Law-making Function Research Articles

Critical analysis of the law-making paradigm of the Constitutional Court of the Russian Federation

The constitutional control of the Constitutional Court of the Russian Federation is aimed, to a certain extent, at creating (temporary) legal norms. Law-making in itself is not the basis for the activity of the Constitutional Court of the Russian Federation, however, at the same time it is hardly possible not to recognize the existence of a special function for the creation of law for the Constitutional Court of the Russian Federation. This function of constitutional justice is implemented in practice through the prism of constitutional control. At the same time, approaches to determining the powers and functions of the Constitutional Court of the Russian Federation on this issue differ significantly from each other. Based on this, the subject of the study is the decisions and legal positions of the Constitutional Court of the Russian Federation, which have an impact on the Russian legal order. The research methods used are logical, comparative legal, formal legal, hermeneutic and empirical methods of cognition. The discussion on the role and significance of the law-making function of the Constitutional Court of the Russian Federation is far from over, and assessments of such activities of the Constitutional Court of the Russian Federation vary from radical to conservative. The author concludes that the law-making function of the Constitutional Court of the Russian Federation is a secondary function of the Russian judicial review body, it is not the necessary role of the Constitutional Court of the Russian Federation. At the same time, the processes of constitutionalization and, in particular, the creation of temporary legal norm by the Constitutional Court of the Russian Federation affect the Russian legal system.

Rekonstrukcja pojęcia prawniczego domniemania interpretacyjnego

Juridical presumptions, including interpretative juridical presumptions, have not been elaborated on in detail in theoretical and legal terms, although they are an interpretative tool often used in jurisdiction and literature. Recently there has been a revival of the discussion on the presumption of constitutionality (conformity with the constitution) of laws (statutes). Another example of an interpretative juridical presumption is the presumption of rationality of the legislator, based on the assumption of rationality of the legislator elaborated in the 1970s by Leszek Nowak and Jerzy Wróblewski. A comparative analysis of interpretative juridical presumptions with institutions such as legal presumptions and legal fictions allows to reconstruct the most important features of the former in terms of their structure and functions, and this in turn will allow to claim that interpretative juridical presumptions are directly referred to by the authorities applying the law in difficult cases in which it is impossible to complete the interpretation process without taking into account the basic values of the legal system, not directly expressed in this system or only sketched at the level of constitutional standards. Due to the special role that interpretative juridical presumptions play in the process of interpretation, their law-making function may be also discussed.

Russian Civil Law in the Light of Transatlantic Differences in Legal Thought

The paper states that recently changes have been made to the procedural codes, which actually led to the legislative recognition of judicial practice as a source of substantive law (including civil law). Judicial practice, at least since the mid-90s of the last century, has not stopped trying to master the law-making function, the intensity of which has significantly decreased after the Supreme Arbitration Court of the Russian Federation ceased its operation. The science of civil law, represented by a large group of scholars, has also taken the path of justifying the search for law beyond the law. The paper substantiates the idea that this «ultra-American» trend does not correspond to the social conditions of Russia. Russian civil law should return to its German origins, which implies the search for law exclusively within the framework of the law. At the same time, the concept of legal interpretation and law enforcement borrowed in Germany should be supplemented with a rationalistic doctrine of legal interpretation. This approach will replace intuitive jurisprudence, covered by references to the «meaning» of legislative and other regulations.

The Possibility of Regulatory Function of Judicial Power

The article presents two theses. The first is that previous court judgments can be „sources“ of general rules and standards that will constraint the courts, as decision-makers, even if they are not formally established as legally binding. The second is that it should be so for several reasons – the most important being predictability and equality. In this part of the article the concepts of separation of powers, types of state functions, and judicial power are explained. The reasons why the judicial power can perform the law-making function in a legal system in which it is not formally established are presented. As an illustration of how the system in which courts perform a law-making function works, the application of the doctrine of stare decisis in the USA is described. Finally, several decisions of the Constitutional Court of Serbia that indicate similar practice in Serbian legal system are analyzed.

Framing the normative role of the right to a healthy environment: thinking with internormativity, embodiment and emergence

This article critically examines the modalities through which the right to a healthy environment shapes environmental law and the environmental law-making function of the State. I argue that construing the right to a healthy environment through the prism of internormativity, embodiment and emergence can facilitate a conceptual leap that allows the right to be more attentive to people’s lived experiences of environmental injustice and harm. The conceptual leap I advocate for is in response to the fact that a constitutionalized right to a healthy environment potentially reproduces specific normative, ontological and discursive closures that have typically been associated with the prevailing positivistic view of the law. These closures work to disengage the right from the physical and factual dimensions of people’s experience of environmental injustices and harm. The main normative closures manifest as liberal positive law’s exclusion and devaluation of the normative potential of ordinary formal law and of productive forms of knowledge drawn from diverse philosophical-cultural traditions. Institutionalized human rights propagate liberal law’s erasure of embodiment, justifying the attendant piecemeal attention given to the full scope of human suffering. The treatment of constitutional human rights as an ultimate, stable framework for validating and legitimizing ordinary law forecloses the discursive practices that give meaning to human rights law beyond formal law-making processes and institutions. In light of these closures, construing the right through the three-pronged conceptual lens suggested here could, I contend, help focalize actual human experiences of environmental injustices and harm by harnessing the normative potential of formal and informal sources of values and norms, by centralizing embodiment as the actual ontological circumstance of the human beneficiary of the right and by giving voice to discursive strategies that imbue meaning to the right to a healthy environment beyond its formal rendition.

Legal Acts of the Federal Guard Service of the Russian Federation: Features and Classification

As the scope of legal regulation expands and the number of legal acts grows steadily, the problem of ensuring their quality as well as their correct and effective application becomes more and more evident. The lack of a legal definition of “legal act” aggravates the situation and increases “tensions” in the legal system. The law-making function is carried out by various subjects, including the Federal Guard Service of the Russian Federation. The system analysis of the features of legal acts it issued is relevant in the context of ensuring human and civil rights and freedoms, achieving the goals of legal regulation, development of the theory of legal acts. The purpose of this study is to determine the characteristics of legal acts of the Russian Federal Guard Service as a subject of law. The objective of the study is to analyze legal acts of the Russian Federal Guard Service as regulators of legal relations arising in the process of ensuring the security of state protection facilities and protection of guarded objects. Its methodological basis was a scientifically grounded concept of integrative legal understanding, according to which law is a system of principles and norms contained in a single, evolving and multilevel system of forms of national and (or) international law implemented in the state. The work is based on such methods of scientific knowledge as: dialectical, systematic, logical and formal-legal. It has been established that legal acts of the Russian Federal Guard Service have common features inherent in all legal acts. Their specific features are a reflection of the peculiarities of the functional characteristics of the Russian Federal Guard Service as a subject of law. The internal content of the legal acts of the Russian Federal Guard Service complies with the requirements of formal logic. The norms of law contained in them are characterised by absolute certainty.

Sociability and education in Kant and Hessen

Sociability is a concept that reflects not only the individual's ability to enter into social communication, but also the dependence of the structure of social interaction on the degree of the individual's freedom in society. Kant's ethics arguably represents a key stage in the development of this idea. However, it was not until a later era that a comprehensive notion was formed according to which the social actualisation of individual freedom is a significant factor in social development. The Russian neo-Kantian, Sergey Hessen, develops a model of sociability where education forms free individuals who exercise their freedom through the development of culture. I reconstruct Hessen's model and establish that, proceeding from Rickert's axiology, he showed how education can improve the realisation of the ideals of freedom and equality in the framework of Kant's individualistic treatment of society. In his pedagogical philosophy, Hessen identifies stages in human development (anomie–heteronomy–autonomy), in the course of which the individual renounces arbitrariness. Hessen stresses the crucial significance of the secondary school in developing an awareness of freedom as duty and of society as the sphere of its actualisation. In his legal theory, Hessen strips the state of its law-making function and distributes that to the whole society. This enables free individuals to accept the need for universal subjection to the law under conditions of equality. Hessen proposes a new social structure: individuals create collective entities, each of which forms its own legal order, while the state coordinates these legal orders to prevent conflict and contradictions among them.

The Role of Bias in Economic Models of Law

AbstractBehavioral economics has highlighted the impact of various biases on economic outcomes. This essay reviews how biases have been incorporated into economic models of the law and the resulting implications for the assessment of different legal rules and policies. It focuses on two contexts. The first concerns biases that affect consumer purchases of risky products. Using a standard accident model that incorporates various forms of consumer bias, we discuss how bias can affect the efficient assignment of liability for product-related accidents. The second context concerns biases that affect the administration of law, particularly regarding the adjudication of guilt, the lawmaking function of trials, and criminal sentencing. We examine procedural rules like precedent and sentencing guidelines, both of which are aimed at curtailing judicial bias.

The Theory and Practice of Precedent in International Adjudication: A View from Ukraine

This article argues that legal pragmatism and realism are the methodological basis for considering the law-making function of international courts. Classical scientific approaches, the representatives of which view courts only as applicators of the law, do not allow research into the nature and role of international adjudicative bodies. Since there are several positions on the nature, content, and legal force of the precedent decisions of international adjudicative bodies (the are both diametrically opposed and, to some extent, similar), the author takes a position that considers the characteristics of modern international relations. The author proposes to classify international judicial precedents by considering the construction of judicial institutions and the legal force of decisions because these criteria reflect the nature and significance of such decisions. The classification divides precedents into vertical and horizontal (persuasive). The author argues that vertical precedent set by a particular body of international justice can be absolute, i.e., a structurally lower judicial body can, under no circumstances and exceptions, make a decision without taking into account the legal conclusions made by the higher judicial body. Vertical international judicial precedent may also be relative, i.e., in certain circumstances, a higher judicial body may make a different decision in a similar case, which suggests no obligation to be bound by its own previous decisions. Analysis of the decisions of many international courts has led to the conclusion that international courts create judicial precedents of persuasive content. In particular, the author uses decisions of the European Court of Human Rights (ECtHR) that contain citations of the Court’s own legal positions and the International Court of Justice’s legal positions. It is proved that the so-called horizontal precedent is a persuasive precedent, the content of the legal provisions of which is based on the authority of the cited international court’s decisions. Thus, international judicial precedent not only exists but must be recognised legally because only the formal enshrinement of the legal force of such decisions will lead to the recognition of judicial precedent as a formal source of international law.

Legal nature of judicial practice as a type of legal practice

Development and modernization are characteristic of all processes and phenomena, including state and legal processes. In accordance with the generally accepted approach in the theory of state and law, the law-making func-tion must exist in the highest state bodies according to their competence within the system of division of state power into legislative, executive and judicial branches. This approach leads to the need to analyze the state of courts in Ukraine and their decisions as documents that are part of the system of sources of law. As a result of such analysis, it can be argued that there is a possibility and need to recognize the existence of special forms of judicial activity - judicial lawmaking, which is manifested in the quality and effective formation of the judicial practice.The need for recognition of judicial lawmaking, which complements the provisions of current legislation of Ukraine, currently exists in our country. This process would give more flexibility to the whole system of sources of law, prestige and mandatory observance of the law due to its stability, efficiency, quality and immutability for a long time, “unload” the subject of legislation and help him find new methods and instruments for settling public relations and resolving disputes over law in various areas of law.Thus, it is extremely necessary today for research and analysis and analysis, which are related to outlining the place and legal nature of judicial practice and the whole process of lawmaking, analysis of the relationship of judi-cial practice with other types of legal practice, as well as identifying features and specifics of legal regulation in this area, justification of the existence of judicial practice as a source of law in Ukraine.

Procedural Cross-Fertilization in International Commercial and Investment Arbitration: A Functional Approach

Abstract This article examines the potential for beneficial procedural cross-fertilization between internationalcommercial and investment arbitration from a functional perspective. The article argues that botharbitration regimes share a ‘private’ dispute resolution function of resolving specific disputes, butonly investment arbitral tribunals also exercise a ‘public’ law-making function of developing the lawapplicable to the resolution of disputes. The article considers two recent procedural developmentsin international arbitration rulesjoinder of third parties and publication of arbitral awardsin thelight of these private and public functions. It argues that joinder, as an efficiency-enhancingmeasure, can lead to beneficial cross-fertilization between commercial and investment arbitrationbecause it reinforces the ‘private’ dispute resolution function shared by both regimes. In contrast,the default publication of arbitral awards, to the extent that it is intended to be systematic and createinformal precedent, is appropriate in investment but not in commercial arbitration because onlyinvestment arbitral tribunals exercise a ‘public’ law-making function that justifies and stands tobenefit from this practice. In this regard, the article rejects three rationales for default publication ofinternational commercial arbitral awards: improving consistency/predictability, enhancingtransparency and developing transnational commercial law. The article concludes that crossfertilizationbetween investment and commercial arbitration can be valuable so long as it concernstheir shared private dispute resolution function. However, attempting to develop internationalcommercial arbitral practice in the shadow of the public law-making function of investment arbitraltribunals may result in counterproductive practices and undermine the proper functioning ofinternational commercial arbitration as a whole.

LEGISLATIVE FUNCTION OF THE COMMISSIONER FOR HUMAN RIGHTS IN RUSSIA

The purpose of the study. In this article, based on the analysis of constitutional and legal provisions and theoretical sources, the law-making function of the Commissioner for Human Rights in Russia is considered. The purpose of the study was to identify the content of the legislative function of the Ombudsman, as well as to develop proposals and recommendations aimed at modernizing the constitutional and legal regulation of the designated function of the Commissioner. Conclusions. In the course of the study, it is concluded that it is advisable to give the right of legislative initiative to those commissioners who are appointed by legislative (representative) bodies at both the federal and regional levels, regardless of whether they perform the functions of “general competence” or belong to specialized ombudsmen. It is noted that the function of the Ombudsman to improve legislation (legislative function) in the field of human rights is important in the process of eliminating shortcomings and gaps in existing legislative acts and bringing them into line with international standards.

Is the rules-based multilateral trade order in decline? Current practices, trends and their impact

Since its establishment, the World Trade Organization has suffered numerous blows. Today, however, it is going through a perfect storm: from a paralysis in its lawmaking function to the demise of the Appellate Body. Powerful economies such as the United States, China and the European Union are moving away from multilateralism, in different ways, in order to shape novel approaches. Non-transparent practices like informal trade instruments, geoeconomics, and the domestication of international trade rules are appearing as new tools of global economic governance. How to make sense of these practices and approaches from a legal perspective? The common thread in all these factors is the relative decline of the rule of law. This article explores and critically assesses these developments and calls for urgent action in order to remedy and strengthen the multilateral rules-based trade order.

International Water Law Principles in Negotiations and Water Diplomacy

International water law (IWL) principles are often called upon to address disagreements and conflict between riparian states to a shared watercourse, with various parties invoking them to guide states’ behavior towards cooperative solutions that benefit the water resources as well as broader regional cooperation and peace. This essay argues that it is particularly important to acknowledge the role IWL principles play in negotiation processes, that is, in an ex ante and non-judicial function, providing a framework for cooperation and contributing to lawmaking, which makes them important tools of international relations and water diplomacy. First, IWL principles are particularly relevant in negotiation processes. IWL principles are thus not only relevant to legal adjudication or enforcement, but are also tools of international relations and diplomacy. Additionally, in their ex ante role, in the context of negotiations or other non-judicial interactions between riparian states, IWL principles can pose an inherent dilemma, as they can both provide a framework for negotiations and be the focus of negotiations, each dimension having implications for the effectiveness of negotiations and the likelihood of negotiated compromise outcomes. Third, in spite of this inherent dilemma and its possible negative repercussions on negotiation outcomes, the use of IWL principles in negotiations has a lawmaking function, contributing to the further development and strengthening of the overall legal regime for governing shared watercourses.

The Institutional Context of the International Court of Justice

This chapter, forthcoming in the Cambridge Companion to the International Court of Justice (Carlos Esposito and Kate Partlett, eds.) provides an institutional analysis of the International Court of Justice (ICJ). Institutional analysis is an approach drawn from the social sciences that examines the ways in which an organization’s internal structures and external environment shape outcomes. For the ICJ, this requires examining its features as a court, as an international body, and as an organ of the United Nations. As a a court, the ICJ has both a dispute resolution function as well as a lawmaking function. and the position of the ICJ in the UN system has significant consequences for its caseload, role and effectiveness.

Conventional Regulation of International Cooperation within OECD

A characteristic trend in the development of international law in the second half of the XX century and early XXI century is thesignificant expansion of the law-making function of international intergovernmental organizations, which are obtaining an increasinglyimportant role each year in resolving common issues in the political, economic, social, educational and other spheres, acting on behalfand in the interests of the states that formed them. In the system of international organizations of economic nature, an important placebelongs to the Organization for Economic Cooperation and Development, which unites 36 industrialized countries as at 2020. Duringalmost 70 years of the OECD existence, the organization has developed and adopted a wide variety of legal instruments aimed ataddressing the widest range of issues related to various sectors of the economy, the fight against corruption, education and science, theenvironment, etc., recommendations, declarations, international agreements, ad hoc instruments. Based on a purely quantitative indicator,legally binding international treaties have a relatively small percentage of the entire normative body of acts adopted under theOECD. In total, 13 conventions were adopted within its framework, 10 of which are in force today. However, the conventions, deve -loped under the aegis of the OECD, are quite successful examples of codification and progressive development of international law inthe fields of: anti-corruption (Convention to Combat Bribery of Foreign Officials in International Business Transactions of December17, 1997); administrative assistance in the field of taxation (Convention on Mutual Administrative Assistance in Tax Matters of January25, 1988 and Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters of May 27, 2010); counteractionto the tax base erosion and profit shift (Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosionand Profit Shifting of November 24, 2016); nuclear safety, liability for damage caused by nuclear incidents (Convention on theEstablishment of a Security Control in the Field of Nuclear Energy of December 20, 1957, Convention on Third Party Liability in theField of Nuclear Energy of July 29, 1960 (Paris Convention, 1960), Convention of 31 January 1963 Supplementary to the Paris Conventionof July 29, 1960 (Brussels Supplementary Convention).

Optimal Social Media Content Moderation and Platform Immunities

This Article presents a model of the lawmakers' choice between implementing a new content moderation regime that provides for platform liability for user-generated content versus continuing platform immunity for the same. The model demonstrates that lawmakers prefer platform immunity, even if incivility is increasing, if the costs of implementing a platform liability regime are greater than the costs of enforcing status quo law. In addition, inasmuch as implementation of a platform liability regime is coupled with new speech restrictions that are unconstitutional or prohibitively costly, lawmakers prefer immunity, but platforms are free to set strong content moderation policies consistent with existing law. Thus, the private governance function of platforms highlighted by Balkin and others is directly related to lawmakers' ability to enact and enforce alternatives, and further, it goes beyond mere private enforcement of existing free speech restrictions. Inasmuch as lawmakers are prohibited from suppressing unwanted speech by constitutional limits as well as lawmaking and enforcement costs, they give platforms wider discretion to make private suppression decisions. The status quo governance function of platforms, therefore, includes a private lawmaking function for determining which types of speech to suppress, albeit one bounded by the state’s appetite for alternatives.

Arbitrator-Made (Jurisdictional) Law in Investment Treaty Arbitration: Application, Creation and Control

The law-making function of international courts and tribunals is well-known in both theory and practice, including such function of arbitral tribunals in the field of investment treaty arbitration. However, no clear guidance exists regarding the conduct of arbitrators in their decision-making and law-making. This chapter offers such guidance in respect of one peculiar law-making activity of arbitral tribunals, namely their regulatory function regarding their own jurisdiction, and to that end discusses the proper application, creation and control of arbitrator-made jurisdictional rules. Such guidance is warranted because arbitral jurisdictional regulation has so far remained unrecognized, usually disguised as varieties in treaty interpretations, due to the consensual foundations of the process of jurisdictional regulation. The chapter argues that the recognition of the arbitral jurisdictional regulation, by employing the discussed methods of application, creation and control of arbitrator-made rules in practice, would provide conditions for a better performance of the system of investor-State dispute settlement, including the advancement of legal certainty regarding the questions of jurisdiction. Such recognition can be implemented within the existing framework of investment arbitration, but the implementation would be particularly fertile in the context of institutionalized adjudicatory mechanisms. While these recommendations are made in the context of arbitral jurisdictional regulation, this can be a starting point for similar considerations in the sphere of substantive law.

FUNCTIONAL BASIS OF ACTIVITIES OF SUBJECTS SOCIAL SECURITY

The purpose of the article is to determine the system of functioning of social security entities on the basis of doctrinal approaches. The article analyzes the theoretical approaches to understanding the functions of subjects in the field of public safety. Generalizations are made, the corresponding classification of key functions is carried out. It is established that the functions of subjects in the field of social security should be divided into: 1) main or basic functions - ie material, which determine the object of public safety, ie social relations in a particular area of human activity and determine ways to influence them; 2) secondary or derivatives, which include those that are determined by the very legal status of a subject in the field of public safety. It is concluded that the law-making function means the issuance of regulations of various legal nature to establish formal rules and procedures for ensuring public safety in a particular sector of the economy. These acts are binding acts, the content of which is to comply with safety rules in these areas and differs on the basis of the peculiarities of application and the actual signs of influence on the state of public relations. The law-making function is expressed in ensuring public safety, through the issuance of acts, based on monitoring and coordination in this area. The operational and executive function is to ensure public safety by means of exercising powers in the field of sectoral public security. This function is formed due to two activities to ensure public safety. The operational component is defined as responding to various types of threats and dangers of public safety. Executive, in turn, means strict compliance with the law on public safety, which is the responsibility of the relevant public safety entity.

The Legal Nature of Decisions of Constitutional Courts of Russia and Foreign Countries and Investigating its Psychological Consequences

The authors, on the basis of the importance of the activities of constitutional courts in the system of separation of powers in most countries, propose a comparative legal analysis of the normative and legal acts governing the procedure for the adoption and legal nature of decisions of these bodies. On the basis of the study of the legal consolidation of the activities of the constitutional courts, it was concluded that the decisions of the constitutional courts, possessing such characteristics as the possibility of abolishing the legal norm; the final character; the obligation of execution for all state authorities, organizations and citizens; and the moral authority, perform a law-making function, establish rules governing important relations in society and play a special role in ensuring and protecting fundamental human and civil rights and freedoms plays an important role in ensuring and protecting fundamental human and civil rights and freedoms and constitutions of the countries considered in this article.