Constitutional Law Institutions Research Articles

Constitutional Law in the Context of Legal Culture

Constitutional law and legal culture are fundamental and, at the same time, interdependent elements of the legal system of a state. The relevance of research on the development of constitutional law in the context of legal culture is dictated not only by the needs of developing the theory and doctrine of constitutional law but also by contemporary legislative practice and law enforcement, within which a utilitarian approach often prevails. According to this approach, when determining the priorities of legal regulation and the state's legal policy, the goals and tasks that do not sufficiently take into account the achievements and the general level of legal culture of Russian society are placed at the forefront. Meanwhile, legal culture largely shapes the communication for effective interaction between the state and the citizen, civil society institutions. It is the starting environment in which constitutional law ideas are born and developed. At the same time, legal culture significantly determines how these ideas are implemented, as well as specific norms of constitutional law. Such close connections between constitutional law and legal culture direct the analysis of constitutional law in a broad sense as a phenomenon that includes not only the norms and institutions of constitutional law but also the objectified constitutional law culture. Research in this direction also allows us to identify that violation of the specified interrelations has negative consequences for the development and functioning of the legal state model in our country.

Category "trust" in constitutional law: some estimates

The article provides an analysis of the category ,,trust” in constitutional law. It is noted that the category ,,trust” is contained in all institutions of constitutional law. Some theoretical provisions on the concept of ,,trust” are considered. An assessment of the confidence of citizens in the President of the Republic of Belarus is given, on the basis of which it is concluded that there is no trust between citizens and the President, since relations between them are not equal in terms of the strength awarded and received. The author emphasizes that the purpose of the authorities - is to ensure the comfortable life of the people and the authorities themselves. Therefore, the authorities should be interested in free, fair and fair elections. However, elec- tions in Belarus are designed by the state not on the mutual trust of citizens and the state, but on formal prescriptions known only to the authorities. As a result, power from elections to elections replicates itself. In conclusion, the idea is expressed about the need to form an ,,ideology of trust” in the country.

Охрана исторической памяти как институт конституционного права: российский и зарубежный опыт

Introduction. Identification and analysis of factors influencing the transformation of the main institutions of constitutional law, the emergence and development of new constitutional and legal institutions are considered to be an urgent problem for the science of constitutional law. One of the dynamically developing institutions of constitutional law is, in our opinion, the protection of historical memory. The article uses formal legal, historical and comparative methods. Their application will allow for a comprehensive study of the constitutionalization of state memorial policy in Russia and abroad. Theoretical analysis. The protection of historical memory is a multi-component constitutional and legal institution that includes at least three levels: creation and consolidation of the state memorial concept (national image of history); preservation of historical heritage; protection of historical memory from encroachments and distortion. The authors study them in more detail, first, by examining constitutional law of foreign states, and, then, by looking at the constitutional law of the Russian Federation. Empirical analysis. The research into constitutional and legal acts of foreign countries makes it possible to identify a steady tendency towards increasing social and political significance of understanding one’s own national history, which contributes to the formation of a constitutional and legal institution for the protection of historical memory in many foreign countries. Legislation aimed at protecting historical memory was gradually being formed in Russia, including both measures of positive legal regulation and prohibitions on publicly challenging historical facts related to the Second World War. The task of developing a unified political and legal concept of the national image of history and its constitutional and legal legalization turned out to be more difficult. Results. The establishment of the state memorial concept at the constitutional level is aimed at solving the tasks of determining the axiological foundations of development of society, formation of national identity, preservation of cultural identity and spiritual and informational sovereignty. The high social significance of regulated public relations, their relative isolation and internal structural unity give reason to conclude that a new constitutional and legal institution for the protection of historical memory is being formed. This process is typical of both Russia and foreign countries. The controversial issues of the formation of this institution are related to its relationship with the already established principles and institutions of constitutional law.

Constitutional Law Norm: Some Aspects of Structure

The specifics of the norm of the constitutional law of Ukraine in the context of enshrining in it the basic provisions of the constitutional and legal status of a person and a citizen are revealed. It is pointed out that the multifaceted system of constitutional law of Ukraine and all its structural elements consist of the norms of constitutional law. The latter are the basis of the institutions of constitutional law, as well as other parts of the system of constitutional law - natural and positive, general and special part, substantive and procedural, international and national, and so on. That is, the system of constitutional law of Ukraine cannot exist outside its normative dimension. In addition, law, and later its system, were formed on the basis of legal norms, which have historically stood out from other social norms - religious, moral, ethical, cultural, and so on. It is noted that the position of the general theory of constitutional law, the study of the constitutional and legal status of man and citizen is closely related to the problem of determining the subject of constitutional law on the legal status of man and citizen. In this sense, in the science of constitutional law, there are at least two ways to answer the question. One of them as a subject of constitutional law interprets only the basic principles of the constitutional and legal status of man, and the other to the subject of the science of constitutional law also adds the problems of protection and maintenance of the constitutional and legal status of man and citizen. On the other hand, the coverage of the problems of the constitutional and legal status of man and citizen has a purely methodological relevance. The establishment of the foundations of the legal status of a person by the Constitution of Ukraine marked the beginning of the process of compiling a new type of legal culture of our state and its citizens. At the same time, it is the principles of the legal status of a person, formed outside the very institution of the constitutional status of a person, that bring to it the meaning that necessitates truly historical changes in our society.

Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.

ЗМІСТ ПРАВА НА ГРОМАДЯНСТВО: ОКРЕМІ АСПЕКТИ

The article is devoted to the research of current tendencies changes of the content of the right of citizenship under the influence of general integration processes and practices of European Court of human rights. The content of the right of citizenship is subjected under new tendencies assessment taking place in the process of realization of the Association Treaty between Ukraine and European Union. Analyzing the notion of citizenship in the context of Constitution, national legislature, European convention of citizenship differentiation of formal and legal status of an individual, legal relations between an individual and a state, combination of rights and duties according to the current tendencies of the conception of citizenship evolution are carried out. It’s indicated in the work that according to the current realization of the content of the right of citizenship it’s appropriate to maintain practical intention of regulation of legal nature and essence of absent nationality, improving of contextual and legislative principles concerning citizenship and legal identity of an individual in Ukraine as one of the basic constitutional human right. The right of citizenship, as institution of constitutional law, in recent years was proved as subjective right, changing owing to interpretation of citizenship by European Court of human rights within conventional rights and freedoms. At the same time a state, that is the subject of the definition of citizenship policy, regulates all spectrum of issues, connected with citizenship and derivative from above mentioned institution by national legislature. The sphere of citizenship minimally influenced by the norms of international law, that refers legal regulation of citizenship to the internal affairs of a state. A state owns the possibilities to determine a circle of citizens, correcting grounds of citizenship admission, setting restriction for citizens. The right of citizenship is a protection measure of possible behavior directing for the gratification of human interests, appeared in connection with acquirement, changing and outgoing of citizenship. The effectiveness of guarantees of the realization of right of citizenship in Ukraine consists of making legal guarantees that are contained in the norms of laws and depends on logic and systematic expediency, accurate focus and certainty relating specific subject and appropriate social relationship.

Delegation" as a category and institution of constitutional law

Delegation" as a category and institution of constitutional law

Institutionalization of Constitutional Norms in the Dynamics of the Subject Matter of the Legal Regulation

In the paper based on conceptual provisions put forward by Prof. Kozlova, the author sets the objective to identify tendencies that manifest themselves in the development of constitutional and legal institutions at the present stage taking into account the dynamics of the subject of legal regulation, as well as the ongoing transformation of the Russian legal system. In this regard, the author has examined the problem of expanding the field of relations regulated under constitutional law. The author has concluded about the blurring of boundaries between institutions of constitutional law, which entails the problem of attribution of norms to a particular institution. The paper has analyzed the issue of emergence of intersectoral institutions that can be characterized as neither public nor private, as neither substantive nor procedural. This leads to the need to change the very approach to the concept of “institution of law.” It is concluded that constitutional law institutions can contain unwritten legal regulators that can include both rules of natural law and rules of conduct developed directly in the society.

“The Subject Matter of the Branch Gets its Actual Expression in the System:” Prof. Ekaterina I. Kozlova about the System of Constitutional Law and its Institutions

The paper has analyzed the academic heritage of Prof. Ekaterina I. Kozlova in the part of her research of fundamental issues of the theory of constitutional (state) law, namely: the system of the branch under consideration and public law institutions. The author focuses on suggested by Prof. Ekaterina I. Kozlova innovative division of the system of the branch of constitutional law and the structure of the Constitution, the substantive approach to the construction of the institution of state law, consistent defense of the concept of unity of the system of constitutional (state) law. The author has determined the current significance of the conclusions made by Prof. Ekaterina E. Kozlova concerning the development of constitutional law institutions: complication of their structure, expansion and specialization of constitutional law norms and, as a consequence, the emergence of complex institutions and the problem of subsectors; an increase in the number of norms, i.e. principles and procedural rules in constitutional law.

Scientific and Educational Concepts of Modern Constitutional Law

The paper is a review of the scientific positions of known contemporary jurists — theoreticians of law and constitutionalists who address the current approaches to the subject of constitutional law, the content of the scientific field and teaching materials, the teaching of the discipline in higher education. The discussion took place alongside with the release of a new textbook by Professor B.S. Ebzeev "Constitutional Law of Russia"(Moscow: Prospect Publ., 2019. 768 p.). That happened to be an event in science that generated discussion about the subject of the constitutional law, the ways of providing information in the academic literature, the nature and content of the university discipline "Constitutional law", new approaches to the basic institutions of constitutional law, their theoretical and historical origins. The presentation of the mentioned book took place on May 27, 2019 as part of the scientific activities of Kutafin Moscow State Law University (MSAL), i.e. the round table "Constitutional Law of Russia: Scientific and Educational Concepts". According to the author, such events that combine discussion of relevant scientific issues and the presentation of new relevant scientific works contribute to the generation of new ideas in science, practice and teaching, development of optimal ways of development of Russian science and education.

О некоторых вопросах роспуска законодательных органов субъектов Российской Федерации

The article examines the issues of dissolution of the legislative body of the subject of the Federation. Attention is drawn to the fact that the institution of dissolution is an institution of constitutional law, and when the legislative body is dissolved, it is not responsible to the body or official who decided to dissolve it, but to the population, its voters. On the basis of the study it is concluded that it is necessary to Supplement the list of grounds for early termination of the powers of the regional Parliament, as a measure of constitutional and legal responsibility, by including such grounds as the loss of voter confidence. The question of the need to empower the population of the subject of the Russian Federation with the right to decide in a referendum on the dissolution of the legislative (representative) body of state power of the subject of the Russian Federation.

Establishment of state language institute in Ukraine

The article deals with the peculiarities of becoming a constitutional-legal institute of the state language in Ukraine. The main part of the research is devoted to the analysis of the laws of origin of the considered institute, the prerequisites of the modern stage of its development, and therefore the generalization of the factors that led to the establishment and final consolidation at the legislative level of the status of the state language in the context of creating the national language of the people of Ukraine, the establishment of the Ukrainian political nation. Within the framework of this article, considerable attention is given to the characterization of the stages of the genesis of the institute of the state language, starting from the 9th to the beginning of the twentieth centuries. The author of the article emphasizes the conditions that contributed to the formation of regulations in the field of language policy in Ukraine. The subject of the study is the legal monuments of Ukraine, the legislation in force in the territory of Ukraine during the period under review, which regulated the language relations and, consequently, the approval of the state language as a legal institute. Critical analysis of the normative mechanisms of functioning of the Institute of the State Language was carried out. It is suggested to take into account certain features of the legal system, characteristic of a specific historical period of development of Ukraine. This approach, in the author’s opinion, is expedient, since it provides an opportunity to distinguish the main stages of becoming a state language as an institution of constitutional law and to understand the mechanism of constitutional and legal regulation of linguistic relations. At the same time, a chronological division of the process of formation of the state language institute into periods according to belonging to the stages of its formation was made. The regularity of the relevant division is determined, which defines the purpose of this study, and therefore, the legal characterization of the selected periods and stages of formation of the Ukrainian language, the search for regularities in their correlation. Keywords: constitutional-legal institute, state language, Ukrainian language, periods of formation of state language institute.

Core Institutions of Constitutional Law

The article is devoted to current theoretical issues related to the system-structural formation of constitutional law. The author considers the main approaches to the subject matter of constitutional law and its constituent institutions. Particular attention is paid to the characteristics of the main institutions of constitutional law, to which the author relates the foundations of the constitutional system, the foundations of the legal status of the individual, the federative structure, the right to vote, the foundations of the formation and functioning of the system of public authorities. An important place in the article is assigned to the definition and analysis of factors influencing the development of system-forming institutions, as well as their inherent tendencies. In the author's opinion, the essence of the constitutional law core institutions contains not only legal, but also moral principles.

Constitutional humanitarian law: basics of conceptual paradigm

In modern conditions of constitutional development of Ukraine, favorable conditions are created for the formation and separation in the system of national constitutional law of such its humanitarian component as the constitutional humanitarian law.It is grounded to distinguish three main reasons of this.The first reason – is the current stage of constitutional reforms in Ukraine, which determines this tendency of the development of national constitutional law as its humanization and improvement of human dimension of constitutional and legal realities. Hence, the recognition and legal support for livelihood, development, self-fulfillment and protection of such subjects of constitutional law as a person, a citizen, society (including civil society).The second reason for separation and formation of humanitarian law in the system of constitutional law is strengthening interaction between national and international law. This is particularly evident under current conditions of European integration of Ukraine. International acts (including in human rights and freedoms) are (under certain conditions (see: Art. 9 of the Constitution of Ukraine) part of domestic law.The third reason is associated with the need of complex regulation of social relations that arise between people, civil society and state by constitutional and legal norms for the purpose of establishing constitutional and legal freedoms.The nature of constitutional humanitarian law is marked in the fact that modern constitutional law has a relationship with humanism (humanism – Lat. “humane”), which is found in its humanitarian focus, that is – to focus on ensuring the constitutional and legal freedoms, development and sustainable development of civil society.Constitutional humanitarian law – is an institution of constitutional law, which defines the establishment and protection of human rights, development of civil society through constitutional and legal means. The subject of its regulation are the social relations that arise between people, civil society and the state in the implementation of public (state) authorities for the purpose of establishing constitutional and legal freedoms

Scientific points of view of the MSAL professors on the subject of constitutional law

The author carries out an analysis of most debatable issue of theory of constitutional -namely, subject of constitutional as branch of legal science. Professors of Department of Constitutional Law of MSAL Y.N. Umansky, A.A. Bezuglov, A.K. Makhnenko, O.E. Kutafin, E.I. Kozlov, N.A. Mikhalev, V.I. Fadeev devoted their studies to subject of constitutional law. They mainly shared same views on content, nature and characteristics of subject of constitutional and their views now constitute basis for development of constitutional and legal science enhanced by modern scholars of Department -scientific adherents of scientific school of issues concerning subject of constitutional law. The article characterizes peculiarities of subject of constitutional that distinguish it from other branches of law. The author justifies dual nature of subject of constitutional law. Analyzing different opinions of scholars that primarily represent either narrow or broad approaches to definition of subject of constitutional law, author notes that adherents of O.E. Kutafin and E.I Kozlova scientific school distinguish foundations of constitutional system of Russian Federation, foundations of legal status of individual, central government system and local self-government system in content of subject of constitutional law. The author criticizes views of scholars who consider that enshrining foundations of social system in Constitution is a totalitarian tradition. She also criticizes opinion that constitutional is not only a «common» branch of law, but that it is also a «general part of whole Russian law» that has «a cumulative subject representing all branches of Russian law». In addition, article criticizes approach under which constitutional is considered to be an integrating, complex branch of that develops as a result of integration of related institutions and branches of as the part common for all branches of law or suprabranch. The article also addresses issue of drawing line between constitutional and other branches of law, separate institutions of which are closely connected with institutions of constitutional law. Reference is made to changes that took place in subject of constitutional at different stages of state development; article justifies statement that current content of subject of constitutional has considerably changed and expanded; author explains reasons of this phenomenon.

Выборы высшего должностного лица муниципального образования: правовые модели

High dynamics of improving federal legislation determines the relevance of consideration the order of election of officers. The legal status of officials is a basic institution of constitutional law and requires detailed consideration. Description of new legislative model the order of election of the higher officials of municipalities are the purpose of the work. Consideration of designated questions in the context of enforcement practice is the main objective of the study. The conclusions of the paper, allow to use new legislative provisions in accordance with the legal nature of the institution.

Samorządy zawodów zaufania publicznego na przykładzie samorządu radców prawnych. Perspektywa konstytucyjnoprawna

The paper is an attempt to analyze the self-government of professional public repose confidence as an institution of constitutional law. Considering that the Polish Constitution of April 2 1997 contains regulations for both the self-government as well as qualified self-governments, the selfgovernment of professional public repose confidence belongs to the second group. An important element of this analysis is the reference of these regulations to the principles of government of the Third Republic. These are included in both the Polish Constitution as well as in the preamble to the Constitution. Indeed the self-government of professional public repose confidence is contained in the three principles: subsidiarity, proportionality and self-government. The functioning of these selfgovernments is also associated with the principle of self-government (Article 7 of the Constitution) and a democratic state ruled by law and implementing the principles of social justice (Article 2 of the Constitution). In order to properly define the role and functioning of the self-government of professional public repose confidence we should point out the differences between the self-government of professional public repose confidence (Article 17.1 of the Constitution) and other types of professional self-governments (Article 17.2 of the Constitution). On the other hand, to achieve this objective it is necessary to analyze them in conjunction with the provisions of Articles 22, 31 paragraph 3 and Article 65 paragraph 1 of the Constitution. However, in order to analyze the self-government of solicitors which is one of public repose confidence profession, it is necessary to examine the Law on solicitors, as well as the Code of Ethics Counsel. The regulations contained in the abovementioned documents are an extension of the normative content of the Constitution relating to the public repose confidence profession. The result of the analysis above is an attempt to define self-government of public repose confidence profession and in particular to identify the elements necessary for its functioning. Furthermore, the role and activity of the self-government of solicitors will contribute to development of Poland as a democratic state ruled by law that implements the principles of social justice and ensures the freedoms and rights of persons and citizens which are important elements of civil society.