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In the modern doctrine of constitutionalism, there is a clear tendency to abandon its purely positivist understanding. The requirements of constitutionalism are filled with value content, and the axiological approach to the interpretation of traditional constitutional categories becomes almost dominant. All legal concepts and constructions are interpreted as values. Values are treated as universal equivalents and synonyms. Meanwhile, value is a concept from the sphere of philosophy, ethics and psychology; it has its own nature and, by virtue of this, is irrelevant to law. Values are not universal, but relative and subjective. They are incommensurable among themselves. Adherence to them is often irrational and very significant for the individual. All of this leads to the low regulatory potential of values. Conflicts of values are insoluble on a rational basis. Appealing to values in disputes about human rights increases the conflictual potential of the problem, because any restrictions come to be perceived very painfully. At the same time, a value-based interpretation of human rights significantly complicates the use of traditional ways of determining the validity of restrictions on their realization, and in particular, of the proportionality test. As a result, judicial reasoning is largely arbitrary. On the basis of an analysis of concrete cases the article reveals the strategies of “treatment of values” used in judicial practice for overcoming these problems. Conventionally, these strategies can be called the reinterpretation of values in order to give them a universal meaning; the elimination of values, i.e., their removal from the legal dispute; and the juridification of values, which involves their transformation into principles. The author shows that courts tend to prefer to “walk away” from the value discourse and consider the problem by operating with traditional legal concepts and constructions. In this regard, the doctrinal commitment to value-based interpretation in constitutional law is surprising. It would be much more effective to focus on the purely legal aspects of the problems encountered and to seek the most value-neutral ways of solving them. The principles of law are supra-positive legal standards. Relying on them provides ample room for judicial discretion but also places limits on it, since these principles, assuming the variability of specific legal decisions, substantially delineate their framework.
Ireland’s turn to the institutions of deliberative democracy was prompted by a political crisis arising from an economic crisis in 2008 and by the coming to power of a new government coalition. Also playing an important role in promoting these new institutions was the Irish Political Science Association, which held a public Citizens’ Assembly in 2011. Then a Convention on the Constitution exercised its powers from December 2012 to February 2014. The Convention included ordinary citizens and also Members of Parliament. The Convention considered eight issues that lacked unanimity within the government coalition or required broader support for a decision, and two issues that the participants determined on their own. All the issues fell into three groups: elections and political representation, human rights, and issues involving some departures from traditional values. The Convention on the Constitution functioned in a deliberative format and produced nine reports. Three national referenda were held and two amendments to the Constitution of Ireland were made on the basis of the recommendations of the Convention. The Convention on the Constitution is a new form of citizens’ participation in the constitution-making process, not applied in practice before. It showed the relevance and significance of constitutional issues for ordinary people and the possibility of their constructive discussion.
BIOETHICS AND LAW
THE FUTURE HAS ARRIVED: THE CONSTITUTIONAL NATURE OF A RIGHT OF ACCESS TO REPRODUCTIVE AND GENETIC TECHNOLOGIES
The evolution of human rights is inextricably linked to the development of public institutions formed under the influence of changing reality. Thanks to research in the field of reproduction and genetics, significant advances have been made in the field of human reproductive and genetic health, namely, the introduction of diagnostic studies of the fetus (embryo) both in the womb and in vitro by in vitro fertilization and surrogacy. The study focuses on an analysis of constitutional and legal issues of the use of preimplantation and prenatal diagnoses of the embryo (fetus) using assisted reproductive technologies for the purpose of prevention of the birth of children with genetic (inherited) mutations, and, in cases where this is not possible, for early preparation and adaptation by these children’s biological parents to a severe life-threatening diagnosis for their child, both in furtherance of the child’s well-being and for assistance to the parents. The article proposes an expansion of the system of constitutional human rights by recognizing an independent subjective reproductive right in the use of auxiliary and genetic engineering technologies. The author hypothesizes about the complex nature of this right, taking into account its direct connection with “traditional” constitutional rights, namely, the dignity of the individual; the right to respect for private life; the right to health protection and medical care; and the right to protection of childhood, motherhood and fatherhood. In addition, the main, distinctive characteristics of this reproductive right are analyzed, including consideration of the reproductive and genetic well-being of the mother and the unborn child as special objects of protection, and consideration the role of public authorities in organizing access to high-tech means of reproductive genetics as a prerequisite for the existence of the right in each particular state. The European Court of Human Rights’ procedure for implementing this independent right in its practice is also considered. The author categorizes the main judicial decisions on this issue arising in disputes about access to reproductive law using assisted and reproductive technologies and in disputes over compensation for damage for providing false information about the genetic characteristics of the fetus (embryo).
DIGITALIZATION AND LAW
FREE ACCESS TO SOCIALLY-MEANINGFUL INFORMATIONAL INTERNET SITES IN RUSSIA: THE NEW TAX AND NEW CHALLENGE FOR INTERNET COMPETITION?
Access to social-meaningful information resources, i.e., Internet sites, is an innovation in Russian legislation that creates a new obligation on providers of informational-telecommunication services. Legislation has changed in two ways: first, by shifting from a generally “limiting” approach to governance of the Internet, and, secondly, by burdening telecommunication providers with socially-meaningful functions and paying compensation for this. There also are potential risks in this initiative, in its support for competition among Internet resources and in its financial burden on Internet providers to provide free access to the Internet in the absence of compensation mechanisms in the law and in view of obligations created by the “Yarovaya law”. One of the main focuses of this article is the constitutional law aspects of the new obligation of Internet providers to provide free access to socially-meaningful information resources. It also discusses parallels between this new obligation and the tax obligation. It sees these obligations as very similar, despite tax obligations being paid only by money. It analyzes decisions of the Russian Constitutional Court regarding normative criteria for norms of taxation. Also noted are the effects on competition among Internet services of international Internet services leaving the Russian market. In conclusion the author suggests changes in Russian legislation to make it more compatible with the growing socially-meaningful significance of Internet access and to resolve contradictions arising from it.
LAW AND ECONOMICS
THE CONSTITUTIONAL BASIS OF ANTI-MONOPOLY CONTROL AND COMPETITION REGULATION IN THE IMPLEMENTATION OF PUBLIC-PRIVATE PARTNERSHIPS
The author examines the constitutional principles of support for competition and prohibition of economic activities aimed at unfair competition as the constitutional basis of the implementation of public-private partnerships. The paper is devoted to an analysis of the application of the concepts of law and economics to instances of competition of constitutional provisions. Constitutional principles forming the basis of antitrust law and of a public-private partnership can be scrutinized with the help of the economic analysis of law. Such economic phenomena as public-private partnerships and competition regulation should be scrutinized under constitutional provisions. The constitutional foundation of anti-monopoly protection in Russia is found in Articles 8 and 34 of the Russian Constitution. Public-private partnerships in a broader sense, as a form of economic activity in the Russian Federation, are based on the constitutional principles of unity of economic space, liberty of economic activity, support of competition and the principle of free use of one’s abilities and property for entrepreneurial and other economic activities not prohibited by law. The author states that the principle of social, political and economic solidarity that was introduced into the constitutional legal field by recent amendments to the Constitution of the Russian Federation can serve as a guiding principle of the public-private partnership. Constitutional provisions can interact with each other, forming a potential conflict that may lead to the assessment of conflicting constitutional principles underlying such provisions by the Constitutional Court of Russia. The author gives an analysis of rulings of the Russian Federation Constitutional Court and of the Constitutional Council of France dedicated to the field of public-private partnership. As a result it is shown that the constitutional principles of equality before state structures and public interest constitute the essence of the public-private partnership. The author specifies that an economic analysis of law can be applied to constitutional law provisions concerning antitrust regulations, providing examples of this application in the practice of the Constitutional Court of Russia. The author recognizes that the principle of support for competition and the principle of freedom of economic activity compete with each other, so that the objective of courts is to strike a fair balance between these principles.
POINT OF VIEW
Citizens’ trust in their legal system is central to the rule of law. This article continues the study of the social history of law and its influence on trust in law in various societies, begun in our joint with D.Yu.Poldnikov’s article on the social history of various legal systems. Here the social history of Russian law as the right of power is studied and it is shown that the standard model of Russian legal consciousness, called “legal nihilism”, is erroneous. Indeed, Russian citizens do not have real trust in law, but there is also no “nihilistic” attitude towards it either. The entire history of the interaction of Russian society and Russian law has developed a utilitarian attitude towards law among Russian citizens, and they should rather be called “legal utilitarians”, since they willingly used and now use the law when they consider it beneficial for themselves, and bypass it in those cases when they consider themselves unprofitable. Therefore, the main task of any future reform of the legal system (and such reform is obviously needed) is to make it so that following the rule of law for the majority of citizens is considered more beneficial than breaking the rule of law. This can be achieved if two conditions are met: a) a group of people must appear in society for whom the rule of law is beneficial; b) a mechanism should be created to protect society from the influence of those groups for which it is beneficial to break the law. A group of people for whom the rule of law is beneficial has already appeared: these are lawyers independent of the authorities. For them, a law-enforced society provides a market for their services; the well-being of this group of people literally depends on whether laws are observed in a society. Creating a mechanism to protect against the influence of those groups that benefit from the violation of the law is a serious problem to be solved in the reform of the legal system.