Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-5-76-117
Elena Gritsenko
The differences in the interpretation of the direct effect of a constitution are mainly caused by the peculiarities of understanding the essence of the constitution and the rule of law, the relation between the national, supranational and international law in a legal system, the specifics of the perceived constitutional concept of basic rights, the limits of private autonomy and the action of constitutional rights in public and private relations. Furthermore, a model of constitutional review and the national judicial system play a key part. The American approach, based on the distinction between common law and constitutional law, creates difficulties in the constitutionalization of the common law. These problems, along with the peculiarities of American federalism, are reflected in the state action doctrine as a tool outlining the mechanisms and limits of constitutional rights and the state’s duties to protect them. However, the solution of the question about the horizontal application of the Constitution depends, rather, not on objective criteria, but the discretion of the court. A different model of the direct action of the Constitution and basic rights has been developed in the German legal system. The Federal Constitutional Court of Germany opened the way for the constitutionalization of sectoral legislation, as well as for the recognition of the mediated horizontal action of constitutional rights in private relations. Post-socialist states developing within the continental legal family, mostly without any reservations, accepted the idea of direct action of the Constitution and fundamental rights in vertical and horizontal relations. This is largely due to the socialist tradition: the Constitution is not perceived as an act addressed to the state, but is regarded as an act addressed to the whole society. In this regard, the current Russian Constitution enshrines the universal obligation for public and private actors to observe the Constitution and allows it to be applied in private relations. The principle of the direct effect requires the court to detect possible conflicts and solve them, using available constitutional means. This mechanism of courts applying the Constitution still needs fine-tuning. In this regard, the issue of ensuring that courts apply the Constitution continues to be a challenge for Russia.
{"title":"Direct Effect of the Constitution: Specific Features of the Russian Model from a Comparative Perspective","authors":"Elena Gritsenko","doi":"10.21128/1812-7126-2021-5-76-117","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-76-117","url":null,"abstract":"The differences in the interpretation of the direct effect of a constitution are mainly caused by the peculiarities of understanding the essence of the constitution and the rule of law, the relation between the national, supranational and international law in a legal system, the specifics of the perceived constitutional concept of basic rights, the limits of private autonomy and the action of constitutional rights in public and private relations. Furthermore, a model of constitutional review and the national judicial system play a key part. The American approach, based on the distinction between common law and constitutional law, creates difficulties in the constitutionalization of the common law. These problems, along with the peculiarities of American federalism, are reflected in the state action doctrine as a tool outlining the mechanisms and limits of constitutional rights and the state’s duties to protect them. However, the solution of the question about the horizontal application of the Constitution depends, rather, not on objective criteria, but the discretion of the court. A different model of the direct action of the Constitution and basic rights has been developed in the German legal system. The Federal Constitutional Court of Germany opened the way for the constitutionalization of sectoral legislation, as well as for the recognition of the mediated horizontal action of constitutional rights in private relations. Post-socialist states developing within the continental legal family, mostly without any reservations, accepted the idea of direct action of the Constitution and fundamental rights in vertical and horizontal relations. This is largely due to the socialist tradition: the Constitution is not perceived as an act addressed to the state, but is regarded as an act addressed to the whole society. In this regard, the current Russian Constitution enshrines the universal obligation for public and private actors to observe the Constitution and allows it to be applied in private relations. The principle of the direct effect requires the court to detect possible conflicts and solve them, using available constitutional means. This mechanism of courts applying the Constitution still needs fine-tuning. In this regard, the issue of ensuring that courts apply the Constitution continues to be a challenge for Russia.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"4 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":"122058389","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: 10.21128/1812-7126-2020-5-39-55
V. Przhilenskiy
The paper substantiates the thesis that the distinction between proactive and the reactive rulemaking [lawmaking] becomes much more distinct and significant in crisis periods of societal development. In such periods, when social systems face huge challenges, the corresponding transformation of legal systems either follows the logic of preserving existing institutions and values (reactive law), – alternatively – goal-setting is based on lawmaking aimed at transforming the social reality (proactive law). Both proactive and reactive lawmaking can come into conflict with the existing constitution, moving society to change it by bringing it into compliance with changed goals and values or changed social realities. In this regard, the fundamental differences between proactive law and reactive law are determined, based on the necessity of introducing these understandings into the conceptual space of social legal analysis. In addition, the concept of anticipatory rulemaking, which has become widespread in Russian legal publications, is analyzed, and the irrelevance thereof to the purposes of the research in question is shown. The concept of proactive law is analyzed in more detail and depth, resulting in identification and description of two main types of this kind of rulemaking. The first type, called pragmatic proactive law, is rulemaking based on practical objectives. This type is characterized by an intention to change social reality without affecting the values of the society being reformed through development and adoption of new laws. Unlike the first one, the second type is initiated by a process of value reassessment and abandonment of old ideals in favor of new ones. The desire to restore the lost correlation between the system of values and social practices gives birth to ethico-teleological proactive law or value-based rulemaking. The transformations in legal systems during the last decade are further considered and analyzed in the context of the major challenges whose impact entails the need to choose between proactive and reactive rulemaking, and – in the instance of proactive rulemaking – gives rise to a dichotomy of the pragmatic-goal-oriented type and the value-based type. It is concluded that it is necessary to include a conceptual-and-methodological model of analysis in the toolkit of analysis of the lawmaking policy of present-day Russia, especially in evaluating the consistency of innovations with constitutional identity.
{"title":"Proactive law and reactive law: transformation of legal systems in the face of great challenges","authors":"V. Przhilenskiy","doi":"10.21128/1812-7126-2020-5-39-55","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-5-39-55","url":null,"abstract":"The paper substantiates the thesis that the distinction between proactive and the reactive rulemaking [lawmaking] becomes much more distinct and significant in crisis periods of societal development. In such periods, when social systems face huge challenges, the corresponding transformation of legal systems either follows the logic of preserving existing institutions and values (reactive law), – alternatively – goal-setting is based on lawmaking aimed at transforming the social reality (proactive law). Both proactive and reactive lawmaking can come into conflict with the existing constitution, moving society to change it by bringing it into compliance with changed goals and values or changed social realities. In this regard, the fundamental differences between proactive law and reactive law are determined, based on the necessity of introducing these understandings into the conceptual space of social legal analysis. In addition, the concept of anticipatory rulemaking, which has become widespread in Russian legal publications, is analyzed, and the irrelevance thereof to the purposes of the research in question is shown. The concept of proactive law is analyzed in more detail and depth, resulting in identification and description of two main types of this kind of rulemaking. The first type, called pragmatic proactive law, is rulemaking based on practical objectives. This type is characterized by an intention to change social reality without affecting the values of the society being reformed through development and adoption of new laws. Unlike the first one, the second type is initiated by a process of value reassessment and abandonment of old ideals in favor of new ones. The desire to restore the lost correlation between the system of values and social practices gives birth to ethico-teleological proactive law or value-based rulemaking. The transformations in legal systems during the last decade are further considered and analyzed in the context of the major challenges whose impact entails the need to choose between proactive and reactive rulemaking, and – in the instance of proactive rulemaking – gives rise to a dichotomy of the pragmatic-goal-oriented type and the value-based type. It is concluded that it is necessary to include a conceptual-and-methodological model of analysis in the toolkit of analysis of the lawmaking policy of present-day Russia, especially in evaluating the consistency of innovations with constitutional identity.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"23 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":"127424125","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: 10.21128/1812-7126-2021-1-17-46
Dmitry Kireev
Democracy has many appearances. The principle of democracy is implemented in republics as well as monarchies, unitary states and federations. This article proposes a new dimension of democracy – the type of popular representation – which depends on the electoral system used in national parliamentary elections. The ownership of power in the state by the people is ensured by the functioning of a representative body elected by citizens and having exclusive authority to pass laws that are binding on all. In addition, the parliament participates in the formation of bodies of other branches of power and approves the budget. Thus, research into the manifestations of the institution of popular representation is important not only for countries with a parliamentary government, but also for all other states. The direct dependence of the composition of the legislature on the will of the people guarantees that the actions of the state are subordinated to the interests of this entity. An electoral system is used to identify this will of the people. However, the significance of this legal mechanism is not limited to the role of a guide between votes and parliamentary mandates alone. The electoral system is a “double-edged” instrument that can influence the exercise of power by the people. The purpose of this article is to analyse this influence and demonstrate the existence of three types of popular representation formed by different categories of electoral systems. Types of people’s representation arise as a result of the repeated application of a certain mechanism and the following establishment of the party composition of the parliament and party structure of the government. The established type of people’s representation is characterised by the varying degree of effectiveness of political parties in expressing and realising the interests of the people. In addition, the implementation of the principle of alternation of power and the functioning of the checks and balances are also dependent on the electoral system used. This article formulates a concept that makes it possible to differentiate the way democracy is developed in the state and to consider transparently the constitutional and legal consequences of the choice of the electoral system.
{"title":"The concept of types of popular representation","authors":"Dmitry Kireev","doi":"10.21128/1812-7126-2021-1-17-46","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-1-17-46","url":null,"abstract":"Democracy has many appearances. The principle of democracy is implemented in republics as well as monarchies, unitary states and federations. This article proposes a new dimension of democracy – the type of popular representation – which depends on the electoral system used in national parliamentary elections. The ownership of power in the state by the people is ensured by the functioning of a representative body elected by citizens and having exclusive authority to pass laws that are binding on all. In addition, the parliament participates in the formation of bodies of other branches of power and approves the budget. Thus, research into the manifestations of the institution of popular representation is important not only for countries with a parliamentary government, but also for all other states. The direct dependence of the composition of the legislature on the will of the people guarantees that the actions of the state are subordinated to the interests of this entity. An electoral system is used to identify this will of the people. However, the significance of this legal mechanism is not limited to the role of a guide between votes and parliamentary mandates alone. The electoral system is a “double-edged” instrument that can influence the exercise of power by the people. The purpose of this article is to analyse this influence and demonstrate the existence of three types of popular representation formed by different categories of electoral systems. Types of people’s representation arise as a result of the repeated application of a certain mechanism and the following establishment of the party composition of the parliament and party structure of the government. The established type of people’s representation is characterised by the varying degree of effectiveness of political parties in expressing and realising the interests of the people. In addition, the implementation of the principle of alternation of power and the functioning of the checks and balances are also dependent on the electoral system used. This article formulates a concept that makes it possible to differentiate the way democracy is developed in the state and to consider transparently the constitutional and legal consequences of the choice of the electoral system.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"119 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":"125153136","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: 10.21128/1812-7126-2020-3-63-81
Sergei Manzhosov
{"title":"Theory and practice of rotation in office: whose traditions does Russia follow?","authors":"Sergei Manzhosov","doi":"10.21128/1812-7126-2020-3-63-81","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-3-63-81","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"25 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":"134071054","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: 10.21128/1812-7126-2021-2-192-203
{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos.4-P – 9-P (2021)","authors":"","doi":"10.21128/1812-7126-2021-2-192-203","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-2-192-203","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"76 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":"131020889","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: 10.21128/1812-7126-2021-3-158-180
{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos. 10-P – 19-P (2021)","authors":"","doi":"10.21128/1812-7126-2021-3-158-180","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-3-158-180","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"94 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":"125198802","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: 10.21128/1812-7126-2021-5-118-137
T. Vasilieva
This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.
本文探讨了加拿大最高法院在宪法平等案件中适用人的尊严概念的方法的演变。传统上，在人权案件中，这一概念只会加强论点，表明侵犯行为影响到人的内在价值。只有在加拿大和南非才有应用这一概念作为确定歧视的标准的经验。1999年，在Law诉加拿大一案中，最高法院承认1982年《加拿大权利与自由宪章》第15(1)条的目的是保护人的尊严，并指出，歧视必须建立在评估一项计划或法律对人的尊严的影响的基础上。然而，在2008年的R. v. Kapp案中，最高法院指出，人类尊严概念的适用带来了困难，并给原告带来了额外的举证负担。并非巧合的是，歧视受害者倾向于向人权法庭和委员会寻求保护，因为这些法庭和委员会不使用以尊严为基础的检验标准。随后，加拿大最高法院拒绝使用人类尊严的概念作为确定歧视的标准。将人的尊严概念作为法律检验的失败经验表明，并非每一种理论上正确的法律建构在审判中都是有效的。
{"title":"The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights","authors":"T. Vasilieva","doi":"10.21128/1812-7126-2021-5-118-137","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-118-137","url":null,"abstract":"This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"86 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":"122733441","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: 10.21128/1812-7126-2019-5-90-112
S. Sheverdyaev, Alina Shenfeldt
{"title":"The specifics of the evolution of the concept of political corruption in Western and Russian political and legal discourse","authors":"S. Sheverdyaev, Alina Shenfeldt","doi":"10.21128/1812-7126-2019-5-90-112","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-5-90-112","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"59 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":"121969679","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: 10.21128/1812-7126-2020-3-148-160
{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos.9-P–15-P, 1-Z • 2020","authors":"","doi":"10.21128/1812-7126-2020-3-148-160","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-3-148-160","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"28 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":"117013179","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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