Sources Of Constitutional Law Research Articles

АНАЛІТИЧНИЙ ОГЛЯД ПУБЛІКАЦІЙ З КОНСИТУЦІЙНОГО ПРАВА У ВИДАВНИЦТВІ ОКСФОРДСЬКОГО УНІВЕРСИТЕТУ (Монографічні видання)

The integration of Ukraine into the world and European research space in the field of jurisprudence requires a thorough acquaintance with the latest methodological approaches and theoretical and doctrinal developments of the world's leading experts. Familiarity with the publishing activity of foreign legal scholars and the work of academic publishing houses plays an important role in this regard. The presented analytical review highlights the activity of publishing constitutional and legal studies of the Oxford University Press, which is the largest university publishing house in the modern world. The characteristics of constitutional publications are structured according to thematic sections: sources of constitutional law and reference publications, studies on the constitutional law of individual countries and regions, as well as problems and phenomena related to constitutional development (freedom, deliberative democracy, human rights, local self-government). If we depart, so to speak, from the territorial principle, the following thematic blocks can be distinguished in relation to the issues of Oxford University publications on constitutional law: a) comparative legal constitutional studies; b) analysis of constitutionalism within the framework of classical doctrinal discourse (constituent elements of constitutionalism, constitutionalism in the philosophical dimension, problems of the social context of modern constitutionalism); c) globalization of law and the phenomenon of global (transnational, supranational) constitutionalism. This distinction is quite arbitrary, because two or more problems may be covered in a particular publication. Publications of the University of Oxford accumulate the main achievements of world jurisprudence in the field of constitutional law. Many of the characterized editions are available on a special online resource "Oxford Scholarship Online".

Delegated rulemaking by the Central Election Commission of Russia

The issue of systematization of legislation is quite relevant and the task of solving it is part of the state legal policy. At the same time, the solution of the above problem is impossible in isolation from the study of a number of issues affecting both the theoretical and practical aspects of lawmaking and law enforcement activities. For example, one of these key issues is the hierarchy of normative legal acts, including those issued by state bodies of the Russian Federation. The issue of standard-setting powers of certain state bodies is quite controversial. The article investigates the practice of implementing the institution of delegated legislation in the Russian Federation on the example of the practice of delegated rulemaking of the Central Election Commission (CEC) of Russia. The study consistently considers issues of the constitutional and legal status of the Central Election Commission of the Russian Federation, including regulatory powers related to it. Various points of view relevant to the scientific community on this issue have been outlined. At the same time, the authors proceed from understanding that rulemaking powers are integral attribute properties of the constitutional and legal status of the CEC of Russia. Based on the tasks set, the issues of the forms of regulatory legal acts of the CEC of Russia as sources of constitutional law are investigated. The authors indicate the need to diversify acts issued by the CEC of Russia within the framework of exercising its direct powers, with acts issued within the framework of delegated rulemaking. In this regard, special attention is paid to legal regulation regarding the new electoral procedure - remote electronic voting. Given the enormous importance for the state and its obligation to ensure transparency and legitimacy in electoral procedures, it is clear that their legislative regulation should be adequate to the level of tasks to be solved. At the same time, the authors believe that acts of delegated rulemaking, subject to certain restrictions and requirements, meet the specified characteristics. The methodological basis of the study includes the dialectical method, methods of analysis, synthesis and analogy, as well as formal-legal and comparative legal methods.

The role of constitutional policy in the formation of a democratic society and the rule of law in the conditions of the Russian legal system

The study purpose is to estimate the direct relationship of constitutional provisions and other sources of constitutional law with the rule of law concept, law and democracy effectiveness, to compare and determine the priorities of Russia’s constitutional values. Through a comparative legal method, issues related to the constitutional provisions interpretation and legal system characteristics at specific stages of its development in Russia and foreign countries are examined. The results of this study reveal the essence of the genesis and evolution of sources of Russian constitutional law and are of practical importance for subjects of the formation of state policy in the field of constitutional law.

CURRENT TENDENCY OF DEVELOPMENT OF CONSTITUTIONALISM: FROM WEST TO EAST

The article is intended to determine the tendency of current constitutional development. Using formal-legal, systematic and comparative methods, the author considered the problem of the impact of the constitutional values, which emerged in western societies and received the universal importance, on the constitutional development in the Eastern countries. The novelty of the study is using modern sources of constitutional law. The concept of «the global constitutionalism» is considered critically in the article. At the same time, the author is of the opinion that modern constitutions became inherent in a state. Furthermore, the western constitutional values influenced largely the contents of the modern east constitutions. The Scale of such influence, along with its forms are different, depending not only on external but also on internal factors of the state development. As a result of the study, the conclusions are drawn regarding the features of the modern constitutionalism in East countries, some common features and differences in the constitutional development in different countries, which are traditionally assigned to the eastern type of civilization, explanations of the formalization of the constitutional process.

Supra-constitutional norms in constitutional law

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.

Impact of the Omnibus Law/Job Creation Act in Indonesia

The purpose of this research is to analyze the impact of the Omnibus Law/Job Creation Act related to the discussion process and post-endorsement by the legislature, the House of Representatives of the Republic of Indonesia. This research uses the normative juridical method, which is a legal research conducted by examining library materials. or secondary data and carried out with descriptions, measurements and accurate reporting of the characteristics of some of the phenomena under study. The findings of this study are that the government and legislature in the process and discussion tend to conflict with the 1945 Constitution article 1 paragraph (3), article 27 paragraph (1), and article 28 paragraph (5) and Law No.12 of 2011. regarding the Formation of Legislative Regulations as updated by Law No.15 of 2019 . Pancasila as a philosophische grondslag is stated in the Preamble of the 1945 Indonesian Constitution which means that Pancasila is positioned as a source of constitutional law in Indonesia, is an inspiration for the formation of the rule of law in Indonesia. As a result, civil society organizations oppose and reject this regulation so that it is hoped that President Joko Widodo can issue a Government Regulation in Lieu of Law.

Статутне право Італії: історико-правові традиції та сучасний стан

The purpose of the article is to study the features of the statutory law of Italy in historical retrospect and in modern reality. In order to achieve it, the following tasks must be solved: 1) to study the process of formation of the statutory law of Italy; 2) highlight the specific features of the Italian legal system; 3) disclosure of the function of the institutions of direct democracy, reflected in the statutes; 4) to find out the nature of statutory autonomy; 5) to explore the varieties of statutory sources in Italy; 6) to determine the legal significance of the statutes of Italy during their evolutionary development. The methodological basis of the study is related to the use of a number of methods, techniques and approaches in the study of the statutory law of Italy. In particular, we are talking about historical and comparative law, formal law and semiotic methods, dialectical, anthropological and epistemological methods, as well as structural-functional and systemic approaches. Scientific novelty. Statutes as sources of Italian law are legal acts, the legal force and procedure for their adoption depends on the territory of their distribution (autonomy, region, province, commune), the sphere of their regulation includes the principles of organization of the territorial subject, its legislative and administrative powers, forms of interaction with the state. These sources are the legal basis of Italian regionalism, the «regional» state. Conclusions. The statutes are a feature of the Italian legal system, which is part of the Romano-Germanic legal family, a historical and legal tradition that originates in the first statutes of free cities and developed into the Statute of Albertino – the first Constitution of Italy. These are tools to confirm autonomy (for regions with a special statute), independence on a certain range of issues (for ordinary regions) and regional identity. Modern statutory sources in Italy are divided into several types and differ in legal force, procedure for adoption and revision, as well as the scope of regulation. The special statutes of the 5 autonomies of Italy are sources of constitutional law and have a complicated procedure of adoption and revision, the other 15 Italian regions are based on ordinary statutes (statutes of common law). The constitutional reform of 2001 gave constitutional recognition to the statutes of municipalities, communes and provinces (local acts, second-tier sources). Their experience of adoption and implementation, «statutory autonomy» and other features are of particular importance for the Italian legal system, as well as worthy of attention in terms of improving the legal framework of local self-government in Ukraine and other countries. Keywords: sources of Italian law; statute; statutory autonomy; special statute; Italian regionalism; lawmaking; Romano-Germanic legal family.

New Zealand Constitution: a fusion of legislative acts, case law (stare decisis), customs (conventions) and treaties

The article examines the genesis of the Constitution of New Zealand, the formation of its constituent parts and the main sources of constitutional law; it generally profiles the Constitution. The article shows the mutual influence and interweaving of the components of the unconsolidated Constitution of New Zealand in contemporary conditions. In particular, the constitutional provisions presented in the Treaty of Waitangi are examined, and attention is focused on the contemporary problems of its current interpretation and application, although the historical context of its drafting and conclusion is shown. The article deals with the interpretation of some basic constitutional terms when using different official languages of New Zealand, first of all Maori and English tongues. In this regard, one of the urgent issues, which are being discussed quite widely in New Zealand, is the discrepancies found in the wording of fundamental constitutional provisions in the official texts of the Treaty of Waitangi in these two languages. The article examines a number of court decisions containing constitutionally significant precedents (stare decisis), including those on the application of the Treaty of Waitangi. The article shows how, as a result of the judicial complex interpretation of the Treaty of Waitangi and the legislation, the principles of the said Treaty have been developed. The article provides a general characterization of the laws and other regulatory legal acts that together form part of the unconsolidated Constitution of New Zealand. Special attention is paid to the 1986 Act of Constitution because of the importance of the constitutional issues regulated by this statute. The development of constitutional provisions in the 1986 Act of Constitution in comparison with the previous 1852 Act of Constitution is presented. At the same time, the laws, which are considered in New Zealand as an integral part of the Constitution, are summarized. The place and role of the laws of the United Kingdom of Great Britain and Northern Ireland in the modern Constitution of New Zealand are determined. Along with this, other regulatory legal acts that form part of the Constitution are being investigated, in particular, the Letters Patent and the Cabinet Manual. The article also presents New Zealand customs, which have constitutional significance, including conventional norms, and the peculiarities of their application.

LEGAL NATURE OF SOURCES OF CONSTITUTIONAL LAW OF UKRAINE

Purpose. The purpose of the paper is to analyze the concepts and problems of the legal nature of the sources of constitutional law of Ukraine and to analyze the basic approaches to understanding the sources of constitutional law and their features. Methodology. The methodology involves a comprehensive analysis and generalization of available scientific and theoretical material and the formulation of relevant conclusions and recommendations. The following methods of scientific knowledge were used during the research: terminological, logical-semantic, functional, system-structural, logical-normative. Results: The research outlines the basic approaches to understanding the sources of constitutional law and their features. Based on this, these approaches are summarized and our view of the legal nature of the sources of constitutional law of Ukraine is offered through the disclosure of their functions and features. Originality.The article deals with the legal nature of the sources of constitutional law of Ukraine, outlines the basic approaches to understanding the sources of constitutional law and their features. These approaches are summarized and their view of the legal nature of the sources of constitutional law of Ukraine is offered through the disclosure of their functions and features. Practical significance. The results of the research can be used in legislation and law-enforcement activities.

«FUNDAMENTALS OF THE STATE SYSTEM OF THE HALYCH REPUBLIC» IN THE CONTEXT OF THE EUROPEAN CONSTITUTIONALISM

Purpose. The purpose of this work is to analyze the content and legal nature of the constitutional project «Fundamentals of the State System of the Halych Republic», developed by WUNR representatives and submitted to the Entente States in April 1921. Method. The methodological basis of the study was the combination of principles and methods of scientific knowledge. For objectivity of the research, a set of general scientific, special-legal, special-historical and philosophical methods of scientific knowledge, in particular historical-legal, comparative, special-legal and others, was used, which allowed to systematize the narrative base and formulate relevant conclusions and generalizations. Results. In the course of the research the significant influence of the European experience of the national state-building on the reflection of human rights and freedoms in national legislation was determined. A comparative analysis of the project "Fundamentals of the State System of the Halych Republic" and the Declaration of Human and Citizen Rights in 1789 was established. This legal act is deeply democratic, fair and humane, enshrining universal values where human, its rights and freedoms are of the highest social value. Scientific novelty. The work deepens Ukrainian historical and legal studies in the field of the formation of the national system of constitutionalism and the evolution of political and legal thought of the first half of the twentieth century. It is argued that in the conditions of modern reforming of the Constitution of Ukraine, lawyers should refer both to European sources of constitutional law and to projects already known to us by the constitution of Ukraine, created by the creators of the Western Ukrainian People's Republic, who have not lost their relevance to date. Practical importance. The results of the study can be used in further historical and legal studies, preparation of special courses.

Наравне с Конституцией: источники права, обладающие высшей юридической силой в Российской Федерации

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.

Sabdatama dan Sabdaraja Sri Sultan Hamengku Buwono X dalam Perspektif Keistimewaan Daerah Istimewa Yogyakarta

The issue of Sabdatama and Sabdaraja by Sri Sultan Hamengku Buwono X has created pros and cons both from the internal parties and external of Kraton (Kingdom). This research is to study two issues: first, what is the juridical implication with the issues of Sabdatama and Sabdaraja towards Regulation No. 13 of 2012 about the Specialty of Special District of Yogyakarta (DIY)? Second, can Sabdatama and Sabdaraja be as a reference in revising the Law of Specialty? The research method used is the normative-juridical method with the historical approach and the regulation approach. The result of this research concluded: first, the substances of Sabdatama and Sabdaraja are contradicting with the Specialty Regulation of Special District of Yogyakarta and is not included in the hierarchy of law and regulation and not as a source of constitutional law. Second, Sabdatama and Sabdaraja are not suitable if used as a base to change the Law of Specialty of Special District of Yogyakarta. Keyword: Sri Sultan Hamengku Buwono X, Law of Specialty of Special District of Yogyakarta (DIY), sabdatama, and sabdaraja

1993 : (The Constitution of the Russian Federation in 1993: Analysis of the Main Results and Trends of the Constitutional System and Public Institutions in Russia)

Russian Abstract: Новая система российского законодательства, в которой центральное место занимает Конституция РФ 1993 года, сформировалась относительно недавно. В рамках данной системы появились новые источники конституционного права, расширился предмет сферы конституционно-правового регулирования, произошло становление качественно новых правовых институтов. Как следствие, одной из важнейших задач, стоящих перед юридической наукой и практикой сегодня, является не только анализ происшедших качественных изменений и тенденций развития конституционного законодательства Российской Федерации, но и выработка концепций и формирование решений, направленных на его совершенствование и оптимизацию.Можно ли заложить в Конституцию возможности для долгосрочного экономического роста? Конституции начинались как основные законы о власти (инструмент правления), как компромиссы между наиболее влиятельными и сильными группами, лидерами. В работе рассматриваются примеры того, как конституция может защищать права собственности и способствовать долгосрочному процветанию.English Abstract: The new system of Russian legislation, which occupies a central place the Constitution of the Russian Federation in 1993, was formed relatively recently. Under this system, new sources of constitutional law, has expanded the scope of the subject of constitutional-legal regulation, there was the emergence of qualitatively new legal institutions. As a consequence, one of the major challenges facing the legal science and practice today is not only an analysis of qualitative changes have occurred and trends of the constitutional laws of the Russian Federation, but also to develop concepts and forming solutions to its improvement and optimization.Can I lay the Constitution opportunities for long-term economic growth? Constitution began as the basic laws of power (instrument of government), as a compromise between the most influential and powerful groups leaders. The paper deals with examples of how the constitution can protect property rights and to promote long-term prosperity.

CONSTITUTIONAL FOUNDATIONS OF MODERN STATE IN THE REGIONAL PRIVILEGES OF THE GRAND DUTCHY OF LITHUANIA

The results of the analysis of the regional privileges of the Grand Dutchy of Lithuania (hereinafter referred to as GDL), carried out within the scope the research on the history of Lithuanian constitutionality, are presented in the article. Provisions, which are the basis of construction and functioning of the modern state power – the nation‘s sovereignty, separation of powers, rule of law, parliamentarianism, etc., are identified in the regional privileges of GDL. It is inferred, that from the legal point of view all the regional privileges in GDL issued in 1387–1568 were the sources of constitutional law (constitutional legal acts) in the modern sense of the term. The legal connection between the regional privileges and actual Constitution of the Republic of Lithuania is revealed.

BENDRAVALSTYBINĖS LDK PRIVILEGIJOS KAIP LIETUVOS KONSTITUCINIAI AKTAI

Using legal instruments authors of the article aim to determine whether the regional privileges of the Grand Dutchy of Lithuania (hereinafter referred to as GDL) of 1387-1568 can be refereed to normative legal act or normative legal contract – one of the recognized source of law. There should be also revealed the special procedure of lawmaking and external result expression, which let to ascribe the privileges to the constitutional law (not ordinary law) sources. Finally, the formal legal connection between the privileges and later constitutional acts of GDL – three Lithuanian Statutes and integrated Constitution of 1791, is revealed.Firstly, the preconditions and necessity to emerge, resources for issue of the regional privileges of GDL are explored While analyzing the situation of state formation of those days, the authors conclude that there were preconditions for emergence of regional norms as well as the external form for norms – normative legal act, at the end of XIV century. The regional normative legal acts of GDL naturally originated as privileges – the type of normative legal act that is typical to medieval European law.In the second part of the article the process of issuing, recording and systematization of the regional privileges of GDL are analyzed and they are characterized as the result of lawmaking.The part of lawmaking raised to the level of regional privileges regulated four types of public relations, which fell within the public law sphere and most of it – within the constitutional sphere (in the light of modern jurisprudence). The specific of process of issuing, recording and systematization (which was a rare phenomena in GDL) of the regional privileges of GDL distinguished them as having higher legal power comparing to other normative legal acts and other sources of law.The scientific explanation for the validity of these privileges is given in the third part of the article. The authors state that the connection between the privileges and three Lithuanian Statutes may be explained in the light of interaction among the Act of February 16, 1918, the Resolution of constituent Seimas of May 15, 1920 and later constitutional acts. It is inferred, that from the formal legal point of view all the regional privileges in GDL issued in 1387–1568 were the sources of constitutional law (constitutional legal acts) in the modern sense of the term.

Levels of Generality, Constitutional Comedy, and Legal Design

Many commentators write happy endings to their constitutional stories. This essay examines a few techniques for reaching preferred conclusions without falling outside the boundary of conventional constitutional argument. The investigation is oriented around the levels of generality by which sources of constitutional law are characterized. Level of generality characterizations apply to all sources of constitutional argument including constitutional clauses, originalist history, tradition, and judicial precedent. But there is more than one kind of “generality” -- or at least more than one idea associated with that concept in the law literature. We can isolate three different dimensions of source characterization that recur in modern constitutional debates: (1) abstractness, (2) breadth, and (3) dynamism. Each dimension is conceptually distinct, practically important, and independently interesting. However, potential manipulation of choices along these dimensions may create credibility problems for constitutional advocates who promote one set of characterizations over others. The essay closes by suggesting that, happily, constitutional advocates advertise serious matters of legal design when they argue about the degree of abstractness, breadth, and dynamism in constitutional law. Regardless of how these characterization decisions are made, they help determine the character of the legal system for us all.

El Derecho Internacional como fuente del Derecho Constitucional

El presente trabajo trata de demostrar que el Derecho Internacional ha llegado a constituirse en fuente del Derecho Constitucional. Para este efecto, se analizan las relaciones entre el Derecho Internacional y el Derecho interno haciendo un breve resumen de las teorías dualista y monista y la jurisprudencia internacional. Luego se indaga la recepción del Derecho Internacional consuetudinario y Derecho Internacional convencional en los ordenamientos internos, lo cual se estudia a la luz del Derecho comparado, concluyendo que se incorporan de distinta manera de acuerdo con la Constitución respectiva. A continuación se analiza la jerarquía del Derecho Internacional consuetudinario y convencional respecto a las normas nacionales, para lo cual se hace un bosquejo del Derecho Constitucional comparado. Luego se estudia la recepción, jerarquía y normatividad constitucional del Derecho Internacional en derecho colombiano. Por último, se deducen conclusiones del análisis jurídico realizado. Las dos conclusiones principales son estas: la primera, que la recepción y jerarquía del Derecho Internacional (consuetudinario o convencional) respecto del Derecho doméstico o Nacional se resuelve de acuerdo con lo previsto en la Constitución de cada Estado. La segunda, que un Estado no puede alegar disposiciones de su Constitución para negarse a cumplir un tratado, pues si lo incumple incurre en responsabilidad internacional.

The Private Bond Case as a Postponement of the Real Issue

The discussion which immediately follows a significant Supreme Court ruling often emphasizes its political and economic effects; and if any respectable chain of reasoning can be found serve the purpose, a decision expedient from an economic angle becomes correct from a legal point of view. Moreover, it is widely recognized that in the field of Constitutional Law the Court may escape the past without restricting the future by somewhat forced construction and a selection from among competing analogies. The existence of this process and the desire of the critic approve a practically desirable result combine minimize the importance of a single decision as a source of Constitutional Law. Yet in the long run the true significance of the case may prove be that it furnishes points of reference on which the Court, if it chooses, may later rely. Viewed in this latter sense, as a precedent for the future rather than a result socially desirable for the present, the case of Norman v. Baltimore & Ohio R. R.' is found contain many important implications which have passed unnoticed. In particular, if, as seems altogether likely, the process of extending federal powers continues, the necessary and proper clause and the Fifth Amendment as a substantive check thereon will inevitably become the focal points of a portentous struggle. An attempt will be made in the following pages subject the Norman case careful analysis with a special view these implications. The plaintiff's bond in this case provided that payment of principal and interest would be made in coin of the standard of weight and fineness existing when the bond was issued. A joint resolution of Congress declared invalid all contract provisions, past or future, which purported to give the obligee a right require payment in or a particular kind of coin or currency, or in an amount in money of the United States measured thereby. . . 2 The first section of Mr. Chief Justice Hughes' opinion deals with the interpretation of the clause in the bond. With the issues involved in this matter we are not here concerned. Suffice it say that, while discarding the theory that the contracts were for as a commodity, or bullion, the Chief Justice also denied by implication the contrary contention that they were for coin and nothing else. They were, he concluded, gold value contracts,