To see the other types of publications on this topic, follow the link: CONSTITUTIONAL NORMS.
Journal articles on the topic 'CONSTITUTIONAL NORMS'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 50 journal articles for your research on the topic 'CONSTITUTIONAL NORMS.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse journal articles on a wide variety of disciplines and organise your bibliography correctly.
1
Shustrov, Dmitry. "Supra-constitutional norms in constitutional law." Sravnitel noe konstitucionnoe obozrenie 30, no. 1 (2021): 100–127. http://dx.doi.org/10.21128/1812-7126-2021-1-100-127.
Full textAbstract:
The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.
2
Barseghyan, Sose. "Manifestation of Direct Application of Constitutional Norms in the Field of Law Enforcement." Bulletin of Yerevan University C: Jurisprudence 14, no. 2 (39) (December 14, 2023): 61–68. http://dx.doi.org/10.46991/bysu:c/2023.14.2.061.
Full textAbstract:
The article refers to the application of constitutional norms by the courts and the interpretation given in the practice of the Constitutionl Court. In particular, the right of a person to seek judicial linitgation to protect his/her constitutional rights, the jurisdiction of the courts to apply the Constitution, the relantionship between the principle of supremacy of Constitution and the concept of implementantion of Constitution, the duty of ordinary courts to appeal to the Constitutional court and simultaneously justify unconstitutionality of a legislative norm, have become the subject of discussion. The article proposes an effective application of the constitutional nroms, introduction of flexible and applicable mechanisms for constitutional justice.
3
Protsevskiy, V. A., E. V. Gorlov, and S. A. Zaporozhets. "The Impact of Constitutional Norms and Principles on Constitutional Economics." Lex Russica, no. 5 (May 26, 2022): 89–97. http://dx.doi.org/10.17803/1729-5920.2022.186.5.089-097.
Full textAbstract:
The paper considers the problems of constitutional and legal regulation in the sphere of the Russian economy; the thesis that the Constitution of the Russian Federation defines the essential features of the economy is investigated and substantiated. On the one hand, the effectiveness of constitutional legal norms depends on the state of the economy, and on the other hand, it is possible to ensure the effectiveness of the economy only through constitutional norms (norms-principles).The paper examines the genesis of constitutional legal regulation in the field of economic relations. The norms and principles enshrined in the Soviet constitutions are analyzed. The foundations of the economic system in the Soviet period were characterized by the absence of private property rights, free competition and other economic principles. Proclamation of the new economic policy in the 20s of the 20th century entailed the formation and development of private law trends. Many of its supporters were subjected to repression in the 30s of the 20th century. The adoption of the new Constitution in 1993 led to the emergence of new directions in social development and the formation of principles in legal regulation in the economic sphere. The fundamental principles of the Constitution of the Russian Federation have the most powerful influence on the development of market relations. They determine the effectiveness of the state system, state regulation of the economy, establish the economic and social functions of the state. The place and role of the constitutional economy in the system of legal reality of Russia are determined. The constitutional foundations of the state are considered as elements of legal reality. The steady expansion of the subject of constitutional regulation in the aspect of economic relations is noted. The Constitution does not just set general standards for the regulation and development of the economic sphere, but influences the norms of other branches of law in such a way that they acquire constitutional and legal content and should be interpreted in the light of constitutional values.
4
Ali, Mohammad Mahrus. "Konstitusionalitas dan Legalitas Norma dalam Pengujian Undang-Undang Terhadap Undang-Undang Dasar 1945." Jurnal Konstitusi 12, no. 1 (May 20, 2016): 172. http://dx.doi.org/10.31078/jk12110.
Full textAbstract:
The Constitutionality of norms are inseparable with the model of judicial review of laws against the 1945 Constitution of the Republic of Indonesia. It can be see from the reviews of abstract and concrete norms by the Constitutional Court of the Republic of Indonesia. The review of conrete norms in the decision of judicial review basically does not constitute authority of the Constitutional Court. Theoretically, norms review should be starting from abstract norms as the implications of the Constitutional Court authority. In order to review the constitutionality of laws, norms and abstract norms should be interpreted by the Constitutional Court. While concrete norms focuse more on the implementation or application of the norm itself. The application of norms cannot be separated from the legality of the norms, while constitutionality of norms is related to its coherence with with the Constitution. If the basis of norms review is the 1945 Constitution of the Republic of Indonesia then abstract norms should be the main subject matter to be reviewed. Otherwise, when concrete norms are the subject matters to be reviewed, then the implementation of the norms that have been applied in concrete cases. This research is using normative juridical method with case approach in which 15 (fifteen) verdicts of the Constitutional Court of Republic of Indonesia over the period of 2003-2013 in judicial review of laws against the 1945 Constitution are analyzed. The focus is on the ratio decidendi of the Constitutional Court judges in determining the constitutionality of norms. The result of this research shows that, the Constitutional Court, in the judicial review of laws against the 1945 Constitution of the Republic of Indonesia does not separate abstract norms and concrete norms dichotomously. In an attempt to protect the constitutional rights of citizens, the absence of legal remedies that can be further pursued by the applicant, as well as to provide legal certainty, the Constitutional Court, granted, in its decision, the review of concrete norms. Even though the Constitutional Court remains firm in satting that it is a concrete norms, the applicant’s petition is granted in part which is concerning the review the abstract norms only. Whereas, with respect to the verdict of the constitutional court that rejected the review of concrete norms, it is because the review is not on the constitutionality of norms but the application of the norms and also concerns a petition for an interlocutory decision which is irrelevant to the subject matter of the case. The review of concrete norms in a rejecting ruling is a form of prudence by the Constitutional Court in order not to prosecute the matters which constitute the authority the other judicial bodies, namely the Supreme Court and the lower courts. As for the ruling which declared a petition inadmissible, the Constitutional Court stated that the applicant has no legal standing and the Constitutional Court does not have the authority to test these norms. In the future the Constitutional Court needs to affirm the status of norms before further examining in depth the petition filed. In addition, the Constitutional Court should be conferred with the authority to hear constitutional complaint and constitutional question in order to create the harmonization of interpretation based on the Constitution.
5
Burazin, Luka, and Svan Relac. "Primjena Ustava od strane (hrvatskih) redovnih sudova." Zbornik Pravnog fakulteta u Zagrebu 73, no. 5 (December 29, 2023): 841–79. http://dx.doi.org/10.3935/zpfz.73.5.02.
Full textAbstract:
The paper deals with the “application of the Constitutionˮ by ordinary courts. On the basis of literature review and preliminary Croatian case law research, six paradigmatic cases of the application of the Constitution by ordinary courts were selected (facts of the case directly regulated by constitutional rules, statutory gaps, avoidable in abstracto antinomies between constitutional and statutory norms, avoidable in concreto antinomies between constitutional and statutory norms, unconstitutionality of individual judicial and administrative decisions, and unavoidable in abstracto antinomies between constitutional and statutory norms). The cases selected were analyzed by using the method of argumentative analysis of judicial reasoning, within the framework of internal and external schemes of justification of judicial decisions, in examples (by and large) designed on the basis of Croatian case law.
6
Kowalik-Bańczyk, Krystyna. "Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law." German Law Journal 6, no. 10 (October 1, 2005): 1355–66. http://dx.doi.org/10.1017/s207183220001436x.
Full textAbstract:
Just one year after Polish accession to the European Union, the Polish Constitutional Tribunal was provided the opportunity to clarify its position regarding the supremacy of EC and EU law. In its two recent judgments, it joined the long tradition of a rather uneasy relationship between national Constitutional Courts and European Court of Justice (ECJ). The uneasiness of this relationship results from an ever-unsolved dilemma – which of the two judicial fora should have the last word in case of conflict between European norms and national constitution norms? The solution given by European Court of Justice in a series of early judgments seems obvious. It opted for an absolute supremacy of EC norms over national norms. On the other hand, the national Constitutional Courts usually accept the supremacy of EC law - but only as a consequence of transfer of some competences under strict conditions set by national constitutions. They thus accept the concept named by Neil Walker “constitutional pluralism”, meaning that the states are no longer the sole source of constitutional authority. However, national constitutions are still the “primary” source of any such authority.
7
Sychev, Vitalii B. "Content and forms of participation of the Constitutional Court of the Russian Federation in lawmaking." Izvestiya of Saratov University. New Series. Series Economics. Management. Law 21, no. 2 (May 25, 2021): 223–31. http://dx.doi.org/10.18500/1994-2540-2021-21-2-223-231.
Full textAbstract:
Introduction. The judicial constitutional review authorities ensure the supremacy and direct application of the constitutions. They also participates in lawmaking activities. Constitutional review authorities can participate in lawmaking activities directly or circumstantially. There are two kinds of the direct participation of such authorities in lawmaking activities: legislative initiative and participation in lawmaking activities in connection with the implementation of the constitutional review. The methodology of research is based on general scientific and special legal research methods. Theoretical analysis. Some authors note that the decisions of the constitutional review authorities can modify conditions of public life. Authors often emphasize that court decisions that rules certain norms as unconstitutional have the same goals as statutory acts. Empirical analysis. Constitutional courts administer a special kind of lawmaking, such as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. “Positive” lawmaking is connected with the adoption of statutory acts, which regulate the activities of the constitutional courts. “Negative” lawmaking consists in ruling certain legal norms and sources of law unconstitutional and making them void. By means of “adjusting” lawmaking constitutional courts do not rule the norms as completely unconstitutional, but constitutionally interpret them. “Interpretative” lawmaking consists in clarifying legal norms of constitutions. The constitutional review authorities may also provide recommendations to the legislative authorities. Results. The constitutional review authorities can directly participate in lawmaking activities as a legislative initiative or in connection with the implementation of the constitutional control as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. Circumstantial participation of such authorities in lawmaking activities is administered by adopting special messages.
8
Medvid, A. B. "Constitutional metamorphosis: analysis of amendment procedures to the Basic Law in the context of global transformations." Analytical and Comparative Jurisprudence, no. 6 (December 27, 2023): 142–47. http://dx.doi.org/10.24144/2788-6018.2023.06.24.
Full textAbstract:
The article is devoted to the study of constitutional metamorphoses in the context of global transformations, in particular the analysis of the procedures for introducing changes to the basic law in different countries of the world. Modifications in modern geopolitical, economic and socio-cultural conditions caused the need to revise and adapt constitutional norms in order to bring the latter to the requirements of modern challenges and realities.
Thescientific article examinesvarious approaches to the legal mechanism of amending constitutions in countries with various legal traditions and political systems. The author conducts a comparative analysis of such procedures, paying attention to legislative initiatives, the role of parliament, the participation of civil society and other aspects.
It has been shown that the key aspects of the modification of constitutions are the following issues: a) legitimacy of foundations and subjects that initiate the process of constitutional reform and have the authority to make changes to the constitution; b) the content of constitutional changes and the threshold at which amendments to the constitution introduce transformations into its principles and essence; c) characteristics of legal mechanisms and procedures (models) for amending constitutions, which, on the one hand, guarantee the legitimacy of updated constitutions, and on the other hand, serve as a legal barrier against "constitutional extremism”, that is, unfounded and dangerous for the individual, society and states by constitutional transformations.
It is emphasized that in the context of constitutional metamorphoses, the following forms of transformation of constitutions should be distinguished: a) amendments to basic laws; b) introduction of amendments to the constitutions; c) change of constitutions.
It has been established that constitutional metamorphoses in the context of global transformations indicate radical changes and transformations in the constitutional system of various countries or even at the world level, in particular: globalization of constitutional norms; expansion of the catalog of rights and freedoms; changes in the system of the power mechanism; ecological constitutional protection; constitutional innovation; global constitutional standards.
9
Pustovalova, I. "The Constitution as a constituent document on the economic system of society." Uzhhorod National University Herald. Series: Law, no. 69 (April 15, 2022): 65–71. http://dx.doi.org/10.24144/2307-3322.2021.69.10.
Full textAbstract:
The article discusses the doctrinal definition of the potential capabilities of the constitution to establish the principles of the economic system of society, the relevant normative tools with which the constitutionalization of the economic system takes place, and it also turns out how the backbone (constituent) norms relating to the economic system are presented in the constitutions of various "generations". Based on the results of the study, the conclusion is substantiated that the impact of the constitution on the economy is most tangibly manifested in the intersection of the constituent and economic functions of the constitution. The author argues that the implementation of the constituent function of the constitution in relation to the economic system of the country is carried out through a number of so-called specialized norms or atypical legal prescriptions. In particular, the establishment (establishment) of the economic system at the level of the main law is carried out with the help of norms-goals, norms-tasks and norms-principles. All these norms have a backbone (constituent) character in relation to the economic system and give a general purposeful nature to the law enforcement process in this area. The article emphasizes that the system-forming (constituent) norms related to the economic system can be presented in the preamble, as well as structural parts devoted to the principles of the constitutional order or specifically the constitutional principles of the country's economic system. The author notes that the system-forming (constituent) norms relating to the economic system are most widely represented in the constitutions adopted in the period from the end of the Second World War to the present, that is, in the constitutions of the third and fourth generations. This is due to the strengthening of state influence on the economy, the complication of the economic policy of the state and the expansion of the subject of constitutional and legal regulation.
10
Fedorenko, V. L., and M. V. Fedorenko. "Principles of constitutional law: essence, content and system." ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, no. 13 (October 1, 2022): 160–66. http://dx.doi.org/10.33663/2524-017x-2022-13-25.
Full textAbstract:
The publication is devoted to identifying the essence and content of the category of “principle of constitutional law” and identifying its relationship with related but not identical categories: values, ideals, foundations, principles, objectives, mandatory rules, laws, etc. Genesis and development of ideas about the principles of constitutional law and their consolidation in constitutions and constitutional acts are analyzed. The systematization of the main types of relevant principles and groups is carried out: principles of constitutionalism and constitutional doctrine, principles of science and education of constitutional law, principles of the constitution, as well as principles of constitutional law-making, law enforcement and justice (jurisdictional) activities. It is argued that modern constitutions enshrine in the norms-principles the most important values of the constitutional order: the rule of law, rule of law, freedom and democracy, the inviolability of fundamental human rights, etc. But their real embodiment presupposes unification and interaction of civil society with the state. Key words: principle, principle of constitutional law, system of principles of constitutional law, principle of constitutionalism, principle of the Constitution, principles of the science of constitutional law.
11
Harisudin, M. Noor, and Fika Alfiella. "KEWENANGAN POSITIVE LEGISLATURE MAHKAMAH KONSTITUSI DALAM PENGUJIAN UNDANG-UNDANG TERHADAP UNDANG-UNDANG DASAR 1945." Constitution Journal 1, no. 1 (June 30, 2022): 1–18. http://dx.doi.org/10.35719/constitution.v1i1.4.
Full textAbstract:
This study aims to analyze the authority of the Constitutional Court in setting new norms in cases of judicial review of the Constitution. Basically the Constitutional Court is a branch of judicial power, but the fact is that the Constitutional Court has several times made decisions containing new norms in judicial review of the Constitution. This research uses normative juridical research and library research (library) which focuses on library activities to obtain data without conducting research in the field. The results of this study are: 1) The authority of the Constitutional Court has been regulated explicitly in Article 24 C of the 1945 Constitution, as such, the decision of the Constitutional Court which is constitutionally positive in Indonesia is not contradictory/constitutional. 2) The decision of the Constitutional Court is final and binding since it is officially pronounced or read out in an open plenary session which is open to the public. The final decision of the Constitutional Court in addition to having binding power, also has evidentiary power and executorial power, the Constitutional Court's decision is the final word for the enforcement of a legal norm/stipulation whose position is equal to the law itself. 3) Since its establishment until now, the Constitutional Court has received requests for Judicial Review (PUU) as many as 1041 (one thousand and forty-one) cases. Among them there are several decisions that establish new norms which are then followed up by the government, one of which is Constitutional Court Decision Number 128 /PUU-XIII/2015. Then PERMENDAGRI Number 67 of 2017 was born Studi ini bertujuan untuk menganalisis kewenangan Mahkamah Konstitusi dalam menetapkan norma baru pada perkara pengujian undang-undang terhadap Undang-Undang Dasar. Pada dasarnya Mahkamah Konstitusi merupakan cabang kekuasaan yudikatif namun faktanya Mahkamah Konstitusi sudah beberapa kali menetapkan putusan yang berisi norma baru dalam pengujian undang-undang terhadap Undang- Undang Dasar. Penelitian ini menggunakan jenis penelitian yuridis normatif dan library research (kepustakaan) yang memusatkan kegiatan pada perpustakaan untuk memperoleh data tanpa melakukan riset di lapangan. Hasil dari penelitian ini adalah : 1) Kewenangam Mahkamah Konstitusi telah diatur secara eksplisit dalam Pasal 24 C Undang-Undang Dasar 1945, sebagaimana hal terssebut maka putusan Mahkamah Konstitusi yang bersifat positive legislature secara konstitusional di Indonesia tidak bertentangan/Konstitusional. 2) Putusan Mahkamah Konstitusi bersifat final dan mengikat (final and binding) sejak resmi diucapkan atau dibacakan dalam sidang pleno terbuka yang terbuka untuk umum. Putusan final Mahkamah Konstitusi selain memiliki kekuatan mengikat, juga memiliki kekuatan pembuktian dan kekuatan eksekutorial, maka putusan Mahkamah Konstitusi menjadi kata akhir dari pemberlakuan sebuah norma/ketentuan undang-undang yang kedudukannya setara dengan Undang-Undang itu sendiri. 3) Sejak berdiri hingga sekarang, Mahkamah Konstitusi telah menerima permohonan Pengujian Undang-Undang (PUU) sebanyak 1041 (seribu empat puluh satu) perkara Diantaranya terdapat beberapa putus an yang menetapkan norma baru yang kemudian ditindak lanjuti oleh pemerintah salah satunya, Putusan Mahkamah Konstitusi Nomor 128/PUU-XIII/2015. maka lahir PERMENDAGRI Nomor 67 tahun 2017.
12
Półtorak, Nina. "Od zasad ogólnych do tożsamości Unii Europejskiej - normy konstytucyjne w orzecznictwie Trybunału Sprawiedliwości Unii Europejskiej." Studia Prawnicze / The Legal Studies, no. 2 (226) (December 31, 2022): 187–211. http://dx.doi.org/10.37232/sp.2022m.
Full textAbstract:
Normy konstytucyjne są obecne w prawie unijnym przede wszystkim za sprawą orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej. Początkowo były to normy konstytucyjne państw członkowskich, a następnie zasady konstytucyjne samej Unii Europejskiej. W artykule wyodrębniono kilka grup znaczeniowych i funkcjonalnych norm konstytucyjnych. Przedstawiono normy konstytucyjne państw członkowskich jako normy wpływające na rozwój prawa unijnego, następnie normy konstytucyjne państw członkowskich w ich relacji z prawem UE, a wreszcie normy konstytucyjne samej UE i konstytucjonalizację prawa UE w orzecznictwie TSUE prowadzącą do sformułowania pojęcia tożsamości Unii Europejskiej. Przeanalizowano także motywy, znaczenie i cele procesu konstytucjonalizacji prawa UE w orzecznictwie TSUE. Constitutional norms are present in EU law mainly due to the jurisprudence of the Court of Justice of the European Union. Initially, these were the constitutional norms of the Member States, and then the constitutional principles of the European Union itself. The article, adopting the perspective of the CJEU, distinguishes several meanings and functional groups of constitutional norms. It presents the constitutional norms of the Member States as norms that influence the development of EU law, then the constitutional norms of the Member States in relation to EU law and finally the constitutional norms of the EU itself and the process of constitutionalising EU law in the jurisprudence of the CJEU, leading to the concept of the identity of the European Union. The article analyses the motives, meaning and objectives of this concept in the case law of the CJEU.
13
Meyer Resende, Madalena. "A Holy Alliance between the Catholic Church and Constitution-Makers? The Diffusion of the Clause of Cooperation in Third Wave Democracies." Politics and Religion 11, no. 1 (May 8, 2017): 55–78. http://dx.doi.org/10.1017/s1755048317000311.
Full textAbstract:
AbstractWhat explains the adoption of the regime of cooperation between church and the state in the democratic constitutions of Spain and Poland, while Portugal maintained a regime of strict separation in the United States and French tradition? The explanation could be that a consensual constitution-making process resulted in a constitutional formula accommodating religion and guaranteeing religious freedoms. Alternatively, the constitutional regime of cooperation could result from the diffusion of international norms to national constitutions, in this case, the cosmopolitan law of the church. The article process-traces the constitution drafting processes and finds that the emergence of a constitutional consensus among secularist and constitutional drafters in Spain and Poland was based on the Vatican Council II doctrine and facilitated by the intervention of the Catholic hierarchies. In Portugal, the violent context of the revolution excluded the church, and the constitutional regime of strict separation between church and state was adopted.
14
Eddyono, Luthfi Widagdo. "Independence of the Indonesian Constitutional Court in Norms and Practices." Constitutional Review 3, no. 1 (August 2, 2017): 71. http://dx.doi.org/10.31078/consrev314.
Full textAbstract:
Article 24 (1) of the 1945 Constitution States after the third amendment, “the judicial power shall be independent in administering justice so as to uphold the law and equality.” The Indonesian Constitutional Court is one of the performers of the independent judicial power who plays a significant role in the enforcement of the constitution and the principle of the state based on the law by its authority and obligations as determined by the 1945 Constitution. This paper intends to study the Indonesian Constitutional Court to find out whether the Constitutional Court in exercising its constitutional authority can be independent. Also, this article will examine not just institutional independence but also judges independence to understand current issues related to the role of ethics and conduct of judges. The independence of the Indonesian Constitutional Court supported by the 1945 Constitution after the amendments from 1999 until 2002, and further stipulated in Law. However, it can be said that this institution has ups and downs of public trust due to corruption cases conducted by constitutional justices. Also, in several political instances showed efforts of political institutions to limit the authority of the Constitutional Court. In its experiences, the Constitutional Court succeeded in convincing the parties through its decisions and strengthening institutional independence against the influence that tried to destabilize its institutions. The Council of Ethics of Constitutional Judges that maintains the values and behavior of judges also continuously works and efficient enough in overseeing the ethics and conduct of judges. The decision of the Ethics Council may also be accepted as a proportional decision.
15
Авакьян, Сурен, and Suryen Avakyan. "CONSTITUTIONAL LEGAL REFORMS: OBJECTIVE AND SUBJECTIVE FACTORS." Journal of Foreign Legislation and Comparative Law 2, no. 1 (March 16, 2016): 0. http://dx.doi.org/10.12737/18201.
Full textAbstract:
This article analyzes objective and subjective factors, which influence on appearance of constitutions and on current constitutional legal reforms. The author makes a conclusion that such development often features a significant role in ensuring action of constitutional norms of processes in sub-constitutional regulation. Key factors in appearance of new constitutions and constitutional reforms overall are economic and especially political crisis. Objective factors of importance of constitutional legal reforms may totally depend on subjective circumstances. The author also discusses the idea of “live constitution”, which becomes more actual in Russian Federation together with the role of Russian Constitutional Court in ensuring this idea. The author makes a general conclusion: constitutional reforms are not being in possession of objective approaches, based on necessary development of constitutional aspects of economy, social relationships and political organization of state, but depend heavily from subjective reluctance to implement constitutional reforms.
16
Пресняков, Михаил, and Mikhail Pryesnyakov. "Equal to the Constitution: the Sources of Law of Highest Legal Force in the Russian Federation." Journal of Russian Law 4, no. 8 (August 8, 2016): 0. http://dx.doi.org/10.12737/20906.
Full textAbstract:
In article the question of validity of the Constitution of the Russian Federation and some other sources of the right which can also possess the highest validity is considered. In particular the author comes to a conclusion that legal positions of the Constitutional Court of the Russian Federation possess the highest validity and in total with the constitutional provisions represent the actual Constitution. On the other hand, both laws on amendments to the Constitution, and the universally recognized norms of international law on the validity stand below constitutional precepts of law. Acts of the Constitutional Assembly of the Russian Federation may in future be qualified as having the highest judicial effect. Such acts may abolish or change any provision of the present Constitution. At the same time the universally recognized norms of international law and the laws of the Russian Federation regulating amendments to the Constitution of the Russian Federation as independent juridical acts and sources of constitutional law are inferior as compared with the constitutional legal norms.
17
Kucina, Irēna. "Polish Constitutional Tribunal’s Judgement Regarding Supremacy of the Polish Constitution Over EU Law: The Next-Level Debate on the “Last Word’’." Journal of the University of Latvia. Law 15 (November 16, 2022): 204–14. http://dx.doi.org/10.22364/jull.15.14.
Full textAbstract:
2021 judgement K 3/21 of Poland’s Constitutional Tribunal (Trybunał Konstytucyjny, hereinafter – the Tribunal) concerns compatibility of some norms of Treaty on European Union (TEU) with Polish constitution.
According to the Tribunal, contested norms of TEU are incompatible with relevant norms of the Polish constitution. It also suggested that Polish government institutions follow national constitutional rules in case of any conflicts.
In essence, the Tribunal ruled that Polish constitution shall supersede TEU in specific cases brought before the constitutional court.
This article aims to explore the contents of Tribunal’s judgement, analyse its legal rationale, reflect upon relationship between EU law and national constitutional laws from a broader legal and political perspective, and draw conclusions regarding the next steps.
18
Faiz, Pan Mohamad. "Perlindungan terhadap Lingkungan dalam Perspektif Konstitusi." Jurnal Konstitusi 13, no. 4 (December 20, 2016): 766. http://dx.doi.org/10.31078/jk1344.
Full textAbstract:
Nowadays there is a tendency in many countries to protect the environment by incorporating general principles of environment into a state or a regional constitution. This article aims to examine the extent to which environmental protection can be provided through the adoption of those constitutional norms. This study was conducted using a qualitative methodology with a normative approach and library research derived from court decisions, law and regulations, books and journal articles. It concludes that the Indonesian Constitution contains constitutional norms for the environmental protection. However, these constitutional norms are still positioned as a subsidiary or supporting factor in the fulfillment of human rights and the national economy. In order to strengthen the environmental protection by the Indonesian Constitution, it requires a reformulation of related constitutional norms by positioning the environment more as the basic values in the state administration and national economic activities.
19
PARK, JONGHYUN. "A Review of the Constitutional Court's Use of International Human Rights Norms." Korean Constitutional Law Association 28, no. 3 (September 30, 2022): 97–143. http://dx.doi.org/10.35901/kjcl.2022.28.3.97.
Full textAbstract:
Since the World War, international cooperation has been made to preserve the peace and interests of the human community, and representative results include the creation of international organizations and the establishment of international human rights treaties and norms(conventions). In particular, as the issue of human rights protection is recognized as a significant governmental matter, each country is striving to find a means to secure the legal effectiveness of international human rights norms within the country. However, given that the contents of international human rights norms are generally similar to the contents of the constitutional basic rights of the countries that accepted them, it has been discussed that it is necessary to incorporate international human rights norms into the Constitution and recognize the same effect as the Constitution (or constitutional basic rights). However, there is a counterargument that the constitutionalization of international human rights norms cannot be evaluated as desirable because it could undermine the foundation of the national legal system and people’s sovereignty. In addition, it may be questioned whether the constitutionalization of international human rights norms must be premised in securing the legal effectiveness of international human rights norms and their usefulness in constitutional adjudication. This article, focusing on the actual cases of the Constitutional Court of Korea, reviewed what legal and systematic status the Constitutional Court has recognized in international human rights norms and how they have been used in actual adjudication. According to this review, it seems the Constitutional Court sometimes directly used international human rights norms as constitutional norms(standard of review), but a close analysis of related decisions shows that the Court does not use international human rights norms as a direct criterion for constitutional adjudication and uses them as supplementary material for interpreting constitutional basic rights and principles. In particular, the Constitutional Court shows a pragmatical attitude of using it as a supplementary material for constitutional interpretation without judging the legal status of international human rights norms. The Constitutional Court's strategy of using international human rights norms as significant material for constitutional adjudication without shaking the legal system is a dynamic constitutional interpretation process that can localize the universal content of international human rights norms while maintaining the public autonomy of members of the legal community. Through this, international human rights norms will be able to secure a balance of universality and locality, legitimacy and effectiveness, abstraction and specificity, moral legitimacy and democratic-political legitimacy. However, the Constitutional Court is generally considered passive in using international human rights norms in constitutional interpretation, and, in reality, only a few international human rights norms are used, and furthermore, there is no in-depth argument for justification of use of international human rights norms in cases, so it is confirmed that international human rights norms are used superficially and decoratively. In order to improve this, it is necessary to consider preparing a system or practice that actively refers to and properly considers international human rights norms in constitutional adjudication. Above all, it is necessary to fully review related international human rights norms and discussions in the process of constitutional interpretation and establish a faithful method of argumentation of connection and integration that ultimately converts discussions of international human rights norms into constitutional discourse.
20
Yerzhanova, F. A., and M. Yu Abdakimova. "Constitutional and legal aspects of the ratio of international and domestic law." Bulletin of the Karaganda University “Law Series” 97, no. 1 (March 30, 2020): 12–20. http://dx.doi.org/10.31489/2020l1/12-20.
Full textAbstract:
The article discusses the content and role of constitutional legal regulation of the ratio of domestic and international law in Kazakhstan and foreign countries. The authors show the domestic and foreign specifics of the constitutional regulation of the correlation of national and international law, different approaches of legislators to fixing the correlation of domestic and international law in the Basic Laws are indicated. The article also addresses the problems of interaction between international and constitutional law. The authors highlight theoretical and practical issues related to the incorporation of international law into the legal systems of states by the Constitutions of foreign countries and the Republic of Kazakhstan. Based on the comparative legal analysis, the features of fixing the correlation of domestic and international law in the constitutions of foreign countries are revealed. The issues of fixing the norms of general international law and international treaties in the Constitutions of various countries are also considered. Conclusions have been made, in particular, that the Constitution of the Republic of Kazakhstan as a whole is in line with global trends in the development of constitutional law, due to universal globalization and internationalization of law; about the need for further scientific development of theoretical and practical issues relating, for example, to the conceptand content of universally recognized principles and norms of international law, their place in the hierarchy of legal systems of states. As one of the directions for further improvement of constitutional legislation, a proposal has been formulated to include in the constitutional and legal law provisions on universally recognized principles and norms of international law on human rights.
21
Lailam, Tanto. "Konstruksi Pertentangan Norma Hukum dalam Skema Pengujian Undang-Undang." Jurnal Konstitusi 11, no. 1 (May 20, 2016): 18. http://dx.doi.org/10.31078/jk1112.
Full textAbstract:
The study elaborated on the construction of “conflict of legal norms” in constitutional review scheme. There are eleven problems as result of this study, which include: The ideology of the state “Pancasila” as a standard review of “conflict of legal norms” act against 1945 constitution; Constitutional court has a review of act passed before and after 1945 Constitution amendment with standard of 1945 constitution; 1945 constitution is “the living constitution” for the enforcing of law and justice; Constitutional court has authority to review of act against 1945 constitution by vertical and horizontal perspective; enforceability aspect of constitutional review is a part of material review, not formal review; the meaning of “conflict of legal norms” must be comprehend elaborated in the decisions to enforcing of law and justice; Constitutional Court does not used priority of the original intent interpretation and remained unfulfilled of other model interpretation if original intent interpretation caused ineffectiveness of constitution; non constitution be permitted for the formal review, but in material review is not implement; “nemo judex idoneus in propria causa” of procedural law principle can remained unfulfilled by “ius curia novit” principle to promote of the 1945 constitution; the formal review of “conflict of legal norms” can remained unfulfilled by utility principle to priority of legal substance; the retroactive decision caused legal uncertainly.
22
Muhammad Taufiq Hafid, Willy Talentaniko, and Yudi Pratama Tanjung. "Antinomi Kewenangan Mahkamah Konstitusi dalam Menguji Peraturan Pemerintah Pengganti Undang-Undang." Amsir Law Journal 2, no. 1 (September 23, 2020): 1–11. http://dx.doi.org/10.36746/alj.v2i1.27.
Full textAbstract:
Government Regulation a Substitute for laws (Perppu) is president right to regulate something in terms of compelling urgency. Perppu issued by the president must be immediately determined by the House of Representatives to be declared rejected or accepted. Article 24C Constitution of Republic Indonesia 1945 stipulates that authority of Constitutional Court is to only examine the law against Constitution of Republic Indonesia 1945, not the Perppu.
However, Constitutional Court through decision No. 138/PUU-VII/ 2009 states that the Constitutional Court has authority to examine Perppu against Constitution of Republic Indonesia 1945. The Perppu made by president make a new of legal norms that give rise to new legal status, new legal relationships and new legal consequences. Constitutional Court interprets that norms contained in Perppu are as binding as norms in the law. In conducting tests, Constitutional Court does not distinguish between formal and material laws.
23
Yenny, Oktavani. "PERLUASAN WEWENANG MAHKAMAH KONSTITUSI SEBAGAI PENGAWAL KONSTITUSI." TANJUNGPURA LAW JOURNAL 4, no. 1 (August 6, 2020): 39. http://dx.doi.org/10.26418/tlj.v4i1.41787.
Full textAbstract:
Becoming one of the materials inside the fifth amendment of Undang-Undang Dasar Negara Republik Indonesia 1945 (The 1945 Constitution of Republic Indonesia), Constitutional Court authority now has become one of the essential concerns given that the function as "the guardian of the constitution" it became crucial in the protection of the constitutional rights of citizens. Along with times, violations of citizens constitutional rights are no longer based solely on legal norms, but violations committed against the application of norms by state institutions or public bureaucratic institutions (Constitutional Complaint). In addition, the need for institutions that deal with constitutional questions over the existence of a legal norms whose constitutionality is doubtful (Constitutional Question) as well as the authority of the Judicial Review carried out by institutions holding judicial power, called the Supreme Court and the Constitutional Court, led to a dualism of Judicial Review which turned out to be vulnerable to presenting legal issues. The methodology used in this study is normative juridical with a qualitative approach and using literatures. From the results of this study it was concluded that the need for additional of Constitutional Complaint and Constitutional Question authority as the authority of the Constitutional Court as well as a one-stop Judicial Review system in the Constitutional Court became very important carrying out its function as a guardian of the Constitution.Menjadi salah satu materi dalam Amandemen kelima Undang-Undang Dasar Negara Republik Indonesia Tahun 1945, kewenangan Mahkamah Konstitusi kini menjadi salah satu perhatian penting karena mengingat fungsinya sebagai the guardian of the constitusion menjadi krusial dalam perlindungan terhadap hak-hak konstitusional warga negara. Seiring dengan perkembangan zaman, pelanggaran hak-hak konstitusional warga negara tidak lagi hanya berdasarkan pada norma hukum, namun pelanggaran yang dilakukan atas penerapan suatu norma oleh lembaga negara atau lembaga birokrasi publik (Constitutional Complaint). Selain itu, perlunya lembaga yang menangani pertanyaan-pertanyaan konstitusional atas keberadaan suatu norma hukum yang diragukan konstitusionalitasnya (Constitutional Question) serta kewenangan Judicial Review yang dijalankan oleh lembaga pemegang kekuasaan kehakiman, yaitu Mahkamah Agung dan Mahkamah Konstitusi menimbulkan dualisme Judicial Review yang ternyata rentan menghadirkan persoalan hukum. Metodologi yang digunakan dalam penelitian ini berupa yuridis normatif dengan pendekatan kualitatif dan menggunakan bahan kepustakaan. Dari hasil penelitian ini disimpulkan bahwa perlunya penambahan kewenangan Constitutional Complaint dan Constitutional Question sebagai kewenangan Mahkamah Konstitusi serta sistem satu atap Judicial Review di Mahkamah Konstitusi menjadi sangat penting sebagai bentuk pelaksanaan fungsinya sebagai pengawal Konstitusi.
24
Нежинская, К. С. "HISTORICAL HERITAGE IN CONSTITUTIONAL NORMS." VESTNIK OF THE EAST SIBERIAN INSTITUTE OF THE MINISTRY OF INTERNAL AFFAIRS OF THE RUSSIAN FEDERATION, no. 4(107) (December 25, 2023): 66–77. http://dx.doi.org/10.55001/2312-3184.2023.17.89.006.
Full textAbstract:
Введение. Целью исследования стало изучение различных подходов к трактовке понятия идеология, процесса закрепления и развития государственной идеологии в России. Анализ закономерностей развития идеологической функции государства был проведен через призму аксиологического подхода к пониманию права и сущности Конституции Российской Федерации, ее развитии в национальном законодательстве. Материалы и методы. Нормативную основу исследования составили Конституция Российской Федерации, федеральное законодательство, а так же нормы документов стратегического планирования, направленных на формирование идеологической функции российского государства. Методологическим фундаментом исследования выступает общий диалектический метод научного познания, а также методы дедукции, анализа, синтеза и другие инструментарии, по средствам которых стало возможным изучить и проанализировать закрепление, становление и развитие идеологической функции российского государства. Результаты исследования дают возможность по-новому взглянуть на статью 13 Конституции Российского Федерации. В статье предпринята попытка доказать, что идеологическая функция российского государства раскрывается через конституционные ценности, которые в свою очередь конкретизируются в национальном законодательстве и являются воплощением компромисса интересов триады «человек, общество, государство». Выводы и заключения. В ходе анализа норм, регулирующих общественные отношения в сфере идеологической функции государства, выявлено, что понятия «конституционная ценность» и «духовная ценность» идентичны. Конституционная ценность является ценностью высшего порядка, так как происходит от конституционной нормы. Воплощение и толкование конституционной нормы раскрывает основное содержание идеологической функции государства, а анализ норм национального законодательства, направленных на сохранение духовных ценностей российского общества подтверждает эту гипотезу. Introduction: the purpose of the study was to study different approaches to the interpretation of the concept of ideology, the process of consolidation and development of state ideology in Russia. The analysis of the regularities of the development of the ideological function of the state was carried out through the prism of the axiological approach to the understanding of law and the essence of the Constitution of the Russian Federation, its development in the national legislation. Materials and Methods: The normative basis of the study is the Constitution of the Russian Federation, federal legislation, as well as the norms of strategic planning documents aimed at forming the ideological function of the Russian state. The methodological basis of the study is the general dialectical method of scientific cognition, as well as the methods of deduction, analysis, synthesis and other tools by means of which it became possible to study and analyse the consolidation, formation and development of the ideological function of the Russian state. The Results of the Study: provide an opportunity to take a fresh look at Article 13 of the Constitution of the Russian Federation. The article attempts to prove that the ideological function of the Russian state is revealed through constitutional values, which in turn are specified in national legislation and are the embodiment of a compromise of interests of the triad "man, society, state". Findings and Conclusions: In the course of analysing the norms regulating social relations in the sphere of ideological function of the state, it was revealed that the concepts of "constitutional value" and "spiritual value" are identical. The constitutional value is a value of the highest order, as it comes from the constitutional norm. The embodiment and interpretation of the constitutional norm reveals the main content of the ideological function of the state, and the analysis of the norms of national legislation aimed at preserving the spiritual values of the Russian society confirms this hypothesis.
25
Sadovnikova, G. D. "30 Years of the Constitution of the Russian Federation: Traditional Values and New Priorities." Actual Problems of Russian Law 18, no. 10 (September 18, 2023): 45–53. http://dx.doi.org/10.17803/1994-1471.2023.155.10.045-053.
Full textAbstract:
On the eve of the 30th Anniversary of the Constitution of Russia, the author makes an attempt to evaluate the Russian basic law, the content of the norms enshrined in the Constitution for their compliance with traditional values, i.e., spirituality, conciliarity, and civilizational identity inherent in the peoples of Russia. The anniversary date makes it possible to comprehend the meaning of traditional values, their reflection in the basic laws of the Russian State adopted in different historical periods. The author examines approaches to the concept of constitutional (constitutionally significant, constitutionally protected) values expressed in the legal standings of the Constitutional Court of the Russian Federation. The author elucidates various interpretations of the concept of «constitutional values» in the works of modern researchers, proves their relationship with the concept of «traditional values.» The conclusion is substantiated that only the goals, principles and priorities that are based on traditional values will be provided with popular support and will be able to become real prospects for constitutional development.
26
Wabuke, Emmah Khisa Senge. "Possibilities of New Approaches to Gender, Security and Constitutionalism: A Living Gender Probe into Kenyan National Security Architecture in the Constitution." Verfassung in Recht und Übersee 56, no. 1 (2023): 191–212. http://dx.doi.org/10.5771/0506-7286-2023-1-191.
Full textAbstract:
This paper situates itself within existing feminist constitutionalism analyses by noting that constitutions and constitutional processes are gendered and that constitutional norms may have different consequences for different genders. However, it attempts to extend these existing theories to interrogate how, if at all, feminist constitutional approaches may make credible interventions into the national security architecture given in the constitution. To this end, this paper proposes ‘living gender’ as a model of analysis. This model requires a deliberate inclusion of gender in the architectural design of constitutional institutions, which in this case, is the Kenyan National Security Framework. As with most feminist approaches, living gender is sceptical of rights-based clauses on equality and non-discrimination that do not interrogate the underlying masculine structures of constitutions. In this paper, I propose a three-pronged approach, including, ontological, locus and content concerns. To test this model, this paper uses the national security architecture in the Constitution of Kenya, 2010 as a case study.
27
Irklienko, A. "Loyalty to the Constitution of Ukraine as the main type of legal understanding." Uzhhorod National University Herald. Series: Law 1, no. 73 (December 9, 2022): 53–56. http://dx.doi.org/10.24144/2307-3322.2022.73.9.
Full textAbstract:
The article is devoted to the critical review of peculiarities of philosophical and legal substantiation of the issue of fidelity to the Constitution of Ukraine as the main type of legal understanding. It has been generalized that the supremacy of the Constitution of Ukraine creates in the modern conditions of international integration and processes of globalization the problem of coordination and legal provision of the priority effect of the constituent and basic norms of intra-state law and norms of international and European law (as well as various segments of the integration law). It has been summarized that modern understanding of the supremacy and higher legal power of the Constitution of Ukraine is worth to be related to the concept of fidelity to the Constitution of Ukraine as the determining type legal understanding. It has been emphasized that fidelity to the Constitution of Ukraine as legal and cultural-semantic concept and type of legal understanding allows identification of constitutional and moral values, which are guided by the interpretation, implementation or actualization of constitutional norms. The key idea of the concept of «fidelity to the Constitution» – is a special type of constitutional legal understanding. Adherence to such legal understanding – is an indispensable guarantee of respect for the Constitution of Ukraine, advocacy in law-making and law-enforcement practice of the priority of constitutional provisions, ensuring their stability and carrying out careful interpretation, inadmissibility of arbitrarily expanding interpretation of constitutional norms, constitutional responsibility. It has been found that the category of «fidelity» has got not only a semantic relationship with derivatives of word «fide», but also with words denoting rational verification: fidelity is correspondence to the truth; correctness; complete likeness or correspondence to something (question of verification or authenticity). Fidelity to the Constitution can be said in the sense of professing faith in the Constitution, and in the sense of rational substantiation and verification of the conformity of other legal acts, actions, etc. with the Constitution. The following semantic nuances of fidelity to the Constitution of Ukraine as a type of legal understanding have been concretized: fidelity to the Constitution of Ukraine as to the legal act; fidelity to the Constitution of Ukraine as a set of norms of the current constitutional legislation; fidelity to the Constitution of Ukraine as to constitutional values established in the Constitution; fidelity to the Constitution of Ukraine as to constitutional ideals; fidelity to the Constitution of Ukraine as formed real constitutional and political practice; fidelity to the Constitution of Ukraine as consistency in the implementation of constitutional values; fidelity to the Constitution of Ukraine as the effectiveness of the constitutionalization of the legal order (the process of constitutionalization acts as an indicator of fidelity to the Constitution).
28
Berchenko, Hryhorii. "General Characteristics of the Unamendable Norms of the Constitution." Philosophy of law and general theory of law, no. 2 (January 25, 2023): 78–92. http://dx.doi.org/10.21564/2707-7039.2.269185.
Full textAbstract:
The article considers the phenomenon of unchanging provisions of the constitution, their evolution, different classifications. Immutable provisions are considered narrowly – as provisions that are not subject to any changes, as well as criteria (principles), which the changes made should notcontradict. Synonymous concepts denoting immutability are considered – absolute entrenchment, the clause of eternity, stone provisions. The idea of supra-constitutionality, however, is seen as a different phenomenon from the unchanging provisions of the constitution. It is claimed that thematerial (substantive, substantive) requirements for change were not common from the beginning (although the situation has changed quite a few centuries). As practice shows, immutability can be not only formally established in a positive constitutional text. Existing examples lead us to thinkabout the important role of judges who interpret a positive constitutional text. In this case, the constituent power speaks not only through the positive text of the constitution, but also through the judges (for the Kelzen model of constitutional control – the judges of the constitutional court).The unchanging provisions themselves can be changed, as evidenced by relevant examples from practice (albeit isolated). In addition, history knows examples of departure from the positively enshrined immutable provisions (in the case of a rupture of constitutional continuity). Even if theprovisions remain unchanged, there may be no specific jurisdiction to monitor compliance. The absence of explicit immutability does not mean that the practice has not formed implicit criteria of immutability. However, even combined explicit and implicit immutability can still not claimuniversalism in constitutional law.
29
Shinar, Adam. "Deconstructing Mixed Constitutions." Law & Ethics of Human Rights 16, no. 1 (May 1, 2022): 167–92. http://dx.doi.org/10.1515/lehr-2022-2005.
Full textAbstract:
Abstract A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a constitution “mixed.” Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions.
30
Tymchenko, Leonid. "International Legal Norms in the System of the Ukrainian Constitution." Baltic Yearbook of International Law Online 15, no. 1 (July 29, 2016): 181–90. http://dx.doi.org/10.1163/22115897-90000065b.
Full textAbstract:
This article studies influence of international legal norms on the Ukrainian Constitution. Special attention is given to the provisions of Article 9 of the Constitution which regulates the implementation of international treaties in the legal system of Ukraine. The creation and main directions of activity of the Constitutional Assembly are analyzed. The author arrived at the conclusion that the main drawback of the current Constitution is the declarative nature of some constitutional provisions.
31
Mocherad, Anna. "Decision of the Constitutional Court of Ukraine as interpretation legal acts." Visegrad Journal on Human Rights, no. 6 (March 14, 2024): 133–45. http://dx.doi.org/10.61345/1339-7915.2023.6.22.
Full textAbstract:
The article examines the legal nature of decisions of the Constitutional Court of Ukraine as interpretative legal acts. It is noted that constitutional law-making is a special form (variety) of law-making, which has a multi-level and multi-aspect nature, which is determined by its special nature, essence and functional purpose. Constitutional law-making is a special activity of competent law-making subjects, which is carried out in a special procedural order and is aimed at adopting, changing and canceling the norms of the Basic Law of the state and constitutional acts of law-making. The specificity of the activity of the Constitutional Court of Ukraine is that it does not administer justice in the direct sense. Its powers include: resolving issues of compliance with the Constitution of Ukraine (constitutionality), laws of Ukraine and other legal acts of the Verkhovna Rada of Ukraine, acts of the President of Ukraine, acts of the Cabinet of Ministers of Ukraine, legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea; official interpretation of the Constitution of Ukraine; resolution of questions about the conformity of the Constitution of Ukraine (constitutionality) of the laws of Ukraine (their individual provisions) on the constitutional complaint of a person who believes that the law of Ukraine applied in the final court decision in his case contradicts the Constitution of Ukraine. It is emphasized that the legal positions formulated by the Constitutional Court of Ukraine at making decisions are based on the systematic interpretation of constitutional norms in their interrelationship, the systematic and substantive analysis of constitutional provisions. However, the interpretative activity of the Constitutional Court of Ukraine is broader than the provision of official interpretation of the norms of the Constitution of Ukraine, it also covers interpretation during the constitutional review of normative acts, public (domestic and international) treaties and during the consideration of constitutional complaints. It was concluded that the interpretive activity of the Constitutional Court of Ukraine is broader than the provision of official interpretation of constitutional norms, it also covers interpretation during the constitutionality check of normative acts, public (domestic and international) treaties (and during the consideration of constitutional complaints). Interpretative acts are an auxiliary means of constitutional and legal policy, they have a derivative, secondary character in relation to normative and legal acts. However, their role in the activity of the Constitutional Court of Ukraine is difficult to overestimate, because they are able to ensure the implementation of high-quality constitutional and legal policy in almost all directions of its influence on legal validity. They are entrusted with the function of specifying the legal norms established by the legislator for their correct and effective implementation. As a tool of activity of the Constitutional Court of Ukraine, interpretative acts are characterized by the following features: they contain confirmation of the results of the interpretation of legal norms; are drawn up in accordance with the rules of legal technique; are accepted in a procedurally determined manner; are mandatory; capable of causing legal consequences.
32
Karpenko, K. V. "Constitutional identity and institutional autonomy of state." Journal of Law and Administration 17, no. 2 (July 16, 2021): 33–41. http://dx.doi.org/10.24833/2073-8420-2021-2-59-33-41.
Full textAbstract:
Introduction. The article deals with the phenomenon of constitutional identity, which allows strengthening the protection of constitution. The author shows, that the constitutional courts are the creators of the constitutional identity all around the world. That is why its principles may be called «praetorian law», as a reference to Roman judicial practice. The principles of constitutional identity form by themselves a core of constitutional provisions, which guarantee historical continuity and durability of any legal order. A nation can use them to preserve its existence in a legal reality. Constitutional identity creates a subordination of norms in the constitutional text. The most important of them are on the top. Such a vertical system gives to the Constitutional courts a useful criterion for balancing different interests in a society. This criterion is fair enough, because it is stipulated by the constitution itself.Materials and methods. The materials for the study include the constitutions of states, whose content is related to the problem discussed, decisions of constitutional courts and the legal positions expressed in them, as well as the conclusions of the constitutional and legal doctrine. The study uses the comparative method, which makes it possible to compare homogeneous legal phenomena, the systemic method, with the help of which constitutional identity is considered as an integral part of the mechanism of legal regulation, the dogmatic method that reveals the legal nature of the subject under study, as well as the dialectical method, which gives a holistic idea of subject of research.Results. Constitutional identity, which determines the hierarchy of constitutional norms and values, characterizes a state, emphasizing its differences from others. Constitutional identity should be unchanged over time and free from ongoing changes to the constitutional text. Then it allows identifying the permanent features of a particular legal order and the state as a whole. Consequently, the principles of constitutional identity preserve the historical heritage of the people, the patterns of its development and a certain predictability of the future. Thus, constitutional identity ensures the continuity of different historical periods.Discussion and conclusions. According to the author, the application of the principles of constitutional identity can give the current legal order an internal structure, reflected in the text of the Basic Law. At the same time, constitutional norms build a hierarchy that can reflect the hierarchy of significant values. The presence of such a hierarchy expands the possibilities of legal protection of the constitution, since the constitutional courts have a criterion for «weighing» public and private interests.
33
Slinko, T. M. "Сompetence of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine: comparative legal analysis." Uzhhorod National University Herald. Series: Law 2, no. 73 (December 15, 2022): 215–18. http://dx.doi.org/10.24144/2307-3322.2022.73.63.
Full textAbstract:
Reflections on «possible constitutions of Europe» can have two directions. On the one hand, one can wonder about the legal form of the European Union: the fact that it is no longer a confederation of states, but not yet a federal state, requires a legal classification, for which a new concept of Verfassungsverbund was created in Germany, that is, a constitutional union. On the other hand, the question arises as to which national constitutions, or which parts of these constitutions, or which individual norms of these constitutions are best used to build a constitutional order in Europe. Solving this issue is not only a classic mission of comparative jurisprudence, but also of the current law of the European Community, since Article 6 of the Treaty onthe European Union declares certain principles of the Western constitutional state «common to all member states» and orders to consider fundamental rights «arising from common constitutional traditions of member countries, as general principles of Community law». Within the framework of the second way of formulating the question, the following description refers to the experience gained during the use of elements of the German Constitution to build other European constitutions. In this article, we will conduct a comparative legal analysis of the powers of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine. The possibility of legal review guarantees the supremacy of the constitution by sanctioning theviolation of the law of the constitution by repealing the law. According to the experience accumulated so far, an autonomous and independent constitutional court with the possibility of a constitutional appeal is a good way to protect human rights. Constitutional courts have a part of each existing state monopoly, namely the power of parliament to make laws and the power of the supreme court to interpret and apply laws passed by parliament.
34
Tsalla, Helen. "Aristotle on Political Norms and Monarchy." Politeia 1, no. 3 (2019): 45–67. http://dx.doi.org/10.5840/politeia20191319.
Full textAbstract:
Constitutions differ in kind, according to Aristotle (Politics, III), and the perverted ones are posterior to the nondeviant ones. This paper interprets Aristotle’s treatment of monarchy in light of his distinction in Posterior Analytics (I) between the order of being (constitutional types) and the order of experience (existing constitutions). The paper moves from an analysis of political definitions (Politics, III) and their psychological implications to Aristotle’s analysis of kingship as a species of constitutional correctness. It becomes apparent that, when discussing the relation between a political community and the rule befitting it, Aristotle is consistently using cognates of potency (dunamis) whereby a form already present in a thing becomes the principle of formal actualization of another. Such a mutual relation between rulers and ruled and between their psychological powers sheds light on Aristotle’s inclusion of kingship among proper constitutions, even in the absence of shared governance, and to his willingness to suggest policies that preserve even tyrannies.
35
Severuhin, Vladimir. "Specification and interpretation of the norms of the Constitution of the Russian Federation in 2020: theoretical and practical aspects." Advances in Law Studies 9, no. 2 (July 31, 2021): 21–25. http://dx.doi.org/10.29039/2409-5087-2021-9-2-21-25.
Full textAbstract:
The article reveals the specifics of the specification and interpretation of the norms of the Constitution of the Russian Federation in 2020. The author analyzes the factors influencing the interpretation of the content of constitutional norms. The peculiarities of the impact of domestic conditions and international positions on the hierarchy of regulations are revealed. Particular attention is paid to the possibilities of law-making activities in modern Russian conditions. The achievement of legal certainty in the specification of norms is justified by the need to use the general principles of law, constitutional principles and existing norms of the Constitution.
36
Dorigo, Stefano, and Pietro Pustorino. "Diritto a una tutela giurisdizionale effettiva e revisione dei processi penali: la Corte costituzionale e il caso Dorigo." DIRITTI UMANI E DIRITTO INTERNAZIONALE, no. 1 (April 2009): 85–110. http://dx.doi.org/10.3280/dudi2009-001004.
Full textAbstract:
- The work is a critical comment to the judgment of the Italian Constitutional Court of 30 April 2008, n. 129, on the reopening of the criminal proceedings requested by the European Court of Human Rights. The work begins dealing deeply with the problem of the customary nature in international law of the right to a fair trial and the consequent possibility to invoke, in the framework of the Italian national system, Article 10, paragraph 1, of the Constitution. The authors suddenly stress the relevance of other constitutional norms in order to recognize a constitutional or quasi-constitutional rank to the norms of the European Convention on Human Rights, demonstrating that the Italian Constitution offers several possibilities on the matter. A very recent judgment of the Court of Cassation, adopted on 11 December 2008, confirms this opinion interpreting the Italian norms on the reopening of the criminal proceeding on the basis of Articles 111 and 117 of the Constitution.
37
Shloer, Bernhard. "Categories of constitutional norms." Administrative law and process, no. 4(23) (2018): 17–34. http://dx.doi.org/10.17721/2227-796x.2018.4.03.
Full text
38
Đukić, Dalibor. "Christian Values in the Constitutions of Serbia and Greece." Central European Journal of Comparative Law 3, no. 1 (February 22, 2022): 57–74. http://dx.doi.org/10.47078/2022.1.57-74.
Full textAbstract:
Christian values are the foundation of modern European societies. Suffice it to say that the most important European philosophers and cultural movements have originated from Christian environments. The constitutional history and tradition of the majority of the European countries are proof of the strong influence of Christianity and Christian churches on the creation and constitutional organisation of the modern European states. The subject matter of this work is a comparative analysis of the current Constitution of the Republic of Serbia and the Constitution of Greece, with the aim of identifying the Christian values comprised in their constitutional provisions. This work has two fundamental hypotheses. The first one is that the constitutions of both these countries comprise a substantial number of constitutional norms with Christian origins and foundations. The second hypothesis is that the Constitution of Greece comprises more provisions that demonstrate close connections between the state and Christianity. This is a consequence of the fact that in Greece, there have been no interruptions in the continuity of the constitutional tradition, unlike the case with Serbia during the communist rule.
39
Hikmah, Mutiara. "PERAN MAHKAMAH KONSTITUSI DALAM MENJAMIN HAK KONSTITUSIONAL WARGA NEGARA PADA PROSES DEMOKRATISASI DI INDONESIA." Jurnal Hukum & Pembangunan 39, no. 4 (December 3, 2009): 437. http://dx.doi.org/10.21143/jhp.vol39.no4.293.
Full textAbstract:
AbstrakThe Constitutional Court as the judicial authority is responsible for maintaining the constitution directly and participates in strengthening the rights of human rights. This is drawn directly from the nature of the understanding that the constitution itself as a political document that protects the rights of human rights of every citizen and people who live in the country. This began the constitutional functions of the most essential are the first, limiting the powers contained in the constitutional scheme of a nation, and second, to formulate protection constitutional rights of the citizens and the rights of human as a whole. That is why the role of the Constitutional Court directly correlated with the significance of the role of enforcement agencies of human rights in terms of "norms control". Embodiment of constitutional and judicial review is examining through compliance with the norms of the constitution messages that cannot be separated from the ·universality of normative messages of human rights.
40
Delledonne, Giacomo, and Giuseppe Martinico. "Handle with Care!: The Regional Charters and Italian Constitutionalism's ‘Grey Zone’." European Constitutional Law Review 5, no. 2 (June 2009): 218–36. http://dx.doi.org/10.1017/s1574019609002181.
Full textAbstract:
Founding principles and rights in new Statuti (fundamental regional charters) – Expression of sub – national constitutionalism? – Constitutional court: Statuti not regional constitutions – Provisions on founding principles and rights ‘cultural statements’ lacking any legal effect – Tertium Genus in addition to ‘prescriptive’ and ‘programmatic’ norms? – Various scenarios for potential legal conflicts between the national Constitution and the ‘cultural statements’
41
Pibaev, I. A. "КОНСТИТУЦИОННО-ПРАВОВОЕ РЕГУЛИРОВАНИЕ СТАТУСА РЕЛИГИОЗНЫХ СЛУЖИТЕЛЕЙ." Вестник Пермского университета. Юридические науки, no. 57 (2022): 454–75. http://dx.doi.org/10.17072/1995-4190-2022-57-454-475.
Full textAbstract:
Introduction: religious ministers are a special category of persons, often having a special status regulated not only by internal norms of religious organizations (e.g. those provided in sacred texts) but also by legal rules of the state. Purpose: to analyze the provisions of the constitutions of the UN member states and a number of basic laws of the constituent entities of federal states, to identify the features of the constitutional regulation of the status of religious ministers, the reasons for etatization and ‘constitutional silence’. Methods: the research mainly relies on the comparative legal method, used when analyzing the constitutions and laws of 193 countries (cross-study); the systematization method was employed to develop the author's classification of the identified norms into groups. Results: the analysis showed a terminological diversity in the texts of the constitutions; when studying the issue in question, it is advisable to use the term ‘religious minister’ as it allows covering this category of persons to the greatest extent possible. The author has identified six groups of norms reflecting the status of religious ministers: the norms governing participation in the management of state affairs; norms blurring the boundaries between secular and religious regulation; norms establishing privileges for clerics; norms ensuring the autonomy of religious associations; norms that regulate the exercise of freedom of religion through spiritual mentors; norms limiting the civil legal capacity of religious ministers and determining the legal force of religious rites and sacraments. The paper explains why some ‘standard norms’ have been established, including those forbidding religious ministers from participation in the management of state affairs. Conclusion: the author reveals the reasons behind the ‘constitutional silence’ and etatization of the norms on religious ministers in the constitutions, and also offers the ways to differentiate the status of clerics in the structure of constitutions.
42
BARTSITS, IGOR N. "Rethinking the relationship between international and national law at the turn." Public Administration 22, no. 1 (2020): 33–42. http://dx.doi.org/10.22394/2070-8378-2020-22-1-33-42.
Full textAbstract:
The article is devoted to revealing the specifics of the implementation of such areas of constitutional law as the constitutionalization of international law and the internationalization of constitutional law by the example of additions to Article 79 of the Constitution of the Russian Federation, as well as the practices of the Italian Constitutional Court, the Federal Constitutional Court of Germany, etc. The author examined in sufficient detail the procedures for extending the effect of international law and international treaties of Russia to the national legal system, analyzed the concept of counter-limits in European and national judicial practice, presented the basic principles of interaction between European and national courts (the principle of subsidiarity, the principle of proportionality, the principle of ‘sincere cooperation’, method of ‘dialogue of judges’). There is a need for an updated understanding of the term ‘constitutional sovereignty of the state’, which is based on domestic norms on fundamental rights and norms on the foundations of the constitutional system, which presupposes the inadmissibility of any foreign or international influence that violates the requirement of priority of the norms and principles of the national Constitution in the national legal system. The article substantiates the expediency of using the doctrine of counter-limits in the Russian Federation as an instrument of constitutional self-defense, ensuring constitutional sovereignty and preserving constitutional identity.
43
MIKHAILICHENKO, ILYA. "ON THE QUESTION OF DEFINING THE CONCEPT OF "DIGITAL CONSTITUTIONAL HUMAN RIGHTS" IN THE MODERN PERIOD OF DEVELOPMENT OF LEGAL SCIENCE." Gaps in Russian Legislation 14, no. 4 (July 28, 2021): 177–86. http://dx.doi.org/10.33693/2072-3164-2021-14-4-177-186.
Full textAbstract:
The scientific article considers issues related to the definition of the concept of "digital constitutional rights of citizens" and their inclusion in the categorical and conceptual apparatus of the science of constitutional law, in the norms of the constitutions of various states. The author offers an interpretation of this concept. Under "digital constitutional rights of citizens", in this scientific article, a set of universal equal opportunities for human behavior enshrined in the norms of the Constitution of the Russian Federation, is meant, and these opportunities determine the procedure for the implementation of individual and joint activities to use digital electronic services, information, digital technologies, digital products, the procedure for guaranteeing protection their rights in the information space. The article proposes ideas, initiatives and suggestions in terms of forecasting the development of digital constitutional human rights that a person currently possesses, using the new information and communication opportunities provided by the global Internet. Conclusions. An analysis of the practice of international legal documents led the author to the conclusion that despite the fact that international organizations are making attempts to regulate relations in this area, work on substantiating digital constitutional norms in some countries is limited to the development of state programs in which normative legal acts are adopted and introduced changes in the norms of sectoral legislation, in other countries the discussion of this problem is only from the perspective of scientific constitutionalists. It is necessary to start work on a comprehensive international program of international legal regulation of relations in the field of digital rights with the involvement of the international legal community, representatives of the science of constitutional law. This will contribute to the development of a categorical and conceptual apparatus in this area of knowledge.
44
Ezerov, Albert. "Application of the Constitution of Ukraine in the implementation of justice: basic principles." Slovo of the National School of Judges of Ukraine, no. 3(32) (December 18, 2020): 19–36. http://dx.doi.org/10.37566/2707-6849-2020-3(32)-2.
Full textAbstract:
The article focuses attention on the fact that the phenomenon of the Constitution is not limited to the constitutional text, since the Constitution, first of all, is a system of basic values designed to limit any manifestations of arbitrariness of public authority to ensure human rights. At the same time, it is noted that the «tangible» for the constitutional system exactly is the embodiment of the material Constitution as a text and a system of legal requirements in lawmaking and law enforcement, which directly depends on the subjects of law «users» of the Constitution. It is noted that the application by the courts of the Constitution as an act of direct action allows filling in the gaps and eliminating other defects in the legislation, is one of the dimensions the embodiment of the supremacy of the Constitution of Ukraine in the law application. It has also been established that the provisions of Article 8 of the Constitution, according to which its norms are direct action norms, and an appeal to the court to protect the constitutional rights and freedoms of a person and a citizen directly on the basis of the Constitution of Ukraine are guaranteed in a systematic connection with Article 150 of the Constitution according to that powers the Constitutional Court of Ukraine refers to the resolution of issues of compliance with the Constitution of Ukraine (constitutionality) of laws and other legal acts, cannot restrict courts in competence of direct application of the Constitution and solution to the issue of compliance with any other regulatory acts, that should be applied in a specific case. It has been proved that one of the mechanisms for ensuring the direct operation of the norms of the Constitution is the review of court decisions in view of exceptional circumstances, which is one of the manifestations of the «responsibility» of the state and responsible public administration, since in this way the state fulfills its the duty to restore of human rights as a consequence violation due adopting an act that has the subject of judicial constitutional review and recognized as unconstitutional. It is summarized that the Constitution will be real only with the active position of the courts on the application of its provisions in resolving disputes, and the courts will occupy a prominent place in the system of separation of powers, only if the Constitution will be basis of judicial decisions. Key words: courts of the judicial system, Constitution of Ukraine, implementation of justice, constitutional politics, constitutional conflicts, generic principles, application of constitutional norms, human dignity, constitutional values.
45
Partlett, William, and Dinesha Samararatne. "Redeeming the National in Constitutional Argument." Verfassung in Recht und Übersee 54, no. 4 (2021): 461–84. http://dx.doi.org/10.5771/0506-7286-2021-4-461.
Full textAbstract:
In many countries beyond the traditional comparative constitutional law canon, the advocates of constitutionalism are increasingly appealing to a supra-national constitutional discourse frequently grounded in best practices for constitutionalism. This trend has helped to foster a nationalistic backlash which arguesin which constitutional advocates argue that constitutions should not reflect international constitutional norms but instead must reflect historically-grounded tradition or identity. How should advocates of constitutionalism understand and respond to this backlash? We argue that linking a critical interpretation of national history and the text of the national constitution to constitutionalism can help to counter this nationalist backlash, particularly in constitutional adjudication. Looking at Russia and Sri Lanka, we illustrate how this process of “redeeming the national” can provide new arguments for those interested in advancing the project of constitutionalism. We argue further that this kind of constitutional argument can also help to uncover ways of adapting constitutional principles to particular national contexts.
46
Chafetz, Josh, and David E. Pozen. "Como normas constitucionais colapsam | How Constitutional Norms Break Down." Revista Publicum 4, no. 2 (December 12, 2018): 281–317. http://dx.doi.org/10.12957/publicum.2018.38772.
Full textAbstract:
A partir do momento em que Donald Trump foi eleito presidente, críticos se angustiaram com o colapso das normas constitucionais. A história demonstra, no entanto, que as normas constitucionais estão perpetuamente em fluxo. A principal fonte de instabilidade não é que essas regras não-escritas possam ser destruídas por políticos que negam sua legitimidade, sua validade ou seu valor. Na verdade, a principal fonte de instabilidade é que as normas constitucionais podem ser decompostas- interpretadas dinamicamente e aplicadas de formas consideradas adequadas, mas que limitam sua capacidade de restringir a conduta de agentes do governo.Este artigo chama a atenção para essa instabilidade latente e, ao fazê-lo, começa a taxonomizar e teorizar a estrutura da mudança da norma constitucional. Exploramos alguns dos diferentes modos em que normas não-escritas colapsam em nosso sistema constitucional e os diferentes perigos e oportunidades associados a cada um deles. Além disso, argumentamos que, sob certas condições plausíveis, será mais preocupante quando as normas forem sutilmente revisadas do que quando forem abertamente desprezadas. Este argumento um tanto paradoxal sugere que muitos comentaristas têm julgado de forma equivocada nosso momento atual: o flagrante desafio do presidente Trump às normas pode não ser uma ameaça tão grande à nossa democracia constitucional como a deterioração mais complexa de normas em curso em outras instituições.
47
Самусевич, А. Г. "FORMS OF IMPLEMENTATION OF CONSTITUTIONAL NORMS: THEORY AND PRACTICE." VESTNIK OF THE EAST SIBERIAN INSTITUTE OF THE MINISTRY OF INTERNAL AFFAIRS OF THE RUSSIAN FEDERATION, no. 3(106) (September 29, 2023): 43–52. http://dx.doi.org/10.55001/2312-3184.2023.90.23.004.
Full textAbstract:
В статье рассматриваются теоретические и практические аспекты ре-ализации конституционных норм. Подчеркивается, что рассматривать реализацию норм Конституции только с позиции их соблюдения или исполнения не является вер-ным. Если говорить о том, что Конституция Российской Федерации – нормативный акт высшей силы, то логично вытекает вывод о том, что конституционные нормы реализу-ются во всех трех непосредственных формах: соблюдении, исполнении и использова-нии. Автором дается теоретическое определение понятия «реализация конституцион-ных норм», а также характеризуются основные формы их реализации методом междис-циплинарного исследования, при этом все формы реализации подкреплены практиче-скими примерами, что позволяет более полно усвоить предмет исследования. Материалы и методы. Нормативную основу исследования образует Конститу-ция Российской Федерации, закрепляющая основные формы реализации конституци-онных норм, которые по-разному воплощаются и применяются в практической жизни. Методологической основой исследования послужил комплекс общенаучных (диалектический, анализ и синтез, системно-структурный подход) и специальных ме-тодов познания. Результаты исследования. Автор приходит к выводу, что для достижения эф-фективности реализации конституционных норм необходимы два условия: реальность норм конституции и высокий уровень развития правосознания субъекта. В исследова-нии отмечается, что немалое количество норм Конституции реализуются и в форме применения, тем самым образовывая опосредованную форму реализации конституци-онных норм – конституционное правоприменение. В связи с этим отдельно уделяется внимание и конституционному правоприменению, которое остается в настоящее время малоизученным. Выводы и заключения. В статье делается вывод о том, что конституционное пра-воприменение является особой организационной деятельностью компетентных органов государства, обладающих властными полномочиями, в сфере реализации конституци-онно-правовых норм с целью претворения их в жизнь по конкретному жизненному слу-чаю, установленных Конституцией России. В заключении автором обосновывается необ-ходимость дальнейшего исследования конституционного правоприменения. the article discusses the theoretical and practical aspects of the imple-mentation of constitutional norms. It is emphasized that it is not correct to consider the im-plementation of the norms of the constitution only from the position of their observance or execution. If we talk about the fact that the Constitution of the Russian Federation, being a normative act of the highest power, then it logically follows that constitutional norms are implemented in all three direct forms: compliance, execution and use. The author gives a theoretical definition of the concept of "implementation of constitutional norms", and also characterizes the main forms of their implementation by the method of interdisciplinary re-search, while all forms of implementation are supported by practical examples, which makes it possible to more fully assimilate the subject of research. Materials and Methods: the normative basis of the study is formed by the Constitu-tion of the Russian Federation, which establishes the main forms of implementation of con-stitutional norms, which are implemented and applied in practical life in different ways. The methodological basis of the research was a complex of general scientific (dialec-tical, analysis and synthesis, system-structural approach) and special methods of cognition. The Result of the Study: The author comes to the conclusion that in order to achieve the effectiveness of the implementation of constitutional norms, two conditions are necessary: the reality of the norms of the constitution and a high level of development of the legal con-sciousness of the subject. The study notes that a considerable number of constitutional norms are also implemented in the form of application, thereby forming an indirect form of imple-mentation of constitutional norms – constitutional law enforcement. In this regard, special attention is paid to constitutional law enforcement, which remains poorly studied at present. Findings and Conclusions: the article concludes that constitutional law enforcement is a special organizational activity of the competent state bodies with authority in the field of implementation of constitutional and legal norms in order to implement them in a specific life case, established by the Constitution of the Russian Federation. In conclusion, the author sub-stantiates the need for further research of constitutional law enforcement.
48
Zharovska, I. M. "Generalization of the grounds of unconstitutionality in the decisions of the body of constitutional jurisdiction: aspects of the constitutional complaint." Analytical and Comparative Jurisprudence, no. 6 (December 27, 2023): 115–19. http://dx.doi.org/10.24144/2788-6018.2023.06.19.
Full textAbstract:
The article summarizes the reasons for unconstitutionality in the decisions of the Constitutional Court of Ukraine, including by analyzing the institution of a constitutional complaint.
It is motivated that the doctrine of constitutionality represents the idea of supremacy of the constitution over any other normative acts, excludes the possibility of adopting or applying norms that correspond to the Constitution. This principle is an advantage for ensuring the rule of law, observing legality and guaranteeing the rights and freedoms of citizens, and also serves as a mechanism for controlling the actions of the authorities and ensuring the stability and reliability of the legal system.
The essence of the principle of constitutionality is represented by the fact that all laws, regulations and actions of authorities must comply with the norms and principles enshrined in the country's constitution, since the latter is the main and important legal act that establishes the framework and principles of the functioning of the state, limiting the actions of the authorities and guaranteeing rights and freedoms of citizens.
Unconstitutionality is interpreted as a state of non-compliance with provisions, principles or norms established in the country's constitution. The important legal essence of recognizing such a phenomenon as unconstitutional is that such acts may be annulled, lose their validity, or require changes to comply with constitutional norms. It is indicated that the concept of unconstitutionality is important for ensuring compliance and protection of the principles and norms enshrined in the constitution and guarantees the hierarchical status of the legal system in a democratic state.
The grounds used by the Constitutional Court of Ukraine to recognize the unconstitutionality of some provisions of normative legal acts in cases of constitutional complaints are summarized: unjustified deprivation (restriction) of a certain constitutional right; violation of the principle of the rule of law, especially in the context of the lack of legal certainty in the norms of the law.
It is indicated that the principle of the rule of law imposes obligations on the law-making body to establish clear, understandable, unambiguous and provide for legal regulation of social relations, which is key in ensuring the stable legal position of each person and in order to avoid renouncing the obligations assumed by the state.
49
Davtyan, Narine. "Contemporary Matters of Constitutionalization of Legal Norms in the Republic of Armenia." Bulletin of Yerevan University C: Jurisprudence 14, no. 2 (39) (December 14, 2023): 36–43. http://dx.doi.org/10.46991/bysu:c/2023.14.2.036.
Full textAbstract:
The article examines the issues of constitutionalization of law in RA.The constitutionalization of the right is one of the contemporary problems of modern constitutionalism, which is currently of interest not only to specialists in the field of constitutional law but also to scholars dealing with problematic issues in other branches of law, the article studied the Constitutionalization process, which is of great importance in terms of guaranteeing the supremacy of the Constitution and is meant to ensure the compliance of normative legal acts with the requirements of the Constitution. The process of constitutionalization was studied from an institutional point of view, conventionally classifying it into two main groups. First, it is the units operating in the field of public service which is entitled to subject the drafts of normative legal acts to legal examination. One of the important goals of such examination is to provide law-making bodies and officials with conclusions on the conformity of the legal acts reflected in the drafts of the aforementioned normative legal act with the requirements of the Constitution. Second, as a result of the constitutional reforms of 2015, the role and importance assigned to the Constitutional Court in order to ensure the constitutionalization of the legal fiel was studied. The Constitutional Court, as a constitutional supervisory body, is called to ensure the supremacy of the Constitution, which is carried out within the framework of concrete and discrete control.
50
Bożek, Michał. "Przełamanie konstytucji w konstytucjonalizmie weimarskim." Przegląd Konstytucyjny, Issue 2 (2023) (May 2023): 7–34. http://dx.doi.org/10.4467/25442031pko.23.008.18274.
Full textAbstract:
Breaking the Constitution in Weimar Constitutionalism The aim of the article is an analysis of the phenomenon of breaking the constitution. It comes from expierence of the german legal positivism from the second half of the nineteenth century and it is firmly rooted in the constitutional practice of the Second Reich. This practice was the passing of the laws in the mode required for the constitutional change. Their result was the modification of some of the constitutional norms without any change of their text. Such laws didn’t repeal the binding force of concrete norms directly, but they did it indirectly. Such laws didn’t become the part of the constitution in formal meaning, but they became the part of it in a material sense. This practice was accepted by the majority of the german constitutionalists and other representatives of legal science. Supporters of the practice were especially the authors of liberaldemocratic views. While the authors of the conservative views rejected the provisions of the legal positivism and the practice of breaking the constitutional norms traeted as an extraordinary measure of the repealing of the binding force of them and it cannot violate the fundamental rules and values of the constitution. Nowadays the weimar authors discussion is the important source of inspiration for the participants of the global debate on the limits of the constitutional change and the need for separation and the protection of constitutional identity.