Modern constitutionalism: theory and prospects of development

Globalization of the theory, ideology and practice of modern constitutionalism on the border of millennia. The development of the constitutional ideas and institutes. Analyze the model of the Ukrainian constitutionalism and its realization in practice.

Рубрика Государство и право
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Globalization of the theory and practice of modern constitutionalism on the border of millenia is caused by global integration processes. constitutionalism gets axiomatic value for the countries of East Europe in modern conditions of their constitutional development, as political-legal system of constitutionalism, "being the important tool and procedural guarantee of development and functioning of self-control institutes of the civil society, simultaneously acts as the condition of development of the lawful state" [1].

Historical retrospective show of development of the constitutional ideas and institutes testifies to relativness constitutionalism to those constitutional phenomena which have arisen much earlier, than representations about them have generated. Theoretical sources of modern constitutionalism are incorporated in legal, philosophical, historical, culturological views of thinkers of the past (Kant, Гегель, Gobbs, Grociy, Russo, Lock, Montesquieu, Jefferson, etc.) [2].

Constitutionalism has been developed in ancient greek constitutions working some centuries prior to B.C., about which we known from the works of Aristotel. During the period of printsipat Ancient Rome there existed alongside with the acts of the Roman senate (senatus consultus) imperial instructions of various kinds which have received the name of constitutions (constitutio ediktum, mandatum, decretum, rescriptum). Their contents and place in development of the legal system of Rome is of great interest, first of all, as digression to ethymology of the concept. Closer to modern representation about the constitutional acts the Great Charter of Liberties (England, 1215), "Form of government of England, Scotland, Ireland, "Instrument of management" (1653), Bill of rights (England, 1689) in which there have been reflected the ideas of the early constitutional acts of Northern America of 1770s-1780s and first of all in the Constitution of the USA (1787) . To the same period of development of constitutionalism relate Declaration on human rights of a person and a citizen (France, 1789), Constitutions of France and Poland, and "the first constitutional act in Ukraine" (M.P. Vasilenko) - "Legal way and Constitution about rights and liberties of the Army of Zaporozhye, known as Constitution of P. Orlik (1710).

Not mentioning social and legal estimation of the western constitutionalism, it is necessary to apply to the modern concept of constitutionalism (in particular, referring to the countries of the post Soviet space) the judgements of A. Shajo that we have "any ideas, except for idea of classical constitutionalism" [3].

Classical constitutionalism leaves its roots in the unique history of the legal culture of the West, the western tradition of law [4] and is based on private property, restriction (self-restriction) of the government for the benefit of the civil society and individual freedom getting the legal form of the subjective public law as "the law against the society on behalf of the state and its officials" [5] with the subsequent inclusion in contents of compound third generation of the collective rights. The European culture is "first of all… personal culture (and in is its universalism)" (D.S. Likhachev).

However the impossibility of mechanical use of the western constitutional samples at the decision of problems of constitutionalism in the countries of "modern democracy" is obvious which has not received the integrated characteristics, and has the polyvariant element. A. Shajo truly specifies, that it is not possible to give definition of the phenomenon, though we "catch infringements of the Constitution, and not only catch, but we can also prove it" and in this connection we can give the words of St. Augustin about the God: "I can not give Himdefinition, but I know, what is godlessness" [6].

The offered negative definition satisfies neither the theory, nor the practice as Constitutionalism is "the historical reality which can be expressed in heuristically significant scientific concepts" [7], suitable for application in practice.

The term "constitutionalism", in the opinion of G.Dzh. Bermann has been put into scientific terminology at the end of XVIII - the beginning of XIX centuries for designation mainly of the American doctrine of supremacy of the written constitution above the laws. However the reality of this phenomenon for the first time was shown in the city legal systems of Western Europe in XI - XII centuries [8]. In modern foreign legal literature constitutionalism is considered in indissoluble connection with restriction of the power of the state as "belief in existence of the constitutional ways concerning establishment of the state restrictions", "legal restriction of the state and full contrast to willful government" [9], the set of principles, the order of activity and institutional mechanisms which are traditionally applied for the purpose of restriction of the government [10].

The world community has wide experience of development of the system of constitutionalism. Thus each state differs with the certain specificity, features of character (national, historical, political, ideological, culturological, economic, etc.) which determine necessity and opportunity of creation of the own model of constitutionalism.

Thus, American scientists relate to the basic attributes of constitutionalism: its foundation on sovereignty of people; recognition of the Constitution the supreme law, instead of program political document; representative government stipulated by the Constitution; legally guaranteed principles of supremacy of law , government on democratic bases, and the principle of the limited government, division of powers with the system of checks and balances; presence of the institute of constitutional control; impossibility of stay or cancellation of action of the constitution, its rigidity and supremacy over other legal acts; warranting and protection on the part of the state of the constitutional rights and freedoms of a person and a citizen, etc. [11].

As against American constitutionalism, in French constitutionalism we can find historical variability as in opposition to America where since 1787 has been working one and the same Constitution of the USA, the French history from the moment of adoption of the Declaration of rights and freedoms of a person and a citizen of 1789 has saved up rich experience. "France has approbated 17 constitutional systems… thus sequence of the constitutions should not, however, hide elements of stability which is supported by constancy of the state administrative structure and organization of territorial collectives [12].

Typical for German constitutionalism of E. Klein is in detail stated by S.V. Shevchyuk, who brings to the focus that the basis of German constitutionalism comprise: formation of will of the majority of people which cannot be restrained and should be carried out freely, when the minority should have the opportunity to create political opposition and potential chance to become the majority; constitutional means for prevention of centralization and abusing the power, for this purpose the Constitution provides institutional guarantees (division of powers, federalism, autonomy of municipal organs of the power); norms of the Fundamental Law should have the status of the supreme law; realization of the judicial constitutional control; respect of human rights, etc. [13].

In the opinion of representatives of modern Russian science of constitutional law, constitutionalism is considered the complex phenomenon containing: a) constitutional ideas and categories reflecting primary base values of the society; b) mass constitutional consciousness of the citizens; c) constitutional norms, acts and institutes as normative structured expression of the two above mentioned elements; d) constitutional order as the process and the state of realization of the constitutional norms [14].

It is encyclopedically stipulated, that constitutionalism should be understood both in broad and narrow senses. Constitutionalism in broad sense is the theory of the constitution, history and practice of constitutional development in this or that country, a group of the countries, the world community as a whole. Constitutionalism in narrow sense is the complete system of knowledge of base universal political-legal values reflected in democratic constitutions and democratic constitutional theory, their contents, forms, methods and degrees of realization [15].

In the Ukrainian constitutionally legal science constitutionalism has not received uniform definition and is interpreted differently. The review of its different characteristics allows to make the conclusion, that there have developed three basic approaches in the science to its definition: political, philosophical-historical and legal.

In political aspect constitutionalism is understood as special character of relations between the state and the society on the basis of consensus, as the ideological and political doctrine and movement. In the opinion of J.N. Todyka and V.S. Zhuravsky "constitutionalism in its political understanding is the special character of relations between the state and the society. It is the registration of the public consent concerning the corresponding values, principles and mechanisms" [16]. V.N. Shapoval considers, that "constitutionalism is first of all political-legal ideology, intellectual generalizations inherent to the certain stage of historical development". At the same time he specifies that "constitutionalism quite often is perceived as the political public movement directed to realization of corresponding ideas" [17].

In philosophical-historical - aspect it is understood as the doctrine about the constitution, including the reconstitution ideas of the divine, natural law, of contractual origin of the state, the doctrine about plutocracy, tyrannies, despotisms, democracies, etc. Thus constitutionalism as "the doctrine about the constitution" is considered from two positions - broad and narrow. "In broad position it (constitutionalism.) evolutions, starting from mythological forms of outlook - parapolitology IV - III thousand B.C... up to rational-logical forms of thinking, i.e. up to attributes of theoretical knowledge, occurrence of political-legal science". In narrow sense constitutionalism is treated as the complex of political legal ideas and practice of the state development of bourgeoisie in XVII - XVIII centuries guided by creation of institutionally-legal conditions of functioning of the states in which they would have provided "supremacy of the people, exclusive observance of laws, wide rights and personal freedoms, democratic electoral system…" [18].

In legal aspect constitutionalism is understood in narrow sense as the special mode of functioning of the government on the basis of constitutional methods and in broad sense it is understood as the complex political-legal system.

Certainly, political and philosophical-historical characteristics of constitutionalism are of great interest, but in their frameworks as a rule the theses having abstract character are affirmed. The legal aspect allows to formulate the precise definition of this phenomenon that is represented methodologically necessary for scientific research of constitutionalism as one of the major categories of modern science of the constitutional law cannot be determined in abstracto.

Legally constitutionalism represents the system in which constitutional norms, the constitution are one of the elements but not as something stiffened, static and the constitution taken together with it doctrine fundamentals, system of political-legal values representing the concept, philosophy, essence of the constitution, and practice of its. Except for these components of politicalо-legal system of constitutionalism, great value shall have such elements as constitutional sense of justice, constitutional legal relations and constitutional legality on which establishment finally functioning to this complex system is directed. We believe, that such "set" of elements of the system of constitutionalism is the most complete reflecting essence of this social-legal phenomenon .

Thus, constitution and constitutionalism are not identical concepts. The German researcher S. Voyit fairly specifies, the constitutionalism is the normative concept, and it should not be mixed with the actual constitution applied in any society [19]. It is a multilevel system functionally falling outside the limits of the Constitution and laws in general, reflecting the features of mentality and life of people. Constitutionalism is the complex system consisting of the set of closely interdependent, mutually conditioned and cooperating elements. Therefore the most fruitful should be the system research of constitutionalism allowing, first, to integrate, synthesize, theoretical and practical knowledge in this field which at present represent the polyelement set, instead of integrity (system), and, second, to prepare the basis and preconditions for their further analysis and differentiation, but on qualitatively another level of their integration, synthesis.

Based on the theory of political legal systems, constitutionalism as the system is characterized by the following attributes: integrativity, representing the integrated phenomenon, exarticulation from which of separate elements is practically inadmissible as it can lead to destruction of the integrity of the system; orderliness, as all the elements are ordered in the certain sequence which is conditioned by the character of mutual relations between the elements; complexity, as each element of the system is a complex unit having independent political-legal value; openness of the system as it cooperates with social, legal, political, economic, etc. environments; functionality as constitutionalism is a functioning system which conditions its dynamic development.

Constitutionalism is the political-legal phenomenon, which legal essence is conditioned, first of all, by normative-legal basis of this system which is represented by the Constitution (constitutional legislation). Constitution has the mixed political-legal nature, as well as constitutional relations arising on the basis of the norms which also can be characterized as political and legal [20] as "they regulate the process of organization and realization of imperious powers by the people, state and elements of the political system" [21]. Besides the political nature of constitutionalism proceeds from close interrelation of the policy with constitutionally-legal institutes and realities.

Alongside with the Constitution normative-legal basis of constitutionalism is the constitutional legislation. And the problem of constitutional laws is the most urgent.

Proceeding from existing legislative practice of the foreign countries and scientific-theoretical concepts, it is possible to carry out typology of the constitutional laws: laws entering changes and additions in the constitution; laws establishing the order of coming of the constitution into force; laws adopted on questions, stipulated by the constitution concerning which there are special instructions in the constitution; laws making in set the constitution; laws covering with the regulating influence the fundamental spheres of legal relations, key institutes of democracy and legal status of a person and a citizen.

We believe, that as the constitutional laws included into the system of constitutionalism, should be understood the laws which adoption is programmed by the Constitution, i.e. these are the laws regulating the most important (basic) public relations, occupying the following after the Constitution position in the system of legislation distinguished with the significant stability of contents.

Contents of the system of constitutionalism in outside is expressed in the certain institutional units. The basic institutes of constitutionalism are: the institute of public authority structured on the two relatively independent subinstitutes - the government and local self-management; institute of the constitutional control (supervising-controlling measures on the part of the state organs on maintenance of the constitutional legality, rights and freedoms of a person and a citizen, legal freedom, subjective public law, supremacy of the Constitution over system of statutory acts, its direct action); institute of the constitutional responsibility.

The purpose of functioning of the system of constitutionalism is the constitutional legality as the mode of exact and steady observance of the Constitution and other constitutionally-legal acts by all the subjects, real action of hierarchy of normative-legal acts in whose system the Constitution has the supreme validity.

The constitutional legality should be provided, first of all, by means of structure of public authority. And here the priority value shall have the constitutional justice which can significally influence not only safety, but also all other elements of constitutionalism (normative, ideological, cultural-legal, regulating).

The important means of maintenance of the constitutional legality is the institute of the constitutional responsibility which has not received sufficient scientific development. We believe that the constitutional responsibility should be considered as an independent kind of the legal responsibility, which appears in unity of general attributes inherent to the legal responsibility, and also to the features, characterizing it as the independent constitutionally-legal phenomenon (for example: bases and procedure and remedial forms of its application, the subjects, sanctions, specificity of constitutionally-legal delicts, etc.).

The theory of modern constitutionalism as politically-legal doctrine represents system of scientific knowledge giving complete representation about laws of development and essential connections of the phenomena of validity at the establishment of the constitutional system, development of the political system basing on the constitution as the fundamental instrument of public authority, the constitutional methods of government. Within the framework of this theory it is possible to allocate three basic directions in modern constitutionalism: 1). formal - legal direction (analytical jurisprudence). Its philosophical basis is normativism. Within the framework of this direction there have developed the following scientific schools - legal positivism, legalist school. 2). Political-sociological direction. Its basis is the sociological theory of the law. Within the framework of this direction it is possible to allocate some scientific schools - the school of "solidarists " (the doctrine of solidarism), institutionalism, the theory and practice of "political jurisprudence". 3). Youthnaturalistic direction (youthnaturalism).

When speaking about scientific-theoretical details of characteristics of these directions, it is necessary to note, that the formal - legal direction in modern constitutionalism finds the expression in the normative approach to the law according to which in the basis of the law as of the social control system lies the norm ("the basic norm" - G. Kelzen). Thus the normativist theory has both the advantages, and lacks. The positive side of this direction exists in the normative understanding of the law best of all reflects the tool role, emphasizes determining properties of the law - Its normativist and formal definiteness that allows the citizens and other executors of legal instructions to get acquainted with their contents on the text of statutory acts and according to them to select the variant of their application. Such normative definition of the law appears rather convenient in practice, as the focus variant of its application is that the normative understanding controls practical workers on application of legislation. Besides "any norm of the law is the order", their observance "is offered under the threat proceeding from the state" (G.F. Shershenevich) that assumes fixity of means of compulsion (sanctions) in case of non-observance of the rules of behaviour established by the state. All these regulations confirm the thesis, that "the law in reality is characterized by such property, as productivity and effectiveness" (according to G. Kelzen). The positive feature is that the law in this theory represents hierarchical system of norms in which the constitutional norms occupy the predominating position, and further follow other normative - legal acts in process of decrease of their validity. And the principle of conformity of the subordinate norm to the higher should be observed, that just means the establishment of the mode of legality. In aspect of the theory of constitutionalism it is possible to speak about the establishment of constitutional legality, as all other norms should f proceed from the constitution which is the closest to "the basic norm". However all these positive moments will work only in the event if the state expresses the interests of the society, serves them, is guided by the universal values if the philosophy of the constitution reflects the advanced moods of broad masses if in the system of legislation there exist no out-of-date laws.

Traditionally in the legal literature the negative feature in the normative theory is called ignoring by it of " the substantial side of the law" i.e. position and degree of freedom of the participants of the legal norms, subjective rights of a person, morality of legal norms, conformity to their objective requirements of social development [22].

In modern conditions the concept of legal self-restriction of the state (its legal coherence) is staticized. Theoretically this concept has been proved by R. Iering, G. Ellinek. The significant contribution to its development at the beginning of XXth century was brought by the Ukrainian scientist M.I. Palienko. In particular his ideas are that in the constitutional state not only the organs of executive and judicial power are connected with the laws, but the organs of the legislative power are "the applicants of the legislative instructions which determine their competence, contents and forms of activity" [23], and they are of great value. According to Yu.S. Shemshuchenko: "In modern period the concept of legal self- restriction of the state is the parameter of democratic character of its political mode" [24]. This concept is connected with sociological views on the law.

Political-sociological direction in the theory of constitutionalism is based on the sociological approach to understanding of the law (sociological jurisprudence) and of the corresponding concepts of statehood.

The basic accent in the sociological concept is made on practice of action of legal norms (rules), their practical realization.

The sociological theory of the law started its development at the end of XIXth, at the beginning of the XXth centuries. Its ancestors are R. Iering in Germany, F. Zheni in France, E. Ehrlich in Austria-Hungary, the American R. Paund, S. Muromtsev in Russia. The representatives of this direction have opposed the positive law to the "dead", "book" law - the law "alive", "the alive order", as the network of concrete legal relations, the system of effective standards.

The characteristic thesis of all the variants of the sociological direction is freedom of the judicial discretion. Supporters of this theory proved the conclusion that the law is developed appreciably during its application by the subjects of legal relations and, first of all, in judicial instances by removal of the corresponding decisions.

Significant role in development of the considered direction has been played by the American jurist R. Paund who asserted, that the law is first of all the actual legal order and the process of activity of court. He considered the law as the means of realization of social tasks and achievements of social balance both in public, and interpersonal relations. He is considered one of the founders of the spread in the USA theory in practice of "political jurisprudence". Representatives of "political jurisprudence" consider, that it is necessary to study the process of execution of justice in the context of a wider political process, it is necessary for jurists to take into consideration the current problems of the state policy, instead of being engaged in pure doctrine disputes. They consider the constitutional law as the instrument of socially and political control and reforming, analyzing the ways of its effectivisation in this aspect. They also examine political role of the constitutional courts, the influence which they have on the policy in the concrete spheres of constitutionally-legal practice, and the return influence of the policy on their decisions. The characteristic example in this case is the decision of the Supreme Court of the USA (1962) in which there has been formulated the doctrine of "the political question" according to which the question is considered political if in this respect it is possible to prove reference of the question to the competence of the political body; it is impossible to settle the question in the way of common hearing of the cases in court; it is impossible to solve the question without classification of political actions; admission by court of the decision is possible only in the order of expression of disrespect to political organs of the power. However, in the opinion of judge U. Duglas, application of this doctrine in particular on the cases about protection of human rights is the screen behind which the judicial power hides.

In modern Ukraine the similar doctrine (of the so-called " political expediency "), has been perceived by the Constitutional Court in February, 1998 according to which actions of the legislator in the frameworks of "political expediency" cannot be the subject of constitutionally-judicial audit.

As it is specified in legal literature, in Ukraine one of the problems of the constitutional justice is its scientific-practical position: "from positivism and neopositivism, its overcoming from positions of "general principles of the law" and values of the natural-legal doctrine down to application of elements of legal realism" [25]. In particular, Judge of the Constitutional Court of Ukraine A.M. Mironenko to lacks of the Court relates that it rejects rationalistic legal understanding of modern "elegant" jurisprudence and is "in networks of rigid legal positivism and neopositivism, narrow normative legal understanding". We believe that is necessary to address to the practice of "the alive law", to measurements of its legal and social efficiency.

The positive moment of the political-sociological direction in the theory of constitutionalism is, first of all that at such approach the account of the real processes happening in legal regulation is possible, including - political processes which are directly connected with realization of the state and publicly - self-administrative power, studying of these processes on the basis of concrete-sociological methods. Similar to it is the question on efficiency of constitutionally legal norms of law, necessities of perfection of the constitutional legislation, development of the branch of the constitutional law as the fundamental branch of the legal system of Ukraine. The weak side of this direction is possible danger of clearing of the concepts of law, loss by the law, including the constitutional law of the reality, of the borders. And consequently arbitrariness of judicial and administrative organs covered with "political expediency" or "public necessity" leads to infringement of the constitutional legality being the purpose of functioning of the system of constitutionalism. In legal literature it is truly noted, that "the law is not addition to policy but the independent all-social phenomenon, the generalizing degree of freedom, equality and validity of the society, the criterion of his morality (right as one of the forms of external display of morals is inseparable from it). The law can be display of the policy till this policydoes not contradict the norms of morals, the principles of validity according to which people are free and equal from birth in their opportunities and can realize them in the society" [26]. In this thesis the certain aspects of other direction in the theory of constitutionalism are seen, namely - youthnaturalistic which appears and gets more great value.

The youthnaturalistic direction in the theory of constitutionalism is based on the natural - legal doctrine, based on validity, freedom, equality. The basic thesis of youthnaturalism is in the following: alongside with the legal norms adopted by the state, there exists the unwritten law - the natural law which is understood as the set natural and inalienable rights of a person which all people possess by virtue of the fact of their birth: the right to life, freedom, equality, private property, etc. The Natural right proceeds from the human nature, arises in the natural way, instead of being created by people. Thus, the state cannot encroach on these inalienable rights of a person. Analyzing youthnaturalistic legal understanding in Ukraine in the second half of the XVIIIth century, A.N. Mironenko fairly specifies, that classical youthnaturalism (reflected in the ideas of G. Grotsiya, F. Bacon, T. Gobbs, J. Lock, S. Monteskje, Russo, I. Kant, G. Gegel, etc.), not isolated on the natural right as "the right in itself", spoke about the growing role in the public life of "the right conditional, derivative from natural…, i.e. the positive law as "the rights for itself ", having proved, that" secondariness of human laws, requirement of their full conformity to the natural right at all "does not belittle" the right positive, does not reduce its cardinal value in the legal theory and legal life" [27].

Modern youthnaturalism in the legal literature is characterized as the theory of revival of the natural right. The main sense of this direction is that the positive law, i.e. created by the state, is the right only in the event if it does not contradict the right natural, i.e. universal values, principles of freedom, equality, validity, etc. As a result the natural right is admitted as a certain reference point of the right positive, some kind of criterion for estimation of the legal contents of the law (the written law). Here pertinent and even "modern" is the expression of the statesman of Ancient Rome Mark Tuliy Tsitseron that "unfair law does not create the right". Thus, the situation when the law is not legal, i.e. democratic, humane is possible, and the law can become the basis of lawlessness and injustice. Therefore, in due time in modern literature there has been offered the structure of "supremacy of the legal law", that is such law which corresponds to high democratic and humane attributes.

The youthnaturalistic direction in the theory of constitutionalism gets special value in modern conditions, causes great scientific interest. First of all, it is connected with the fact that the components of the system of constitutionalism is the establishment of ideals of legal statehood, the mode of constitutional legality, maintenance of rights and freedoms of a person (including natural rights) and the major principle of the legal state - the principle of supremacy of the law as integral characteristic of the constitutional legality - the goal of constitutionalism.

Summarizing the above-mentioned, we believe, that the most comprehensible will be application of the integrative approach to the law, synthesizing the most significant postulates as positivist (in frameworks formally-legal), political-sociological and natural-legal directions. First of all, it has great value for application of constitutionalism. The necessity of application of the positivistic approach is represented obvious by virtue of its positive properties which mentioned at consideration of the formal-legal direction in the theory of constitutionalism. Besides Ukraine, basically, as well as Russia traditionally follows normative perception of the right, but thus does not exclude rapprochement (integration) of other directions. Thus, it is possible to ascertain, that judicial precedent is actually intertwined in the constitutional matter, which is approved by recognition of acts of the Constitutional Court a source of the constitutional law of Ukraine. Even more often attention is drawn to such source of law as the doctrine pays to itself. Thus, the legal regulations expressed in the decisions of the Constitutional Court in view of special opinions of the judges possess attributes of the doctrine. Thus, we can speak about normativist and sociological direction.

Finishing the review of the basic theoretical directions of modern constitutionalism, it is possible to make the conclusion, that each of them possesses certain positive and negative properties. In modern conditions in view of the basic tendencies of modern constitutionalism it is necessary to ascertain importance and value of each of them. Therefore it is expedient to mention the integration approach based on application in practice of constitutionalism of extremely positive sides of each of them for the purpose of creation of the optimum model of the Ukrainian constitutionalism and its realization in practice. In this connection we shall mention the position of G. Dzh. Bermann who specifies, that "it is necessary to overcome… the error concerning exclusiveness of political and analytical jurisprudence ("positivism"), or extremely philosophical and moral jurisprudence ("theory of the natural right"), or extremely historical and Sociometric jurisprudence ("historical school", "the social theory of law"). We need jurisprudence which integrates all the three traditional schools and leaves their limits" [28].

Constitutionalism is the dynamical system which is permanently developing. Tendencies of modern constitutionalism is characterized by the basic directions of its development as the complex political-legal system of the state and society. Some basic tendencies are of greatest interest. First of all, it is the tendency of politologization of the system of the constitutionalism, expressing in influence of political ways and means on constitutionally-legal relations (in particular - emperous relations), their regulation. Policy is closely connected with the constitutional law, first, by virtue of specificity of its subject, and second according to B. Kurashvili state study is beyond the legal science [29]. Thus it is possible to recognize fair some theses of the Marxist scientific school about essence of policy, in particular that the essential in policy is the system of the state power and all legal in the basis has its political nature [31]. The essence of the constitutional law cannot be learnt in full without reference to political categories. This aspect of constitutionalism cannot be ignored especially in conditions, when policy "has become business of the free people perceiving it as government (relation between managers and controlled - D. Sartori) and as self-management, democracy" [32].

Constitutionalism assumes in mutual relations between a person, a civil society and state priority of the human measurement of the state and the right, development of the civil society. Therefore the great value has the tendency of its sociolization which is shown in sociolization of the constitution and constitutional law as a whole. Sociolization of constitutionalism lies in reference to toolkit of the category "the social state", such state in which the actual social inequality with its economic consequences should" be minimized and the system of social support (protection) of those who requires it" [33] should be created.

The tendency biologization characterizes development of the system of constitutionalism from positions of "human measurement". Mutual relations between a person and a state should be based, first of all, on the principles of coordination, correlation of interests, mutual responsibility and respect. Tendencies of sociolization and biologization of constitutionalism correspond to one of the major tendencies specifies P.M.Rabinovich as "determining the modern condition of methodology of lawful state study", namely - antropologization. It means that a person a central object of the general-theoretical law of state study, and its natural legal properties and laws of their state-legal maintenance gradually turn to the most important component of the subject of this science [34].

The tendency of informatization is one of the "youngest" directions in development of the system of constitutionalism. It is specified in the scientific literature: "the Postindustrial society has, at least, two measurements - information society (inside the country) and globalism (on international arena)" [35].

The tendency of internationalization of system of constitutionalism expressed, first of all, in rapproachement of the national constitutional law with the international public law has great value. The international legal documents, recognized by the world community, become the so-called internationally legal standards perceived and stipulated in national legal systems of the separate countries. The tendency of democratization to some extent influences all the above-mentioned tendencies, standing out through the system of constitutionalism, being the priority direction of its development. Democracy protecting the fundamental rights of a person from any antilegal state act, has received in the legal literature the name of the constitutional democracy according to which all the members of the society recognize the fundamental laws in an equal measure for everybody, and the judicial control over the state legal acts for the purpose of protection of these rights should be justified and necessary. The constitutional democracy integrates legitimacy of the state statutory-legal acts with the requirement of their conformity to the fundamental (constitutional) human rights realising the function of restriction of the government as one of the preconditions of constitutionalism [36].

The above-mentioned list and the analysis of the tendencies of modern constitutionalism do not apply for completeness and all-roundness in perpetuum. The major directions of development of this complex political- legal systems at various historical stages can change, disappear or be supplemented with the new.

Summarizing the above-mentioned, it is possible to ascertain, that constitutionalism:

- As the theory, ideology and practice of constitutional development of the state and society arises from the moment of appearance of statehood;

- It is that forward process and simultaneously the goal of development of any state aspiring of democracy;

- these are the most essential, significant and vitally important achievements of development of the whole world community, and of each separate state, this theory has simultaneously universal, outside and interstate measurements;

- Possesses the standards which generated as a result of development of state-legal practice of the constitutional construction of the countries of the world and which due to scientific works are expressed in concrete scientific - heuristic postulates; - It is periodically varying scientific theory constantly developing, adding with new standards, corresponding to development of state-legal practice, but thus, outstripping it as much as to remain the goal, an ideal to which all world community and each state separately aspires;

- It is the dialectically complex and permanent process based on the laws of development of the nature and society (denying of denying, unity and conflict of opposites, transition of quantitative changes in qualitative, changes of the form with change of the contents, etc.);

- It is characterized by great social value constantly developing for the progress of mankind.

constitutionalism globalization ideology institute

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