Constitutional Law Research Articles

INTERACTION OF CONSTITUTIONAL LAW AND INTELLECTUAL PROPERTY RIGHTS IN THE REPUBLIC OF KAZAKHSTAN

The article is devoted to the interaction of intellectual property law with the constitutional law of the Republic of Kazakhstan (hereinafter - RK). The Constitution of the Republic of Kazakhstan proclaims freedom of work and profession, as well as freedom of choice of creativity. Paragraph 1 of Article 20 of the Constitution of the Republic of Kazakhstan states that freedom of creativity is guaranteed. Currently, the scientific research of Kazakhstani scientists does not pay enough attention to the freedom of creativity. The analysis of materials and documents of the Constitutional Court of the Republic of Kazakhstan indicates the absence of a deeper analysis of the constitutional guarantee of freedom of creativity and the limits of this freedom. In addition, there are no provisions on intellectual property in the Constitution of the Republic of Kazakhstan, and the interpretation of norms can only be literal, and we are talking only about freedom of creativity. In this article, the author attempts to show the problems of interaction of intellectual property law with constitutional law, since the relationship between them is deeper than it is reflected in the Constitution of the Republic of Kazakhstan. In the legal literature, most studies of the constitutional and legal regulation of creative relations are reduced only to the objects of copyright, while the freedom of creativity lies in invention, the objective expression of means of individualization. The author has analyzed the concepts of creativity and freedom of creativity and justifies the need for the constitutional consolidation of intellectual property guarantees, to obtain constitutional and legal protection, since it has a significant role in the state policy of the development of the economy of Kazakhstan, expressed in industrialization and the widespread use of digital technologies, which are based on creative intellectual activity. In this regard, it is not enough to establish only a constitutional and legal guarantee of freedom of creativity and labor, it is necessary to include intellectual property norms in the Constitution of the Republic of Kazakhstan, thereby enabling authors and the copyright holder to constitutionally protect their rights and legitimate interests.

Embedding constitutional rights

Abstract This article details the concept of constitutional embedding and demonstrates its utility in four country-rights cases. Constitutional embedding refers to the process by which some understanding of constitutional rights comes to take root in everyday life, moving from words on paper to something that shapes expectations and behavior. The degree of constitutional embedding varies along two dimensions: social and legal, or how individuals and groups operating in the social sphere understand and relate to constitutional rights, and how those working in the formal legal sphere do so. In a global political climate defined by democratic backsliding, powerful vested interests, and backlash against moves toward equality, the status of constitutional rights and how they become and remain embedded is doubly important. The constitutional embedding framework highlights how interactions between legal elites and ordinary citizens constitute the extent to which constitutional law influences daily life. The framework has broad applicability across contexts and rights domains.

Análisis de la Evolución del Derecho Constitucional en Ecuador: Implicaciones para el Desarrollo Democrático

The study addresses the evolution of constitutional law in Ecuador, focusing on the transformations introduced by the 2008 Constitution and its impact on democratic development. The objective is to analyze how these reforms have changed the country's legal framework, with emphasis on the rights of nature, plurinationality and citizen participation. The methodology employed is qualitative, based on an exhaustive review of relevant bibliographic sources including scientific articles, historical documents and specialized analyses. Among the results, it stands out that, although the 2008 Constitution introduced significant advances, its implementation has been uneven due to structural barriers and political resistance. Despite advances in terms of inclusion and environmental sustainability, hyper-presidentialism continues to limit the development of an effective system of checks and balances. The discussion concludes that, although the Constitution has generated important legal innovations, implementation challenges persist, affecting the consolidation of a more inclusive democracy. The conclusions suggest that institutional strengthening is necessary to ensure that the progressive principles enshrined in the Constitution translate into tangible benefits for Ecuadorian society.

OFFICIALS OF REGIONAL ORGANIZATIONS IN THE STRUCTURE OF THE CONSTITUTIONAL RIGHT TO JUDICIAL APPEAL

The purpose of the study ёёis to identify the features of regional legislation when identifying officials of organizations of constituent entities of the Russian Federation, whose actions and decisions can be appealed under Part 2 of Art. 46 of the Constitution of the Russian Federation. The authors projected the theory of constitutionalization onto the institution of appeal to analyze the functional criterion for the selection of officials in the structure of subjective constitutional law. The authors also applied systematic and formal logical methods to the current legal norms of federal and regional legislation in order to establish the legal meaning of the categories under study. Conclusion - this article notes differences in the definitions enshrined in federal and regional laws when regulating the powers of officials. The difficulty in establishing the legal status of non-governmental organizations in regional legislation predetermines the responsibility of the citizen to prove that they have powers of a public legal nature. However, this conclusion is valid if such powers are not established by the court itself or the use of a different legal procedure deprives the applicant of legal guarantees.

François Hotman and the Critique of Gratian’s Decree: From the Investigation of Early Councils (De statu primitivae Ecclesiae, 1553) to the Rewriting of Europe’s Legal History (Antitribonian, 1567)

François Hotman (1524–1590) was one of the leading Reformed jurisconsults of his time. Past research has stressed his innovative interpretations and practices in the study of Roman, feudal, and French constitutional law. Little has yet been said about his views on canon law, another fundamental legal body in Western history that experienced renewed intellectual scrutiny during the sixteenth century. This paper investigates some of Hotman’s early work on canon law, focusing on his legal–historical reconstruction of the early Church in De statu primitivae Ecclesiae (1553) and his contribution to a budding historical field in Catholic circles: conciliar history. Despite the general lack of interest in the history of councils on the part of some leading Protestant theologians (Luther, Calvin, Bullinger), Hotman clearly believed that the textual tradition of councils provided a prime example of sustained popish efforts to control and deform the historical narrative and the legal structure of the Church. Yet, although he seems to have worked on demonstrating just that over more than forty years, he never again voiced his views on the matter in a dedicated work. Comparing in its conclusion De statu primitivae Ecclesiae with Antitribonian, this paper suggests that, in parallel to his better known ‘complex of Tribonian’ (Pierre Mesnard), Hotman seems to have suffered from a ‘complex of Gratian’: the doctrinal unity and institutional accomplishments of the early Church, as represented by the first councils, may well have dazzled Hotman and kept him from writing some definitive work against Gratian.

Место науки конституционного права в системе юридического знания: преодоление границ формальной науки

Introduction. The article is devoted to the study of the role of modern constitutional law in the system of sectoral legal sciences. The author notes that jurisprudence in general is a formal science, the subject of which are formal systems, which, mainly, it postulates itself - specific branches of law. Until a certain period (the formation of the Constitutional Court of the Russian Federation and the adoption of the new Constitution of the Russian Federation) state law could also be considered as a sectoral science, the subject of which was mostly the system of state power organisation. However, unlike mathematics (which is also a formal science), jurisprudence possesses regulatory potential and relates to the impact on human behavior. In this way it cannot be encapsulated exclusively in the system of legal constructions outside the «life world». Research methods. A set of methods was used in the work: analysis and synthesis, induction and deduction, dialectical approach, method of comparative jurisprudence. Results. The author proves that the special role of constitutional law in the modern stage of development is that, on the one hand, through processes of constitutionalisation of other branches of law constitutional law claims to be a general system. In a certain sense, the science of constitutional law is gradually taking the place of theory of law in legal epistemology.

Legal Certainty of Land Banking Institutions: Theoretical and Current Challenges

Land banking is a form of land acquisition carried out by systematically acquiring land that has yet to be developed, abandoned land, or vacant land for further development and optimized use to benefit the community. The Government carries out this form of land acquisition to implement public land policies. This research uses doctrinal or normative legal research with a doctrinal approach and statutory regulations related to the Land Bank Concept and Institutions that are in accordance with the development of Indonesian Constitutional Law. Those legal material collected are analysed prescriptively. The result shows that the form of land banking is a special body (sui generis) that manages land with assets separate from state assets so that activities are more flexible, efficient, and effective. The appropriate Land Bank institutional model is in the form of a public service agency. As a separate institution from the ministry, the land bank's governance is based on general principles in the financial accounting system. Land asset management is directed at utilizing land in collaboration with other parties and distributing it to specified parties. Using land bank assets is to obtain income as capital accumulation. Meanwhile, the distribution of land assets is in the context of realizing a just economy through activities in the public interest, social interests, national interests, economic equality, land consolidation, and agrarian reform. Land banks must allocate part of their land assets for land reform.

Принципы всеобщего и равного избирательного права в актах Конституционного Суда Российской Федерации

Principles of the universal and equal electoral right constitute the basis of relations in the sphere of exercising of rights of citizens to participation in management of affairs of the state and are traditionally well studied by the constitutional law science. At the same time, application of such principles primarily in the practice of the national constitutional control authority serves as an important benchmark for the law enforcement practice of election organizers and general jurisdiction courts designed to solve the arising electoral disputes in an expeditious manner. The presented article illustrates positions of the Constitutional Court of the Russian Federation that the author believes describe the studied principles most fully, including from the standpoint of their impact on evaluations of contemporary digital electoral technologies and matters of candidacy list forms relevant in the autumn elections of 2024.

Constitutional and Legal Foundations of Interaction Between the State and Civil Society in Ensuring the Protection of State Sovereignty and Territorial Integrity of the Russian Federation

Introduction. The relevance of the study is caused by three main factors. First, there is the need for further in-depth scientific and legal analysis of the amendments 2020 to the Constitution, which contain a number of fundamentally new provisions for domestic constitutional legislation that consolidate the legal foundations for ensuring the protection of state sovereignty and territorial integrity of the Russian Federation. Secondly, the undoubted interest of the Russian state in modern conditions in the development of civil society in Russia as a whole, and in particular its individual institutions that have a direct impact on the activities of the state in this area, as well as the understanding that in modern conditions only with the support and active participation of civil society in the policy implemented by the state In the field of protection of state sovereignty, it is possible to achieve the set goals and objectives. Thirdly, the difficult geopolitical situation that the Russian Federation has been in for the past ten years, striving to preserve state sovereignty and prove its belonging to one of the leading countries of the world under unprecedented pressure from the collective West. Theoretical Basis. Methods. The theoretical basis of this study is made up of scientific works of scientists in the field of the theory of state and law, constitutional law, administrative law. The work uses general scientific methods (system analysis, dialectical, formal-logical) and special research methods (system-legal, comparative-legal, historical-legal, formal-legal). Results. Firstly, based on the supremacy of national sovereignty over state sovereignty, the need to strengthen the latter through the development of institutions (elements) of civil society, which carry out certain types of relevant public (socially useful) activities provided for in legislation in this area, is justified. Secondly, the requirements imposed on the institutions of civil society, called upon, especially during the period of a special military operation, to carry out activities aimed at strengthening the state sovereignty of the Russian Federation, are highlighted. Thirdly, a scientifically based conclusion has been made that the term “civil society” to a greater extent than the legal category “people” emphasizes the presence of common interests among citizens of the Russian Federation, awareness of their constitutional rights and freedoms and opportunities and desire to carry out, especially during the period of a special military operation, public (socially useful) activities, including those aimed at ensuring state sovereignty. Discussion and Conclusion. In the context of further increasing threats to the state sovereignty and territorial integrity of the Russian Federation, there is a need to consolidate civil society in the current legislation as a source of democracy and the basis of the constitutional system, its formation as a public law institution designed to be the natural support of the state, to perform appropriate functions in the field of patriotic, including military-patriotic education of citizens of the Russian Federation Federations, as well as stabilizing functions that allow consolidating the interests of the state and society, using its full potential to protect national interests.

Pengaturan Dewan Pengawas KPK dan Implikasi Terhadap Indepedensi Komisi Pemberantasan Korupsi dalam Sistem Ketatanegaraan Republik Indonesia

This study aims to analyze how the existence of the Supervisory Board affects the KPK's position as an independent institution. In addition, this study also identifies obstacles in the implementation of the Supervisory Board regulation that may impact the effectiveness of the KPK. The method used in this research is normative legal research that relies on document studies and legislation related to the KPK as well as the theory of constitutional law. The result of this research is that the regulation of the KPK Supervisory Board, especially in granting licenses for KPK legal actions, has the potential to weaken the independence of the KPK. The duties of the Supervisory Board, which enter the realm of pro justicia, lead to unclear roles and bureaucratic obstacles in the investigation process. This has implications for reducing the effectiveness of the KPK in eradicating corruption in Indonesia.

The institution of popular veto: experience of selected foreign countries

This article examines the legislation of foreign countries regarding mechanisms of direct democracy, particularly the institution of popular veto. A historical analysis of the development of this instrument in European law has been conducted. The methodological basis of the publication consists of scientific methods based on the requirements of objective and comprehensive analysis of socio-political and legal phenomena, which include direct democracy in foreign countries. The research methodology is founded on general theoretical principles and approaches to determining the initial parameters of the formation and development of popular veto as a form of direct democracy. To achieve scientific objectivity in the results, the author used a full range of general scientific and special research methods widely applied in the modern science of constitutional law. It has been established that although modern forms of direct democracy emerged relatively recently, the concept of popular veto has roots in ancient civilizations as a means of limiting the abuse of power. Initially, the right of veto was exercised not directly by citizens, but by authorized persons on behalf of the people, who could reject laws that contradicted fundamental norms. It is argued that although popular veto was first enshrined in French constitutional law, Switzerland is considered its birthplace, where this institution received genuine development and was first implemented in practice in 1831. The evolution of popular veto is closely linked to the development of Swiss statehood; however, the immediate impetus for its implementation was granting citizens direct voting rights and the right to participate in referendums. Initially, popular veto was applied at the level of individual cantons, and in 1874 it was enshrined in the Swiss Constitution at the national level. According to the constitutional procedure, a specified number of voters can officially express disagreement with an adopted law within a set period, after which it must be submitted to a nationwide referendum for approval or repeal.

The national idea in the Ukrainian legal area

The study is based on the assumption that at the current stage of development of the State and society, there is a need to form a national idea of the State, which is a theoretical expression of the Ukrainian people's self-awareness of their identity and individuality, and which, based on common values and interests, can be one of the important factors in consolidating Ukrainian society, a general vector for further development of the country and a guideline for its role and place in the world community. The national idea is an expression not only of the psychological and cultural model of society, but also a manifestation of the national legal sphere, which has a complex and ambiguous composition that requires a detailed scientific study. The purpose of the study is to identify the prerequisites and components of the formation of the national idea at the current stage of development of Ukrainian society and the State in the legal plane. The theoretical basis of the study is based on analytical developments in the theory of state and law, political science, constitutional law, and sociology of law in the study of various aspects of the national idea in the context of globalization. Numerous tasks and the diversity of the material under study have led to the use of various research methods: formal legal, systemic and structural, specific sociological, logical. The work uses the socio-cultural and civilizational approaches to the analysis of legal ideology, legal policy, legal doctrine, as well as axiological, geopolitical, and institutional approaches to the national idea of the State. It is noted that when forming the national idea, laying a progressive national-state ideology as its basis, it is necessary to take into account both the cultural uniqueness of Ukraine and the legal component of society, as well as global trends in the modern world. In the context of state-building, the national idea should be an integrative ideological basis on which to consolidate the political nation and create a project for the country's development for the future. It can be argued that the modern state-building process in Ukraine requires modernization of the concept of the national idea and certain adjustments to its value content. In order for the national idea to become an effective basis for the development of the rule of law, it must be correlated with legal ideology, legal policy and legal doctrine, and must be consistent with such values as national interest and national mentality. The implementation of the national idea should have a specific content and be filled with practical steps in the development of the Ukrainian state.

Legislative drafting techniques as a means of giving effect to the rule of law. The case of Ukraine

Ukraine is currently carrying out some reforms recommended by the Venice Commission of the Council of Europe and by the European Commission (in order to become a Member State of the European Union), in order to strengthen democracy, the Rule of Law, human rights and protection of minorities. The purpose of this article is to demonstrate that legislative drafting techniques are a means to give effect to the principle of the Rule of Law, when it comes to Ukraine; and to recommend that Ukraine improves the way its institutions draft/scrutinise bills, and adopts best practices from Europe. The methods of this article will be those of an analysis of constitutional law. The article will rely on the definition of the principle of the Rule of Law (given by A.V. Dicey and developed by Lord Bingham) and the idea that legislative drafting techniques can be seen as a means to give effect to such a principle. The Ukrainian current constitutional context (viz., the impossibility of amending its Constitution under martial law, due to Article 157 of the Constitution of Ukraine) will be considered. Some pieces of Ukrainian legislation will be analysed in the light of the Venice Commission’s recommendations. Some of the main legislative drafting techniques and their aims, in the light of the best practices from Europe, will also be analysed. The results of the article will set out that in such a current constitutional context, where the recommended reforms can be implemented only by Acts of Parliament (although some amendments to the Ukrainian Constitution would be appropriate), in Ukraine the quality of primary legislation becomes crucial to give effect to the Rule of Law. Therefore, the scientific novelty of the article will be to test general concepts with regards to the exceptional constitutional circumstances of Ukraine. The conclusions, thus, is that Ukrainian institutions (such as the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine and the President of the Republic of Ukraine) should improve the way they draft/scrutinise bills, adopting best practices from Europe, in order to improve the quality of primary legislation and, thus, to give effect to the principle of the Rule of Law.

Sustainability Constitutionalism: Adopting National Perspectives on Sustainability

The development of environmental constitutional rights has provided important legal advances in procedure, standing, enforcement and remedies for matters concerning environmental protection and conservation. The constitutional textualization of environmental norms represents a significant development in both constitutional and environmental law, as well as providing a powerful impetus for cross-disciplinary research. These developments have not been mirrored to the same extent with sustainability thresholds and practices. Just as environmental rights are a legitimate avenue for constitutional protection, this article argues a similar position should accord to sustainability rights in constitutions by constitutional textualization of sustainability standards and thresholds. Achieving this constitutional recognition ensures sustainability has a national agenda for a sustainable future.

Страна-цивилизация и Русский мир: конституционно-правовые вопросы

Historical and philosophical views on Russia as a country-civilization and the Russian world, which do not differ in uniformity, currently do not have a theoretical and legal justification and legal mechanisms for implementation. In the combination of “I am Society — State — Law — Civilization”, the first four actors are the most mobile quantities, they can change places according to the degree of influence on each other and on Civilization as a whole, and the latter, being a composite alloy of their functioning, seems to be a kind of constant and guarantee of the existence and development of the country. The author sees the Russian world as a self-identifying non-state international cultural and linguistic state of the personality and peoples of multinational Russia, as well as citizens of other states that voluntarily recognize it. From the position of constitutional (state) law, it is assumed that the role of the state and the various structural elements of the country-civilization and the Russian world will be differentiated, giving it a new set of responsibilities to participate in their provision.

Legal Protection and Rights of Indigenous Peoples: Legal Certainty in Managing Natural Resources

<p><em>Indigenous peoples possess traditional rights to natural resources within their territories, yet these rights are frequently overlooked or marginalized due to inadequate policies and regulations. This research aims to examine the legal protection of the Baduy tribe's rights in managing natural resources and to explore how legal certainty can be achieved in this regard. Utilizing a normative juridical approach, the study analyzes relevant laws and regulations pertaining to indigenous rights and state-provided legal protection. The findings reveal that the recognition and protection of customary law communities in Indonesia highlight the state's commitment to supporting social entities with autonomy over their lives. Despite the pressures of modern integration, indigenous peoples continue to uphold their identity, traditions, and customary rights. Legal acknowledgment of these rights is enshrined in the 1945 Constitution and various laws, including Law No. 5 of 1960 on Agrarian Affairs, Law No. 4 of 2009 on Mining, Law No. 41 of 1999 on Forestry, and Law No. 7 of 2004 on Water Resources. However, effective implementation is often hindered by regulations that do not adequately address customary rights. While Constitutional Court Decision No. 35 of 2012, which recognizes customary forests as belonging to indigenous communities, represents significant progress, challenges persist. The need for revisions to create more inclusive laws or regulations is pressing. For the Baduy tribe, Lebak Regency Regional Regulation (Perda) Number 32 of 2001 on the Protection of Ulayat Rights is a critical development. This regulation offers legal certainty and safeguards their traditional rights, including customary land and natural resources, and tackles issues like illegal logging and forest encroachment. By acknowledging local wisdom and customs, this regulation aims to preserve Baduy culture and enhance security and social stability in their area.</em></p>

Marriage and Strategic Confrontation: A Critical Analysis of Indian Society

United Nations Entity for Gender Equality and the Empowerment of Women in General Recommendation no. 21 (the 13th session, 1994) on the declaration of equality between women and men for human rights has discouraged polygamous marriage practices ( https://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#top ). Further, the United Nations Human Rights Committee’s assertion in 2000 on the General Assembly of the UN contends about the direct connection of marriage with human dignity and acknowledges only state-approved monogamous marriage can tantamount to social development, by fostering equality, justice and cosmic harmony. On the contrary, polygamous marriage treats humans unequally and subordinates women, following such type of marriages breach the International Covenant on Civil and Political Rights, recommending the blanket ban of the practice of polygamy. It is significant that treating woman as less than man not only subjugates them but hinders the development of the whole society. To secure social harmony, the state can legislate a rule for all its citizens irrespective of their religion. Notwithstanding, independent Indian Constitutional Laws facilitate monogamy practice on the one hand, and on the other hand allow polygamy as an atypical form of marriage in another personal law. Therefore, in this article, first, I examine the notion of marriage in Indian tradition and then compare Indian marriage standards with the Western approach of monogamy, as a society’s right, as a right to moral independence and as an ethical analogue. Following that, I argue whether contemporary Indian society’s legislation on marriage fits into Western standards or triggers a strategic confrontation.

Cancel culture: Heterodox self-censorship or the curious case of the dog which didn’t bark

There is widespread concern that academic freedom is threatened by growing demands for intellectual conformity and attempted censorship from intolerant zealots. Student protests over the Israeli–Hamas conflict have intensified fierce debates about freedom of expression on campuses. This study seeks to understand the nature and scope of contemporary threats to academic freedom of expression worldwide, especially the role of self-censorship in this process. The first part unpacks the notion of a ‘cancel culture’ in academia. The research explores processes of self-censorship where scholars are unwilling to express their authentic views in public. Mechanisms theorized as potentially driving these processes include heterodox status (cultural minorities out of step with orthodox views); institutions (constitutional principles, laws, and regulations used by the authorities to govern academic speech); culture (attitudes towards free speech); and academic status (inequalities in academic power and security linked with gender and age). To examine these mechanisms, the second part sets out the research design. It draws upon survey data from the second World of Political Science survey (WPS-2023), monitoring the background and attitudes of almost 2000 political scientists living and working in around 100 countries worldwide. The third part analyzes the results, confirming the reluctance of heterodox scholars to challenge majority views. The conclusion in the fourth part summarizes the findings, considers their broader implications, and discusses the next steps in the research agenda.

Democratic Revisability and the Legitimacy of Constitutional Entrenchments: A Content-Specific Approach

Abstract As modern constitutions bind democratic legislation to entrenched norms, they are in tension with the democratic idea that laws should be open to revision by new majorities. Against a widespread view, constitutional norms cannot be considered to be “more democratic” than ordinary laws due to specific qualities of the constitution-making process. Rather, the higher-level law of constitutions can fulfil a specific function as it may provide standards that ensure that laws made by the majority can be justified to everyone. On that basis, I evaluate for different types of constitutional norms whether there are good reasons for constraining legislation. In particular, entrenching cultural traditions and economic policy is more problematic than guarantees of the democratic process and rights ensuring respect for individuals. In sum, a two-tiered law-making system has important values, but people engaging in constitution-making and constitutional interpretation should be wary that the constitutional form is not abused.

Correlation between the Methods of Legal Regulation in the Political Party Legislation of Russia

The legal methods for regulating political party relations in Russia were analyzed using formal logical, systematic, institutional, and hermeneutic approaches. The Russian constitutional law employs the mixed method, which underpins the constitutionalization of political parties. In contrast, the prevailing imperative method emphasizes the administrative and legal foundations of the standards that define the rights and obligations of political parties. In turn, the interplay of the imperative and mixed methods in the Russian political party law has resulted in covert obligations for political parties, which are also their subjective rights. However, not all rights of political parties align with the concept of subjective rights as developed in constitutional and legal doctrine. The results obtained suggest that the current constitutional legislation in Russia is abstract, impeding a clear understanding of the rights and obligations of political parties. By exploring the doctrinal approaches, the strategies for recognizing the methods of legal regulation were singled out, depending on the interests protected by the analyzed legal standards. Thus, the specific methods of private and public law were identified, which, with the institution of political parties as an example, explain the complex nature of most legal standards. Taken together, these standards outline a complex variety of legal means to influence political party relations. Therefore, being crosssectoral, the political party standards facilitate the resolution of conflicts in law enforcement that arise in constitutional, party, electoral, and administrative legislation.