The 1936 Soviet Constitution marked the crucial point in the formation of Stalin’s personal dictatorship. Being totally nominal in terms of real constitutional rights and guaranties, the Basic Law of “built Socialism” played definitive role in the establishment of a principally new form of tyranny, legitimating mass terror and new forms of social mobilization. On the ground of new archival documents the author reconstructs the process of 1936 Constitutional Act elaboration - intentions, motives and aspirations of Constitution-makers regarding general institutional architecture, norm-selection and their political interpretation as well as dictator’s personal role in their construction. This study is a contribution to the general theory of machiavelian technologies of constitutional engineering.
The article presents a study of a particular group of constitutional norms which define fundamental values and aspirations of a political community. Aspirations which are usually found in constitutional preambles and chapters devoted to basic features of constitutional order are analysed from two perspectives. Firstly, the authors describe theoretical approaches to understanding peculiarities of aspirational provisions and factors shaping their development. Secondly, they turn to uncovering the potential and challenges of pragmatic use of aspirations by constitutional courts,
Aspirational provisions name and describe fundamental values of a community and thus, play a crucial role in establishing its constitutional identity. It is argued that values expressing identity construct a bridge between nation’s past and future, and stress the importance of preserving long-standing legal traditions as well as transforming legal system to achieve certain goals. The problem is that due to highly abstract nature of aspirational provisions and wide discretionary powers of constitutional courts, there is a substantial risk of manipulative use of aspirational arguments in the process of solving specific conflicts. The authors investigate constitutional jurisprudence of various countries, including Russia, and come to a conclusion that referral to aspirations requires a higher level of reflection and self-control on the part of the courts.
In the 1970s there was a change in the political regime in Spain and Portugal. The result was the adoption of constitutions designed to create the legal basis for democratization that were characterized by a broad perception of the foreign experience of constitutionalism. In particular, some institutions were included in the state mechanisms, which had won recognition in states that are committed to constitutional values, but were new to Spain and Portugal. One of them is the institution of the ombudsman. The development of an ombudsman was widely discussed in professional circles. Legislators held discussions on the necessity an ombudsman in the state’s legal system, its name, and some other important issues. However, the situation with human rights, the judicial system, and defects in other human rights institutions, such as violations by executive bodies and undermining public confidence to the institutions of public authority as a result of the dictatorial regimes in Spain and Portugal, were obvious enough. Hence the prevailing of the viewpoint on the expediency of the institution of the Ombudsman as an institution designed to control the administration from the perspective of respect for human rights. Herewith, in the course of building the Ombudsman concept, a special role was assigned to representatives of science and journalism. In the process of adopting the Constitutions and, subsequently, the laws on the ombudsman, the legislators demonstrated an understanding and unwillingness to transform the institution into a political tool of any political party. The provisions regulating the status and activities of this institution in the Iberian countries of Europe allowed the Ombudsman to not be guided by political interests in the process of investigating the improper activity of executive bodies. As a result of the adoption of constitutions and laws regulating the status and activities of the Ombudsman, the institution was provided with guarantees of political neutrality: the status of ombudsmen was fixed in the law at a high level; the organizational independence of the Ombudsman from public authorities was ensured; Ombudsmen were empowering with a broad competence, including the authority to initiate amparo proceeding in Spain, and to forward the appeal to the Constitutional Court with a request to verify the constitutionality of normative acts in Spain and Portugal; ensuring the financial independence of the Ombudsman’s activities; securing the responsibility for interference in its activities; regulating the procedure for empowering and terminating the powers of the ombudsman; and, in Portugal at least, ensuring that the ombudsman also has immunity. The authors of the current constitutions of Portugal and Spain aimed not only to borrow constitutional institutions that proved to be justified in foreign countries, but also to increase their effectiveness. Therefore, ombudsmen in these countries have some powers aimed at increasing such efficiency and expressing the features of their status. The establishment of the ombudsman institution in Portugal and Spain had an impact on Latin America, where the institution of the ombudsman appeared and spread with the inherent characteristics of the Ibero-American ombudsman.
The author considers the issues of common legal approaches to understanding the transfer of state authority on the basis of analysis of Russian legislation and received in the last years of practice and rules, which could form the basis of the relevant legal mechanism. The author does not guarantee full and comprehensive coverage of the topics: Institute transfer of state responsibility - a global and interdisciplinary phenomenon. The article gives some examples of privatization, outsourcing, considers the problem of implementing the theory of service state, some case studies involving organisations to provide public services, of concession of objects of culture. The reader will see the problem of transfer of state responsibility and some proposed solutions, and, first, from the point of view of public law approach, and, secondly, from the point of view of General regulation (primarily, constitutional and administrative law).
The current Russian constitutional reform provoked an intensive debate on the nature, legal substance and consequences of the whole bulk of constitutional amendments introduced in the year 2020. From the one hand, the initiators of reform were keen on affirmation of a proven formal and even substantial continuity of amendments with the text of the Basic Law of 1993. From the other hand, their opponents demonstrated the apparent transformation and distortion of many important constitutional provisions regarding some key constitutional principles – law-based state, federalism and local self-government, parliamentary rule, bicameralism, separation of powers, independent justice and constitutional limitations of presidential terms in power. The author thinks that these two contested opinions could find junction in a framework of a new theoretic explication, namely of constitutional dictatorship formula. In historical and comparative perspective this system of government means the establishment and development of unlimited power of one person by formally adopted constitutional methods – on the base of the manifested people’s consent, unanimous agreement of all branches of power and in formal accordance with the letter if not spirit of the constitution in action. In reality this reform could be interpreted as the so-called “juridical coup” – deep transformation of the whole constitutional order, while, without visible violations of formal amending norms and procedures. Taking this idea as a conceptual cornerstone of the Russian constitutional reform, the author analyses constitutional dictatorship as the particular system of government, its different notions, historical and current modifications, ideological grounds, political regime, the special role of the head of the state as a constitutional dictator, and the problem of the supreme power continuity, legitimacy, and preeminence under this form of authoritarian rule. The analyses gravitation center involves such parameters as a new symbolic status of the head of the state, the enlargement of his prerogatives, the mandate to power duration, and the problem of successor solution.
After the presidential elections on June 14, 2013 in Iran when moderate politicians headed by the ex-negotiator on the nuclear issue Hassan Rouhani took the office, analysts started to discuss perspectives of international détente with Iran and its internal political changes. The fact that a moderate was elected for this office is not a harbinger of the structural change in the system and speaks for the partial change of policy with the aim to ease external pressure to alleviate tension inside the country. Supreme Leader who is supported by non-elected religious bodies remains the strongest institution in the system. Meanwhile, the system retains its factionalism that provides its flexibility for meeting exterior challenges. Perception of external and internal security threats impacts strengthening certain factions in the system of power.
This article offers a method of political and legal analysis for decisions of the Constitutional Court of the Russian Federation that allows us to differentiate between political and legal arguments of the Court. Judgment of the Constitutional Court of the Russian Federation No. 21-P, dated July 14, 2015, which contains an interpretation of the constitutional norm on the primacy of international law, was selected as the object of this research. This Judgment effectively enshrined the right of Russia, in exceptional cases, not to execute the decisions of the European Court of Human Rights. This resonant Judgment demonstrates the specifics of the arguments of the Constitutional Court of the Russian Federation that give rise to a discussion of the admissibility of this Resolution, along with not only legal, but also political arguments when deciding. While the legal side of this issue is amenable to detailed analysis, the political reasoning of Court decisions has not been adequately investigated. The author proposes a methodology for analyzing the court’s arguments that which takes into account a number of criteria, including the substantive nature of the reasoning, the peculiarities of the abstract value categories of the court, speech, and stylistic features. In addition to the text of the judicial act itself, the objects of the study were the publications of the Chairman of the Constitutional Court of the Russian Federation, current and former judges of the Russian Constitutional Court, representatives of the professional legal community, and the media. This analysis allows us to draw a number of conclusions regarding the features of the legitimization mechanism used by the Court in its decisions, and the proposed methodology can be applied in the future to analyze other decisions of the Constitutional Court of the Russian Federation.