Available in Russian
CONTENTS
CONSTITUTIONAL FUTUROLOGY
SOCIETY, LAW, AND THE COMING WORLD OF ROBOTS: COOPERATING WITH HUMANS OR REPLACING THEM?
The subject of artificial intelligence is constantly in the spotlight of modern society. Reports on its development are not just numerous but also extremely diverse. In this article, an attempt is made to structure this information from the standpoint of jurisprudence by dividing the emerging issues into three groups: (1) the emergence of new legal persons, (2) the emergence of new technological risks, and (3) changes in society related to automatization. The distinctions between these groups have both cognitive and practical significance. Study of innovations in these areas presents tasks of different levels of complexity. This, in addition to the cognitive aspect, affects the regulatory one: the difficulty of reaching consensus on the necessary legal measures varies for issues arising in the different groups. Special attention is paid to the emergence of “smart” machines comparable to humans. The article provides an overview of existing views on the nature of human mental properties (mind-body problem), as well as an assessment of whether modern computers can have these properties. Special attention is paid to important socio-legal aspects. For example, the role of formalization and unification of certain segments of society, which occurred in the previous period and prepared the automation phase, is considered. Some questions currently do not have a definite answer. For example, experts are undecided about what will happen to employment. Some observers paint an extremely gloomy picture of the displacement of humans by automata and robots, while others offer more optimistic scenarios. But in any case, due to the expansion of the scope of application of automatic devices, changes in the methods of regulation in society should be expected. The rule-based method of regulation applicable to human behavior will gradually be replaced by an algorithmic one applied to computers. Creating a functioning heterogeneous environment in which people interact with various kinds of automata is a separate and difficult task. The article’s main conclusion is that even at the current level of technology, the broader use of artificial intelligence can lead to serious social changes.
LEGAL REASONING
“WHY? THE ANSWER IS A LEMON!”: THE PRINCIPLE OF REASON-GIVING IN ADMINISTRATIVE LAW
Reason-giving, along with fairness, rationality, and good faith, is one of the ambiguous concepts. Depending on the concept of law and methodological framework, this term can mean different phenomena. For a legal formalist, this principle primarily refers to the normative foundations of legal instruments. When applying theory of argumentation, reason-giving pertains to the motives and persuasiveness of decision-making. Within the public administration approach, the relationship between goals and means in the decision-making comes to the fore, including their scientific justification and an evidence-based approach. Due to such diversity, it is necessary to clearly separate various meanings and aspects of reason-giving. At the same time, in traditional Russian administrative law scholarship, reason-giving is not distinguished from legality. In this article, the authors argue against the fallacy of such approaches, highlighting the distinct content and elements of reason-giving. The main author’s point is that this is the material principle, rather than formal criteria for reviewing administrative actions. There remains the possibility that the court conducts fact-finding in administrative litigation instead of the administrative body. Hence, it is important to evaluate critically the forms of interaction between courts and administration in the course of reviewing compliance with the principle of reason-giving. The article consists of five parts. The first part examines the history of reason-giving in key legal traditions. The second and third parts are devoted to the study of the formation of this principle in the Russian Empire and Soviet administrative law. Turning to the history of pre-revolutionary and Soviet administrative law provides continuity in the interpretation of the principle under consideration. The fourth and fifth parts analyze the existing approaches to the duty of reason-giving in the Anglo-American and Civil Law traditions of administrative law. It is argued that reason-giving is a general principle of law in key legal traditions. Comparative legal analysis is considered a methodological prerequisite for further research on this principle in Russian administrative law.
WELFARE STATE AND LAW
THE POST-SOVIET PRESIDENCY: TEMPTATION OF SOCIAL POWERS
The author explores the constitutional and legal regimes of nine former Soviet republics, their constitutions, laws, presidential acts, and other instruments of influence on social policy, reaching the conclusion that heads of state directly determine the form and content of social policy. For example, presidents establish not only the general directions of social policy but also the specific amounts of social assistance, standards of social life, specific indicators, categories of citizens, and so on, and in some cases the amounts of scholarships, salaries, pensions, and pension supplements. Social policy is one of the ways to strengthen and concentrate presidential power when other power institutions are unable to oppose the president. With rare exceptions, the social powers of the presidents of the countries under consideration do not directly follow from their constitutions but are based on the special status of the head of state and his role in ensuring sovereignty, civil concord, and national security. To manage social policy, presidents may, in their discretion, use both direct instruments in their own name (e.g., acts, legislative initiative) and indirect instruments issued by other government bodies (e.g., instructions, recommendations, messages). The president’s toolkit is unlimited. The article notes that even parliamentary governance in some countries can serve as a screen for presidential management of social policy. As a result, presidential instruments of social policy can be used both to influence other branches of power, leading to an erosion of the system of separation of powers, and particularly parliamentarism, and to influence the population, which associates its social expectations with the president. The latter creates a paternalistic perception of the presidential institution as a distributor of social goods. In conditions where no power institution can oppose the appropriation of social powers by presidents, the natural limit of such powers is not the constitution and law, but the financial and economic capabilities of the State.
COLLECTIVE RIGHTS
NATIONAL MINORITIES AND SMALL INDIGENOUS PEOPLES IN RUSSIA: LEGAL PROBLEMS OF THEIR IDENTIFICATION
The Constitution of the Russian Federation has various concepts of ethnic communities, including national minorities and indigenous small-numbered peoples. Despite their constitutional distinction, these communities are sometimes considered synonymously in legislation, law enforcement practice, and doctrine. The specification of these concepts is further complicated by the fact that Russia ceased its participation in European international obligations protecting the rights of national minorities and withdrew from the Barents Euro-Arctic Council, including its dealings with problems of indigenous peoples. The question of Russia’s participation in the Arctic Council, whose activities also cover the rights of indigenous peoples, remains open. This article attempts to clarify the current legal status of national minorities and small indigenous small-numbered peoples in the Russian Federation. It discusses the historical prerequisites for the formation of these ethnic communities in the Russian Empire and during the Soviet period, the peculiarities of their identification from the standpoint of current Russian and international law, the correlation of these communities according to the catalog of rights guaranteed to them, and the methods of their acquiring and losing their corresponding status. In addition, the experience of defining national minorities and indigenous peoples in the Nordic countries (Sweden, Finland, Norway and Denmark) is examined in a comparative legal analysis. The authors conclude that national minorities and indigenous small-numbered peoples in the Russian Federation do have some similar features but still differ from each other. Indigenous are distinguished by their special historical connection with their ancestral territories of residence, which predetermines special legal regulation of the status of these peoples. Taking into account this circumstance, the article supports the usefulness of further development of Russian legislation on national minorities and indigenous small-numbered peoples, including taking into account the practices of foreign countries while noting their differences.
RELIGION AND LAW
LEGAL RELATIONS BETWEEN RELIGIOUS ORGANIZATIONS AND THEIR MINISTERS: LABOUR ACTIVITY OR SERVICE?
The religious ministers are undoubtedly important for every member of a religious community. Their participation in the life of the community, as the European Court of Human Rights has emphasized, is a manifestation of religion protected by Article 9 of the European Convention on Human Rights and Fundamental Freedoms. At the same time, in world practice, there are many models for determining the nature of the relationship between a religious community and its ministers, which often becomes the subject of judicial analysis. The article examines the decisions of the European Court of Human Rights, as well as those of other national courts, regarding prevailing approaches when considering cases on the nature of relations between religious associations and their ministers. The study explores the application by judicial authorities of the doctrine of “exceptions for ministers” (commonly known as the “ministerial exception”). The methodological basis of the study relies on the comparative legal method, referencing legislation and judicial practices established by the national courts of Austria, Hungary, the Czech Republic, Germany, Great Britain, Australia, New Zealand, Russia. Additionally, it considers cases in which applicants appealed to the European Court of Human Rights. The systematization method was used in an attempt to classify the cases into three groups. The study concludes that, in the reviewed court decisions, secular courts are allowed to examine the merits of dismissals in each case and determine the extent to which, in the opinion of the secular court, the actions of church authorities are justified. The author formulates several approaches to understanding the nature of the relationship between religious associations and their ministers. The author points out that the “ministerial exception” is primarily a legal concept in the United States. Comparable exceptions exist in European countries and other jurisdictions. However, these exceptions are not based on an argument about religious autonomy but on the special status of historically dominant churches.
CONSTITUTIONAL DISCOURSE: HUMAN RIGHTS
HUMAN RIGHTS AS PRINCIPLES OF LAW
The generally recognized “open nature” of human rights predetermines their understanding as principles of law. At the same time, the principles themselves can be interpreted in different ways. For the interpretation of human rights through them, the understanding of principles as a type of legal norms characterized by a high level of abstraction and allowing variability of implementation is adequate. Such a view of the principles of law is developed in the works of R. Dworkin and R. Alexy, who emphasize their moral character, possible multidirectionality, and potential conflict. However, the article substantiates a proper legal understanding of the principles of law. They are considered as purely legal requirements, ultimately going back to the principle of formal equality as equality in freedom, concretizing and developing it. This ensures the interconnectedness and consistency of all principles. Under this interpretation, human rights as principles of law express a variety of claims to a measure of freedom equally applicable to all persons, with all other principles of law being essentially designed to guarantee the proper safeguarding of human rights. The understanding of human rights as principles of law determines legal-doctrinal approaches to justifying the limits of their realization on the basis of mutual and proportionate restriction of everyone’s freedom. Principles of law, and above all human rights, are the basis for lawmaking in its formulation of rules, their judicial interpretation, and constitutional review. They limit the discretionary power of legislator and law enforcer. They allow resolution of cases on the merits even in the absence of a rule governing the particular case. In addition, the principles of law reveal the motives and ultimate reasons that justify and substantiate positive rules and judicial decisions. In the conditions of complexity and dynamism of modern social relations, it is the principles of law that allow adapting the existing rules to different situations, preserving the general sense of regulation expressed in the principle, including the social purpose of the relevant human rights, legal institutions, and legal procedures.