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CONTENTS
RULE OF LAW
FOR A RATIONAL AND HONEST RULE OF LAW
Legality alone is insufficient to protect freedom and democracy. The rule of law is more than simple legality, it must be understood as a tradition-based practice that tempers arbitrary power. Legalism — mere obedience to enacted norms — has repeatedly enabled oppression, most notably under authoritarian and populist regimes that manipulate legality while hollowing out its moral and rational foundations. Against this, the present moral-formal conception of the rule of law emphasizes structured legality, professional legal tradition, rationality, procedural fairness, and minimal public morality. These elements constrain power not by imposing contested substantive values, but by shaping the form and operation of law itself. Drawing on Fuller’s internal morality of law, historical experience, and urisprudential debate, this article shows how violations of formal rule-of-law requirements generate legal pathologies and enable abuse. The moralformal rule of law, though “thin”, provides ndispensable protection against arbitrariness, sustains human dignity, and preserves ordered liberty. Its resilience lies in shared legal culture, interpretive discipline, and continuity over time. While vulnerable to distortion, the formal rule of law remains the most reliable framework for resisting legalized oppression and maintaining a legal order worthy of respect.
JUDICIAL INDEPENDENCE
JUDICIAL INDEPENDENCE AS A FOUNDATION OF A STATE BASED ON RULE OF LAW
This article, written to commemorate Tamara Morshchakova’s ninetieth birthday, delves into the problem of judicial independence — the cause that Morshchakova herself championed throughout her professional life. The author postulates that while a lack of judicial independence is usually obvious, as reflected in negative public opinion, there is no consensus on the structural conditions necessary to ensure judicial independence. Moreover, implementing the necessary standards in practice poses an even greater challenge. Although judicial independence is widely recognised as a fundamental prerequisite for the realisation of human rights in a state based on the rule of law, best practices and common standards remain a subject of debate. There are rules in place at many different levels, with the Venice Commission being one of the most active players in this field. The Venice Commission has emphasized that there is no single model for the appointment of judges which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary. It indicates that all systems should strive for a depoliticisation of judicial appointments and promote appointments based on the objective merits of the candidates. It is even accepted that the requirements for “old democracies” with a long tradition of the rule of law, may differ from those for “new democracies”, which are in a transitional phase after a regime change from autocracy to democracy. Confronted with complaints from judges about their independence and from applicants about the lack of a “tribunal established by law”, especially in Poland following far-reaching reforms, the European Court of Justice and the European Court of Human Rights were tasked with deriving standards from the European Convention on Human Rights and the Charter of Fundamental Rights. The article focuses on key issues in this context, such as the classification of the “right to judicial independence” as a subjective human right, best practices for judicial appointments, and the safeguards in case of judges’ dismissals.
GUARANTEES OF CONSTITUTIONAL COURT JUDGES INDEPENDENCE: RECENT TRENDS IN RUSSIA AND CENTRAL ASIA
The role of constitutional justice as a key element of the system of checks and balances among the branches of government increases the exposure of constitutional court judges to criticism and pressure regarding their decisions, particularly during periods of constitutional transformation. This article presents a comparative analysis of recent constitutional amendments in Russia, Kyrgyzstan, Kazakhstan, and Uzbekistan, focusing on the provisions that affect specific institutional guarantees ensuring the independence of constitutional court judges. Within this framework, the author attempts to identify differences, as well as common trends and challenges, in organizing the institutional independence of constitutional review bodies in states with a shared historical background vis-à-vis other branches of government. The study examines the conditions and procedures for the formation of constitutional court compositions, the termination of judicial mandates, the acquisition of powers by court presidents and their deputies, as well as the institution of judicial review of constitutional court decisions, as provided by the legislation of the Central Asian states. The analysis reveals trends in changes to the numerical composition of courts, the participation of the same bodies (except in Kyrgyzstan) in procedures for appointing and terminating judges, and the enshrinement at the constitutional level of the rules for electing court presidents and their deputies, with a decisive role played by the heads of state. At the same time, the procedure for electing the president and deputy president of the court by the court itself — which most effectively ensures the independence of the court’s composition — remains in place only in Uzbekistan. The author concludes that changes to the status of constitutional courts and their judges largely correlate with the transformation of the political regime, whereas differences in legal regulation are determined by the state’s awareness of the significance of guarantees ensuring judicial independence and its commitment to their effective implementation.
THE QUESTION OF QUESTIONS: CAN A JUDGE BE INDEPENDENT?
REFLECTIONS ON THE BOOK: MORSHCHAKOVA T.G. A JUDGE BEYOND DEPENDENCE. MOSCOW : BORIS YELTSIN PRESIDENTIAL CENTER FOUNDATION, 2025
Judges should be independent of politics, yet they are constantly ensnared by it. Politics haunts judges even where the full scope of constitutional guarantees for the separation of powers and an independent judiciary is in place, infiltrating the courtroom through variable interpretations of the values, principles, and norms of the constitution, the selection of arguments, and the assessment of facts in a particular case. It exerts a powerful, invisible influence through the ideological and moral beliefs of the judiciary, the organization of the judiciary, the cognitive and informational processes involved in formulating legal positions, and the determination of judges’ motivations when rendering specific decisions. This political component of judicial decisions is particularly heightened in times of constitutional crisis, when the old constitution loses its legitimacy and a new one is not adopted, the branches of government cannot reach a consensus on the fundamental principles, and the judicial community itself becomes divided in its interpretation of ways out of the crisis. In conditions of a legal vacuum or a conflict of norms in so-called difficult cases (denoting the alternative nature of possible legal positions with opposing political choices), the determining factor in a court decision becomes not so much a legal choice as an ethical choice from the standpoint of a legal ideal — a judge’s inner moral conviction and their willingness to defend this conviction despite powerful pressure from society, the state, or certain elite groups in a constant struggle for power. This choice becomes even more dramatic in the case of an authoritarian transformation of power, demonstrating the ultimate conflict between dependence and independence — accepting pressure or refusing it, even to the point of resignation. It is precisely this ability of the court to uphold its legal position — to say no to the legislature and other branches of government — that determines the concept of judicial independence and, ultimately, the fate of the rule of law and the protection of fundamental human rights — whether they are preserved, restricted, or completely suppressed by the authorities. This range of issues is examined in T. G. Morshchakova’s book, leitmotif of which is the presumption of the existence of an independent judge — the definition of a set of social, legal, and organizational principles that determine the authentic content of legal proceedings and guarantee the legal nature of the state’s political decisions. This topic is explored based on the author’s extensive experience in formulating the positions of the Constitutional Court of Russia in resolving the most pressing political cases during the early days of Russian constitutional justice. The focus is on the fine line between law and politics, the crossing of which threatens to rob the court of its true independence and turn it into a tool for legitimizing political decisions. The question remains: where does this line actually lie, and to what extent is it understood by modern judges?
LAW AND NEW TECHNOLOGIES
KEY ISSUES IN THE USE OF ARTIFICIAL INTELLIGENCE: THE BOUNDARIES OF INDIVIDUAL AND COLLECTIVE RESPONSIBILITY FOR LEGAL CONSEQUENCES
The article is dedicated to the anniversary of Tamara Georgievna Morshchakova, with an emphasis on her vibrant personality as a versatile scholar in the field of criminal law and a constitutionalist. It briefly touches upon these two branches of law but provides a detailed examination of one key area — the issue of responsibility; it considers the main questions raised by the phenomenon of artificial intelligence and its applications. Due to its speed and ability to reliably process vast amounts of data, artificial intelligence significantly surpasses human intelligence. As a result, humans may lose control over technical processes as they become governed by artificial intelligence. This threatens the anthropological and ethical foundations of legal order, including that of Europe. Such foundations are built on human responsibility for one’s behavior: individuals must retain the right to make decisions about their own fate and not succumb to blind patterns. Against this backdrop, the article, through the lens of legal philosophical foundations, first analyzes the concept of responsibility and the underlying “image of a person”. Relying on Kant, the author sees the uniqueness of humans in their “freedom” and “autonomy”. Thus, the fundamental difference between artificial and human intelligence becomes evident. Artificial intelligence in robots does not possess consciousness. It performs only technical functions, unaware of doing so, and solves only the tasks set by humans, using materials provided by humans. Artificial intelligence is “machine intelligence”. This clarification counters the trend of blurring the fundamental differences between humans and machines and of anthropomorphizing robots. Its necessity lies in countering common misconceptions, whether exaggerated fears of threats from artificial intelligence or, conversely, overly high expectations of its applications. The article presents areas where artificial intelligence and robotics are successfully applied, as well as critically examines the ethical principles adopted in the European Union aimed at making responsibility for the use of artificial intelligence effective. In conclusion, using the example of “autonomous driving” in road traffic, the implementation of legal responsibility through various forms of liability is discussed, especially when the use of artificial intelligence results in property damage or harm to people. The author concludes that even the most complex legal issues can be resolved with legal tools.
COURTS AND CONSTITUTIONAL JUSTICE
CONSTITUTIONALIZATION OF THE LEGAL ORDER AS A SHARED RESPONSIBILITY OF THE RUSSIAN JUDICIARY
ON THE ANNIVERSARY OF TAMARA MORSHCHAKOVA
The effective constitutionalization of the legal order is impossible without the active participation of the entire judicial system in the mechanism of constitutional review. One of the key ways to ensure such participation is for courts to submit requests to the Russian Constitutional Court to review the constitutionality of normative acts to be applied in a particular case. This mechanism enables judicial bodies to signal normative defects in legal regulation and to initiate their elimination through the instruments of constitutional justice. However, in practice this channel is used extremely rarely, which indicates a significant potential of the judicial system in ensuring the supremacy of the Russian Constitution that largely remains unrealized. This article examines the reasons for the low demand for this institution. Among them are insufficient training of judges in constitutional law, constitutional adjudication, and constitutional reasoning; the heavy workload of courts and their underestimation of the importance of strategic cases; as well as institutional and psychological barriers that encourage judges to refrain from submitting requests to the Constitutional Court. Based on the analysis conducted, the article proposes a set of measures aimed at activating this institution. In particular, it substantiates the need to take successful requests to the Constitutional Court into account when evaluating the effectiveness of judges’ performance and when deciding on their career advancement; to develop judges’ specialized knowledge in the field of constitutional adjudication and constitutional legal reasoning; to improve methodological support for the preparation of judicial requests; to ensure statistical accounting of motions for submitting such requests; and to strengthen the role of the Russian Supreme Court in initiating applications within the framework of abstract constitutional review. The theoretical framework of the study is formed by the ideas of Tamara Morshchakova, who consistently viewed the submission of requests to the Russian Constitutional Court as a manifestation of a judge’s professional duty and an integral element of the protection of human rights. The article concludes that there is a need to establish institutional frameworks in which courts’ submission of requests to the Constitutional Court receives the professional recognition it deserves. These frameworks should emphasize the responsibility of each judge for bringing constitutional ideals and values into practice.
AFFORDABLE LUXURY AND LEGAL TALISMANS: THE CONSTITUTIONAL DIMENSION OF EXTRAJUDICIAL JURISDICTION
CELEBRATING THE ANNIVERSARY OF T.G. MORSHCHAKOVA
The active introduction and spread of various non-judicial forms of resolving legal conflicts and confirming rights raises the fundamental question of whether it is permissible to exclude certain cases from judicial jurisdiction and transfer them to non-judicial jurisdiction. Over the past forty years, Russian legal system has gone from recognizing the competence of courts on a residual basis («except in cases where the resolution of disputes is assigned by law to administrative or other bodies») to denying the very possibility of excluding any cases from the jurisdiction of courts, and finally to recognizing the inevitability of the coexistence and coordination of judicial and extrajudicial procedures. Today, not only arbitration tribunals, but also tax authorities, notaries, and various administrative institutions make decisions that have a direct impact on the relations between individuals and the state. This is justified from a socio-economic perspective — courts cannot and should not consider millions of similar cases, the number of which is growing, and even the increase in state duties and the introduction of modern technologies are not able to seriously relieve the judicial system. But where is the constitutional divide between a court and non-court? What do we understand by justice, a dispute that requires specifically judicial resolution? The author analyzes constitutional provisions, the practice of higher courts, foreign and historical experience, and theoretical works. He refers to the concepts of separation of powers, judicial decision-making and right to fair trial in their universal and domestic interpretations to demonstrate that the relevant problem is acute not only in Russia, but worldwide. Based on the views of professor Tamara Morshchakova — the prominent jurist, whose anniversary the article is dedicated to, he concludes that the Constitution provides ample room for the introduction and development of extrajudicial procedures for the final resolution of civil and economic disputes, with the exception of cases that involve not just the application of the law to a factual situation, the forcible seizure of property, or a response to an offense, but the individualized protection of rights and freedoms, and as a result, require consideration by an institution that is independent in constitutional sense of any executive or legislative authority — a court.
MINORITY RIGHTS
THE RIGHTS OF SMALL INDIGENOUS PEOPLES OF THE NORTH TO LAND AND TRADITIONAL USE OF NATURAL RESOURCES: LEGAL REGULATION AND JUDICIAL PRACTICE
The article examines pressing issues in the legal regulation and judicial protection of the rights of small indigenous peoples of the North to land and traditional natural resource use, which are of fundamental importance to them. At the same time, the study aims to demonstrate the degree of correlation between changes in this sphere in the context of the ethnic amendments to the Constitution of the Russian Federation in 2020 and the rulings of the Constitutional Court of the Russian Federation, which for the first time interpreted the legislation on these peoples in an expanded manner from the standpoint of preserving traditional culture. Within this framework, the article analyzes the state of regulation of these rights under federal laws in relation to international legal and constitutional requirements, as well as recent legal innovations aimed at strengthening them. In conjunction with the regulatory system, judicial practice is examined as a means of clarifying and filling gaps in legislation concerning the rights of northern peoples, particularly regarding the registration of individuals belonging to these groups and their exercise of rights to land use, traditional hunting, and fishing. The article notes some progress in these areas, but vital issues for these ethnic communities remain without adequate legal resolution, in particular, the gratuitous use of land and other natural resources, priority access to such lands and resources, the participation of representatives of northern peoples in decision-making affecting their interests, and the optimization of interaction with subsoil users. The authors suggest that this situation is partly due to the continued adherence of ordinary courts to a formalistic approach in adjudicating cases, as well as their disregard for the special constitutional and legal status of Russia’s small indigenous peoples. Higher judicial instances have also failed to demonstrate proactive engagement with these issues, as evidenced by the absence of judicial practice reviews and, at times, a clear reluctance to identify the constitutional and legal meaning of specific guarantees enshrined for northern peoples. T. G. Morshchakova, to whose anniversary this article is dedicated, has drawn attention to these problems of judicial formalism. This article serves, in a sense, as a confirmation of the formalism in judicial practice, illustrated through the interpretation of the rights of northern peoples to land and traditional natural resource use.
ETHICS OF CONSTITUTIONALISM
SWEDISH MULTICULTURALISM FACING MODERN CHALLENGES
The article deals with the problems of Swedish multiculturalism, the main principles of which were equality, freedom of choice and partnership. Immigrants and their children were given the opportunity to preserve their language, practice cultural activities and maintain contacts with their country of origin. The most important challenge facing contemporary Swedish multiculturalism has been the increasing influx of migrants from non-European (especially Muslim) countries, who have usually received permission to live and work for political or humanitarian reasons. Such migration flows do not correspond to cyclical demand in the labor market, but are rather linked to the severity of ethnic conflicts and civil wars around the world. A certain critical turn in the assessment of multiculturalism occurred in Sweden as a result of the migration crisis of 2015, caused primarily by the aggravation of the political situation in the countries of the Arab East. In the current situation, the need to revise the policy of multiculturalism and move towards civic integration, which involves a more complete inclusion of immigrants in the labor market and public life of Sweden, has begun to be discussed more actively. The welfare state, with which Swedish national identity is closely linked, remains a source of pride for Swedes. At the same time, however, the paradoxes of the existing social model are not always noticed, and in particular, how the independence of individuals from other people, and first and foremost from members of their families, proclaimed within its framework, is replaced for many by a growing dependence on the state. The tolerance inherent in the Swedes does not give them immunity from various kinds of populist and xenophobic sentiments, and the migration problem is increasingly viewed through the prism of the need to ensure security for the native population. There is a growing sense of incompatibility between the welfare state and its real possibilities with the constant influx of migrants, which is facilitated by the mental diversity of native Swedes and some of the newly arrived.
CONSTITUTIONAL MEMOIRS
JUDICIAL POWER AS A CONSTITUTIONAL CATEGORY. THE CONTEMPORARY RELEVANCE OF T. G. MORSHCHAKOVA’S IDEAS
The article is devoted to the analysis of the phenomenon of “judicial power” in Russian constitutionalism. As a category of constitutional law, the concept of “judicial power” first appeared in the text of the Constitution of the Russian Federation in 1993. For the first time, the judiciary was recognized as a state branch on an equal footing with the legislative and executive branches. In the light of the ideas expressed by T. G. Morshchakova, the connection between the rule of law and the independence of the judiciary is emphasized. One of the expressions of the functioning of judicial power is judicial law, which is also included in the legal system. In this regard, it is important to consider the sources of this law, primarily the law-making of courts and judicial practice. The convergence of the systems of common (case law) and continental (written) law is noted. The question of the role of the courts as a human rights protection body or as a monitoring body of human rights authorities remains salient. The article emphasizes that the independence of the judiciary does not mean its absolute autonomy: the absolutization of one branch of power contradicts the very essence of democracy and the idea of “harmony of powers”. It is concluded that the concepts of judicial power and judicial law have not yet been firmly established in legal discourse and legal doctrine. It is required, as it is done in Article 118 of the Russian Constitution, to make a clear distinction between the concepts of judicial power as a type of state power along with legislative and executive powers and the judicial system as a designation of the structure of judicial authorities. The judicial law formed by the judicial authority should take its proper place in the national legal doctrine, in the practice of law enforcement and in educational programs.