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Journal articles on the topic 'Science of constitutional law'
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1
Fedorenko, V. L., and M. V. Fedorenko. "Principles of constitutional law: essence, content and system." ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, no. 13 (October 1, 2022): 160–66. http://dx.doi.org/10.33663/2524-017x-2022-13-25.
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The publication is devoted to identifying the essence and content of the category of “principle of constitutional law” and identifying its relationship with related but not identical categories: values, ideals, foundations, principles, objectives, mandatory rules, laws, etc. Genesis and development of ideas about the principles of constitutional law and their consolidation in constitutions and constitutional acts are analyzed. The systematization of the main types of relevant principles and groups is carried out: principles of constitutionalism and constitutional doctrine, principles of science and education of constitutional law, principles of the constitution, as well as principles of constitutional law-making, law enforcement and justice (jurisdictional) activities. It is argued that modern constitutions enshrine in the norms-principles the most important values of the constitutional order: the rule of law, rule of law, freedom and democracy, the inviolability of fundamental human rights, etc. But their real embodiment presupposes unification and interaction of civil society with the state. Key words: principle, principle of constitutional law, system of principles of constitutional law, principle of constitutionalism, principle of the Constitution, principles of the science of constitutional law.
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Alexander, Larry. "WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?" Social Philosophy and Policy 28, no. 1 (November 30, 2010): 1–24. http://dx.doi.org/10.1017/s0265052510000038.
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AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.
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Shustrov, Dmitry. "Supra-constitutional norms in constitutional law." Sravnitel noe konstitucionnoe obozrenie 30, no. 1 (2021): 100–127. http://dx.doi.org/10.21128/1812-7126-2021-1-100-127.
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The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.
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Matat, A. "THE JUSTIFICATION OF CONSTITUTIONAL PRINCIPLES." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 117 (2021): 54–58. http://dx.doi.org/10.17721/1728-2195/2021/2.117-10.
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This paper deals with the study of the justification of constitutional principles as a fundamental category of constitutional law. Legal principles are an important conception in the legal doctrine and the legal practice of democratic countries. Ukrainian legal doctrine studies legal principles in the two paradigms, namely fundamental principles and general principles. However, this approach does not result in the understanding of principles in constitutional law. That is why principles in constitutional law are an actual topic. The article aims to examine the fundamental concepts to find the justifications of constitutional principles. Hence, the author pays attention to the content of constitutional law and constitutionalism as principles-based categories. First, constitutional law is a fundamental part of the law in the legal system, and all the parts of the law are dependent on constitutional law. Second, the universal constitutional principles are the same for all legal systems. After all, constitutionalism doctrine consists of the limitation of power, and nowadays, this is expressed through the constitution and different constitution principles. The author uses comparative legal, phenomenological, and system-structural analysis as a valid methodology for this research. Finally, the research investigation contains the following conclusions that enable the author to prove the motivation of the science paper to study the outlined topic. First, constitutional law is the basis of the legal system, which embodies constitutional principles; constitutional law has the same effect on public law and private law. Second, constitutionalism is a source for finding constitutional principles. Third, the system of constitutional principles includes the following characteristics: universality and specificity. The system of constitutional principles is open and depends on the interpretation of constitutions. The paper aims to contribute to the growing research highlighting the current issues of constitutional principles. Keywords: principles, constitutional principles, constitutional law, constitutionalism, the system of constitutional principles.
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Roznai, Yaniv. "What are We Talking About When We Talk About “Mixed Constitutions”? Towards a Typology of Constitutional Mixture." Law & Ethics of Human Rights 16, no. 2 (November 1, 2022): 193–215. http://dx.doi.org/10.1515/lehr-2022-2010.
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Abstract This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of constitutional mixture considering the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society.
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Leliya, Leliya Leliya, and Leliya Leliya. "INDONESIAN STATE LAW IN ITS HISTORICAL PERSPECTIVE AND DEVELOPMENT." Pena Justisia: Media Komunikasi dan Kajian Hukum 23, no. 1 (March 19, 2024): 829. http://dx.doi.org/10.31941/pj.v23i1.4143.
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<p>The history of Indonesian constitutional law began in the Dutch colonial period when Indonesia was still called the Dutch East Indies. Then after Indonesia's independence in 1945, for the first time formed a constitution or Basic Law. The focus of the study in this study is to try to explain the development of Indonesian constitutional law from the Old Order era to reform. This is to find out how the history of the development of Indonesian constitutional law from time to time, especially from the beginning of independence to reformation. The method in this study is qualitative, with a historical approach. The data collection method used is the method of library research (library research). Then analyzed using the descriptive-analytic method. At the beginning of independence in 1945, Indonesia's constitutional law was contained in the 1945 Constitution. The 1945 Constitution described Indonesia as a unitary state with a president as the head of state as well as a democratic head of government. Besides that, under Soekarno's government, constitutional law was regulated in several constitutions, including the 1949 RIS constitution and the 1950 UUDS. And Soekarno's government at that time was known for its nationalist and anti-capitalist politics. The Suharto government was known for its authoritarian politics, political stability, and economic growth. Finally, during the reform period, after the fall of President Soeharto in 1998, Indonesia underwent significant political reforms. Constitutional law is regulated in the 1945 Constitution with several amendments which emphasize the principles of democracy, human rights, decentralization of government, and increased political participation. The history of the development of constitutional law in Indonesia in general shows quite dynamic developments and always follows changes according to political and socio-cultural developments in Indonesia.</p>
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Dudko, I. G. "Modern Concepts in Russian Constitutional Law." Actual Problems of Russian Law 15, no. 3 (April 9, 2020): 35–46. http://dx.doi.org/10.17803/1994-1471.2020.112.3.035-046.
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The change of the scientific paradigm in Russian jurisprudence is accompanied by the affirmation of pluralism in a legal science. The paper has highlighted that the modern Russian constitutional theory seeks to express itself in the problems of ontological and axiological foundations, claiming to form an integral ”constitutional philosophy.”Constitutional axiology represents one of the most significant concepts of constitutionalism. Constitutional axiology is built as a field of scientific reflection (the nature, content, system of constitutional values). From these standpoints, the author provides for the assessment of law-enforcement carried out by the body of constitutional justice. The paper recognizes the high importance of research of constitutional law from the axiological point of view.The author has concluded that constitutional values as a reflection and expression of the “charter” of the life of the society (“protoconstitutional”) represent objectivated systemic totality functioning as the ultimate goal of constitutional development. Constitutional values represent concepts that must correspond to the social and spiritual environment of the society and the purpose of the State.The paper critically assesses the concept of a “living constitution” in its Russian interpretation as the constitutional and appraisal activity of the Constitutional Court of the Russian Federation with regard to “generation” of constitutional values. It is noted that the result of the work of the Constitutional Court of the Russian Federation expressed in its legal determinations, can not represent other (“generated” by it) constitutional values except those contained in the Constitution of the Russian Federation. “Transformation” of the content and legal attitudes and meanings of the Constitution, constitutional values without changing the text of the Constitution may lead to “distortions” of the essence of the Constitution and intent for the Constitution to be an act with the highest legal force.
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Nataliya, Batanova. "Functions of constitutional and legal responsibility: methodological problems of research." Yearly journal of scientific articles “Pravova derzhava”, no. 31 (2020): 210–21. http://dx.doi.org/10.33663/0869-2491-2020-31-210-221.
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The article considers the problems of the theory of functions of constitutional and legal responsibility. The characteristic features of the functions of constitutional and legal responsibility are analyzed. It substantiates the correlation and relationship between the functions of constitutional and legal responsibility and the functions of the Constitution, the functions of constitutional law, the functions of the state, etc. It is proved that the functions of constitutional and legal responsibility are characterized by legal features that reveal the essence and content of this category, in particular: 1) express the nature and content of this type of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution and constitutional order; 2) interrelated with the main functions of the state; 3) is an active way of acting of constitutional and legal responsibility and constitutional law as a whole (its principles, tasks, functions); 4) having an objective nature, on the one hand, is a form of purposeful willful behavior or activity of the subjects of constitutional liability and constitutional law in general (subjects of instances of constitutional responsibility and subjects of violators of constitutional law and order (delinquents)), and, on the other hand, the system of legal states that give rise to the constitutional rights and obligations of participants in constitutional-controversial and constitutional-conflict relations; 5) directly related to the system of constitutional law institutions (people, state, elections and referendums, bodies and officials of state power and local self-government, people and citizens, territorial hromadas, political parties, etc.); 6) are in synergy with the sources of constitutional law as a branch of law (above all the Constitution and its functions); 7) directly affect the constitutional and legal relations (first of all, constitutionally-controversial and constitutional-conflict) and their properties, subject-object composition, constitutional legal facts; 8)are organically related to the functions of constitutional law as a legal science and academic discipline and the like, etc. The definition of the concept of the functions of constitutional legal responsibility as the main normative and organizationally secured areas and types of its influence on the constitutional and legal relations with the purpose of protection of the Constitution, restoration of the constitutional order and proper fulfillment of tasks, functions and powers of the subjects of these relations, constitutional disputes between them and overcoming constitutional conflicts is formulated.
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Batanova, Nataliia. "Functions of constitutional and legal responsibility: problems of conceptualisations." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 100–104. http://dx.doi.org/10.36695/2219-5521.1.2020.18.
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The article considers the problems of the theory of functions of constitutional and legal responsibility. The characteristic features of the functions of constitutional and legal responsibility are analyzed. It substantiates the correlation and relationship between the functions of constitutional and legal responsibility and the functions of the Constitution, the functions of constitutional law, the functions of the state, etc.
It is proved that the functions of constitutional and legal responsibility are characterized by legal features that reveal the essence and content of this category, in particular: 1) express the nature and content of this type of legal responsibility, its purpose in society and the state, as well as its place in the system of protection of the Constitution and constitutional order; 2) interrelated with the main functions of the state; 3) is an active way of acting of constitutional and legal responsibility and constitutional law as a whole (its principles, tasks, functions); 4) having an objective nature, on the one hand, is a form of purposeful willful behavior or activity of the subjects of constitutional liability and constitutional law in general (subjects of instances of constitutional responsibility and subjects of violators of constitutional law and order (delinquents)), and, on the other hand, the system of legal states that give rise to the constitutional rights and obligations of participants in constitutional-controversial and constitutional-conflict relations; 5) directly related to the system of constitutional law institutions (people, state, elections and referendums, bodies and officials of state power and local self-government, people and citizens, territorial hromadas, political parties, etc.); 6) are in synergy with the sources of constitutional law as a branch of law (above all the Constitution and its functions); 7) directly affect the constitutional and legal relations (first of all, constitutionally-controversial and constitutional-conflict) and their properties, subject-object composition, constitutional legal facts; 8)are organically related to the functions of constitutional law as a legal science and academic discipline and the like, etc.
The definition of the concept of the functions of constitutional legal responsibility as the main normative and organizationally secured areas and types of its influence on the constitutional and legal relations with the purpose of protection of the Constitution, restoration of the constitutional order and proper fulfilment of tasks, functions and powers of the subjects of these relations, constitutional disputes between them and overcoming constitutional conflicts is formulated.
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Ahmad, Ahmad, Fence M. Wantu, and Dian Ekawaty Ismail. "Convergence of Constitutional Interpretation to the Test of Laws Through a Constitutional Dialogue Approach." Jurnal Konstitusi 20, no. 3 (September 1, 2023): 514–35. http://dx.doi.org/10.31078/jk3038.
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The Constitutional Court's presence yields positive impacts on constitutional law, yet isn't devoid of controversies, including Judge misconduct, transgression of 'nemo judex idoneus in propria causa' principle, and potential super body transformation. This paper aims to comprehend and analyze constitutional interpretation dominance in assessing laws against the 1945 Constitution through a constitutional dialogue approach. This normative writing employs legal, historical, and conceptual methods. Findings underscore: 1) Demonstrating respect for state institutions, notably the People's Consultative Assembly of Indonesia. 2) Establishing a more democratic system to test the 1945 Constitution's compatibility in the Constitutional Court. 3) Breaking the monopoly of Constitutional Court-centric constitutional interpretation. 4) Reviving 'nemo judex idoneus in propria causa' principle is pivotal due to extensive testing of Constitutional Court Law, addressing concerns about verdict impartiality.
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Ahmad, Ahmad, Fence M. Wantu, and Dian Ekawaty Ismail. "Convergence of Constitutional Interpretation to the Test of Laws Through a Constitutional Dialogue Approach." Jurnal Konstitusi 20, no. 3 (September 1, 2023): 514–35. http://dx.doi.org/10.31078/jk2038.
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The Constitutional Court's presence yields positive impacts on constitutional law, yet isn't devoid of controversies, including Judge misconduct, transgression of 'nemo judex idoneus in propria causa' principle, and potential super body transformation. This paper aims to comprehend and analyze constitutional interpretation dominance in assessing laws against the 1945 Constitution through a constitutional dialogue approach. This normative writing employs legal, historical, and conceptual methods. Findings underscore: 1) Demonstrating respect for state institutions, notably the People's Consultative Assembly of Indonesia. 2) Establishing a more democratic system to test the 1945 Constitution's compatibility in the Constitutional Court. 3) Breaking the monopoly of Constitutional Court-centric constitutional interpretation. 4) Reviving 'nemo judex idoneus in propria causa' principle is pivotal due to extensive testing of Constitutional Court Law, addressing concerns about verdict impartiality.
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Kustra-Rogatka, Aleksandra. "Kontekst jest wszystkim. O trudnej sztuce komparatystyki „europejskiego” orzecznictwa sądów konstytucyjnych." Przegląd Konstytucyjny, no. 3 (2022) (October 31, 2022): 45–73. http://dx.doi.org/10.4467/25442031pko.22.021.16386.
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Context is Everything. On the Difficult Art of “European” Comparative Studies Jurisprudence of Constitutional Courts Comparative research of the case-law of constitutional courts concerning the membership of a given state in the EU (referred to in the article as “European” case-law of constitutional courts) requires taking into account various contexts in which this case-law is involved. The aim of this article is to indicate and analyze the most important of them, namely: the systemic context, the temporal context, the political context (including related problem of the politicization of the constitutional court), and the theoretical context. Moreover, the article draws attention to the necessity to contextualize “constitutional borrowings”, which acquires special meaning in connection with the perceived phenomenon of abuse of the “comparative argument”. Sometimes the distinguished contexts overlap, for example in the case of the temporal context and political context, but their separation allows for a better understanding of the complexity of comparative research on the European acquis constitutionnel. The specificity of this subject of legal-comparative research proves the correctness of the thesis that the contemporary constitutional comparative law must face several challenges. The first is the integration of the classical “horizontal” comparative method with the “vertical” dimension related to the influence of international and supranational norms on national constitutional systems. The second challenge is related to supporting an interdisciplinary approach to comparative constitutional law, which will take into account the perspective of social sciences, such as political science, sociology or history. The third challenge, then, is related to establishing the right balance between focusing on specific (not only) legal issues related to the analyzed issue and taking into account a broader vision of the directions of changes in European constitutionalism. The fourth challenge, in turn, concerns the popularization of the results of scientific research related to comparative studies of the “European” acquis constitutionnel. The last (and perhaps the most difficult) challenge facing the comparative research of “European” case law of constitutional courts is an attempt to answer the question to what extent this diverse jurisprudence conglomerate is a manifestation of the stability of constitutional law and the constitution, and to what extent it is a driving force for dynamic changes in contemporary public law.
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Hunter-Henin, Myriam. "CONSTITUTIONAL DEVELOPMENTS AND HUMAN RIGHTS IN FRANCE: ONE STEP FORWARD, TWO STEPS BACK." International and Comparative Law Quarterly 60, no. 1 (January 2011): 167–88. http://dx.doi.org/10.1017/s0020589310000709.
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A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.
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Shinar, Adam. "Deconstructing Mixed Constitutions." Law & Ethics of Human Rights 16, no. 1 (May 1, 2022): 167–92. http://dx.doi.org/10.1515/lehr-2022-2005.
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Abstract A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a constitution “mixed.” Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions.
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Тulteev, Ilyas. "CONSTITUTIONALISM AND SCIENCE OF CONSTITUTIONAL LAW: SOME TASKS AND DEVELOPMENT PROSPECTS." Review of Law Sciences 7, no. 2 (June 26, 2023): 13–23. http://dx.doi.org/10.51788/tsul.rols.2023.7.2./awde8980.
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The article analyzes the tasks and prospects of the development of constitutionalism and the science of constitutional law from the standpoint of the current state of the constitutional system and legal doctrine. The special role of the science of constitutional law in understanding the essence of constitutionalism, the modernization of the constitution, and their influence on the development of the new Uzbekistan is emphasized. An attempt was made to analyze the trends of the modern development of constitutional law, the significance of updating the basic law of the country, as well as the goals and objectives of the science of constitutional law in ensuring the progressive development of the state. The general characteristics of modern constitutionalism are given, and the influence of legal doctrine on constitutional practice is also described. Some aspects of the quality and effectiveness of scientific and research work in the field of constitutional law are analyzed, and separate proposals are justified to revise the criteria for evaluating practical significance and introduce scientific recommendations into the practice of scientific recommendations, as well as reformatting the list of scientific specialties. The article also provides arguments regarding the need to encourage “butt” scientific research, the creation of new related scientific specialties, and an increase in the number of nonstate scientific institutions.
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Czeczot, Piotr. "Społeczeństwo a prawo konstytucyjne. O roli socjologii prawa w prawie konstytucyjnym." Polityka i Społeczeństwo 20, no. 4 (2022): 77–95. http://dx.doi.org/10.15584/polispol.2022.4.5.
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Sociology as one of the social sciences is an empirical science and its research is based on facts. Sociologists use the concept of social facts, meaning ways of proceeding that can be distinguished from among various behaviours common in society. However, these are phenomena whose features clearly differ from phenomena studied by other sciences. In this work, the author wanted to take a closer look at the influence of the sociology of law on the broadly understood constitutional law, because in recent years the literature has not paid much attention to this issue. In this work, the author, based on the definition of constitutional law in the broad sense, and thus not limited only to the analysis of the codified constitutions, will try to indicate the important role of sociology and its research methods in the dogmatic study of this area of law. In the first place, the work will discuss examples showing the important role of sociology of law in establishing new and interpreting the existing law – on the example of religious law, the law of local self-government, the states of emergency law. This discussion will be supported by references to examples of legislation from various countries and by referring to the opinions of various legal theorists. Then the author will move on to an even broader approach to constitutional law, as the perspectives of international constitutionalism, i.e., acts of international law, including those recognized by some as international constitutions and their sociological and legal analysis. The considerations presented in the paper are aimed at showing the important role of sociological sciences in the contemporary science of constitutional law.
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Aleska, S. S. "THE PHENOMENON OF UNCONSTITUTIONAL VALUES IN LEGAL SCIENCE AND PRACTICE." Vestnik of Polotsk State University. Part D. Economic and legal sciences, no. 6 (June 30, 2022): 114–20. http://dx.doi.org/10.52928/2070-1632-2022-61-6-114-120.
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A problematic issue is raised related to the comprehension and rethinking of constitutional values in the conditions of the era of digitalization. The factors influencing the change in the value structure in the state and the scale of the problem raised are noted. It shows the importance of constitutional values from a legal point of view. Examples of values from the constitution and acts of constitutional justice are considered. It is proposed to consider new digital constitutional values. The justification is provided by international legal documents, as well as law-making and law enforcement national and foreign practice. On the basis of legal incidents and statistical data, the implementation of constitutional values in the virtual sphere is proved.
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Хабриева, Талия, and Taliya Khabriyeva. "PARADIGMS OF CONSTITUTIONAL REFORM." Journal of Foreign Legislation and Comparative Law 1, no. 5 (December 2, 2015): 0. http://dx.doi.org/10.12737/16129.
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The article deals with the theoretical aspects relating to reforms in the fundamental law of a State — Constitution. It is noted that the Constitution is a developing legal substance which is shaped by and dependent on the existing economic, political, social and even ideological situation; conservation of the basic law can cause both public tension, and also hamper the evolution of statehood. The author attends to the correlation of notions of “constitutional reform” and “change of the constitution”. Also analyzed are the approaches towards the definition of the term of constitutional reform which have been elaborated by the doctrine. It contains a detailed list of terminology which is used in the science of constitutional law and has a direct relevance to reformation of the constitution. Emphasis is made on the new trend in research in the science of constitutional law which reflects the two-sided approach — on the one hand, a factor of progress, and on the other hand, — may be viewed as a tool necessary to make public relations stable and dynamic. The article contains a list of model provisions for the present day constitution which potentially can be employed. It relates to the provisions of the constitution relating to the status of a person, also, economic, social and political systems, etc. Comparative law approach is applied to the contents of constitutional reforms of the XX and XXI centuries in various countries. It notes that a stable basic law of a country is a key symbol of a legal identity of a nation.
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Ryakhovskaya, T. I. "Modern Constitutional Law of Russia: Continuity, Innovations and Constitutional Identity." Juridical science and practice 18, no. 1 (May 16, 2022): 5–13. http://dx.doi.org/10.25205/2542-0410-2022-18-1-5-13.
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Clarification of the trends in the formation and development of science and practice of constitutional law contributes to the concretization of its categorical and conceptual apparatus, which becomes especially relevant in connection with the amendments to the 1993 Constitution of Russia, approved by the all-Russian vote on July 1, 2020.In the course of the research, the following was discovered: the ongoing processes of novelization of constitutional science and practice are based on some successive aspects of doctrine and practice; continuity in constitutional law is one of the forms of preserving constitutional identity, the problem of which is acute to this day, given the growing process of globalization, which erases the differences between the Basic Laws of States.
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Baehaqi, Ja'far. "Perspektif Penegakan Hukum Progresif dalam Judicial Review di Mahkamah Konstitusi." Jurnal Konstitusi 10, no. 3 (May 20, 2016): 417. http://dx.doi.org/10.31078/jk1033.
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The Amendments of the 1945 Constitution after reformation era brings the consequences of the necessity to adjust legislation under the constitution, either by elaborating new legislation or change the existing ones as well as through the elaboration of the rights to constitutional review against that legislation. On the other hand, the Amendment of the 1945 Constitution introduced the Constitutional Court as a court for constitutional matters of which one of the jurisdictions is to review laws against the 1945 Constitution. Since the beginning, as stated in Law No.24 of 2003 on Constitutional Court, the right to constitutional review has been given half-heartedly. To that fact, the Constitutional Court Law contains: restrictions of laws that may be tested, filing requirements, categorization of the verdict, and the composition of the constitutional judges. In the perspective of progressive law, the Constitutional Court’s ignorance of that restrictions considered as contrary to the constitution itself. However, in certain cases, especially related to the filing requirement for constitutionality review, The Constitutional Court is still locked by the restrictions given by Constitutional Court Law, even it is institutionalized through jurisprudence.
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Sumadi, Ahmad Fadlil. "MAHKAMAH KONSTITUSI DAN KONTRAK OUTSOURCING." Jurnal Konstitusi 9, no. 1 (May 20, 2016): 1. http://dx.doi.org/10.31078/jk911.
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The Amendment of the 1945 Constitution of the Republic of Indonesia has made the sovereignty still retained by the people, no more represented and fully held by the People’s Consultative Assembly like when the constitutional system of Indonesia was still embracing supremacy of parliament. In the constitutional perspective, the standing and relation between the state and people is becoming more obvious. Hence, in the case that constitutional dispute happened, there should have been an adjudication forum for solving the dispute. Therefore, Contitutional Court Of the Republic of Indonesia is established and designed constitutionally to solve the constitutional dispute through The Amendment of the 1945 Constitution of the Republic of Indonesia. Settlement of constitutional dispute through the review of constitutionality of norms in the regulation of outsourcing contract in The Labour Law at Contitutional Court of the Republic of Indonesia, with specific issue “the Contract of Employment for a specified time” that is regulated in Article 65 paragraph (7) and Article 66 paragraph (2) b of Labour Law is declaredconditionally unconstitutional.
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Ayuningtiyas, Fitri, Aynul Khusnah, and Adelia Wahyuningtyas. "Efektivitas Undang-Undang Dasar Tahun 1945 terhadap Mekanisme Checks and Balances dan Pemakzulan Presiden atau Wakil Presiden dalam Perspektif Hukum Tata Negara." Jurnal Penegakan Hukum dan Keadilan 4, no. 2 (September 30, 2023): 14–26. http://dx.doi.org/10.18196/jphk.v4i2.17556.
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The 1945 Constitution of the Republic of Indonesia outlines the impeachment mechanism. This Constitution outlines that the procedure for impeaching the president and vice president must be mandated by the People's Representative Council (DPR) to the People's Consultative Assembly (MPR). It is important to acknowledge that the current impeachment process upholds the principle of checks and balances of direct presidential elections. The impeachment decision of the current president and vice president cannot strengthen the rule of law when the Constitutional Court (MK) determines that the president or vice president has violated the Constitution. This research aimed to find out the impeachment mechanism outlined in the 1945 Constitution with the principle of the supremacy of constitutional law. This research included a qualitative method by focusing on the problematic effectiveness of the 1945 Constitution on the check and balance mechanism and the impeachment of the president and vice president from the constitutional law perspective. The check and balance mechanism aims to create a democratic government. Check and balance is a principle controlling and maintaining state institutions' balance. The results revealed that the 1945 Constitution's mechanism for impeaching the president or vice president was relatively ineffective because the rule of law and the constitutional judicial mechanism were still handled by the political mechanism. Consequently, the check and balance mechanism did not occur in this process. The characteristic of impeachment as a control causes impeachment cannot to be implemented following the rule of law, which was an indicator that the check and balance mechanism had been unbalanced by the Constitutional Court's decision, which was used to create a legal mechanism that was not explicit and binding on the MPR and the 1945 Constitution.
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Gruda, Përparim. "European Integration of Kosovo: Analysis of the Kosova Constitutional Provisions that Require Harmonization with EU Law." Baltic Journal of Law & Politics 16, no. 2 (February 1, 2024): 82–97. http://dx.doi.org/10.2478/bjlp-2023-0014.
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Abstract This paper investigates the constitutional adjustments Kosovo should make in the EU accession process. Because European integration may necessitate fundamental changes in the constitutional principles, the paper will address them by offering concrete solutions to issues such as the primacy of EU law and the transfer of sovereignty. Issues related to human rights, such as the right to vote and to stand as a candidate at municipal elections and the right to freedom of movement. The path followed by other countries in the process of adapting their constitutions to EU law represents a very rich constitutional experience; therefore, this article clarifies concrete issues presented by the Kosovo Constitution.
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Desierto, Diane A. "Treaties in the Philippine Constitutional System." ICL Journal 16, no. 1 (February 28, 2022): 27–134. http://dx.doi.org/10.1515/icl-2021-0035.
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Abstract International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal basis to hold Philippine government leaders to account under the vastly expanded judicial review doctrine in the 1987 Philippine Constitution. This active individual and group resort to adjudication and legislation could explain why international law has flourished under the postcolonial and post-dictatorship 1987 Philippine Constitution. This comprehensive jurisprudential, statutory, and constitutional analysis aims to show how, and to what degree, Philippine legal culture and history reflect a continuing deep engagement with international law, in ways that are certainly unique to the Philippines’ evolving political ideologies, colonial and postcolonial history, treatment, and implementation of international treaties within the Philippine constitutional system. Most importantly, the absence of explicit methodology for the breadth of constitutional interpretation of the Incorporation Clause under the 1987 Philippine Constitution warrants normative rethinking, so as not to uniformly open the floodgates to hard international law sources (eg treaties, customs, general principles) as well as softer international instruments lacking the requisite State consent to the binding quality of such sources within the Philippine legal system. To this end, I make three proposals on how the Philippine Supreme Court could define an explicit methodology for use and interpretation of the Incorporation Clause, transparently refer to other foreign and international sources, and openly reassess its ideological bases for recognition of international law in the Philippine constitutional system, as part of the Court’s distinct judicial function.
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Daniluk, Agnieszka. "Interpretation of the Principle of Municipality Self-Reliance in the Context of Constitutional Principles of Law." Studies in Logic, Grammar and Rhetoric 65, no. 1 (December 1, 2020): 103–19. http://dx.doi.org/10.2478/slgr-2020-0050.
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Abstract In the science of administrative and constitutional law, administration science and many other sciences, including political science, it is widely accepted that the basic, inherent feature of a municipality, deciding the essence of the territorial self-government unit as an entity of public administration, is the self-reliance it is entitled to. The self-reliance of territorial self-government units is even defined as a constitutional norm. In principle, self-reliance is perceived as a fundamental attribute of a decentralised public authority and constitutes one of the fundamental systemic principles of the Republic of Poland. It was formulated expressis verbis in art. 165 par. 2 of the Constitution of the Republic of Poland, which states that the self-reliance of territorial self-government units is subject to judicial protection, meaning that TSGUs can defend themselves against illegal attempts, not grounded in the law to interfere in their self-reliance. This protection seems to encompass both the private-law and public-law spheres of territorial self-government activity. The essence and guarantees of territorial self-government units’ self-reliance also arise from other constitutional principles, including the aforementioned decentralisation principle, subsidiarity principle, separation of powers, supremacy of the nation and democratic state under rule of law. The goal of this article is to interpret the principle of municipal self-reliance in the context of constitutional principles of law, in the light of the Polish Constitution. The studies were conducted based on analysis of normative acts, doctrinal views and case law.
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Volodina, S. V. "The Concept of a «Principle» in Constitutional Law." Lex Russica 76, no. 12 (December 21, 2023): 52–60. http://dx.doi.org/10.17803/1729-5920.2023.205.12.052-060.
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In the doctrine of constitutional law, there are various approaches to understanding and defining the concept of a «principle of constitutional law». The paper examines the positions and conceptual standings at various stages of the development of domestic legal science (general theory of law and constitutional law), elucidating the features of the principles of law and constitutional law. The author concludes that the understanding of the principle is based on various ideological approaches. This approach is especially clearly manifested in the Soviet theory of law, where principles are defined as principles predetermined by the economic system (formation). At the same time, there is a tendency in Soviet theory to objectify principles. The modern science of constitutional law provides for a variety of points of view and approaches aimed at revealing the nature, legal characteristics, purpose and practical role of the principles of constitutional law. The paper substantiates the special purpose of the constitutional principles. They are not rules of law in the classical sense. The principles of constitutional law, being an independent type of regulatory prescriptions, play the most significant role in regulating relations. They determine the content of constitutional and effective law as a whole. The legal quality of constitutional principles consists in a high degree of generalization of the theory and practice of public relations. The principles of constitutional law possess the quality of objectivity. They reflect the prevailing view expressed in the Constitution of the Russian Federation about the proper legal impact. Constitutional principles represent a concentrated expression («driving ideas») of the development of public relations.
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Roznai, Yaniv. "THE THEORY AND PRACTICE OF ‘SUPRA-CONSTITUTIONAL’ LIMITS ON CONSTITUTIONAL AMENDMENTS." International and Comparative Law Quarterly 62, no. 3 (July 2013): 557–97. http://dx.doi.org/10.1017/s0020589313000249.
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AbstractThis article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it—‘supra-constitutional’ limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in ‘domesticating’ supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of ‘supra-constitutional’ limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.
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Šarčević, Edin. "Antistate affect: Practical politics and the constitutional law of Bosnia and Herzegovina." Arhiv za pravne i drustvene nauke 118, no. 3 (2023): 11–38. http://dx.doi.org/10.5937/adpn2303011s.
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The central topic of the paper is the problem of political falsification of the Constitutional law of Bosnia and Herzegovina and the role of judicial science in demythologising the constitutionally undefined opinions of practical politics. The author points out the link between normative predictions of the future and the analysis of the contemporary, in other words, the interconnectedness of social realities in which a norm is created with projections of the future. In this relationship, the Constitution of Bosnia and Herzegovina appears as a plan for a future in which those who conceived it projected principles of a constitutional state. This plan is established in the preamble as a request that the naturalistic principles of war should be transformed into modern forms of interconnected human life, by way of forming a state into an institutional protector of freedom, equality, human dignity, welfare and prosperity. Political parties are those who are to bring this program to fruition. However, since the creation of the Constitution of Bosnia and Herzegovina, they are in a constant antistate affect which blocks collective affectations. Practical politics is carried out as "politics in the name of the people" and it prevents sympathy and affection towards "the other". On this premise, political parties rule the state and entity institutions. The state is thus separated from the constitutional plan for the future, from the "program" that the constitutional founders, through the self-reflections found in the Preable, set as the legal program for the "use" of state power. The process is illustrated through an analysis of five mythologems which were articulated in the 2022. electoral campaign as the postulates of political parties and the official positions of neighboring states: (1) constitutive peoples are represented in the Presidency of Bosnia and Herzegovina, (2) the High Representative for Bosnia and Herzegovina is legally bound to carry out legal interventions, (3) the concept of a civic state is not applicable in Bosnia and Herzegovina because of a constitutionally programmed "rule of the people", (4) the entities are states and (5) Republika Srpska is a genocidal creation which thus must be deinstitutionalized. The author proves that these are politically generated mythologizations of parts of the Constitutional law of Bosnia and Herzegovina, which rest on falsifying the written constitution. Practical politics thus stands outside of the Constitutional law of Bosnia and Herzegovina and is in part carried out as arbitrary political mayhem which prevents general progress. This process is ongoing and it cannot be prevented through a political practice which directly relies on falsifying falsifying tenets. Precisely because of this, judicial science and constitutional legal scholarship need to react to the advanced state of mythologizing extraconstitutional constructs. Insisting on the application of written law and determining public law standards which are binding is one of the key tasks of judicial science. Its task is to establish criteria and to demand corrections in the political practice within Bosnia and Herzegovina.
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Yasin, Rahman. "Telaah Putusan MK dalam Sengketa PHPU Pilpres 2004 (Perspektif Negara Demokrasi Konstitusional)." Jurnal Konstitusi 11, no. 4 (May 20, 2016): 650. http://dx.doi.org/10.31078/jk1143.
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This paper aims to examine the extent of the impact of the decision of the Constitutional Court of the Republic of Indonesia No. 1/PHPU.PRES-XII/2014 related PHPU 2014 presidential election dispute in relation to the strengthening of the constitutional legitimacy of the democratic state based on law and the constitution. Constitutional Court Decision No. 1/PHPU.PRES-XII/2014 gives importance to the development of our constitutional democratic system of government in the modern era. The Constitutional Court’s decision gives the meaning of democracy in a substantial sense of justice substantive. As a state agency to maintain and oversee the constitution, the Constitutional Court has been performing its functions and powers under the provisions of Section 24C of the 1945 Constitution and Law No. 24 of 2003 on the Constitutional Court. The Constitutional Court is a high state institution that is authorized through Section 24C of the 1945 Constitution, which is the authority to hear at the first and last are the final and binding nature of the decision, which among other things PHPU deciding the case, and based on Law No. 24 of 2003 as amended by Law Law No. 8 of 2011 concerning Amendment to Law Number 24 of 2003 on the Constitutional Court, and Article 29 paragraph (1) letter d Act No. 48 of 2009 on Judicial Power of the Constitutional Court, in essence the same, which is authorized to hear at the The first and last are the final and binding nature of the decision, including the case PHPU. In this sense the decision of the Constitutional Court put an end to various political opposition including the closing of all the dynamics of the political interpretation of the law that developed in the community.
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Власова, Мария Алексеевна, and Илья Владиславович Рузанов. "ECONOMIC RELATIONS AND THE SUBJECT OF THE CONSTITUTION." Вестник Тверского государственного университета. Серия: Право, no. 3(67) (September 30, 2021): 131–35. http://dx.doi.org/10.26456/vtpravo/2021.3.131.
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В статье исследуется проблема конституционного регулирования экономики. Отмечается неуклонное расширение предмета конституционного регулирования в аспекте экономических отношений. Конституция не просто задает общие стандарты регулирования и развития хозяйственной сферы, а воздействует на нормы других отраслей права так, что они приобретают конституционно-правовое содержание и должны истолковываться в свете конституционных ценностей. Это обстоятельство требует корректировки методологии правовой науки и пересмотра модели мышления российских юристов в направлении конституционализации. The article analyzes the problem of regulating economic relations in constitutions. The expansion of constitutional regulation in the aspect of economic relations is proved. The Constitution does not only set common standards for regulation and development of the economic sphere any more, but affects the other fields of law. Therefore, they acquire constitutional and legal content and should be interpreted in the light of constitutional doctrines and constitutional values. This fact requires an adjustment of the methodology of legal science and a revision of methodology of Russian law in the direction of constitutionalization.
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Kunenko, Iryna S., Svitlana O. Poliarush-Safronenko, and Oksana Lapka. "THE CONCEPT AND SIGNIFICANCE OF CONSTITUTIONAL AND ORGANIC LAWS IN LEGAL SCIENCE AND LEGISLATION OF DIFFERENT COUNTRIES." Journal of International Legal Communication 4 (March 31, 2022): 65–74. http://dx.doi.org/10.32612/uw.27201643.2022.1.pp.65-74.
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The article is devoted to the analysis of the concepts of “constitutional law” and “organic law”, to identify the features of these types of laws in modern legal systems. It is determined that in different countries the terms “constitutional law” and “organic law” are widely used in legal science at both the doctrinal and legislative levels. Due to the elaboration of scientific works, a number of textbooks and manuals, a theoretical analysis of this issue was carried out, an analysis of scholars' opinions on the understanding of the terms “constitutional law” and “organic law” was carried out. The constitutions and other legal acts of different countries in which these concepts are reflected are analyzed. The content and main features of this type of law are described. The place of the mentioned laws in the system of legislation of different countries is determined. The differences of their acceptance and application in world practice are revealed. Recommendations are made to distinguish between the concepts of “constitutional law” and “organic law”.
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Sampe, John, Rosa Ristawati, and Be Hakyou. "The Guardian of Constitution: A Comparative Perspective of Indonesia and Cambodia." Hasanuddin Law Review 9, no. 2 (September 11, 2023): 211. http://dx.doi.org/10.20956/halrev.v9i2.4627.
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A democratic state may be indicated by the existence of a constitutional institution that has the competence to uphold constitutionalism and defend the constitution. As the guardian of the constitution, the Constitutional Council of the Kingdom of Cambodia (Constitutional Council) and the Constitutional Court of the Republic of Indonesia (Constitutional Court) have the same purpose, namely to uphold constitutionalism and protect the constitution. However, in terms of structure, procedures, and competencies, the Constitutional Council and the Constitutional Court have individual mechanisms. Institutionally, the two judicial bodies occupy different characteristics, but they share the common goal of safeguarding the constitution’s core values. This paper aims to analyze and scrutinize different features of the Constitutional Council and the Constitutional Court by showing the same purpose as the guardian of the constitution. Within this paper, the legal outcomes which is decisions are discussed, particularly the effect of the decisions. In addition, this paper looks into who can be the applicant or can file a complaint and clarifies the qualifications and resignations of judges. This paper concludes on whether the Constitutional Court and the Constitutional Council have different paths in upholding constitutionalism and protecting the constitution.
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Castro, Kamile. "Entre o Direito e a Ciência Política: uma relação com futuro?" Revista Portuguesa de Ciência Política / Portuguese Journal of Political Science, no. 15 (2021): 59–74. http://dx.doi.org/10.33167/2184-2078.rpcp2021.15/pp.59-74.
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with its various elements. Therefore, it is not surprising that the great link between Law and Political Science was due to Constitutional Law and the General Theory of the State. When today we study the configuration of the State, we pay attention not only to administrative, judicial and legislative institutions, but also to the legal and political status that must be observed by the State and its governors. Thus, in today’s democratic States, Law and Politics intersect in different ways. States, based on constitutional precepts, rest on their legitimacy and legality, on these precepts that contain, in turn, a double character: legal and political. Political Science and Law researchers and, desirably, from other areas of Social Sciences and even from other scientific areas, have the current challenge, to place their areas of study, on investigative platforms, which allow the development of these areas in multidisciplinary, interdisciplinary and transdisciplinary models. Keywords: constitution; law; justice; power; politic
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MISSAOUI, Hanane. "THE NOVELTIES OF CONSTITUTIONAL CONTROL IN THE ALGERIAN CONSTITUTIONAL AMENDMENT 2020." RIMAK International Journal of Humanities and Social Sciences 03, no. 06 (July 1, 2021): 253–61. http://dx.doi.org/10.47832/2717-8293.6-3.23.
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We consider constitutional review one of the main pillars of a state of law; it is a guarantee of the supremacy of the constitution, and a total respect of its provisions on one hand and a full protection of individual rights and liberties which are cited on the other hand. Algeria always relied on constitutional review in the development of its constitutions since its independence (except the constitution of 1976) through a political structure called the constitutional council, but the latter was renowned for its inactivity and ineffectiveness, that is why the constitutional founder was oblige to intervene within the framework of global constitutional reforms that the country has known in recent years, in order to concretize its role and achieve its objectives and the principles of legal security However these reforms have proved their failure including in the positive changes made to the amendment of the constitution of the year 2016 , that was the reason that lead the constitutional founder of 2020 think of make a full change of the nature of the body in charge of constitutional review, by creating the constitutional court with a completely different members, is this constitutional court will succeed to purify the national legislative organization, and to clean it from the unconstitutional provisions and to guarantee a full protection of individual rights and liberties?.
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Abat Ninet, Antoni. "Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems." ICL Journal 14, no. 4 (December 20, 2020): 523–43. http://dx.doi.org/10.1515/icl-2020-0015.
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Abstract In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.
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Sujono, Imam. "URGENCY OF RECHTSVINDING AND JURISPRUDENCE IN THE CONSTITUTIONAL COURT AUTHORITY." Constitutional Law Society 1, no. 2 (September 30, 2022): 161–78. http://dx.doi.org/10.36448/cls.v1i2.26.
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Indonesia is a democratic state based on the law (constitutional democratic state), with the understanding that the Constitution has a position as the supreme law because the whole administration of the state should be based on the Constitution. The Constitutional Court was present as the guardian of the constitution to the realization of the ideals of Indonesia as a democratic state based on law. The research entitled Rechtsvinding and Jurisprudence Used by the Constitutional Court examines the importance of rechtsvinding and the attachment of using jurisprudence in deciding cases according to the authority possessed by the Constitutional Court. This research uses the Socio-Legal method, which is a research method that examines a problem through normative analysis, then uses a non-legal science approach that develops in society. The results of the research that has been done are; 1 Rechtsvinding by the Constitutional Court interpreted as an effort to how the Constitutional Court interpreting the Constitution (1945), testing the laws against the 1945 Constitution, to decide the other cases the authority granted by the 1945 Constitution, 2) The Constitutional Court there is no obligation to be bound and is not there is a prohibition to use the jurisprudence of the Supreme Court.
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Cheffins, Ronald I., and Patrick J. Monahan. "Constitutional Law." Canadian Public Policy / Analyse de Politiques 24, no. 3 (September 1998): 403. http://dx.doi.org/10.2307/3551982.
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Darijus, Beinoravičius, Mesonis Gediminas, and Vainiutė Milda. "The Role and Place of the Preamble in Lithuanian Constitutional Regulation." Baltic Journal of Law & Politics 8, no. 2 (December 1, 2015): 136–58. http://dx.doi.org/10.1515/bjlp-2015-0022.
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Abstract While analysing constitutions of various countries in the legal literature, typically not only the form and the content but also the structure of the constitution is discussed. The structure of the constitution is an internal organisational order of the norms of the constitution. Although every state’s constitution has a unique structure, certain regularities can be discerned. The analysis of the structure of various constitutions leads to the conclusion that normally each constitution consists of the following standard structural parts: the preamble, the main part, the final, transitional or additional provisions, and in some constitutions there can also be annexes. The article confirms that most constitutions begin with an introductory part, the preamble. Only the constitutions of several countries (e.g. Norway, the Netherlands, Belgium, Italy, Greece) contain no preamble. The preamble reflects the historical context and the circumstances of the adoption of a constitution, names the goals of the constitutional regulation, fortifies the values to be attained, declares the key political principles or even the fundamental human rights and freedoms, etc. Often the preamble reveals the methods of adoption of a constitution. The preamble is an important structural part of the constitution that helps to understand the established constitutional regulation. The principles enshrined in it can be considered a significant argument for the constitutional justice institutions while solving the case of whether the law or any other legal act in question contradicts the constitution. The preamble is not only a political, ideological, and/or philosophical category; it undoubtedly also carries a legal burden, therefore it is considered to have legal validity. Preambles are characterized as having a so-called higher style; they are usually formulated not in compliance with the requirements of legal technique.
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Bielov, Dmytro, and Myroslava Hromovchuk. "Constitutional Law Norm: Some Aspects of Structure." Проблеми сучасних трансформацій. Серія: право, публічне управління та адміністрування, no. 2 (January 5, 2022): 40–44. http://dx.doi.org/10.54929/pmtl-issue2-2021-08.
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The specifics of the norm of the constitutional law of Ukraine in the context of enshrining in it the basic provisions of the constitutional and legal status of a person and a citizen are revealed. It is pointed out that the multifaceted system of constitutional law of Ukraine and all its structural elements consist of the norms of constitutional law. The latter are the basis of the institutions of constitutional law, as well as other parts of the system of constitutional law - natural and positive, general and special part, substantive and procedural, international and national, and so on. That is, the system of constitutional law of Ukraine cannot exist outside its normative dimension. In addition, law, and later its system, were formed on the basis of legal norms, which have historically stood out from other social norms - religious, moral, ethical, cultural, and so on. It is noted that the position of the general theory of constitutional law, the study of the constitutional and legal status of man and citizen is closely related to the problem of determining the subject of constitutional law on the legal status of man and citizen. In this sense, in the science of constitutional law, there are at least two ways to answer the question. One of them as a subject of constitutional law interprets only the basic principles of the constitutional and legal status of man, and the other to the subject of the science of constitutional law also adds the problems of protection and maintenance of the constitutional and legal status of man and citizen. On the other hand, the coverage of the problems of the constitutional and legal status of man and citizen has a purely methodological relevance. The establishment of the foundations of the legal status of a person by the Constitution of Ukraine marked the beginning of the process of compiling a new type of legal culture of our state and its citizens. At the same time, it is the principles of the legal status of a person, formed outside the very institution of the constitutional status of a person, that bring to it the meaning that necessitates truly historical changes in our society.
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Bell, John. "French Constitutional Council And European Law." International and Comparative Law Quarterly 54, no. 3 (July 2005): 735–44. http://dx.doi.org/10.1093/iclq/lei025.
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Tafani, Ismail, and Renata Tokrri. "Some Reflections on the Constitutional Review in Albania in a Comparison Key." Mediterranean Journal of Social Sciences 12, no. 2 (March 7, 2021): 22. http://dx.doi.org/10.36941/mjss-2021-0009.
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In this study we will try to analyze the foundations of the Constitution as a pillar and as a guarantee for its solidity. The study will also address the need for revision of the constitution as a fundamental element of its existence and continuity. Particular emphasis will be given to the comparison of the constitutions of the most important countries in the world as regards the procedures and limits to the constitutional revision. In this sense, the constitutions of some Balkan Peninsula countries will be analyzed to draw a comparison and analyze the Albanian Constitution as regards the procedure for its revision. The study intends to analyze the procedures for the revision of the Constitution as well as the explicit and implicit limits to these revisions. In the Constitutional revision in Albania in 2016, the role of the Constitutional Court on the control of the constitutional legitimacy of constitutional revision laws was clarified. Formal constitutionality is usually emphasized since the Albanian constitutional reform underlined that the Constitutional Court in Albania could express itself on the constitutionality of the Constitutional revision law only from a formal point of view.
Received: 2 January 2021 / Accepted: 27 February 2021 / Published: 7 March 2021
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Huda, Ni’matul. "Problematika Substantif Perppu Nomor 1 Tahun 2013 Tentang Mahkamah Konstitusi." Jurnal Konstitusi 10, no. 4 (May 20, 2016): 557. http://dx.doi.org/10.31078/jk1041.
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Constitutionally, the issuance of Government Regulation in Lieu of Law is the subjective right of the President based on the state of exigencies, but its formation should alway fulfill good, proportional and prudent principles of lawmaking. Eventhough the objective of issuing the Government Regulation in Lieu of Law on Constitutional Court is to restore public trust and credibility of Constitutional Court Justices, the content of the regulation may not be contradictional with the 1945 Constitution of the Republic of Indonesia. In order that there is no distortion in the use of subjective right of the President in issuing the regulation, the House of Representatives must objectively scrutinize whether the regulation is reasonable to be promulgated as a law ar must be denied.
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Derho, Daniil. "Constitutional law education as an independent category of constitutional law: a discussion about novelty." Legal Science and Practice: Journal of Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia 2022, no. 2 (July 6, 2022): 83–91. http://dx.doi.org/10.36511/2078-5356-2022-2-83-91.
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Scientific research is the main form of the process of cognition of objective reality by means and methods of science, and discussion about the results of such research is one of the forms of verification of the knowledge obtained, which integrates them into a single scientific discourse, and also subordinates the general principles and rules of development. The purpose of this article is to determine the criteria for the novelty of the results of scientific research on the example of a specific dissertation study on constitutional law education as an independent category of constitutional law and the essence of the comments on the novelty of the results of this work and the terminology used, consistently stated in two scientific publications. Based on the results of consideration of these comments, the author comes to the conclusion that a comprehensive scientific and practical study of the process of constitutional legal education, which includes the entire spectrum of public relations related to the formation of objective needs for constitutional and legal regulation of public relations and their satisfaction through the conscious and volitional activity of competent subjects (by adopting, revising the Constitution of the Russian Federation and constitutional amendments, interpretation and law-making activity of the Constitutional Court of the Russian Federation) is justified, has scientific novelty and can serve as a basis for further scientific research.
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Bulan, Bening Setara, Abu Tamrin, and Sodikin Sodikin. "Nilai-Nilai Yang Hidup Dalam Masyarakat (Living Constitution) Dalam Putusan Mahkamah Konstitusi Pada Perkara Pengujian Undang-Undang Nomor 7 Tahun 2004 Tentang Sumber Daya Air." STAATSRECHT: Indonesian Constitutional Law Journal 3, no. 1 (June 24, 2019): 69–104. http://dx.doi.org/10.15408/siclj.v3i1.13835.
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Abstract.The Constitutional Court is an institution that has the role of the guardian of the constitution. The Constitutional Court must ensure the supremacy of the constitution, and the constitution is carried out consistently in society. As the guardian of the constitusion, the constitutional court is attached to the authority of judicial review. The decision on testing the Law on Natural Resources has two different decisions which are caused by the interpretation of the Constitutional Court judges on Article 33 Paragraph (2), Paragraph (3), and Paragraph (4) of the 1945 Constitution of the Republic of Indonesia. The judge relies on his interpretation of the value of community development, especially to the value of water resources. This on the one hand has resulted in legal uncertainty, but on the other hand it includes the efforts of judges to harmonize the rules of constitutional law as living constitution to be in accordance with the development of society.Keywords: The Living Constitution, RI Constitutional Court
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Sutiyoso, Bambang. "Pembentukan Mahkamah Konstitusi Sebagai Pelaku Kekuasaan Kehakiman di Indonesia." Jurnal Konstitusi 7, no. 6 (May 20, 2016): 025. http://dx.doi.org/10.31078/jk762.
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Establishment of the Constitutional Court marks a new era in the power of the judiciary system in Indonesia. Some areas that had not been touched (Untouchables) by law, such as judicial review issues on the Constitution, can now be done by the Constitutional Court, including the authority, other authority provided for in the 1945 Constitution after the amendment. Besides, the existence of the Constitutional Court must also be equipped with a clear organizational structure, adequate procedural law, legal principles and sources of law that the Constitutional Court made reference in carrying out its duties and judicial authority. The emergence of the Constitutional Court as a principal judicial authorities are expected to become entry points which promote the establishment of a modern system of judicial authority in Indonesia.
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Sychev, Semen. "Law-Making and Law Enforcement of Civil Rights and Freedoms: Constitutional and Legal Aspects." Bulletin of Kemerovo State University. Series: Humanities and Social Sciences 2022, no. 1 (February 21, 2022): 64–74. http://dx.doi.org/10.21603/2542-1840-2022-6-1-64-74.
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The author raises the question of improving the activities of public authorities that comply with the orders of the Constitutional Court of the Russian Federation. The research featured various issues related to the implementation of constitutional justice and their possible solutions. The study revealed the following needs: 1) to adjust the Federal Constitutional Law on the Constitutional Court of the Russian Federation to time-limits for State Duma draft laws; 2) to return the extraordinary adoption of bills in pursuance of decisions of the Constitutional Court of the Russian Federation; 3) to develop a scheme for the practical enforcement of judicial acts; 4) to expand the functions of the Ministry of Justice of the Russian Federation and its regional structural divisions by including normative legal acts of the subjects of the Russian Federation and acts of their constitutional and judicial review in the sphere of legal monitoring; 5) to develop a special system for informing about decisions taken by the Constitutional Court of the Russian Federation to verify the laws of the subjects of the Russian Federation; 6) to improve criteria and procedures for recognizing regional normative legal acts as similar to provisions of law subjected to constitutional normative control; 7) to provide the Prosecutor's Office with powers to supervise the execution of decisions of the Constitutional Court of the Russian Federation; 8) to amend the Constitution of the Russian Federation and indicate the authority of the Constitutional Court of the Russian Federation to determine the executive body; 9) to change the regulatory and legal regulation aimed at expanding the mandatory powers of the Commissioner for Human Rights in the Russian Federation; 10) to specify the term of political activity with its current broad interpretation. The article also contains some recommendations aimed at improving the legislative regulation in the sphere of protection of civil rights and freedoms in modern Russia.
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Ginsburg, Tom, and Zachary Elkins. "Ideation and Innovation in Constitutional Rights." Law & Ethics of Human Rights 16, no. 2 (November 1, 2022): 217–44. http://dx.doi.org/10.1515/lehr-2022-2009.
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Abstract This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of “mixed” constitutions is precisely such innovations, which then form raw material for further mixing.
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Hasani, Ismail, and Halili Halili. "Human Rights and Constitutionality Issues of Blasphemy Law in Indonesia." Jurnal Konstitusi 19, no. 2 (June 2, 2022): 406. http://dx.doi.org/10.31078/jk1927.
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This article analyzes human rights and constitutionality issues in the Indonesian Blasphemy Law. It contributes urgently to constitutional studies since constitutionalism requires respect for human rights and democracy obliges to uphold the supremacy of the constitution. This article was written as the results of research through the desk-study using descriptive-qualitative approach. Data were collected through document study and Internal Focus Group Discussion. Indonesia's blasphemy laws inherently violate human rights and are prone to politicization which places religious minorities in vulnerability, while the main legal provisions that criminalize blasphemy have been tested for their constitutionality dimensions by the Constitutional Court. However, the constitutionality issue remains, partly because the Constitutional Court affirmed a religious constitution whereas the Republic of Indonesia is a Pancasila based state. In addition, the Constitutional Court ignores human rights, particularly the right to freedom of religion/belief as guaranteed by the constitution.
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Riyanto, Astim. "HUKUM KONSTITUSI SEBAGAI SUATU ILMU." Jurnal Hukum & Pembangunan 39, no. 1 (March 3, 2009): 119. http://dx.doi.org/10.21143/jhp.vol39.no1.199.
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AbstrakThe Law of the Constitution as a science, because all of qualification of aknowledge become a science that self-exist was folfilled. Qualification of aknowledge become a science that self-exist meant, that are to has self-objectstudy, has self-method, has utilities value, systematic piled up, logicdissection, has the character of universal, has special senses, and issupported by their experts/ scholars. The Law of the Constitution as ascience, its the way is begun from investigation of Aristotle (384-322 B.C.) to158 constitutions city states from 186 city states ancient Greece. The result ofinvestigation, he is poured out in a book of Politics. There are four chaptersthat in connection with constitution form eight chapters of the book. Then,the result of Aristotle 's investigation, 23 centuries moreover was faithfulledby Albert Venn Dicey (1835-1922) in a book of An Introduction to Study ofThe Law of The Constitution (1885). Concerning books the others aboutconstitutions that was written by their authors more give a shape of Bases ofThe Law of The Constitution than scientific of The Law of the Constitution.In 2007 or 122 years later (1885-2007), through presentation a paper thatthe title is The Law of the Constitution is a part of Constitutional Lmv, Ideclare The Law of the Constitution as a science, that self-exist with name isScience of The Law of the Constitution.
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Lailam, Tanto, Putri Anggia, and Irwansyah Irwansyah. "The Proposal of Constitutional Complaint for the Indonesian Constitutional Court." Jurnal Konstitusi 19, no. 3 (August 30, 2022): 693. http://dx.doi.org/10.31078/jk1939.
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The research focuses on the proposal of a Constitutional Complaint for the Indonesian Constitutional Court. The background causes of the constitutional weakness to protection and fulfilment of constitutional rights, especially the absence of a Constitutional Complaint mechanism. Research methods used normative legal research methods with statutory, analytical, and case approaches. The study results show that legal thinking, including an embodiment of the values of constitutionalism in the rule of law of Pancasila, complements a checks and balances system, the basis for protecting fundamental rights, and aims to realize good governance. There are several steps/ methods to giving this authority, amendments to the 1945 Constitution, non-original interpretations, and revision of the Constitutional Court Act. Several objects of dispute are the Court’s verdict, the problems of interpreting the 1945 Constitution and law by a state official, People Consultative Assembly decisions, and others.