Vol 21, No 1 (2017)

Articles
Theory of Constitutional Interpretation in Activity of U.S. Supreme Court
Safonov V.N.
Abstract

Trying situation in U.S law system characterized of searching responsibility of U.S. Supreme Court for modern signs of crisis. The role of interpretation strengthening continuously and are research’s object. The value of this theme is in investigation of U.S. Supreme Court judicial review too. In this article author are considered interpretation as a function but not official power in accordance with text of U.S. Constitution. Practice and court opinions also investigated. Author of this article researches normative basis for interpretation: constitutional principles and other constitutional text, with amendments, constitutional precedents, and sources out of law (moral, policy, economic etc.) In the 20-th century interpretation function always provided development of American law and accommodation to new social and economic conditions too as first method. Now “extualism” and “originalism” and “judicial restraints” as main interpretivism conceptions dominated amidst of current Justices as new method. On the one side the contradiction between the two methods is danger of stability American law. On the other side two different views to interpretation is permanent long-term attribute. To speak more generally and in accordance the author’s opinion to review and change the results of historic interpretation is impossible.

RUDN Journal of Law. 2017;21(1):9-27
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The Mechanism of Constitutional Lawmaking at the United States of America as an Expression of Law Convergence
Petrova E.A.
Abstract

In the article the author analyzes the specificity of the constitutional lawmaking mechanism in the United States in the context of the combination of various lawmaking forms, including those that typical for different legal traditions. The uniqueness of the American legal system is that it combines the features of both common and continental law and so it has integrate nature. The author interprets constitutional lawmaking as the activity of competent lawmaking authorities on creation a constitution as the act of a special kind. The mechanism of constitutional lawmaking covers a system of interrelated elements (the static aspect) and successive stages (the dynamic aspect), providing the establishment and objectification of the constitutional norms in the form of an appropriate constitutional act. Converging nature of the American constitutional lawmaking mechanism has two aspects. The first aspect is connected with the specifics of adoption of the US Constitution. Initially in the mechanism of constitutional lawmaking the instrumentation of a treaty lawmaking has been involved. However the result of it was not an international treaty in the traditional sense, but a normative legal act with the supreme legal force. The second aspect represents a further development of the constitutional provisions through Constitution amendments (which is typical for continental constitutional tradition) and through the judicial constitutional lawmaking which is peculiar for common law tradition. The judicial constitutional lawmaking is carried out through the constitutional doctrines of the U.S. Supreme Court by which the constitutional norms are adopted without formal changes to the varying social conditions. It is concluded that the mechanism of constitutional lawmaking in the United States according to the integration nature of the American legal system expresses the law convergence because it combines three forms of lawmaking technique (contractual, legislative and case-law) and so far provides the best legal result.

RUDN Journal of Law. 2017;21(1):28-52
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Evolution of the Legal Status of Bukharans in Russian Legislation of the 18th-19th cc.
Pochekaev R.Y.
Abstract

Author analyzes the legal status of “Bukharans”, i.e. immigrants to Russia from the Central Asia who took out citizenship of the Russian Empire or constantly arrived for trading, This category of population began to form already at the first half of the 17th c. And during the 18th-19th cc. they had numerous advantages and privileges as were the principal mediators in relations of Russia with Central Asian states. So, they had tax immunity, liberation from the military service and other duties, right to establish own municipal structures (city councils and districts - volosty ). Also they had own courts acted on the base of Islamic and customary law and were put on imperial trial only in special cases. Bukharans also were not forced to convert to Christianity although this action was welcomed by Russian authorities and there were not any limitations because their Islamic religion. Some privileges were established also for Bukharans who traveled to Russia as traders (using Russian guards for caravans, possibility to marry Russian subjects and take them to Bukhara, etc.). Then the importance of Bukharans in relations of Russia and Central Asia decreased and it was reflected on diminution of their privileges: the taxes were levied upon them and, at last, Bukharans were equated to non-Russian imperial subjects ( inorodtsy ) with all their rights and obligations. But this policy was gradual and all measures of the Russian authorities were explained for Bukharans in special legal acts. The policy of imperial authorities towards Bukharans is analyzed on the base of the Complete Collection of the Laws of the Russian Empire.

RUDN Journal of Law. 2017;21(1):53-70
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Political Freedom in the Works of French Liberal School Representatives in the Second Half of XIX Century
Bochkarev S.V.
Abstract

In France, the legal state was formed in the last two hundred years, based, inter alia, on respect for human rights and freedoms. Since the Declaration of the Rights of Man and of the Citizen (August 1789) securing human rights and freedoms, was in France a constitutional principle. In this context, the study of the major political and legal concepts of human rights and freedoms does not lose its relevance. The article attempts to analyze the political and legal ideas of the French liberal school of the second half of the XIX century. on political freedom. It is noted that one of the most prominent representatives of this school were L.-A. Prevost-Paradol and E. Laboulaye, whose views are, in many respects, identical. One of the central places in their understanding of the scientific heritage takes the concept of political freedom. It is emphasized that their work is mainly «New France» and «The Liberal Party, its program and its future» had a significant impact on the formation of the constitutional institutions of the Third Republic in France. In particular, the Constitution of 1875 provided for the formation of a bicameral parliament, the lower chamber of the election on the basis of direct universal suffrage, the political responsibility of Ministers to Parliament. Liberty viewed French liberals as an individual concept. Moreover, political freedom, as opposed to the civil - volatile, as they are directly dependent on a particular historical epoch and political institutions of different countries. Political freedom in the treatment of E. Laboulaye, included four main elements: the right to vote, freely elected national representative with broad supervisory powers, an independent judiciary and a free press. Their embodiment depends on the will of the state, or rather, the constitutional consolidation of political freedoms. The article concludes that, in the opinion of the French liberal school, the implementation of political freedom depends, first, on the existence of a constitution in the State and, secondly, from the establishment of a democratic political regime.

RUDN Journal of Law. 2017;21(1):71-82
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The Issue of Futility of Creating World Court of Human Rights
Koneva A.E.
Abstract

At present moment many ideas on improvement of the activities of mechanisms of universal human rights system are put forward. The creation of the world court of human rights is regarded as one of the most ambitious among these ideas. It is supposed that the establishment of this judicial body would solve difficulties facing this system, including its main component - human rights treaty body system. However, it seems that this suggestion should be taken carefully, since it is crucial to avoid decrease in the effectiveness of the work of the universal human rights system in the result of the changes that would be brought to its activities by the creation of world court of human rights. In this respect in frames of this article the author analyses the proposal of creation of world court of human rights in order to determine its advantages and disadvantages in terms of its capability to enhance effectiveness of functioning of universal human rights system, including human rights treaty bodies. The author identifies key stages in the history of formation of this idea, paying special attention to its development in the context of the process of strengthening the human rights treaty body system as well as determines and critically analyses the main arguments justifying the necessity and effectiveness of creation of world court of human rights. On the basis of the analysis, the author, using arguments of conceptual and practical character, justifies the futility of this initiative at present stage of development of universal human rights system. Considering that the non-amendment of the legal foundations of the functioning of the human rights treaty bodies constitutes the basic requirement of the ongoing treaty body strengthening process, a more effective, than the creation of world court of human rights, mechanism of improving the human rights treaty body system is proposed. This mechanism provides the adoption of measures targeted at strengthening the procedures of the human rights treaty bodies, improving the quality of their recommendations in terms of argumentation and legal clarity. Such an approach is more flexible and has chances to get more support on the side of the treaty bodies themselves, who consider the issues of their competence being most sensitive, as well as on the side of the States Parties.

RUDN Journal of Law. 2017;21(1):83-101
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Outer Space and Common Heritage of Mankind: Challenges and Solutions
Siavash M.
Abstract
The purpose of this research is to provide a comprehensive international legal analysis of the concept of common heritage of mankind as it exists in international space law. In this article scientific methodological approach was used which facilitate determination the whole canvas of the research, identify the main aspects and concepts of the study. The author also widely investigated the concept of common heritage of mankind in the practice of States and international organizations and bodies. Since mankind succeeded to access outer space and opened the window of this infinite realm, the effort was made to systematize spatial activities by codification and adoption numerous international treaties and declarations. One of the significant result of these efforts was the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies that adopted by the United Nations Committee on the Peaceful Uses of Outer Space by consensus on 5 December 1979, declares the Moon and other celestial bodies to be the common heritage of mankind. This Agreement has never been ratified by any State that engaged in self-launched manned space exploration or has plans to do so and thus has an insignificant effect on spatial activities. This article analysis the concept of common heritage of mankind that consists of five elements: non-appropriation, international management of resources, sharing of financial and technological benefits, reservation for peaceful purposes and reservation for further generations. It is shown that the Moon Agreement applying the concept of common heritage of mankind to outer space, Moon and other celestial bodies which has been presented by developing countries to preserve essential resources, always been associated with some problems. Also, on the one hand, there is an attempt to scrutinize these obstacles that prevent applying this concept by paying attention to its challenges. On the other hand, author presents some solutions to strengthen this concept in outer space legal system and motivate space powers to join the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.
RUDN Journal of Law. 2017;21(1):102-114
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Legal Aspects of Gas Industry Regulation in India and Republic of South Africa
Volkov A.K.
Abstract
The present paper is devoted to a study of the legal regulation of the relations in the gas industry of India and RSA. In the first instance the author represents the overall survey of the state of the gas industry in these countries and perspectives of its development. He finds out that they have a lot in common. Both do not have considerable gas reserves, at the same time the demand for the resource is higher than production in the State. However, the Governments endeavor to develop proper production and not to import the gas, to which end the reforms of the legal regulation were undertaken. The present research is accented on the legal sources of regulation in that domain and the role of the international law. In the article the detailed analysis is made on legal regulation of activities of exploration, production of natural gas, on its transportation, distribution, commercialization, import-export activity in India and in RSA. In conclusion the author resumes the results of the comparative legal analysis, estimating the models of regulation, pointing out their weaknesses and possible treatment for its correction. The researcher comes to conclusion that in RSA the clear, comprehensible, codified legislation was elaborated. In the meantime, in India it is not the legislation which was changed but the sub legislative acts. In both States the special regulators were established. Notwithstanding the proclamed policy of deregulation of gas industry in India no unbundling measures were undertaken. The legislation of RSA in its turn foresee the measures of restriction of the abuse of dominant position by vertically integrated companies: the activity should be undertaken with the usage of separate bank accounts, the cross subsidization is forebeeden. If in India in the domain of the gas production the supple form - product sharing agreements is used, in RSA - the license. In both countries there is a State regulation of tarifs, transportation, storage, distribution and gas supply are perfomed in virtue of license. In India the right to acces to transport system is secured only in respect of the one third of the transport capacities. In spite of unsystematicity of indian approach to the regulation unlike RSA this State has reached more significant results: more explorations works were undertaken, more gas is produced.
RUDN Journal of Law. 2017;21(1):115-135
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State Control (Supervision) is a Tool of Threat Countermeasure to National Security in the Information Sphere or Means of Privacy Protection: Balance of Public and Private Interests
Ivanskiy V.P., Melnichuk G.V.
Abstract

The article discusses some problems related to the ratio of two fundamental values - the legal protection of the public and the private interests in the sphere of computer data processing. On one hand, the use of information and communication technologies is potentially utilized as networking platforms for the preparation, organization, and implementation of crime and thereby is threatening the security of the state, society, and the individual. However, these technologies are a means of data collection, storage, conversion, and the distribution of private information about citizens' (personal data). It is important to note the threat to public order and the inviolability of privacy forming in the information sphere is being addressed in the context of the adopted package of amendments designed to ensure public safety and security, as well as counter-terrorism, which is called the “Yarovaya Law”, Information Security Doctrine of the Russian Federation, Russian Federal Law on Personal Data Protection, and additionally as the Russian Federation Government Draft Resolution on State Control and Supervision over the Compliance of Personal Data Processing with the Requirements of the Personal Data Legislation of the Russian Federation. However, in accordance with the Federal Law on Personal Data, the purpose of processing personal data is limited to the achievement of pre-defined and legitimate objectives. Moreover, the Information Security Doctrine of the Russian Federation recognizes the security and protection of privacy when using information technology vis-à-vis national interests. However, along with the above indicated regulations aimed at protecting the information on the private lives of citizens, the purpose of collection, storage, and use of personal data according to the “Yarovaya Law” is counter-terrorism and public safety. It follows that the legislation regulates both mutually exclusive purposes of processing personal data. Meanwhile, Roskomnadzor is an authorized federal executive for the protection of the personal data bearing subjects' rights, carrying out state control (supervision) functions over compliance requirements of legislation of the Russian Federation, which include the definition of the purpose of processing of personal data. Due to the fact that purposes of processing of personal data are legitimate, but conflicting with each other, the Roskomnadzor is forced to violate the principle of impartiality in the implementation of the control (supervision), initially defending the public interest, thereby infringing upon them and consisting of the protection of the information aspect of the inviolability of private life. In connection with the above-mentioned circumstances, the authors propose is to balance public and private interests in the formation of a supervisory bodies system for the protection of personal data based on the legislative experience of developed countries.

RUDN Journal of Law. 2017;21(1):136-152
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Problems of Improving of State Policy in the Local Self-Government Area in the Process of Transformation Political System of Russia
Balykhin A.G.
Abstract

After many years of deadlock, the local government is looking for further development in the Russian Federation. Some results have been achieved on the development of local government in more than twenties years under Russian conditions. However, there is some controversy of public policy for local government and also there is the mixed approach of realization of public policy at all levels of public authority. In this case the State policy must be built on the understanding that the local government is the basis for creation of civil society in Russia and it is a “locomotive” of the democratic and legal development. The article analyses the issue of improvement of the local government and proposes systematic tools of its development through the policies of the government. Improving the legal framework for local government in the 2014-2016. It has made certain adjustments to the solution of practical problems of municipal practices. The legal basis of local self-government at both the federal and regional levels are characterized by sufficiently developed and in general allow us to solve the challenges facing local government. In order to ensure stability of legislation, further changes should be primarily competence in nature. Particular attention should be given to further clarify the powers of local authorities in sectoral legislation, such as the exclusion of functions unusual for local authorities, the coordination of local government powers to local issues, the list of issues of local importance of rural settlements, taking into account emerging in the regions of the Russian Federation, sustainable approaches to their complement ), as well as the operating time of the positive powers of redistribution practices. Of particular note is the problem of citizen participation in local government, where the key potential has territorial self-government. Despite the unevenness of development in different regions, TOS is an effective tool for engaging citizens in local self-government, improve the activity of the inhabitants. However, in the long term in the legislative resolution of other issues need arising at a local level and are part of the state policy in the sphere of local self-government in terms of further transformation of Russia's political system.

RUDN Journal of Law. 2017;21(1):153-163
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Review of the Monograph: T.Y. Khabrieva “Constitutional Reform in Today's Context”
Klishas A.A.
Abstract
This review evaluates the monograph written by Academician of the Russian Academy of Sciences, Vice-President of the Russian Academy of Science, Doctor of Law, Professor, Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Honored Lawyer of the Russian Federation Talia Y. Khabrieva devoted to the research of constitutional reform in today’s context. Special attention is paid to the substantial aspects of the monograph, the current development of the scientific issues on this subject. The review’s author emphasizes that the reviewed book makes a significant contribution to the synthesizing attitudes about constitutional reform in Russian and foreign science, the conclusions given in the monograph can greatly contribute in the nationbuilding process, to develop potentialapproaches and improving the legislation.
RUDN Journal of Law. 2017;21(1):164-167
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Review of the Monograph: T.Y. Khabrieva “Constitutional Reform in Today's Context”
Yeremyan V.V.
Abstract
The present paper is the review of the monograph “Constitutional reform in today's context” written by Academician of the Russian Academy of Science, Vice-President of the Russian Academy of Science, Doctor of Law, Professor, Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Honored Lawyer of the Russian Federation Talia Y. Khabrieva. This monograph has appeared in 2016, it sets out to dedicate to the modern lessons learned in the constitutional reform area. The review contains a high level assessment of the relevance and research in the monograph. In the opinion of the author of the present review, the monograph should be viewed as a theoretical foundation for comparative legal research in various fields of science of public law.
RUDN Journal of Law. 2017;21(1):168-170
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70th Anniversary of V.P. Malakhov
- -.
Abstract
The material focuses to the 70th anniversary of Doctor of Law, Professor of Moscow University of Ministry of Internal Affairs of Russia n. a. V.Ya. Kikot V.P. Malakhov, a specialist in the filds of philosophy of law, methodology of law, theory of law and state.
RUDN Journal of Law. 2017;21(1):171-172
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