Available in Russian
CONTENTS
LEVELS OF DEMOCRACY
POPULISM AND THE BALANCE OF CONSTITUTIONAL DEMOCRACY
In the context of intensifying political fragmentation and the erosion of traditional structures of representative democracy, populism has emerged as a systemic force reshaping the constitutional landscape. Rather than viewing populism as a transient political anomaly, this paper conceptualizes it as a long-term internal stress test for constitutional democracy — one that directly affects the equilibrium between popular sovereignty and the rule of law. Through a comparative analysis of Poland, Hungary, and Romania, the study identifies three distinct trajectories of populist pressure on constitutional courts: institutional paralysis (Poland), structural reconfiguration accompanied by the normalized subordination of judicial institutions to political majorities (Hungary), and cyclical delegitimation driven by the court’s active involvement in political processes (Romania). A central focus of the paper is the phenomenon of judicial populism, understood as the internalization of populist logic within the constitutional court itself. Such internal dynamics manifest through rhetorical appeals to “the people” instead of traditional legal reasoning, as well as through strategic synchronization of judicial decisions with electoral cycles, increasing media-orientation of judicial actors, and various forms of opportunistic institutional self-preservation. Unlike externally imposed political pressures, judicial populism erodes the autonomy of the constitutional court from within, diminishing its ability to serve as a guardian of the long-term constitutional order. The analysis demonstrates that the resilience of constitutional democracy cannot be secured by procedural or legal mechanisms alone. It hinges equally on the cultural embeddedness of the rule-of-law norms, the quality and transparency of judicial reasoning, and the ability of courts to structure and manage “political time” amid accelerated media cycles and volatile public expectations. In this regard, courts play a unique moderating role: they are expected to counterbalance short-term political impulses and reintroduce temporal depth into the democratic process. The concluding section proposes a comprehensive set of institutional strategies aimed at reinforcing the resilience of constitutional courts faced with populist challenges. These include enhancing the transparency and communicative clarity of judicial decisions, developing a consistent doctrine of judicial self-restraint, strengthening supranational networks of recognition and cooperation, and expanding deliberative mechanisms such as amicus curiae participation and public hearings. Together, these measures constitute an integrated framework for safeguarding the autonomy and legitimacy of constitutional courts in an era increasingly marked by populist mobilization.
PHILOSOPHICAL FOUNDATIONS OF LAW
SCIENCE AND GOAL-SETTING IN LAWMAKING: DIFFERENT FUNCTIONS IN DOING A COMMON TASK
The article examines the mechanisms of decision-making by setting norms and rules, with a special emphasis on the use of scientific data. At the start, the article outlines some theoretical issues of obtaining legal norms. Next, a number of contemporary problems are considered, the solution of which has a normative dimension. In philosophy, it is regarded impossible to derive normative statements based solely on descriptive (empirical) statements (Hume’s principle). In order for such a conclusion to be logically acceptable, there must be at least one normative sentence among the premises. One of the two most important legal concepts, namely natural law, contradicts this rule. On the contrary, positive law, which allows for different forms of obtaining and substantiating its norms, can fulfill it. When using scientific data to determine a legal prescription, Hume’s principle requires that at least one normative premise be introduced in addition to empirical ones. In the courts, this is done by combining the rules of procedural and substantive law with facts relevant to a particular case. The political legislator has a broader freedom in determining how he creates new norms. Here, ideological considerations may become a necessary normative premise that ensures the fulfillment of Hume’s principle, especially in the absence of other arguments. The use of scientific data in rulemaking requires taking into account the features of scientific knowledge, which is transitory and can potentially be refuted. Goal setting plays a crucial role in making regulatory decisions. Thus, responses to current climate change depend not on the causes of this, but on an assessment of the consequences, which in turn depends on the goals that the adopted norms should serve. The legal framework for the gender structure of society also depends mainly on the goals that are expected to be achieved. Biological properties have an indirect effect on regulation. The article pays special attention to the events in Germany related to the adoption and judicial review in several lawsuits of the legally established mandatory vaccination of members of a number of professions, which was in effect during the pandemic. It turned out that the connection between science and politics was circular: the German government exerted covert pressure on science, demanding certain assertions from it, on the basis of which laws were passed. The true motivations of the Government remained unknown. It is only obvious that this was not knowledge obtained by independent science. This story is well documented. The conclusions obtained on the basis of its study can be generalized.
INTEGRATION TRENDS IN EURASIA
NATIONAL LEGAL POLICY CONCEPTS AS AN INTEGRATION TOOL: A COMPARATIVE LEGAL ANALYSIS OF THE EAEU MEMBER STATES
The effectiveness of regional integration within the Eurasian Economic Union (EAEU) increasingly depends on the coherence and adaptability of its member states’ national legal policies. This study examines the extent to which the legal systems of Belarus, Kazakhstan, Kyrgyzstan, and Armenia are adapting to the supranational legal order of the EAEU. The central problem lies in the inherent tension between national sovereignty and integration commitments, which manifests differently across member states, potentially hindering the Union’s deeper integration and uniform application of its law. Methodologically, the article employs a comparative legal analysis, focusing on primary strategic documents — national legal policy concepts — as well as constitutional provisions and legislative mechanisms governing the implementation of EAEU law. This approach allows for a systematic identification of convergences and divergences in how each state conceptualizes its integration path. The analysis reveals a spectrum of adaptation strategies. Belarus demonstrates a committed yet sovereignty-conscious approach within its legal policy framework. In contrast, recent legal policy concepts of Kazakhstan and Kyrgyzstan show a diminishing explicit focus on EAEU integration, prioritizing internal reforms and global standards instead. The most complex case is Armenia, characterized by the absence of a unified legal policy concept, constitutional ambiguities regarding the transfer of sovereign powers, and a declared policy of pursuing closer ties with the European Union alongside its EAEU membership. This “parallel integration” creates significant systemic legal risks, contradictions, and challenges to the principle of uniform application of Union law. The study concludes that the successful implementation of EAEU law requires moving beyond formal recognition of international treaty supremacy. It necessitates the development of sophisticated national mechanisms for proper implementation, which creatively transpose supranational norms while respecting national legal traditions and specificities. The findings highlight the critical role of strategic legal planning documents in guiding this process and underscore the potential legal fragmentation risks arising from inconsistent national approaches. This research contributes to forecasting areas of legal conflict within the EAEU and suggests pathways for better harmonization of member states’ legal policies to strengthen the Eurasian integration project.
JUDICIAL POWER: POLAND
THE NEW POLISH GOVERNMENT'S JUDICIAL REFORM DE LEGE FERENDA: CONSTITUTIONAL TURBULENCE BETWEEN PARLIAMENTARY (2023) AND PRESIDENTIAL (2025) ELECTIONS
The ambitious goal of the new Polish coalition government of the Civic Coalition, which won the parliamentary elections in October 2023, was to develop a scenario for restoring the standards of the rule of law, which, according to the ruling coalition and European institutions, were violated by the previous government led by the Law and Justice party, and which are also one of the conditions set by the European Union when it comes to transferring billions of euros from European post-pandemic funds frozen during the Law and Justice party's time in power. The events taking place in Poland after the arrival of the new coalition government have become a subject of concern for various political forces, a subject of disputes and legal uncertainties. On the one hand, there are “radical” proposals regarding the “dismantling” of the current composition of the Constitutional Tribunal, the National Judicial Council, the Supreme Court and the general courts, while on the other hand, the importance of respecting the rule of law during the transition period is emphasized, which is also reflected in the opinions of the Venice Commission on the draft constitutional amendments concerning the Constitutional Tribunal, as well as the regulation of the status of the so-called neo-judges and the draft amendments to the Law on the Public Prosecutor's Office. The Action Plan for Restoring the Rule of Law, presented by the government in February 2024, outlines the commitment to the decisions of the Court of Justice of the EU and the intention to establish a system of institutional execution of judicial decisions. The main points of the planned reforms are aimed at restoring the independence of the judiciary. One of the key ones is the problem of the so-called neo-judges, that is, more than 2,500 judges appointed with the participation of the National Judicial Council, created on the principles changed by the ruling Law and Justice party in 2017, as a result of which it acquired a “politicized” character. However, the new Act on the National Council of the Judiciary, adopted by the Parliament in July 2024, has not entered into force, as the President did not sign it and sent it to the Constitutional Tribunal for preventive review. The problem with the new government’s reforms is that most of the bills adopted by the Parliament were not signed by the previous President, who represented the interests of the Law and Justice party, which prompted the adoption of resolutions of the Sejm on key issues. In February 2025, the Judicial Codification and Public Prosecutor’s Office Commission presented two bills regulating the status of judges appointed after 2018, which caused a wide resonance. The key question is whether the current reforms and the intentions of the new government will survive the political changes associated with the election of a new President of Poland, a supporter of the Law and Justice party, as well as other factors, including the fact that the consequences of decisions regarding the judiciary will determine one or another response of the EU institutions.
THEORY OF CONSTITUTIONAL LAW
EYEING THE APPLE OF AN EYE: OBSERVANCE OF CONSTITUTIONAL GUARANTEES OF HUMAN DIGNITY IN GERMANY
The constitutional frameworks of most countries recognize particular importance of human dignity. In Germany, with its bitter historic experience of inhumanity, this abstract idea of dignity has grown into directly applicable individual right enshrined at the beginning of the Basic Law. The main obligation of public authority, which is to respect and to protect dignity, corresponds to this individual right. Fulfillment of this obligation gives rise to a number or philosophical, ethical and constitutional legal discussions, further complicated by collisions conditioned by the swift technical progress and appearance of new threats to security. The case law of the Federal Constitutional Court of Germany has amassed significant experience of assessing the observance of constitutional guarantees of human dignity by the state. This article is devoted to examination of issues arising on this path. The contents of constitutional guarantees of dignity cannot be described positively since dignity itself is impossible to determine. These guarantees are therefore described negatively — through negating the unacceptable action, which includes, generally speaking, intrusion, degrading, or leaving without protection. The state is obliged not to allow treatment that intrudes into autonomy, or undermines the status of a human, as well as to take preventive or retrospective measures to protect the individual from violation by of agents of authority, other persons, or even the individual himself. The ways to establish failure to observe guarantees in constitutional proceedings are different, including application of the “object formula”, the description of intrusion into an inviolable sphere, the listing of typical examples of violation of dignity, etc. The idea of Kant on prohibiting the instrumentalization of a human was expanded in constitutional logic, into a prohibition of objectifying them, allowing only such action that is performed with the aim of autonomy (self) of a human, while not denying their subjective status. The guarantees of dignity inviolability imply absolute protection in the sphere affecting only an individual, and relative protection outside this sphere. The inductive method used in the constitutional judicial proceedings, i.e. listing the unacceptable practices of the past, can lead to disputes when new situations occur. For example, there is an ongoing discussion on acceptability of torture for saving human life, and the results of its’ analysis do not allow for recognition of the right of public authority to guarantee the protection of dignity by way of negating respect thereto.
BETWEEN LIBERALISM AND SOCIALISM: CONSTITUTIONALISM IN HONG KONG
STATUES WILL BE REPLACED BY URNS: DECLINE OF CLASSICAL CONSTITUTIONALISM IN HONG KONG
Relationship between Hong Kong and mainland China within the “one country, two systems” framework is a good opportunity to discuss constitutional issues in Russia. Is the socialist legal tradition compatible with classical constitutionalism as a limitation for public authority? How do the surviving elements of this tradition influence constitutional adjudication? What functions do constitutions fulfill in autocratic regimes? Should the very concept of a constitution be adjusted depending on the cultural differences of a particular jurisdiction? This article consists of an introduction and two main parts. The first examines the compatibility of classic constitutionalism with Marxism and the socialist legal tradition. The separation of powers and other limitations on authority are incompatible with Marxism-Leninism. Collectivism is contradicted by private interests of individual, who is considered a means to achieving higher goals. When declared rights are in conflict with collective interests, they fade into the background. The experience of building socialism raises doubts about the justiciability of individual rights in such states. The absence of judicial constitutional review is justified by the belief that the review of legislative decisions supposedly aimed at achieving the common good of the entire people is unnecessary. The author discusses the instrumental approach to the constitution, when one is utilized to retain domination by an autocrat or central government. The classification of Hong Kong’s legal system as a mixed jurisdiction allows the second part to address the difference between political and legal constitutionalism. These approaches have different target audiences and practical applications of the research findings. In one case, these are policy recommendations, while in the second, they are memoranda in constitutional litigation. The author argues that both approaches require different methods for constitutional research. Studying constitutionalism through a political lens is unthinkable without empirical methods. Legal constitutionalism, as a research method, alongside traditional legal conceptualism, is expressed through the case method.
ETHICS OF CONSTITUTIONALISM
LAW AND MORALITY: ETHICAL CODES AS AN INSTRUMENT OF PUBLIC LEGAL POLICY OF RUSSIA
The communist morality created in the USSR to form a “new man” was based on a code of moral values that replaced traditional religious ideas with the ideological postulates of a one-party dictatorship. The crisis and collapse of this ideology in post-Soviet Russia led to the emergence of an “ethical vacuum” — moral anomie, where previous moral principles ceased to operate, and new ones lost their universal character, the rigidity of coercion and the effectiveness of a social regulator. Ideological pluralism has transformed into ethical pluralism. The 1993 Constitution of the Russian Federation established the liberal principle of ideological diversity, but at the same time — the neutrality of the state in relation to the moral values of society. The result was the launch of spontaneous self-regulation of moral values that lie outside and beyond constitutional principles. This process was expressed in the emergence of various ethical codes, defending almost opposite ideas about morality and the methods of its affirmation, from those completely loyal to constitutional norms to those deviating from and even contrary to constitutional provisions. Currently, the opposite trend has become prevalent: the state (after the adoption of 2020 amendments) declares its return to the sphere of regulation of moral values of society, making efforts to specifically promote priorities in this area. This defines the range of problems of this article which aims to determine the changing relationship between moral and legal regulators of social behavior, reconstructing a special area of a “moral constitutionalism” — values, norms and practices that formally lie outside the sphere of legal regulation, but in fact determine the degree of its acceptance and effectiveness in public policy. If we admit that modern society is already beyond conventional virtue, then what should be the moral foundations of the constitutional order: are they rooted in tradition, rational choice or the provisions of the current law; should legal policy proceed from the maximum or minimum of morality in the adoption of legal guarantees? Do ethical codes replace the provisions of the Constitution when interpreting the meaning of the most important principles and norms, and does the practice of their centralized implementation replace a conscious civic position with false disciplined enthusiasm? An analysis of modern Russian ethical codes, despite all their differences, makes only one thing clear. The transition from moral absolutism to pluralism of moral values is a difficult process that requires active adjustment from the standpoint of a verified public policy. Its main trend is independent social mediation of moral values, which involves their assessment from the standpoint of constitutionalism and fundamental demands for the development of society.
EVOLUTION OF CONSTITUTIONAL THOUGHT
SOCIETAL CONSTITUTIONALISM: THE SPECIFICS OF CONSTITUTIONALIZATION AND THE PROBLEM OF COHERENCE OF THE LEGAL ORDER
Proponents of societal constitutionalism criticize classical constitutionalism for its focus on limiting the political power and its inability to counteract the authoritarian manifestations of other forms of social power exercised in various spheres of civil society. Societal constitutionalism positions itself as a theory that identifies trends in constitutionalization beyond the nation-state. It is characterized by its rejection of the public-law concept of the constitution and its focus on the constitutionalization of non-political spheres of society not directly related to the exercise of state power. Traditional “state” constitutionalism in this case acts only as a basic model for the processes of societal constitutionalization, offering the tools it has developed for limiting power — human rights, principles of the rule of law, democracy, and separation of powers. But each of the social spheres is capable of self-constitutionalization without the participation of the state on the basis of its inherent rationality and its own principles. However, the meaning, grounds, and methods of societal constitutionalization remain unclear. Societal constitutionalism asserts the plurality of social orders constitutionalized in one way or another and the network nature of the relationships between them, which inevitably gives rise to the problem of ensuring their coherence. The idea of a comprehensive constitution for global society is rejected by proponents of societal constitutionalism as idealistic. In search of mechanisms for coordinating various social orders within the framework of the emerging constitutional pluralism, it is proposed to turn to the instruments and procedures tested in international private law, as well as in the process of interaction between national courts and supranational and international judicial and quasi-judicial bodies. At the same time, it is assumed that the meta-constitution formed in this way should not impose any substantial (essential, material) principles and will be limited only to procedural rules for resolving conflicts between existing “subconstitutional orders”. Societal “transconstitutionalism” will be of a purely “collisional” nature, which significantly distorts the very meaning of constitutionalism and makes the provided guarantees for limiting power uncertain.
COMMON GOOD CONSTITUTIONALISM: INTRODUCTION TO THE DISCUSSION
The article analyses the concept of common good constitutionalism proposed by Harvard Law School professor A.Vermeule in the context of the academic debate that unfolded around his ideas in the pages of the Harvard Journal of Law & Public Policy in 2023. The aim of the study is to familiarise the Russian legal community with the debate on common good constitutionalism, systematising its key critical and apologetic arguments, and to assess the potential of the presented approach for updating public law doctrine. The author reconstructs the philosophical and legal foundations of common good constitutionalism in the context of the classical natural law tradition, analyses Vermeule’s criticism of originalism and living constitution, identifies key disputes about the relationship between individual rights and the common good, and summarises the strengths and weaknesses of Vermeule’s project. The methodological basis includes comparative legal analysis as well as discursive analysis of academic texts, which allows the dogmatic level of reasoning to be linked to its value assumptions. The study shows that common good constitutionalism considers the constitution to be a teleological instrument oriented towards the prosperity of the political community, and not only towards the limitation of power — such a framework of reasoning brings the categories of virtue and dignity back to the centre of legal thinking. At the same time, risks have been identified, including the uncertainty of criteria for the common good, the politicisation of the judicial process, and the incompatibility of an objective concept of the good with the pluralistic nature of modern society. Comparative material demonstrates that appealing to the common good can strengthen the legitimacy of decisions, but requires clear institutional constraints. The conclusion is made that, despite the concept’s current incompleteness and sharp criticism, common good constitutionalism provides a productive impetus for rethinking the links between law, politics and morality and opens up the prospect of formulating an integral model capable of combining the values of personal dignity, oriented towards the achievement of the common good of power and a pluralistic society. Thus, the study not only identifies the theoretical foundations and problem areas of common good constitutionalism, but also raises the question of the ethical coordinates of contemporary public law.