, i.e. in the form of recognized freedom, asserted in the form of their legal capacity and legal personality? The raised questions actualize this study.
The works of G. Hegel, A. Giddens, I. Ilyin, C. Lévi-Strauss, V. Solovyov, M. Tsymbalyuk and others were the theoretical basis for the study of the transformations of law and legal awareness in transitive societies, as well as their essence and significance in the structure of social relations. Western European philosophy of Modern times, represented by such thinkers as T. Hobbes, J.J. Rousseau, J. Locke, S. Montesquieu, a natural-law concept was developed. The most profound general theoretical and methodological framework for our study were conceptualized in the works of G. W. Leibnitz, I. Kant, J. G. Fichte and others. M. Berdyaev, G. Shershenevich made a significant contribution to the development of this topic. Important for our study was the discursive theory of law and democracy by J. Habermas.
In our study, we assume that the functions of law are determined by the existing type of society, which, in turn, affects the entire set of formed legal relations and is reflected in the manifestations of law and power, and therefore - political and legal communications. We consider it worth mentioning that such a political and legal organization, which is consistent with the concept of law, provides for the existence of a well-established tradition of rights and freedoms in society, which makes them effective subjects of the liberal community. It is in the dimension of individualism and the liberal government the idea of law comes into being. Such human rights and the key principles of law are fundamental in the law structure in a liberal society as: justice, equality, freedom and humanism, which are projected into the universal essence of law.
Thus, in a liberal sense, the concepts of freedom, justice and equality are interconnected, interpenetrating and interdependent. They are verified and adjusted by the formula: equality in freedom under common law. Therefore, in developed liberal societies,” justice”, for the most part, implies: a) equal sharing of the burden of citizenship, i.e. those restrictions on freedom necessary for social life; b) equality of citizens before the law, of course, when the laws do not support and condemn individual citizens, groups or classes; c) impartiality of justice; d) equal use of benefits (and not only restrictions) that the state can offer to its citizens [18, p. 106]. Such an imperative view of law and legal awareness implies a universalistic and, to some extent, a privileged way of justification, because in this case law precedes good not only in the sense that its claims are given priority, but also in that they are a priori.
That is why, as rightly pointed out in his public lecture on Law and Economics, the
German philosopher H-H. Hoppes, law or ethics should be universal, otherwise they
will not work equally for everyone. But slave ethics, which obviously cannot be
universalized, are the ethics of superhumans and nonhumans. They have different rights
and rules [
Justice is also thought not as a relationship between individuals, but as a syncretic and indivisible social property based on essentially inter-clan relationships. By interclan relationships, we understand the relationships between closed groups whose activities are aimed at personal enrichment and gaining actual power, and the participants are bound by common interests and mutual obligations. This attitude to justice is based on the accepted form of clan equality, or "equality in dignity", or so-called proportional equality, whose task is to justify the hierarchy of statuses established in the a priori unequal social system. On the basis of proportional equality, there is a division between citizens of all kinds of honors and benefits, which is supported by the whole system of political power and is ensured by legislative norms and legal coercion. This causes a distorted function of law, which in the illiberal system of relations is revealed as its opposite, that is, in fact, not law.
In the context of the current dichotomy of the law role in societies of individualist
and traditionalist types, it is appropriate to turn to the binary opposition of “law - non
law” G. Hegel. In the work Philosophy of Law, he describes not law as servileism
rooted in the will of the people: "Slavery belongs to the stage of transition from the
naturalness of human to a truly moral state: it belongs to a world in which the not law
is still law. Here power is non law and just as necessary to be in its place” [
Considering that the transition to a liberal system of relations has not taken place
(because their modernization has always been superficial and based on profound
changes in the social system) [
It is known that the Western countries went to the institution of the rule of law in an evolutionary way. The liberalization of law took place in the process of civilization, the formation of social consciousness and the continuous differentiation of social relations. Against the background of these transformations, the moral formation of a person changed to being: "from the ethics of duties inherent in the traditional value system, the transition to the ethics of rights, within which the surrounding reality is understood as released by the individual solely as the scope of his activity inherent in his freedom" [9, p. 31]. Freedom itself is the antithesis of the collectivist meaningless will and begins to be understood by the individual as a conscious need that must be reconciled with reason.
As for traditionalist societies, the introduction of the institutions of state law in them has always resembled not a development but rather a revolution. Thus, comparing Peter's reforms with the communist coup, M. Berdyaev noted that here we see "the same rudeness, violence, attachment to the people of known principles, the same fragmentation of organic development, the denial of tradition, the same etatism, hypertrophy of the state, the same dramatically and radically change the type of civilization” [5, p. 12]. In our opinion, a similar - legistically based - way of introducing alien models inevitably leads to horizontal antagonism, the rejection by the transitive society of values and norms of liberal concepts at the level of social consciousness.
The inability to build a state of law in a society where they do not share legal values,
warned B. Kistyakovsky in his work "In Defense of Law". Investigating the problems of
the functioning of law in pre-revolutionary Russia, he concluded that the existence of
laws in the state does not yet make it legal. In his view, in countries with unstable civil
society, there is a lack of will and social practice to live by law. In these countries, a
police state is built in place of the rule of law, and law becomes a bureaucratic tool for
manipulation and arbitrariness of power. Laws turn into circulars, formalism reigns in
legal practice, courts are unprofessional and become an instrument of revenge, law and
rights are despised by both the authorities and the people. B. Kistyakovsky, for example,
quotes O. Herzen as saying: “Complete inequality before the court killed him [russian]
with any respect for law. A Russian, no matter what his rank, bypasses or violates the
law wherever it can be done with impunity; and the government does exactly the same”
[
The attitude to the rules in traditionalist societies has always been distributed in this way: the representatives of the authorities are above the law, because they identify with the law, and all others must be guided by the traditional unwritten rules of the slave piety of interpersonal relations and the rules of law. In addition, the sanctions of the rules of positive law are the instruments that are applied in case of violation of unwritten rules. This practically makes it impossible for legal relations and normal legal practice, because, following unwritten rules, a person inevitably transgresses written norms, and then enters into force "law", but only as a punishment for "social" apostasy.
In addition, the rules in traditionalist societies are designed in such a way as to make it practically impossible to exercise rights, even if they do have them. For the most part, the rights there are declarative in nature, are poorly regulated and procedurally enshrined, and the rules of law themselves are purely formal [16, p. 64]. Laws often conflict with the constitution, with each other and with by-laws, and, most importantly, with common sense, so they do not exist to enforce them, but to implicitly violate and circumvent the support of influential persons, or simply giving a bribe. "Whoever tries to respect the law is an idiot. [after all] Laws [there] are created not for the common good, but only for the sake of state and municipal servants to show to mere mortals that in life you can't have the penny and the bun...” [11, p. 35]. Therefore, in everyday life, ordinary people should rely solely on themselves and stay away from the authorities.
In such circumstances, ordinary people are fostered by a persistent aversion of any form of law and legitimacy, and legal relations are mostly associated with usurpation of power and social violence. As a result, all significant social norms of cohabitation become discredited, and people themselves do not understand neither their social value in practice nor the general role of law in social life. The only "social" norm supported by the majority there, because it can lead to success, is marginality, which acquires the status of a silent but leading philosophy of life.
It should be noted that the marginal position in such a society is based on existing asocial relations, the essence of which is well-known, and therefore is always deliberately chosen by the actors. This contributes to the formation of an appropriate form of marginal social consciousness, which consistently devalues the manifestations of empathy, morality, logic, common sense, that is, all those levers that contribute to the formation of personality and individualization of relationships. Marginality is becoming standard communication practice for all segments of the population, social groups and relationships, because under these conditions it opens the door to opportunities for power. It will be difficult for you to achieve something there, and even less so if you do not follow these rules. Conversely, if you reach the top, you will protect the marginal relationships that have led to success, because they legitimize all your gains and strengthen your political position.
These relations sublimate the emergence of marginal forms of political and economic institutions, which D. Ajemoglu and D. Robinson called "extractive." In their view, "extractive political institutions concentrate power in the hands of the narrow elite and impose weak constraints on their exercise of power. Then economic institutions are structured by this elite for the sake of extracting resources from the rest of society ... Extractive economic institutions enrich this elite, and their economic strength and power consolidate political dominance ... The resources created by these economic institutions enabled the elite to form an army and security forces to protect their absolutist monopoly power. As a result, extractive political and economic institutions are mutually supportive and enduring. It shows an even stronger synergy between extractive economic and political institutions. When in the context of extractive political institutions real competition arises with the ruling elite, power gained by competitors is also little limited. Therefore, they have an incentive to support existing political institutions and to create a similar system of economic institutions…” [2, p. 74-75]. Thus, the marginalization of relations in society causes the emergence of extractive institutions that are supported by the authorities and lead to the majority of the population living in poverty and lawlessness.
At the same time, the slavery and misery situation of the population majority is not only a consequence but also a form of existence of such a society. Therefore, all mechanisms of state, political and economic governance must first and foremost be aimed at supporting this situation. The principles of Shang Yang legalist school are quite effective instruments for implementing the institute of total lawlessness, which is manifested in forms of modern tribalism such as: very poor wages and miserable social payments for ordinary people; pressure on businesses and harassment of any type of independent economic activity by government bodies; as a result, the total dependence of the population on the system of distribution of privileges and preferences; nepotism, extortions and corruption as key, permanent and irreplaceable characteristics of the state machine; manual justice and biased law enforcement officials; clan inequality; inaccessibility of social goods, rights and freedoms of the majority of the population; the introduction of propaganda as the only form of communication aimed at spreading false ideas prevailing in society. The irrational, antihuman and antisocial surrogate, which in this case is formed instead of society, is presented in transitive societies as a requirement of capitalist relations and an example of the modern state, despite the fact that capitalism is, first and foremost, a form of social relations, and the sense of the state, in its broadest meaning, is social.
Under the described conditions, any universal and general social guarantees that meet the basic principles of social construction in the antisocial state threaten the existing system. Although the rights there are only formally defined and do not have a place in real life, the fact that they are expressed in a positive form creates some inconvenience for the authorities. After all, people can appeal to them, demand their implementation, apply to international institutions for the protection of violated rights and freedoms, etc. In addition, the positive decisions of the international courts on such an appeal are grounds for considering the activity of public authorities as unlawful, and therefore criminal, which generally discredits the state power and deprive it of legitimacy. It should be noted that in many non-western countries, the inability to effectively enforce social guarantees and rights competes with the unwillingness and outright sabotage of the authorities. And if we add here the underdeveloped civil society institute, the low level of legal consciousness and the lack of liberal practices, then the securing of rights and freedoms in such countries becomes a completely impossible task.
In particular, under the auspices of the struggle against the communist system, as a rudiment, a number of "reforms" are carried out in various social spheres, the purpose of which is, in fact, to neutralize the social functions of the state, and therefore to dismantle and destroy the social and legal institutions that must ensure the stability of society. For example, in Ukraine, it has long been the tradition, under the pretext of legal and institutional reform, to pursue anti-liberal and antisocial legislative initiatives that contravene the constitution, as well as neutralize universal rights and freedoms, legitimizing the clan distribution of public goods, one of which is law.
Thus, according to lawyer and political expert O. Bunchuk, if we analyze the
onrush of changes to the Ukrainian legislation in recent years, it will become clear that
the authorities are turning the strategies of reforming the judiciary, the jurisdiction
and related legal institutions "into a" document of literacy "and do not pay too much
attention to the requirements of the Constitution (especially its second chapter on
human rights and freedoms)” [
In Ukraine, the onslaught of rights has also recently taken place in scientific and theoretical discourse, in particular in the sphere of public administration. In particular, it is proposed to remove the Constitution from social reality by bringing its norms in line with the existing state of rights in the country: “The approximation of the Constitution to reality, by limiting the list of constitutional rights, is not allowed by [the Constitution itself], so state-makers remain the only way out - to build an effective institution and the legal mechanism for ensuring the norms of the Constitution, in other words, to bring reality closer to the provisions of the Constitution. Or another way is to amend the Constitution for this purpose [bringing the Constitution closer to reality]…” [12, p. 210]. In other words, the lack of desire and political will to enforce the provisions of the Constitution is rhetorically replaced by a meme about the need to bring the Constitution into conformity with the existing disorder and wrong in the country. Although the author proposes to carry out the operation of "circumcision" of constitutional rights "with the mandatory participation of citizens through a referendum, which will automatically contribute to greater legitimacy of the Basic Law" [12, p. 210], the very idea is, in essence, legitimation and "legitimization" of wrongs, published in a solid scientific journal, is frightening. Moreover, its implementation can be a matter of time, given the low level of legal consciousness and the general misunderstanding of the public (obviously its part involved in public administration) of the role and function of law in public life.
The above points are supported by the large number of complaints pending before
the European Court of Human Rights. In particular, in 2017, Ukraine became the
undisputed “leader” in this anti-rating [
It should be noted that in the context of globalization, manipulative technologies have become the most popular in transitional societies. It is caused by the very nature of these societies and is conditioned by the paternalistic system of governance adopted in them, fully in line with their traditions and collective ideas, is woven into the structure of social relations and so on.
Due to the fact that reality itself and its interpretation appear only as some means of manipulative influence, the absence of correlation between them has always been considered the norm there. Therefore, in the traditionalist-type societies, there is a gap between reality and its ideological explanation. In the nineteenth century, when German society became ill with this disease, I. Herder, in order to somehow justify this destructive trait, stated: "After all, no one will believe that there is a significant relationship between language and thought, not even mentioning things" [7, p. 237]. It seems that the lack of connection between part of being and the content of the concept that characterizes it is in itself understandable and entirely natural. More than a hundred years later, the Soviet researcher V. Shchegortsov continued this view, noting that "justice, law and legal relations do not coincide in their content or in the forms of expression" [19, p. 26]. Therefore, a common characteristic of worldview, which is inherent in traditionalist societies at all times, is the artificially created gap between reality and its interpretation, which, above all, has an ideological foundation.
According to the ideologists of science, legal awareness, as well as social consciousness, must be artificially constructed, formed in isolation from real social relations. This causes the semantic field of law and law to be blurred. As a result, the sign, disconnected from reality, is deprived of the opportunity to abstract and begins to denote sense, not meaning, representing not the mental world, but the mental form. Therefore, in traditionalist societies, legal messages deviate from the normal structure of syllogism, whereby the subject receives mutually contradictory instructions that belong to different levels of communication: at the cognitive level - calls for the requirement of legal behavior, and at the level of being - the leveling of the written norms rules for all subjects of social relations. Hence, deviant behavior and the deformation of consciousness, total corruption and neglect of rules and law.
Under these conditions, citizens become deprived of all rights, and the right becomes purely formal. Despite empty declarations, the function of law in transitional societies remains prohibitively distributive, that is, completely marginal, and is to reduce social mobility and restrict access to the benefits of representatives of different stratified groups, and thus requires additional legitimization through propaganda. In general, they are the following:
- manipulation of signs by marking certain political and legal phenomena with certain signs that have already formed connotations, semantic meanings or emotional color in the mass consciousness. For example, the negative attitude to law and legitimacy that has arisen in traditionalist society is explained by the people's desire for freedom, or by its mental or cultural characteristics, thereby offsetting the universalist idea of law;
- actions with meanings, by substituting and using particular concepts in such a
way that they acquire a meaning that does not coincide with the original and
sometimes directly contradicts it. For example, they name: poorly structured chaos of
ochlocracy - democracy; existing stateless office in the country - the rule of law; the
circulars - norms of law adopted in favor of oligarchic groups; freedom by will; a society
in which no rights (including property) are absent - capitalist; primitive caste
distribution of material goods among the ruling elite - economic relations, etc.;
- manipulation of the message structure, by hiding events, distorting information,
direct lies and so on. For example, in 2015, the Ukrainian Helsinki Human Rights
Union, analyzing human rights trends in Ukraine, analyzed the National Human
Rights Strategy, which was approved by Presidential Decree No. 2015/2015 of 25
August 2015. In their report, they stated that the strategy was "too declarative and
eclectic. It does not cover public policy on human rights as a whole, does not read
these antagonistic trends, but only examines the development of individual rights and
freedoms, leaving aside such important aspects as the human rights system and
fundamental freedoms… There remain large gaps in the consideration of individual
rights and freedoms. Thus, property rights are not considered at all… [In general] The
strategy is devoid of internal logic: it mixes three generations of rights that are of
different nature and therefore should be considered separately and according to a
different line of requirements” [
In traditionalist society, there are constant actions with images through the creation of artificial synergetic-sensory non-reflexive patterns of phenomena, events and operations with them. For example, the masses are strongly inclined to believe that the Ukrainian legal system is unable to cope with its constitutional obligations. With the help of unspeakable memes that are spread in society, such as: "Every law has a loophole..."; "Why are we stupid? Because we are poor… ”; "Who wants - he has"; "We are not such a thing, the life is", etc., in the mass consciousness there are formed stable patterns of depreciation of law, its artificiality, subordination and dependence on caste distribution, impunity of power holders, general irresponsibility, meaninglessness of life under the rules of law and lawlessness as norms etc.
In such circumstances, there is a rooting of simulation in the social space, when the support and production of fiction becomes the only possible social. In this case, lying means maintaining a socio-ideological homeostasis and, accordingly, a certain form of sociality. In the mass consciousness, which is predominantly in an ecstatic state of collective experience, through outlined operations, new chains of cause-and-effect relationships are created, in which conformity with artificially formed mental forms and propagandistic cliques is decisive.
In a social structure based on the principles of simulacrum, rational signals can, on the contrary, cause a pathogenic process and, accordingly, must be denied in the name of the "good" of the system. In the case of ideological forms of consciousness rationalization, there will be a confusion of connections between the primary state created by manipulation, the new rational information, which is revealed by the content and the result within the part of the system that receives the new information. Accordingly, it threatens the integrity of the social system built on lies.
In this context, G. Bateson noted that in cases of threat to the system, we forbid our
feelings and feelings for each other. And those people who feel that it is their duty to
pass on information that may be harmful to the system creates an entree that seeks to
go where even angels are afraid to go [
The above provisions lead us to conclude that until there will not happen number of structural changes related to the individualization, rationalization and liberalization of relations in all spheres of existence in transitional societies, legal relations will be realized either through the legalistic tyranny of the absolutist state, or by the absolutist state, lawlessness - a formally existing "right" that no one fulfills there. By the way, such a poorly structured chaos of ochlocracy is considered to be the only possible manifestation of freedom and democracy in a transitional society of the traditionalist type. But in any case, until now, instead of law, there will be a non-law, which, in the form of inequality, combined with explicit or hidden structural violence reduced to the properties of the entire state apparatus, is a cutting edge form of slavery.
The study of the phenomena of political and legal communication in the system of social relations has revealed their determination of the existing types of societies, which determines the practical level of protection of rights and freedoms, as well as the corresponding roles and functions of law in societies of the individualist and traditionalist type.
Despite the unification of the legal systems of different countries in accordance with the requirements of international law and the liberalization of state institutions on formal grounds, people in most transitional societies of the traditionalist type continue to be held captive by the tribalism of interpersonal relations. In such circumstances, the implementation of any liberal law ideas in the legislative system of the transiting countries becomes in practice prohibitive and repressive. The real regulator of relations are not legal rules, but unwritten rules of their social actions, which have been formed historically. The rules of positive law themselves are largely based on the principles of statism and clan distribution, and therefore serve as a means of regulated access to the benefits of representatives of different stratified groups. The function of law there is prohibitive and distributive, and is to reduce social mobility, which leads to a marginalized form of political and legal communication. This determines the perverse role of law, which in the illiberal system of relations is revealed as its opposite, that is, in fact, non-law. The expansion of normative foundations and the spread of their prescriptive and disciplinary influence on the ever-expanding social space in such societies is combined with the “war of all against all” rule and the inherent practice of permissiveness and the power of the strongest.