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Ievgen Zvieriev
Kyiv-Mohyla Law and Politics Journal 4 (2018): 81–98
National University of Kyiv-Mohyla Academy
Legal Interpretation in Post-truth Society:
Legal Interpretation in Post-truth
Society: Ukrainian Case 1
Ievgen Zvieriev
National University of Kyiv-Mohyla Academy,
Abstract
East of Ukraine post-truth was not much in focus of Ukrainian scholars. The events
mentioned above have pulled the trigger of interest to the term in international
the consequences of post-truth practical application, Ukrainians have much to say on
interest concerned the area of law, and this article focuses on the role post-truth plays
as well as provide examples of its legal application in Ukrainian environment.
Key Words:
3
Introduction
“Post-truth” was selected the word of year in 2016 by Oxford Dictionaries, but its
It has been included
in other dictionaries and in textbooks and manuals. Many commentators, academic
and otherwise, have addressed and continue to address post-truth in their numerous
works in philosophy, linguistics, religion, culture, and law. Post-truth remains a major
1 The Author would like to express his thanks to Folke Bernadotte Academy for providing
possibility to fruitfully participate in “Local Self-Government and Rule of Law in Ukraine”
project which provided rich intellectual grounds for this article. Additionally the author
wishes to thank his numerous students whose participation in his teaching activities has also
English review.”
2
82
“Post-truth” may be a new adjective, but had it existed as an adjective since ancient
instead of appeals to reason. Indeed,
might have been through means that avoided or misstated the truth. Thus, the idea of
post-truth might not be fertile ground for new discoveries. Nevertheless, it cannot be
deeply into the linguistic or psychological foundations and attributes of post-truth. My
through legal interpretation.
cities and local NGO leaders and members who operate in the same Ukrainian cities.
example related to events that mainly took part in 2014 yet continue today.
Post-truth
Techniques for manipulating
has recorded religious, psychological, cultural, and many other forms of manipulation
3
does not seem to be new, while the appeal to emotions as a primary, and not auxiliary means
4 This is a very popular approach expressed in many sources, for example in this blog, accessed
Legal Interpretation in Post-truth Society: Ukrainian Case 83
whose bounds were limited only by the limits of the human imagination and credulity.
What is new is that these techniques were not called post-truth before.
is mostly due to the strong belief most members of the
humanity has made before, all the drawbacks humanity has had in the past, will not
be repeated. This approach is easily noticeable in the text and spirit of the United
as humanity should have learnt something from the ones it has already fought. Thus, it
as many other people who surrounded me shared my ideas, thus belonging with me
in this “information bubble.” All this has clear characteristics of post-truth within the
and dangers it may bring, and be ready for the consequences.
being perceived as a term with a negative condition. This is true in many cases, but it
a positive way. We do that when we show anti-tobacco posters to our kids who have
started smoking, we do that by playing sports with them, by involving them in our
day-to-day activities, sharing our experiences in applying whatever skills we may have.
In most cases we do wish to manipulate our kids, and to teach them some good and
6
Mezhdunarodnaya zhurnalistika 2018. Globalnye vyzovy, regionalnoe
partnerstvo imedia. Materialy VII Mezhdunarodnoi nauchno-prakticheskoi konferentsii
84
useful life values or life skills. In many of these circumstances we also appeal to our
Nevertheless, it is not that often that applying post-truth techniques under such
conditions will lead to some harm for our kids. Drinking alcohol occasionally has very
high chances to be picked up by our children, as is smoking, regardless of the amount
of anti-tobacco and anti-alcohol posters we show them.
However, the dangers of post-truth are that it is a very adaptable and multi-
functional mechanism, and thus it can easily be converted from achieving something
positive to quite the opposite.
Post-truth in Law
law, on how others understand it, and most importantly, on how the law should be
applied.
and legal reality and exists within them and with them. Most cases before a court are in
civil law tradition, the idea of creating the reality which most follows the interests of
the party is not new in legal practice. In fact, ideally the law must be concerned with
judicial independence, and many other principles. In fact, though, the lawyers usually
cases what lawyers call “truth” is simply the state when the other party is not able to
prove that your position is wrong. This is quite far from philosophic perception of
truth, however.
can be, and usually is, measured by the court or the arbitration tribunal. But is truth
something absolute, something static, something unchangeable at least under certain
of their concern. My personal view is that in the cases described, we are not dealing
with the truth. We are dealing with post-truth that competes with another post-truth
aiming to achieve the goals of each party. The truth is usually hiding between them and
hearings as well as in other settings where there is a competition of facts presented by
See more on truth in law in Andrei Marmor, “Truth in Law” USC Legal Studies Research Paper
11.3 (2011): 1–28 and numerous other sources.
Legal Interpretation in Post-truth Society: Ukrainian Case
truth in law we need to further elaborate on the nature of law, on what the law really is.
by everyone else. This poses more fertile ground for post-truth to be applied. This is
this incomprehensive list.
numerous works addressing this issue.
truth may have on law and their potential consequences.
empire is not the same as the law within a republic. It is hard not to admit that the law
examples could continue. And here comes the major issue of this part of the research.
and all of them could use any possible means to perform it. But they had to reveal their
own understanding of the concept. All of them completed this assignment and brought
their drawings to class.
It was interesting for me to see what my students think. By knowing how they
also provided me with valuable teaching material that was used later in the classroom
results were quite unexpected for me.
8 Zahalna
teoriya pravaGeneral Theory of Law
9 Zahalna teoriya prava
86
used an academic approach, others relied on metaphor. One of the students wrote a
human rights, nature (trees, grass, rivers, sea, and blue sky that resembled natural state
as legal rules as positivists mostly understand the law. Quite a few of them drew scales
drew something that resembled force.
The small number of images that resemble force were quite unexpected as most
people in Ukraine still follow the old Soviet approach and view the law as something
that appears in the uniform of a police inspector with certain charges to be applied
for a certain violation. During the Soviet era, courts were viewed and still are viewed
by many people as bodies whose primarily goal is to punish people for wrongdoings.
serving justice was almost non-existent in former Soviet Union and is still almost non-
Most of them already have part-time jobs, and quite a few are already engaged in legal
practice as paralegals mostly. They combine their jobs with studies, and due to the
harsh economic conditions Ukraine is in right now, we tolerate this to the extent it does
positivist approach to law, naming it a set of established rules which all the members of
the society must follow. Their drawings, however, were not as dogmatic. Many revealed
however). They explained orally that this is how they see justice. There were some who
turned their attention to human rights. One drawing expressly stated that the law must
include minimum of the moral values.
The political science students mostly provided stereotypic drawings and textbook
applied to achieve certain goals. Most strangely, one of the students who provided this
anything can be built on the clear sheet of paper that the law provides.
the perception of law by my students. Each group is living within their own information
Legal Interpretation in Post-truth Society: Ukrainian Case
political science students. This bubble is determined by their age, experience, and their
something they did not fully understand at that time. It is also quite natural that the
as it has much to do with personal feelings. They got the inverted facts that seemed
true but did not reveal the full truth (the case with viewing law as a tool, for example).
interpretation.
Legal Interpretation
Legal Interpretation course with the phrase: “Interpretation of
interpretation is itself an interpretation.” It is as true and as confusing as it may be.
process of extracting truth or substance or meaning out of something (the object of the
interpretation). Some adherents to this approach would also substitute construction
There are also views that interpretation is merely a result of the process. The majority
of scholars would combine the two approaches.
Interpretation has always been one of the vital skills for lawyers. It gives them
the possibility to master their work and to be able to defend a client or to make a just
decision or to provide a just sentence. It has always been a powerful tool. No wonder
that there were times in human history that legal interpretation became completely
10 Obshchaya teoriya prava igosudarstvaGeneral Theory of Law and State]
(Moscow: Norma, 2002), 491.
11
Virginia Law Review
12 Michael Moore, “Interpreting Interpretation,” in Law and Interpretation. Essays in Legal
Philosophy
13 Shugrina, Elena, Tekhnika yuridicheskogo pismaTechnique of Legal Drafting] (Moscow:
Interpretation and Meaning in the Renaissance: The Case of Law
88
both save lives and kill people. It can both do serious harm and provide important relief.
The importance of legal interpretation for this research is that it is a primary tool
applied by all those interested in establishing a post-truth “information bubble” that
would help them achieve their legal goals.
when old Soviet approaches were slowly replaced by the new ones. The paradox is
who were mostly taught by Soviet-trained teachers using textbooks that resemble an
who have just started their university path to a law diploma mostly perceive law as a set
of possibilities, not as a set of rules. They proved it in writing and orally and through
their drawings.
ideas. This audience would consider the idea of law as a possibility appealing, as it is
a worldwide trend for the students who have just left the school to be fed up with all
sorts of rules and start looking for something else to associate their understanding of
the law with.
Second, these students did not experience the totalitarian regulatory apparatus of
raised in the newly independent Ukraine that provided many more possibilities and
more recent times to be when post-truth failed and the information bubble that was
and not to simply follow. However, this dimension is formed by another information
bubble that has replaced the old one. All this is still subject to those who have applied
post-truth techniques before and continue to apply them by targeting primarily the
of the law.
fact that almost all the professors of my university (and though it is my alma mater,
Legal Interpretation in Post-truth Society: Ukrainian Case 89
the legal practice that most of these students were already engaged in and this formed
their view opposite to my expectations.
in the legal sphere of Soviet Ukraine still bring their fruits. Most people who make legal
decisions in Ukraine were trained in Soviet times, adhere to those values, and cannot
simply change because times and the country have changed.
various projects, one of them being “Local Self-Government and Rule of Law in Ukraine”
being conducted jointly by the Swedish Folke Bernadotte Academy and the National
University of Kyiv-Mohyla Academy and carried out by my department. The idea of
of the country and to promote rule of law values in these 12 selected municipalities.
To achieve this, the project hired a sociological agency that made its own research in
each city regarding the level of the acquaintance of local people with rule of law values.
and members, and ordinary people who appeared to be in the municipality building at
in each city, where we shared our academic knowledge on what rule of law is, how it
functions, and how they could apply it in their day-to-day activities. While doing this,
did this before the training and after the completion of the program. We have also
impression on what the ideas of our audience were.
a set of nice words not really meaning anything exact, not applicable to anything, and
(around 60%), of NGO members expressed the same idea. It was surprisingly strange
that we received these results regardless of the region where we held our trainings. The
results were similar in Eastern (traditionally pro-Russian and mostly Russian-speaking)
cities and Western (traditionally anti-Russian and mostly Ukrainian-speaking) cities.
Same applies to their perception of law which was revealed during trainings and
rules and regulations that aim mostly to forbid someone from doing something or to
14 Folke Bernadotte Academy, “Local Self-Government and Rule of Law in Ukraine,” accessed
90
told us that their perception of rule of law concept and of the concept of law itself had
changed due to their practical experience. One of the NGO leaders (who preferred not
feel the real essence of the rule of law, thus it should mean that what we thought rule
should have adhered to another position. Nevertheless, their practical experience had
provided the boundaries of information bubble they lived and worked in. This bubble
did not permit them to accept another point of view (overwhelming belief in rule
existing from the moment they got acquainted to it, while due to their nature, NGO
members would seemingly adhere to completely the opposite.
We have tried to break that bubble. We provided scarce but still existing Ukrainian
court decisions that applied rule of law as a real concept and not as a nice and trendy
(mostly neighboring states that had similar problems in transition from socialist-
they require in their work (including international treaties and relevant acts of national
of them still adhere to the idea that law is a mere set of oppressive regulations, and rule
hands who fear nothing. Not many sane people would want to be called idiots and be,
in fact, idiots.
their written responses after trainings. This also means that their post-truth reality was
unfortunately not much changed by our trainings. This is not a rare case, however. To
their views and activities). One of the representatives (who has also preferred not to
need a person or set of people who would do all the dirty work, get all the negative
consequences, and maybe give their life for those changes.” While there were some
Ukrainian society). These two experiments (the one with the students and the one with
Legal Interpretation in Post-truth Society: Ukrainian Case 91
their own set of instruments, mostly including fact-checking, conscience, and common
sense.
with negative consequences is the complexity of the means and instruments applied.
Moreover, these means and instruments should be applied jointly by the members of
which determine the prosperity of every society. He expressed this view in many of
ability of the members of society to distinguish truth from post-truth, to have access
truth is, and to forgive each other for any misconceptions. This aspect heavily relies on
the concept of trust as well.
What frightens me the most is that, contrary to the famous perception that the
younger people will bring the needed change, it seems that in most cases they choose
Ukrainian case). It frightens me that this seems to be the case when post-truth has
much more strength than the well-established means of combating it.
as the abovementioned examples reveal. The same way it applies to the way adults
scientists are supposed to be able to build mechanisms of social functioning in each
that goal. There are many other means they can use.
It may also be the age as these third-year students are not as young and full of
religious leader. My aim is to urge them to think for themselves and do everything
they wish to discover the truth and to be able to do that. My other important aim is
provides its own information bubble of theories, ideas, and their combinations. In fact,
Studway
16 Francis Fukuyama, Trust: The Social Virtue and the Creation of Prosperity (New York: Free Press
Paperbacks, 1996).
92
Post-truth, Legal Interpretation and Ukraine
associated with the Brexit campaign and the last presidential elections in the United
quite a while, and it still pops-up in the media occasionally.
post-truth battle. This battle is not over yet, by the way. This clash of ideas, ideologies,
it was very hard for me and to many other people who surround me to expect that my
sources.
There is a widely accepted view (which does not necessary mean that it is
state which existed around 9th-10th centuries with the capital in Kyiv and located at
were under the rule of Lithuania and Poland before they were conquered by the Russian
proclaimed its independence in 1991 and has been forming its new state since then.
Soviet Union rule with a communist ideology impacted both the state of Ukrainian
parts of that ideology myself.
The Guardian,
russia-crimea-sanctions-us-eu-guide-explainer.
Legal Interpretation in Post-truth Society: Ukrainian Case 93
Nevertheless, the Ukrainian state was formed on democratic principles on August
But all the societal processes stayed the same, more or less, as they were in Soviet
times. It is economic situation that changed. Most people lost their jobs and were more
concerned with surviving the sudden poverty than with thinking about communist or
anti-communist ideals. This was a time of high corruption, and high levels of violence
suddenly became poor, many of them wanted to return to communist rule. Their
questioned myself on the reasons for this.
that brought them so much trouble. My great-grandfather used to own a house with
kulak and served his
was killed somewhere around Vitebsk. We were not even informed where his grave
have told me our family was regularly visited by KGB agents who checked on whether
he may have returned. Having nothing left, both families miraculously survived the
Great Famine of 1932–1933 and managed to give birth to my grandparents. Having
People tend to remember the good moments of their lives. Some of them did not
Soviet times, these are usually expressed by people who lived in cities, not in villages.
employees of military factories that quit or almost quit production after the collapse of
Soviet Union. They were considered a privileged class at that time, and thus they have
life. Nevertheless, Soviet ideas being supplied by rich Soviet post-truth were present
to any other ideas.
94
Russians to jointly form one nation. This idea co-existed with the concurring idea of
Russians being regarded as the older brother and Ukrainians being the younger brother
old Soviet idea of the so-called “Soviet nation” and “Soviet folk,” the creation of which
was the main idea of that nation and many other appeals to the past. Most of this could
now be clearly called post-truth, as it mostly appealed to human emotions and was
quite successful, especially with the elderly. There are many more examples of the kind.
Time passed, and the ideas of some parts of the population changed. Nevertheless,
Post-truth, however, was not used for propaganda purposes only. There were clear
cases of post-truth methods being used in modern Ukrainian legal system. One of the
The facts preceding the case were the following. Ukraine had adopted its
Socialist Republic and established a presidential form of government with a strong
Most of the former presidential powers would go to the Parliament. This compromise
was a tough one. The decision was made in a revolutionary time with people on the
streets, and our parliament did not bother much with following of the procedure for
omitted due to lack of time, as these procedures are quite lengthy). The abovementioned
on the grounds of procedural breach while inserting the amendments. This decision
showed the dangers to which a post-truth legal environment may lead.
this.
election took place about 6 months before the decision was passed by the court. He
18
19
Míl’niky Práva v Stredoeurópskom priestore
20
Legal Interpretation in Post-truth Society: Ukrainian Case
provided him powers he was not initially elected with, and, from my point of view, this
the ideas of post-truth, although the link cannot easily be established.
an emotional trigger. Even though it is not a clear consideration, as the court has based
its decision purely on procedural grounds, we may be able to spot this emotional trigger
emotions. Justice is itself an emotional state of relief for an injured party. An injured
person turns to the court just for that.
is a form of justice in many cultures. This appeals to the emotional state, and thus may
qualify as post-truth methods. Moreover, by applying an emotional trigger, we may
mean here the mere absence of emotions in the place where they should have been
injustice instead of seeing signs of justice as the court did. It may simply not be just when
substituted by the casuistic decision of the constitutional court. This is clearly the breach
Mostly due to the complexity and timing of the hearings and due to the inertia and
general distrust in old Ukrainian court system, most of the population did not notice this
2014 could have happened back in 2010 had most of Ukrainian population been aware
of the decision and, most importantly, of the consequences it was about to bring.
This example is not the only one in the series of examples of how post-truth is
being used by Ukrainian court system. General courts have often applied post-truth
was shifted from the legal owner to the raiders. Quite a few of them were very
successful for the raiders.
Ukraine remains very vulnerable for post-truth as a country, and Ukrainians
to many failures of the current government that many younger people are adopting
these ideas. The clear examples of that are my older law students, as well as younger
21
—
—
96
an answer to that as well. In most cases, the ones who admire such approaches do not
wish those methods to be applied to them. They wish them to apply to someone else.
Conclusion
and with the ones who are not able to clearly establish what a rightful truth paradigm
in societies of distrust.
My small experiments have shown me certain alarming notes. The fact that the
changed their ideas almost completely to the opposite to what they were taught and
would rather adhere to the reality in practice than to the ideas their professors shared
alarming. As for me, it shows that contrary to our expectations that the youth will bring
changes, the results unfortunately show that they would rather adapt to the existing
should be the ones to bring change. However, they do the opposite instead (most of
them). Instead of trying to establish new and modern practices, they mostly go with the
the real war we always have a hybrid information war which applies post-truth as its
important of those.
the most important contribution should come from education. This does not mean
that education will eliminate all the possible cases when post-truth may apply all its
negative features. There are many examples of well-educated people becoming victims
people to think critically, to have wide expertise and experience, and to be tolerant of
opposing views (while it does not necessary means that the person has to fully agree
with them). Another important contribution education provides is the knowledge of
facts. The person who is aware that 2+2=4 may not be easily fooled and made sure that
Legal Interpretation in Post-truth Society: Ukrainian Case
by post-truth methods. Thus, education has always been a treasure that provides or
opens additional possibilities. That is why it is usually very expensive and should be
my students.
with his idea that trust is the means to prosperity for every society. This means that
members of the society need to trust each other in issues they are not fully competent
in and support each other. This trust and support will in most cases leave no room for
own self, while open to possible changes and critical of the possible ways to harm that
time-management, as well as many other features we develop throughout our lives.
And the most important mean to combat post-truth is the simple desire to do
new, to address pre-existing problems in a new and critical way, to experiment, and to
not be afraid to fail in something as one of my U. S. high school teachers have said back
something.” This desire to combat post-truth should in fact be the initial step of this
uneasy process. There are many cases in this world when it is not taken, with the most
for many important inventions, it is much more known for its negative impact on
positive and negative impacts from its application in legal cases. Nevertheless, a well-
though, that post-truth is a very powerful tool that should be dealt with very carefully.
All the ideas about post-truth in law and generally were applied and still are
applied in my country. The state Ukraine is in right now is in many ways the result of
other nations facing similar issues as well as to the rest of them that may face them in
future because no one may ever be sure in this world what exactly happens tomorrow.
98
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—
—
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The Guardian,
Míl’niky Práva v
Stredoeurópskom priestore
3
Ievgen Zvieriev is a Senior Lecturer at the Faculty of Law, National University of
Kyiv-Mohyla Academy. He received his PhD from National University of Kyiv-Mohyla
of the 2018 Year” by National University of Kyiv-Mohyla Academy Faculty of Law in
June, 2018.
