Australian constitutional model is quite unique for two reasons: first, it is based on the principle of parliamentary supremacy with no written Bill of Rights; second, it is astonishingly stable and resistant to change. Constitutional text contains few explicit rights provisions and is supplemented by a modest and unsystematic collection of implied rights recognised by the High Court of Australia. In spite of the lack of constitutional regulation of rights, the actual level of fundamental rights protection in Australia, determined by various ratings and indexes, is one of the highest in the world. Together with other – more substantial and deep-rooted – causes this explains two tendencies observed in contemporary Australia and scrutinized in a given article: 1) unwillingness to adopt a federal Bill of Rights (in the form of constitutional amendments or a legislative act); 2) unwillingness of the High Court to expand and deepen the potential of existing Constitution by broad and creative interpretation of its provisions. As for the first tendency, the following arguments of the Bill of Rights opponents attract our interest: commitment to Australian exceptionalism and confidence in the existing system of rights protection; supremacy of parliament; and speculations that protection of rights may weaken as a result of adoption of an abstract Bill of Rights. Caution and self-restraint of the High Court of Australia could be explained by the eagerness to preserve its legitimacy and to maintain high authority of its decisions in the society which has delegated the prerogative of solving controversial problems, including those related to definition and restriction of rights, to the legislator. The study of peculiar features of Australian constitutional order and legal culture brings the author of this article to interesting conclusions.
Recent rapid changes in the world put all legal traditions to the test. In Europe it boosts interest to comparative legal history or investigations into the factors of legal development through comparative analysis of two or more jurisdictions of the Old World. This new approach generates vivid debates and yields some valuable publications. Yet its methodology is far from clear. Does comparative legal history have the methods of its own? Or does it borrow them from comparative law?
To resolve this complicated issue one must look at the basic assumptions of comparative study in contemporary law and its history because they assure compatibility of specific methods. In this article the author investigates such common basic assumptions as: the complex and less coherent picture of law in the past and present (as compared to the scientific perception in the late 19th and early 20th century), multilinear evolution of law, interconnectedness and legal traditions, persistence of ubiquitous legal transplants due to cross-cultural influences, flexible regularities of legal development.
These basic assumptions allow for several methodological conclusions in comparative research. The complex vision of law and its multi-factor development necessitate combination of various methods of research. Cross-cultural influences and the socio-cultural environment of law add value to a comparative approach in understanding apparent and hidden factors of legal development. A predominantly realistic interest of many legal historians in comprehending how law actually shaped social relations brings to the frontline of their methodology the functional method of comparative law which aims at discovering the link between the social problems and their legal solutions. Finally, the compatibility of basic assumptions paves the way for several common academic goals and the object of comparative research in legal history and contemporary law. All the above justifies attempts to build on the methods of comparative law in the domain of comparative legal history.
Against the backdrop of the ongoing crisis of local government in Russia, caused, among other things, by legislative changes in recent years, the question of preserving self-governing institutions, including the ones within cities, has become quite acute. Factors such as extending the spatial limits of local government to sometimes very extensive boundaries of urban districts, the distancing of city power from the population, the use of territorial administration tools to solve local problems at the city level without taking into account the views of residents of inner urban districts and settlements do not only put under attack the values of local government as an institution of democracy, but also adversely affect the development of cities as complex territorial and social structures. The author of the article maintains that the answer to the arising difficulties could lie in the formalization of local communities as subjects of municipal administration in certain territories within city boundaries. The article, with due regard for the differences in the models of local government in Russia and foreign countries, discusses theoretical approaches to the concept of local communities and describes approaches to the establishment ofspatial limits for their functioning. The author notes that the identification and institutionalization of local communities requires a comprehensive work to account for both socio-geographical and functional factors that determine community genesis. In this sense, a promising method would be in compilation of mental maps of local residents' areas of communication within submunicipal territories. The article also makes recommendations regarding the organizational and functional foundations of the institution proposed for implementation. According to the author, the institution of local communities has a different nature and specificity, as compared to the institution of territorial public self-government that already functions in Russia. Accordingly, the competence component of the legal status of local communities should also be broader - including the mandatory participation of local communities in solving a number of common municipal issues affecting the development of the respective territories, as well as exercising a control function in relation to local issues.
Global (or World) constitutionalism is an established philosophical theory (formed in European thought on the base of Immanuel Kant’s intellectual heritage); the area of legal and political debates about possibility of a new, more faithful, global social and legal order; and the framework for the articulation of the new network of the current political movements, generally oriented on globalized, or more unified vision of the constitutional values, norms and human rights as based on common international construction of the legal order and the global governance. Though many important ideas of global constitutionalism were formulated by international lawyers at the first half of the XX century (in debates occurred after the end of First and Second World wars about the role of the League of the Nations and United Nations Organization), the real practical importance of this theory became much more clear only after the end of the Cold war – the collapse of the USSR and the creation of the European Union in 1991, interpreted by many experts as a principal achievement of this theory, a muster for its practical implementation and a pre-eminent road-map for the future global transformation of international law, constitutionalism and governance. In the context of this progressive debate, concentrated mainly on international law, European law and transnational jurisprudence, the special issue of global constitutionalism (as a problematic and still disputable amalgam of supra-national and national legal rules, norms and regulations) became the subject of conflict, controversial and partisan debates in the theory of law. The author analyses the whole balk of the most important theories of the global constitutionalism – cosmopolitan, normative, societal, institutional, functional, comparative, constructivist, meta-legal and critical, showing the positive and negative aspects of each and reconstructing the shifting balance of priorities and arguments. The bulk of the existing theories and projects of global constitutionalism (more or less formalized, coordinated and openly circulated in public space during last 25 years) provide a perfect ground for the complex, reliable and empirical research of the global constitutionalism as a new international legal philosophy, ideology, and political movement. By using the cognitive method and the constructivist approach, this research initiative puts under consideration the scope, the dynamic and practical influence of global constitutionalist movement as a new ideology, public ethics, strategy and politics of the current legal transformation.
The comparative analysis of different legal cultures and traditions is an important
target of jurisprudence in the epoch of globalization regarding such
issues as common and original aspects of various legal systems, norms and
institutions, their evolution in history and cross-cultural influences. The substantive
part of this research strategy includes clarification of value-systems,
legal stereotypes, and even prejudices of different nations as represented in
a long-term historical evolution and modes of its evaluation by domestic
and foreign observers in contested narratives. The book under review demonstrates
an interesting and controversial approach to this subject by using a
de facto anthropological reconsideration of the Russian legal tradition covering
the significant historical period from Peter the Great to Vladimir Putin.
The author postulated the original character of the Russian legal tradition
describing its essence as the eternal reproduction of a very specific form of
legality, namely, functional or administrative-legal regulation of society by
the state. He argues that this functional paradigm codified in the soviet theory
of state and law, in reality, reflects the genuine structure of legal thinking,
mechanism of power and ideological ground of the Russian statehood
during the periods of Empire, Soviet dictatorship and Post-Soviet government.
Thus, for the author of the book, it seems to be a formula of power
symbolizing the historical continuity of the Russian legal culture as well as
its main difference from the Western law-based state. The author of this review
demonstrates the positive and the negative sides of this scheme of the
Russian legal tradition: while it is a logical explanation for the evident and
undisputable priority of the state over society in Russian history, this theory
of functional legality leads to the apparent oversimplification of country’s
complex legal evolution and its place in comparative perspective. From the
anthropological point of view, this concept provides a very clear image of
the dominant Anglo-Saxon narrative of the Russian legal past and present
with all its stereotypes, shortcomings, and beliefs. Reconsideration of these
historically formed mental stereotypes on a neutral and value-free base
could be helpful for the reliable understanding of the paths of Russia’s legal
transformation in the new globalized world.
This article considers the relationship of the constitutional economic model and the real economic action of state authorities. Based on an analysis of materials from leading Russian economists, it can be concluded that the Russia has a semi-market economic model. Its main problems are excessive government intervention, the dominance of the public sector, the reduction of freedom of economic activity, and competitive beginnings. This situation is contrary to the important constitutional values of a socially oriented market economy. This article assesses the severity of such differences and raises issues about the ways in which this contradiction can be overcome. After assessing the role of the Constitution in search of a new economic model, this article proposes several possible approaches to implementing constitutional values in the economy. This article then substantiates the position that constitutional regulation in the expanded state has started and that it should take into account all the current trends and opportunities with economic challenges, while not retreating from the core constitutional values of economic pluralism. The main question of constitutional influence on the В. Мазаев. Деформация российской конституционной экономической модели: оценка и варианты реагирования 129 update of the current Russian economic model is the question of privatization of the Russian economy. The solution to this problem is the adoption of a package of Federal laws, primarily the law “On the demonopolization and privatization of the Russian economy.”
On the basis of a critical analysis of modern concepts of the object of con- stitutional law, the author presents her own concept. In accordance with it, the object of constitutional law covers two elements. The first element in- cludes political relations originally intended to restrict the state power by means of putting it under the people’s control (mostly these are political relations within which public authorities are placed under the control of the people). The second element covers social relations of great impor- tance to the society, which concern various spheres of life (economical, cultural, social, etc.). The author proves that those two elements of consti- tutional law subject are united, but not identical. The relations of the first group are directly related to the original idea of the constitution phenome- non, which is the restriction of the state power. Thus, any constitution reg- ulates these relations in a more detailed way as compared to the other kinds of social relations, with other sources of constitutional law focusing solely on these political relations. Nonpolitical social relations are ad- dressed by constitutions in a very short and generic way (while more de- tailed regulations can be found in the legal norms of other branches of law). The unity of the object of constitutional law has a historical founda- tion. A constitution occurred as a system of state power limitations. On the one hand, the number of those limitations has gradually increased. Conse- quently, around a constitution a whole new branch of law has evolved – the branch that we call today constitutional law. On the other hand, in the XXth century constitutional texts started to include norms designed to solve significant matters other than the restriction of the state power (rela- tions between nations and religious communities, in the field of education, labor, etc.). As a result, the scientific characteristics of the object of consti- tutional law has changed: constitutional law has been defined as the fun- damental branch of law regulating the relations of the greatest signifi- cance. The author objects to that definition because it helps to legitimize any type of state power including autocracy, id est it goes against the origi- nal purpose of a constitution as such and might lead to a strengthening of constitutional dysfunction.