KUTAFIN UNIVERSITY
LAW REVIEW
Volume 1
September 2014
Issue 1
WHAT IS CONSTITUTIONAL LAW TODAY?
THE SCOTTISH INDEPENDENCE REFERENDUM:
PEACEFUL, CONSENSUAL, AND LAW-BASED
JURY TRIAL: THE RULE OF LAW OR NULLIFICATION?
IVAN IL'IN: RUSSIAN PATRIOT, LEGAL THEORIST,
AND DEFENDER OF THE RULE OF LAW
LEO TOLSTOY AND LAW
INTERPRETIVE APPROACH
for
INTERNATIONAL LAW
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KUTAFIN UNIVERSITY LAW REVIEW
Volume 1
Andrea Bonomi
(University of Lausanne)
William Butler
KUTAFIN UNIVERSITY
September 2014
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(Pennsylvania State University)
Peter Van Elsuwege
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Editors-in-Chief
Paul Kalinichenko
(Kutafi n University, Moscow)
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(Kutafi n University, Moscow)
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Oleksiy Kresin
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CONTENTS
Welcome Note ...................................................................................................4
LAW EVOLUTION
Constitutional Law: Notion and Sources
Lecture by Boris Strashun ................................................................................5
LEGAL CONFLICT MANAGEMENT
The Scottish Independence Referendum of September 2014:
Constitutional and International Aspects
Article by Alyson JK Bailes ............................................................................ 23
TOWARDS THE 150th ANNIVERSARY
OF THE ALEXANDER II JUDICIAL REFORM
The History and Challenges of Reintroducing Trial
by Jury in Russia
Article by Sergey Pashin ................................................................................ 41
LEGAL CLASSICS
On the Appearance of I. A. Il’in’s Legal Consciousness:
Towards the History of the Publication
Essay by William E. Butler ............................................................................ 55
EXECUTIVE POWER
Canadian Model for Centralized Delivery
of Legal Services and its Application in Russia
Article by Sergey Kabyshev ............................................................................ 80
SPORTS LAW
Limits of State Intervention and Non-Intervention
in the Sports Field
Article by Igor Ponkin and Alena Ponkina .................................................... 92
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CONTENTS
3
ECONOMIC INTEGRATION
Participation in International Trade Organizations
as an Indirect Means of Strengthening Human Rights
in the Russian Federation
Note by Bartosz Mendyk ............................................................................... 105
COMPARATIVE LAW OF HUMAN RIGHTS
The Russian Commissioner for Human Rights
and the European Ombudsman: Comparative Analysis
Note by Olga Gavrilova ................................................................................. 117
WTO LAW
Should the WTO Have Rules on Frivolous Claims
in its Dispute Settlement Understanding?
Note by Yulia Mogutova ............................................................................... 128
BOOK REVIEW
Two Books on the Top Shelf
Review by Maria Zakharova ......................................................................... 141
CONFERENCE REVIEW
Judicial Independence as Essential Foundation
of Justice and Peace
Review by Vladimir Zhbankov ..................................................................... 146
Volume 1 September 2014 Issue 1
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KUTAFIN UNIVERSITY LAW REVIEW
Dear readers,
On behalf of the Kutafi n University Law Review, let us be among the fi rst
to welcome you to the pages of our journal. We hope you will fi nd this periodical
as enjoyable as we do. This is one of the few English-language legal journals in
Russia.
The Kutafi n Moscow State Law University (MSAL) was founded in 1939
as a successor of the Judicial Courses. Today, the MSAL is the biggest and most
famous Law University within the territory of the former Soviet Union. About
18.000 students are studying different law disciplines behind the walls of the
MSAL at the moment.
The Kutafi n University Law Review (KULawR) was established by the
MSAL in 2014 as an editorial project aimed to spread legal knowledge generated
by leading Russian scholars all over the world. Their achievements have not
been accessible to respective non-Russian speaking audiences for a long time.
One of the main ideas of this journal is to fi ll that gap.
In addition, we welcome contributions from all legal researchers from
every corner of the world. We would like to bring the Kutafi n University Law
Review to the level of a new and authentically international law journal. It
presumes that the content of the periodical should refl ect actual, modern, and
innovative legal issues.
The contents of the KULawR cover different legal branches and
scholarships. We would be happy to focus on random topics of law, as well as
allied sciences – legal sociology, criminology, forensics, etc. The pages of the
KULawR are opened for a wide range of new and creative opinions.
We hope you will enjoy reading the Kutafi n University Law Review. All
additional information may be found on the journal website at www.kulawr.ru
Editors-in-Chief
Irina Alebastrova, PhD, Associate Professor
Paul Kalinichenko, Doctor of science (Law), Professor
www.kulawr.ru
Volume 1 September 2014 Issue 1
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5
LECTURE
CONSTITUTIONAL LAW:
NOTION AND SOURCES
By Boris Strashun
Author
Doctor of science (Law), Institute of State and Law, Academy of Sciences
of the USSR, 1978
Professor, Kutafi n Moscow State Law University
E-mail: 29-29@mail.ru
Abstract
This paper consists of two main parts. The fi rst one gives an understanding
of the term “Constitutional Law” and its different meanings: as a system
of legal regulations, legal studies, and an academic discipline. It’s worth
mentioning that some scholars defi ne Constitutional Law as a Political Law.
This is also correct, even if nowadays, some constitutions tend to include
certain issues that seem to be absolutely irrelevant; for example, the ones
concerning the institutions of marriage and family. This results from the fact
that a constitution-maker considers those issues to have a political meaning.
Regarding methods of legal regulation, they are not much different from
the ones used in other branches of law, which are: obliging, permitting
(authorizing), and prohibiting. At the same time, the author also mentions
the method of general principles declaring. Constitutional Law as legal
studies is a result of its norms and social relations research, which elaborates
recommendations for lawmakers and relevant state bodies concerning the
proper development and interpretation of Constitutional Law norms. Most
of the law universities in Russia include Constitutional Law of the Russian
Federation and Foreign Countries, as well as Comparative Constitutional
Law, as a part of scholar program. The second part of this paper defi nes the
sources of Constitutional Law. There are also some ideas of constitutionalism.
Keywords
Constitution, constitutionalism, Constitutional Law
Volume 1 September 2014 Issue 1
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KUTAFIN UNIVERSITY LAW REVIEW
§ 1. The Term “Constitutional Law” and “State Law”.
Object, Subject and Methods. Scholarship and Studies
1. First of all, Constitutional Law is a system of legal norms. Most of the
scholars consider that system to be a branch of law, which is not absolutely
correct. Constitutional Law is more the basis of law than a branch of law. What’s
more, Constitutional Law contains essential principles of different law branches
(Criminal Law, Civil Law, etc.).
Until the end of the last century, Constitutional Law had the name of
“State Law” in Russia. It’s worth mentioning that the term “State Law” includes
all kinds of norms, which regulate organization and activity of a state, i.e.
Administrative Law and Process, Judicial Law and Process. Constitutional
Law is considered to be a fundamental part of Public Law. Sometimes it may
seem diffi cult to differentiate Public Law from Private Law for the reason of the
interlacing of Economics and Ecological Law and the infl uence of the European
Union and International Law.1
The Constitutional Law of Russia, as well as that of the countries with the
Anglo-Saxon and Roman systems, includes all the norms that have constitutional
meaning, regardless of the source that contains them.
The term “Constitutional Law” originates its name from the name of basic
law, the Constitution, which appeared in the time of Ancient Rome. This term
used to mean “order”, “structure”. The system of law norms that is nowadays
called Constitutional Law used to regulate only a structure of public authority in
Ancient Rome.
In modern times, there are just a few countries that still use the term “State
Law”. Most of the modern states defi ne a system of fundamental legal norms as
Constitutional Law.
It’s worth mentioning that Constitutional Law appeared in a relatively
peaceful way in just a few countries. In most of the cases, it emerged as a result
of revolution or other kind of violence. But anyway Constitutional Law became
fi rmly established upon fi nding a compromise between contradictory social
interests. This is very important for society in general because it has a risk of
1
H Maurer, I Staatsrecht, Grundlagen. Verfassungsorgane. Staatsfunktionen. 6,
überarb und ergänzte Auflage (2010) München: C.H. Beck 8.
www.kulawr.ru
Volume 1 September 2014 Issue 1
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Boris Strashun
Constitutional Law: Notion and Sources
7
self-destruction without that compromise. What’s more, this concept is exactly
what the social and political nature of Constitutional Law means.
The object of Constitutional Law should, fi rst of all, include political
relations, i.e. relations concerning the organization and functioning of political
authority, especially public authority. Constitutional Law sometimes can
be defi ned as Political Law, which is also correct, even if nowadays, some
constitutions tend to in-clude certain issues that seem to be absolutely irrelevant
for politics; for example, the ones concerning the institutions of marriage and
family. In particular, the Constitution of the Federal Republic of Brazil contains
a lot of similar provisions, so it means that constitution makers consider them to
be politically important in this case.
The subject of Constitutional Law is formed by the norms regulating social
relations, which have to be refl ected in the Constitution.
One of the most important Russian Constitutionalists and Legal Scholars,
O.E. Kutafi n, stated as follows:
The most important subject within Constitutional Law is a group of social
relations, which form a ground for the state organization.
Another group of social relations is formed by the relations that have
a basic level of signifi cance for those spheres through which they have
come into existence. Such relations are not obligatory and they can
become elements of Constitutional Law, just in case where there is a
state interest2
.
Art. 10 of the Russian Federation Constitution of 1993, declares: “State
power in the Russian Federation comes into effect on the grounds of division
between legislative, executive, and judicial powers. The respective authorities of
the legislative, executive, and judicial powers are independent”.
So, state power in the Russian Federation shall be exercised on the basis
of its division into legislative, executive, and judicial powers. The respective
authori-tative bodies of the legislative, executive, and judicial powers shall be
independent. Certain provisions of the Constitution, as well as other laws, specify
the limits of every branch of power independence, in addition to the forms of
their interaction.
2
Kutafin O.E. Predmet konstitutsionnogo prava. M.: Norma, 2001 (OE Kutafin,
The Subject of Constitutional Law (Norma 2001)).
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KUTAFIN UNIVERSITY LAW REVIEW
Certain provisions of the Constitution, as well as other laws, describe and
specify the limits of every branch of power independence, in addition to the forms
of their interaction.
Regarding the other group of relations (non-obligatory ones), Art. 200 of
the Brazilian Constitution, is a very good example of those relations that defi ne
the competence of the Common Health System.
It’s worth mentioning the opinion of the French Professor J.-P. Jacqué on
the subject: “As its subject, Constitutional Law defi nes political relationships
with the state power as the most important component.”3
Like many other branches of law, Constitutional Law uses three methods
for legal regulation: obliging, permitting (authorizing) and prohibiting. For
example, according to § 2 of Art. 17 of the Brazilian Constitution, political parties
are obliged to register their statutes with the Superior Electoral Tribunal;
according to § 3 of that article, they are permitted to have free access to radio
and television; and § 4 of the same Article prohibits them to involve any military
organization.
At the same time, Constitutional Law implements the method of general
principles declaring. For example, Art. 1 of the Polish Constitution of 1997
declares: “the Republic of Poland shall be the common good of all of its
citizens”. The method of defi nitions (normative determinations) is also rather
common for Constitutional Law. Art. 20 of the German Fundamental Act of
1949, declares: “the Federal Republic of Germany is a democratic and social
state”.
2. Constitutional Law as legal studies is the result of the research of relevant
norms and relations. It elaborates recommendations for lawmakers (other
relevant state bodies) concerning the proper development and interpretation of
Constitutional Law norms. But the lawmakers are not always eager to follow those
recommendations. The problem is that sometimes, a theory is too far-removed
from the reality of practice. But it is more common that legislative, administrative
and even judicial practice steps aside from the norms of Constitutional Law,
either because of misunderstandings of law norms idea, or because of some sort
3
J.P. Jacqué, Konstitutsionnoe Pravo i politicheskiye instituty. Uchebnoe posobiye /
Perevod s fr. Maklakova V.V. M.: Yurist, 2002 (J.P. Jacqué, Constitutional Law and
Political Institutions. Tutorial (Translated from French by V Maklakov, Lawyer 2002)).
www.kulawr.ru
Volume 1 September 2014 Issue 1
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Boris Strashun
Constitutional Law: Notion and Sources
9
of evil intent. Unfortunately, this kind of phenomenon became more and more
common in the last decades.
3. Scholar program of Russian law universities includes Constitutional
Law of the Russian Federation, Constitutional (State) Law of Foreign
Countries and Comparative Constitutional Law. Constitutional Law of the
Russian Federation among others includes Municipal Law, Electoral Law and
Constitutional Judiciary. An academic program and educational materials on
Russian Constitutional Law are structured according to the structure of the
Russian Federation Constitution.
Foreign textbooks are different. First of all, they often contain a brief
presentation of a general theory of Constitutional Law, or even of a State,
subsequently presenting parts that characterize Constitutional Law institutes.
The typical example of a Constitutional Law textbook is the one written by Karel
Klima, the Czech Professor of Law.4
The fi rst part of it includes general provisions,
which characterize the nature of the European Constitution. The subsequent
part is devoted to the history and provisions of the Czech Constitution. Finally, it
contains a part that deals with Constitutional Court Practice.
There is a different approach in “Constitutional and Administrative Law”
by the Principal Lecturer of Law at De Montfort University, N. Parpworth.5
The
textbook, fi rst of all, contains the essential principles of the Constitution, followed
by its structure, and thereafter, by sources of Public Law. It also includes the
judicial review of administrative actions, alternative means of compensation,
and fi nally, provisions on civil liberties. Another British textbook, which has
the same title, written by Professor J. Alder,6
includes general principles
(political values: liberalism, republicanism in spite of the monarchic form
of government, equality, democracy; sources of the Constitution; historical
outline; an overview of the main constitutional institutions; the territory and
regions; the rule of law; the separation of powers; parliamentary supremacy;
the European Union), followed by government institutions (Parliament, the
Crown, ministers, and departments), Administrative Law (the grounds for
4
5
6
K Klíma , Ústavní právo. 4. vyd. Plzeň: Aleš Čeněk, 2010.
N Parpworth, Constitutional & Administrative Law. (4-th edn, Oxford University
Press 2006).
J Alder, Constitutional and Administrative Law (Palgrave Macmillan 2009).
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