To the question about understanding of the system of the sciences of modern constitutional law

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Abstract work

TO THE QUESTION ABOUT UNDERSTANDING OF THE SYSTEM OF THE SCIENCES OF MODERN CONSTITUTIONAL LAW

Constitutionally-legal science is the set aggregate of knowledge about different displays of constitutionalism and constitutional law as the fundamental field of national law. The constitutional law as the field of scientific knowledge relates to lawful disciplines. As well as in any other field of scientific knowledge, it is necessary to select in it the subject, object, contents, form, methodology, valued grounds, etc.

Foremost, the science of modern constitutional law enables to discover and research the objectively existent phenomena of the constitutionally-legal reality, to provide the theoretical basis of further genesis of constitutionalism and constitutional law as the fundamental field of national law, to foresee and forestall possible miscalculations and lacks of further development and improvement of national constitutional law, to examine positive foreign experience of constitutional development and law making for the purpose of its application in practice.

However, the science of constitutional law, submitting by itself the certain sphere of theoretical knowledge, can apply the right to be named the scientific sphere of knowledge only in case that it is not some sum of information, but the concerted set (system) of knowledge exposing conformities of development of the certain phenomena as the subject of examination of the given science.

Exactly the subject of the science differentiates and units the constitutionally-legal knowledge and in fact personifies it. The specification of the subject predetermines internal structure of the science, selection on the subject attribute of independent parts of its system.

The important role in systematization of the science of constitutional law is acted by its methodology, allowing to differentiate constitutionally-legal knowledge, determination of tasks, functions of the science of constitutional law and etc

Proceeding from the above stated the system of science of constitutional law, in our opinion, should be understood as the associate well-organized knowledge about the subject of its study, got by legal methods and methodological receptions, and structured in accordance with gnosiological and practical tasks and methodical requirements.

The system of the science of constitutional law has the objective basis as the subject and methodological definiteness of constitutionally-legal knowledge and is oriented on the tasks of the science as the special purpose options of cognition in the proper sphere of public life. So, at subject approach to organization of elements of the system either between them there is established logical (horizontal) connection, or there is determined their historical sequence or there is determined the level of correlation. The methodological approach to the construction of the science system, having as the basic criterion the method of receipt of constitutionally-legal knowledge, allows to select such methodological blocks, as logical and historical, legal and political, theoretical and empiric.

The system of science of constitutional law is objectivied in its structure, being the organization of the system, its internal form, different by stability and conformity to the law of relations of separate elements of such system. The variety of elements, showing up in their amount, construction and character of relations, is the reflection in thought of the phenomena and processes of constitutionally-legal reality studied by the science [1].

The system of any science can be lined up only when the accumulated material about the subject of study is rather vast, possesses high-quality integrity and is expounded in the scientific periodicals. Certainly, the object of cognition is the constitutional law that must be formed and exist in the developed state.

At the end of 19th century and at the beginning of the 20th century the system of the constitutional law was discussed in the pre-revolutionary science.

So A.V. Romanovich-Slavatinskiy, proceeding from the fact that the “Russian constitutional law has its subject the systematic exposition and elucidation of legalizations, determining the structure, jurisdiction and activity of authorities and establishments managing the Russian state”, considered that the Russian constitutional law “comprised three departments”. The first department, according to him, “forms the group explaining those legalizations which are determined the essence and organization of supreme Autocratic sovereignty”. The second contains legalizations, which “determine the structure of places and authorities of inferiors by means of which the supreme Autocratic sovereignty is shown up and acts on the people”. A.V. Romanovich-Slavatinskiy considered that on complication of its contents this part should be subdivided into sections. In his opinion, “the bodies, by means of which sovereignty shows up and acts on people is the essence of place and power. Places are legal bodies, establishments, presences; authorities are physical bodies - officials, acting both separately and bureaucratically or in composition of presences - collectively”. The third department of the Russian constitutional law, as A.V. Romanovich-Slavatinskiy asserted, “consists of those legalizations which determine position in the state, rights and duties, participating in management of different classes of people, historically disintegrating in estates and states” [2].

Another great scientist-constitutionalist N.M. Korkunov offered the system of science of constitutional law, based on the construction of the state as the legal relation in which the subjects are “all participants of state intercourse”, and the object is the State power. Proceeding from this, he divided the system of science of constitutional law into two parts - general and special. General part was subdivided by him into four basic sections: 1) general description of the political system; 2) studies about the subjects of state relation - monarch and citizens; 3) study about the object - about power, its functions and bodies; 4) studies about contents of state relation - about rights and duties of monarch and citizens. The special part, in his opinion, included four sections: 1) the supreme management (including the functions of legislation); 2) inferior management (the sphere of “sublawful management” and activity of “inferior bodies”); 3) self- management (sphere of inferior management, standing for “interests of local association”); 4) providing of management legality (as the special activity of State power). Commenting division and contents of the special part, N.M. Korkunov specified that it comprises “private displays of State power, bodies through which it is accomplished, her, rights duties, concerning their origin” [3].

The idea of division of science of constitutional law into general and special was specified by other scientists. So, some pre-revolution scientists selected science of general constitutional law and science of the special constitutional law. First, according to A.S. Alekseev, cognized “legal principles on which state life of cultural peoples reposes”. The special constitutional law studied “the positive constitutional law of the people” [4]. Thus, according to M.M. Kovalevskiy, the general constitutional law was oriented to the foreign states, in which the constitutional system was set and there was developed the constitutional law, characterized by division of authorities, democracy and system of representative office [5]. The second was formalized in science of the Russian constitutional law.

According to N.E. Lazarevskiy, the state “is the complex system of legal relations, composing the population in one organized unity which is sovereign and so that its organization is based on own laws”, he assumed that constitutional law from all relations deals only with those, which arise up “at persons, forming political organization (government) of the state, between itself and at all the population in its relationship with the government and its separate bodies”[6].

In the opinion of modern scientists-constitutionalists, L.E. Lazarevskiy could introduce in the studies material about the constitutional state, considering questions about the forms of rule, historical pre-conditions of the constitutional system, to which he related division of authorities, people's sovereignty, and people's representative office. According to N.A. Bogdanov, L.E. Lazarevskiy built the system of constitutional law. In it, besides section, devoted to the constitutional state, he selected the followings parts: state unity (problems of centralization of power and autonomy); chapter of the state; people's representative office (including the right to vote); parliament; legislation (laws and the process of legislation); the supreme bodies of management (including questions about participating of parliament in affairs of management) [7].

Thus, we see that the variants of the system of science of constitutional law, specified in the pre-revolution science, are very various. It is conditioned, foremost, by the fact that in part of normative basis, because of absence in the Russian empire of the constitution, it actually did not have valuable guide line (except for the Statute-book). On one hand, it may have hampered development of science, on the other hand other - it allowed to develop the theory, not restrained by any normative scopes and limitations. Therefore such institutes as federalism, constitutionalism, parlamentarizm, the right to vote got the fundamental objective estimation in the works of pre-revolutionary scientists, which frequently were less developed in those states, where they appeared. Thus, maintenance of the given institutes was less politized exactly because these scientists played the role of rather strange observers [8].

The situation cardinally changed in the soviet science of constitutional law. The question about the system of soviet state legal science decided “from a clean sheet”, having practically refused from the scientific legacy of the past. Largely its decision was influenced by political, ideological, and partly methodical factors. As a result two extreme positions were firmly established. According to one of them the science system equated with the system of basic source of the field - the constitution. According to the other position there could be assumed some retreat of the system of constitution both in formulas and in their contents filling. General for all variants of development of the system science was in selection of block of theoretical questions, devoted to the subject, method, sources of constitutional law as the field, especially and, foremost, to the constitution, and also to the general description of science.

The idea of complete coincidence of the system of the field and science with the system of the Constitution of the USSR of the year 1936 was carried out in the textbook edited by A. Ya. Vyshinskiy [9]. The names and the chapters repeated the system of the Constitution of the USSR: public system of the USSR; political system of the USSR; supreme bodies of the state power of the USSR, of the union and autonomous republics; bodies of state management of the USSR of the union and autonomous republics; local bodies of the state power; the court and the prosecutor's office; basic rights and duties of the citizens of the USSR; electoral system of the USSR. Only the two first chapters of the textbook, instead of the system of the Constitution, covered the general questions of constitutional law. Chapter One, executing the function of introduction, included bases of the Marxist -Leninist study about the state and law, thus only its insignificant part was devoted actually to the problems of constitutional law (§ 6 “Soviet socialistic state and law. Subject and method”). The rest paragraphs of Chapter One comprise the material of the Marxist general theory of the state. Chapter Two “Basic stages of development of the Soviet Constitution” was the short history of constitutional development and, in fact, did not touch the questions of theory of the constitution.

The point of view about the coincidence of the system of science of constitutional law with the system of the constitution was shared practically by all scientists-constitutionalists during more than 20 years [10]. So, for example S.S. Studenikin, offered the following system of science of the Soviet constitutional law: 1) Subject, system and sources of the Soviet constitutional law; 2) The Soviet constitution and basic stages of its development; 3) Public system; 4) Political system; 5) Supreme bodies of the government of the Union of SSR, union and autonomous republics; 6) bodies of administration of the Union of the SSR, Marxist and autonomous republics; 7) Local public authorities; 8) Court and prosecutor' office; 9) Basic rights and duties of the citizens; 10) Electoral system [11]. constitutional law power

Attempts come up creatively to exposition of material were estimated as “antipatriotic assumption of contrasting of the system of the course of the Soviet constitutional law to the system of the Soviet Constitution”. Moreover, the textbook prepared by E.P. Traynin and E.D. Levin, in which the system of science comprise theoretical problems which objectively could not be interpreted in the constitution (for example, the question about its essence, the concept of the public body and etc.) was deprived of the ministerial vulture. The certain “scientific boldness” of the authors of this edition was that they offered another order, than in the Constitution, of structural elements of the system. In particular, basic rights and duties followed directly after the questions of public system, determining their contents, the electoral system was considered in close relation with the system of representative organs, formed by means of elections, the questions of change of the Constitution were closely connected with the problem of its essence.

The similar understanding of the science system was predetermined by prevailing of political qualities of the Soviet constitution over legal that converted the fundamental law into the ideological dogma. In such situation the science was given the role of commentator of the text, political critic of any deviations from the class and party understanding of positions of the constitution [12].

Different views on the system of science appeared in 1960th.

The first serious view concerning the new understanding of the system of science of constitutional law was the position of author collective, prepared under the leadership of A.I. Lepeshkin, the two-volume edition “Course of the Soviet constitutional law”. The given edition grounded the following system of science of the constitutional law: 1) concept of object, sources and system of the Soviet constitutional law as the field and science; 2) the Soviet Constitution, its basic principles and role in communist system; 3) The Soviet state power is embodiment of sovereignty of people; 4) State power and basic rights and freedoms of citizens; 5) Political system of the USSR is embodiment of sovereignty of nations; 6) Organization of Soviet state power and basic forms of activity of its bodies[13]. Specific approach offered by the authors, supposed that none of blocks of the science system textually reproduced the structure of the working at that period Constitution of the USSR.

Later there appeared other variants of exposition of the system of science of constitutional law, which characteristic feature was walking away from the traditional for 1930-1950th transference of the system of science of the constitutional law structure of the working at that period Constitution [14]. It was caused by a number of factors. First, constitutionally-legal reality was changing, and that should be reflected in the system of its research. Second, science became more free in realization of the creative potential. Third, the idea about the necessity of adopting of the new constitution was realized in the society.

After adopting of the Constitution of the USSR of 1977 and the Constitution of Ukraine of 1978 the views on the system of science of the constitutional (state) law were largely liberalized. Except for recognition of necessity of scientific researches in the field of general theory of constitutional law, history of Soviet constitutions, history of science of constitutional law, its methodology, etc., there appear the long-time researches of forms of socialistic democracy, Soviet right to vote, constitutionally-legal status of prosecutor's office, bodies of justice, legal status of the union republics. For the first time perspective is recognized such direction of scientific researches, as legal status of local councils of people's deputies, and the centre of research of this problematic are officially recognized scientific establishments of the Ukrainian SSR. During the last years of existence of the former USSR the system of science of the Soviet constitutional law was at high-level development: new perspective directions of scientific researches developed, proof and authoritative centres of scientific researches were formed, the results of scientific researches were incarnated not only in numerous textbooks, monographs and scientific articles, and in law-making activity of the Supreme Soviet of the USSR and the Supreme Soviet of the Ukrainian SSR.

Cardinal changes in public and state system connected first of all with disintegration of the USSR and change of public system, entailed reformation of constitutional law as the field of law, regulating relations of the power and its interrelation with a person and a citizen. Changes in the law entailed change of ideas in science, update of category of staff, change of priorities and accents. Human rights, constitutionalism in understanding of western democracy and presented as common to all mankind values became new ideological guide line for constitutional law for the majority of the former soviet states, including Ukraine.

In spite of huge prospects of development of science of constitutional law on the modern stage of development of the society and state, the problem of its system on the whole did not get the due realization. Both in Ukrainian and Russian editions these questions are not arisen [15] or are examined extremely fragmentarily [16]. In modern constitutionally-legal science the monograph of N.A Bogdanova differs from the rest. [17], and in the educational editions there can be selected separate works in which the question about the system of science of the constitutional law is covered more or less thoroughly only [18].

Let`s consider separate approaches to understanding of structure of the system of science of constitutional law.

So, the Russian scientists, M.P. Avdeenkov and Yu.A. Dmitriev, consider that each element of the system of the field must precede its scientific-theoretical research. Proceeding from this, they offer seeing of the system of science of constitutional law, the constituents of which are: 1) the theory of constitutional law (subject, method, constitutionally-legal norms and legal relations, sources of constitutional law, constitutionally-legal responsibility); 2) the theory of the Constitution; 3) naturally-legal and socially-legal doctrine of development of human rights; 4) the theory of peoples, national and state sovereignty; 5) the study about the form of rule and division of powers; 6) the theory of political-territorial organization of the State power; 7) the theory and classification of the political modes; 8) the theory of people's representative office; 9) the study about the civil society; 10) the conception of democracy and its realization through the mechanism of bodies of public power [19].

Specifying multidimensionalness of the system of science of constitutional law, N.A. Bogdanova offers the three variants.

So, selecting as the criterion of articulation of the system of science of constitutional law on the in-thematic sign, she selects the followings sections formed in connection with the specification of the subject of study of science and selection of constitutionally-legal description of cognizable objects: 1) constitutional law as legal science; 2) constitutional law as the field of law; 3) constitutional bases of construction of the society and state; 4) constitutional bases of legal status of the personality; 5) constitutional bases of territorial organization of the state power; 6) constitutional bases of the system of public bodies and their constitutionally-legal status.

Construction of the system of science of constitutional law on the basis of selection of statuses of doctrines of subjects of constitutionally-legal relations, in the opinion of N.A. Bogdanova, supposes dividing of constitutionally-legal status of personality, constitutionally-legal status of the society and constitutionally-legal status of the state.

And, finally, the third variant of formalization of the system of science of constitutional law, according to N.A. Bogdanova, is in dividing of science into general and special constitutional law [20].

The problem of the system of science of constitutional law caused considerable interest among the Ukrainian scientists-constitutionalists. So, according to V.F. Melashchenko the system of science of constitutional law is determined by its object, and by the certain sequence of study of constitutionally-legal problematic. As basic subsections of the system of science of constitutional law he selected the following subsections: general questions of science; study about the Constitution of Ukraine; general bases of the constitutional system of Ukraine, and its sections such as the person and the state; the civil society and the state; the territorial structure; mechanism of realization of sovereignty of the people of Ukraine [21].

On the whole the traditional seeing of the system of science of constitutional law was offered by the Ukrainian scientist Yu. N. Todyka, who selected in science such sections as: constitutional law in Ukraine as the field of law and science; the study about the Constitution; bases of the constitutional system of Ukraine; bases of legal status of a person and a citizen; the territorial structure of the state; bases of constitutionally-legal status of legislative, executive and judicial power of the Constitutional Court of Ukraine, of the Plenipotentiary of Supreme Rada of Ukraine on human rights, the status of bodies of local self-management. Except for the specified sections, he made an accent on actuality of such directions of scientific researches, as the problem of constitutional legality, constitutional responsibility, sanction of constitutionally-legal conflicts, working out of state legal mechanisms of providing of rights for citizens, and constitutionally-legal problems of democracy, foremost referendums and elections.[22].

Another Ukrainian scientist O.F. Fritskiy determining the system of science of constitutional law as “well-organized set in relation to the independent complexes of theoretical positions, built on the basis of logical connection among them” considers that the certain section of constitutionally-legal theory should correspond to each of elements of the system of the field. They are : 1) description of constitutional law as the field of law and science; 2) the theory of the Constitution, the analysis of constitutional development of the state; 3) theoretical problems arising from the contents of constitutionally-legal institute “general bases”; 4) the status of a person and a citizen, mutual relations of the state and a person, nature and classification of rights, freedoms and duties of a person and a citizen; 5) forms of the direct will; 6) organization and activity of bodies of the state; 7) territorial organization of the state, features of autonomy in Ukraine [23].

We shall expound the seeing of the system of science of modern constitutional law. In our opinion, the system of science of constitutional law consists of general and special part.

General part is the theory of constitutional law. We assume that to the bases of theory of modern constitutional law, foremost, it is expedient to relate such basic problems, as:

- Study about constitutional law as the fundamental field of national law;

- Study about constitutional law as legal science;

- Study about the sources of constitutional law as the fundamental field of national law;

- Study about the sources of constitutional law as the fundamental field of national law;

- Study about the world communitarian law and its place in the system of constitutional law;

- Study about modern constitutionalism;

- Study about the Constitution;

- Study about the constitutional system;

- Study about constitutional legal relations;

- Study about constitutional sense of justice;

- Study about the constitutional culture;

- Study about constitutional bases of the legal state and the civil society;

- Study about constitutional conflicts (constitutional conflictology);

- Study about constitutional delictness and constitutionally-legal responsibility (constitutional dialectology);

- Study about the procedural form in the constitutional law and constitutional processing;

- Study about municipalism as the basis of the civil society and modern constitutionalism.

And within the framework of general part of science of constitutional law it is expedient to examine basic tendencies of development of constitutional law in the modern world.

The special part in the system of science of constitutional law includes the so-called institutional constitutional law basic elements of which, on the whole are adequate to the basic sections of modern constitutions, representing studies about separate subjects and institutes of constitutional law. In particular, these questions are:

- Study about rights and freedoms of a person and a citizen and the constitutionally-legal status;

- Study about people and the constitutionally-legal status;

- Study about the state and the constitutionally-legal status;

- Study about parlamentarism and the constitutionally-legal status of parliament;

- Study about constitutionally-legal status of head of the state, foremost presidentialism in the states with the republican form of rule;

- Study about the executive power and constitutionally-legal status of the government, central and local bodies of the executive power;

- Study about the t judicial power and constitutionally-legal status of courts;

- Study about control (control-supervisory) power and constitutionally-legal status of its bodies;

- Study about territorial organization of the state and its administrative-territorial structure;

- Study about the municipal power and constitutionally-legal status of local self- management.

The literature

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11. См., например: Советское государственное право / Под ред. Н.Я. Куприца. - М., 1950; Уманский Я.Н. Советское государственное право: Учебное пособие / Под ред. К.А. Мокичева. - М.: Госюриздат, 1955; Советское государственное право / Под ред. С.С. Кравчука. - М., 1958 и др.

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18. Конституционное право в Российской Федерации: Курс лекций: В 9 тт. Т. 1. Основы теории конституционного права / М.П. Авдеенкова, Ю.А. Дмитриев. - М.: Издательство «Весь Мир», 2005. - С. 365-371.

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