Doctrine Of Constitutional Law Research Articles

Правовая природа публичной власти: доктрина и закон

The constitutional reform of 2020 made it relevant to develop a doctrinal and legal description of public power. The existing interpretations of its legal nature are often different, even mutually exclusive. This situation makes it necessary to expand the methodological foundations behind the theoretical model of public power. The author identified public power based on the differences in philosophy, management theory, political science, and sociology, on the one hand, and constitutional studies, on the other. The hypothesis of the cyclical development of constitutional law, both as a branch of law and as a science, made it possible to reconstruct the ideas of public power in the Russian doctrine of constitutional law at the turn of the XIX–XX centuries. These ideas proved systematic and logically complete because they interpreted public power as a special subjective right implemented by the community. The concepts of public power in the national constitutional studies demonstrated continuity, especially against V. E. Chirkin’s collectivist theory of public power. However, the importance of public understanding of the legal nature of public power remains underestimated. This flaw is also typical of the latest theoretical models of public power, which were affected by the constitutional reform of 2020, as demonstrated by some recent federal laws.

THE PRINCIPLE OF THE RIGHT TO A COURT IN THE CONSTITUTION OF THE POLAND

Pursuant to Art. 45 section 1 of the Constitution of the Republic of Poland, everyone has the right to a fair and public hearing of the case without undue delay by a competent, independent, impartial and independent court. As it is emphasized in the doctrine of constitutional law, this provision expresses one of the fundamental rules of a democratic state of law, which is the principle of the so-called right to court. It is a logical consequence of the assumption that in a state of law, only the court is the authority that ultimately decides on the freedoms, rights and obligations of an individual. Moreover, it is a very important right of an individual who can assert his or her rights before a competent, independent, impartial and impartial court, obliged to consider the case fairly and openly.The case law emphasizes that it includes the right of access to a court, which includes the right to initiate a procedure before an independent, impartial and independent court, the right to appropriately shape the court procedure in accordance with the requirements of justice and transparency, and finally the right to a court judgment, that is, the possibility of obtaining a binding resolution of the case by the court.As can be seen from the above, the concept of the Polish legislator assumes the development of the right to a court as a pledge of guarantees with which the court must be „equipped” so that the freedoms and rights of the individual are protected in an appropriate manner. This study will be an attempt to present these guarantees.

Some Issues of Realization of the Principle of People’s Power in Modern Russia

The article analyzes the scientific heritage of Professor E.I. Kozlova in terms of her study of the implementation of the principle of people’s power. In her works Ekaterina Ivanovna Kozlova investigated the evolution of the conceptual foundations of people’s power in the Russian Federation. Her ideas are reflected in the modern doctrine of constitutional law. The article reveals the development of the ideas of people’s representation in modern Russia, taking into account the development of society and scientific and technological progress, analyzes the creation of new existing mechanisms for the implementation of the principle of people’s power. Special attention is paid to the ideological foundations of people’s power based on pluralism of opinions in the light of the emerging public debate on the possibility of return to a mandatory state ideology. The article also considers the institute of preliminary voting (primaries) as an effective feedback mechanism between voters and political parties, contributing to the transparency of the modern political system of Russia. It also reviews the existing electoral systems used in the Russian Federation for the election of public authorities at the regional and municipal levels and analyzes trends in their development.

Traditions of French Constitutionalism in Polish Constitutional Thought

The influence of French constitutionalism on the Polish legal order is still present in the studies and analyses of the doctrine of constitutional law. Indeed, the French constitutional tradition forms part of the European legal heritage to which the founders of Polish statehood readily referred. The present text outlines the main thoughts and ideas which, over a period of more than two hundred years – from the second half of the 18th century to the present day – have influenced the constitutional shape of the Polish state either by way of recapitulating or negating various institutional solutions.

The Concept of a «Principle» in Constitutional Law

In the doctrine of constitutional law, there are various approaches to understanding and defining the concept of a «principle of constitutional law». The paper examines the positions and conceptual standings at various stages of the development of domestic legal science (general theory of law and constitutional law), elucidating the features of the principles of law and constitutional law. The author concludes that the understanding of the principle is based on various ideological approaches. This approach is especially clearly manifested in the Soviet theory of law, where principles are defined as principles predetermined by the economic system (formation). At the same time, there is a tendency in Soviet theory to objectify principles. The modern science of constitutional law provides for a variety of points of view and approaches aimed at revealing the nature, legal characteristics, purpose and practical role of the principles of constitutional law. The paper substantiates the special purpose of the constitutional principles. They are not rules of law in the classical sense. The principles of constitutional law, being an independent type of regulatory prescriptions, play the most significant role in regulating relations. They determine the content of constitutional and effective law as a whole. The legal quality of constitutional principles consists in a high degree of generalization of the theory and practice of public relations. The principles of constitutional law possess the quality of objectivity. They reflect the prevailing view expressed in the Constitution of the Russian Federation about the proper legal impact. Constitutional principles represent a concentrated expression («driving ideas») of the development of public relations.

James Bradley Thayer i problem „niekonstytucyjności ponad wszelką wątpliwość”

The main purpose of this paper is the presentation of Harvard Law School scholar James Bradley Thayer and his famous article The Origin and Scope of the American Doctrine of Constitutional Law, published in Harvard Law Review in 1893. Thayer formulated therein his theory of judicial restraint based on the formula unconstitutionality beyond reasonable doubt. This theory influenced such eminent judges and scholars like Oliver Wendell Holmes, Louis Brandeis, Learned Hand and, last but not least, Felix Franfurter, and is still broadly discussed in contemporary American constitutional jurisprudence. In conclusion the author proposes to make American experiences in this area useful for the current debate concerning Polish constitutional crisis.

THE RIGHT TO PETITION AND A PUBLIC HEARING ON DRAFT LAWS IN POLAND SELECTED ISSUES

The research focuses on selected issues relating to the right to petition and the institution of a public hearing on draft laws in Poland. The aim of the article is to compare the two institutions in terms of their functioning in the field of draft laws, but also in the context of comments under Article 63 of the Constitution of the Republic of Poland and the assessment of applicable legal regulations. Legal and dogmatic, and statistical methods were used. The analysis was based on the interpretation of Article 63 of the Constitution of the Republic of Poland, chapters 1a and 9a of section II of the Sejm's Rules of Procedure, selected provisions of the Act of 11 July 2014 on petitions, and Article 8 of the Act of 7 July 2005 on lobbying activities in the process of making law, as well as the literature on the subject and data specifying the practice in the field of the discussed institutions from the IX term of the Sejm contained on the website of the Sejm of the Republic of Poland. This study is a comparative analysis of the two indicated institutions, sum-marizing the practice and achievements of the doctrine in this area and providing an opportunity to expand the discussion on the right to petition and a public hearing on draft laws, as well as influencing not only the doctrine of constitutional law, and in particular parliamentary law, but also possibly future legislation.

REFLEXÕES SOBRE O ASPECTO FORMAL DA EMENDA CONSTITUCIONAL Nº 106/2020 “ORÇAMENTO DE GUERRA

The purpose of this article is to study the formal aspect of the Constitutional Amendment n. 106/2020 not analyzed by STF. Among the measures to fight Covid-19 Pandemic, the Constitutional Amendment n. 106/2020 was proclaimed. Through this rule, an extraordinary fiscal, financial and contracting regime was authorized. The normative species that was conveyed presents an intriguing feature: it is a constitutional amendment that does not amend anything. The Constitutional Amendment n. 106/2020 does not amend the Constitution itself, nor the Transitory Constitutional Provisions Act, and it acts as autonomous legislation. From this perspective and based on the doctrine of constitutional law, the text raises some hypotheses for such an option, generally and specifically, finally suggesting hypotheses of unconstitutionality, such as the abuse of Legislative Power.

The human right to life: international normative regulation and the practice of national law enforcement

The issue is updated in the context of the active expansion of the list of human rights, in particular within the national dimension, because human rights as a dual category are subject to transformation, which is caused by the following factors: European integration processes, which generate the need for integration and harmonization of Ukrainian legislation with the law of the European Union; globalization processes, since Ukraine is a member of the world community and modern phenomena of an economic, ecological, legal, etc. nature have a direct impact on state national processes, and on legal reality, and on the rights and freedoms of an individual.It was determined that the recognition of new human rights, the expansion of the existing list is one of the trends in the development of the legal status of an individual. And when regulating relations in the field of somatic harassment with the help of the category of human rights, it should be taken into account that somatic human rights should be characterized by what is characterized by the category of human rights as a whole. It is pointed out that in human history no "new right" has really been recognized without struggle and without overcoming the stiff opposition of some "old rights".The authors claim that, despite the contradiction of the current state of understanding of the concept of "legal positions of the Constitutional Court of Ukraine" by the scientific doctrine of constitutional law, they play a significant role in the establishment and affirmation of the rule of law and correct legal understanding in order to protect the rights and freedoms of man and citizen in Ukraine. The consistency of the legal positions of the Constitutional Court of Ukraine is an important feature of ensuring the operation of the principles of the body of constitutional jurisdiction and the principles approved by the Constitution of Ukraine, in particular, in the need to ensure a unified legal understanding and methodological bases for the justification of decision-making in a particular case, especially in the field of work of courts of general jurisdiction. The analysis of the rule-making activity of the decisions of the CSU gives reason to say that the CSU in its decisions analyzes only the signs and elements of the constitutional human right to life.

The legal nature of evidence in the international doctrine of constitutional law

The article is devoted to relevant, but understudied issues related to the formation of the evidence base in the doctrine of constitutional law. Legitimation of the constitutional process by evidence can be successful regardless of the goal preferred by the subjects of the constitution. If constitutional design prioritizes the goal of substantive legitimacy, it legitimizes the broad powers of the constitutional judge through the need to maximize the evidence gathered. If, on the contrary, the constitutional design gives priority to the goal of procedural legitimacy, it legitimizes the function of the constitutional judge through the development of a fair procedure of proof. In this way, the outcome of the trial can more easily gain the approval of the community and strengthen confidence in the functioning of constitutional justice. The fundamental right to evidence is constitutionally protected to the extent that it is implicit in the right to due process. The author pays special attention to the definition of the content of the concept of proof in the constitutional judicial process based on the analysis of the norms of international constitutional law, which are characterized by the presence of a set of certain methods of cognition, that is, scientifically determined and practically tested rational methods or a system of methods of obtaining the necessary amount of knowledge for making an objective and well-founded decision. Evidence in a judicial constitutional process should be understood as a certain process of learning by the subjects of this process — judges and the apparatus of constitutional jurisdiction as a whole, which is implemented as the collection, verification and evaluation of evidence. In this extremely complex intellectual process, proof plays an important role as a logical action during which the truth of an opinion or position is substantiated and established.
 As a result of working on this topic, the author investigated and highlighted two discourses on procedural legitimation. In the first case, legitimization is the result of a test procedure check that takes place before an ordinary judge. In the second case, legitimation is the result of the absence of a complex procedure of proof before a constitutional judge.

Russian Parliamentarism as a Social and Legal Phenomenon

The paper discusses theoretical approaches to understanding Russian parliamentarism. The author analyzes generic and specific features, examines variants of the doctrinal interpretation of parliamentarism. There are two main approaches that reveal the concept of «parliamentarism». First, there is an approach that considers parliamentarism within the framework of the category «a form of the State» and its structural elements. The second approach understands parliamentarism as a complex social phenomenon functioning within the framework of constitutional laws. In the Russian constitutional law doctrine, the institutional approach to defining the concept of parliamentarism is usually «incomplete», limited only to the consideration of individual elements (public relations or legal regulation). The article proves that the institutional approach makes it possible to present parliamentarism as a socio-legal institution that includes the following mandatory elements: values (goals), statutory regulation, institutional subject composition and relevant social relations.

Problematyka większości głosów wymaganej dla zmiany Konstytucji RP z 1997 roku

SOME PROBLEMS ASSOCIATED WITH THE MAJORITY OF VOTES REQUIRED FOR AMENDING THE 1997 CONSTITUTION OF POLAND The aim of this paper is to supplement the findings made by the doctrine of constitutional law regarding the requirements of the majority of votes for amending the 1997 Constitution of Poland at the parliamentary stage of that procedure. The following issues will be analysed in particular: the significance of constitutional amendment rules in a democratic system of government and their impact on its rigidity and durability; the role of the quorum as a factor contributing to the majority of votes’ requirements and some political dilemmas associated with that matter; the reasons and consequences of adopting different levels of the majority of votes for amending the Constitution in the Sejm and the Senate and their relation to the form of the relationships between those chambers. Regulations regarding amending the 1997 Constitution of Poland will be presented against a background of contemporary constitutions of European states. The important interpretative context will be constituted by the issues of axiology of democracy, parliamentary bicameralism and legitimization of power.

Zaskarżalność uchwał Państwowej Komisji Wyborczej w trybie art. 161a Kodeksu wyborczego

The aim of this study is to analyse the operation of a new institution in the form of a complaint by the electoral representative against the resolutions of the National Electoral Commission in the form of guidelines and explanations, as well as to assess the legitimacy of the implementation of this institution into the Polish electoral law. On the one hand, there is no doubt that this solution contributes to the implementation of a long-reported postulate for the decisions of the election administration to be brought under judicial control, and also influences the extension of the catalogue of instruments for social control of the election process. On the other hand, however, it is impossible to analyse a venture of this institution with complete disregard for other conditions of the election process. The analysis is intended to provide an answer to the question of whether the complaint against the resolutions of the National Electoral Commission, as referred to in Article 162a of the Polish Election Code, in its current form is a desirable component of the Polish electoral law, or is it rather an institution limiting the efficiency of the election process. In the study, the construction of Article 161a of the Election Code was examined using a formal and legal method, and the consequences of the application of the new solution in election practice were analysed using an empirical method and the achievements of the doctrine of constitutional law.

Interpretation of the concepts of legal guarantees of voting rights of citizens of Ukraine and legal guarantees of the right of citizens of Ukraine to participate in all-Ukrainian and local referendums in the modern doctrine of constitutional law

In preparing the article, the author aimed to substantiate the author's concepts "legal guarantees of voting rights of citizens of Ukraine" and "legal guarantees of the right of citizens of Ukraine to participate in all-Ukrainian and local referendums." The modern doctrine of constitutional law reflects the judgments of legal scholars on such components of the constitutional and legal status of the man and the citizen as guarantees of human rights and freedoms, legal guarantees of human rights, guarantees of the all-Ukrainian referendum, guarantees of the reference process and the mechanism of democracy. Based on this, the following author's definitions of the studied concepts have been substantiated and formulated: 1) legal guarantees of citizens’ voting rights is a system of legal remedies defined in national legislation, which are used (or applied) by the actors of the election process, public authorities and their officials in connection with the exercise of their powers, as well as measures, which are used by them for the practical implementation by the citizens of Ukraine of their opportunities related to the formation of elected representative bodies of public authority, the granting or receipt of representative mandates; 2) legal guarantees of the right of citizens of Ukraine to participate in the all-Ukrainian and local referendum is a system of legal remedies defined in the national legislation, which are used (or applied) by the actors of the referendum process, public authorities and their officials in connection with their competencies, as well as the measures they take for the practical implementation by citizens of Ukraine of their opportunities related to initiating the matter of holding an all-Ukrainian or local referendum, formulating the content of a decision of national or local significance, and its approval as a result of national expression of will or expression of will of citizens of Ukraine living within the relevant administrative-territorial unit.

Ogłoszenie stanu wyjątkowego w Rebublice Czeskiej w 2020 r. – zarys problematyki

This article characterizes selected issues related to the response of the Government of the Czech Republic to the prevailing situation in the country – the introduction of a state of emergency in 2020. This action was dictated by the desire to avoid the spread of SARS-CoV-2 virus on the territory of the country. In the introductory part of the article the concept of state of emergency in the doctrine of constitutional law was characterized. In the next part it was pointed out that in the Constitution of the Czech Republic the legislator has not regulated all the states of emergency that can be introduced in this country. Other legal acts regulating this issue are indicated.

Separation of powers and the institutional supremacy of the Constitutional Court over Parliament and the executive

South African judges often caution against judicial encroachment into what they perceive as the exclusive domains of the legislature and the executive. Their caveats stem from the doctrine of separation of powers, which classically divides state authority between the three branches of government. However, the classification of the courts, particularly the Constitutional Court, as a branch of the government potentially misconstrues the division of state authority in the Constitution of the Republic of South Africa, 1996. The powers and authority of the Constitutional Court place it at the apex of the legal and political order such that from a conceptual and practical view, the Court is constitutionally superior to Parliament and the executive. As such, a traditional understanding of the doctrine of separation of powers does not properly reflect the South African constitutional arrangement. This contribution re-evaluates the relevance and application of the doctrine of separation of powers in contemporary jurisprudence. It recognises the superiority of the Constitutional Court over Parliament and the executive and shows that the time has come to consider the institutional supremacy of the Constitutional Court as a possible doctrine of constitutional law in South Africa.

LEGAL DEFINITION IN THE CONTEXT OF THE PROTECTION OF HUMAN CONSTITUTIONAL RIGHTS

Introduction. In modern legal science, the category of “legal certainty” is understood and interpreted in different ways. Opinions and approaches of scientists differ in designating the type, nature, elements, regulatory burden and the full content of the idea of legal certainty. The significance of the principle of legal certainty in the context of the protection of human rights cannot be considered without taking into account the influence of Roman law on it. The idea of establishing the rule of law for the “expulsion of all injustice” and contradictions is relevant in modern law. Without a broad interpretation of the principle of res judicata, human rights violations cannot be avoided. Purpose. The purpose of the research is to analyze the nature, content of the normative burden of the category “legal certainty”, various theories and approaches to determining its place in the doctrine of constitutional law, in general, in the context of protecting human rights and freedoms, in particular. Methodology. The methodological basis of the study is scientifically developed and applied in practice, the main scientific methods, such as the dialectical method of cognition, which allows you to analyze all phenomena and processes in their development, the relationship and interdependence, as well as general scientific and private scientific methods, analysis, specific historical, logical historical, systemic, comparative legal and other methods. The theoretical basis of the study is the work of domestic and foreign experts of constitutional law, the theory of state and law, international law, as well as other areas of legal science. The material of a scientific article is based on the study of various scientific sources: monographs, dissertations, scientific articles, materials of scientific and practical conferences, etc. Results. The category of “legal certainty” in the doctrine is considered in different contexts. The unity of opinion in the legal doctrine exists solely to indicate the important role and significant place of the principle of legal certainty in law-making and law enforcement activities of the state. The normative burden of legal certainty is interpreted more meaningfully, since it covers not only the elements of the supposed stability and clarity of the current legal regulation or the essence of the principle of res judicata, but also the consistency, clarity of the entire system of law, the constancy of law enforcement, the practice of the activities of the judiciary, the integrity and compliance of prescriptions law and legal culture and consciousness of all subjects of legal relations to these requirements. Conclusion. To avoid violations of the constitutional rights and freedoms of man and citizen, as well as non-compliance with the constitutional guarantees of their state, including judicial, defense, to ensure the most harmonious state of legal stability of the individual, society and the rule of law is possible only with the application of this approach.

Конституционно-правовая доктрина права интеллектуальной собственности в Российской Федерации

Конституционно-правовая доктрина права интеллектуальной собственности в Российской Федерации

Karol Dobrzeniecki, Prawo wobec sytuacji nadzwyczajnej. Między legalizmem a koniecznością, Toruń 2018. Recenzja

The subject of the review is a monograph by Karol Dobrzeniecki “Law on emergency situations. Between legalism and necessity” (Toruń 2018). According to the reviewer, the nature of the work determines the distinction between an emergency situation, that is, a factual state requiring action not provided for by law and a state of emergency, i.e. a legal institution. The main purpose of the work is to analyze the relationship between the recognition of an exceptional situation only in legal terms, and its approach as a political and moral issue. The work has interdisciplinary character. Karol Dobrzeniecki, analyzing jurisprudence, political philosophical, doctrine of constitutional law, as well as constitutional, international and supranational legal regulations, points out the danger of legal "normalization" of a state of emergency, that is, the penetration of its specific solutions into the law intended for the ordinary situation, and hence blurring of the distinction between ordinary and exceptional situations. The author of the reviewed monograph believes that the exceptional situation should be assessed primarily in moral and political categories, being aware of the tragic nature of the choices made at the time.

THEORETICAL AND APPLIED ASPECTS OF COMPREHENDING A NEW CONSTITUTIONAL DOCTRINE IN UKRAINE

The article is devoted to the research of the nature and essence of some aspects of the new constitutional doctrine in Ukraine. Attention is paid to the basic constitutional and legal concepts actualized at the present stage of development of Ukraine as a democratic, legal, social state and building a civil society in it. Emphasis is placed on the issue of constitutional changes in Ukraine that have taken place over the last decades, both in the form of modernization and reform. The author concludes that qualitative and substantial upgrading of the theoretical and methodological base should be an integral part of constitutional and legal reform. The positions of the leading constitutionalist scientists on the essence of the category of "constitutional and legal doctrine" are analyzed, the significance of the dualism of approaches to its definition and peculiarities of influence on the rulemaking processes and enforcement are revealed. In addition, the importance of not only the process of forming a modern doctrine of constitutional law, the clear definition of basic concepts and general problems that operate and exploring the constitutional law of Ukraine as a science and as a leading branch of national law, but also the process of renewal the categorical apparatus, the introduction of the legal circulation of new categories capable of creating a more solid scientific basis for constitutional law, is proved. The subject of the research is the theoretical and applied aspects of comprehending the latest constitutional doctrine in Ukraine. The purpose is a study of the nature and essence of transformational changes in the constitutional and legal doctrine of Ukraine in view of the transformation processes in society at the present stage. The methodological basis of the research is a set of methods and techniques of scientific knowledge. The methodological construction is based on a systematic analysis that determined its directions. The systematic approach in some issues was supplemented by an axiological (ideological) approach. In order to identify trends, patterns and features of the development of constitutional law as a branch of law in the system of national law of Ukraine such empirical methods as observation, description, comparison and inductive generalization were used. Logical and semantic method was used for formulation and in-depth study of the conceptual apparatus. The dialectical cognition method allowed us to explore the problems associated with the definition of particular theoretical constructs, basic concepts and categories used in the Ukrainian constitutional and legal doctrine. The application of methods of modeling, analysis, synthesis, generalization and analogy made it possible to formulate the conclusions of the research. The conclusions of the research is that the author found that the content of the constitutional reform cannot be reduced to the problems of renewal of the Constitution as a normative legal act or its separate provisions, because its implementation goes beyond the procedural issues and tasks of the legal technique. At the same time, an essential component a qualitative and substantial renewal of the categorical and terminological apparatus of the branch of constitutional law should be part and parcel of the constitutional and legal reform of Ukraine. Special attention also needs to be paid to scientific and analytical monitoring of the state of the introduced changes and forecasting of the socio-political and legal consequences of the transformations, which will allow to expeditiously identify and correct possible mistakes, as well as to make recommendations on further perspectives of the development of the constitutional and legal branch. The practical implications. The results of the research will help to better understand the basic aspects of the latest constitutional doctrine in Ukraine and can be used in the research branch to further study the issue of transformational changes in the constitutional and legal branch.