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Global Constitutionalism under Stress: Russian Constitutional Reform as a Turning Point and Model of the Legal Transformation in Asia
Global constitutionalism become the main theoretical ground, form and practical instrument for the international legal integration after the end of the Cold War in the era of the “triumphant liberalism”. Based on classic Western liberal values and principles of human rights it emphasized the role of international constitutional law and courts as a principally new form of supranational regulation trespassing the national borders, identities and state sovereignty. Up to now this trend took its practical implementation mainly in the Western part of the world (European Union) and partly associated regions (Latin America), but demonstrated growing difficulties in Eurasia (Post-Soviet region), and Asia. The Asian region, in spite of great difference between more than 50 respective countries, demonstrated the growing common trend to legal fragmentation and state-oriented constitutional agenda. That resulted in visible asymmetry of the Asian constitutional development: the absence of the common Asian legal identity; priority of hierarchy in international system over state equality principle; the rebirth of Westphalian concept of sovereignty instead of post-national concept, the search for separate national legal identities. This variety of constitutional forms deeply rooted in colonial and post-colonial past of different Asian regions, cultures, nationalist beliefs, and current pragmatic interests. In systematic and very clear form this new trend and its theoretical background represented in the Russian constitutional reform of 2020. The Russian Constitution of 1993 as adopted after the collapse of USSR and Communism in 1991, become one of the most liberal and pro-Western legal acts of that period, but later appeared to be transform by different revisions towards conservative constitutional authoritarianism. This evolution of liberal constitutionalism in the form of legal retraditionalization, legitimized as anti-globalist restoration of national sovereignty, formed the crucial challenge for both Eurasian and Asian constitutional development – the necessity to make decisive choice between global constitutionalism and the protective constitutionalism as two opposite forms of adaptation to legal globalization in process.