Drobovych on Service Terms, Military Democracy, and Challenges to Freedom Preservation

The logic of societal life, Ukrainian legislation, and the Constitution of Ukraine predominantly remains within the confines of peacetime, even as war has become an integral part of our reality. Most normative legal acts that govern the fundamentals of life in Ukraine—such as taxes, security, economic relations, military service, humanitarian, and social issues—treat war as an exception, an extraordinary situation that has suddenly become a reality. Only in a few documents, where war is acknowledged as a reality, attempts are made to regulate it; however, these are usually either symbolic approaches or 'patchwork amendments' to old laws that do not address urgent problems.

This situation persists despite the fact that we have lived in a state of war for nearly a third of our independence. The formally temporary nature of martial law serves as a legal confirmation that the social contract in Ukraine has yet to be updated to reflect the realities of war. We continue to operate under a version of the contract born in the late 1990s, which does not meet modern challenges.

The informal convention of coexistence among Ukrainians at that time looked like this: the state does not overly compel people to fulfill their civic duties, and citizens, in turn, do not demand much from the state regarding the fulfillment of its functions. This led to a casual attitude among millions towards paying taxes, devaluation of military service, and low interest in participating in state affairs.

Consequently, no one particularly demanded a combat-ready army, honest civil servants, high social standards, or a clear roadmap for the future from the state. If we compare this to the imagery of Thomas Hobbes, it was a sluggish Leviathan, slowly drifting towards Europe, trying to avoid any burdensome movements.

The situation began to change after the Orange Revolution and the Revolution of Dignity, when more and more conscious citizens took responsibility for monitoring changes in power, geopolitical direction, budgetary filling, and state defense. This led to increased demands on the state, particularly regarding the protection of sovereignty, independence, Euro-integration, combating corruption, and the inadmissibility of arbitrary violence against citizens.

It was during this time that neighboring Russia, experiencing a deep crisis, decided to carry out military aggression against Ukraine, perceiving our statehood as a threat. Everything that followed is now officially referred to as the War for Ukraine's Independence.

In my previous reflections, I raised the question of the common features of a new social contract, who its parties are, and why it is needed. In this text, I will attempt to outline one possible variant of such a contract.

As we live in times of war and wish to remain a democracy, we need a military democracy. How does it differ from peacetime democracy? First and foremost, it is characterized by attitudes towards war and the military, as well as the transition of all spheres of life to military rails while preserving the essential features of a democratic state. Here lies the main contradiction and source of social tension: when war and state preservation become the primary tasks, all other matters recede into the background.

In peacetime, the priority is prosperity, happiness, and the free development of citizens, while in wartime, the priority shifts to the preservation of the state. As Hannah Arendt noted, in the event of losing the state, no one guarantees even basic rights to a person, let alone happiness or wealth.

The transition to military rails always implies a certain curtailment and redistribution of citizens' rights and freedoms. This is due to the fact that the state lacks the institutional capacity and time to properly administer all democratic procedures while simultaneously fighting for survival. Such curtailment reduces the possibility for an aggressor to exploit democratic procedures against the victim, for instance, to disrupt mobilization or gather information about military facilities.

Managing military formations and implementing effective measures in the interests of defense are generally incompatible with granting each individual equal voting rights, broad oversight of administrative decisions, publicity, and accountability. This is particularly relevant if a long period of infiltration by hostile agents into power structures preceded the war. Thus, it is quite likely that those acting under the guise of political opposition may be interested in a swift military defeat of the country.

This understanding of the connection between defense capability and the curtailment of certain democratic freedoms is confirmed by global practice. In most countries, martial law is accompanied by temporary restrictions on citizens' rights for the operational implementation of security measures. However, it is important to note that the architecture of the modern world, international law after World War II, and the UN system were created in such a way that wars should not start at all, and if they do, they should not last long.

The logic of the UN Charter states that if any country becomes an aggressor, all others must unite and take urgent measures to stop the aggression. Unfortunately, reality often proves to be more complex, and we, as a country experiencing war, must find a balance between the necessity of defense and adherence to democratic values.