Constitutionalism: issues of legal thought

Abstract

It is noted that establishing criteria for evaluating legal concepts remains one of the unresolved problems in law. Their interpretation often depends more on the subjective view of the legislator or scholar than on legal logic. At the same time, even the most detailed definition cannot encompass the full diversity of legal relations and be universally applicable. Therefore, formulating precise concepts in constitutional law is complicated by the fact that the theory and practice of national and international constitutionalism are still developing, and their terminological apparatus is still forming. It is pointed out that the concept of “constitutionalism” has become firmly established in modern scientific discourse. Although the term has humanitarian origins, today it finds application in the natural sciences as well. However, “constitutionalism” is most often used in the humanities, especially in jurisprudence. It is emphasized that most modern states have constitutions that define their structure and procedures for managing various spheres of life. However, the presence of a constitution is not a sufficient condition for recognizing a state as constitutional. The constitutionality of a state is not limited to the existence of a basic law, which may reflect a certain compromise of socio-political forces and establish the state structure and powers of authorities. Even if this law has supremacy over other laws and can be changed only by a special procedure, this does not guarantee true constitutionalism. Thus, a state can have a constitution but not have constitutionalism, and vice versa. The authors conclude that despite the diversity of models of constitutionalism, common principles can be identified that characterize it as a legal concept: The supremacy of legal laws, particularly the constitution as the fundamental law; Legal protection of individual rights and freedoms; Institutional and legal organization of state power with horizontal and vertical distribution. It is important to note that the universality of these principles is associated with the transformation of Western society from a religious worldview to a rational perception of the world. This change influenced the ideas about the state and society, contributed to the formation of classical liberal civil society and the concept of an autonomous individual.