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2012. №5
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4–11
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Justiciable charters of rights give courts a dynamic and controversial role in governance, which is in tension with the roles of the executive and the legislature. In this essay I comment, from the British point of view, on the way in which these tensions work out in the law of the European Convention on Human Rights. I argue that politicians need to accept that the tension between the role of the courts and the roles of the executive and the legislature will be permanent, and is not a reason for withdrawing from the Convention, or for ignoring the decisions of the European Court of Human Rights. |
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12–24
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Constitutional law conceptual space is part of conceptual space. The ontological structure of constitutional law consists of three layers — legal principles, positive constitutional law, traditions and practice. The third layer contains inter alia constitutional law ethics. Constitutional law conceptualism is a kind of legal positivism. Constitutional law conceptualism presupposes some limited influence in law and non exaggeration of significance of conceptual reality represented in signs and symbols as the text of the RF Constitution. |
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25–38
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In accordance with the methodology of worldview legal pluralism, which derives from the combination of positivism and natural law, this article considers constitutionalism as a legal and philosophical category. One of the fundamental features of modern constitutionalism is constitutional justice. In this capacity, the Constitutional Court of Russia is not only the custodian, but also the reformer, of the Constitution, serving as a key factor in the development of the Russian constitutionalism. Building on this assumption, the article analyses the main developmental directions of judicial (“live”) constitutionalism as a qualitatively new political and legal regime of judicial protection of the Russian Constitution and the provision of the rule of law. Furthermore, it explores the normativedoctrinal meaning of decisions of the Constitutional Court. |
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39–50
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This paper provides an account of the nature of the separation of powers and considers its application in the British constitution. It charts the developing understanding of the principle in British constitutional scholarship over the last century, and shows the ways in which the British constitution has shifted towards a modern understanding of the principle in the last twenty years. |
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51–59
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The author examines the separate problems of assessing the place and the role of the judicial system as a whole and constitutional justice, in particular, within the system of separation of powers, whilst accounting for the modern juridical nature of various governmental bodies’ powers, as well as their functions. |
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60–81
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The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a pouvoir constituent. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions. |
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82–93
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The first part of the article considers the significance and the legal meaning of the Russian Federation President’s objectives and functions, as established by the Russian Constitution, as well as their relationship to presidential powers. The second part of the article illustrates the author’s thesis regarding the great, but theoretically undervalued, significance of the regulations contained in statute 80 of the Russian Constitution, which set out the process for expanding presidential authority. This section presents the findings of the author’s analysis of the scope and nature of the powers that had been delegated to the President through legislation and provides commentary to these findings. |
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94–110
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This article considers the dynamics and the foundational legal forms of the demarcation of powers between the Russian Federation and the subjects of the Russian Federation (constituent entities at the beginning of the 21st century. It examines initial conditions and the reasons behind such demarcation, the opportunities for the Russian Federation to demarcate powers, and the legislative decisions, which had set out the demarcation of powers. The article illustrates the organisation of contemporary power demarcation between the federal centre and the subjects of the Russian Federation, following a series of legislative changes. |
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111–119
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The article examines the influence of foreign constitutional models on the formation of Russian constitutionalism and legal doctrine. The authors demonstrate that Russian legal thought devoted great attention to foreign legal practice throughout different historical epochs, although they note that attitudes toward it differed at various stages. They conclude that the contemporary period is characterized by closer interaction with foreign law, while managing to preserve nationally unique developmental trends. |
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