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LAW IN THE DIGITAL AGE
The article discusses the parameters of the crisis of modern constitutionalism and international scholarly approaches to understanding various models of constitutionalism in comparative constitutionalism and jurisprudence. As a result of coming to understand political and legal processes in the modern world, constitutionalism has, in its doctrinal development, transformed from a liberal legal and political theory into a broad ideological and intellectual platform. Many scholarly schools and national jurisdictions located far beyond the borders of the epicenter of constitutionalism’s primary emergence in modern and contemporary times created this platform. The study provides a critical analysis of Westphalian constitutionalism and the “heliocentric” model of the spread of modern constitutionalism; identifies the diversification of constitutionalism as a planetary phenomenon; and notes that in modern conditions of the struggle for a multipolar world, the formation and dissemination of a “polycentric” model of “hybrid constitutionalism” based on hybrid constitutional forms becomes a strategic task. The study notes the formation in the information and algorithmic society of doctrinal and normative foundations for the transition from analog to digital constitutionalism. Entering the digital and algorithmic era, constitutionalism faces the most difficult task: preserving the values of the supremacy of the constitution and of fundamental rights and freedoms with their various cultural and territorial specifics; maintaining the constitutional foundations of state and popular sovereignty and at the same time the decentralized digital participation of citizens and public associations; maintaining access to the Internet under various political and governmental regimes; and expanding the scope of professional and expert participation in discussions and decision-making on constitutional and other publicly significant issues. The author reviews scholarly approaches to understanding digital and algorithmic constitutionalism in modern Russian and international jurisprudence and in scholarly publications of Russian and foreign authors. The article uses deliberative and epistemological approaches, methods of formal-legal, concrete-historical, comparative constitutional-legal, and complex analysis. It concludes that digital and information constitutionalism is based on humanism, rationalism, human participation, respect for Internet access rights, privacy, and guaranteed anonymous digital personal identification when using innovative technologies. It involves the creation of normative requirements for the texts of existing constitutions that could prevent the emergence and spread of technocratic and authoritarian constitutionalism.
The legal regulation of data protection has become a response to both governmental abuses of personal data and the challenges of technological progress. Nowadays, the right to protection of personal data has become virtually unchallengeable in many jurisdictions, including in Russian law. In many respects, this is the result of the European expansionary policy. The European Union was the first region to create a jurisdiction related to personal data protection, epitomized by the European Union’s General Data Protection Regulation (GDPR). Its norms have extraterritorial effect, as a result of which EU citizens are considered to be the most protected in the world in this respect. Other States are also attracted to the European approach: some American states are adopting innovative laws on personal data protection, and China is acting in the same direction. All this testifies to the success of the European model of data protection. At the same time, some nuances must be taken into account. For example, businesses comply with GDPR, but they need to be more actively involved in making their own real data protection decisions, including preventive ones. Most often, the personal data subject is equated by doctrine and judicial practice with the consumer, which gives him or her certain protection. But the significance of the protected values remains different. The right to the protection of personal data has no economic nature; it is classified by the EU legislation as a fundamental right. This right is protected by giving data subjects control over their personal data and by setting limits on the collection and use of personal data. It is necessary to encourage businesses to respect human rights and ensure adequate protection of personal data, basing this on the public law (rather than economic) nature of the resulting relations and emphasizing preventive mechanisms without waiting for the commission of torts. The principles of due (proper) care for human rights are enshrined in UN and OECD acts, and their observance is a socially expected responsibility of business. It is also necessary to take into account possible conflicts in the application of GDPR, which are discussed in the article using the example of data processing by financial intelligence entities. A synthesis of the positions of European regulators allows us to highlight the trend towards universalization of GDPR. At the same time, some of the shortcomings identified in the GDPR policy conflicts should be taken into account in the further improvement of data protection policy. In general, the GDPR’s focus on preventative measures against data processing breaches is carrying over to other digital acts of the EU and is called the risk-based approach. It is in line with the idea of human rights protection and has undeniable advantages over retrospective liability for breaches. Thus, detailed legislation on personal data protection designed to prevent breaches is a good tool for protection of privacy.
SOCIAL CHANGE AND LAW
NEW CONSTITUTIONAL RIGHTS OF THE GERMAN BASIC LAW
Distribution of the article has been suspended (stopped) at the request of the publisher-copyright holder
Unlike laws, which can be changed every time it becomes necessary, constitutions are designed to establish basic principles of state organization in the long term. However, constitutional and human rights require adaptation to the changing social environment and must be constantly developed. The Basic Law of Germany, which came into force in 1949, contains a number of “new” rights that cannot be found in the text of the constitution, as they were developed in the jurisprudence of the Federal Constitutional Court. These rights are presented in this article.
The decision-making process is often faced with uncertainty and a lack of necessary information. Therefore, decision makers sometimes have to limit their reasoning to the available data and replace unknown variables with certain assumptions. Accordingly, as new information becomes available, the findings can and should be revised. The premises on which constitutional judgments are based are no exception. This article identifies the reasons that determine the non-monotonicity of legal reasoning in general and constitutional argumentation in particular. The author examines the mechanism for implementing non-monotonicity in constitutional reasoning and gives examples when the inclusion of new premises in the discourse changes previous constitutional assessments. The article examines types of premises, the modification of which makes it necessary to clarify the conclusion about the constitutionality of a challenged legal norm. The author includes among them changes in constitutional provisions, changes in the content of current legal regulation, changes in the conditions for the implementation of constitutional provisions and legal norms (the so-called general social context), as well as finding errors that were made at different levels of reasoning. The article also explores the factors that limit the non-monotonicity of constitutional argumentation. It is shown that the cost of clarifying constitutional reasoning, including the correction of errors, may exceed the benefit that the legal order will receive as a result of such clarification. In this sense, protected constitutional values (legal certainty, social reliance on legal rules, stability of relations, etc.) become limiters of the non-monotonicity of constitutional argumentation. The author concludes that the non-monotonic nature of constitutional argumentation requires openness of argumentative dialogue, since such openness reduces the risks of ignoring circumstances that are essential for correctly resolving a constitutional case.
METHODOLOGY FOR NON-DISCRIMINATION: GENDER EQUALITY JURISPRUDENCE OF THE U.S. SUPREME COURT AND THE CONSTITUTIONAL COURT OF RUSSIA
This article presents a critical view of the Constitutional Court of Russia’s gender equality jurisprudence, in particular the legal methodology which the Constitutional Court utilizes in its decisions in such cases. In order to demonstrate the variety of types of judicial scrutiny, the author first analyzes the relevant jurisprudence of the Supreme Court of the United States. It is noted that the turning point case in Supreme Court jurisprudence made sex-based classifications subject to a more severe level of judicial scrutiny than rational basis review, thus cementing the idea that gender discrimination exists in the law. In the next part of the article the author reviews the gender equality jurisprudence of the Constitutional Court of Russia. The author argues that, when considering gender equality cases, the Constitutional Court employs a type of judicial scrutiny that is similar, if not identical, to the rational basis review, although the methodology itself as employed by the Court in other equal protection cases is different and not flawed. The author suggests that what allows for this methodological defect is the uncertainty of the terms “reasonable justification” and “objective justification”, contending that these two cannot be considered synonymous. Furthermore, the author asserts that the extensive use of sex-based classifications in Russian law might be a result of the Constitutional Court’s unwillingness to treat them as inherently suspect, and, given that sex is first in the list of protected characteristics in the anti-discrimination provision of the Constitution, the Court’s position is not as consistent with the constitutional text as the Court maintains. What is needed to remedy the situation is to interpret the Constitution’s anti-discrimination provision as mandating some sort of hierarchy of protected characteristics. This would mean, first, that sex-based classifications cannot be treated as less constitutionally suspect than race-based or ethnicity-based ones, and second, that they warrant at least as severe a level of judicial scrutiny. It appears that this methodological approach to sex-based classifications could serve as a significant deterrent to legislators’ continuing use of such classifications when passing new laws, especially when state interests can be achieved through less drastic means.
Judicial activism is a multidimensional and widely discussed issue in legal studies. Although it is not a recent phenomenon and it has long been a focus of interest for legal scholars, there are varying interpretations of this concept. The debate persists regarding the definition of judicial activism and the advantages and disadvantages of its application in evaluating judicial performance. In South Africa, judicial activism is of particular importance. During the apartheid era, the legislative supremacy and executive dominance have relegated the judiciary to obscurity. This paradigm has changed when the apartheid era came to an end. The Constitutional Court of South Africa has achieved remarkable success, earning a reputation unparalleled among constitutional courts in emerging democracies. It is one of the most important institutions upholding the democratic values and demonstrating an innovative approach in dealing with matters relating to the protection of human rights. Since its inception, the Constitutional Court has forged an active and fairly independent path. Its timely interventions not only led to the prompt correction of defective legislation, but also introduced new means and processes to address serious social problems that the government and legislature had been too slow, unreasonable or indifferent in addressing. An examination of some Constitutional Court’s major decisions reveals that it has acted strategically in controversial cases in order to avoid direct confrontation with the political branches. However, Constitutional Court displays little restraint and has used the flexibility that is inherent in the separation of powers doctrine to actively defend constitutional guarantees and ensure socio-economic rights, contributing to the development of transformative constitutionalism in South Africa. The Constitutional Court’s decisions are progressive in nature and contribute to the development of transformational constitutionalism in South Africa. Its judicial activism, particularly in the field of protection of fundamental human rights and freedoms, has significant potential to increase its authority and trust in society, as well as to confirm its role as guardian of the Constitution.
In modern conditions, information technologies have a significant impact on the activities of national parliaments, online platforms are being created to unite deputies and citizens, and legislative crowdsourcing is developing. In Latin America, where one fifth of all Facebook users live, the participation of citizens in the activities of public authorities is expanding within the framework of democratization processes. The most developed countries in the application and legal regulation of information technologies in the region are Chile and Brazil, where crowdsourcing platforms in national parliaments have been functioning for more than 15 years. The Virtual Congress of the Chilean Parliament and the e-Democracy of the House of Deputies of the Brazilian Parliament have the technological capacity to conduct on line public consultations with citizens, discuss draft laws and propose amendments to them, put forward citizen initiatives for consultation on the drafting of bills, and participate in setting the agenda. Despite the fact that in both countries public authorities do not enjoy the trust of the population, members of parliament do not demonstrate a special interest in the development of digital communication. Citizens are aware that social networks provide an opportunity to engage in politics and that their voices can be heard not only during an election period. At the same time, as the practice of these States shows, in order to become effective, legislative crowdsourcing must become part of parliamentary procedures and lead to significant changes in political culture. An educational platform created for one of the Chilean parliament’s chambers later turned into a full-fledged platform of both chambers, providing communication with users. In contrast to Chile, in Brazil each of the houses of parliament has its own digital platform. Both platforms are focused on ensuring broad citizen participation, but only the Chamber of Deputies’ e-Democracia portal has a deliberative component.
This article is dedicated to the 75th birthday of the prominent legal scholar A.I.Kovler, Doctor of Law, Professor, and judge of the European Court of Human Rights from Russia from 1999 to 2012. The author focuses on his own personal impressions of discourse with Kovler, interspersed with an analysis of his key works. Thus, the personal is, as it were, intertwined with the scholarly. Particular attention is paid to Kovler’s inclusion in pan-European scientific discourse, without which his personality would have lost a piece of its charm. The author pays tribute to the professional achievements and broad erudition of the article’s subject. A number of Kovler’s publications went into scholarly circulation and, although somewhat forgotten, have not lost their relevance. With sad bewilderment, the author evaluates the civic position of A.I.Kovler over the last two years. The author also touches on a number of Kovler’s dissenting opinions during his tenure as a judge of the European Court of Human Rights, evaluating their aesthetic and legal merits. Particular attention is paid to the problem of interpreting the history of the twentieth century in international justice, at the origins of which was Kovler himself. Additional attention is focused on his connections with France, which are so visibly seen both in his scientific work and in the course of personal communication with him.