Конституционное балансирование в России: практика и перспективы

Translated title of the contribution: Constitutional Balancing in Russia: Practice and Perspectives

Yegeniy Anichkin, Julia Rudt

Research output: Contribution to journalArticlepeer-review

Abstract

The article is devoted to the study of the value approach to the analysis of constitutional disputes in the practice of the Constitutional Court of Russia. The research objective is to identify the features of the balancing constitutional values in constitutional judicial practice and to systematize the most frequently encountered options for balancing. For analysis system-structural, formal legal, comparative legal methods, methods of interpretation of law and forecasting were used. The study revealed the idea of a balance of constitutional values as a principle of constitutional interpretation. It is indicated that the Constitutional Court of Russia plays a subsidiary role in relation to the legislator in the search and establishment of a balance of constitutional values. Balancing is one of the methods of constitutional interpretation. Russian and foreign doctrines converge in the idea of balancing as an element, method of a rational decision-making in the constitutional legal dispute. Another similar element is the propensity for theoretical recognition of equal importance, the absence of a linear hierarchy of values. As the empirical base of the study, the final decisions of the Constitutional Court of Russia in the period of 2011 to 2017 were used. It has been found that the judgments of the Court most often refer to the value of the rights and freedoms of man and citizen (Article 2 of Russian Constitution). Since these references do not always have a significant value for argumentation, their template nature is indicated. Practice allows arguing that constitutional values, as enshrined in the Constitution, should be protected and balanced not only by the efforts of the constitutional interpretation, but by the efforts of all branches of law. Maintaining a balance of constitutional values becomes the task of all law enforcement entities and citizens. There are three frequently found balancing models in the Constitutional Court's judicial practice: based on hierarchical dominance; based on constitutional principles; delegated balancing. The main perspective of the development of balancing in judicial practice is associated with the improvement of the principle of competitiveness in the constitutional process. To do this, it is proposed to publish materials of constitutional cases and to add sections in the structure of judgments.
Translated title of the contributionConstitutional Balancing in Russia: Practice and Perspectives
Original languageRussian
Article number4
Pages (from-to)80-100
Number of pages21
JournalПраво. Журнал Высшей школы экономики
Issue numberS5
DOIs
Publication statusPublished - 2019
Externally publishedYes

Keywords

  • constitution
  • constitutional justice
  • legal interpretation
  • values
  • axiology
  • human rights

OECD FOS+WOS

  • 5.05.OM LAW

State classification of scientific and technological information

  • 10 STATE AND LAW. LEGAL SCIENCE

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