The Principle of Constitutional Identity and Individual Rights: In Search of the Golden Ratio

The phenomenon of the constitutional identity of the Russian state in the context of conventional and constitutional conflicts is currently acquiring a special meaning. The need to protect state sovereignty, upholding the traditional model of relations between the individual, society and the state are the urgent tasks facing the Russian Federation being the main focus of the constitutional reform of 2020. In this context, the purpose of the study was the legal analysis of the constitutional identity of the Russian state as a frontier of compromise between the European and national systems of protection of individual rights and freedoms. Disregard for the constitutional identity of the state may lead to its "erosion" and the adverse impact of internationalisation on the foundations of the constitutional order. Guided by the principle of constitutional identity, a state can arrive at the best and legitimate solution in a particular case, which would not contradict national law, but at the same time would not ignore the norms of international treaties. The application of both general scientific and special methods of cognition, the formal-legal method and the method of legal modelling, made it possible to see in the constitutional identity not only the boundary of compromises in Russia's relations with inter-state bodies, but also the distinctiveness of constitutional processes. The conducted analysis of the domestic legal acts led to the conclusion that the principle of constitutional identity is an inviolable foundation of the constitutional state and its model of ensuring the individual rights and freedoms in the traditional system of values. The indicators and trends of crime for the period from 1991 to 2020 are given.

Constitutional Principle of Social Solidarity as a Basis for the Consolidation of the Russian Society and States

The current circumstances related to the Covid-19 pandemic, which the entire world community had to face, raised sharply the question of mutual responsibility of the society and the state. At the same time, restrictions imposed at the state level are most often assessed by citizens as excessive. As a result, the number of studies devoted to establishing the legitimacy of restricting human rights and freedoms in the conditions of the epidemic is growing, however, such a phenomenon as social solidarity remains practically ignored. It is social solidarity, understood as the cohesion of the society (not only in the face of common threats and challenges), that can become the basis for constructive interaction between the society and the state. The aim of the study was the legal understanding of social solidarity as a new constitutional principle of the Russian state, which presupposes the possibility of establishing permissible restrictions on individual rights and freedoms in the conditions of protecting the foundations of the constitutional state from the modern threats. The absence of a normative definition of social solidarity in the current legislation of Russia, despite the constitutional reform carried out in 2020, entails difficulties in the correct interpretation of this phenomenon. The use of both general scientific and special methods of cognition of socio-legal phenomena — the formal legal method and the method of legal modeling — made it possible to see in social solidarity not only the legal structure, but also the leading moral and ethical principle of interaction between the society and the state. The analysis of the domestic legal acts made it possible to conclude that the constitutional principle of social cohesion of the society and the state in the face of various threats with the observance of such elements as the rule of law, the constitutional provision of individual rights and freedoms and the conditions for their permissible restriction is the basis for the inviolability of the state and its constitutional system.

The Common Good

Chapter 4, which begins Part II, addresses the moral theory from the African tradition according to which one is obligated to promote the common good without violating individual rights. This principle has been advanced by Kwame Gyekye, one of the most widely discussed African moral philosophers of the past twenty-five years. His ‘moderate communitarian’ ethic, although focused on promoting well-being, differs from Western utilitarianism, such that one cannot argue against the former by invoking well-known criticisms of the latter. The chapter advances fresh reasons for rejecting Gyekye’s welfarist approach to morality, principally on the ground that it does a poor job of capturing several intuitions salient in the African tradition. Sometimes permitting great inequalities of wealth, being competitive in the economic sphere, and undermining cultures can best improve well-being without violating individual rights, yet many African philosophers would judge these actions to be wrong to some degree.

People's Sovereignty in the System Presidential Threshold in the Perspective Siyasah Al-Syar’iyyah

ABSTRACTUU no. 7/2017 concerning General Elections, is the legal protection for the implementation of the 2019 General Election using the system presidential threshold. The problem is, this is seen as castration of individual rights where power is in the hands of the people. Equal treatment before the law and politics in the context of nominating the President and Vice President is limited to parties that are part of and meet the threshold in the 2014 general election. This research found that the implementation of the system Presidential Threshold in Indonesia was an embodiment of the people's sovereignty itself. Where the individual directly determines the leader, and in making the requirements to become a leader, and the DPR is a representation of the people. This eliminates concerns in the community when the system will be ratified Presidential Threshold in Law Number 7 of 2017 concerning Elections so that the people's sovereignty in the threshold system is by siyasah syar’iyyah where ahlul halli wa al-‘aqdi can determine candidate leaders and Bai’ah is a form of the general election in determining the leader.Keywords: People’s Sovereignty, Presidential Threshold, Siyasah al-Syar’iyyah.\ABSTRAKUU No. 7 /2017 tentang Pemilihan Umum dasar hukum dilaksanakannya Pilkada Umum Tahun 2019 dengan menggunakan system presidential threshold. Persoalannya adalah, hal ini dipandang sebagai pengebirian hak-hak individu dimana kekuasaan berada di tangan rakyat. Perlakuan yang setara di depan hukum dan politik dalam rangka mencalonkan Presiden dan Wakil Presiden menjadi terbatas hanya pada partai yang menjadi bagian dan mencukupi -threshold di pemilihan umum 2014. Riset ini menjumpai bahwa pelaksanaan sistem Presidential Threshold di Indonesia merupakan perwujudan dari kedaulatan rakyat itu sendiri. Di mana individu secara langsung menentukan pemimpin, dan dalam pembuatan persyaratan untuk menjadi pemimpin, yang mana DPR adalah representasi dari rakyat. Hal ini menghapuskan kekhawatiran di masyarakat ketika akan disahkannya sistem Presidential Threshold dalam Undang-Undang Nomor 7 Tahun 2017 tentang Pemilu, sehingga kedaulatan rakyat dalam sistem ambang batas sudah sesuai dengan siyasah syar’iyyah dimana ahlul halli wa al-‘aqdi memiliki kapasitas untuk menentukan calon permimpin dan Bai’ah adalah bentuk dari pemilihan umum dalam menentukan pemimpin.Kata Kunci: Kedaulatan Rakyat, Presidential Threshold, Siyasah Syar’iyyah.

Is the assessment under Article 8 ECHR for migrants justifiable?

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

A Leadership Role: Creating an Ethics of Diversity

Although we desire peace and tranquility, harmony and social stability, life can be harsh and brutish. We also acknowledge exploiting the values of others for self- aggrandizement negates their sacred personhood. And although we dance on the summit of individual rights and liberties conceding their personal and private nature, we need to understand democracy is built on a collectivity of like-minded people, on a foundation of dialogic civility, communal accountability, and a moral sensibility that is pubic and open to criticism and adjustments.

Compulsory vaccination: Public benefit or individual’s right limitation

Mass vaccination and its controversial assessments have become key issues under the covid-19 pandemic. Outbreaks of diseases and popularity of anti-vaccination movements require a study of legal foundations for medical interventions and freedom restrictions which are considered as the result of serious risks to health and sanitary-epidemiological well-being of the population. The question is what should be prioritized - paternalistic powers of the state or individual rights and freedoms to decide what risks to take. In terms of responsibility distribution, people often consider vaccines as more dangerous than infectious diseases [17], which makes compulsory vaccination a legal phenomenon of particular importance. In the contemporary legislation, there are various national approaches to the individual autonomy and freedoms. In some countries, vaccination is directly linked to the possibility to study (USA), in others it is associated with public health (Australia), financial sanctions (Poland) or freedoms limitations (Pakistan). In terms of public health ethics, vaccination is similar to the use of seat-belts in cars, and compulsory vaccination policy is ethically justified by the same reasons as mandatory seat-belt laws [8]: at first, they were met with great opposition; later the use of seat belts acquired the significance of not only a legal but also a social norm precisely because it was made mandatory [1]. The similar approach is applicable to vaccination: the policy of compulsory vaccination can make it a social norm. However, in the legal perspective, compulsory vaccination is a compulsory medical intervention which raises the question about whether it is possible to limit individual rights and freedoms in the name of public health safety. The article considers contradictory issues in the state policy of compulsory vaccination and its legal support. The author presents a definition of compulsory vaccination, identifies its types, describes the specifics of its national legal regulation and sanctions for the refusal to be vaccinated, and explains its social necessity and expediency as a public good.