The constitutional principle of proportionality in foreign and Russian law: a theoretical and practical analysis
The article is devoted to a comparative legal study of the European principle of proportionality and the American method of weighing interests, their origins, common and distinctive features, socio-cultural and historical foundations, the application of the principle of proportionality in the Russia...
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| Main Authors: | , , , , |
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| Format: | Article |
| Language: | English |
| Published: |
2020
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=8076210 |
| Source: | Revista Brasileira de Direito, ISSN 2238-0604, Vol. 16, Nº. 2, 2020 (Ejemplar dedicado a: RBD. Mai-Ago/2020) |
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| Summary: |
The article is devoted to a comparative legal study of the European principle of proportionality and the American method of weighing interests, their origins, common and distinctive features, socio-cultural and historical foundations, the application of the principle of proportionality in the Russian legal order. Historically, the origins (roots) of the European principle of proportionality go back to the German administrative-legal doctrine, and the American method of weighing as an initial principle is associated with private law and only later was extended to the public law sphere. The article assesses the impact of these principles on the Russian legal doctrine and law enforcement practice.Purpose: The main purpose of the article is to identify the general and distinctive features of the European principle of proportionality and the American method of balancing interests in order to comprehend on this basis the Russian legal model for ensuring the balance of private and public interests. Tasks: to explore the historical, socio-cultural, doctrinal foundations of the genesis of the European principle of proportionality and the American method of weighing interests; to identify the common and special features characteristic of these methods; to show the influence of these methods on Russian doctrine and law enforcement practice; compare the Russian principle of balance between private and public interests with the European principle of proportionality; formulate recommendations and suggestions for improving Russian law enforcement practice.Methods: historical and legal, logical, formal and legal, systemic and structural, method of interdisciplinary legal research, method of system analysis.Discussion: the European principle of proportionality and the American method of weighing interests, although they do not belong to new phenomena of legal thought, nevertheless, due to their fundamental importance both at the constitutional and other sectoral levels of development of law, are constantly in the center of the field of vision of legal thought abroad, as well as in Russia. The emergence of various approaches to understanding the legal provision of the balance of private and public interests is causing lively, sometimes quite sharp, discussions in the scientific field. The article focuses on the historical, socio-cultural, political and legal features of the development of the European principle of proportionality and the American method of balancing interests, which leads to both close interaction and convergence, as well as the need for their joint scientific research, which can give a significant theoretical and practical effect.Conclusion: the article states that the distinctive features of the European principle of proportionality and the American method of weighing interests are not of an essential, paradigmatic nature, which allows us to conclude that in this case there are no grounds for a fundamental opposition to each other of the above-named constructive models as methods of understanding legal reality, as well as legal means of ensuring a balance of private and public interests. The development of the European principle of proportionality has a significant impact and impact on the formation of Russian political and legal thought and practice in the field of interaction between private and public law, ensuring an organic combination of private and public interests, which is reflected in the legal position formulated by the Constitutional Court of the Russian Federation concerning the principle of ensuring proportional observance, balance of private and public interests in the implementation of legal regulation of public relations. |
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