Judicial Doctrine and the Scholarly Concept of Russia's Constitutional Identity: A Historical Overview

The paper examines the history of the formation of the domestic judicial doctrine and the concept of Russia’s constitutional identity developed on its basis. The author draws attention to the fact that the initiator of this issue within Russian legal theory was the Constitutional Court of the Russian Federation, which introduced the relevant concept in one of its rulings. As noted in his publications by the Chairman of the Constitutional Court, V.D. Zorkin, an important impetus for addressing this problem was provided by certain judgments of the European Court of Human Rights. The paper analyzes the judgment where, in the author’s view, the vulnerability of Russia’s legal position as the respondent state became particularly apparent. This vulnerability was preconditioned by the underdevelopment of both the judicial doctrine and the scholarly concept of the country’s constitutional identity, as well as the underestimation of the achievements of Russian philosophy of law as a theoretical foundation for judicial interpretation. Special attention is devoted to the analysis of the argumentative potential of the libertarian-legal type of legal understanding, the application of which could have strengthened Russia’s legal position in the dispute by compensating for the insufficient development at that time of the issue of national constitutional identity. The analysis conducted leads the author to conclude that Russian legal theory has been insufficiently oriented toward the timely identification and theoretical reflection of pressing issues in contemporary legal practice (in this case, constitutional jurisprudence), and that it has underestimated the potential of the philosophy of law as an important cognitive instrument for understanding modern realities and resolving new and non-standard legal problems.

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