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BRICS Law Journal

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Academic peer-reviewed journal “BRICS Law Journal”

The BRICS is an acronym for an association of Brazil, Russia, India, China and South Africa, evolved from mere investment lingo to an organized network, in the process assuming a greater geopolitical role aimed at institutional reforms that shift global power. All five countries adhere to principles of inclusive macroeconomic and social policies and are focusing on responsible national growth strategies. The BRICS Law Journal is a platform for relevant comparative research and legal development not only in and between the BRICS countries themselves but also between those countries and others. The journal is an open forum for legal scholars and practitioners to reflect on issues that are relevant to the BRICS and internationally significant. Prospective authors who are involved in relevant legal research, legal writing and legal development are, therefore, the main source of potential contributions.

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Current issue

Vol 6, No 3 (2019)
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GUEST EDITOR’S NOTE

ARTICLES

13-21 106
Abstract

The paper is devoted to the study of the relationship between the Russian constitutional history and Western legal traditions. The author argues the position according to which the constitutionalism has been a part of Russian legal history for centuries. On one view of Russian legal history, a written constitution remained an aspiration of the Russian people that was only partly realized in 1906. Marxist legal thought contemplated, or predicted, the “withering away of law” after a proletarian Revolution; adopting a constitution seemed counter-intuitive to this projected vector of history. This paper explores in general outline the five generations of the constitutions of Russia (1918, 1925, 1937, 1978, and 1993) and the maturing of a constitutional tradition in Russia which has led from a blueprint for communism to fully-fledged constitutional rule-of-law social State in which the constitution acts as a restraint upon the exercise of State power and performs the role that a constitution routinely performs as part of the western legal heritage. The author concludes the 1993 Russian Constitution is, for the first time, a living document that could be considered as a reaction against the Russian past, the embodiment of Russian experience, and the repository of Russian values and desires for its future.

22-48 75
Abstract

This article analyzes the possibility of development of liberal constitutionalism in the Russian Empire during the post-reform period in the late 19th – early 20th century within the context of European history, of which Russia was an integral component. It argues that the Russian autocracy had the potential to transform itself into a constitutional monarchy during the period that followed the Great Reforms of the 1860s (1861–1881) and, second, during the Revolution of 1905–1906 and in its aftermath. This promising evolutionary process was cut short by World War I and rejected by the Soviet period of Russian history that followed. Obstacles to constitutional government were mostly objective in character, but perhaps the most significant problem was the fragmentation and insufficient development of Russian political culture, or better said, cultures that failed to produce the consensus required for effective creation and functioning of a constitutional regime. This failure was further exacerbated by an evolutionary radicalization of revolutions in modern European history that culminated in October 1917. The author concludes that the events of the late 1980s and the Revolution of 1991 changed the character of the Russian historical landscape and provided the potential for renewed development of a pluralistic political system and a strong civil society that is its precondition.

49-77 83
Abstract

Although Russian constitutionalism has a rich past and present, its place on the global map of the history of constitutional thought is not clearly defined yet. This paper contributes to the analysis of the early stages of development of Russian constitutionalism. The first Russian act resembling a “true” Constitution was the Constitution of the RSFSR of 1918. It was aimed not at the realization of the ideas of constitutionalism, but at the formation of a model of a totalitarian state. It sanctioned radical social changes and led to the liquidation of the concept of the division of power and the omnipotence of the nonconstitutional organs (like VChK, various “tribunals”). However, this act and its ideological sources deserve a more in-depth analysis. First of all, its utopian ideas about the new social system have to be identified and examined. The analysis shows that the 1918 Constitution reflects Lenin’s fascination with the ideas of direct democracy drawn from the experience of the Paris Commune and the French Revolution after 1789. In particular, it is about the perception of the idea of unlimited supreme power, undivided and combined, and at the same time federated in the form of loose communes. If we consider the range of constitutional ideas, the Bolsheviks adopted nothing more original that the concept of Rousseau’s national sovereignty. However, the implementation of utopian ideas ended with the creation of a totalitarian system, which contemporaries called “state despotism,” more powerful than the despotism of the Russian Empire.

78-99 70
Abstract

In 2018, the centenary of the Constitution of the Russian Socialist Federative Soviet Republic (RSFSR) was celebrated. Scholarly debate over this legal and political document – Russia’s first constitution – has continued across time up to the present day. The process of drafting the Constitution of 1918 has received very contradictory coverage in the historical and legal literature. Writers’ assessments of the works on this topic have often been influenced by political circumstances. In particular, for a long time the role of the famous Soviet legal scholar and lawyer Mikhail Reisner in the preparation of the draft of the first Soviet Constitution was hushed up. This article examines Reisner’s contribution to the creation of the draft of the first Soviet Constitution and his confrontation with Joseph Stalin over the issue of federation in the Constitutional Commission. These two men proposed diametrically opposed approaches to the principles and foundation of the Soviet Federation. If Stalin believed that the Soviet Federation should be built on the national-state principle, Reisner considered this principle bourgeois and offered to abandon the national principle and build a Federation of Russia as a multi-stage Federation of Soviets. The article then analyzes the content of the draft of the Constitution prepared by Professors Reisner and Goikhbarg (the “professorial project”) and identifies its provisions, borrowed by the authors of the final text of the Constitution of the RSFSR of 1918. Additionally, the article describes a number of the provisions of the draft prepared by Reisner and Goikhbarg and distinguishes it from the final text of the Constitution of the RSFSR of 1918.

100-127 82
Abstract

Transitional constitutionalism remains the subject of intensive political controversy. Based on a project made possible by the Institute of Law and Public Policy (Moscow) this article presents the analysis of the basic constitutional principles of pluralism, the separation of powers, federalism, the independence of the judiciary and the guarantee of political rights and freedoms. It describes the changing character of their implementation in different areas of constitutional practices – legislation, constitutional justice, administrative activities and informal practices, and the comparative level of constitutional deviations in each of them. The important new expertise of this research is the concept and methodology of the constitutional monitoring and recommendations for full-scale reforms in key areas of Russian constitutional and political settlement. The author shows that the true choice facing modern society is not between constitutionalism or its negation, which is a dilemma, but between real and sham constitutionalism, with a wide variety of intermediate options separating them. It is precisely this intermediate area which the author defines as a transitional type of constitutionalism, the field of collision between different political stakeholders. This is an area of unstable equilibrium where the implementation of different legal strategies and technologies may produce a definitive effect.

128-161 104
Abstract

The Constitution of the Russian Federation of 1993 provided the basis and tools for large-scale societal transformations in Russia. Still, the question of whether the results of political and socio-economic reforms are irreversible and in line with constitutional ideas and norms is open to discussion. This study investigates the temporality of the process of the “constitutionalization” of Russian law using the statistics of Federal laws and Federal constitutional laws for the period 1994–2018. The article presents the outcome of the quantitative analysis as well as a discussion of the findings involving the approaches of the legal and political sciences. The research leaves open the question of the relationship between the durability of the democratic constitution and the quality and irreversibility of democratic transformations of the social system. Monitoring the dynamics of the adoption of primary laws and laws on amendments gives evidence that even a “rigid” democratic constitution can become “elastic” with age since its ideas and meanings can often be “stretched” to apply to current cases without the need to make any changes to existing constitutional norms. The authors propose considering the conceptual possibilities of adaptive governance theory to explain the features of modern Russian lawmaking (“adaptive lawmaking,” “agile lawmaking”).



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