Lately I have often found myself quoting Albert Dicey’s book Introduction to the Study of the Law of the Constitution. It just so happens that this book constantly proves remarkably useful when it comes to our country and our situation, which (the situation) has been delighting us for twenty years now and shows no signs of changing. This work by the outstanding British jurist reads to the modern observer like a volume from the series “everything is not at all the way you have grown accustomed to thinking,” and its value lies precisely in the fact that the author had no goal of exposing anyone or dragging them into the light. Albert Dicey was a lawyer, a professor, lectured at Oxford, and did not engage in politics—and besides, that was a hundred years ago. Yet for someone accustomed to certain templates, the facts and ideas Dicey presents can significantly disrupt those templates. We are talking about widely held misconceptions regarding “democracy,” “human rights,” “sovereignty,” and the like. Dicey’s opinion, as an English constitutionalist, is valuable here because modern constitutional law began with Europeans’ attempts to copy the English constitution. These exercises continued from the end of the eighteenth to the end of the nineteenth century, and they were given special charm by the fact that the English constitution, as even users of the “Ukrainian Pravda” forums know, does not exist in the form of a special written text.
In general, after this advertising pause, let us get down to business. Actually, I want to write about the latest innovations in the fight against corruption, which the Rada adopted on May 13. And why the English constitution is relevant here, we shall see.
Dicey, discussing freedom of the press, makes a very instructive comparison of English and French practice. As is well known, freedom of speech and the press was solemnly proclaimed as early as the first revolutionary constitution of 1791. This, however, did not at all prevent revolutionary censorship from raging. Then in France, censorship regularly returned, was abolished, and returned again (often under the guise of another abolition of censorship). Meanwhile, all twelve constitutions that existed during this period (until the beginning of the twentieth century) in France contained “freedom of the press” in one form or another. As a result, in France, the practice related to freedom of the press constitutes almost a separate branch of law.
In England, no one ever even thought to proclaim any “freedoms of the press,” to “guarantee” something, or to “legislatively ensure” it. Before 1695, there was censorship there. It existed in the following form: the right to print belonged to ninety-seven London booksellers (the Stationers’ Company), who could confiscate all publications printed by outsiders. In 1695, the term of the Licensing Act, which provided this pleasant little monopoly to the Stationers’ Company, expired, and the House of Commons simply refused to extend this law.
What is interesting is that the legislators, in directing their decision to the House of Lords, do not say a single word about “freedom of the press.” The Licensing Act is abolished because it is associated with obstacles to trade, nitpicking, and violations—for example, “it restricts the book trade to the London port and delays valuable cargo at customs for so long that they become covered with mold.” “The commons find it unjust that a customs official is blamed if he opens a box of books arrived from abroad without the presence of censors. How can this official know that there are books in the box if he did not open it?"—the deputies wonder, along with Schrödinger’s cat. But they do not say anything about any freedoms in the process.
“How little the statesmen who abolished censorship thought about the principle of freedom of the press is proved by the fact that two years later they attempted to pass a bill prohibiting the printing of news without permission”—writes Dicey.
Since then, “the freedom of the press is regulated by the opinion of twelve shopkeepers,” that is, jurors, since the only restrictions follow from the laws on libel, that is, from criminal law. At the same time, calling these “restrictions” specifically of the press is difficult, since liability for defamation applies to all persons. “In England, to destroy the right of the government to control the press meant simply to destroy an exclusive privilege that contradicted the general tendency of the law”—Dicey concludes. Well, and, summarizing, I think there is no need to remind that all kinds of free-thinkers and revolutionaries usually printed their writings in England, where, I should note, no one ever proclaimed or “enshrined in the constitution” freedom of the press.
This story is very instructive for Ukraine with its—I wanted to write “centuries-old”—fight against corruption. The other day, parliament adopted further innovations that look, to put it mildly, frightening. Justice Minister Pavlo Petrenko joyfully informs us that “previously, corrupt officials got by with protocols of administrative liability and just paid fines. From now on, criminal liability is provided for all corrupt offenses.” “The offer and promise of a bribe have also become criminal offenses. For this, data on corrupt agreements is sufficient. Moreover, the actual receipt of the bribe may not be recorded”—the minister continues. And as a finishing shot: “another extremely important innovation was granting our citizens the opportunity to notify authorities about corruption anonymously.” In general, corruption, of course, will not go anywhere. It will simply become even more expensive. At the same time, totalitarian tools (anonymous denunciations, control of bank accounts) are being created for political struggle and generally for fighting those who are unwelcome. All of this goodness is served up, of course, under the sauce of “European integration.”
The essence of Dicey’s example with English and French censorship is simple. Censorship arises from the ability of the government to control publishers and writers. It does not disappear from the proclamation of some rights and the adoption of constitutions, nor from some special laws aimed at fighting it. It disappears along with its causes—the capabilities of the government. Exactly so, corruption does not disappear from laws and “struggle,” since it arises as an inevitable result of the government’s ability to “regulate the economy.” And there exists no other solution here except to take this ability away from it.