«Comparative Constitutional Review»
Issue №2 (135) 2020

CONTENTS

CONSTITUTIONAL WATCH
FEBRUARY – MARCH • 2020 

Abkhazia, Azerbaijan, Bosnia and Herzegovina, Colombia, Germany, India, Ireland, Israel, Russia, Slovakia, Switzerland, Tajikistan, Ukraine

COMPARATIVE RESEARCH METHODOLOGY

THE METHOD IN COMPARATIVE LAW: THE CONTEXTUAL APPROACH
Uwe Kischel

A quick survey of some current works on comparative law will reveal a discrepancy between comparative law in practice, which is widely dominated by a traditional, functional approach, and certain academic voices on methodology, which deplore the predominant “undertheorized” attitude. Methodological literature not only criticizes many of the details of the traditional approach but is often focused on the presumed lack of theory, which directly leads to demands that comparative law should learn from social science, its techniques, models and methods. And indeed, this seems to be the core concern of the critics: they do not accept the existing methods of traditional comparative law because they consider only the analytical methods used in social sciences to be theoretically satisfying and sufficient.

CONSTITUTIONAL LEGAL REASONING

DOES GOD MOVE IN A MYSTERIOUS WAY? THE ARGUMENT FROM CONSEQUENCES AND ITS USE IN CONSTITUTIONAL JUSTICE
Aldar Chirninov

The author of this article explores the persuasive, heuristic, and prognostic potential of the argument from consequences. With references to the case-law of the Constitutional Court of Russia, the Federal Constitutional Court of Germany, and the United States Supreme Court, the author reveals the advantages and disadvantages of consequential reasoning, examines the specific forms of the argument from consequences, including the covert ones (reduction to the absurd, appeal to common sense, formulation of hypothetical questions), and considers typical argumentative errors that arise due to the incorrect appeals to desirable or undesirable outcomes of legal regulation. The article also deals with the dishonest tricks of argument that an unscrupulous agent can resort to in the course of the construction of her argument (a «slippery slope» argument, wishful thinking, the use of the argument from consequences as a hidden basis for a constitutional ruling). 

HUMAN RIGHTS IN A NEW REALITY

The article is available for free download.

HUMAN RIGHTS IN THE AGE OF ANTIPATERNALISM
Daniel Smilov

The paper explores different scenarios, which put human rights under significant stress in the contemporary political environment. Three classical scenarios are outlined, which undermine human rights for the sake of greater security, greater happiness or greater popular power. The author suggests in this paper that human rights today are not likely to be undermined by these three classical scenarios. They most probably will not die a heroic death at the hands of a Leviathan, a Grand Inquisitor, or a Revolutionary Convent. Yet, there is some real danger that they could die the unusual death of exhibits in an ethnographic museum of the habits of endangered, self-centred majorities in liberal democracies. These majorities are convinced in the superiority of their way of life and have grown fearful of losing it.

LEGALIZATION OF SAME-SEX UNIONS: CONSTITUTIONAL REVIEW
Anastasia Isaeva

The article discusses the foreign experience of legal regulation of same-sex unions and the prospects for their legalization in Russia. It is determined that in those countries where homosexual relations are legalized in one form or another, the approach to their normative design is not the same. At the same time, international institutions do not seek to impose one opinion or another on the possibility of legalizing same-sex unions through a judicial interpretation of international human rights law and leave this issue for each state to independently resolve. In some cases, a unified legal regulation is introduced at the national level for same-sex and same-sex couples. In others, marriage is defined solely as a union of a man and a woman, and other legal institutions are introduced for homosexual couples, for example, civil partnership, registered partnership, free union, etc.

VENICE COMMISSION: JUDICIAL REFORM IN POLAND

POLAND: JOINT URGENT OPINION NO. 977/2019 88 OF THE VENICE COMMISSION AND THE DIRECTORATE GENERAL OF HUMAN RIGHTS AND RULE OF LAW (DGI) OF THE COUNCIL OF EUROPE ON AMENDMENTS TO THE LAW ON THE COMMON COURTS, THE LAW ON THE SUPREME COURT, AND SOME OTHER LAWS. 16 JANUARY 2020

CONSTITUTIONAL DISCOURSE: CONCEPTS AND APPROACHES

THE PRINCIPLE OF SUBSIDIARITY: IN SEARCH OF IDEAL
Igor Irkhin

In this article the author examines the scientific approaches to the definition of the principle of subsidiarity, while also proposing his own definition of this principle. The author indicates various approaches to understanding this principle, distinguishes several modifications and models of the principle of subsidiarity. The author gives particular importance to the “political”, “administrative” and “legal” components of the principle of subsidiarity, focusing his attention on the fact that these elements of the principle of subsidiarity are considered by various specialists either in synthetic unity or separately from each other, their differentiated specific gravity is emphasized.

BOOK REVIEW

The article is available for free download.

THE STATE AND LAW: METAMORPHOSES OF THE RUSSIAN LEGALITY OVER 300 YEARS
BOOK REVIEW
POMERANZ W. E. LAW AND THE RUSSIAN STATE: RUSSIA’S LEGAL EVOLUTION FROM PETER THE GREAT TO VLADIMIR PUTIN. LONDON ; NEW-YORK : BLOOMSBURY ACADEMIC PUBLISHING, 2019
Andrey Medushevsky

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.

PRAXIS

The article is available for free download.

THE LONG ECHO OF TERROR: COMMENTARY ON RUSSIA’S CONSTITUTIONAL COURT JUDGMENT OF 10 DECEMBER 2019 NO. 39-P
Irina Dudko, Olga Kryazhkova

In 2019 Russia’s Constitutional Court examined the rights of rehabilitated victims of political repression in the Soviet Union. It was the second such case in 26 years. The Constitutional Court scrutinized two acts: a federal law rehabilitating victim of political repressions and a Moscow law on state housing support. In the judgment of 10 December 2019 №39-P the Constitutional Court decided that the legislation contradicted the Russian Constitution by making it impossible to receive housing for rehabilitated victims of political repressions. This article is a commentary on this judgment of the Constitutional Court.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 4-P – 8-P • 2020

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 3-O – 7-O, 297-O • 2020

Comparative Constitutional Review • Issue№2 (135) 2020