Theory Of Constitutional Law Research Articles

Pengaturan Dewan Pengawas KPK dan Implikasi Terhadap Indepedensi Komisi Pemberantasan Korupsi dalam Sistem Ketatanegaraan Republik Indonesia

This study aims to analyze how the existence of the Supervisory Board affects the KPK's position as an independent institution. In addition, this study also identifies obstacles in the implementation of the Supervisory Board regulation that may impact the effectiveness of the KPK. The method used in this research is normative legal research that relies on document studies and legislation related to the KPK as well as the theory of constitutional law. The result of this research is that the regulation of the KPK Supervisory Board, especially in granting licenses for KPK legal actions, has the potential to weaken the independence of the KPK. The duties of the Supervisory Board, which enter the realm of pro justicia, lead to unclear roles and bureaucratic obstacles in the investigation process. This has implications for reducing the effectiveness of the KPK in eradicating corruption in Indonesia.

Constitutional legal limits to privacy protection

Relevance. The right to privacy, as one of the basic constitutional rights of man and citizen, is subject to protection in accordance with Art. 23, 24 of the Constitution of the Russian Federation. On the basis of constitutional justice and the scientific views of theorists, the content of the law in question is disclosed, problems of a legislative and terminological nature that affect its content and the establishment of limits of constitutional legal protection are described.The purpose of the study is to supplement theoretical provisions that contribute to the deepening of scientific knowledge about the protection of the constitutional right to privacy, its content and the limits of constitutional legal protection.Objectives: to analyze the practice of the Constitutional and Supreme Court of the Russian Federation in cases of protecting the right to privacy and the scientific positions of scientists regarding its concept; describe the state of constitutional and legal protection and the content of the right in question; identify legislative and terminological gaps impeding its proper protection; define the boundaries of constitutional legal protection.Methodology. The study was carried out using methods of analysis and synthesis, induction and deduction, documentary, formal-legal, system-analytical and formal-logical methods. The results of the study are formulated theoretical provisions characterizing the content of the right to privacy and the objective limits of its constitutional and legal protection.Conclusion. In the theory of constitutional law and the practice of the Constitutional Court of the Russian Federation, there is a change in the trend in the interpretation of the right to privacy from «negative» to «positive». It is transformed by supplementing the concept of private life with new types of information that make it up (the right to genetic inviolability, inviolability of personal data, secrecy when using reproductive technologies, etc.). A forecast is given on the modernization of the system of personal human rights with the recognition of an independent right to protect personal data.

Безопасность как основа гражданской солидарности в условиях чрезвычайной ситуации

On the events of the emergency experienced by the author example, the civic solidarity is revealed are essence, formulated as a part of the concept of citizenship and as an opportunity for an individual to express himself in society through association. On positive and negative examples of citizens solidarity are shown that have arisen due to security threats, the problems of possible or proper citizens behavior to ensure the balance of interests of society and the state are shown. The author's characteristic of civil solidarity concept is proposed, the proper institutionalization of which in the theory of constitutional law will contribute to the achievement of mutual trust between society and citizens.

Interpreting Dicey

Mark Walters’s book examines the intellectual development and legacy of Albert Venn Dicey, one of the most influential constitutional theorists of the twentieth century. By sifting through an impressive array of published and unpublished sources, Walters reconstructs Dicey’s characteristic legal turn of mind and invites readers to interpret it in the best possible light by highlighting implicit, but unarticulated, connections between his theory of constitutional law and the much older tradition of common law constitutionalism. The book deepens one’s understanding of the historical context that enveloped and informed Dicey’s distinct legal perspective and convincingly debunks the popular assumption that his influential constitutional theory repurposes Austinian conceptions of law and sovereignty. Furthermore, the book questions whether other aspects of Dicey’s constitutional theory – particularly, his provocative excursus on the relationship between the rule of law and droit administratif – should be reconsidered in light of subtle revisions in his later works. While Walters’s pluralistic interpretation of Dicey’s assessment of droit administratif is more tentative, it sheds an important new light on how his highly influential constitutional theory might be rehabilitated to enable contemporary public lawyers and theorists to grapple with otherwise intractable problems through the common law method of reasoning.

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.

The concept and structure of activities in the field of organizing and holding elections to government bodies in the theory of constitutional law

The article aims to study the concept and structure of activities in the field of the organization and holding of elections to governing bodies in the theory of constitutional law. The main method was the analysis of systems that allows to study the system of activities in this field. The latter can be represented by different structures depending on the stage of their cognition as an object or their internal processes. In addition, the article used the historical method, deduction, induction, etc. It is concluded that the system of activities in the field of the organization and holding of elections to the governing bodies is a unit of their properties and integral elements, order and their interaction, as well as stable connections between them, based on the principles of preservation or invariance, which are organized as appropriate relations between the structural elements themselves and their external environment, that is, the sphere of the organization and conduct of elections to the governing bodies.

Определение отдельных коллективных субъектов конституционно-правовых отношений по территории их функционирования, включая города

A very difficult issue in the theory of constitutional law is the correct definition of subjects and those legal relations in which they participate. Some can be identified immediately, seeing, for example, the passport of a citizen of the Russian Federation, but the state in its physical or other expression is more difficult to identify. This is despite the fact that most scientific literature is devoted to the relationship of these particular subjects among themselves. Collective subjects, some of which are such only in relation to the territory in which they carry out their functions, are very important in contemporary reality. This issue is devoted to this work.

Public Services in Election of Regional Chairman

The purpose of this article is to describe the form of implementation or public services in regional head elections. This problem is related to several related theories, such as constitutional law theory, democratic law theory, people's sovereignty law theory. This article also discusseslaw and public policies implemented in the elections in Indonesia. MethodThe research used in writing this article is a type of normative legal research. The results of the study indicate that legal theory and public policy are needed in Indonesia. This is done as a basis for implementing democratic practices. The form of implementing laws in constitutional theory is that the KPU establishes KPU Regulations and KPU Decrees in the implementation of Pilkada and provides solutions to problems of implementing law that are contrary to KPU regulations. The mechanism is if there is a PKPU which is deemed contrary to the Election Law, then the examination will be carried out at the Supreme Court in accordance with the provisions in Article 9 paragraph (2) of Act No. 12 of 2011. The implementation of the theory of democratic law in Indonesia is by holding general elections to elect leader, starting from the regional level to the national level. These activities are carried out in order to realize the government system that the people want. The implementation of the theory of popular sovereignty in the Pilkada is the determination of the victory of a candidate for regional head which is determined based on the number of valid votes based on applicable law. The theory of sovereignty also contributes to implementing a democratic system through the principles of people's sovereignty. The conclusion from this research is that the theories that play a role in the implementation of the Pilkada include the theory of democracy, the theory of the constitution, and the theory of people's sovereignty. The three theories are interrelated to support the implementation of Pilkada in accordance with democratic principles. In addition, there are three levels of public policy, namely macro, meso, and micro public policies.

The legal nature of the deputy mandate in the theory of Constitutional Law

The question of the legal nature of the deputy mandate in constitutional law has been discussed for several centuries. The consolidation in the basic laws of the states of provisions on mandatory or free deputy mandate was conditioned by historical events and the level of development of civil society. Based on the legal nature of the deputy mandate, the role of the deputy is also determined (the attorney who receives instructions from the voters and is responsible to them or the representative of the people, whose connection with the voter is terminated at the elections). But at the same time, the establishment of a free deputy mandate today does not guarantee the permanence of its legal nature in the future.

Raymond Carré de Malberg – mało znany inspirator V Republiki Francuskiej

<p>The Fifth French Republic owes its originality and permanence to Charles de Gaulle’s constitutional convictions and his determination to reform. However, in the case of France, which intellectual culture presupposes that institutions are shaped by a logical sequence of ideas, also the scientific justification of the political change must have been of great importance. The author of the theoretical rationalization of the Fifth Republic and its institutional revolution within the republican tradition was the forgotten lawyer Raymond Carré de Malberg. Pioneering nature of his writings may not raise any doubts. Carré de Malberg challenged a theory of parliament’s sovereignty from the republican perspective, which had an impact on thinking of the juristic elites participating in drafting the Fifth Republic Constitution. Carré de Malberg opened the door of republican tradition wide to the general presidential elections and referendum. He delineated the solution he recommended as the one that was in full accord with the notions and principles of the French Revolution. He applied the legal language to underscore the fact that the republic democratization would allow for the subjectivization of the executive power, restoration of the constituting power of the nation, primacy of the constitution and, consequently, the review of the constitutionality of bills. Carré de Malberg made a breakthrough in the French theory of constitutional law and thus opened up an opportunity for staging a republican institutional revolution that was an act of the founders of the Fifth Republic.</p>

Purpose, tasks and functions of constitutional and legal responsibility: questions of efficiency of realization

In the article some problems of the theory of functions of constitutional and legal responsibility are researched. The relationshipbetween the goals, objectives and functions of constitutional legal responsibility, the functions of the Constitution, the functions of constitutionallaw, the functions of the state and the like is substantiated.Exploring the problems of constitutional and legal responsibility, it is necessary to proceed from a methodological position onunderstanding the functions of legal responsibility in general and the functions of constitutional and legal responsibility in particular,as an active way of constitutional and legal responsibility, directions and forms of its impact on public relationship, the content of thistype of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution andthe constitutional order.Equally important in creating a holistic theory of the functions of constitutional responsibility is the consideration and relationshipof the category “function of constitutional responsibility” and phenomena such as “objectives of constitutional responsibility”,“tasks of constitutional and legal responsibility” and “principles of constitutional and legal responsibility”. Certain theoretical differencesin the definition of these essentially different and, at the same time, interconnected categories give rise to significant contradictionsand conflicts in constitutional theory and legislative practice. They can be overcome only by creating a holistic system of conceptsin which the concept of “function of constitutional and legal responsibility” will occupy a clearly defined place.It is concluded that the concept of “functions of constitutional and legal responsibility”, on the one hand, and the concept of“functions of the Constitution”, “functions of constitutional law”, “functions of the state”, “functions of subjects of constitutional law”,on the other hand, are mutually related. Consequently, this issue of scientific research is relevant and practically significant both interms of the theory of constitutional law and its institutions, primarily the theory of constitutional and legal responsibility, and theapplied aspect, primarily in the context of formation and implementation of legal personality of subjects in constitutional and legal relationship,first of all, bodies and officials of state power and local self-government.It is argued that its functionality and effectiveness depend on the correct definition of the goals and objectives of constitutionalresponsibility.

International standards for the right to freedom of association: classification criteria

In the legal literature has long been a classification of legal phenomena. International standards on the right to freedom of association are not an exception, which is due to both cognitive reasons and practical importance. However, to date, sufficient generally accepted, generally accepted criteria for their classification have not yet been found in the theory of constitutional law.
 The classification of international standards for the right to freedom of association is the basis for classifying international human rights standards as a method of cognition. The latter makes it possible to evaluate the holistic view of the classification of international standards on the right to freedom of association, its internal quality, comparing its essential and formal characteristics.
 At present, there are no uniform criteria for classifying international standards on the right to freedom of association, and therefore it is not possible to establish a single classification. At the same time, in view of the application of international standards on the right to freedom of association in the law and law practice in Ukraine, the most important criteria for their classification are the content and legal significance of the legal norm - the standard. Accordingly, international standards on the right to freedom of association are divided into: 1) factual and nominal; 2) mandatory and advisory. However, it is obvious that without consideration of other criteria it will not be possible to delineate qualitatively the essence of the investigated question.
 Integrating the criteria proposed by domestic researchers for the classification of international human rights standards, which are also acceptable for the classification of international standards on the right to freedom of association, we refer to others: 1) subject of their establishment - UN, Council of Europe, European Union, etc. ; 2) by scope - standards of general action and special action; 3) depending on the ways of their implementation - those that are self-implemented and those that are not self-implemented and require special measures for their implementation; 4) in the form of implementation - international treaties, documents of international organizations; 5) by territory - world (national, requirements of international acts of universal character) and regional (in particular, continental).
 The above list of varieties of international standards for the right to freedom of association is certainly not exhaustive, as other criteria for their classification are possible.

«Предыстория» парламентаризма в России IX–XVII вв.: особенности отечественного развития конституционно-правовой теории и практики государственного строительства

«Предыстория» парламентаризма в России IX–XVII вв.: особенности отечественного развития конституционно-правовой теории и практики государственного строительства

URGENT PROBLEMS OF THE CONSTITUTIONALIZATION OF UKRAINE’S COURSE TOWARDS FULL MEMBERSHIP IN THE EUROPEAN UNION

This article is devoted to research of essential problems of the constitutionalization of Ukraine’s course towards full membership in the European Union. This refers to problems which appeared or were affected in some way alongside the adoption of the Law of Ukraine “On Amendments to Constitution of Ukraine (regarding the state’s strategic course on obtaining full membership in the European Union and North Atlantic Treaty Organization)” from 7 February 2019. According to the author, the Law has significantly changed the legal situation around the advancement towards the EU. After all, the course is from now on established irreversibly towards accession to the EU, not just towards integration, which can take place in various organizational and legal forms, not necessarily including full membership in the EU. Also, said irreversibility gained the highest legal power while being the constitutional norm, which obliged the state to perform respective acts and refrain from any others, such as searching for international organizations similar by their legal nature and considering the possibility of membership in them. The author believes that the problems of constitutionalization of the state’s aspiration towards full membership in the EU and performing necessary legal, political and institutional actions and transformations gained particular relevance due to this Law and the changes made on its basis. According to the objective and research tasks put forward by the author, the very notion of constitutionalization is analyzed in the article as relatively new in the constitutional law theory. Also the questions about changes in the Basic Law necessary for EU membership and consolidation of the treatment of the Union’s values with perspective of its further specification are addressed as essential. The article proposes changes to the Constitution of Ukraine necessary for creating the basis for the constitutionality of the course towards the EU membership. Regarding the values ofthe EU, in the current stage of Ukraine’s integration it would be sufficient to note acknowledgement, promotion and providing addition to them, e. g. to Article 15. So only certain conclusions about the urgent problems of the constitutionalization of Ukraine’s strategical course towards full membership in the EU and the directions of further research are stated in the article.

The Concept of Constitutional Identity as a Legal Argument in Constitutional Judicial Practice

Constitutional identity has recently emerged as a relevant concept in the theory of constitutional law. It first appeared in constitutional decision reasoning in the second half of the 20th century, particularly in cases concerning the process of European integration. Constitutional courts all over Europe have started to use this notion as a legal counterargument against the growing influence of the European Court of Justice on the national legal systems of member states. At the theoretical level, the use of this new concept caused a lot of criticism by law scholars, due, in their opinion, to its non-legal unscientific character. At the same time, there are also many supporters of this concept, mainly the representatives of the civilizational and sociocultural approaches to law. One way or another, it is fair to say that this concept has captured the attention of constitutional lawyers who, nevertheless, have not come yet to a common understanding of this notion. Some of them suggest defining constitutional identity as a method of legal argumentation, but there are still no comprehensive studies of this concept using achievements of the theory of legal argumentation. This article represents an attempt to research the notion of “constitutional identity” through the prism of the latter.

The Costs of Supreme Court Decisions: Towards A Best Cost-Avoider Theory of Constitutional Law

Supreme Court decisions have costs, and seldom are they higher than in constitutional cases. Consider how Dred Scott relegated free people to slavery, and how a civil war soon followed. Or how Black Americans suffered under Jim Crow for decades after Plessy. Or how in the wake of Korematsu, thousands of innocent Japanese-Americans were detained in incarceration camps until the end of World War II. Sometimes, however, groups that lose at the Court have something more to say about their fates. The Article V amendment process is usually only a trifling part of this story; these groups are far more likely to engage in sub-constitutional efforts to avoid their harms. For example, after the Supreme Court overruled Lochner, industries protected their bottom lines by raising prices and reducing employment. After Brown, some white families sent their children to private schools or moved to the suburbs. And after the Court invalidated fair share fees in Janus v. AFSCME, Council 31, public sector unions successfully persuaded workers to pay dues voluntarily. Not all Supreme Court defeats, it seems, inflict equally inescapable harms. Or in the language of law and economics, some groups are better able to avoid the costs of an adverse Supreme Court ruling than others. Constitutional law should take account of this fact. If virtually everyone agrees that neither the Court nor elected lawmakers will get every close constitutional question right, we may as well ask whether there is a way to minimize the costs created when either one is at risk of getting the Constitution wrong. This is a best cost-avoider theory of constitutional law: in hard constitutional cases, the Supreme Court should rule against the group that can best avoid the costs of an adverse decision.

Енергетична політика України: конституційно-правовий аспект

Метою статті є окреслення загального підходу до розуміння енергетичної політики України у контексті конституційної теорії та дослідження її основних конституційно-правових засад.
 Наукова новизна статті полягає у формуванні єдиного підходу до розуміння енергетичної політики в теорії конституційного права, структуруванні та встановленні зв’язків з дотичними поняттями.
 Висновки. У конституційно правовому розумінні енергетичну політику доцільно розглядати в якості однієї з основних складових енергетичної безпеки держави, яка (енергетична політика) охоплює енергетичну стратегію, внутрішню і зовнішню енергетичну політику, а також енергетичну дипломатію, як основний інструмент здійснення зовнішньополітичної діяльності у цій сфері.
 Спрямованість енергетичної політики держави на максимальне підвищення енергетичної незалежності та захист енергетичних інтересів має також враховувати ряд конституційних засад та принципів, які значною мірою впливають на формування такої політики, як то визнання людини найвищою соціальної цінністю, дія принципу верховенства права, забезпечення екологічної безпеки, превалювання мирного вирішення проблем та співробітництва у сфері зовнішньополітичної діяльності України.
 Ефективне здійснення енергетичної політики, в свою чергу, залежить від вдалої співпраці та взаємодії Верховної Ради України, Президента України та Кабінету Міністрів України, які мають ключові повноваження у цій сфері відповідно до Конституції України.

Constitutional-Legal and Administrative-Legal Aspects of Statutory Regulation and Maintenance of Public Security in the Russian Federation by the State and Private Actors

The topicality of the researched problem is caused by the need for the rule-making and law-enforcement activity of the Russian Federation and its constituent entities in the development of scientifically proven, clear and consistently understandable mechanism of public security regulation as well as the arrangement in Russia of an efficient system of state and private actors maintaining the public security, participation of civil institutions in the public security and order maintenance. The article objective is to develop the doctrinal key positions describing the specific features of constitutional-legal and administrative-legal framework of statutory regulation and public security maintenance in the Russian Federation. The dialectic interconnection between the constitutional-legal and administrative-legal means of public security regulation in the Russian Federation is the leading approach to this problem researching. The comparative-legal method, which allows researching the federal legislation and the legislation of constituent entities of the Russian Federation as well as the foreign experience in the researched sphere, is another method. The article contains the analysis of the provisions of the Constitution of the RF and the Federal Law Concerning Security, the determination of scientifically substantiated limits, structure and content of public security as an object of administrative and legal regulation, taking which into account the specific features of activity of the President of the RF, the Security Council as well as the legislative, executive and judicial authorities as the subjects of public security maintenance are described; the substantiation of specific features of activity of private actors maintaining the public security; the analysis of experience of activity of civil institutions participating in the public security maintenance in the foreign countries, including in the USA and Great Britain. The article materials can be used in the domestic and foreign theory of constitutional and administrative law, in the rule-making activity of the Russian Federation and its constituent entities, in the practical activity of executive authorities, citizens and non-governmental organizations, which participate in the implementation of the state policy for the public security maintenance.

Constitutions of ‘Colour Revolutions’ and ‘Arab Spring’

The experience of 'color revolutions' and 'Arab spring' testifies to new phenomena in the constitutional development of the countries of the East. The article briefly talks about the nature of these revolutions, their basic social and political conditions, goals, and demands of the people. During the consideration of individual constitutional amendments and four new constitutions (Kyrgyzstan, Morocco, Egypt, Tunisia), the constitutional and legal results of revolutions are analyzed in four directions: man and family, public associations and their role in society, the foundations of the public and state system, state bodies and Local government. Separately, the novels of the constitutions are pointed out, which contribute to the experience of constitutional development and the theory of constitutional law.

Ancient Holism and Modern Theory of Constitutional Law

Ancient Holism and Modern Theory of Constitutional Law