Constitutional Reality Research Articles

Chinese Constitutonal Performance Unveiled: Text Mining Insights in Civil Litigations

Abstract This article presents a comprehensive examination of the role of constitutions in private disputes, with a specific focus on the Chinese Constitution. Utilizing an extensive dataset of digitized court adjudications, this study delves into a relatively unexplored area, yielding crucial factual and legal insights. The research reveals that the Chinese Constitution significantly influences civil adjudications, both implicitly and explicitly. Furthermore, court judgments emerge as pivotal forces shaping public awareness of constitutional principles. These findings hold profound implications for comprehending the role of constitutions in contexts beyond democratic frameworks, particularly within the private sphere. The study underscores how the capitalist market in China empowers individuals to assert and safeguard private rights, consequently affording the Constitution a protective role in this realm. Concurrently, the existing regime has systematically eroded the Constitution’s influence in public affairs, maintaining its symbolic and rhetorical role. Notably, the concept of judicial independence remains a sensitive subject in China, leading many civil courts to eschew constitutional provisions in favor of political expediency. This paradox underscores the necessity of establishing a reasonably independent judiciary as an integral facet of constitutionalism in such settings. In sum, this research challenges prevailing assumptions about constitutionalism’s contours. It transcends the conventional focus on political authority, illustrating how empirical investigations into constitutional performance within civil litigation can illuminate the emergence of constitutionalism in the shadows of non-democratic systems. These findings offer valuable insights into the role of constitutions in private disputes and pave the way for further exploration within this evolving scholarly domain. Ultimately, this study advances our comprehension of constitutional realities and their far-reaching impacts on the legal landscape and society within contemporary China.

Fifth French Republic Towards Historical Heritage

The historicity of the Constitution of the Fifth French Republic has a special dimension. In the preamble and in the articles of the first Chapter, reference is made to the heritage of the French Revolution and identification with its principles is emphasised. We are therefore dealing with a case of the Constitution that explicitly refers not to the entire historical heritage of France but to an exceptional moment in its history. This reference has a very real meaning because the legacy of the French Revolution affects the constitutional reality of today’s France. This applies in particular to the specially conceive d idea of the sovereignty of the nation, the principles of indivisibility and the secularity of the Republic. At the same time, under the Constitution of the Fifth Republic, there has been an interpretation of the legacy of the Revolution in terms that are critical of the Jacobin tradition, which allowed for a broad consensus on it. On the other hand, it can be argued that the Constitution is not fully representative in the dimension of history, as the legacy of pre-revolutionary France occupies a vital place in public education and in the politics of memory.

사회변화와 사회적 기본권

From the first constitution in 1948, at least normatively, our Constitution not only guaranteed freedom, but also clearly declared that individual social circumstances should be considered and socioeconomic integration should be realized, and this was embodied through various social basic rights regulations. However, despite these normative circumstances, social basic rights did not have constitutional authority until the late 1980s. Constitutional reality and the unique realization structure of social basic rights worked here.
 Since the establishment of the Constitutional Court under the Constitution in 1987, the constitutional tasks of the welfare state have been discussed in earnest, laying the foundation for social basic rights to become a constitutional reality. Social basic rights are normatively open norms in their content, goals, and methods of realization, but their realization tends to be subordinated to external decisions about realistic situations. Social basic rights can be activated under a democracy where the possibility of dynamic and pluralistic decision-making is open, but on the other hand, it is also a factor that can deepen its instability. Among these tensions is the Constitutional Court. Although the Constitutional Court has contributed to the recognition and functioning of the Constitution as a norm with universal effect since 1987, it is inevitable to be critical of how much the Constitution and Constitutional Court have contributed to social integration, guaranteeing conditions for freedom and opportunities for social participation to all citizens. Until now, due to normative or practical obstacles, the Constitutional Court has repeated most of its passive judgments in judicial review of social basic rights. However, at a time when the scope of the constitutional task for the welfare state extends beyond welfare measures for marginalized human groups to the issue of intergenerational equity for sustainability, the constitutional trial can no longer settle for passive judgment.
 In order for constitutional values to play an important driving role in forming a social security legislative system for the realization of social basic rights in the future, the Constitutional Court should define the normative meaning of social basic rights and seek active guarantees for social basic rights.

Comparative legal analysis of intellectual property through the prism of its constitutional consolidation

Purpose. The purpose of the article is to carry out a legal analysis of national and foreign legislation with a further depiction of the need to regulate intellectual property by the norms of both private and public law, in particular constitutional. Methodology. In order to achieve the set goal, a comprehensive analysis of the available information regarding the analyzed problem was carried out and conclusions and proposals were formed on their basis. The following methods of scientific knowledge were used during the research: dialectical, systemic-structural, terminological, systemic-functional, historical, normative-dogmatic, generalization method. Results. As a result of the conducted research, it was established that the humanistic function of freedom of creativity consists in the development and self-realization of the individual, the humanization of society and the preservation of the national identity of peoples, the affirmation of their value. A creative person is among people, and for the sake of public interest and respect for them, he has no right to create works of art that are immoral, destructive or anti-moral in nature. Scientific novelty. For the first time, the systematization and generalization of the comparative-legal constitutional consolidation of the concept of «intellectual property» was carried out. Practical significance. Understanding the concept of intellectual property as an institution of civil law is not something frozen, defined. What is considered fair today, that is, determined by this institution, may be rejected tomorrow. In the norms of civil legislation, the implementation of this concept must «keep up with the times» and correspond to the constitutional realities of life. Of course, a big step forward has been made in resolving the contradictions that have arisen. In addition, research results can be used in law-making and human rights protection activities regarding the implementation of current legislation during wartime.

Transformation by Decree? A (Brief) Reflection on the ‘Directive Constitution’ (Constituição Dirigente) in Brazil

Coined originally by the great constitutional law scholar José Gomes Canotilho in the aftermath the post-revolutionary Portuguese constitution of 1974, the concept of a constituição dirigente (‘directive constitution’) has found some expression in the Brazilian (re-democratization) constitution of 1988 (CF88), which contains a number of injunctions and mandates aimed at ‘directing’ (primarily) the legislature towards the enactment of a wide-range of economic, administrative, and also civil rights matters. In doing so, the CF88 did not only purport to protect the new democratic system from falling (back) into autocracy but it also entrenched a deeply (social) transformative agenda in the constitutional telos. In the unfolding constitutional reality since the CF88’s entry into force, the courts, and especially the apex court (STF) sought to interpret and concretize these ‘directive’ elements in a continuous ‘dance’ with and around an often recalcitrant legislature and (to a lesser degree) executive. Many elements have been modified or watered down, though some have been upheld and realized, not least on account of a ‘neo-constitutionalist’ turn in Brazilian constitutional doctrine that has led the way for an unprecedented (self-)empowerment of the judiciary vis-à-vis the other branches of government. This has, arguably, transformed the original ‘directive constitution’ into a ‘directive constitutionalism’ led by the courts that has produced ambivalent outcomes.

SOME ASPECTS ON THE JURISPRUDENCE OF THE CONSTITUTIONAL COURT REGARDING THE FUNDAMENTAL ELECTORAL RIGHTS

The fundamental rights and freedoms of man and citizen are a constitutional reality, with deep implications in the existence of each person, in his relations with the state. It also represents an existential reality of each person, of society as a whole and a dimension of democracy. The regulation of electoral rights in the Romanian Constitution is the result of the existence of the democratic and social rule of law, which assumes that the people have the prerogative to participate in governance through their representatives who reflect their wishes.

사법개혁과 개헌 방향에 대한 헌법적 관견

Since the enactment of the current constitution, our society has undergone many changes, and there has been a considerable gap between the constitutional norms and the constitutional reality. Reflecting this reality, political parties including the National Assembly are constantly discussing constitutional amendments. It is necessary to secure the efficiency, stability, continuity, and accountability of the state by reforming the power structure, which is the main cause of the state confusion in the turbulent domestic and foreign environment. Therefore, the revised constitution should contain the design for the national stability, prosperity and sustainable development of the Republic of Korea in the future. In order for a successful constitutional amendment to take place, first of all, the active participation of the sovereign people and the securing of democracy through the public debate led by the National Assembly, which is the representative agency, should be given priority. In order to do this, it is necessary to accurately diagnose the problems of the current constitution, which has been claimed by various experts such as the National Assembly and civil society, and to consider the various interests surrounding the amendment of the constitution. The reason why the judicial reform, which has been tried several times by the active efforts of the political party and sometimes at the request of the judiciary, has ended without great achievement is that the people's expectation and desire for judicial reform, the direction of the reform that the political party thinks, The main reason is that the contents of the reform are different. In the end, in order for judicial reform to be a real reform that conforms to the essence of the judiciary, it must be a reform that is appropriate to the needs and standards of the sovereign people, and at the same time, the judiciary itself recognizes its necessity. Furthermore, while the human rights and fundamental rights of the people are protected and respected through fair and neutral trials under the constitution and laws, the ultimate direction and goal of the constitutional amendment should be to decide and enjoy their lives as freely and equally as possible.

Paradigm of constitutional security: globalization dimension

It is indicated that a holistic vision of constitutionalism, designed to understand and explain the science of constitutional law based on certain conceptual principles, which, in turn, are close to a number of basic attitudes and differ in the longevity of their influence is an urgent need of the science of constitutional law itself, a response to its desire to know the nature of its activity , and because of that, myself. A possible variant of such consideration can be a paradigmatic approach, which we will try to apply in general terms within the framework of the study of constitutional security. Attention is drawn to the fact that in jurisprudence the concept of «paradigm» began to be used relatively recently. In our opinion, this is caused by an inadequate understanding of the semantic meaning of this term in relation to legal science. Another reason can be seen in the numerous practice of its inappropriate use in other humanities. In many publications, the same phenomenon, in the same context, is called a paradigm, a concept, an idea, etc. It is noted that the paradigm of constitutionalism is the quintessence of constitutional and legal knowledge, it is at this level that its integrity and interdependence of individual directions and structural components is achieved, as well as the socio-cultural functionality of this field of knowledge is crystallized. From the substantive side, the paradigm of constitutionalism is based on the generalization of the main approaches to the solution of its problem field in all its aspects, with the exception of internal problems of an epistemological nature. Based on the analysis of the research material, it is claimed that the paradigm of constitutional security in the conditions of globalization is a set of ideal fragments of constitutional reality (concepts, values, principles, ideas and practices) that are shared by society at a given stage of state development and form a defined vision of basic values that make up the content of the constitutional order (the object of constitutional security), the purpose of which is to ensure permanent and legal observance and protection of the rights and freedoms of man and citizen, as well as the internal security of the state as a whole.

Challenges in Litigating under Kenya’s Protection from Domestic Violence Act 2015

The Protection against Domestic Violence Act (2015) was enacted to specifically cater for the needs of the victims of domestic violence. It addresses all forms of domestic relationships and places the duty to ensure the protection of victims on the government. However, the law is practically ineffective in its daily applicability to victims of domestic violence. Some of the shortcomings of this Act are in the wording while others are in its conflicts with the prevailing procedural and constitutional realities in daily practice. This paper looks at some of these challenges from the point of view of a legal practitioner who has tried to use it in Kenya’s Magistrates’ Courts.

Sweden, Inc.: Temporal Sovereignty of the Realm and People from the Middle Ages to Modernity

Sweden, Inc.: Temporal Sovereignty of the Realm and People from the Middle Ages to Modernity

One President at a Time? How the President‐Elect Shapes U.S. Foreign Policy during the Transition

AbstractOver the past six decades, the presidential transition scholarship has grown increasingly rich, yet little systematic attention has been paid to the foreign policy activities of the president‐elect. The idea that the United States has “one president at a time” may be a constitutional reality, but it is also a political fiction, more honored in the breach than in the observance. This article demonstrates how U.S. foreign policy operates along several simultaneous tracks during the formal transition period between the election and inauguration. We develop and illustrate a new framework for understanding the underexplored role and significance of the president‐elect as a foreign policy actor during the era of the “modern presidency.” By refuting the notion that the president‐elect is a nonentity, this article lays the foundation for more active exploration of the foreign activities of presidents‐elect and their impact on U.S. foreign policy.

Discriminatory Policies and Laws Target Indian Muslim minorities in the Recent Time: A Socio-Legal Study

The article gives a short overview of targeted discrimination against Muslims as minorities in India and the apathy of legal and political agencies to protect them. It suggests that neither of these two perspectives adequately capture the Indian Government’s attention nor cease sufficiently the attention of the international legal order, which has a normative architecture unto its own. This article focuses on the uncertain effect of religious autonomy in India and democracy. The Indian constitution guarantees autonomy to its religious minorities and promises the minorities freedoms but there is a huge gap between constitutional rights and political reality for minorities, especially Muslims. Indian democracy has been weakened by the rise of xenophobic nationalism and threats to religious minorities. Even their safety and religious freedom have been compromised. Muslim women are abused and targeted publicly online. These trends were evident in the last few decades but have dramatically increased in recent years, and the administration has turned a blind eye. In response, the present Union Government of India and its political party attempt to engineer a Hindutva version of lebensraum in India. The radical Bhartia Janta Party government passed discriminatory laws that are eroding the democratic nature of India and undermining its religious freedoms.

Future Challenges to The Federal System in Iraq

The federal system in Iraq faces many future challenges that this country is going through, because the constitutional reality contradicts its provisions due to the weakness or lack of political consensus between parties and the principle of national participation in accordance with constitutional and political foundations in the institutions of the state. In addition to that the Iraqi federalism is facing mysterious obstacles, due to the differences between political parties, which is the cause of division or dismantling. It is expected that the future relationship between the Kurdistan region and the federal government is likely to go through difficult stages, especially after the Kurdistan regional referendum on 25 September 2017 and the failure to adopt the federal system in Iraq properly in accordance with the provisions of the Constitution, which recognized the Kurdistan region as a result of its existence as a reality, and the new region faces many obstacles and challenges facing the federal system in Iraq in general.

СОВРЕМЕННОЕ РЕФОРМИРОВАНИЕ МЕСТНОГО САМОУПРАВЛЕНИЯ: ПОЛИТОЛОГИЧЕСКИЙ АНАЛИЗ

The article is devoted to the current state of the problems of reforming local self-government and the direct relationship of political parties to the reform of local self-government in Russia. The subject of the article is the aspects of reforming local self-government in the vision of political parties. The purpose of the article is to study the essence of municipal reform in the party discourse devoted to the problems of constitutional reform of local government at the present stage of development of Russia. This article presents various methods, such as analysis, comparative method, which to a greater extent make it possible to define the conceptual apparatus, to conduct a comprehensive analysis of the current state of local self-government in Russia in the context of municipal reform. The reform of local self-government initiated in 2019 affected the essential constitutional foundations of local government that have existed since the adoption of the Constitution of Russia in 1993. In the new constitutional and legal realities, a qualitatively new model of local self-government in our country has been fixed: the place of local government in the vertical of state power, the territorial basis of local self-government, the structure of local self-government bodies and the procedure for institutionalization of local self-government bodies and officials has changed. The attitude of representatives of political parties to this municipal reform is quite polar, party members do not unequivocally assess the consequences of the reform of local government. The results of the study can be useful in conducting seminars for municipal employees and heads of municipalities, and the results of the article can also be applied in the work of members of political parties and their regional branches, whose members are members of legislative (representative) bodies of Russia and its subjects, in the course of legislative activity

The Prospect of Pragmatic Confucian Democracy: Reply to Dryzek, Macedo, Ackerly, and Li

The Prospect of Pragmatic Confucian Democracy: Reply to Dryzek, Macedo, Ackerly, and Li

What Do Preambles Do? A Study of Constitutional Intent and Reality

‘We, the people’ is the most popular phrase from the constitutions. In spite of the fact that the number of countries including preamble as part of their constitution has been on the rise, preambles have received scant attention in academia. The importance of preambles has been established in multiple studies yet preambles have been looked at in isolation from socio-economic-environmental contexts. Our article attempts to present a unique insight by correlating preambles with the socio-economic-environmental and infrastructural context within which they exist. It explores whether these correlations exist and if they do with which features and to what extent and the possibility of a causal link.We pursue a statistical study between various indicators that reflect the growth of a country and the presence or absence of various elements in preambles across the world. Our study finds that correlations exist between the economic-social-environmental and infrastructural context of a nation-state and different elements in their preambles. Our study rigorously engages with patterns in development indicators across years to provide correlational insights into the role of preambles not just as a dormant reference but as active fragments of the socio-political-economic reality of a nation-state. We hope our article establishes grounds for a further study of the manner in which preambles and the non-political aspects of a nation-state can engage with each other.

Международная научно-практическая конференция «Актуальные проблемы науки административного и финансового права» («Лазаревские чтения – 2021»)

The Institute of State and Law of the Russian Academy of Sciences is famous for the fact that outstanding Soviet and Russian scientists worked there and continue to develop legal science at the highest academic level. Boris Mikhailovich Lazarev was one of them. In 2021, Boris Mikhailovich would have turned 91 years old. In his memory and with respect to his merits, scientific events are held annually. A distinctive feature of this conference was that it had the status of an international one. Its participants were citizens from 10 countries, including representatives of Europe, Asia, and Africa. First Institute of state and law Russian Academy of Sciences invited as participants of regional representatives, and the program of the conference was formed based on the priority of delivering scientific presentations of representatives of regions. The purpose of the conference was to consider current problems, current trends and prospects for the development of administrative and financial law, in the context of new constitutional realities. Participants, following the results of the conference, a Resolution was adopted (attached).

Mind the gap: Analyzing the divergence between constitutional text and constitutional reality

Abstract Constitutional economics—the analysis of constitutions drawing on the economic approach—has made important progress over the last two decades. The factors determining whether a constitution is complied with, however, have received only little attention. This is surprising, as a huge gap between constitutional text and constitutional reality seems to exist in many countries. In this article, this gap is referred to as the de jure/de facto gap. The article discusses ways in which the gap can be researched systematically and surveys the scant available literature that has tried to do so thus far.

Science of constitutional law as a basis for the development of the state legal system

The article analyzes the influence of the science of constitutional law on the formation of constitutional legal relations in the state. The role of scientists in identifying trends in the development of the state and law is reflected. The role of the Constitution as a fundamental act, as an act integrating the entire national legal system, is emphasized. Suggestions are made to improve the system of checks and balances. It is emphasized that the development of constitutional law is influenced by the European legal space. European integration is the most important factor in the process of further development and improvement of national legal systems. A special threat to the stability of the state is created by the split of society, the lack of unity of the people in solving basic issues (property, political pluralism, the real provision of rights and freedoms regardless of political views). The coincidence of constitutional reality and constitutional norms is the most important condition and manifestation of the unity of the state and citizens.

Imperial Diversity, Fractured Sovereignty, and Legal Universals: Hans Kelsen and Eugen Ehrlich in their Habsburg Context

This essay places Eugen Ehrlich and Hans Kelsen afresh in their common context, the late Habsburg Empire. It reframes Ehrlich's legal sociology and Kelsen's pure theory of law as co-original and connected responses to the problem of legal universals under conditions of fractured sovereignty and imperial diversity. At first glance, Kelsen and Ehrlich seem antipodes, an impression apparently confirmed by their prickly exchange in the 1910s: while Kelsen made universality reside in the formal features and sequences of imputation that held the normative order together, Ehrlich claimed that every normative system which purported to be meta-social and meta-cultural merely camouflaged its local conditions of emergence. Once resituated in their Habsburg environment, these strategies can be read as articulations of a broader set of common proclivities. Ehrlich's and Kelsen's proficiency in the empire's techniques of plurality management enabled them to demystify the state and to dismantle the nation: both perceived the state as a juristic construction, hence they unmasked its alleged social, cultural, and ontological unity as a delusion. The same held true for the nation: Ehrlich challenged its supremacy by showing that social relationships—“associations”—cut across national divides, while Kelsen delegitimized the nation's status as a rights-bearing collective and blurred the distinction between citizens and alien residents, working toward the civic enfranchisement of the latter. This dovetailed with Ehrlich's and Kelsen's unmaking of the distinction between private and public law: the false belief in the latter's superiority over the former served to license arbitrary rule. Both jurists deterritorialized state sovereignty by highlighting the brittleness of spatial dominion and the artificiality of political boundaries: Ehrlich and Kelsen discovered a gamut of sovereign authorities with overlapping spatial areas of jurisdiction that coexisted within the Habsburg polity. This in turn permitted them to effectively transcend the distinction between domestic and international law: while, according to Ehrlich, the state fizzled out on the local level, Kelsen redescribed it from a global perspective, turning it into a mere subordinate organ of world law. Ehrlich's legal pluralism and Kelsen's pure theory were the two most successful juristic legacies of the Habsburg polity whose imprint they bore. Both creatively reworked Habsburg constitutional reality into templates of legal order that survived the empire's demise.