About the elasticity of constitutional principles and constitutional policy
The role of constitutional principles in the mechanism of constitutional and legal regulation. Features of transformation in the interpretation principles. Relativism in the system of law. Local fundamental justice in the mechanism of the state.
|Рубрика||Государство и право|
|Размер файла||24,7 K|
Отправить свою хорошую работу в базу знаний просто. Используйте форму, расположенную ниже
Студенты, аспиранты, молодые ученые, использующие базу знаний в своей учебе и работе, будут вам очень благодарны.
Размещено на http://www.allbest.ru/
1. About the elasticity of constitutional principles and constitutional policy
constitutional principle relativism justice
In the mechanism of constitutionally-legal regulation the special position is occupied by the constitutional principles which form the fundamentals of the constitutional system, they are concentrated in chapter 1 of the Constitution of the Russian Federation, and the same as constitutional principles. We connect the special position of the principles in their role in transformation of the constitutional law, i.e. in its change regarding constitutionally legal interpretation.
Actually, it is possible to agree with Chairman of the Constitutional Court of Italy Gustavo Zagrebelsky, that in the constitutional law exists dichotomy - all its norms can be divided into norms - principles and concrete constitutional norms. The first norm comprises the norms of modern constitutions fixing protection of human dignity, recognition the person, his rights and freedoms, supreme value, principles of the legal, social state, etc.
The second group comprises juridical norms which regulate structure and functioning of the constitutional organs. According to T. Zagrebelsky, it is the first group of the norms which actually carries out the constitutional function, namely - forms conditions of life of the society and state system while the second group of norms is common state legal laws in the constitutional form .
The norm of Part One Article 125 of the Constitution of the Russian Federation according to which the Constitutional Court of the Russian Federation consists of 19 Judges is quite concrete. It is concrete up to such degree, that at explanation of its contents there arise no questions on numerical structure of the Constitutional Court of the Russian Federation.
But the Constitution contains such norms which at first sight relate to the norms of the second group, but actually their normative contents allows, in the system unity with other constitutional regulations, to reveal implicit constitutional principles. As an example can serve the regulations of Part Three Article 81 of the Constitution of the Russian Federation by virtue of which one and the same person cannot occupy position of the President of the Russian Federation more than two terms successively. At first sight, this norm as regulating the term of legislature of the head of the state, is addressed only to him. However, "in bowels" of this concrete constitutional norm the Constitutional Court has found out the constitutional principle. In Resolution of the Constitutional Court of the Russian Federation from July 9, 2002 on the case about the verification of constitutionality of the regulations of item 5 Article 18 and Article 301 of the Federal Law "About general principles of organization of legislative (representative) and executive organs of the government of the subjects of the Russian Federation", Article 108 of the Constitution of the Republic Tatarstan, Article 67 of the Constitution (law) of Republic Sakha (Yakutia) and Part Three Article 3 of the Law of Republic Sakha (Yakutia) "About elections of the President of Republic Sakha (Yakutia)" there has been made the conclusion that principles of the constitutional system of the Russian Federation as the democratic federal legal state with the republican form of government caused by democracy and realized through free periodic elections, by virtue of the federal structure based on the state integrity of the Russian Federation and unity of the system of the government (Article 1, Part 1, and Article 5 Part 3 of the Constitution of the Russian Federation), are distributed to the organization of the government, its formation and conditions of replacement of the corresponding posts in the subjects of the Russian Federation. The Constitution of the Russian Federation does not directly fix as an element of the mechanism of formation of organs of executive power of the subjects of the Russian Federation the maximal number of terms of replacement by one and the same person of the post of the supreme official of the subject of the Russian Federation. However, regarding optimum for realization of the constitutional principle of republicanism numbers of such terms - by virtue of unity of system of the government in the Russian Federation (Article 5 Part 3 of the Constitution of the Russian Federation) - the focusing norm is the norm of Article 81 (Part 3) of the Constitution of the Russian Federation.
Further - the Constitutional Court of the Russian Federation has proved the conclusion that the supreme official of the subject of the Russian Federation shall possess the special constitutionally-legal status which part shall be the revocability caused by electivity and the number of other conditions of election to this post and its replacement. Let's specify: as soon as the quite concrete norm of Part 3 Article 81 of the Constitution of the Russian Federation has been interpreted by the Constitutional Court of the Russian Federation in the system connection with the constitutional principles of the democratic federal legal state with the republican form government, principles of democracy and free elections, there has been revealed general for all levels of the government principle of regular updating of the human substratum of these organs.
In our opinion, change of the order of allocation with the powers of the head of the subject of federation essentially changes nothing - the need in regular "aeration" of imperious corridors still remains the imperative of the constitutional law in the Russian Federation.
Such detailed description of this plot is caused by the fact that the above mentioned Resolution of the Constitutional Court of the Russian Federation shows, that when constitutional norms belonging to the first group "touch" the norms of the second group, there appears an effect as occurrence of new implicit constitutional principles.
The textual analysis of the constitutional norms containing principles, is of no use by virtue that principles are described extremely, laconically. These norms possess, perhaps, the highest density of legal contents. The fact is that each constitutional principle is a sacrament and consequently, as well as everything, with mysterious nature, they are so interesting.
The constitutional principles by virtue of the laconicalness personify the spirit and sense of the Constitution. For this reason they create the opportunity to adapt the concrete constitutional norms to their constantly changing conditions of the public life. "Letter" of the constitutional law is its concrete norms, and its spirit is in norms - principles.
So, the constitutional norms - principles at the greater degree, than the concrete constitutional norms are subjected to transformation during interpretation. It provides dynamism in development of the constitutional law. Pure constitutional text, including the text of earlier Constitutions containing norms-principles, is metaphysical. But what then transformation of the constitutional law and its dialictisity is provided by? Norms - principles operate with concepts which have extremely abstract character (the legal or social state, democracy, proportional restriction of the fundamental laws, etc.). These concepts, according to Ronald Dvorkin to be really working elements of the mechanism of the constitutionally-legal regulation, should pass through the filter of representations about these concepts created, as a rule, by the supreme courts .
The representations about the constitutional principles are elastic enough. However, it is not the windvane which changes direction depending on the direction of the wind. Stability in representations about the constitutional principles should be provided, in particular, by revealing the objective nature of each constitutional principle. The constitutional law does not possess such long history, as the civil right which contains significant amount of legal principles reflecting objective laws of development of property relations. The legislator of any country should reckon with these objective laws. But the constitutional law with the help of norms - principles shows objective laws of functioning of the government.
Change of representations about the constitutional principles is the result of the constitutional policy carried out by all supreme organs of the state.
According to Part Three Article 80 of the Constitution of the Russian Federation, the President of the Russian Federation in accordance with the Constitution of the Russian Federation and federal laws shall determine the fundamental direction of internal policy of the state. The constitutional policy shall be a part of home policy of the state. However by virtue of Article 125 of the Constitutions of the Russian Federation the monopoly right of final interpretation of the Constitution of the Russian Federation shall belong to the Constitutional Court of the Russian Federation which shall be independent at realization of justice in the form of the constitutional legal proceedings (the second sentence Article 10, Article 118, Part One and Two, Article 120, Part One, Article 125 of the Constitution of the Russian Federation). The role of the Constitutional Court of the Russian Federation in formation of outlines of the constitutional policy is great.
Considering questions about the verification of constitutionality of the legal norms personifying results of the important political decisions, the Constitutional Court should give them estimation on the account, first of all, of the constitutional principles, sometimes specifying or even changing representations about them. And thus, the Constitutional Court is not simply involved, but shall be the active participant of the constitutional policy.
Thus, the Court quite often faces the contradictions between representations about various constitutional principles, and the constitutional principles can be internally inconsistent (enough to recollect about the constitutional principle of validity, stipulated in the sixth paragraph of the preamble of the Constitution of the Russian Federation).
Discrepancy of the constitutional principles is the reflection of inconsistent nature of aspirations of the person, and numerous contradictions making "fabric" of modern public life. For example, what shall be justice for? The person thinks. It would be the lawful, fair, just judicial act. And the Constitution (Article 15, Part Two, Article 120, Part One of the Constitution of the Russian Federation) stipulates this need of the person. But the person needs mercy as well! The Preamble says about " belief in kindness and validity ", and, proceeding from this tendency opposite of orientation of the person, the Constitution of the Russian Federation stipulates the special power of the President of the Russian Federation to realize the pardon (item "c" Article 89), annigilizing, by the way, quite lawful, just and the fair judicial act. Moreover, mercy can be shown by the state in much wider scale by announcement of amnesty by the State Duma (item "E" Part One Article 103 of the Constitution of the Russian Federation).
Different social groups of the society, naturally, have different goals and different legitimate interests. Economic freedom being the constitutional principle (Article 8, Part One) expresses interests, first of all, of economically active population possessing mental abilities and property for enterprise and other economic activities not forbidden by the law (Article 34, Part 1 of the Constitution of the Russian Federation). However, the society consists of invalids and elderly citizens, and besides family motherhood, paternity and the childhood needs the state support (Article 7, Part Two).
The constitutional principle of the social state, whose policy should be directed to creation of the conditions providing worthy life and free development of the person, reflects aspirations of the quite large group of the population of the country. It is clear, that, taking into account these aspirations, the state, by collecting taxes, is compelled to limit economic freedom, to realize redistribution of the national product inside the society. The people, asserting rights and freedoms of a person and a citizen, needs "the civil peace and consent" (Paragraph Three of the Preamble of the Constitution of the Russian Federation).
Intersequence of the inconsistent constitutional principles, carried out by the Constitutional Court of the Russian Federation at consideration of legal proceeding, interpretation of the Constitution of the Russian Federation is the basic contents of the constitutional policy, whose goal is the civil peace and consent. According to Napoleon judges do so much for the public consent much, that no honours for them seem unreasonable.
The search of balance, intersequence of the constitutional principles with development of the rules of their equilibration as all constitutional principles are equivalent as a rule, there is no hierarchy is the common activity of the Constitutional Court.
The basis of idea of equilibration, including the constitutional principles, is rationalism which is not absolute. It is relative rationalism. Relativism in the constitutional interpretation means, that: a) all the constitutional principles should coexist, b) the best way for their coexistence should be such interpretation of one of the constitutional principles when the new representations about it allow to strengthen the regulative effect from another (other) constitutional principlesё c) not only equilibration of the two constitutional principles is possible, but strengthening of value, of one of them during any period of time is possible as well.
Relativism as the methodological basis of the constitutional interpretation allows to consider the constitutional principles as very flexible (elastic), that does not contradict the idea about necessity of giving necessary "rigidity" to the constitutions.
Elasticity of representations about the constitutional principles allows to enter the certain cycles during the constitutional policy. So, for example, the last decade of the XXth century is the cycle, in which framework in Russia there took place strengthening of the constitutional principle of economic freedom. There appeared requirement for new productive forces, for strengthening of the private property. Thus, there took place the certain infringement of the principle of the social state. It has not been overcome till now. However, since 2002 some strengthening of the specified principle has been observed.
Elasticity of representations about the constitutional principles allows various political forces, social and territorial groups of the population to compete on arena not changing the constitutional text. Some uncertainty, unpredictability, secret in the normative contents of the constitutional principles, relativism in the constitutional interpretation are not the lacks lowering democratic legitimation of the constitutional justice, but , on the contrary, is the way of creation of conditions for competition of various political, social forces. It seems to us that Karl Schmidt was right, when he put forward the assumption that there exists the general liberal principle . Usually liberalism is understood as the certain views in economic sphere - free competition of private persons, freedom of contract and trade, choice of trade and residence. By virtue of these phenomena and, first of all, of the competition (see Article 8, Part One of the Constitution of the Russian Federation), there appears the certain social harmony. Other expressions of the general liberal principle, in K. Schmidt's opinion without which the free competition in the sphere of economy fades are the free competition of ideas and opinions (see Article 13, Article 29 of the Constitution of the Russian Federation), freedom of press generating truth. Truth in philosophical sense is relative, as it is the result of harmony, which is the balance being the result of the competition.
In one of his speeches Prof. Pastukhov V.B. has formulated the conclusion that the constitutional policy in Russia is realized "at random". He meant the danger the entropy of the constitutional policy of spontaneous constitutional development. We think, this danger is not exaggerated. It is enough to recollect about the "experiments" which carried out by the legislator with the order of formation of the Council of Federation (Article 96, Part Two of the Constitution of the Russian Federation) when "formation" was interpreted, in view of the constitutional principles as electivity of the members of the Council of Federation of Federal Assembly by the people, and then there has been carried out transition to the system of actual assignment of the by representative and executive organs of the power of the subjects of the Russian Federation.
Chaotic, unscientific development of the constitutional law is the result of the defective constitutional policy. And the Constitutional Court of the Russian Federation shall share the responsibility for it. The constitutional policy should be based on the objective nature of the constitutional principles. Representations about the constitutional principles should not vary proceeding from the bolshevist approach. It is necessary to remember, that the constitutional law is the very fragile mechanism not standing commands.
Change of representations about the constitutional principles should be, in its turn, carried out on the basis of external, rational, transparent rules whose formation should be the major task of the constitutional law.
So, we face the task to create constitutionally-legal axseology. A number of the decisions of the Constitutional Court of the Russian Federation and, first of all, Resolution from December 21, 2005 No. 13-П on the case concerning the new order of allocation with powers of the supreme officials of subjects of the Russian Federation, testify to strengthening of the constitutional principle of unity of the state. One of the German scientists writes that "the strong state" has become the fundamental idea of the Russian constitutional justice .Vividly, it is necessary to take into consideration the barefaced criticism .
The Constitutional Court should not "glorify" one of the constitutional principles, but also proves, by virtue of which axseological representations the specified glorifications has taken place. Thus, it is obviously not enough to be limited by the indication to change of the concrete social - legal conditions, or change in the system of legal regulation. The common rule of interaction of the constitutional principles is their interstrengthening. As a matter of fact, this rule of interpretation of the constitutional principles, has been formulated by the European Court on Human Rights. In the decision on the case Bouman against the United Kingdom, the European Court has specified, that the right to freedom of speech, guaranteed by Article 10 of the Convention on protection of human rights and fundamental freedoms, is necessary to be considered in view of the right to free elections. The most important thing in the legal position of the European Court is that the two constitutional principles are interconnected and therefore should strengthen each other.
Strengthening of one of the interconnected constitutional principles is more likely exception of the common rule. Therefore, any "glorified" one of the interconnected constitutional principles should be quite carefully argued.
2. The special organ of the constitutional justice: nature and positioning regarding conceptualism. Factors of influence
Proceeding from essence of functioning of the legal democratic state, the question on the place of the special organ of the constitutional justice in the mechanism of the state, is possible to be considered in the context of two directions of research: first, the place regarding the principle of division of the powers that is what branch of the power should be the institute of the constitutional justice related to. Second, the place in the system of checks and balances, in mutual balance of various divisions of the power, determining, thus, sheaf (interrelation), counterbalances is the sense of existence of the similar organ in this system. Experience of the USA convinces the fact that it is not one-serial objects of research. However the fact that, both, the nature and activities of this organ, are determining for positioning in both cases is undutiful.
Research of the nature and place of the special organ of the constitutional justice necessarily requires to put some questions, regarding the subject of research, and attempt to answer them, using different approaches, will give the objective picture concerning these categories. First of all, it is necessary to determine whether there exists the similar problem, that is to establish its urgency, that, in its turn, requires to answer to the question:
2.1 What is the special organ of the constitutional justice necessary for, and whether it is necessary in general?
The previous remarks concerning this thesis, can be formulated as follows: first, as the Supreme keeper of values of the constitutional level (function of the constitutional control). And actually the state requires the organ which would play the role of Platon "aristocrats of spirit", approaching, thus, that state to its ideal form. And it is quite probable, that this role could net played as the special organ of the constitutional justice, as the Supreme keeper of the Supreme values (on condition that such values really exist and are professed by the major part of the society, comprising Makkiavely "lions and foxes", using advantages of the first or the later depending on needs of the state and the society .
Second, the key element of the system of balance of the powers (the arbitration function). These are obvious functional needs, however, there exist some latent needs.
The basis of necessity of the constitutional justice within the framework of any model, first of all that the corresponding organ plays the role of "valve", not giving to develop any conflict in the society and in the state, into the frank opposition. As the non-conflict society, at present, does not exist, the constitutional justice allows in the civilized way, and basing on its own authority and constitution (as the contract between the state and the society and the public contract) to resolve any conflict basically. It makes this organ certainly within the framework of the European model related with court. Such essence, in common influences the form. However, whereas it is only one of the equivalent essences, the special organ of the constitutional justice in the activity and the place in the system of checks and balances, divisions of power, goes much further. Therefore even the name "court" is not suitable enough. For emphasing of uniqueness of the nature of the organ, and its powers, the name "council", or something similar is better.
The second half of the question - what the special organ was necessary for, is not actual when the American model has successfully functioned. In case of the convincing answer it will not allow at least to talk about the special organ of the constitutional justice, as about court, in the common sense, at best as about the organ reminding the court.
2.2 How, and in what cases will it be used?
It is determined by needs for each of the national models of the state system and the constitutional justice separately.
The theoretical aspect is based on the assumption that:
- Any sides of functioning of the legal democratic state should have the corresponding theoretical substantiation, and the theory of organic constitutionalism should have the features of completeness. In fact at present the choice between definitions of the type of the modern state, from welfare to workfare, and etc., is not more than an attempt to hide lacks and absurds of the modern state, including the absence of the unique, completed theoretical concept of functioning of the later.
The practical aspect requires:
- optimization of the state mechanism as a whole;
- efficiency of application of this institution in general (including the part of the uniform, but divisioned state power - and its separate powers;
- formation of adequate to the problems faced by the state, necessary optimum list of its powers (mechanism).
We believe that the place of special organ of the constitutional justice in the mechanism of the modern lawful state should be determined according to three positions. First, the place of such organ in the system of division of powers as this organ is allocated publicly with imperious powers of the certain functional type, and it means that, somewhere in the field of the sole, however divisioned branch of authority, it should be contained, not eventually, but as really functioning component of public authority, in its own place. Second, the place in the system of checks and balances as division of the unique mechanism of the state power, supposes mutual interlacing and balances of different branches of authority, for creation of the efficient mechanism. Third, its place in the system of the state organs, according to division of powers, that is their quantitative and qualitative characteristics, and first of all from the point of view of their uniqueness that allocate and specialize this organ among the others. The first two positions, require analysis, and in their turn make the horizontal of authority. The third one - determines the place of this organ in a vertical of authority, that is in the sense whether it is the supreme state organ, or not.
To investigate in our case means to determine. Definition is necessary to understand it. To understand it in order to use purposefully, thus to use effectively and optimizly.
The cumulative answer to the given questions on the account of the specified aspects allows to establish logical interrelation in semantic "circuit" of the category "institute of the constitutional justice of the European model", from the point of view of creation of the special organ of the constitutional justice:
1. Why the American model has not been recognized;
2. Why the European model has been created;
3. What functions the organ which is created according to this model carries out and what means for this purpose are given.
Such approach will enable to optimize conceptually searches of the valid place of the special organ of the constitutional justice in the mechanism of management of the processes happening in the modern state.
The problem of determination of the organ of the constitutional justice first of all is connected with the fact that it has been and is still the greatest and possible the most inconsistent quantitative and qualitative innovation into the mechanism of realization of public authority of the modern lawful state, that has considerably complicated the structure (first of all in the sense of interrelations among different institutes). However, the basic argument for the benefit of creation of the special organ of the constitutional justice is existence of the constitution in writing and the necessity to provide its supremacy, insufficiently definitely positions the judicial organ of the constitutional justice in the state mechanism as this problem is possible to be solved in other ways, and they are not determining enough both for the nature of the judicial organ of the constitutional justice, and for its place in the state mechanism.
The concept of the special organ of the constitutional justice is quite in the spirit of materialism and technocratic development of the western civilization. The decision of problems of presence of the constitution, its interaction with the civil society, improvement of the state mechanism, is carried out by means of mechanistic increase of the number of the organs providing functioning of the state. Its formation will remind "deus ех machine".
The basis of the European model of the constitutional justice comprises a number of theories of H. Kelzen about necessity and role of the similar organ in the mechanism of the lawful state, the maxim built from the point of view of the theory of " the pure law " (by the way, not irreproachable completely), representations of the author about the ideal law and the state and institutions which serve them . However, the tasks which faced that organ required the corresponding powers (substantially superpowers) which in the significant measure loosened common representations about the classical three-branch division of the powers. Thus, organizing the organ with superpowers (and subconsciously with superposition in the state mechanism), H. Kelzen worried a little concerning the theoretical institutionalization of the place of the given organ in the mechanism of realization state power. It was important provide the effect of action of "the pure law", and according to the conditions of the then European reality, and representations about the lawful state and tendencies and prospects of its development. Finally it was reflected that any country which created the similar institution, attached it independently to its own needs, resulted to dissimilarity of national institutes of the constitutional justice within the framework of the European model. As a result such unsimilar are the Federal Constitutional Court of Germany, the Constitutional council of France, the Constitutional tribunal of Poland, the constitutional courts of Italy, the Russian Federation, Bulgaria, etc., from the point of view of their place and role in the state mechanism Moreover, the functional assignment of these organs differs in many respects.
The arguments of Kelzen for necessity of existence of the constitutional court are:
а) The condition of the constitutional law and order is the logic unity provided with the attitude to the constitution as to the supreme law;
б) The constitutional organs can participate, and participate in disputes with each other, and their acts can contradict the constitution. There should exist the element of the unique state mechanism which resolves these disputes. It should supplement the functions of the legislator (the negative legislator);
в) Protection of the rights of minority (delimitation of willfulness of the majority), and it, in its turn, is the most important pledge of stability of democracy .
The analysis of the theory of the organic constitutionalism, the defect of the state mechanism of the modern state, allows to put forward the counterarguments against creation of the special organ of the constitutional justice:
1. Allowing the court to supervise laws is opening of the way for judicial law-making (parallel creation of the constitution);
2. The court should not realize in force the decisions in political space and as consequence protection of the constitution becomes weak and unsystematic (by the way, this argument simply does require inclusion as the element of the compound nature of such organ - on the hand, the political factor which would realize relations with this sphere of the state, and necessity of the complex analysis of such, substantially estimated categories as, for example "authority of the special organ of the constitutional justice", as in fact its power is based upon such components as impartiality, etc., that is the synthesis of the criteria of psychological and legal elements).
Additional arguments based on functioning of the similar organs in the countries of Europe can be probably formulated in the following way:
1. Creation of special organ of the constitutional justice can testify to disproportionate strengthening of one of the branches of the power, as the way of elimination of disorders of newly reformed or founded state mechanism (the National council of France,);
2. Being politized, and the given organ is extremely declined to such tendency, levels the values of the democracy, capable to create disputed situations, thus, even protecting democracy, has no practical means for such protection, except its own authority (the position of the Constitutional Court of the Russian Federation in 1993);
3. The existing practice of assignment testifies against democratic essence of this organ and creates opportunities for bias in its work, politization, etc. (activities of the Federal Constitutional Court of Germany).
At reflection (leveling) of these arguments the special organ of the constitutional justice will not play the role of bitter, but necessary medicines for "the organism" of democracy. This is the task for the legislator and science of the constitutional law. It is necessary to find out and realize the ways of such reflection. Establishment of the rational place of such organ in the system of checks and balances, its valid nature, functional characteristics, optimum volume of powers, eventually, the definition of its position according to the principle of division of the powers is hardly the unique means of neutralization of artificial and organic defects of this organ. Such counteraction to the negative sides in activities of the special organ of the constitutional justice, can include in the most optimal and effective selection of the powers of this organ, namely, for the certain model of the state system; Adequate to the model of division of the powers and the mechanism of their counterbalances, the way of formation of such organ; criteria of conformity, principles of rotation and its direct structure; means from outside which are counterbalances relatively to special organ of the constitutional justice, for creation of impossible situations of its withdrawal from the constitutional field.
As a matter of fact, the argument of Kelzen concerning creation of the special organ of the constitutional justice (synthesis of three theories - institutional, organic, public agreement plua the own arguments of abstract character) can explain only the necessity for such organ and can suit only the American model of the constitutional justice. Concerning formation of such organ, the motivation of Kelzen should be added with some additional arguments. Appearance of the European model of the constitutional justice first of all is connected with the features of the continental legal family - the law as the fundamental (unique) source of the law. That's why law-making should be impossible. The features of the state mode of the overwhelming majority of the European countries, namely the parliamentary model, and as consequence, the necessity of politically-legal organ which would protect the constitution. Analyzing then tendencies and condition of the state development in Europe, we can come to the conclusion, that the major factor grounding the necessity of creation of such organ, on psychological character, probably, can be determined as fear. Traditional fear of the European civil society and imperious circles under the judicial willfulness, and in connection with the control over the constitution - the fear at intervention of courts into the legislative sphere, has always been in Europe of the sacral character. Hence, the basis from which Kelzen has the start in his argument, is more of psychological plan. It is together with the features of organization of state power of the overwhelming majority of the European countries plus global change of priorities (the civil society is higher than the state, qualitative and immediate maintenance of human rights, etc.), together with the features of historical development of Europe (I and II World Wars), have allowed to create the new organ of the government.
Thus, the theory of H. Kelzen institutionalizes the necessity, or desire, or in any case the opportunity of existence in the conditions of the parliamentary democracy of the limited constitution - the institute of the constitutional justice, that is, theoretical base is created (on the basis of the three theories, organic, institutional , public agreement) for the basis of this institute. Thus, the place of the given institute, proceeding from this doctrine, under the condition of action of the principle of division of the powers and real system of checks and balances can hardly be determined, and it is necessary to take into account, for example, that the Constitutional court of Ukraine is allocated with the powers (official interpretation of the Constitution) which in the even greater measure, than for the Constitutional Council of France or the Federal Constitutional Court of Germany, specify its place and confuse the situation with its definition. The powers plus relations and interrelation with other organs of the government influence the definition of such place.
Complication of the public relations is always the correlating factor concerning the relations at the state level. This in its turn requires creation of more effective state mechanism, capable to face new realities, plus to provide traditional values of the civilization. Thus, it is necessary to remember, that the well-known principle of Okkamam that it is never necessary to increase greatly essence without emergency. However, effective - does not mean and is not always more complex, based on the rational principle, does not mean artificially arranged under their own representation about rationality and expediency. Actually the perfect state mechanism first of all meets the principle of simplicity, as in fact only it is possible to find out perfection, and as consequence efficiency. Ideal cannot be too complicated.
The special organ of the constitutional justice considerably complicates the legal mechanism in the state, generating the new types and directions of relations and interrelations in this system. Its appearance has always caused the set of questions connected with the status of this organ, and some of them have not received the answer. Even, apparently, in perfection the built in the state system of the American model of the constitutional justice, during its history has allowed failures. Recognition by the Supreme Court of the USA of constitutionalities of slavery, segregation, "wild capitalism", counteraction rational to "the New rate" of the governments are the steps of activity of the Supreme Court, as the organ of the constitutional justice . There is no use speaking about the European model functioning enough limited both in time, and space (anyway, really) and its achievement are partly enough disputable. Expediency of the special organ of the constitutional justice, is more likely in the theory, than in practice. In practice the Federal Constitutional Court of Germany has recognized this state in borders of 1937, has considerably limited rights and freedoms of the citizens, has organized prosecutions of the political parties and associations (for example, "the green" in 1980-s' years), in Italy at a tacit consent of the Constitutional Court probably depending on the political moods of elite (the prime minister), manipulation immunity for the sake of its own security, the activities of the constitutional courts of Byelorussia and Russia have promoted structural and imperious crises, and in Russia it has resulted in the armed opposition. Usually it is not the constitutional court that can become the reason of such situation. More likely is with which such organ can be adapted, its perfection, to a curvature of essence of the lawful state, thus defenselessness and feebleness of it, under the tyranny, impunity of ignoring of the Supreme keeper of values of the supreme order, retraction and application of its "superpowers" for achievement of narrow-political purposes. Actually till nowadays the special organ of the constitutional justice, is substantially the extraneous subject in the state mechanism which is easy for use for maintenance of dictatorial functions, especially under conditions of action of the imperfect constitution. For Ukraine the urgency gets quite another aspect of the problem, namely, whether it is always necessary to provide supremacy of the constitution, whether under any conditions. From the formal point of view, that is from the position of following the corresponding constitutional principle - certainly, however from the point of view of common sense not always, but only when the current document meets the principles of organic constitutionalism, is structurally and conceptually perfect without essential internal contradictions. In any other case the contradiction can go deep, and the constitutional space, is influenced with negative stagnations. And if the work of the organ of the constitutional justice promoted the positive transformation (changes) of the fundamental law, as it is, for example, in the USA, however in our country it is the work of the legislator. And it is the signal of the status of this organ that it has not got structurally conceptual perfection and definiteness, and its valid place in the mechanism of the lawful state requires additional research. Search of new ways of optimization of the state mechanism and the place of special organ of the constitutional justice in this mechanism are necessary.
Positioning of the special organ of the constitutional justice in the state mechanism is impossible without complex cumulative analysis of the three fundamental bases which determine its status: nature - functions - powers.
The nature of the special organ of the constitutional justice and the place which is the consequence of this nature, should take into account such moments from which such consequences should come up:
1. This organ consolidates the consent of two branches of power: executive and legislative (at any form of the state system, and they are compelled to cooperate closely, proceeding from their functional characteristics, necessity of "transfusion" of the powers, etc.), to realization between them of the arbitration function, and if it is necessary, for the prevention of possible crisis situations in activity of the state mechanism. The arbitration function is the specific attribute of any court and consequently determines the judicial component of the nature of special organ of the constitutional justice. The consequence of this statement is that fact, that formation of this organ should be carried out on the basis of conciliation procedures and, first of all, or only between these branches of the power, in case if we install this organ in the state mechanism, on the basis of classical representations about division of the powers. Thus, we prevent the possible oppositions inside this organ, providing its integrity, qualitative and effective work.
2. It, certainly, is directed against and for restriction of the public authority, to protection of the constitution (the purpose of the organic constitution is differentiation of the state and civil society with priority protection of the later against the first). Besides, only it shall make the judgments what is the constitution, and its norms. As the consequence, the ideal structure of this organ, whenever possible, should be mostly removed from moods and passions of the authorities to meet absolutely the formula "sine ire et studio". In addition the negative level of politization should decrease. Thus impartiality and high quality of the work can be provided with attraction of highly skilled experts having the best competence in the field of the law, mainly scientists and representatives of the judicial branch of the power, probably in their certain parity. The modern stage of functioning of such organs determined the obvious contradiction between the ways of formation of this organ, its functions and maximal independence.
The first position precisely specifies that effective search of the place for the special organ of the constitutional justice, should be based on the analysis of the system of checks and balances in general, from the point of view of the theory, and experience of the separate countries. The purpose for the sake of which the special organ of the constitutional justice, means given to it for realization of the purposes facing it, should determine (influence the definition) of the functions which such organ should carry out in the mechanism of the lawful state, and, hence, should influence the determination of its place in this mechanism. The functions should specify the role which the certain element of the system carries out regarding its requirements in the state in general.
1. Г. Загребельский. Толкование законов: стабильность или трансформация? Сравнительное конституционное обозрение. - 2014. - №3. - С. 1.
2. Рональд Дворкин. О правах всерьез. - М., 2014. - С. 109-120.
3. К. Шмитт. Духовно-историческое положение парламентаризма. В книге: К. Шмитт. Политическая теология. - М., 2010. - С. 187.
4. См.: А. Нуесбергер. Сильное государство как основополагающая идея российского конституционного правосудия. / Сравнительное конституционное обозрение. - 2006. - №1. - С. 154.
5. Там же, с. 158.
Размещено на Allbest.ru
The characteristics and structure of constitutional law of Ukraine, factors affecting its formation and development, the current trend. Reform and the direction of change of the legal branch of the state. Principles of functioning of constitutional law.
реферат [40,5 K], добавлен 13.02.2015
The Constitutional Court of the Russian Federation essentially promotes entailment in life of the principles of justice, democracy. Analyze the judicial practice of the Constitutional Court of Republic Adygea. The Republican interpretation of freedom.
реферат [20,2 K], добавлен 14.02.2015
Formation of courts to protect constitutions. The nature of the Constitutional Court, its functions, structure, the order of formation and updating, the nature and the mechanism of execution of acts, a place and a role of the Constitutional Court.
реферат [21,1 K], добавлен 14.02.2015
The role of constitutional justice in strengthening constitutional legality. Protection of the constitutional rights, freedoms, formation of the specialized institute of judicial power. The removal of contradictions and blanks in the federal legislation.
реферат [24,0 K], добавлен 14.02.2015
Concept of the constitutional justice in the postsoviet Russia. Execution of decisions of the Constitutional Court. Organizational structure of the constitutional justice. Institute of the constitutional justice in political-legal system of Russia.
реферат [23,9 K], добавлен 10.02.2015
Understanding the science of constitutional law. Organization of state power and the main forms of activity of its bodies. The study of the constitutional foundations of the legal status of the citizen, local government. Research on municipal authorities.
реферат [15,3 K], добавлен 14.02.2015
The Constitutional Court about political parties and religious organizations as institutes of the civil society. The party political component of the constitutional system as the subject of the constitutional control. Creation of regional parties.
реферат [24,9 K], добавлен 14.02.2015
The principles of the international law and the international contracts are the component of legal system of the Russian Federation. The question of application of the norms of the international law and contracts in activity of the Constitutional Court.
реферат [16,0 K], добавлен 07.01.2015
The foundations of the constitutional system of the Russian Federation. The civil society as the embodiment of balance of private and public interests. Legal and functional character of the civil society. Institutional structure of constitutional system.
реферат [19,5 K], добавлен 07.01.2015
In world practice constitutional control is actually a develop institute with nearly bicentennial history. In this or that form it is presented and successfully functions in the majority of democratic states. Constitutionally legal liability in Russia.
реферат [51,3 K], добавлен 10.02.2015