Громадський порядок у вимірі конституційної економіки

Abstract

The study was conducted to establish the possibilities of using tools and methods of constitutional economics as an interdisciplinary scientific field to study the constitutional legitimacy of state coercion in matters of restriction of private economic interest, economic rights and freedoms, proportionality and balance of private and public interest.This has been performed through the analysis of problems concerning the limits of state intervention in the private economic sphere and the restriction of economic rights and freedoms of individuals and legal entities. It is purposeful to study of the doctrine of immaterial public order, which is new and, in contrast to the classical doctrine of public order, provides for a special regime of restriction of rights and punishment for offenses. It is argued that, developed within the framework of the French national constitutional doctrine, in the current globalization of approaches and principles of state and legal regulation, the concept (or doctrine) of immaterial public order is a useful source for finding effective ways in conflict resolution between government and business and establishing legal consensus between public and private interest. The new doctrine of public order offers to abandon the classical definition of the category of public order as sufficient and indivisible and instead proposes to divide it into two equival entand autonomous types – material and immaterial public order.As a result of the study, it was concluded that the establishment of restrictions, prohibitions of any rights and freedoms can not be based solely on the protection of public values, even if such values are recognized as international standards. The risk of abuse of law and abuse of power is significant, as such values tend to appear to be fairly general and abstract. First of all, the experience of individual countries in the field of democratic constitutionalism, such as France, is important, however in order to be applicable, a detailed knowledge of its application in the country of origin, as well as relevant legal conditions in the recipient’s country.It is important to assess the effectiveness of such large-scale restrictions that occur in 2020–2021 in terms of economic and social risks. Afterall, the constitutionality of any measures can not be determined only in terms of values of a general humanitarian nature. The economic component must play a more important role than is currently plays. In this dimension, guaranteeing or restricting the economic rights of individuals and legal entities can become a real legal safeguard or the cause of short-term and long-term social conflicts. The methods of constitutional economics as a direction of the new constitutionalism are appropriate and useful for further improvement of the general legal doctrine and development of effective legal tools to ensure public order.