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Regular version of the site
Of all publications in the section: 159
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Article
Медушевский А. Н. Сравнительное конституционное обозрение. 2005. № 2.
Added: Oct 10, 2010
Article
Медушевский А. Н. Сравнительное конституционное обозрение. 2013. Т. 92. № 1. С. 30-44.

The article provides an incisive account of the Russian Constitution of 1993, showing how the main constitutional principles were elaborated, adopted and transformed in Russian society over the last two decades of legal development. On the basis of a cognitive approach, the author traces the different attitudes to constitutionalism in political thought, institutional design and political practice, examining how the unstable balance between liberal democracy and authoritarianism has shifted. Quoting contemporary documents, the author makes a panoramic reconstruction of the main constitutional strategies, perspective legal amendments and proposed technologies of their implementation in the future.

Added: Apr 23, 2013
Article
Медушевский А. Н. Сравнительное конституционное обозрение. 2014. Т. 97. № 6. С. 43-54.
Added: Mar 4, 2015
Article
Медушевский А. Н. Сравнительное конституционное обозрение. 2015. Т. 104. № 1. С. 117-129.

On the basis of cognitive jurisprudence methodology the author reconstructs the main features of Soviet pseudo-federalism as represented in the Constitution of 1924. He analyzes key aspects of this original system including the theoretical grounds of the integration project, the legal structure and institutional dynamic of bicameralism, conflicting constitutional strategies, the construction of legislative, executive and judicial branches of power in terms of their creation, the role in the USSR’s collapse, as well as their impact on post-Soviet constitutional development. One of the important conclusions of this article is that rethinking the Soviet constitutional experiment could be very instructive in avoiding misinterpretations and errors in full-scaled federalism-building in the future.

Added: Feb 27, 2016
Article
Медушевский А. Н. Сравнительное конституционное обозрение. 2015. № 2. С. 118-131.

On the basis of cognitive jurisprudence methodology the author reconstructs the main features of Soviet pseudo-federalism as represented in the Constitution of 1924. He analyzes key aspects of this original system including the theoretical grounds of the integration project, the legal structure and institutional dynamic of bicameralism, conflicting constitutional strategies, the construction of legislative, executive and judicial branches of power in terms of their creation, the role in the USSR’s collapse, as well as their impact on post-Soviet constitutional development. One of the important conclusions of this article is that rethinking the Soviet constitutional experiment could be very instructive in avoiding misinterpretations and errors in full-scaled federalism-building in the future.

Added: Mar 5, 2016
Article
Медушевский А. Н. Сравнительное конституционное обозрение. 2019. Т. 128. № 1. С. 21-41.

The predominant Post-Soviet orientation of the Russian social consciousness on stability as a reaction to the twofold collapse of the country during the 20th century is now receding. In the past quarter of a century (after the collapse of USSR and the adoption of 1993 Russian Constitution) the goals of the transitional period have been fulfilled as officially reported, a new generation has come of age, and new dynamic social groups are beginning to associate their perspectives with social changes. This growing demand for change is mainly concerned with the social sphere, but could potentially touch the area of constitutional priorities as well. The general problem is as follows: how can the Russian Constitution and political order based on it answer this growing request to fulfill still unarticulated social expectations which, under certain preconditions, could provide a negative mood? On the other hand, how can social change influence society’s vision of the Constitution, as well as the attitudes of intellectuals, politicians, and officials? In what ways will the Constitution need to adapt for the forthcoming global and national social transformations, first of all in order to confront the question of power transition in 2024. In this article the author debates the following questions: the main contemporary challenges to Russian constitutionalism, the interdependent logic of Constitutional basic norms and political regime dynamics, the dysfunctions of the legal system and parameters of political reforms prospects for developing constitutional order in light of power-transition processes, and the possible answers of the political elite and professional community to the growing demand for social and constitutional change.

Added: Jun 25, 2019
Article
Виноградов В. А. Сравнительное конституционное обозрение. 2008. № 3. С. 59-68.
Added: Oct 12, 2012
Article
Медушевский А. Н. Сравнительное конституционное обозрение. 2008. № 2. С. 11-21.
Added: Oct 12, 2012
Article
Анита Соболева Сравнительное конституционное обозрение. 2018. Т. 122. № 1. С. 113-126.

When judges adjudicate the cases in the light of national constitutions or the ECHR, they often deal with the conflict of individual rights and have to make the ‘balancing exercise’ to justify their choice in favour of one of them.  Different methodologies can be applied to investigate the problem why judges make different choices when they counter-balance seemingly the same rights under similar provisions. In the present article the attempt is made to apply the methodology of new rhetoric, elaborated by Perelman and Olbrechts-tyteca. Legal positivism cannot provide the answer, how the choice is made if the conflicting rights belong to the same level in hierarchy of legal sources. This issue lies rather in the realm of rhetoric than in the domain of legal theory, because the ‘preferable’, ‘choice’ and ‘adherence’ are rather philosophical than legal terms and relate to values and hierarchies. Arguments in law, according to Perelman, are rhetorical by nature and decision-making in law is based on rhetorical demonstration, not on the principles of formal logic. The choice between two lines of arguments is always a value-choice, and can be grounded in public opinion as well as in moral choices of the judges. The conflicting values can be considered as a rhetorical antinomy, which should be resolved. The antinomy is defined as mutual incompatibility of two laws, provisions or legal arguments, which can be equally justified as valid and applicable. From the rhetoric point of view, different outcomes to which the judges of national or international courts arrive in the process of applying the same provisions to the same facts, can be to a large extent explained by the fact, that though they share the common values, they build them differently into hierarchies and assign them different weight in their value-systems.  The analysis of two decisions – in Konstantin Markin Case and Nikolay Alekseyev Case, which provoked academic debate among Russian constitutional lawyers and judges - justifies this thesis. It also enables to identify the ways in which rhetorical antinomies in human rights cases are being resolved by the Russian Constitutional Court and the ECtHR. 

Added: Feb 27, 2018
Article
Кряжков В. А. Сравнительное конституционное обозрение. 2014. № 5(102). С. 82-96.
Added: Nov 12, 2014
Article
Шевчук П. П., Шулмане Д. Сравнительное конституционное обозрение. 2013. № 6 (97). С. 14-20.

Relationship between law and politics is one of the most problematic issues in discourse about the development contemporary democratic states. The aim of the article is to explore the meaning of the term ”legisprudence”, which has been developed since the 70ies of 20th century in Germany and Switzerland as a new approach to legal studies. Authors prove that the development of “legisprudence” is not only connected with the use of the concrete term, but in contemporary European legal history have in substance been analysed by such legal/political scientists as J. Bentham and F.C. Savigny. The term”legisprudence” has originated from the Latin language and means the jurisprudence of legislation from the legislator’s perspective or theory of legislation. It has been lately widely used in Europe, but almost not recognized in Russia. Notwithstanding, authors prove that legisprudence partially is already implemented in theory of law in Russia.

Added: Oct 24, 2013
Article
Сырунина Т. М. Сравнительное конституционное обозрение. 2008. № 4(65). С. 122-130.
Added: Jan 10, 2013
Article
Ларичев А. А., Маркварт Э. Сравнительное конституционное обозрение. 2020. № 5 (138). С. 74-88.

Local government as a political, legal and social institution finds itself in a very difficult period of development in Russia. The long-established tendency of its subordination to the state has intensified today in connection with the newly adopted constitutional amendments. At the same time, it seems obvious that further "embedding" of local government into the state management vertical, in the absence of any positive effect in terms of solving socio-economic and infrastructural problems, will inevitably lead to other hard to reverse, negative results both for local government institutions and the system of public authority as a whole. The normal functioning of local government requires, however, not only the presence of its sufficient institutional and functional autonomy from the state, but also an adequate territorial and social base for its implementation. To ensure the formation of viable territorial collectives, especially in urban areas, it seems appropriate to promote the development of self-government based on local groups at the intra-municipal level. Such local groups can independently manage issues of local importance on a small scale (landscaping, social volunteering, and neighborly mutual assistance), and provide, within the boundaries of a local territory, due civil control over the maintenance by municipal authorities of more complex and large-scale local issues (repair and development of infrastructure, removal of solid household waste and more). At the same time, the development of local communities can by no means be a selfsufficient and substitutional mechanism, whose introduction would end the need for democracy in the full scope of municipal structures overall. In this regard, the experience of local communities' development in Germany, a state with legal traditions similar to Russian ones, with a centuries-old history of the development of territorial communities and a difficult path to building democracy and forming civil society, seems to be very interesting. Here, the progressive development of local forms of democracy and the participation of residents in local issue management are combined with stable mechanisms of municipal government, and the interaction of municipalities with the state does not torpedo the existing citizen forms of self-government. At the same time, the experience of Germany shows that the decentralization of public issue management which involves the local population can only be effective in a situation where, in addition to maintaining a full-fledged self-government mechanism at the general municipal level, relevant local communities are endowed with real competence and resources to influence local issue decision-making. The role of formalized local communities in urban areas, as the German experience shows, can not only facilitate the decentralization of solving public problems, but can also help in timely elimination of triggers for mobilizing citywide supercollectives with negative agendas. This experience seems useful and applicable in the Russian context.

Added: Nov 30, 2020
Article
Комшукова О. В. Сравнительное конституционное обозрение. 2020. № 5(138). С. 112-133.

The key factor in maintaining a moratorium on the death penalty in Russia is its membership in the Council of Europe, which requires compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and the abolition of the death penalty. One of the proponents of maintaining Russia’s adherence to the Convention is the Russian Constitutional Court. However, the return of the death penalty as a capital punishment finds some support in Russia. Therefore, the Constitutional Court has to maintain a balance between two forces: internal pressure from public opinion and a number of conservative government representatives, and fidelity to the fundamental principles of the Russian Constitution and international law, backed up by international obligations undertaken by Russia. The purpose of this article is to identify and analyze contradictions among the priorities of the Russian Constitutional Court in its implementation of foreign and domestic legal policy through a political and legal analysis of its argumentation regarding the abolition of the death penalty. In turn, full-fledged analysis of the Court’s argument is possible only by taking into account the domestic and international contexts. The article is structured as follows: firstly, it examines the evolution of the question of the abolition of the death penalty in Russia and the main decisions of the Russian Constitutional Court related to the introduction and maintenance of a moratorium on the death penalty. Secondly, it examines the domestic context of decisions taken by the Court from the perspective of key actors (the professional community, government officials, public opinion). Thirdly, it considers the international context of decision-making (the development of relations between Russia and the Council of Europe, the Russian Constitutional Court and the European Court of Human Rights, as well as foreign experience with the issue of abolition of the death penalty). In conclusion, the article analyzes the main arguments of the Russian Constitutional Court to justify the need to abolish the death penalty and discusses the role of the Constitutional Court in resolving the death penalty issue.

Added: Nov 2, 2020
Article
Мазаев В. Д. Сравнительное конституционное обозрение. 2010. № 2(75). С. 64-69.
Added: Oct 14, 2012