Articles

On March 26, 2023, a member of the editorial board of the journal "Bulletin of Moscow University. Episode 11. Law", famous international lawyer, scientist and practitioner Vladimir Vladimirovich Golitsyn.

This message is devoted to the memory of the respected professor of the Department of Constitutional and Municipal Law August Alekseevich Mishin, his approaches to the study of law. These approaches helped students and colleagues to find key factors in assessing trends in the development of constitutionalism in foreign countries, to find shortcomings and assess the merits. On this basis, a message was made and a legal analysis of the approaches and decisions of the Supreme Court of the state was carried out. The Supreme Court of Wisconsin and the Supreme Court of United States in the case of Johnson v. Wisconsin Elections Commission on changing the map of electoral districts due to the fact that the executive branch presented by the governor from the Democratic Party and the representatives of the state legislature dominated by Republicans could not agree on this issue. Based on the results of the analysis, it is concluded that there are no clear standards for the American courts to conduct a comprehensive analysis of all circumstances due to the pressure exerted by those who form the American doctrine of constitutionalism. Thanks to the scientific report, it is possible to take a closer look at the process of involving the courts in political activities, the place of the court in the system of separation of powers and the conditions for the interaction of the court with other branches of power from the point of view of constitutional law.

The article attempts to study the development and current state of the institute of parliamentarism of Kazakhstan in the context of the constitutional reforms carried out. The main historical stages of its development from 1991 to 1995 are analyzed. The essence of the concept of parliamentarism in the narrow and broad senses of the word is considered, and several groups of scientists with different points of view on the position of parliamentarism are also identified in the course of the study. The constitutional foundations of the Kazakh institute of parliamentarism are revealed. The various reasons for the adoption of the new Basic Law in 1995, as well as the shortcomings of the previous Constitution, which led to a protracted parliamentary crisis, are analyzed. The paper defines the 5 stages of the development of independent Kazakh parliamentarism. The article describes in detail the 3 main constitutional reforms carried out in the Republic of Kazakhstan in 2007, 2017 and 2022, in terms of their impact on the process of improving the institution of parliamentarism. In the process of researching these reforms, the new functions and powers of the parliament to strengthen control over the government of the country are considered. The constitutional novel in the history of Kazakhstan, which establishes the limitation of the terms of office of the President of the Republic from two 5-year to one 7-year term, which undoubtedly affects the parliament, increasing its responsibility for the fate of the country, is analyzed, international experience is studied, according to which it is concluded that in such a developed country as the Republic of Korea such a constitutional mechanism is functioning successfully, and the country is consistently developing with a strong parliament along the democratic path.

The communication rights enshrined in Part 1 of Article 5 of the Basic Law of the Federal Republic of Germany — freedom of expression, freedom of information, press, broadcasting, and cinema (Kommunikationsgrundrechte) are of constitutive importance for German democracy, since the process of forming of public opinion, which is important for the functioning of democratic institutions, depends on the level of their guarantee. At the same time, due to the special persuasiveness of the audiovisual form of information presentation, broadcasting is the most significant means of influence. Public service broadcasting (öffentlich-rechtlicher Rundfunk) is central to the German broadcasting system, while the role of private broadcasters is secondary. The decisive importance of public broadcasting in shaping the political opinion of German citizens presupposes the existence of sufficient and effective constitutional and legal guarantees that exclude the instrumentalization of this institution by the state, industry, and other influential public groups. The article, taking into account the historical context and using examples from the legislation and practice of the Federal Constitutional Court of Germany, analyzes these guarantees, and also describes the basic constitutional and legal principles of the functioning of the broadcasting system in Germany. As a conclusion, a set of the basic essential characteristics of the German model of public broadcasting is fixed, which might be used for further critical consideration of this institution.

The events taking place in Central and Eastern Europe (primarily in Ukraine and Latvia) indicate a serious problem facing believers in these States, and are also a significant challenge to the adopted approach regarding the right to autonomy of religious associations, affecting and having significance for the entire European continent. Currently, the state authorities of Ukraine and Latvia are taking measures aimed at significantly limiting the activities of religious associations that have historically been in church-canonical connection with the Russian Orthodox Church. It seems that the actions of the State authorities of these countries can be characterized as excessive interference in the autonomy of religious organizations guaranteed by the Constitution of Ukraine and the Republic of Latvia, as well as the European Convention on Human Rights. Meanwhile, the ECHR has formed a stable practice defending the right to autonomy of religious associations in the states of Central and Eastern Europe, as well as guaranteeing protection from unjustified state interference in the internal affairs of the church. In this article, the author attempts not only to analyze the precedents already considered in the practice of the ECHR, but also to predict a possible Court decision regarding the actions of state authorities of Ukraine and Latvia on the way from politics to law.

Using examples of understanding the nature of constitutional principles and the application of the comparative legal method to the study of constitutionalism in the states of Central and Eastern Europe (CEE), the article shows the possibilities of the methodology of combining the techniques of “calculating” thinking and “comprehending reflection” proposed by M. Heidegger in research activities. In particular, the structure of the content of constitutional and legal principles (semantic core and periphery) and their dual regulatory impact on social relations (as basic guidelines for the activities of public authorities and additional tools for the protection of rights — along with detailed norms) is considered. The importance of conscious perception of the national experience of constitutional and legal construction as a basis for a more accurate choice of the direction of comparative legal research is shown by the example of the approach of Chinese authors. The nature of the “trap of simple choice” is revealed in relation to constitutional and legal values and paradigms of the development of constitutionalism. In particular, by limiting oneself to the ideological alternative of choosing between socialist and liberal values, the researcher can avoid understanding the true nature of constitutionalism. The main aspects of the movement of the CEE countries towards “new constitutionalism”, significant for the national doctrine and practice, are presented. The commentary and assessment of the transformation of attitudes towards liberal constitutional values in CEE (from full acceptance to selective rejection) are given, which should be taken into account in connection with the transformations of Russian constitutional law.

The article discusses the features of teaching municipal law at the Faculty of Law of Moscow University. This was influenced by various factors, the central place among which is the dynamics of ideas about the essence of local self-government. The issues of teaching municipal law at Moscow University are traditionally included in the range of tasks of the department related to the organization of state power — the department of state law, Soviet construction, now — the department of constitutional and municipal law. The teachers of the department have made and continue to make to the formation of local self-government and Russian statehood. Devoting their work to the problems of the organization and activities of local authorities, the teachers of the department, on the one hand, maintained the continuity of scientific views, strengthening the traditions of the national state-law school, and on the other hand, they created the foundation for future state-legal (constitutional-legal) transformations, sensitively responding to the requirements of the time, and sometimes ahead of them. Special attention is drawn to the fact that the issues of teaching municipal law at Moscow University are traditionally included in the range of tasks of the department related to the organization of state power — the department of state law and Soviet construction, now — the depart- ment of constitutional and municipal law. The paper points to the contribution that the teachers of the department have made and continue to make to the formation of local self-government and Russian statehood as a whole.

In this article, the author considers the problems associated with the modern formulation and implementation of the principle of unity of public authorities, state and municipal. Particular attention is paid to the latently existing public authority and the changes that need to be made to regional and federal legislation. The emphasis is on the implementation of social values and guidelines for the principles of organization of state and municipal authorities at different stages of state building. Based on the varying principles of Soviet and modern, it is shown that there is a lot of invariable characterizing the identity of Russian society. The search for unifying principles of interaction is submitted for discussion — the unity of public interests, based not on the principle of supremacy, but on the basis of weighing different interests, that is, finding a balance between the conflicting state and municipal. Such an approach will allow us to renew our perception through a synthesis of what is permissible, what is desired, and what should be.

The category of constitutional identity is now confidently used in the science of constitutional law and in resolving some disputes, but it remains not completely clear. The article is aimed at identifying the content of this category and the possibility of its application in practice. The article presents the meanings of the term “identity” and checks whether this term can be used in constitutional law, and if so, in what sense. Possible ways of finding the features of constitutional identity in the texts of constitutions (in preambles, among the foundations of the constitutional system, or provisions protected from change) are shown. The final conclusions concern the limits of the application of constitutional identity in constitutional disputes. It seems that constitutional identity can be used to resolve constitutional conflicts only if two conditions are met: fixing the features of constitutional identity, defined precisely as such (1), and carried out previously, not at the time of the decision, but in advance (2). It is these two conditions that will provide the necessary predictability and validity of decisions, in the adoption of which the category of constitutional identity was used for argumentation. Otherwise (if these conditions are not observed for whatever reason), the constitutional review body should, as far as possible, avoid using the category “constitutional identity” as an argument in resolving disputes.

The present-day Department of Constitutional and Municipal Law at the Faculty of Law of the M.V. Lomonosov Moscow State University inherits everything that is related to its areas of activity and even its name. In 1863, the University Statute established a separate chair at Moscow University to teach state law.