In this column we will discuss the fashionable notion of “the law must be the same for everyone.” Where does it come from, what does it mean, and isn’t there something else hiding behind these words? Arseny Petrovich has just delighted us with a proposal to abolish the presumption of innocence in administrative cases, so everything has aligned rather nicely.

We will examine the law that is the same for everyone from a praxeological perspective. That is, we will consider all of this not as some abstract thing unto itself, but as part of human activity. First of all, this means that rules emerge for a reason—and the reason is that following rules produces better outcomes than having none. Rules are followed because it is beneficial. The simplest example is children’s games. Rules constitute the essence of the game; without them, it simply won’t exist. Accordingly, those who want to play follow the rules, while those who don’t want to play are not, naturally, subject to them. Rules exist so that children can enjoy the game. Accordingly, the thesis “the law is the same for everyone” is self-evident here. Who are these “everyone”? It is everyone who plays the game. Those not participating in the process are not affected by any of this—joining the game is voluntary.

Now let us consider a different situation. At my home, I forbid smoking. I don’t like it. Anyone who comes to my house must not smoke, or I will throw them out. Here the beneficiary is me—the owner of my own property. “The law is the same for everyone” in this case means that whoever comes to my house is subject to this rule; I don’t care who exactly came or who exactly intends to smoke—since the house is mine and I use it as I see fit, I forbid smoking in it. By the way, this means I can change these rules at any moment and allow smoking for especially honored guests, because right now I need this. “Equality before the law” exists here exclusively for my benefit; it simply means that no one can do what I don’t want, and in this “inability” everyone is equal.

We see that in society there exist at least two groups of rules whose origin and existence are completely different, and calling them by the same word is incorrect. The first group is rules arising in the course of cooperation between owners—let us call them “natural.” The second is rules established by owners regarding their property—let us call them “voluntarist.”

In a free society, these two groups do not enter into irresolvable contradiction. Moreover, property rights, with the voluntarism that follows from them, serve as the basis for the formation and existence of natural law.

Natural rules arise and are maintained regardless of our intentions; this set of rules is the current result of social evolution. The voluntarism of owners is limited by their need to live in society and use the advantages it provides. There are and cannot be such owners whose property would be so extensive and diverse as to allow them to dictate rules to “society as a whole” and try to replace natural rules.

It is important to note that natural rules can form and be maintained in sufficiently large groups of people. Some of these rules are so widespread that regarding them we can also say “the law is the same for everyone.” Classical examples are language and law. But, as in our example with children’s games, primary here is human activity and its goals. If you want to be understood by other people, it is better to know the language they speak.

We have spoken about society; now let us turn our attention to the state. The state compels large groups of people on some territory to follow certain rules it has established, prohibiting all other rules and methods of resolving conflicts in those cases to which it lays claim. This circumstance (as well as the fact that all this is done to obtain income) makes it the owner of the territory, and in many matters also the owner of the people living on it. Here the same logic of voluntarism applies, and the beneficiary is always the state. The thesis “the law is the same for everyone” has here the same nature as in the case when I forbid “everyone” to smoke in my home.

At the same time, for people living in states, the process of creating and maintaining natural rules does not go away anywhere. As we said earlier, it occurs regardless of anyone’s will and intentions. The overwhelming majority, if not all, known social rules arose precisely in this way. The state, acting in the interests of an owner, not only issues voluntarist orders but also encroaches with them upon what is beyond its power by nature. This is the main content of the conflict between state and society.

Arseny Petrovich with his presumption of innocence gave us an excellent example of this conflict. What is the presumption of innocence? It is an important rule in the system of dispute resolution. A person is considered innocent until his guilt is proven. It was not Arseny Petrovich who invented this rule. No one “invented” it at all; it “appeared” as a result of evolution—that is, numerous attempts by many generations to create a system of conflict resolution that would suit as many people as possible in as many situations as possible. Without this rule, the entire system of conflict resolution does not work. That is, “abolishing” the presumption of innocence is possible only together with the system of conflict resolution. This does not mean that the presumption of innocence will continue to operate regardless. This means that actions committed after these changes are pure arbitrariness; they have nothing to do with law and no one is obligated to obey them.

With equal success, Arseny Petrovich could abolish, for example, verbs or adverbial participles. The destructive consequences of such ventures are perfectly obvious. If Arseny Petrovich managed to make everyone get rid of verbs and adverbial participles in their speech, information collapse would occur, because our language includes both verbs and adverbial participles, and without them, transmitting information is impossible. The same catastrophe would occur if anyone managed to truly “abolish” the presumption of innocence (those interested will easily find examples in history).

So, conclusions. First. When they speak of a law that is the same for everyone, or equality before the law (these two theses differ, but we are now speaking about where they coincide), they mean and often confuse two different situations. One arises in connection with objectively existing rules of human interaction, the second in connection with the voluntarist orders of an owner.

Second. Both situations are created by beneficiaries—in the first case, by those who use this rule for their purposes; in the second, by the owner who uses the rule to indicate how to behave with his property. For a better understanding of the difference, I would suggest speaking in the first case “the law is the same for each person,” in the second “the law is uniform for everyone.” That is, in the first case, each person who wishes to obtain certain benefits must acknowledge (join) a particular rule; in the second case, the rule is indifferent to your desires and applies to everyone who finds themselves on (or in) the property of some entity.

In the case of a free society, there is no systemic conflict between these two systems of rules. In the case of the state—there is, because the state interferes (and cannot help interfering) in rules that arise naturally. The state’s desire to be the owner of territory and people is compensated perhaps only by the sabotage and corruption of these very people. This situation can have only two solutions. The first: when the state wins—this is slavery, complete degeneration, and the transformation of people into animals. The second: when society wins, the conflict ceases, and Arseny Petrovich Yatsenyuk in his own home and on his own country plot with a perfectly clear conscience abolishes the presumption of innocence.

Tymoshenko, “Crime Without a Victim,” and Medieval Irish

The Tymoshenko case, besides various political and social lessons, contains a legal lesson. It is a wonderful illustration of a well-known legal problem. This problem is called “crime without a victim.”

Look—the Tymoshenko case has two main points. The first is called “the prosecutor’s office,” which menacingly brandishes the Criminal Code and accuses Tymoshenko of violating what the prosecutor’s office wrote in this code. The second point is called “Naftogaz.” This very “Naftogaz” claims that Tymoshenko, through her actions as prime minister, inflicted just such losses on “Naftogaz.” The combination of these two points within a single case is precisely an illustration of the problem I am discussing.

So, point one—the prosecutor’s office, or rather, the state. Let us set aside our political circumstances and our attitude toward them—all these Tymoshenkos, Yanukoviches, and the rest. Let us set aside the quality of the trial, let us assume that the court was unbiased and that Tymoshenko (or anyone) actually violated some letter of some law. And so what? Does this give the state the right to deprive a person of freedom? Think about the very essence of what is happening—the state punishes for violation of some norm that it itself adopted. Yes, it was a law. Yes, it was adopted following proper procedures. Yes, deputies are representatives of voters. But (setting aside the “nuances” well known to all of us in each of these points), what does any of this change in principle? What prevents the state from adopting any laws it wants and punishing for their non-compliance?

Hitler’s Germany, the Soviet Union, modern Ukraine, and other states thriving at the tail end of various rankings of various freedoms show that if the state seizes the right, then no limitation on lawlessness exists anymore. And “developed countries” should not delude themselves here either; their problem of “crime without a victim” applies even more.

Now let us take the second circumstance of the Tymoshenko case—the claim of “Naftogaz.” Here everything is clear and transparent. There is a party that considers itself aggrieved, and there is a defendant. If the court decides that the plaintiff is right, the defendant must compensate the aggrieved party for damages. This is law in its true sense. In this law, a statute or custom is merely a tool for establishing justice in clarifying relations between people. Feel the difference: in the first case, the law punishes for violation of itself; in the second case, it serves as a mechanism through which guilt is determined, and the guilty party compensates for it.

Law is precisely our “second case.” It arose as a tool for regulating relations between people, not between abstractions, which in our case are the state and the law. Consider why a person from whose actions no one suffered should sit in prison. Why is it very often the case that the aggrieved party in a criminal proceeding refuses claims, yet the court nonetheless throws the person into the slammer (this is a good international practice, not specific to us) on the grounds that he “violated the law.” What is the point of such a “law”?

If you inquire into the history of the matter, you will discover that the practice of “crime without a victim” is not that old. It began with “penalties to the crown,” and in its modern form has existed for about two hundred years—very little compared to how long law has existed. There is no systemic necessity (that this is, they say, the price of democracy, freedom, equality before the law, etc.) in the practice of “crime without a victim”; free societies managed perfectly well without it.

In Ireland, until it was conquered in the seventeenth century, there was no state in our sense. But there was law, and very developed law. One of the variants for resolving issues was this: if the court found someone guilty and the guilty party had to pay compensation but could not pay it, the “king” intervened. The “king” (or rather, the clan leader, since this person was not a sovereign of the territory) paid compensation to the aggrieved party and dealt with the guilty party himself. For example, he would take him to serve in the army for some time.

If we lived in a state governed by law, say, in medieval Ireland, there would be no “Tymoshenko case.” There would only be the claim of “Naftogaz,” and if Tymoshenko were found guilty, she would have to compensate for the damage. Compensating for damage would then be her problem—she would have to, unexpectedly for all her admirers, exercise property rights over the numerous estates and enterprises currently registered in the names of relatives, sell these estates and enterprises, borrow money from friends, acquaintances, and neighbors on her floor. And if that weren’t enough—she would have to go to the galleys, mines, or into slavery until the damage was compensated or a settlement was reached with the plaintiff. I don’t know about you, but this system seems just to me.