Power Doctrine Research Articles

Xi Jinping’s doctrine of power

The development of modern China, the growth of its economic power and the strengthening of its influence in the international arena cannot be separated from the leadership of the CCP. To some extent, Xi Jinping’s rise to power marks the beginning of a “new era.” Xi Jinping was guided by the slogan of “comprehensive deepening and acceleration of reforms.” In the introduction to the Constitution of the concepts of state structure of the People’s Republic of China, Xi Jinping’s “guiding ideas” were added to the contributions of Mao Zedong and Deng Xiaoping. The article examines the evolution of the formation of the CCP’s power doctrine under the leadership of Xi Jinping, as well as the basic concepts and principles. The main aspects of the theory of “socialism with Chinese characteristics in a new era” and the ideas of Xi Jinping are analyzed, new features of socialism and the innovative path of China, the ideology of classical Marxism are analyzed. At the same time, China’s strategic domestic and foreign policy is aimed at realizing the “Great Renaissance of the Chinese Nation” and “China Dream” through the implementation of ideological and economic mega-projects that contribute to the global process. This topic is one of the most relevant today. Therefore, the main purpose of this article is to reveal the doctrine of Xi Jinping’s rule. Key words: Xi Jinping, XIX Congress of the Communist Party, Socialism with Chinese features in a new era, great revival, Chinese dream.

Implementation of the Implied Powers Doctrine by the UN International Court of Justice

The article provides for an overview and analysis of the UN ICJ’s practice on implementation of the implied powers doctrine. Main Court’s cases (judgments and advisory opinions) related to this doctrine were examined (Reparation for Injuries Suffered in the Service of the UN (1949), Effect of Awards of Compensation made by the UN Administrative Tribunal (1954), Certain Expenses of the UN (1962), Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996), and Fisheries Jurisdiction (1998)).
 It is noted that the implied powers doctrine became an implementation of the principle of efficiency, which is well known in international judicial practice as the principle interpretatio fiеnda est ut res magis valeat quam pereat. It allows to interpret the charters of international organizations in a more ‘dynamic manner’. The implied powers doctrine, on the one hand, expands the limits of such interpretation, and on the other hand, it limits it. Its antipode is the doctrine of inherent powers that allows to make more broadly interpretation of the charters of international organization based only on its goals. In this connection a comparative analysis of two competing doctrines – of implied powers and inherent powers – is made.
 The author of the article examined the legal positions of the International Court of Justice that allow to the supporters of the inherent powers doctrine to assert that it has wide application. But, based on the methods of interpretation used by the ICJ in making these judgments and advisory opinions, he come to the conclusion that the Court fully supports exactly the implied powers doctrine.

Commentary

Commentary

Policing Arbitrariness: Fleming v. Ontario and the Ancillary Powers Doctrine

Policing Arbitrariness: Fleming v. Ontario and the Ancillary Powers Doctrine

Is Power Noumenal in Nature?

ABSTRACTThis paper engages Rainer Forst's doctrine of noumenal power. At the centre of this doctrine is its signature claim that power is noumenal in nature. I reconstruct Forst's definition of power and distinguish three conceptions of noumenal power in his writings. I argue that, on each conception, we should reject that claim. It emerges that the professed noumenality of power is either a trivial feature of power, or else a feature only of some forms of power. Consequently, Forst's definition of power cannot be adequate and the claim that power is noumenal in nature is either trivial or false.

“Neque declinet in partem dextram vel sinistram”: dualizm vlasti v anglijskoj politicheskoj mysli XII v.

The article is devoted to examination of the basic opposition “prince/tyrant” in the context of the doctrine concerning the monarch’s supreme power which was defined on the pages of the treatise “Policraticus” by outstanding English intellectual, diplomat and polemist John of Salisbury in 1159. The thinker’s arguments on nature, functions and purposes of power are analysed, virtues that God-fearing monarch has and tyrant vices are considered. Studying John of Salisbury’s concepts of the prince’s and tyrant’s power, the article affords approaches to understanding scholastic’s doctrine of political power as whole which unites Hellenistic and Roman and Christian (patristic and scholastic) traditions.

Policing Arbitrariness: Fleming v. Ontario and the Ancillary Powers Doctrine

In 2019, the Supreme Court of Canada released its decision in Fleming v. Ontario. The case is significant because it is one of the very few police powers cases in the past three decades in which the Supreme Court has declined to recognize a new power. Since the pivotal case of Dedman, police powers jurisprudence has been characterized by the recognition of increasingly more intrusive common law powers to detain, investigate, and search. It is therefore notable that in Fleming, the Supreme Court refused to recognize a new common law police power to preventatively arrest a law-abiding individual in order to protect them from harm by third parties. As we explain, however, it is unlikely that Fleming represents a turning point in the jurisprudence. The weight of authority continues to favour the recognition of police powers. Moreover, the real problem with the power sought in the case was not that it failed to satisfy Waterfield’s demand of reasonable necessity. The issue was that it would have permitted the police to arrest a person not suspected of wrongdoing. We argue that preventative arrests of law-abiding individuals should be considered “arbitrary” within the meaning of section 9 of the Canadian Charter of Rights and Freedoms because they are not based on reasonable grounds to believe that a person committed, is committing, or will commit a crime. We also contend that the constitutional prohibition against arbitrariness explains why the Court should decline to recognize new common law police powers where Parliament appears to have exhaustively set out a power’s scope, as it has in the arrest context. The prospective delineation of arrest powers promotes rule of law values and decreases the risk of the exercise of arbitrary police power.

Courts of the Conqueror: A Framework for Tribal Standing

The Supreme Court has recognized that states are entitled to “special solicitude” in the standing analysis, which lightens their burden of demonstrating the constitutionally required elements of injury, causation, and redress-ability when they bring a suit against the federal government. While some lower federal courts have begun to extend similar solicitude to tribal plaintiffs, existing scholarship largely justifies this extension based on theories of implicit divestiture of tribal sovereignty to the federal government. By relying on these theories, scholars would require tribal plaintiffs to endorse centuries of problematic doctrine that undermine tribal self-government and autonomy in order to bring their claims in federal court. Instead, this article argues for a broader interpretation of the Court’s special solicitude case law that would extend to circumstances in which the structure of the Constitution inhibits a government plaintiff from seeking redress for its injuries outside of the federal courts. This framework would apply equally to states — whose regulatory authority may be preempted by the Supremacy Clause — and Indian tribes — who have limited ability to enter regulatory agreements with states to address their grievances in light of the Constitution’s centralization of authority over Indian relations in the federal government. Re-framing the standing inquiry in this way is one step toward decolonizing federal Indian law, enabling Indian tribes to use the American legal system without having to embrace the degrading nineteenth-century precedents that laid the foundations for the modern landscape of federal Indian law. A grant of special solicitude to Indian tribes will also expand tribal access to federal courts, allowing judicial review to serve as a greater check on the expansive power that Congress wields over Indian affairs under the plenary power doctrine and increasing the ability of tribes to vindicate their rights and interests in the “courts of the conqueror.”

Clement to the Corinthians (on climate change?): sojourning as a theologico-political alternative to environmental emergency rhetoric

After decades of critical scholarship calling attention to the dangers of emergency powers, many critical theorists and political activists are now turning to those same tools to combat climate change. The Climate Emergency Declaration movement advocates directly for the declaration of political states of emergency in jurisdictions across the globe. This article intervenes to recall the danger of emergency powers, with particular attention paid to the crucial role played by the political state of emergency (originally l’etat de siege fictif) in nineteenth-century France in the development of emergency power doctrine and twentieth-century authoritarian sovereignty. The second half of the article looks for an alternative, arguing that the radical and emancipatory response to the threat of climate change ought to be grounded in a political theology of ‘sojourning’, rather than the exception, drawing on the First Epistle of Clement of Rome to the Corinthians, as well as the commentary on that letter by Giorgio Agamben. This theologico-political response to the ethics of climate change furthers the scholarly debate on political theology and International Relations theory by engaging one of the crucial challenges of the twenty-first century and by developing a potential model for theological discussions of ethical problems beyond religious moralizing.

ПРОБЛЕМА RESSENTIMENT В ФИЛОСОФИИ ПОСТАНАРХИЗМА

Статья посвящена изучению рецепции идей классического анархизма в философии постанархизма. Ее цель – вычленить философскую суть учения Ф.Ницше о ресентименте, опираясь на работы С.Ньюмена, что позволит сформулировать характерные черты философии постанархизма. Примененный к анархистскому дискурсу фукианский анализ функционирования современной власти обнаружил наличие механизмов принуждения в самом анархизме. Постанархизм представлен как философия, избегающая эссенциализма.

State of exemption: migration policy and the enactment of sovereignty

ABSTRACT Migration is a policy area through which current nationalist governments enact territorial state sovereignty. This paper builds on Giorgio Agamben’s work to suggest that the liberal territorial state enacts itself as sovereign by claiming to be exempt from its own liberal principles. While enlightenment philosophies provide little guidance on the link between sovereignty, territory and migration, a materialist perspective offers valuable insights into how migration policy asserts sovereignty. Using the case of the United States, the paper illustrates how control over migration has always been important to enact this settler society as a sovereign state, and how migration policy has continued to maintain state sovereignty. The plenary power doctrine has facilitated this practice by permitting the state to disband the liberal domestic norms engrained in the US Constitution. Migration policies that blatantly violate liberal principles render the state sovereign by demonstrating its unaccountability.

MODERN INSTITUTE MODEL OF THE PRESIDENT OF THE RUSSIAN FEDERATION: CONTINUITY AND DEVELOPMENT

The article is devoted to the study of the constitutional model of the Institute of the President of the Russian Federation. The constitutional doctrine of a strong presidential power is examined, scientifi c disputes about the place of the President of the Russian Federation in the system of federal government bodies are analyzed. The effectiveness of the functioning of the state largely depends on the President of the Russian Federation, which increases the significance of the continuity of power of the President of the Russian Federation due to his special place in the system of separation of powers. The need arises to establish additional guarantees for the stability of functioning of the state, to preserve the main strategic directions of its development, and basic constitutional values. One of such guarantees aimed at optimizing the functioning of a balanced system of public authorities and ensuring its continuity, according to the author, it is proposed to recognize the possibility in the future of establishing in the Constitution of the Russian Federation a new form of government in Russia a dualistic presidential republic in which the newly elected President of the Russian Federationwill function in cooperation with the President of the Russian Federation, whose term of office has expired. Accordingly, options for the distribution of powers between the two Presidents of the Russian Federation, which are part of a single institution of the President of the Russian Federation, are considered. Moreover, the main purpose of each of the Presidents of the Russian Federation is the President of the Russian Federation. After the termination of the exercise of his authority in connection with the expiration of his tenure, he is called upon to ensure the continuity of constitutional development and the maintenance of basic values. The newly elected President of the Russian Federation could be responsible for the development of society, the state, while excluding stagnation.

Congress’s Power to Compel Executive Branch Information Sharing: The Lost Precedent of 1789 and Its Implications for Contemporary Separation of Powers Doctrine

In 1789, the First Congress passed the “Act to establish the Treasury Department,” creating one of the three “great departments” that would form the foundation of the US federal government as we know it. Critical to this statute was the fact that Congress, in addition to the President, provided oversight of the Treasury Secretary. Specifically, Section 2 of the Act required the Treasury Secretary to “make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office.” By a resolution of either house, Congress could demand the Treasury Secretary provide it with any information related to his department. This requirement did not stem from Congress’s generalized investigative, or “inquiry,” power. It was instead understood to be an exercise of a different (and apparently broader) Congressional power to order Executive Branch officials to provide information to Congress. The Treasury Act is not an aberration of American legal history, used briefly in the 1790s and then forgotten. Instead, for nearly 150 years after its passage — until at least the 1940s — the Treasury Act’s reporting requirement was widely cited as a foundational separation of powers precedent that demarcated the relative power of Congress relative to the President. That the Treasury Secretary (and, by analogy other high Executive officials) was duty-bound to report to the legislature was treated for over a century as one of our nation’s oldest separation of powers principles, dating back to the early colonial constitutions. Presidents, legislators, Supreme Court justices, and Secretaries testified to the Constitutionality and importance of the Treasury Secretary’s duty to Congress. Then, around the middle of the 20th Century, all references to the Treasury Act and its central place at the heart of separation of powers doctrine disappeared. This happened even though Section 2 of the Treasury Act in fact remains the law, codified under 31 U.S.C. § 331(d), which states “The [Treasury] Secretary shall report to either House of Congress in person or in writing, as required, on matters referred to the Secretary by that House of Congress.” Why is the Treasury Act, with its important consequences for the relationship between the President and Congress, completely absent from our “modern” separation of powers doctrine? The generical principles of Congressional non-delegation and anti-aggrandizement, elaborated in INS v. Chadha and Bowsher v. Synar, are seemingly at odds with the principle embodied in the Treasury Act. This article seeks to reestablish the centrality of the Treasury Act to any understanding of the powers of Congress and the Executive Branch relative to one another. It explores how the history of the Treasury Act, and the reporting requirement it encapsulates, may inform a new interpretation of separation of power doctrine, at least as it relates to the Treasury Department. More broadly, this article tries to better understand what the stark disconnect between theoretical and historical accounts of separation of powers doctrine says about modern constitutional interpretation in the courts and in scholarship today.

The use and perversion of originating constituent power in Venezuela (1999-2019)

The aim of the study is to examine the exercise of originating constituent power in Venezuela between 1999 and 2019, through the lens of the doctrine of constituent power and in order to examine its influence in this praxis. In particular, the study examines the 1999 constituent experience, and the activation of originating constituent power in 2017 by President Maduro, to finally arrive at the idea that the design of Art. 347 of the 1999 Constitution of the Bolivarian Republic of Venezuela could be at the root of the political-institutional dysfunction the country suffers from today, as it could serve a latent political temptation to reinvent the constitutional wheel.

PROGRAMS OF HOLIDAY GOVERNMENT CONCERTS – THE MUSICAL DOCTRINE OF THE USSR IN CULTURE (30s – 50s of the XX century)

In the second half of the 30s in the USSR the everyday life of the Kremlin courtyard took its shape, the tastes of which were reflected in the programs of government concerts, which were full of opera arias, duets, ballet acts and all kinds of folklore. In totalitarian states the tastes of the leader largely determine the state’s cultural policy. The ruling elite decides which areas of art are needed by the people and which are not. The musical doctrine of Soviet power was based on the musical tastes of the leader. This doctrine bore the mask of “socialist realism in music”. But it was precisely the “mask”, under which music gave pleasure to Stalin. The article provides a comparative analysis of the programs of government concerts in the Kremlin and the program repertoire of the State Academic Opera and Ballet Theater after T.G. Shevchenko in Kiev. Based on the recollections of participants in government concerts in the Kremlin, a subtle connoisseur of music Y. Elagin and an outstanding Soviet ballerina M. Plisetskaya, the author recreates the atmosphere of Soviet official receptions, many of which were an important event not only in the political but also in the cultural life of Soviet society.

The use and perversion of originating constituent power in Venezuela (1999-2019)

The aim of the study is to examine the exercise of originating constituent power in Venezuela between 1999 and 2019, through the lens of the doctrine of constituent power and in order to examine its influence in this praxis. In particular, the study examines the 1999 constituent experience, and the activation of originating constituent power in 2017 by President Maduro, to finally arrive at the idea that the design of Art. 347 of the 1999 Constitution of the Bolivarian Republic of Venezuela could be at the root of the political-institutional dysfunction the country suffers from today, as it could serve a latent political temptation to reinvent the constitutional wheel.

The Plenary Power Meets the Police Power: Federalism at the Intersection of Health & Immigration

The regulation of immigration has traditionally been considered an exclusive federal function, over which the elected branches have so-called plenary power. In contrast, the protection of public health has long been viewed as falling primarily within the purview of the states’ police power. These two long-standing, but never fully followed, tenets of federalism are increasingly in tension as so-called Blue States seek to expand non-citizens’ access to health benefits, while the Trump Administration institutes a series of immigration restrictions that will deter non-citizens from utilizing health benefits or accessing health care. This paper explores this tension, focusing in particular on the federalism implications of the Administration’s public charge rule. Part One of the paper discusses the doctrinal foundations for the federal government’s exclusive and plenary power over immigration, as well as the state’s primary responsibility over health. Part Two problematizes the notion of separate spheres, and looks at the overlapping and contested relationship between the federal government and the states with respect to immigration, health, and especially immigration policies that relate to health. Part Three discusses the values, including self-governance, accountability, and separation of powers, that are salient to determining the appropriate scope of federal and state action at the intersection between health and immigration. The paper concludes by arguing that these values, as well as a regard for public health, should lead courts to reject an expansive application of the plenary power doctrine when a President’s immigration initiatives impede state health policies.

Extraterritorial Rights in Border Enforcement

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in at least two circuit splits. Specifically, the Article explores differences in courts’ selection and application of the Supreme Court’s main extraterritoriality tests; various ways of conceptualizing the interaction between the Court’s extraterritoriality jurisprudence and the plenary power doctrine, which one appellate court described as “competing” constitutional fields; and contrasting approaches to the role of separation of powers as a limiting structural principle, given the ambiguity of the Constitution’s text regarding is geographic scope. The separation of powers analysis reflects particular concerns about the executive branch’s manipulation of the border as a legal construct, as well as its manipulation of national security as an illusory threat, in order to evade accountability. The Article concludes that extending constitutional protections, preserving judicial review, and critically examining demands for deference are crucial in this context in order to avoid creating a law-free zone just beyond our southern border.

Oleksandr Kashchuk. Monothelitism in Byzantium of the Seventh Century. Doctrine, Politics and Ideology of Power

BOOK REVIEW: Oleksandr Kashchuk. Monothelitism in Byzantium of the Seventh Century. Doctrine, Politics and Ideology of Power.Монотелітство у Візантії VII століття: доктрина, політика та ідеологія влади: монографія / Олександр Кащук. [Monothelitism in Byzantium of the Seventh Century. Doctrine, Politics and Ideology of Power / Oleksandr Kashchuk] – Львів: ЛНУ імені Івана Франка, 2019. – 346 с. ISBN 978-617-10-0530-3*

Debate, Discussion, and Disagreement: A Reassessment of the Development of British Tactical Air Power Doctrine, 1919–1940

This article investigates the work conducted by the Royal Air Force (RAF) in the development of tactical air power in the interwar period. It analyses the RAF’s theoretical doctrinal thinking during the period along with exercises conducted on a joint Service basis to further develop these ideas in practice. It will argue that, rather than neglecting tactical air power during this period as is the accepted view, much good theoretical work was done that formed a theoretical and intellectual basis for the further development of tactical air power in the light of operational experience during the Second World War.