Sravnitel noe konstitucionnoe obozrenie最新文献

{"title":"Problems of the concept “guarantor of the constitution”","authors":"M. Krasnov","doi":"10.21128/1812-7126-2021-2-15-45","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-2-15-45","url":null,"abstract":"The article critically analyses the concept of “guarantor of the constitution”. Briefly describing the history of the emergence of the concept, the author argues that it was originally understood too narrowly – only as a function of ensuring the stable functioning of the state apparatus. This is also how it is understood today. Meanwhile, even if the state apparatus is formally operating legally, this does not always mean that its operation is consistent with constitutional principles and values. The constitution is not simply an act of supreme legal force. It is imbued with constitutionalism, which boils down to the idea and practice of limiting power for the sake of the value of human dignity. In its turn, constitutionalism is secured by a number of principles and values, including pluralism. However, constitutionalism can also suffer from pluralism. The article speaks of two threats on this side: first, large-scale inter-party conflicts (both direct and “disguised” as conflicts between state bodies) and, second, the possibility of a political force aligned against constitutionalism gaining state power. Consequently, guaranteeing the constitution consists not only of ensuring the normal functioning of the institutions of public power, but also of protecting and defending the constitutional principles and values, which together represent constitutionalism. However, practice shows that presidents either neglect this “second part” or use the appeal to constitutional values to strengthen their own power. In the author’s view, this is due to the fallacy of the very model of a mixed (semi-presidential) republic, within which the concept of “guarantor of the constitution” emerged. The institution of the president in this model is positioned by doctrine as politically neutral and therefore above all branches of power. However, the neutrality of the president of a mixed republic is illusory, for he is a more or less active political actor and therefore incapable of fulfilling the role of guarantor of the constitution. The false presumption of presidential neutrality not only makes the institution of the guarantor ineffective, but also contributes to the authoritarian trend of the president.","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":"134619161","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}

{"title":"Forms of government and party systems in Latvia, Lithuania and Estonia: 30 years of independence","authors":"Ilya Shablinsky","doi":"10.21128/1812-7126-2021-5-138-156","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-138-156","url":null,"abstract":"This article focuses on the peculiarities of government forms in Baltic states that were once part of the USSR: Latvia, Lithuania and Estonia. The constitutional and legal bases of relations between presidents and their parliaments and governments are considered in detail, and the author makes a comparative analysis of institutions operating in these states. This article also examines the grounds for the resignation of governments, their heads, and individual ministers, as well as discussing the features of the party and electoral systems of these Baltic States. These systems’ functions face several problems, and forms of government like semi-presidential and parliamentary republics are shown to lack effectiveness across the Baltic States. It is important to note the instability of these governments, which changed every two and a half years on average, although this did not affect the countries’ economies. The presidents of these republics performed political mediation effectively and ensured a constant dialogue with political forces. Since national governments were formed on a non-coalition basis in all three States, an extensive practice of inter-party agreements and alliances began. This created a new type of political culture, where prejudice towards the Russian communities of the states in Latvia and Estonia was prevalent, and this issue is addressed in the article.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"12 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":"128081830","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}

{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos.26-P–31-P (2019)]","authors":"","doi":"10.21128/1812-7126-2019-5-145-155","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-5-145-155","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"43 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":"133575653","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}

{"title":"Constitutionalization of the principle of respect for elders: the experience of the 2020 constitutional amendments, their content and implementation problems","authors":"P. Astafichev","doi":"10.21128/1812-7126-2021-2-180-191","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-2-180-191","url":null,"abstract":"The article is devoted to the study of a number of problems related to the regulation and implementation of the principle of respect for elders, which is new for the constitutional law of Russia. The author substantiates the position that the problem of constitutionalization of the principle of respect for elders should be posed wider, at least outside the boundaries of strictly educational activities and in the broader context of the paradigm of the hierarchy of seniority in the system of fundamental principles of constitutionalism. The principle of “respect for elders” is opposed by the stable constitutional practice of Russia and foreign countries guaranteeing at the constitutional level, on the one hand, the rights of parents (mothers, fathers) and the elderly, and on the other, children and youth. Parents and the elderly do indeed enjoy the constitutional right to special respect as a kind of “elder”, but this does not give grounds for a broad interpretation of the constitutional status of all other members of society. The author proves that, in fact, the constitutional imperative of “respect for elders” is an attempt, albeit relatively “soft” in the legal sense (without legal consequences and in the absence of a clear definition of the rights and obligations of subjects of legal relations), to introduce into the life of a free civil society a kind of disciplinary-subordination beginning in relationships between older and younger people. Moving up the age ladder supposedly should give a certain increase in subjective rights. However, to what extent is this permissible in a constitutional state and a democratic society? And does this really correspond to the prevailing socio-cultural stereotypes of social behavior of the modern generation of Russians? According to the author, in the construction of “respect for elders”, an indication of the sign of seniority is of key importance. The term “respect” is not entirely accurate, since without significant distortion of the meaning it could be replaced with the words “special recognition”, “subordination”, “emphasized correct behavior”, etc. By virtue of Article 21 of the Constitution of the Russian Federation, all people are obliged to respect each other as people, they are legally stimulated in equal measure to recognize the value of their human dignity.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"118 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":"132391009","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}

{"title":"Constitutionalization of animal protection in modern states (on the example of Germany and Switzerland)","authors":"G. Sitnikov","doi":"10.21128/1812-7126-2019-6-86-105","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-6-86-105","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"46 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":"129353060","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}

{"title":"Constitution-transforming informal methods of changing the Constitution of the Russian Federation: between validity and constitutionality","authors":"Dmitry Shustrov","doi":"10.21128/1812-7126-2021-5-42-75","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-42-75","url":null,"abstract":"The Constitution of the Russian Federation has been changed according to formalities and the rules established by it, although there are numerous examples of constitutional changes having been made outside of formal procedures. In the theory and practice of constitutional law, an approach has been developed according to which the constitution can be changed without formally changing its text — by changing its meaning. Such changes are called constitutional transformation and are carried out by informal methods of changing the constitution. They differ significantly from the formal methods of constitutional reform, since they are carried out not by the sovereign source of power but by the constituted power — by the legislative, executive, and judicial authorities. The article examines the main informal methods of changing the constitution: law, interpretation, convention. Constitutional transformation by informal methods of constitutional change is not provided for by the constitution, therefore it is unconstitutional. However, it becomes valid thanks to implementation by institutions established by the constitution, within the framework of constitutionally provided procedures and recognized as methods of constitutional change by other subjects of constitutional relations. If the subjects of constitutional relations are not in agreement with a constitutional transformation, they can overcome it through constitutional reform or (depending on the method) through an appeal to the constitutional court by which, if successful, an informal constitutional change becomes unconstitutional and invalid. Turning to informal methods, the government incurs costs in terms of the legality and legitimacy of the constitutional change, but at the same time it gains in terms of efficiency, time saving and the result obtained. The emergence of a “living”, “parallel” constitution, the lag of the formal constitution behind real life, the inadequacy of the constitutional text are the price paid for resorting to informal methods of constitutional change. It is important that resort to informal means does not become the norm. Constitutional transformation should be supplementary in nature, and appeal to it should be the last resort.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"53 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":"123826972","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}

{"title":"The constitutional human rights in Uzbekistan: positivism, traditionalism, and a cautious shift towards international legal standards","authors":"Aziz Ismatov","doi":"10.21128/1812-7126-2021-2-94-130","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-2-94-130","url":null,"abstract":"Until recently, unofficial interpretations of the situation with human rights had remained as an unspoken taboo in Uzbekistan, whereas foreign observers harshly criticized the country, pointing out systematic violations and restrictions of rights by the state. Indeed, not many could predict that the new President Shavkat Mirziyoev, who was elected in 2016, would initiate steps towards improving the human rights situation and, simultaneously, face specific challenges. The 1992 Constitution was developed within the complex transition process from socialism to market economy. This Constitution devotes an entire chapter to human and citizens’ rights. Initially, some authors expected that the Constitution would integrate rights in the context of natural-legal ideas. However, Uzbekistan has largely preserved and strengthened the positivist approach towards constitutional rights, designating the state to grant and limit those rights. The paradox of this situation is that Uzbekistan’s tendencies conflict with the general trends of the post-socialist constitutionalism since the country practically did not change constitutional provisions’ evolutionary development. On the other hand, in the post-socialist Eastern European countries and some former USSR republics, the collapse of socialism led to a constitutional revolution. The author applies historical analysis and cognitive constitutionalism methods to explain a paradox of impossibility to root natural-legal ideas within the (1) deeply-rooted Soviet positivism and (2) revived pre-Soviet traditionalism. On the other hand, the historical 1992 Constitution preparatory process, guided by the special Working group and headed by Islam Karimov, and the theory of human rights in Uzbekistan inherited a strong influence from the doctrine of the Soviet constitutionalism; its positivism, dogmatism and normativism. On the one hand, the author focuses on the impact of traditionalism revived after 1991 in national customs, behavioural attitudes, or social values; and paternalism that had transformed into a “super-presidentialism”, which widely continued a principle of the state’s priority above the individual. In conclusion, the author points to the existing legal imperfections of the constitutional text, and offers approaches to shorten the gap between the supporters of positivism in the 1992 Constitution and the natural right theory’s followers.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"101 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":"124803352","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}

{"title":"“Tower of Babel”: a comment to the practice of autonomous interpretation of the provisions of the European Convention and the Russian Constitution","authors":"Pavel D. Blokhin","doi":"10.21128/1812-7126-2019-6-106-120","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-6-106-120","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"27 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":"125189793","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}

{"title":"Selective rationality? Argumentation of the Constitutional Court of the Russian Federation on the terms of office of the President in the mirror of cognitive science","authors":"A. Troitskaya","doi":"10.21128/1812-7126-2021-1-84-99","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-1-84-99","url":null,"abstract":"The Decision (Zaklyuchenie) of the Constitutional Court of the Russian Federation on the constitutionality of the constitutional amendments played a significant role for the entry into force of the amendments to the Constitution of the Russian Federation adopted in 2020. For this reason, and in connection with the fact that many of the novels raise questions precisely from the point of view of their compliance with Chapters 1, 2 and 9 of the Russian Constitution, the positions formulated in the Decision attract serious attention. The article analyzes the arguments of the Court on one of the significant innovations – the possibility of being elected to the post of President of Russia by a person who held or holds this position at the time the amendment entered into force, without taking into account the previous terms. This reasoning is placed in the context of the demands of rationality in constitutional law. The article is aimed at implementing bona fide intentions related to confirming the subjectivity of the body of constitutional review and identifying ways to improve its argumentation. The activities of the constitutional court are presented in the article as part of reasonable foresight, which implies the creation of guarantees for the case of deviation from constitutional values. The rationality of its argumentation is understood as the sum of requirements connecting in a certain way 1) formal logic and 2) substantive reasonableness, determined by the value choice made in the constitution. It is demonstrated that the rationality of the argumentation formulated in the Decision of the Constitutional Court on the problem of the term of office of the head of state can be questioned from these points of view and, for this reason, cause associations with cognitive distortions (such as bias in the selection of initial premises for argumentation; incomplete study of scenarios reflecting the consequences of a reviewed amendment; framing; logical circle, etc.). At the same time, the article reveals the limitations of the “naive” cognitive approach, which is insufficient for working with the argumentation of the body of constitutional review and which actualizes additional consideration of the political and legal context of decision-making by this body.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"39 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":"127083093","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}

{"title":"Turnover of leaders of authoritarian regimes: conditions, options","authors":"Iliya Shablinsky","doi":"10.21128/1812-7126-2020-5-13-25","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-5-13-25","url":null,"abstract":"The article is devoted to the possibility of changing power within regimes that are considered authoritarian (or hybrid). The practice of some such regimes shows that they still allow for a real and sometimes even regular change of power, without changing their character and, in fact, without allowing the real functioning of democratic institutions. Special attention is paid to the States formed in the space of the former USSR. It is noted that the post-Soviet authoritarian regimes can be separated into a separate subspecies. The article discusses the following options for transferring power under an authoritarian regime. It is possible: 1) as a consequence of contradictions within the ruling group and the involuntary departure of the former leader; or 2) through the execution by the members of the specified group of informal arrangements that can include both the actual transfer — the actual transfer of power to a new person, and an imaginary transfer — the appointment of the regime’s new head, who remains under the tight control of the former ruler, who retains real power. The role of constitutional norms limiting the President’s tenure to two terms is specifically considered. This restriction, in particular, was established in the constitutions of almost all post-Soviet States. But the relevant rules were either canceled (as in Belarus and Azerbaijan) or ignored (as, for example, in Uzbekistan). At the same time, similar rules have played a role in Mexico and China. Separately, the article deals with cases when political transfer is triggered by the work of completely democratic institutions, such as elections or referendums which for some reason are allowed by an authoritarian leader, and leads to real democratization. In particular, the author draws attention to the experience of Chile and Brazil.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"123 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":"117321121","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}