CCR № 6 (139) 2020

Available only in Russian

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CONTENTS

CONSTITUTIONAL WATCH

OCTOBER – NOVEMBER • 2020

Algeria, Bulgaria, Chile, Georgia, Moldova, Poland, Russia, Sri Lanka, Thailand, Ukraine

LAW IN TIMES OF CRISIS

COVID-19 PANDEMIC AS A CHALLENGE TO CONSTITUTIONAL LEGAL ORDER

Nataliya Varlamova

The COVID-19 pandemic is certainly an emergency, it has affected almost all countries in the world and has a serious impact on the functioning of their authorities. In the current state of emergency, states have two strategies of action: to overcome it within the framework of the existing constitutional order and the current legal regulation, or to introduce a special legal regime. Today, the choice of these options for responding to the COVID-19 pandemic is being actively discussed by politicians and experts. Each of them has its pros and cons.

RIGHTS AND FREEDOMS IN NEW REALITY

ALGORITHMS IN THE MECHANISM OF IMPLEMENTATION OF CONSTITUTIONAL RIGHTS AND FREEDOMS: CHALLENGES IN THE DIGITAL AGE

Igor Pibaev, Snezhana Simonova

The article deals with some legal and ethic issues relating to the algorithms and artificial intelligence systems impact on the enforcement and the defense of constitutional rights. Taking into account the algorithmic nature and legal aspects as well as foreign practices the authors note the risks for civil, political and socio-economic rights. Special attention is given to the conceptualization of the ways the algorithms influence on legal status and human rights, justification of the suitable ways of reducing the risks connected with total algorithmization. The paper contains the study of the significance and extensive prospects of the ensuring the right to explanation in the context of the sense and reasons of automated decisions in order to enhance their transparency and accountability. The authors note that in spite of the lack of legal rules regulating algorithmic communication some state make their own steps on the way toward harmonization of algorithms with human rights and legal procedures.

LEGAL REASONING

IS IT TIME TO UNDERSTAND RUSSIA RATIONALLY? TEST OF SUITABILITY IN CONSTITUTIONAL ADJUDICATION

Aleksei Dolzhikov

The author discusses the application of the suitability test in constitutional adjudication. Then he puts forward a thesis that in comparison with the essentially philosophical categories of reasonableness and rationality, this prong of proportionality principle has practical value in judicial review of legislation. The political system has to meet the minimum standards of a deliberative democracy in order courts could use the doctrine of rationality. Among such standards are: recognition of the diversity of ideologies, real competition between political parties and other groups, a serious attitude towards discussion in society, etc.

EVOLUTIONARY APPROACH IN REASONING PRACTICE OF CONSTITUTIONAL JUSTICE

Aleksandra Uroshleva

The author examines the essence and characteristic features of the evolutionary interpretation in constitutional review bodies decisions and concludes given the relationship between processes of argumentation and interpretation, as well as definite characteristics and trends in the application of the evolutionary interpretation in different countries, that it is more appropriate to talk about the evolutionary approach in argumentation, not about a separate method of interpretation. An evolutionary constitutional interpretation, as it is stated in the article, does not necessarily mean going beyond the literal text of the basic law. A literal (textual) interpretation and an evolutionary approach are combined phenomena of different nature; they are allocated based on various criteria — the source (orientation on the text) and the socially adaptive result, respectively.

CONSTITUTIONAL JUSTICE IN MOTION

THE AMERICAN COMMON LAW AND THE WILL OF THE JUDICIARY AS A SOURCE OF ITS BINDING FORCE

Aleksey Grin'ko, Kirill Zharinov

This Article attempts to suggest another approach to such problem. Considering the nature of binding force and the methods of its attribution to a legal doctrine (basing on the recent case-law) we conclude that the obligatory status of the stare decisis doctrine derives from the will of the judiciary rather than people or the legislature. It is the judicial community who decided to treat a precedent as binding on each of them. This fact makes third parties believe that such a precedent would be applied in case of potential proceedings and therefore, act in accordance with it.

REALITY AND POTENTIAL OF BEHAVIORAL CONSTITUTIONAL REVIEW: A COMPARATIVE RESEARCH

Bogdan Lesiv

The article is available for free download

This article is an attempt to prove the existence of a separate body of constitutional misconduct, i.e. such possible manifestations of power, illegality of which is often difficult even to reveal in administrative proceedings due to the issues of a truly constitutional nature, let alone the possibility of curbing such acts by ordinary measures. The first paragraph presents an original classification of constitutional misbehavior — from a violation of a direct or implicit constitutional provision to a breach of the constitutional oath or citizens’ legitimate expectations. The second paragraph supports the theoretical dogma with the empirical basis, considering foreign practice of constitutional review. Real actions of the senior government officials of the United States, Germany, Austria, Italy, Australia, Lithuania, South Africa, etc. were held at various times as unconstitutional. The third paragraph is a discussion on the problem of administrative process’ capacity to ensure that the behavior of government is constitutional and to implement the goals of constitutionalism.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 38-P – 48-P • 2020

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 1938-O, 2372-O, 2374-O, 2375-O, 2596-O • 2020