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Legitimate or Illegitimate?

The Question Ukraine Raises for Emancipatory Politics

by ELLIOT SPERBER

While the question of whether the Ukrainian government was deposed by an illegitimate coup or by a legitimately democratic movement is of paramount importance, what is arguably more pressing is the task of figuring out how to distinguish the illegitimate coup from the legitimate, popular insurrection in the first place. To be sure, it is not only crucial to be able to distinguish genuinely emancipatory, egalitarian political movements from their mere semblance in order to offer these support; it is, in general, vital to be able to recognize reactionary movements for what they are before – in the deep confusion of quickly-changing events – these manage to install themselves in positions of unassailable power.

While this question is being raised in light of the events unfolding in Ukraine, it is important to note that if existing climatological trends continue (as they are no doubt expected to), and if political and economic inequalities continue to grow – and because there is no dearth of interested, authoritarian organizations in the world – it is not outside the realm of the probable that, as a practical matter, we will be called upon to distinguish between authoritarian and egalitarian uprisings in our own communities in the not too distant future.

In analyzing the situation in the Ukraine, what deserves particular consideration is the fact that those maintaining that the “democratically-elected” Yanukovych government was illegitimately overthrown and those arguing that the government was legitimately deposed by an exercise of popular sovereignty each appeal to the Rule of Law to bolster their claims. This is significant for a variety of reasons (not least for what it may portend for elected leaders – like Obama – who regularly violate the Rule of Law). Law, or legality, however, is not the sole criterion for political legitimacy. Indeed, since at least the days of Solon (c. 600 BCE), law has, among other things, performed the dual function of limiting as well as enabling tyrannical regimes. That is, in addition to supporting the arbitrary Orders of tyrants, law has also, over the course of history, been instrumental in advancing, to some degree, egalitarian social conditions. Yet law, as such, must be distinguished from the Rule of Law.

An ancient legal meta-norm (a norm, or rule, that governs still other norms, rules, or laws) the Rule of Law maintains that in order for some system of laws to have any legitimacy, its laws must be enforced against all people. In other words, the Rule of Law holds that no one can be above the law. And what should transpire should some government or other violate this meta-norm, the Rule of Law? According to theories of popular sovereignty and international law, the violation of the Rule of Law may result in the loss of the legitimacy of that particular order.

Unless the law is itself limited by various norms, human rights, and other conceptualizations of justice, though, the mere adherence to the law is hardly distinguishable from the rule of force. As such, adherence to the law may be a necessary precondition for political legitimacy, but it is not necessarily sufficient to confer legitimacy. For better or worse, the general notions of justice that legitimize law these days tend to be grouped under the rubric of, for lack of a better term, Democracy.

Like law, the concept of democracy is multi-sided. Beyond its form – its ostensibly majoritarian structure (manifesting in such institutions and practices as voting – which does little more than support the notion that ‘might makes right’) – democracy also has a content. This content can be, in the language of the French Revolution, designated by the ideals of equality, or egalitarianism, liberty, etc.; or, in the language of the Declaration of Independence of the United States, by such ideals as “inalienable rights.” In other words, beyond its observable, formal qualities, democracy’s content (its reason for being – egalitarianism, human rights, etc.), in concert with the Rule of Law, historically provided and continues to provide criteria for determining whether a given regime possesses or lacks legitimacy.

And though the concept of democracy, among others, has been defective historically (excluding women, among others, from the notion of “the people”), and though the 20th century concept of human rights is notoriously problematic (and can be validly regarded as either tautological or non-sensical), it is nevertheless instructive to refer to a critical conceptualization of egalitarianism, and a critical notion of inalienable human rights, in order to not only assess the situation in Ukraine, but to distinguish, in general, between genuinely egalitarian, democratic insurrections and their authoritarian perversions.

It is easy enough to recognize that, with his persecution of popular dissent, his widespread corruption, and his other abuses of power the deposed Yanukovych was no champion of human rights or egalitarianism. Though he may not have enjoyed any legitimacy according to a strict reading of the Rule of Law, this should not, however, obscure the fact that the opposition (in pursuing an agenda involving the privatization of the Ukrainian public’s resources) are treating as alienable (for sale) resources that, insofar as they are necessary (though not necessarily sufficient) preconditions for an actual political and economic democratization, are moving not toward but away from any meaningful democratization of Ukrainian society.

In other words, the privatization (by the now installed opposition) of the very infrastructure required for an actually just, egalitarian society precludes the extension of the public sphere required for political and economic democratization. Rather, than being made available to the public – to support the public sphere – these resources will be limited. Privatized, they will be all but given to the rich and sold back to “the people” of Ukraine in a manner that experience repeatedly demonstrates is neither egalitarian, nor democratic.

As such, the conflict in Ukraine should not be regarded as simply one between autocratic concentrations of power on the one hand, and any meaningful notion of democracy on the other. The conflict, rather, should be recognized for what it presently appears to be – a struggle between the dictates of a more or less concentrated autocracy and the dictates of the market.

Moreover, we should not overlook the fact that the market – which strives to make everything for sale (i.e. alienable) – is diametrically opposed to the realm of human rights that are said to be inalienable, or not for sale. That is, the dictates of the market (capitalism) are intrinsically contrary to an actual democratic politics: the struggle between the reign of what is alienable (what is privatizable and for sale) is absolutely contrary to that which is inalienable (not only human rights, but the conditions – the infrastructure of actual democracy – that are their precondition).

In appealing simply to the Rule of Law, egalitarian and authoritarian arguments alike each lead to the conclusion that the multiple violations of international law perpetrated by Yanukovych, and by Obama for that matter (with his illegal drone strikes, among other breaches of international law), not only delegitimize each one’s respective regime but furthermore demand that each stand trial in The Hague for war crimes as well. Why not?

Unless we are willing to submit ourselves to the worst forms of authoritarian violence, however, we would need to have convincing evidence of the commitment that such a radical movement had (beyond conformity to the mere Rule of Law) to an actually egalitarian, actually democratic politics – a commitment tested by the practical efforts such a movement would take toward extending the public sphere and instantiating, among other things, the elimination of consumer and student loan debt, the extension of human rights as well as their preconditions – such as universal housing, universal health care, universal education, and so on – and, generally, manifesting a commitment to the concrete production and reproduction of the concrete preconditions for actual peace, justice, and democracy. Needless to say, a commitment to privatization and austerity – not to mention nationalism, militarism, etc. – just does not cut it. Absent evidence of such actually democratic efforts, no political movement in Ukraine, or anywhere else in the world for that matter, should be recognized as legitimate.

Elliot Sperber is a writer, attorney, and contributor to hygiecracy.blogspot.com He lives in New York City, and can be reached at elliot.sperber@gmail.com, and on twitter @elliot_sperber