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6JURIDICAL SCIENCES
НЕКОТОРЫЕ АСПЕКТЫ КОНСТИТУЦИИ В ДЕМОКРАТИЧЕСКОМ ГОСУДАРСТВЕ
Казанчян Л.
Преподаватель кафедры юриспруденции Международного научно-образовательного центра НАН РА
Старший научный сотрудник Института философии,
социология и право НАН РА, Член Палаты адвокатов РА, Кандидат юридических наук, доцент докторант Института философии, социологии и права НАН Армении
ЗакарянА.
Руководитель юридического отдела Аппарата административного района Аван г. Ереван Соискатель Института философии, социология и право НАН РА
SOME ASPECTS OF THE CONSTITUTION IN A DEMOCRATIC STATE
Kazanchian L.,
Lecturer at the Department of Jurisprudence of the International Scientific-Educational Center of the NAS RA Senior Researcher at the Institute of Philosophy, Sociology and Law NAS RA, Member of Chamber of Advocates of the RA, Candidate of Judicial Sciences, Associate Professor Doctoral Student of the Institute of Philosophy, Sociology and Law NAS
Zaqaryan A.
Head of the Legal division of The staff of administrative district Avan, Yerevan city Applicant of the Institute of Philosophy, Sociology and Law of the National Academy of Sciences of the Republic
of Armenia DOI: 10.5281/zenodo.7513811
Аннотация
В данной научной статье, на основании изучения мнений известных правоведов, международного и внутригосударственного законодательства, представлены особенности понятия "Конституция", а так же особенности иерархии нормативных актов в современном демократическом государстве. В частности, раскрываются особенности юридической (формальной) конституции и фактической (материальной) конституции.
Abstract
In this scientific article, based on the study of the opinions of famous jurists, international and domestic legislation, the features of the concept of "Constitution", as well as the features of the hierarchy of normative acts in a modern democratic state, are presented. In particular, the features of the legal (formal) constitution and the actual (material) constitution are revealed.
Ключевые слова: Конституция, Основной закон, демократическое государство, юридическая конституция, материальная (фактическая) конституция, нормативизм, иерархия норм права, ограничение государственной власти.
Keywords: Constitution, Basic Law, democratic state, legal constitution material (actual) constitution, nor-mativism, the hierarchy of the rule of law, restriction of state power.
The term "Constitution" comes from the Latin "Constitution", which means "to establish". The appearance of the first constitutions in the 18th century was a consequence elimination of Absolute monarchy. It should be noted, that the concept of "Basic Law" is used in many countries along with the term "Constitution". The idea to consider the Constitution as the Basic Law was presented by the German politician F. Lassalle in his work "On the Essence of the Constitution". According to F. Lassalle, the constitution must have the force of law, therefore it must also be law, but it must
not be only the law, it must be more than the law" [6, p.6].
It should be noted, that this approach was widely used in the constitutions of the socialist countries, the title and one of the articles of which were devoted to the correlation of the concepts of "Constitution" and "Basic Law".
In accordance with the theory of state and law, the Constitution is a single normative legal act or a set of normative legal acts, constitutional customs, judicial precedents that have the highest legal force and regulate
the most important relations in the state and society [11, p.44].
It should be noted, that bourgeois-democratic revolutions implemented two approaches to the concept of "constitution": the formal approach (legal constitution) and the actual (material constitution).
In the modern judicial literature the concept of legal constitution is presented as a normative legal act that has the highest legal force and establishes the foundations of the economic, political and social system in the state. In accordance with this approach, the constitution should establish the form of government, the political regime, the form of the territorial and political structure, the methods of the relationship between person and the state [11,p.45].
Alternatively, the material (actual) constitution is a system of public relations that actually exists in society, determining the actual procedure for the exercise of the powers of state authorities and the legal status of a person and a citizen.
It should be pointed out, that many legal scholars insist, that in modern democratic, legal state, legal and material constitutions usually are presented as the same one. Meanwhile, in countries with authoritarian or totalitarian political regimes, there are differences between those two types of constitutions [11,p.44].
The conducted research shows, disharmony between these constitutions may also have other grounds not related to the political regime. For instance, the un-derdevelopment of constitutional legislation, or the lack of a mechanism for the implementation of constitutional norms can lead to such type of situation. Moreover, conducted research shows, that several modern jurists understood the relationship between the material, legal constitutions and constituent power, through the legal limits of the ordinary power of constitutional reform [2,p.186-187].
They introduce H. Kelsen's conception of the material constitution which, unlike M. Hauriou's, is entirely consistent with the notion of an unlimited amendment power, one which cannot ultimately be bound by eternity clauses and much less by implicit principles [2,p.187].
Noteworthy, the normativism or the normative theory considers the constitution as the highest norm of positive law and order. The concept of the constitution of G. Kelsen is connected with the doctrine of the hierarchical structure of the rule of law formulated by him [10]. According to R. Guastini, normativism or the normative theory of legal science represents an attempt to describe (and to rationalize) the actual practice and thinking of contemporary jurists. On the one hand, what jurists say (and think) they are doing when they interpret the materials that are usually termed "sources of law" (statutes, judicial precedents, regulations, and the like) is nothing more than a description of norms; and the norms themselves are conceived of as "data" that precede the interpretations offered of them. On the other hand, jurists in fact typically provide statements of norms in a deontic language - in a language that is to say, that is syntactically indistinguishable from the language used to give expression to the norms themselves [3].
In general, the hierarchy rule of law is presented as a pyramid, in which each source of law takes its place, depending on its legal force. The main idea of this doctrine is that the law itself regulates its creation and destruction, and the rules of law are accepted and canceled at separate steps of the regulatory pyramid. This is carried out through a higher legal norm, which regulates the form and procedure for creating a lower legal norm, as well as its content. The norm of law higher in the normative hierarchy is the source for the lower norm. The relationship between the norm that establishes the process of creating another, and the norm that was created according to this process, is the relationship of domination and subordination - the ratio of higher and lower orders [7,p.125-126].
Moreover, the Constitution under which unconstitutional acts remain valid and cannot be revoked on the grounds of being unconstitutional is, from a legal point of view, is equivalent to a declaration, to a simple wish that is not binding. In this case, the normative pyramid is turned upside down: the law and by-laws that are contrary to the constitution have superior legal force in relation to the constitution, despite the fact that they are subordinate to it and draw their legal force from it [7, p.126].
In general the Constitution of the democratic, legal, social state establishes the forms of law, that is, the sources of law, and builds the legal order of the state consisting of them in a hierarchical manner: the Constitution, the constitutional laws, laws, the by-laws, etc. For instance, the Constitution of Republic of Armenia underlines the hierarchy of legal norms (Art. 5). According to the Constitution of RA, the Constitution shall have supreme legal force. Laws must comply with constitutional laws, whereas secondary regulatory legal acts must comply with constitutional laws and laws. In case of conflict between the norms of international treaties ratified by the Republic of Armenia and those of laws, the norms of international treaties shall apply [8].
It is known, that Constitutions establish and regulate the political institutions of the community. It defines the various institutions of government; prescribe their composition, powers and functions; and regulate relations between them.
In democratic, legal states the Constitution establishes legislative, executive and judicial branches of government. In addition, there may be a symbolic head of state, institutions to ensure the integrity of the political process (e.g. an electoral commission), and institutions to ensure the accountability and transparency of those in power (e.g. an ombudsman). The institutional provisions typically provide mechanisms for the democratic allocation and peaceful transfer of power (e.g. elections) and for the restraint and removal of those who abuse power or who have lost the confidence of the people (e.g. impeachment procedures) [11,p.46].
According to E. Bulmer, Constitutions can declare and define the nature and authority of the political community. They often declare the state's fundamental principles and assumptions, as well as where its sovereignty lies [1,p.6].
For example, Art.1 of the French Constitution declares: "France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis. Statutes shall promote equal access by women and men to elective offices and posts as well as to position of professional and social responsibility" [9].
The same approach we can find in the Constitution of the Republic of Armenia. According to Art. 1 of the Constitution of RA, the Republic of Armenia is a sovereign, democratic, social state governed by the rule of law. At the same time, Art. 2 of the Constitution of RA declares, that in the Republic of Armenia the power belongs to the people and the people shall exercise their power through free elections, referenda, as well as through state and local self-government bodies and officials provided for by the Constitution. Usurpation of power by any organisation or individual shall be a crime [8].
L. Kazanchian proposes, that due to modern political and legal processes, individual rights and freedoms are gradually becoming a standard for the development of society, the establishment of the idea of rule of law and a stable factore in international legal cooperation [5, p.161].
It is known, that constitutional norms are generally binding rules of conduct determined by the economic, political and social capabilities of society, sanctioned and protected by state power.
In our opinion, the Constitution is a normative act that has the highest legal force over the norms of the entire legal system of the state and is meant to regulate the relations between man and society on the one hand, and between man and the state on the other hand, as well as the fundamentals of the organization of the state. In other words, the constitution essentially regulates the chain of "individual-collective-society-state" relations, as well as the basics of state organization.
In our opinion, the constitution, as a legal act, occupies an independent and special place in the legal system of a modern democratic state, which differs from all other legal acts in a number of characteristic features. First of all, it is a feature of the constitution as the main law (set of laws) of the state endowed with the highest legal force. Moreover, the constitution, endowed with a special procedure for adoption and amendment, not only forms the basis for current legislation, but also determines its nature. In modern legal literature, the constitution emphasizes that the main characteristics of the country's basic law are due to the fact that it defines [4,p. 12].
• the basics of state order,
• the guarantees of ensuring and protecting human and citizen rights and fundamental freedoms,
• the system of state power, its functions, principles and order of organization,
• the legal limits of the exercise of political power and the manifestation of individual political, economic, and social freedoms.
The conducted research shows, that Constitution of the democratic, legal state has one more very important function: it restricts the power of government and protects the basic rights and freedoms of the person from violation. For instance, the Art.3 of the Constitution of RA declares, that the respect for and protection of the basic rights and freedoms of the human being and the citizen shall be the duty of the public power. Moreover, the article emphasizes, that the public power shall be restricted by the basic rights and freedoms of the human being and the citizen as a directly applicable law.
Summering up the results of explored issues, we conclude that the Constitution is the basic law of the state, which establishes the foundations of the social and economic system of a given country, the form of government, the legal status of the individual, the organization and competence of the authorities and management in the center and in the field, the organization and basic principles of justice, the electoral system.
References
1. Bulmer E. What is a Constitution? Principles and Concepts International IDEA Constitution-Building Primer 1, Sweden, Stockholm 2017- 28p.
2. Colón-Ríos, J. Constituent Power and the La (Oxford Constitutional Theory). Oxford, Oxford University Press. 2020. -368p.
3. Guastini R., Normativism or the Normative Theory of Legal Science: Some Epistemological Prob-lems/'/Normativity and Norms: Critical Perspectives on Kelsenian Themes, Stanley L. Paulson (ed.) Oxford, p.316-330.
4. Harutyunyan G. Constitutional Culture: The Lessons Of The History And The Challenges Of The Time. Yerevan, Nzhar, 2005.-404p.
5. Kazanchian L. Features Of Fundamental Rights In The Context Of The Philosophy Of Law//Wisdom, WISDOM, 14(1), 2020, p. 159-165. DOI: https://doi.org/10.24234/wisdom.v14i1.323
6. Lassalle F. On the essence of the Constitution. Rostov-on-Don. Donskaya Rech, 1905. -74 p.
7. Shustrov D. Essentia constitutionis: The Constitution of the Russian Federation in the focus of constitutional theories of the 20th and 21st centuries. Part 1//Comparative Constitutional Review. Moscow, 2017.p.124-141.
8. The Constitution of the Republic of Armenia, URL: https://www.president. am/en/constitution-2015/(accessed 10.11.2022).
9. The French France's Constitution of 1958 with Amendments through 2008, URL: https://www.consti-tuteproject.org/constitution/France_2008.pdf?lang=en/ (accessed 10.11.2022).
10. Wiederin E. Die Stufenbaulehre Adolf Julius Merkls// Rechtstheorie: Rechtsbegriff - Dynamik -Auslegung /Griller, H. P Rill (Hrsg.). Wien; New York: Springer, 2011.p.81-134
11. Yusubov E.S., Makartsev A.A. Constitutional law of Russia: textbook. P. 1: Tomsk, Tomsk State University Publishing House, 2015. - 336 p.
