Russian Constitutional Development: Formal and Informal Practices

• Author: A. Medushevskiy
• Position: National Research University Higher School of Economics (Moscow, Russia)
• Pages: 100-127

BRICS LAW JOURNAL Volume VI (2019) Issue 3

RuSSIan ConSTITuTIonaL DEVELoPMEnT:

FoRMaL anD InFoRMaL PRaCTICES*

ANDREY MEDUSHEVSKIY,

National Research University Higher School of Economics

(Moscow, Russia)

https://doi.org/10.21684/2412-2343-2019-6-3-100-127

Transitional constitutionalism remains the subject of intensive political controversy. Based

on a project made possible by the Institute of Law and Public Policy (Moscow) this article

presents the analysis of the basic constitutional principles of pluralism, the separation of

powers, federalism, the independence of the judiciary and the guarantee of political rights

and freedoms. It describes the changing character of their implementation in dierent

areas of constitutional practices – legislation, constitutional justice, administrative activities

and informal practices, and the comparative level of constitutional deviations in each of

them. The important new expertise of this research is the concept and methodology of

the constitutional monitoring and recommendations for full-scale reforms in key areas

of Russian constitutional and political settlement. The author shows that the true choice

facing modern society is not between constitutionalism or its negation, which is a dilemma,

but between real and sham constitutionalism, with a wide variety of intermediate

options separating them. It is precisely this intermediate area which the author denes

as a transitional type of constitutionalism, the eld of collision between dierent political

stakeholders. This is an area of unstable equilibrium where the implementation of dierent

legal strategies and technologies may produce a denitive eect.

Keywords: Russian Constitution; constitutional principles; legislation; justice;

administration; formal and informal practices; constitutional reforms.

Recommended citation: Andrey Medushevskiy, Russian Constitutional Development:

Formal and Informal Practices, 6(3) BRICS Law Journal 100–127 (2019).

* This study (research grant No. 15-01-0014) was supported by the National Research University Higher

School of Economics Academic Fund Program in 2015–2016.

ANDREY MEDUSHEVSKIY 101

Table of Contents

Introduction

1. Fairness, Equality and Proportionality in Current Post-Soviet

“Law-Related Disputes”

2. The Concept of Constitutional Cycles

3. Real, Nominal and Sham Constitutionalism

4. Implementation of Five Constitutional Principles

in Comparative Perspective

5. Mechanisms and Parameters of Constitutional Dysfunctions

6. Re-Traditionalization in Russian Constitutional Development

7. Form of Government, Separation of Powers and Political Regime

in Transitional Society

8. Positive Law and Legitimacy: The Contribution of Constitutional Justice

in the Construction of Legal Reality

Conclusion: Aims of Constitutional Modernization

Introduction

The Russian Constitution of 1993 has played a critical role in the processes of

transition to democracy in Russia and elsewhere. I ts adoption led to the end and

denitive renouncement of a grandiose social experiment on building a communist

(socialist) society by utilizing physical force. Owing to this f act, the Cons titution

represents a social choice by Russian society in favor of democracy, liberal values

and human rights. On the one hand, this document is a full-edged representation

of the systemic changes seen worldwide at the end of the twentieth century. On the

other hand, it is an independent document that to a large extent has determined

the course of governmental changes in today ’s Russia and in other post-Soviet

countries. Contemporary discussions of the Russian Constitution, however, put aside

the issues as to what extent the Constitution has reected transitional processes

around the world; how the process of constitutional modernization has (or has not)

t into the context of post-Soviet social development in Eastern Europe; how the

Constitution has aected social changes occurring throughout Russia; what areas of

social tensions have been revealed during the course of constitutional development;

and, nally, given all the above, what the prospects for Russia’s constitutional system

are in the future.

When speaking of the signicance and prospects of the 1993 Constitution,

one should look at it from three perspectives: comparative (commonalities and

particularities in Russian constitutional development); historical (the past, present

and future of the Russian Constitution) and functional (how norms correlate with