Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-5-4-14
Australia, Germany, Kenya, Costa Rica, Mexico, Russia, USA, Turkey, South Africa
澳大利亚、德国、肯尼亚、哥斯达黎加、墨西哥、俄罗斯、美国、土耳其、南非
{"title":"Constitutional watch: August—September 2021","authors":"","doi":"10.21128/1812-7126-2021-5-4-14","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-4-14","url":null,"abstract":"Australia, Germany, Kenya, Costa Rica, Mexico, Russia, USA, Turkey, South Africa","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"168 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115653503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-5-201-207
{"title":"Review of legal reasoning in the Russian Constitutional Court rulings Nos.1376-O, 2123-O, 2124O, 2125-O (2021)","authors":"","doi":"10.21128/1812-7126-2021-5-201-207","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-201-207","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117269368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-4-4-13
{"title":"Constitutional watch: June — July 2020","authors":"","doi":"10.21128/1812-7126-2020-4-4-13","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-4-4-13","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128340144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-1-100-127
Dmitry Shustrov
The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.
{"title":"Supra-constitutional norms in constitutional law","authors":"Dmitry Shustrov","doi":"10.21128/1812-7126-2021-1-100-127","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-1-100-127","url":null,"abstract":"The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124179824","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-5-176-200
{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos.30 P—40-P (2021)","authors":"","doi":"10.21128/1812-7126-2021-5-176-200","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-176-200","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123352657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-6-31-50
I. Pibaev, S. Simonova
The development and wide dissemination of new technological solutions lead to mainstreaming of algorithmic decision-making processes. Digital technologies become highly-demanded in state activity as well as social life and this gives the springboard for scientific discussion about the shift in the scope of constitutional rights and freedoms connected with extending and new limitation. Private data processing, content management, unfettered control over information and search results provide IT companies with huge powers concerning fundamental human rights. The article deals with some legal and ethic issues relating to the algorithms and artificial intelligence systems impact on the enforcement and the defense of constitutional rights. Taking into account the algorithmic nature and legal aspects as well as foreign practices the authors note the risks for civil, political and socio-economic rights. Special attention is given to the conceptualization of the ways the algorithms influence on legal status and human rights, justification of the suitable ways of reducing the risks connected with total algorithmization. The paper contains the study of the significance and extensive prospects of the ensuring the right to explanation in the context of the sense and reasons of automated decisions in order to enhance their transparency and accountability. The authors note that in spite of the lack of legal rules regulating algorithmic communication some state make their own steps on the way toward harmonization of algorithms with human rights and legal procedures. It is emphasized that state rejection in human translation of algorithmic processes may lead to further privatization of public powers in human rights protection. At the end of the paper the possible solutions of the discussed problems are suggested through the lens of ethic principles worked out in partnership with religious clerics. The mutual ethic declaration was signed by IBM, Microsoft and Roman Catholic Church and this fact strengthens confidence in the future of artificial intelligence as an instrument not only for narrow groups but for all of mankind.
{"title":"Algorithms in the mechanism of implementation of constitutional rights and freedoms: challenges in the digital age","authors":"I. Pibaev, S. Simonova","doi":"10.21128/1812-7126-2020-6-31-50","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-6-31-50","url":null,"abstract":"The development and wide dissemination of new technological solutions lead to mainstreaming of algorithmic decision-making processes. Digital technologies become highly-demanded in state activity as well as social life and this gives the springboard for scientific discussion about the shift in the scope of constitutional rights and freedoms connected with extending and new limitation. Private data processing, content management, unfettered control over information and search results provide IT companies with huge powers concerning fundamental human rights. The article deals with some legal and ethic issues relating to the algorithms and artificial intelligence systems impact on the enforcement and the defense of constitutional rights. Taking into account the algorithmic nature and legal aspects as well as foreign practices the authors note the risks for civil, political and socio-economic rights. Special attention is given to the conceptualization of the ways the algorithms influence on legal status and human rights, justification of the suitable ways of reducing the risks connected with total algorithmization. The paper contains the study of the significance and extensive prospects of the ensuring the right to explanation in the context of the sense and reasons of automated decisions in order to enhance their transparency and accountability. The authors note that in spite of the lack of legal rules regulating algorithmic communication some state make their own steps on the way toward harmonization of algorithms with human rights and legal procedures. It is emphasized that state rejection in human translation of algorithmic processes may lead to further privatization of public powers in human rights protection. At the end of the paper the possible solutions of the discussed problems are suggested through the lens of ethic principles worked out in partnership with religious clerics. The mutual ethic declaration was signed by IBM, Microsoft and Roman Catholic Church and this fact strengthens confidence in the future of artificial intelligence as an instrument not only for narrow groups but for all of mankind.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"209 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127694364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-5-26-38
A. Avtonomov
The article examines the genesis of the Constitution of New Zealand, the formation of its constituent parts and the main sources of constitutional law; it generally profiles the Constitution. The article shows the mutual influence and interweaving of the components of the unconsolidated Constitution of New Zealand in contemporary conditions. In particular, the constitutional provisions presented in the Treaty of Waitangi are examined, and attention is focused on the contemporary problems of its current interpretation and application, although the historical context of its drafting and conclusion is shown. The article deals with the interpretation of some basic constitutional terms when using different official languages of New Zealand, first of all Maori and English tongues. In this regard, one of the urgent issues, which are being discussed quite widely in New Zealand, is the discrepancies found in the wording of fundamental constitutional provisions in the official texts of the Treaty of Waitangi in these two languages. The article examines a number of court decisions containing constitutionally significant precedents (stare decisis), including those on the application of the Treaty of Waitangi. The article shows how, as a result of the judicial complex interpretation of the Treaty of Waitangi and the legislation, the principles of the said Treaty have been developed. The article provides a general characterization of the laws and other regulatory legal acts that together form part of the unconsolidated Constitution of New Zealand. Special attention is paid to the 1986 Act of Constitution because of the importance of the constitutional issues regulated by this statute. The development of constitutional provisions in the 1986 Act of Constitution in comparison with the previous 1852 Act of Constitution is presented. At the same time, the laws, which are considered in New Zealand as an integral part of the Constitution, are summarized. The place and role of the laws of the United Kingdom of Great Britain and Northern Ireland in the modern Constitution of New Zealand are determined. Along with this, other regulatory legal acts that form part of the Constitution are being investigated, in particular, the Letters Patent and the Cabinet Manual. The article also presents New Zealand customs, which have constitutional significance, including conventional norms, and the peculiarities of their application.
{"title":"New Zealand Constitution: a fusion of legislative acts, case law (stare decisis), customs (conventions) and treaties","authors":"A. Avtonomov","doi":"10.21128/1812-7126-2020-5-26-38","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-5-26-38","url":null,"abstract":"The article examines the genesis of the Constitution of New Zealand, the formation of its constituent parts and the main sources of constitutional law; it generally profiles the Constitution. The article shows the mutual influence and interweaving of the components of the unconsolidated Constitution of New Zealand in contemporary conditions. In particular, the constitutional provisions presented in the Treaty of Waitangi are examined, and attention is focused on the contemporary problems of its current interpretation and application, although the historical context of its drafting and conclusion is shown. The article deals with the interpretation of some basic constitutional terms when using different official languages of New Zealand, first of all Maori and English tongues. In this regard, one of the urgent issues, which are being discussed quite widely in New Zealand, is the discrepancies found in the wording of fundamental constitutional provisions in the official texts of the Treaty of Waitangi in these two languages. The article examines a number of court decisions containing constitutionally significant precedents (stare decisis), including those on the application of the Treaty of Waitangi. The article shows how, as a result of the judicial complex interpretation of the Treaty of Waitangi and the legislation, the principles of the said Treaty have been developed. The article provides a general characterization of the laws and other regulatory legal acts that together form part of the unconsolidated Constitution of New Zealand. Special attention is paid to the 1986 Act of Constitution because of the importance of the constitutional issues regulated by this statute. The development of constitutional provisions in the 1986 Act of Constitution in comparison with the previous 1852 Act of Constitution is presented. At the same time, the laws, which are considered in New Zealand as an integral part of the Constitution, are summarized. The place and role of the laws of the United Kingdom of Great Britain and Northern Ireland in the modern Constitution of New Zealand are determined. Along with this, other regulatory legal acts that form part of the Constitution are being investigated, in particular, the Letters Patent and the Cabinet Manual. The article also presents New Zealand customs, which have constitutional significance, including conventional norms, and the peculiarities of their application.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131782430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-4-68-96
A. Chirninov
Contemporary scholarship has consistently sought to generalize knowledge since the universality of scholarly knowledge is an indispensable attribute of scholarly knowledge itself. Nevertheless, these efforts sometimes encounter obstacles posed by the presence of objects, knowledge about which is difficult to universalize, primarily because of their functional dependence on other processes and phenomena. This is exactly the case with argumentation. Arguing that functions to be performed by argumentation vary considerably depending on the nature of the activity that argumentation serves, this article explores how the process of justification of constitutional judgments contributes to the development and functioning of the legal order and thereby reveals the purpose and functions of constitutional argumentation. Having synthesized the existing knowledge on judicial review of legislation with the possibilities that the means of argumentation provide to courts, and having indicated which judicial review tasks can be performed exclusively by resorting to argumentation, the author identifies the normatively correcting, normatively guiding (prognostic), cognitive and legitimizing functions of constitutional argumentation. This article gives specific reasons for highlighting the aforementioned functions and further details their substance. The author also focuses on the nodal nature of the cognitive function of constitutional argumentation, which is being implemented in three relatively autonomous dimensions: constitutionally due, normatively present, and being. Given that constitutional argumentation performs a normatively correcting function and that a constitutional dispute is characterized by a divergence of interests of its participants, the author refuses to consider the audience’s persuasion and its assent to a given thesis as an invariant purpose of constitutional argumentation. The article concludes that constitutional argumentation, because of its dependence on judicial review tasks, is aimed primarily at the formation of adequate understanding of constitutionally so that constitutional review organs may correctly and legitimately assess the constitutionality of a challenged law.
{"title":"To persuade or not to persuade? On the purpose and functions of constitutional argumentation","authors":"A. Chirninov","doi":"10.21128/1812-7126-2021-4-68-96","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-4-68-96","url":null,"abstract":"Contemporary scholarship has consistently sought to generalize knowledge since the universality of scholarly knowledge is an indispensable attribute of scholarly knowledge itself. Nevertheless, these efforts sometimes encounter obstacles posed by the presence of objects, knowledge about which is difficult to universalize, primarily because of their functional dependence on other processes and phenomena. This is exactly the case with argumentation. Arguing that functions to be performed by argumentation vary considerably depending on the nature of the activity that argumentation serves, this article explores how the process of justification of constitutional judgments contributes to the development and functioning of the legal order and thereby reveals the purpose and functions of constitutional argumentation. Having synthesized the existing knowledge on judicial review of legislation with the possibilities that the means of argumentation provide to courts, and having indicated which judicial review tasks can be performed exclusively by resorting to argumentation, the author identifies the normatively correcting, normatively guiding (prognostic), cognitive and legitimizing functions of constitutional argumentation. This article gives specific reasons for highlighting the aforementioned functions and further details their substance. The author also focuses on the nodal nature of the cognitive function of constitutional argumentation, which is being implemented in three relatively autonomous dimensions: constitutionally due, normatively present, and being. Given that constitutional argumentation performs a normatively correcting function and that a constitutional dispute is characterized by a divergence of interests of its participants, the author refuses to consider the audience’s persuasion and its assent to a given thesis as an invariant purpose of constitutional argumentation. The article concludes that constitutional argumentation, because of its dependence on judicial review tasks, is aimed primarily at the formation of adequate understanding of constitutionally so that constitutional review organs may correctly and legitimately assess the constitutionality of a challenged law.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133217955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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