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The Fate of A Scholar at the Core of Constitutionalism 宪政核心学者的命运
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-5-157-175
A. Evseev, E. Egorova
The article is a detailed review of a collective monograph published in honor of W.Sadurski, a prominent Australian legal scholar of Polish origin. It illuminates the most important problems of concern today to the international legal community. In particular, it is about the coming to power in a number of EU countries of right-wing populists who demonstratively disregard liberal values and tolerant rhetoric; the problems of the EU’s existence within its current borders, aggravated after the UK’s secession from the Union; and the phenomenon of “illiberal democracy” as one of the most dangerous challenges facing the constitutional development of the countries of Central and Eastern Europe, especially Hungary and Poland. Special attention is paid to democratic backsliding, seen in the steady decline in rankings of post-socialist countries in various ratings of democratic accountability. The paper draws a conclusion about the general crisis that democratic statehood is experiencing on the European continent today and which is perhaps the most serious since the late 1930s. Also addressed is the broader use of various forms of direct democracy, beginning with nationwide and local referendums and ending with various types of plebiscites on confidence. A relatively new form of popular governance has been introduced by deliberative (consultative) democracy, for example in the case of Ireland’s Citizens’ Assembly, which is chosen by random selection and as vox populi gives parliamentary committees recommendations on the most acute and divisive social problems. The volume also illuminates rightist governments’ social-economic policies repudiating the 1990s’ widely accepted concept of the market’s invisible hand and relying on direct payments to the population (as in Poland’s “500+” program, Covid payments, and so on). The Polish case is separately examined, particularly in the context of the so-called ‘war’ with the Constitutional tribunal.
这篇文章是对一部为纪念波兰裔澳大利亚著名法律学者W.Sadurski而出版的集体专著的详细回顾。它阐明了当今国际法律界所关切的最重要问题。特别是,它与一些欧盟国家的右翼民粹主义者上台有关,这些民粹主义者公然无视自由价值观和宽容言论;欧盟在其现有边界内存在的问题,在英国脱离欧盟后加剧;“非自由民主”现象是中欧和东欧国家,特别是匈牙利和波兰,宪政发展面临的最危险挑战之一。报告特别关注民主倒退,这可以从后社会主义国家在民主问责制的各种评级中排名的稳步下降中看出。本文总结了民主国家在欧洲大陆所经历的普遍危机,这可能是自上世纪30年代末以来最严重的危机。还讨论了更广泛地使用各种形式的直接民主,从全国和地方公民投票开始,以各种形式的信任公民投票结束。协商(协商)民主引入了一种相对较新的人民治理形式,例如爱尔兰的公民大会,它是通过随机选择选出的,并作为人民呼声向议会委员会就最尖锐和分歧最大的社会问题提出建议。该书还阐明了右翼政府的社会经济政策,这些政策否定了上世纪90年代被广泛接受的市场看不见的手的概念,并依赖于对人口的直接支付(如波兰的“500+”计划、Covid支付等)。波兰的情况是单独审查的,特别是在与宪法法庭所谓的“战争”的背景下。
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引用次数: 0
The American common law and the will of the judiciary as a source of its binding force 美国普通法和司法机构的意志作为其约束力的来源
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-6-51-78
A. Grin'ko, K. Zharinov
The doctrine of precedent being recognized as an inherent part of the American legal system provokes a permanent discussion about the sources and nature of its binding force. The scholars continually examine the correlation between common and written law, especially, the U.S. Constitution as its paramount form. Some authors given the absence of stare decisis doctrine in the plain language of the Constitution tend to believe that common law is not included in the supreme law of the land and therefore, judges should follow it as a matter of their discretion. Others suppose that the doctrine of precedent was implied by the Founders in the structure and understandings of key terms that makes it binding on the judiciary. This Article attempts to suggest another approach to such problem. Considering the nature of binding force and the methods of its attribution to a legal doctrine (basing on the recent case-law) we conclude that the obligatory status of the stare decisis doctrine derives from the will of the judiciary rather than people or the legislature. It is the judicial community who decided to treat a precedent as binding on each of them. This fact makes third parties believe that such a precedent would be applied in case of potential proceedings and therefore, act in accordance with it. The declared conclusion is supported by the examination of such legal mechanisms as appellate review and judicial discipline process which enforce the doctrine regardless of one’s subjective attitude – that is essential for a rule to be binding. These findings suggest that further examination of written law as a source of common law seems to be impractical and it would be more reasonable to focus on the role of the judiciary and their willingness to enforce the stare decisis doctrine in future.
先例原则被认为是美国法律体系的固有组成部分,这引发了关于其约束力的来源和性质的长期讨论。学者们不断地研究普通法和成文法之间的关系,特别是作为其最高形式的美国宪法。一些作者考虑到在宪法的通俗语言中没有“从命原则”的原则,倾向于认为普通法不包括在国家的最高法律中,因此,法官应该根据自己的自由裁量权遵循普通法。另一些人则认为,先例原则是由开国元勋们在结构和对关键术语的理解中隐含的,从而使其对司法具有约束力。本文试图提出解决这一问题的另一种方法。考虑到法律约束力的性质及其归属于法律原则的方法(基于最近的判例法),我们得出结论,“从命原则”的强制性地位来源于司法机关的意志,而不是人民或立法机关的意志。是司法界决定将先例视为对他们每个人都有约束力的先例。这一事实使第三方相信,这种先例将适用于潜在的诉讼,因此,按照它行事。所宣布的结论得到对诸如上诉审查和司法纪律程序等法律机制的审查的支持,这些法律机制不论个人的主观态度如何都能执行原则- -这是规则具有约束力的必要条件。这些发现表明,进一步审查成文法作为普通法的来源似乎是不切实际的,更合理的做法是关注司法机构的作用,以及他们将来执行“先看后决”原则的意愿。
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引用次数: 0
Your body is not only your business: commentary on Poland’s Constitutional Tribunal Judgment of 22 October 2020 no.K1/20 你的身体不仅仅是你的事:对波兰宪法法庭2020年10月22日判决的评论K1/20
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-3-141-157
A. Shatilina
For about 30 years, the topic of abortion has remained a “bone of contention” between conservative and liberal members of Polish society. In October 2020, these discussions moved from the political and religious planes to the legal field: the Constitutional Tribunal of the Republic of Poland considered the issue of women’s right to “eugenic abortion”. The Constitutional Tribunal scrutinized the provisions of a specialized law, allowing the termination of pregnancy in case of a high probability of a severe and irreversible fetal malformation or an incurable disease threatening its life. As a result, in the Judgment of 22 October 2020 no. K1/20 the Constitutional Tribunal upheld the position of the applicants, a group of deputies of the Sejm, and declared the contested legal norms unconstitutional. This process was the center of attention of mass media and the reason of mass protests throughout Poland. This article is the commentary on the decision, that attempts to comprehend the premises of the decision, its substantive and procedural aspects, as well as the consequences. The author concludes that the main purpose of the decision is to constitutionalize the traditionalist state policy in the field of reproductive rights. This decision is difficult to analyze in isolation from political and religious factors. The article notes that the value of the “eugenic abortion” case is not limited to legal aspects. The Constitutional Tribunal tried not only to change approaches to the correlation of competing rights (the right of an unborn child to life and woman’s rights in the context of freedom of reproductive choice), but also to increase “chilling effect”. It is expressed in the phasing out of abortion on pain of criminal prosecution.
大约30年来,堕胎这个话题一直是波兰社会保守派和自由派成员之间的“争论焦点”。2020年10月,这些讨论从政治和宗教层面转移到法律领域:波兰共和国宪法法庭审议了妇女“优生堕胎”权利问题。宪法法庭仔细审查了一项专门法律的条款,该法律允许在极有可能发生严重和不可逆转的胎儿畸形或患有威胁其生命的不治之症的情况下终止妊娠。因此,在2020年10月22日的判决中,宪法法庭支持了申请人,即一群众议院代表的立场,并宣布有争议的法律规范违宪。这一过程是大众传播媒介关注的焦点,也是波兰各地发生大规模抗议的原因。本文是对该决定的评论,试图理解该决定的前提、其实质性和程序性方面以及后果。笔者认为,该判决的主要目的是使传统的国家政策在生育权利领域实现宪政化。这一决定很难脱离政治和宗教因素进行分析。文章指出,“优生堕胎”案的价值不仅限于法律方面。宪法法庭不仅试图改变对相互竞争的权利(未出生婴儿的生命权和妇女在生育选择自由方面的权利)的相互关系的处理方法,而且还试图增加“寒蝉效应”。这表现在逐步取消以刑事起诉为代价的堕胎。
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引用次数: 0
Local Communities as a Tool for the Development of Municipal Democracy: German Experience and Lessons for Russia 地方社区作为城市民主发展的工具:德国的经验和对俄罗斯的教训
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-5-74-88
A. Larichev, E. Markwart
Local government as a political, legal and social institution finds itself in a very difficult period of development in Russia. The long-established tendency of its subordination to the state has intensified today in connection with the newly adopted constitutional amendments. At the same time, it seems obvious that further “embedding” of local government into the state management vertical, in the absence of any positive effect in terms of solving socio-economic and infrastructural problems, will inevitably lead to other hard to reverse, negative results both for local government institutions and the system of public authority as a whole. The normal functioning of local government requires, however, not only the presence of its sufficient institutional and functional autonomy from the state, but also an adequate territorial and social base for its implementation. To ensure the formation of viable territorial collectives, especially in urban areas, it seems appropriate to promote the development of self-government based on local groups at the intra-municipal level. Such local groups can independently manage issues of local importance on a small scale (landscaping, social volunteering, and neighborly mutual assistance), and provide, within the boundaries of a local territory, due civil control over the maintenance by municipal authorities of more complex and large-scale local issues (repair and development of infrastructure, removal of solid household waste and more). At the same time, the development of local communities can by no means be a self-sufficient and substitutional mechanism, whose introduction would end the need for democracy in the full scope of municipal structures overall. In this regard, the experience of local communities’ development in Germany, a state with legal traditions similar to Russian ones, with a centuries-old history of the development of territorial communities and a difficult path to building democracy and forming civil society, seems to be very interesting. Here, the progressive development of local forms of democracy and the participation of residents in local issue management are combined with stable mechanisms of municipal government, and the interaction of municipalities with the state does not torpedo the existing citizen forms of self-government. At the same time, the experience of Germany shows that the decentralization of public issue management which involves the local population can only be effective in a situation where, in addition to maintaining a full-fledged self-government mechanism at the general municipal level, relevant local communities are endowed with real competence and resources to influence local issue decision-making. The role of formalized local communities in urban areas, as the German experience shows, can not only facilitate the decentralization of solving public problems, but can also help in timely elimination of triggers for mobilizing citywide supercollectives with negative agendas.
地方政府作为一个政治、法律和社会机构,在俄罗斯正处于一个非常困难的发展时期。由于新通过的宪法修正案,它从属于国家的长期趋势在今天得到加强。与此同时,似乎很明显,在解决社会经济和基础设施问题方面没有任何积极效果的情况下,地方政府进一步“嵌入”国家管理纵向,将不可避免地给地方政府机构和整个公共权力体系带来其他难以逆转的负面结果。然而,地方政府的正常运作不仅要求其在制度和职能上有足够的自主权,而且要求其实施有足够的领土和社会基础。为了确保形成可行的领土集体,特别是在城市地区,似乎应该在市内一级促进以地方团体为基础的自治的发展。这样的地方团体可以独立管理小规模的地方重要问题(景观美化、社会志愿服务和邻里互助),并在地方领土范围内,对市政当局维护更复杂和大规模的地方问题(基础设施的维修和发展、固体家庭废物的清除等)提供适当的民事控制。与此同时,地方社区的发展绝不可能是一种自给自足的替代机制,这种机制的采用将结束在整个市政结构的全部范围内实现民主的需要。在这方面,地方社区在德国的发展经验似乎非常有趣。德国是一个法律传统与俄罗斯相似的国家,有着数百年的领土社区发展历史,在建立民主和形成公民社会方面走了一条艰难的道路。在这里,地方民主形式的逐步发展和居民对地方事务管理的参与与市政府的稳定机制相结合,市政府与国家的互动并没有破坏现有的公民自治形式。与此同时,德国的经验表明,涉及当地人口的公共问题管理权力下放,只有在下述情况下才能有效:除了在一般市政一级维持一个成熟的自治机制外,有关的地方社区被赋予影响地方问题决策的真正能力和资源。正如德国的经验所表明的那样,城市地区正式的地方社区的作用不仅可以促进解决公共问题的权力下放,而且还可以帮助及时消除动员全市范围内具有负面议程的超级集体的触发因素。这种经验在俄罗斯的情况下似乎是有用和适用的。
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引用次数: 0
Constitutional justice and civil society in search of dialogue 宪法正义与民间社会寻求对话
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-4-17-40
Armen Dzhagaryan
The Russian constitutional justice is going through a stage of deep reforming. Both the nature of the participation of the Constitutional Court of the Russian Federation in the constitutional reform of 2020, as well as the content itself and regulatory consequences have exposed a serious value and institutional crisis of the identity of the Constitutional Court of the Russian Federation in the State-legal system. The main vector of the reform declared in order to “strengthen the role of the Constitutional Court of the Russian Federation” is essentially resulted from the authoritarian, not humanistic paradigm, and leads to the development of the integration of constitutional justice into a unified system of public power remaining without proper legal deterrence. The noted crisis of the identity of the constitutional justice, which reflects the general problems of Russian constitutionalism, is to a large extent a product and expression of a fundamental communicative constitutional crisis, failures in establishing a constitutional dialogue between the government and civil society. At the same time, constitutional justice is not only the object of this communication with its defects and dysfunctions but should act as one of its main subjects, it has a unique extremely important potential for implementing the values and practices of constitutional dialogue with civil society, especially in the conditions of post-socialism. The constitutional dialogue also characterizes the content side of the constitutional justice itself in its modern understanding. In this context, the article discusses both general issues related to the understanding of constitutional dialogue itself and its importance for constitutional justice, as well as some more specific problems of implementing the dialogic model of constitutional-judicial control in Russian realities. Determining the direction of the further evolution of the constitutional justice, which has a unique potential for self-transformation, in any case, is an important area of responsibility of civil society, which itself must remain resolute in organizing the constitutional dialogue, not avoid attempts to initiate it and insist on it.
俄罗斯宪法司法正在经历一个深刻的改革阶段。无论是俄罗斯联邦宪法法院参与2020年宪法改革的性质,还是其内容本身和监管后果,都暴露出俄罗斯联邦宪法法院在国家法律体系中的身份存在严重的价值和制度危机。为了“加强俄罗斯联邦宪法法院的作用”而宣布的改革的主要载体本质上是专制的,而不是人文主义的范式,并导致将宪法正义整合到一个统一的公共权力系统的发展,而没有适当的法律威慑。值得注意的宪法正义认同危机反映了俄罗斯宪政的普遍问题,在很大程度上是一种根本性的沟通性宪法危机的产物和表现,即政府与公民社会之间未能建立宪法对话。与此同时,宪政正义不仅是这种交流的客体,而且应该作为其主要主体之一,它具有独特的极其重要的潜力,可以实现与公民社会的宪政对话的价值和实践,特别是在后社会主义条件下。宪法对话在现代意义上也体现了宪法司法本身的内容方面。在此背景下,本文既讨论了对宪法对话本身的理解及其对宪法正义的重要性的一般问题,也讨论了在俄罗斯现实中实施宪法-司法控制的对话模式的一些更具体的问题。无论如何,宪法司法具有独特的自我转变潜力,确定其进一步演变的方向是公民社会责任的一个重要领域,公民社会本身必须坚决组织宪法对话,而不是回避发起和坚持对话的尝试。
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引用次数: 0
Review of legal reasoning in the Russian Constitutional Court rulings Nos.1102-O, 1107-O, 1108-O, 1106-O, 1341-O, 1344-O, 1345-O (2020) 俄罗斯宪法法院第1102- o号、1107-O号、1108-O号、1106-O号、1341-O号、1344-O号、1345-O号判决中的法律推理述评(2020)
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-4-161-169
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引用次数: 1
Review of legal reasoning in the Russian Constitutional Court rulings Nos.2966-O, 2971-O, 3271-O, 3272-O, 3274-O, 3275-O (2019) 俄罗斯宪法法院第2966- o、2971-O、3271-O、3272-O、3274-O、3275-O号判决中的法律推理述评(2019)
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-1-149-159
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引用次数: 0
Constitutional basis for public property in the context of the creation of a legal entity of public law 公共财产在公法法律实体创设背景下的宪法基础
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-5-134-149
V. Nizov
The article discusses problems of the constitutional regulation of property rights and property itself. The research has been narrowed down to the features of public property regulation in the Russian Federation. The relevance of the research is explained by the process of the reform in the public property administration in Russian Federation, which has transferring of the state property to some legal entities of public law as distinguished feature. The author proposes the historical analysis of the property regulation’s development and the role of the Constitution in this process. The comparative instruments are used to show the main preconditions and trends of public property regulation in Russia and other countries. The author argues the Russian Federation is going on the process of the property regulation construction and the modern stage sees the Constitution as a main axiological filter for that. Meanwhile, the Russian legal system has several obstacles in this way: the limitation of the direct force of the Constitution, the spoiled separation of power, etc. The importance of the system of the check and balances in the property administration is noted. Thus, the research explains the differences between the system of the separation of power in the United Kingdom, Ukraine, and Russia. The author discloses the distinguishing features of the public property the state needs to account in the process of the property transition to public law entities. The critic overview of detailed property regulation in the Constitution’s text is expressed. The author notes constitutional provisions that regulate property issues are features of the post-socialist states. The difference between property rights and sovereign rights is also enclosed in the article. The justification of the right to administrate public property is provided, the research explains the importance of the justification in public property administration and its role in democratic societies, especially in the Russian Federation. The privatization and decentralization of the public property administration are needed to be explained the effectiveness and stability of these decisions. Additionally, the author argues that public property must have more concrete regulation because it needs more complex rules for just and effective administration. The conclusion of the article explains the linkage between the constitutional ideal and the development of public property regulation.
本文论述了产权的宪法规制问题和财产本身的问题。研究范围已缩小到俄罗斯联邦公共财产管理的特点。俄罗斯联邦公共财产管理改革的过程以国有财产向一些公法法人转移为显著特征,说明了本研究的相关性。笔者对产权规制的发展历程进行了历史分析,并对宪法在这一过程中的作用进行了分析。本文采用比较工具来显示俄罗斯和其他国家公共财产管制的主要前提和趋势。作者认为,俄罗斯联邦正在进行财产规制的建设,现代阶段将宪法视为这一建设的主要价值过滤器。与此同时,俄罗斯法律体系在这方面也存在着一些障碍:宪法直接效力的限制、三权分立的破坏等。指出了物业管理中制衡制度的重要性。因此,本研究解释了英国、乌克兰和俄罗斯三权分立制度的差异。作者揭示了在财产向公法实体过渡的过程中,国家需要考虑的公共财产的特征。对宪法文本中详细的财产规定进行了批判性的概述。作者指出,规范财产问题的宪法条款是后社会主义国家的特征。财产权和主权的区别也包含在文章中。提供了公共财产管理权的正当性,研究解释了公共财产管理正当性的重要性及其在民主社会,特别是在俄罗斯联邦的作用。公共财产管理的私有化和权力下放需要解释这些决定的有效性和稳定性。此外,作者认为,公共财产必须有更具体的规定,因为它需要更复杂的规则来实现公正和有效的管理。文章的结语部分解释了宪法理想与公物规制发展之间的联系。
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引用次数: 0
Constitutional watch: February–March 2020 宪法观察:2020年2月至3月
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-2-4-17
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引用次数: 0
Review of legal reasoning in the Russian Constitutional Court judgments: Nos.38-P–41-P (2019), Nos.1-P–3-P (2020) 俄罗斯宪法法院判决中的法律推理审查:no .38- p - 41- p (2019), no .1- p - 3- p (2020)
Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-1-133-148
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引用次数: 0
期刊
Sravnitel noe konstitucionnoe obozrenie
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