Russian Symphonia vs. Rule of Law?
In secular societies, the principle of rule of law implies that churches and other social institutions may not assert themselves as above the law or replace the official law1 with their moral or canon rules. Abiding by this principle is a problem not only for the Russian Orthodox Church, but also for many other religious denominations that historically have carried considerable sway over social and political life in their countries by way of their “moral entrepreneurship” and that are now reluctant to cede that influence.
The objective of the “division of powers” theorists J. Locke and Ch.-L. Montesquieu was to prevent tyranny, concentration of power. However, for the classics of Eurasianism, the most important political and legal problem after the revolutions of 1917 and the First World War was not tyranny, but the existence of the Russia as a state. The purpose of their political and legal projects was to fill the “empty” liberal democratic forms with concrete content.
In this regard, the Eurasianist political theorist Nikolai Alekseev denied the idea of judicial independence. In his view, the judiciary should not be independent from the other branches of power: it is organized to embody the people's and state principles, it should not to be an indifferent arbitrator in the dispute resolution. Judges should strive to find the truth together with other participants in the process. Afterwards, Alekseev, who was impressed by the trials in the USSR during 1930s, favoured the principle of judicial independence, rejecting the idea that judicial reforms in 1864 were harmful to the Russian legal system.
In return for the separation of powers, the Eurasianists advocated the idea of a balance of “demotic” and “ideocratic” powers. In Alekseev's opinion, the “demotic” power would be embodied in a system of councils (“soviets”) formed on the basis of the “principle of intercession”, the “ideocratic” power– in the presence of a “state elite”, selected on the basis of fidelity to the “common idea”, Eurasianism. Nikolai Trubetskoy suggested the concept of “multiparliamentary rule”: in this system party elections would be inappropriate: citizens vote not for parties, but for special organizations representing their interests in a certain sphere of public life. The most powerful of these chambers would consist of “ideologists”.
The views of Eurasianists, on the one hand, can be put in the context of the ideas of “Classical Natural Law” theorists, who depicted political governance primarily in terms of goals and virtues rather than institutions and concrete organizational solutions. On the other hand, Political Eurasianism had similarities with the views of other authors traditionally considered under the “Sonderweg” ideologies and was also in line with Soviet constitutional projects that rejected the usual concepts of the division of powers.
quarter of a century has passed since the Constitution of the Russian Federation was adopted in 1993, yet the issue of the results and the prospects for constitutional transformation has not disappeared from the political agenda. For some, the Constitution signifies an ultimate break up with the communist past and a legal foundation for the advancement of the Russian society toward democracy and the rule of law; for the others, it is exactly the Constitution that is the culprit for the authoritarian trend that has prevailed, and for the sustained stagnation in Russia’s economic, social and political development. The author of this chapter is in the middle of these extreme viewpoints. He believes that the Constitution has truly played a pivotal role in Russia’s move toward democracy by establishing the basic principles of civil society and the rule of law, and in this respect, it remains of everlasting and paramount importance. Nevertheless, that does not mean that it should be utterly inaccessible for changes, especially given the elapsed time and the negative experience of the authoritarian transformation of the political regime, the amendments that were introduced between2008 and 2014, and the current objectives of the democratic movement. The rationale for changes is to return to the constitutional principles, reaffirm their initial democratic meaning by rejecting the excessive concentration of the Presidential power, the results of counter-reforms and the adulteration through legislative and regulatory compliance practices. Some of the proposed remedies aim to establish a new form of government (Presidential - Parliamentary), which would necessitate Constitutional amendments — adjustments that would regulate the separation of powers and redistribution of authority. Others seek to transform the system without changing the text of the Constitution through legislative reforms, judicial interpretation and the policy of law. Yet, the third approach prioritizes institutional reforms. Not everything in social development depends on the provisions of the law, political improvisation and practice can prove just as critical. In their cumulative entirety such initiatives can help avoid the two extremes: that of constitutional stagnation gravitating toward the bureaucratic asphyxiation, and that of constitutional populism which has a tendency to destabilize the political system. In its practical activities to transform the political regime, the opposition ought to remember the maximum repeatedly confirmed by experience, — the further a party is from power, the more radical tend to be its constitutional proposals. Conversely, empowered groups tend to be more moderate in their initiatives.
In 2020 European Commission for Democracy through Law (better known as The Venice Commission) celebrates its 30th anniversary. The article deals with the main stages of evolution of expert activities of the Commission especially after expanding the geography of its members (62 member states and several observes).
From the very first days of its existence, the European Commission for Democracy through Law (Venice Commission) has emphasized as a priority the effective functioning of democratic institutions through the implementation of the rule of law principles, especially in the field of constitutional law and the administration of justice.
According to statistics of the Commission in 2019 were adopted 43 documents, from them 6 thematic compilations of previous opinions, 22 opinions, 5 opinions amicus curiae, 7 reports, 3 guides and comments. The subject matter of these documents is diverse: constitutional reforms -2, state bodies - 4, constitutional justice and judicial system -20, human rights -10, other issues (elections etc) - 7. These data indicate an increasing variety of problems of expert activity of the Commission.
Expert assessments of the draft Constitution of the Russian Federation of 1993 were among the first opinions of the Venice Commission. Subsequently, the Venice Commission several times addressed the issues of the Russian constitutional system, as well as constitutional system of other states. The VC Report on the Rule of Law (2011) and the VC Rule of Law (2016) are of great importance.
Issues of the constitutional basis of the judiciary and its functioning are also priorities of the Venice Commission’s activity, especially in recent years, when relations between the judiciary and other branches of power have escalated in a number of European states. The article emphasizes that the 1993 Report on the independence of the judiciary and the role of the public prosecutors department is very important even now. The starting point of numerous VC opinions and reports in this area is to ensure the real independence of the judiciary and the judges themselves.
In recent years the activity of the Venice Commission has noticeably revived in the field of electoral law and organization of elections. The agenda includes not only several issues related to electoral systems, but also such acute problems as political corruption and abuse of administrative resources.
Autocracies pose a puzzle for students of constitutional politics. While it is tempting to brush constitutions aside as a sham, this chapter draws upon insights from various regions in the world to analyze the role of Belarus’ basic law beyond its failure to limit the government. Due to its information-related properties it contains a political vision and defines the nature of the political community, thus striving to shape the identity of its members. Referenda as the only means to adopt amendments attest to the lasting Soviet legacy and the populist nature of the regime. The de jure and de facto dominance of the presidency in the last two decades has entrenched the state’s discursive hegemony in the public sphere, and the rule-of-law rhetoric functions as a major claim to legitimacy.
Until recently, the issues of anti-corruption and the problems of constitutional law were studied separately. Although it is the anti-corruption approach to legal issues that allows to expand the constitutional law instrumentarium. The author analyzes the so-called corruption equation of Robert Klitgaard: “Corruption = Monopoly + Freedom of action – Accountability.” The article proposes the “anti-corruption equation” translated in legal language: “Regular alternation of power + Power, limited by the law + System of checks and balances”. The author puts forward and substantiates the hypothesis that the totality of anti-corruption requirements constitutes the formula of a democratic law-bound state that operates in conditions of the human rights priority and the rule of law. And vice versa, the Klitgaard’s “corruption equation” in the same legal translation constitutes the formula of an authoritarian political regime. The article analyzes various classifications of corruption and notes the particular danger of political corruption. It has a comprehensive systemic nature and uses the infrastructure of the entire political process, rather than of a separate department or a separate public office, to achieve corruption goals. Under the conditions of the republic state, the government usually does not show its corruption goals and is forced to imitate democratic processes, replacing them with authoritarian practices. The mechanism of political corruption, therefore, becomes a means for leveling constitutionalism. At the same time, an authoritarian political regime is not always a primary and necessary factor of corruption. In some cases, such regime is created artificially specifically for certain corruption goals. In support of the stated theses, the author analyzes constitutional transformations in the CIS countries in the light of anti-corruption research.
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter