Constitutional Practice Research Articles

Constitutional Symbolism, Modernization of the Constitution and the Information Society (between Constituent and Information Constitutionalism for Russia)

The article discusses constitutional symbolism in the theory and practice of Russian constitutionalism, the problem of constitutional modernization in the context of the Russian state and legal tradition, the nature and legal forms of the constituent power, the constitutional status and the generative possibilities of the constituent power as constituents. The paper examines scientific approaches to understanding constitutional modernization in contemporary Russian jurisprudence, the meaning of constitutional symbolism and constitution as legal, political and moral communication in modern society. Particular attention is paid to the analysis of the relationship between the constitutional process and the constitutional power from the standpoint of cognitive constitutionalism and historical rationality. The author has determined the problem zones of legal registration and implemetation of powers of the constituent power in the context of the Russian constitutional development. The study has been carried out on the basis of formal-legal, concrete historical and comparative legal methods of analysis, the method of constitutional design and legal hermeneutics. The author suggests the following conclusions: 1) It is necessary to rethink the range of subjects of the right to amend and revise the Constitution in the Russian constitutional law that reflects the constitutional tradition (in comparative and historical contexts) outlined in 18th-19th centuries rather than modern capabilities of the information society and e-government (e-ruling); 2) The importance and efficiency of democratic involvement increases and requires revision of the thesis that the head of state (in the history of Russia — the monarch, emperor, president) is the only authoritative and constitutionally significant “guardian” of the Constitution rigidity and the main political and legal route of its transformation and change; 3) Legal formalization and use of legal procedures of the constitutional will and expression of the will of citizens of the country in the process of elaboration, discussion, adoption and introduction of amendments to the Constitution of the Russian Federation (current), and in the future amount to the development and adoption of the draft new Constitution of the country; 4) In the context of Russia’s intent to join the 4th Industrial Revolution and the development of institutions of information society (including in the field of electoral procedures and the formation of information and digital constitutionalism), it is necessary to create a constitutional sector of the Internet supported by the State at the federal and regional levels for the use of information technologies and institutions of digital constitutionalism in the process of determining citizens’ opinion on opportunities, prospects, content of amendments to the Constitution of the Russian Federation, their nation-wide discussion in the Internat.

Legitimacy in the 'secular church' of the United Nations.

This article argues that how the United Nations (UN) conceptualizes legitimacy is not only a matter of legalism or power politics. The UN’s conception of legitimacy also utilizes concepts, language and symbolism from the religious realm. Understanding the entanglement between political and religious concepts and the ways of their verbalization at the agential level sheds light on how legitimacy became to be acknowledged as an integral part of the UN and how it changes. At the constitutional level, the article examines phrases and ‘verbal symbols’, enshrined in the Charter of the ‘secular church’ UN. They evoke intrinsic legitimacy claims based on religious concepts and discourse such as hope and salvation. At the agential level, the article illustrates how the Secretary-General verbalizes those abstract constitutional principles of legitimacy. Religious language and symbolism in the constitutional framework and agential practice of the UN does not necessarily produce an exclusive form of legitimacy. This article shows, however, that legitimacy as nested in the UN’s constitutional setting cannot exist without religious templates because they remain a matter of a ‘cultural frame’.

ПРЕЗИДЕНТСКАЯ ФОРМА ПРАВЛЕНИЯ В КАЗАХСТАНЕ: НАУЧНЫЙ АНАЛИЗ КОНСТИТУЦИОННОЙ ОСНОВЫ ИНСТИТУТА ПРЕЗИДЕНТСТВА И МЕХАНИЗМОВ ЕГО РАЗВИТИЯ

On April 24, 2020, Nur-Sultan, the capital of the Republic of Kazakhstan, hosted an international scientific and practical online conference “The Presidential Form of Government. Constitutional Basis and Political Practice”, dedicated to the 30th anniversary of the establishment of the institution of the Presidency in Kazakhstan. Based on the reports made at the conference, the author of the publication analyzes the key approaches of representatives of the foreign scientific and expert community to assessing the main stages in the formation of the presidency institution and the role of N.A. Nazarbayev, emphasizing that the personality of the first president of Kazakhstan as an undoubtedly strong politician has always been the object of thorough study among academic and expert circles. All of the reforms, whether constitutional, economic or social, were in one way or another related to the activities of the country’s first president. Such terms as “the Nazarbayev phenomenon”, “the phenomenon of leadership”, and “political transformation” are well established in the scientific literature of recent years. The author states that the study of the phenomena behind those terms is of particular interest both for Kazakhstan and for other post-Soviet countries, for example, for Russia. Our countries have not only common geographic boundaries, but also largely similar models for forming the party system, economy, social structure, and ethno-demography. The study of the foundations for the Kazakhstan political system and its specific features provides a key to a deeper understanding of the political development of the post-Soviet space.

The concept of sovereignty in Ghanaian constitutionalism

As a measure to encourage and illustrate the elaboration of the constitutions of African countries for more popular consumption, this article explores the concept of sovereignty in Ghana's constitutional law and practice. In so doing, the article sets out a detailed exploration of Article 1(1) of the Constitution of Ghana (on sovereignty) in five parts: a discussion of the use of the words 'sovereignty' and 'sovereign' in the constitution; an examination of sovereignty as a concept, including its historical manifestation in various Constitutions of Ghana; an identification of where sovereignty does not lie in Ghana; argues that sovereignty does not and should not be located anywhere else but in 'the people of Ghana'; and finally, having located sovereignty, illustrates how 'the people of Ghana' may exercise 'sovereignty' within constitutional parameters.

The Court Is Not Your Friend

The Court Is Not Your Friend Samuel Moyn (bio) It has been over a year since Brett Kavanaugh took his seat on the Supreme Court. More evidence of his assault of Christine Blasey Ford, though by no means conclusive, has been presented in the first of several slated books about the newest oracle of the law and the pitched battle around his confirmation. Yet such attention to any justice, and his ideology or indiscretions, risks missing the point: that it is only because the Supreme Court is so powerful that the national obsession with either a judge's character or views can become so intense. Whatever else it involves, juristocracy is also a form of politics by other means. And it is not one that progressives should want. Yet in the past half century they have been principally responsible for it. From its late nineteenth-century conservative beginnings to the mid-twentieth-century liberal attempt to make it their own, juristocracy has been a triple failure of authority, process, and substance. It has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can. We will always have judges. Any interpretation of law is a form of rule, and there is no way—contrary to what many of the founders believed—of disentangling "judgment" and "will." It is for that reason that democrats from Jeremy Bentham (or even Thomas Hobbes before him) through our time have attacked interpretations of judicial power that conceal the ideological choices that saying "what the law is" inevitably involves. No wonder, then, that democratic theorists have long insisted on restraining judges, even while acknowledging that their activity necessarily involves some interpretive freedom to use and abuse. There are disputes to settle under rules, laws to apply to new fact patterns, and overreaching executives to contain. But juristocracy is a congenitally American malady. Turning to judges as secret agents of political transformation is quite another matter. When [End Page 70] Click for larger view View full resolution The Supreme Court Justices in 2018 (Jabin Botsford/The Washington Post via Getty Images) the U.S. Constitution first became attractive in the late nineteenth century, it was among conservatives facing the frightening prospect of mass suffrage and finding in James Madison's handiwork a device for potentially weathering the coming tempest. Englishman Sir Henry James Sumner Maine, to take one example, sang the praises of the U.S. Constitution as "the most important political instrument of modern times" in his Popular Government (1885), for it "proved" the existence of "several expedients" that would allow the "difficulties" besetting any country "transforming itself" into a democracy to be "greatly mitigated" or "altogether overcome." Unsurprisingly, the powers of the U.S. Supreme Court ranked high on the list of such "expedients." American constitutional practice in this era reflected these antidemocratic virtues. American conservatives retrieved from obscurity the case of Marbury v. Madison (1803), which according to myth proclaimed the power of judicial review of legislation under the Constitution (though in reality it did no such thing). Judges suddenly began invalidating more statutes, throwing out progressive legislation at both federal and state levels. It took the strife of the Great Depression, and fear of Franklin Roosevelt, to cow the institution into getting with the progressive program. Political scientists who have studied the conditions for the exercise of judicial power have claimed it generally follows the democratic will. But no [End Page 71] one should minimize the energy and time it can take for judiciaries to catch up to majorities. As a triumphant FDR observed in 1937, "Ultimately the people and the Congress have had their way. But that word 'ultimately' covers a terrible cost." Within the span of two decades, unfortunately, progressives had embraced a judiciary they once scorned. Fears of a conservative minority imposing itself on democratic legislatures gave way, during the Second World War, to concerns about a tyrannical majority overriding civil liberties. Lost were liberal convictions that the tyranny...

Ideology in Modern Russian Constitutional Practice

The article focuses on Russian constitutional ideology with overview of its historical preconditions and analysis of recent significant cases of the Russian Constitutional Court. There is a discussion of gay activist Alekseyev’s case and “foreign agents’ law” case in constitutional practice as most significant examples of positivistic way of legal reasoning. The paper argues that legal positivism through its form – legal formalism is the main ideology in the modern constitutional practice in Russia. This ideology is based on the assumption that constitutional justice can find social truth. German positivistic and Soviet Marxist views have strongly determined the modern Russian constitutional discourse.

Separation of power constitutional plan and practices

Separation of power constitutional plan and practices

COMPARATIVE METHOD IN CONSTITUTIONAL LAW: BETWEEN PRESUMPTIONS OF SIMILARITIES AND DIFFERENCES

The two main approaches to the use of the comparative method in legal research, functional and cultural, have some "predetermined" considerations regarding the results that will (or should) be discovered by comparing various legal phenomena — should the emphasis be on similarities or differences between these phenomena. These considerations are based on the vision of, respectively, the universal or pluralistic nature of law of various societies, and in fact they are able to correct substantially the process of cognition of legal phenomena using the comparative method, adjusting it to the desired result. In the case of similarities, we can talk about artificially narrowing the circle of countries under investigation. In the case of differences, the isolation of systems and the uniqueness of their cultural characteristics are unreasonably exaggerated. The alternative assumptions presented in the theory of comparative law regarding the existence of universal principles of law or the fundamental uniqueness of each legal system require a critical rethinking of constitutional provisions and practice in comparative studies. The use of the comparative method in constitutional law is not reducible to the implementation of the ideas of political philosophy, and objective conclusions should not be replaced by predetermined normative guidelines. The similarities and differences revealed by the researcher of constitutional ideas, norms and practices can be considered as a result of comparison of independent value.Constitutional law is associated with a variety of substantial constructs existing in the world, not excluding, however, their intercommunication. Understanding these constructions requires attention to both the similarities and the differences in specific legal orders (as well as the reasons for their functioning in this, and not another form). The use of the comparative method in the absence of striving for predetermined results is simultaneously aimed at understanding the laws of development of constitutional institutions and maintaining the horizon of their diversity as an important component of this development. Each time, the researcher should distance himself from his prejudices regarding the similarities or differences between the institutes under study, rechecking whether the obtained results are really the results of applying the comparative method, and not the initial constructions.The logic of a comparative study corresponds to the construction of theories of "middle level", aimed at forming the theoretical model of a particular legal in-stitution, taking into account the practice of implementing this institution in specific states. The focus on middle-level theories within the framework of the comparative method allows one to go beyond the description of single systems, formulate conclusions at the level of generalization that ensure the comparability of the studied objects, and at the same time maintain an understanding of the diversity of constitutional models.

STRATEGI PEMIKIRAN POLITIK KE ARAH PENEGASAN DAN PENGUATAN SISTEM PEMERINTAHAN PRESIDENSIIL DI INDONESIA (KAJIAN DARI PERSPEKTIF HUKUM TATA NEGARA DAN HAK ASASI MANUSIA)

Indonesia adheres to a representative democratic system that prioritizes the interests of citizens in decisions made by the government. In this study we will discuss the strategies of people's political thinking in the framework of affirmation and strengthening the presidential system in Indonesia. Data collection and analysis in this study uses a normative juridical approach by collecting legal material from various libraries, both in the form of principles, concepts and legal theories that are in accordance with the issues of constitutional law that are adopted. The analysis was conducted in a normative juridical reseach and the presentation of legal analysis was described descriptively qualitatively. Constitutionally, the presidential system is characterized by an equal position between parliament and the executive. The Indonesian constitutional system is in the transition phase of democracy which implements a presidential based multi-party democracy system. With the simplification of the party in elections, it can guarantee stability in executive and parliamentary relations in the administration of the State. The implementation of the electoral system with sound balance cannot form a formidable parliament quality. Political thinking in the framework of affirming and strengthening presidential systems in constitutional practice is part of the people's political rights guaranteed by human rights.

Theory/Criticism: A Functionalist Approach to the “Specific Intellectual” Work of Rhetorical Criticism

In this essay, the author uses a functionalist perspective to explore the tension between theory and criticism within contemporary rhetorical criticism. Theory and criticism, he argues, exist as the suspension of distinct but mutually constitutive practices. When scholars consider “theory/criticism” in this manner, several functions become evident: theory/criticism organizes the vocabulary necessary to analyze contradictory rhetorical phenomena; it authorizes the value and legitimacy of critical practice, and it makes intervention possible in the lived spaces and structures of specific intellectuals.

Transformational Development and Social Capital: Jaipur Rugs and Gram Vikas on Both Sides of the Threshold

Transformational development occurs on both sides of the domestic threshold at two Indian social enterprises using constitutive communication practices that leverage social capital rooted in traditional Indian values. At Jaipur Rugs, it occurs with social capital belonging and mutuality; bonding, bridging, and linking through the founder family; and ‘conversation’ of family blessing scaled into material ‘text’ of weaver-inspired rug designs. At Gram Vikas, social capital is cultivated in women’s ‘uncontested areas’ of domestic life with structural opportunities and civic literacy; cognition and structure in bonding, bridging and linking ties; and four flows (membership negotiation, self-structuring, activity coordination, and institutional positioning).

Rigidez constitucional mínima como una forma débil del constitucionalismo

Algunos autores contrarios a la práctica constitucional actualmente dominante han defendido una rigidez constitucional “mínima” como una forma “débil” del constitucionalismo en la que la voluntad mayoritaria puede identificar el alcance de los derechos fundamentales por encima de las determinaciones judiciales. El objetivo de este trabajo es plantear algunas reflexiones críticas sobre dicha propuesta, adoptando para ello como parámetro normativo (lo que trataré de identificar como) la racionalidad intrínseca de la práctica constitucional contemporánea en las democracias liberales. Dicha argumentación crítica avanza del siguiente modo: en primer lugar, se discute la distinción formal (basada exclusiva o principalmente en el diseño institucional) entre sistemas de control jurisdiccional “fuerte” y “débil”; en segundo lugar, se pone en duda la supuesta relevancia de la reforma constitucional en la concreción histórica de los derechos básicos; y, por último, se rechaza la rigidez constitucional mínima entendida como parte de un modelo constitucional genuinamente alternativo (la “soberanía popular fuerte”) diseñado para superar la práctica constitucional dominante.

In Search of Prerogative

The standard formalist account of Article II’s executive vesting clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, a handful of scholars have challenged this “residual vesting” thesis by amassing evidence that “the executive power” textually referred only to the power to carry law into execution, and not to the bundle of other royal prerogatives—for example over foreign affairs and national security—enjoyed by the British monarch. According to the advocates of both accounts, the scope and nature of the executive is dramatically altered depending on which account one adopts. This Article dissents from both views. The executive power was indeed about law-execution, and was not a residual grant of power; but, I argue, both the founding generation and their key guide, Blackstone, likely shared a “thick” understanding of this “executive power.” Their writings and statements suggest that “the executive power,” even in its narrower law-execution sense, plausibly included the powers to appoint, remove, and direct executive officers, and to promulgate regulations, as necessary incidents to law-execution. Not only is this account consistent with Blackstone and the historical meaning of “the executive power,” it better fits the available data from the Constitutional Convention and early practice than either of the other two accounts. The residual vesting thesis requires us to believe that the Committee of Detail ignored the instructions of the delegates in the Constitutional Convention; to infer that the delegates themselves were unaware of the implications of what they had written; and to ignore the fact that not a single opponent of the Constitution during ratification as much as mentioned the possibility of a residual grant. On the other hand, the law-execution thesis, at least a “thin” version of it, may require us to ignore important practices and precedents. The “thick” view of “the executive power” advanced in this Article is the theory of best fit: it is the only one that fits the text, the Framers’ apparent intent, and the historical practice. The upshot of this approach is that the President probably has more power in the domestic sphere than under a thin law-execution account, but less in foreign affairs than under the residual account.

Pozycja ustrojowa parlamentu finlandzkiego Eduskunty

The hereby paper takes up the analysis of the constitutional position of the Finnish parliament Eduskunta from the moment of its establishment and as a result of its development during the centuries, with a special attention paid to the present normative state and on the basis of the hitherto constitutional practice. It aims at deriving the origin and presenting the evolution of this authority at the Finnish lands, which in consequence leads to reliable conclusions in the scope of determining its current constitutional position in the system of the supreme state authorities of Finland. The subject of the paper focuses on the analysis of the beginnings of Eduskunta’s formation and Finnish parliamentarianism, its further evolution, current composition, internal structure, functions and competences presented on the basis of the exegesis of the provisions of the binding basic law of 1999 and the parliament’s rules of procedure. The constitutional principles referring to the parliament and the analysis of Eduskunta’s relations with the other supreme state authorities, which determine the state’s form of government, seem to be of particular significance in this context, as they contribute to a more precise definition of Eduskunta’s constitutional position, as well as to pointing out its originality and dissimilarity regarding other contemporary democratic states.

Dimensions of Religious Harmony as Constitutional Practice: Beyond State Control

AbstractReligious harmony is an idea more commonly invoked in Asian countries, many of which are closely associated with non-individualistic or non-liberal approaches to law, ethics, and politics, than in Europe. As a constitutional norm, religious harmony not only directs state action involving the management of religious diversity but also has the potential to legitimate state action. As a result, harmony, including its subspecies of religious harmony, could be and has been criticized for imposing and legitimating an ideology of control over society, particularly over marginalized groups. While this is the case, I argue in this Article that religious harmony can mean many things and can be used in a myriad of ways that go beyond simply as a tool for state control. Religious harmony is not only a legal/constitutional principle, but has also become internalized as a social norm. Its regulating function extends to inter group relations and further grounds group demands on the state, thus imposing state obligations. To draw out the multiple and complex dimensions of religious harmony as a constitutional principle and social norm, I use Singapore, a self-avowed non-liberal communitarian state, as the primary case study in this Article.

El sistema presidencial argentino como un sistema resiliente

La reforma constitucional argentina intentó atenuar al sistema presidencial. A casi veinticinco años de aquella modificación, es dable interrogarse si ese objetivo fue alcanzado. Es decir, si fue cumplida en el marco de nuestra práctica constitucional. Los diagnósticos efectuados son, en general, negativos. En este trabajo intentaré demostrar que el presidencialismo argentino es un paradójico caso de sistema resiliente. Ante cualquier intento de atenuación resulta dotado de mayores credenciales de legitimidad o mayores competencias formales en el texto constitucional, o bien los intentos resultan únicamente vacuos. A partir de eso, se intenta reconstruir conceptualmente esta situación.

Russian Constitutional Development: Formal and Informal Practices

Transitional constitutionalism remains the subject of intensive political controversies. On the ground of the Project realized by the Institute of Law and Public Policy (Moscow) this article presents the analysis of the basic constitutional principles (pluralism, separation of powers, federalism, independence of justice, the guarantees of political rights and freedoms) describing the changing character of their implementation in different areas of constitutional practices – legislation, constitutional justice, administrative activity and informal practices and the comparative level of constitutional deviations in each of them. The important new acquirement of this research is the concept and methodology of the constitutional monitoring and recommendations for the full-scale reforms in key areas of Russian constitutional and political settlement. The author shows that the true choice of modern society is not the dilemma - constitutionalism versus its negation but the choice between real and sham constitutionalism with a big variety of intermediate options between them. It is precisely the area, which the author defines as a transitional type of constitutionalism, the field of collision of different political stakeholders. This is an area of unstable equilibrium where the implementation of different legal strategies and technologies may produce a definitive effect.

Russian Constitutional Development: Formal and Informal Practices

Transitional constitutionalism remains the subject of intensive political controversy. Based on a project made possible by the Institute of Law and Public Policy (Moscow) this article presents the analysis of the basic constitutional principles of pluralism, the separation of powers, federalism, the independence of the judiciary and the guarantee of political rights and freedoms. It describes the changing character of their implementation in different areas of constitutional practices – legislation, constitutional justice, administrative activities and informal practices, and the comparative level of constitutional deviations in each of them. The important new expertise of this research is the concept and methodology of the constitutional monitoring and recommendations for full-scale reforms in key areas of Russian constitutional and political settlement. The author shows that the true choice facing modern society is not between constitutionalism or its negation, which is a dilemma, but between real and sham constitutionalism, with a wide variety of intermediate options separating them. It is precisely this intermediate area which the author defines as a transitional type of constitutionalism, the field of collision between different political stakeholders. This is an area of unstable equilibrium where the implementation of different legal strategies and technologies may produce a definitive effect.

Constitutional and Legal Aspects of State Control and Supervision Activities (Legal Positions of the Constitutional Court of the Russian Federation)

The presented article is devoted to the analysis of the legal positions of the Russian Federation Constitutional Court regarding the constitutionality of Russian legislation norms in the field of control and supervision activities. The generalization of the Constitutional Court practice of the Russian Federation allows you to group the decisions of the highest constitutional control body on several key issues: the limits of discretion by the legislator and law enforcer, the legal nature of state control and supervision measures, the balance of public and private interests in the sphere of relations under consideration and the guarantees of this balance. The team of authors concludes that the resolution of these problems is impossible without the Constitutional Court determining the content of a number of key concepts, developing the methodology for various constitutional principles and value balancing and, in general, focused efforts to constitutionalize Russian legislation.

Politics and Constitutionalism: Entrenching the Rule of Law in Africa

The influence of a constitution may seem obvious particularly in Africa. Sometimes, there are tensions between the principles supporting governance issues such as an electoral process and the promotion of majority rule; giving a voice for minorities, inclusiveness, and freedom of expression; assembly; the free press and political culture. This study employs a content analysis to examine the concept of politics and constitutionalism in Africa and how the rule of law can be entrenched. The findings provide lessons in the development of constitutionalism relating to governance of the political life in which the constitutional forms are located. In some cases, regional institutions have only paid lip service. Elites amend the constitution to reserve for themselves unfettered discretion on public affairs. It appears that electoral systems in some African countries have fallen short of expectations of a democratic process due to non-compliance of the rule of law, lack of the practice of constitutionalism, weak institutions and bad political culture. Kenya and Zimbabwe serve as examples where election results have been disputed heavily. It is recommended that politics should be instrumental to the implementation of constitutions and not vice versa and that Afro-pessimism or Afro-optimism should translate to Afro-realism.