Specific Doctrines Research Articles

The concept and nature of the occurrence of doctrinal legal errors

The concept and nature of the occurrence of doctrinal legal errors

Continuing the Discussion on Administrative Discretion

The article continues the discussion on the topical issue of administrative discretion for Russian administrative-legal theory and legal practice, organized by the editors of the journal “Siberian Law Review” on the pages of two previous issues of the journal with the participation of P. P. Serkov and Yu. P. Solovey. The Author focuses on the state of the modern domestic doctrine of administrative discretion, the contribution of Russian legal scholars to its development, the need and possibility (including criteria and limits) of delimiting administrative discretion from other types of discretion. It is proved that the Russian jurisprudence demonstrates, contrary to the assertions of some experts, not confusion in the face of the problematic category of discretion, but ontological and methodological certainty, although sometimes reaching extremes. At the same time, there is no single Russian doctrine of discretion, there are many such doctrines, and some scholars have the right to claim that specific doctrines are associated with their names. The Author draws attention to the fact that discretion in general and administrative discretion in particular are interdisciplinary (interscientific) categories, so they must first of all be rid of the semantic and meaningful “layers” of other sciences. The sooner a pure theory of discretion appears, the more mistakes and risks will be insured against by legal science and law enforcement practice. In order to avoid terminological confusion and preserve the subject matter of the study, it is absolutely important to distinguishfour concepts: 1) administrative discretion; 2) judicial control over administrative discretion; 3) judicial discretion; 4) judicial discretion in the exercise of judicial control over administrative discretion. These concepts have a certain connection with each other, however, they designate different (partly even by their branch affiliation) categories, phenomena, processes and institutions. As a conclusion, it is indicated that the motives of each discretionary decision of the public administration must sooner or later (better sooner than later) be made public. To make this a reality, legal science needs to develop and offer effective legal guarantees for ensuring the rights of citizens and their associations when public authorities exercise their discretionary powers.

Catholics, Protestants and Muslims: Similar work ethics, different social and political ethics

This paper employs data from the World Values Survey (1995–2020) and the European Values Study (1999–2020) to test three hypotheses on attitudinal differences between Catholics, Protestants and Muslims: (1) the work ethic hypothesis, which covers attitudes towards work and some fundamental characteristics of the market economy; (2) the social ethic hypothesis, which concerns interpersonal trust, ethical standards and attitudes towards gender equality; (3) the political ethic hypothesis, which involves attitudes towards democracy and political violence, institutional trust and preferences for government-organized redistribution. The empirical analysis provides very little support for the work ethic hypothesis but solid support for the social and political ethic hypothesis. Although the results should be ultimately interpreted as partial correlations, they support the following argument. Market forces and the rise of post-materialist values may have dissolved the original role of a work ethic rooted in religion (especially in the Catholic and Protestant world). Yet, the socio-political ethic associated with Catholicism, Protestantism and Islam continues to manifest itself in attitudinal differences concerning interpersonal trust, ethical standards and gender equality, and in political preferences. A complementary analysis of regions with a historically strong influence of Catholicism, Protestantism and Islam supports this argument and suggests that the current attitudinal differences between the three religions are more related to their cultural and historical legacy than to current personal commitment to their specific doctrines.

THE DISCRETIONARY RIGHT OF THE JUDGE TO USE A RELIGIOUS FATWA

The law gives the trial judge the right to issue fair and appropriate rulings that are consistent with the provisions of the law when there is a case before him. This right is consistent with Article 1 of the amended Iraqi Law of Evidence No. 107 of 1979, in which the court has a role in cases not stipulated in the law. Thus, it is left to the discretion of the judge. Therefore, the judge in charge has the right to seek the assistance of a religious fatwa when there is no legal text related to the dispute presented in front of him. The first article does not oblige the judge to seek the help of a specific doctrine, especially in cases of halal and haram (permissible and forbidden according to an Islamic religious point of view) that require knowledge of Islamic jurisprudence. As for the non-Muslim cases that are difficult for the judge to comprehend their rulings due to the diversity and multiplicity of religions and sects, the judge should ask non-Muslim religious references to know the jurisprudential ruling on the dispute in order to issue an appropriate ruling on the case presented before him.

Справедливое соотношение частных и публичных интересов и пропорциональность

The issues of interaction, coordination and balancing of interests are considered. Despite many studies, this issue remains relevant and has a direct connection with the ideas of justice. The purpose of work is to consider the ratio of private and public interests as a result of the application of proportionality. The methodological basis of the study is: general and specific scientific methods, namely logical; techniques such as analysis, abstraction are used, and a system-functional approach is applied. Speaking about balance, the emphasis is on the fact that a static balance of interests clearly cannot be the optimal form of their ratio, since in certain changing circumstances it is objectively necessary to change it, shifting the emphasis, establishing the priority of one interest over another. The law cannot cover all relations with its regulation, therefore instrumental principles will contribute to the settlement, in particular the principle of proportionality, which will consider (resolve) the confrontation between private and public interests. It is noted that although the principle of proportionality, as a rule, is not directly named in normative acts, but is translated in legal interpretative acts devoted to human rights, its application is determined by the presence in them of general or special provisions that allow for the limitation of rights subject to a number of certain conditions. Proportionality is considered as: adequacy, the principle of proportional limitation of rights and freedoms; type of judicial control; concept; methodology – all this once again speaks of the multidimensionality of the scope of application, and at the level of state (national) doctrine – of the peculiarities of legal understanding and legal culture. There are several methods for determining proportionality, which vary depending on the scope of application, types of legal understanding and the specific doctrine dominant in a particular community. It is concluded that balance or proportionality (equilibrium) in the meaning of fair provision and implementation of private and public interests is associated with the issue of the specifics of the stage-by-stage application of the instrumental principle of proportionality, and any restriction of the rights of subjects at the legislative-creative level must be subject to the algorithm of proportionality , while any priority between interests will be proportional to the extent that it is recognized in a particular society, as well as how fair and democratic the discourse was. As a result, the balance of interests will be recognized as that ratio in which the priority of one of them is not excessive and does not introduce suboptimal conflict in any area of relations, there is no negative dynamics in the socio-legal, political and legal environment.

Kako feministička kriminologija oblikuje zakonodavnu reakciju na nasilje u porodici?

Author deals with a problem of a justification of the leading ideas that inspired new Code on Prevention of Family Violence in Serbia. Author proofs assumption that the Code is grounded on a basic premisses of the, so called, radical feminist criminology regarding family violence. After short retrospect to elementary rules of a scientifically founded criminal policy, in the second part author exhibit the origin of this legislative solution. Out of it becomes clear that this is a piece of legislation special to totality of legal system which bears the burden of a suppression of family violence in Serbian society, whose substance was compiled by the group of NGO of a radical feministic orientation. In the third, central part of the paper, author proofs the origin of a specific doctrines in the Code by comparison with key tenets of this extreme and radical school of criminological thought. Author concludes that they are nothing more but an unscientific attempt to shroud radical feministic ideas behind a mask of a scientific discipline - ethology of a crime. At the very end author illustrated aforementioned comparison with negative effects of a Code to family in Serbian society. In the same time author criticise total legislative indifference toward prevailing culture and values of a society in which the Code should apply.

Comparison of the Contents Pancasila Education and Citizenship From 1975-2013 Curriculum in Indonesian at The 21st Century

Abstract
 The study are philosophically Citizenship Education curricular subjects and is a learning tool creates learners who have mental Pancasilaist in word, deed and behavior in everyday life. Civics is the best material is original from Indonesia is not copied from other countries, including the Pancasila, the 1945 Constitution, the Republic of Indonesia, national unity, and the Red and White. The findings of this study also have implications for the development of scientific development theory and Citizenship Education in terms of the future of Indonesian high school curriculum. This research uses the method of literature analysis with grounded theory is a qualitative research method that uses a number of systematic procedures to develop a theory compiled inductive. Research grounded theory, this research inductive research techniques, emphasizes observation and develops a base of "intuitive" relationship practices between variables. The establishment of Citizenship Education in the Curriculum 1975 with the name of Moral Education Pancasila (PMP). The material is civics, national history, events after Indonesia's independence, the 1945 Constitution, each pancasila principle, the message of the importance of development (such as the five-year development plan and GBHN) for the Indonesian nation, specific state doctrines, discussing moral issues and so on, the vision of its mission is oriented towards value inculcation with the content of the values of Pancasila and the 1945 Constitution. In the 1984 PKn curriculum, Pancasila Moral Education (PMP) aims to strengthen morality and improve the ethics of students so that they can face and respond to all kinds of changes in living conditions in the future. Then the 1994 curriculum, where "Pancasila Moral Education" (PMP) has changed its name to "Pancasila education and citizenship" (PPKn). Curriculum in 2004, Initially the subjects were combined into one, because the content of Civic Education is derived from Pancasila itself. It is then broken down into its own subjects because Citizenship Education is considered important to be taught to students. Then PKn Curriculum in 2006, developed a body of knowledge known to have a systemic paradigm in which there are three domain citizenship education, namely academic domain, curricular domain, and socio-cultural domain. Furthermore, curriculum in 2013, Draft from Puskurbuk, Ministry of National Education in 2012, PKn 2006 will be changed to the lessons of Pancasila and Citizenship Education abbreviated PPKn.

Whither judicial dialogue after convergence? Finding transnational public law in nomos-building

Abstract One of the major themes emerging from the reinvigorated interest in legal comparativism in the burgeoning transnational legal phenomena is the transnational dialogue among judiciaries the world over, namely, the mutual referencing to judicial decisions across jurisdictional boundaries. This article aims to rethink the role of transnational judicial dialogue in the development of transnational public law by drawing upon Robert Cover’s discussion of the relationship between nomos and narratives. It is argued that the convergent legal doctrines and principles channeled through transnational judicial dialogue are “jurispathic” as they only generate “thin” transnational values with little power of persuasion. To contribute to the thriving of transnational public law, judicial dialogue should look beyond comparative constitutional jurisprudence, shifting the focus away from the convergence of constitutional doctrines to the building of a transnational nomos. By moving from the mutual learning of doctrines to the comparative articulation of nomos-making narratives—the way a specific doctrine or a legal principle is understood and gains its meaning in its legal culture—in transnational judicial dialogue, comparative constitutional law can enable a robust transnational public law enriched with meanings, which hold the key to persuasion.

Is Executive Function the Universal Acid?

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our understanding of it. Then it addresses moral and legal responsibility generally, and specific doctrines. Executive function is seldom found to be the most perspicuous approach to any of the general or specific moral and legal questions.

Beliefs about Origins and Eternal Life: How Easy Is Formal Religious Theory Development?

ABSTRACT Two studies investigated children’s and their parents’ reasoning about their mental and bodily states during the time prior to biological conception–“preexistence.” Prior research has suggested that, in the absence of a religious script, children display untutored intuitions that they existed as largely disembodied emotional beings during preexistence. This research explored whether children who are being taught a formal theological doctrine about preexistence initially display similar default intuitive tendencies and whether these facilitate acquisition of the specific formal religious doctrine that they are learning. Adult (N = 38) and 7-to 12-year-old (N = 59) members of the Church of Jesus Christ of Latter-day Saints judged whether their mental and bodily capacities functioned during preexistence. Results showed that by 11-to 12-years of age, children’s responses increasingly aligned with their parents’ doctrinally-accurate beliefs that they had a full range of mental states (i.e., epistemic, emotions, desires) and certain bodily capacities (i.e., perceptual, external body parts) during preexistence. However, at all ages, children deviated from their parents’ theologically-correct views, with children showing greatest consistency in privileging emotions as the continuous core of personhood. Findings converge with afterlife research to support conclusions that, across cultures, children are “intuitive eternalists” about psychological states. However, their intuitive tendencies also act as constraints on formal religious theory-building by primarily expediting the acquisition of those aspects of religious doctrine that are intuition-consistent not the doctrine as a whole. The process of becoming theologically correct therefore takes time and effort suggesting parallels to the process of acquiring formal scientific accuracy.

Evangelicals, evolution, and inerrancy: a comparative study of congregational boundary work

ABSTRACT A number of evangelical Christian denominations and networks uphold a specific doctrine of Scripture, stating that the Bible is the ‘inerrant’ word of God. Those who adhere to biblical inerrancy tend to reject literary interpretations of the creation accounts in the Bible and therefore to reject evolutionary theory. Indeed, evolution rejection frequently functions as a key boundary for biblical inerrantists that must be strictly maintained. In this comparative study, we analyse interview data and other materials to uncover the mechanisms by which evolution rejection as a boundary is strengthened, maintained or weakened within two evangelical church congregations that adhere to biblical inerrancy: one in London, UK, the other in Texas, US. We find significant differences in boundary work between the two congregations and consider how the interplay of three factors—1) orientation of the congregation (internal or external), 2) religious context (minority or majority), 3) boundary salience—may lead to boundary strengthening or weakening.

Comparative Legal Research on Contract Law Changes Under Covid-19 Pandemic: England, United States, Asia and Ukraine

The study aims to characterize the changes in contract law under the influence of the Covid-19 pandemic in Ukraine and the world. For this purpose, we used systemic, comparative-legal, and formal-legal methods. The paper consists of an introduction, methodology section, bibliography review, results, discussion, conclusions, and references. In the result of the study some distinctive features of changes in contract law under Covid-19 pandemic at the level of national law of Ukraine and some foreign countries were characterized and highlighted. The authors came to the conclusion that changes in contract law are typical for the countries of continental law. Instead, common law states remain resistant to changes in contract law, particularly, the force-majeure application. The reason for this lies in the specific doctrine of the common law countries, as England and the United States. These countries’ courts remain unshakable in terms of managing the contracts performance. In contrast, some Asian and European states (including Ukraine) are characterized by dynamic changes in legislation, given the pandemic situation. The paper also discusses similar institutions like hardship and frustration of purpose, which are both applicable in continental and common law countries.

Decolonising the concept of the Trinity to decolonise the religious education curriculum

This article brings into perspective the need to decolonise the concept of the Trinity (as the specific doctrine and Christian name of God) as a crucial step in decolonising the religious education curriculum. It discusses the concept of decolonisation and its applicability to religious education, specifically Christianity, within higher education (e.g. in Teacher Education Programmes) in the South African context. God as the Trinity has throughout the history of Atlantic slavery and colonialism been employed to legitimise colonial rule and it, therefore, needs to be decolonised. To decolonise the concept of the Trinity is, however, highly problematic, as the historic relation between Christianity and African traditional religions (ATRs) indicates. Decolonising the concept of the Trinity can quickly develop into a tension between a position of either continuity or discontinuity (of ATR with Christianity). Contribution: This article argues for an alternative approach for the decolonisation of the concept of the Trinity, namely to allow for the deconstruction of the concept of the Trinity, and by implication of other concepts – like decolonisation and religion – as well. This approach is proposed to develop more openness and playfulness with regard to religious beliefs in general. I argue that this may provide a hopeful, open and just vision of life which should be part of the decolonised religious education curriculum.

The causes and consequences of a judicialized peace process in Colombia

Abstract This article focuses on one striking feature of the Colombian peace process with the Revolutionary Armed Forces of Colombia—People’s Army (FARC): a very high level of judicialization, as shown through the many decisions issued by the Colombian Constitutional Court that have examined core elements of the process. It argues that this high level of judicialization is explained not only by the generally activist role conception of the Court, but also by specific doctrines it developed, including a robust incorporation of international law and an unconstitutional constitutional amendment doctrine, which essentially made judicialization inevitable. Since these doctrinal devices are spreading, they may portend increasingly judicialized peace processes in other countries as well. Normatively, judicialization of ongoing peace processes raises clear risks, particularly of destabilization. But for the most part, the Colombian Constitutional Court has avoided these risks and instead has stabilized the process in important ways, by insulating it from both international pressure and domestic political shifts. The Court has also injected important values into the process, especially regarding the rights of victims of the internal armed conflict. Thus, the case study demonstrates that at least under certain conditions, judicialization may have a beneficial impact on the substance and durability of peace processes.

Historical Perspectives and Legal Aspects of Cyber Warfare

Historical development of cyber warfare follows three major historical periods: first period follows the technological advances of information technology during the 1980s until the end of the Cold War in 1990, second period is from the end of the Cold War to the terrorist attacks in United States during 11-th september 2001 year and the third period is from the terrorist attacks in United States during 11-th september 2001 year onwards. Each of the mentioned historical periods follows a specific doctrine and strategy of dealing with the national security threats from cyberspace. The world super powers and the world states, introduce appropriate strategies and national policies to deal with the consequences of this kind of warfare. Expression of cyberspace is linked to a short story titled "Burning Chrome" in the 1982 year written by American author William Gibson. In the following years, this word turned out to be conspicuously related to online PC systems. According to NATO, people are part of cyberspace. According to this, NATO defines that cyberspace is more than just internet, including not only hardware, software and information systems, but also peoples and social interaction with these networks. The first cyber warfare weapon ever known in history was Stuxnet. Stuxnet's objective was to physically annihilate a military target. Stuxnet has contaminated more than 60,000 PCs around the world, mostly in Iran. While international cooperation is essential, each nation should in near future develop a National foundation, its own national cyber security strategy, authorities and capabilities. Every nation state, should require effective coordination and cooperation among governmental entities at the national and sub-national levels as well as the private sector and civil society. The main hypothesis of this paper is to present the historical development and perspectives of cyber warfare and accordingly propose the best legal concepts, national doctrines and strategies for dealing with this modern type of warfare.

Is Executive Function The Universal Acid?

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our understanding of it. Then it addresses moral and legal responsibility generally, and specific doctrines. Executive function is seldom found to be the most perspicuous approach to any of the general or specific moral and legal questions.

دراسة وتحقیق لبعض الآیات من سورة المائدة فی ضوء مخطوط (الکنز الجلیل على مدارک التنزیل وحقائق التأویل للنسفی للعلامة إبراهیم بن إبراهیم الجناحی المعروف ببصیلة المتوفى سنة 1352هـ)

استهدف البحث دراسة وتحقيق لبعض الآيات من سورة المائدة في ضوء مخطوط (الکنز الجليل على مدارک التنزيل وحقائق التأويل للنسفي للعلامة إبراهيم بن إبراهيم الجناحي المعروف ببصيلة المتوفى سنة 1352هـ). وقد توصل إلى نتائج، أهمها: تميز الحاشية بسعة العلوم التي حوتها، ووصول مصنفها للهدف الذي رمى إليه في مقدمته في الجمع بين العلوم، بالرغم من المآخذ إلا أنه لا يقلل من قيمة الحاشية العلمية. وکثرة النقول التي طغت على ظهور شخصيته بشکل جلي في الحاشية، فالمصنف وإن کان يحتاج إلى تدعيم رأيه ببعض أقوال العلماء، إلا أن الإمام بصيلة جعل النقل هو صلب الحاشية. کما لم يکن للمصنف منهجية واضحة في تصنيفه، ولم يصرح بمنهجه في مقدمته کصنيع أکثر العلماء. کما لم يربط المصنف التفسير بالواقع المعاصر بالرغم من أنه يعد من المفسرين المتأخرين. کما لم تکن لدى المصنف نزعة التعصب المذهبي لمذهبه الفقهي بل خالف مذهبه في بعض المواضع، وهذا حال التفسير في العصر الحديث، فلم يلتزم فيه مذهبا بعينه، بل تفسر آيات القرآن الکريم حسب المتبادر منها من غير توجيه لها أو صرف إلى مذهب معين؛ ولهذا خلت من التعصب للمذهب الذي سرى في بعض المؤلفات القديمة. بالإضافة إلى خلو الجزء المحقق من الأحاديث الموضوعة، بالرغم من أن بعض کتب التفسير حوت ذلک. The research aimed at studying and investigating some verses from Surat Al-Maedah in the light of a manuscript (the great treasure on the perceptions of the download and the facts of the explanation of Al-Nasafi by the scholar Ibrahim bin Ibrahim Al-Janahi, known as the bulb of the deceased in 1352 AH). He reached results, the most important of which are: the footnote was distinguished by the amplitude of the sciences that it contained, and the arrival of its work to the goal that was intended in its introduction in combining science, despite the drawbacks, but it does not reduce the value of the scientific footnote. And the large number of quotations that overshadowed the emergence of his personality clearly in the footnote, so the work, even if it needs to support his opinion with some sayings of scholars, but the imam is a bulb to make the transport the core of the footnote. The work did not have a clear methodology in its classification, and its method was not declared in its introduction as the work of most scholars. The work also did not relate the interpretation to contemporary reality, although it is considered a late interpreter. The compiler also did not have the tendency of doctrinal fanaticism of his juristic doctrine but rather contradicted his doctrine in some places, and this is the case in the interpretation in the modern era, in which a specific doctrine was not adhered to, but the verses of the Noble Qur’an are interpreted according to what is exchanged from them without directing them or distributing them to a specific doctrine; From fanaticism to the doctrine that was applied in some ancient literature. In addition, the verified portion of the hadiths is devoid of hadiths, although some tafsir books contain this.

Krytyka i rozumienie w doradztwie filozoficznym

The aim of the article is to analyze “criticism” and “understanding” in their relation to philosophical counseling. The article begins by the thesis on the need to define this type of counseling as an equivalent relationship between a counselor and a client. This claim is based mainly on the Socratic sense of the essence of philosophizing as a common pursuit of wisdom and cognition. Next, criticism and understanding which seem to be abstract concepts that belong to specific doctrines are considered as useful tools in the process of creating a philosophical attitude. In this sense, they acquire their existential aspect and prove useful in the practical application of philosophy.

Prisão cautelar, argumentação e proporcionalidade: uma proposta para a fundamentação das decisões judiciais

A pesquisa busca solucionar o problema da falta de um modelo adequado para a fundamentação das decisões que tratam sobre prisões cautelares tendo em vista a sua inadequada aplicação prática. Utiliza-se como hipótese um modelo argumentativo baseado na proporcionalidade e apresentado em forma de axiomas, o qual seria capaz de resolver o problema da fundamentação, pois atrelado a preservação de direitos fundamentais. Objetiva-se, então, estabelecer um modelo para a fundamentação de decisões judiciais que tratam sobre prisões cautelares com vistas a reduzir a discricionariedade. Para atingir o objetivo do estudo, foi empregado o método dedutivo, além dos meios de pesquisa eletrônico e bibliográfico. As pesquisas se deram por meio de doutrinas gerais e específicas sobre o assunto, bem como artigos científicos. Como referencial teórico utiliza-se a doutrina de Robert Alexy, de Luigi Ferrajoli, bem como a crítica hermenêutica do direito de Lenio Streck. Conclui-se pela necessária utilização da proporcionalidade a partir de uma leitura da hermenêutica filosófica pela decisão que decreta ou mantém prisões cautelares, sendo sempre necessário atentar-se para a gravidade da medida imposta e o fim que ela procura tutelar. Não se deve admitir medidas inadequadas, desnecessárias ou extremamente gravosas, devendo-se observar as circunstâncias concretas do fato, sendo incabíveis motivações genéricas e abstratas.

Evolutionary approach in reasoning practice of constitutional justice

The author examines the essence and characteristic features of the evolutionary interpretation in constitutional review bodies decisions and concludes given the relationship between processes of argumentation and interpretation, as well as definite characteristics and trends in the application of the evolutionary interpretation in different countries, that it is more appropriate to talk about the evolutionary approach in argumentation, not about a separate method of interpretation. An evolutionary constitutional interpretation, as it is stated in the article, does not necessarily mean going beyond the literal text of the basic law. A literal (textual) interpretation and an evolutionary approach are combined phenomena of different nature; they are allocated based on various criteria – the source (orientation on the text) and the socially adaptive result, respectively. The value of the evolutionary approach is associated with the possibility of “adjusting” constitutional norms to real social canvas without making changes to the text of a constitution. The author shows using the case law examples that an evolutionary interpretation can be expansive, that is aimed at increasing the scope of constitutional regulation (“filling” constitutional norms with “new” (additional) content, picking out new human rights, increasing their level of protection), and restrictive, that is narrowing the scope regulated and (or) protected by a constitution (reducing level of human rights guarantees or subject area of constitutional regulation). Considering through the prism of specific constitutional justice cases such doctrines as of a “living constitution” in the United States of America, a “living tree” in Canada and the concept of “judicial law development” in Germany, the author comes to the conclusion that an independent concept of the evolutionary approach in legal reasoning has not been formed yet in the Russian practice of constitutional justice. In this regard, it seems to be perspective direction to develop such a concept, especially in the context of a possibility of combining the evolutionary approach with original interpretation. It seems that despite the fact that the problem of judicial activism is not now a problem of current urgent interest in Russia, the constitutional amendments of 2020 have actualized the potential for an evolutionary interpretation of certain constitutional provisions.