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System and structure of the constitutional law of Ukraine: theoretic and methodological aspects

The characteristics and structure of constitutional law of Ukraine, factors affecting its formation and development, the current trend. Reform and the direction of change of the legal branch of the state. Principles of functioning of constitutional law.


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System and structure of the constitutional law of Ukraine: theoretic and methodological aspects
Development of the Ukrainian jurisprudence of the post Soviet period (1991-2009), in difference from ambiguous law enforcement and law making activity of participants of political and legal processes at the same time, was marked by serious theoretical-methodological works. First of all, we speak about successes of research by domestic scientists of fundamental problems of constitutionalism and general theory of the constitutional law. In particular, by present time the Ukrainian scientists-jurists have generated interesting concepts, concerning constitutionalism and ways of its further development; the subject, method and principles of the constitutional law; functions of the constitutional law of Ukraine; sources of the corresponding branch of the law and their system; constitutionally-legal relations and the legal responsibility of their participants; functions and principles of organization of the Ukrainian state; parliamentarism, etc.
Many of the concepts offered at present by the Ukrainian jurists are worthy, first of all, by virtue of the novelty, overcoming of stereotypes of legal positivism of the Soviet period and, undoubtly, will be useful not only for the Ukrainian, but also for the whole post Soviet constitutionally-legal science. Besides, traditions of fundamental legal researches, in our opinion, cause weightiness of the specified concepts, for maintenance of the all-European constitutional processes.
At the same time, it is necessary to recognize, that Ukrainian constitutionally-legal science does not have universal and absolute decisions for all traditional and new problems of the legal reality. The science of the constitutional law in Ukraine is, first of all, the dynamic, quickly developing branch of jurisprudence. The source of its permanent movement is, first of all, the open discussion concerning the problem questions arising in process of improvement of the domestic constitutionalism.
Continuing the designated tendencies of development of the constitutionally-legal science in Ukraine, they would like to pay attention to the problem of formation of the concept of multilevel system of the national constitutional law at the present stage, and also to open its essence and contents. Thus, it is necessary to note the importance of the corresponding concept not only for jurisprudence, but also for the constitutional law making and law enforcement activity. In fact the understanding of internal architectonics of the system of the constitutional law of Ukraine gives the key to understanding and ordering of many phenomena and categories of constitutionally-legal validity.
It is well-known, that at the beginning of XXI century the Ukrainian jurists have structurally rethought positions of the Soviet jurisprudence about the system of the constitutional law and have offered competitive definitions of this category. For example, definition of essence and contents of the system of the constitutional law offered in due time by J.N. Todyka is more advantageous [1], than the similar positions proved by Russian scientists-constitutionalists E.I. Kozlova and O.E. Kutafin [2]. However, the mentioned definitions continued to remain mostly modernizations, sometimes only stylistic, of the positions of the Soviet state legal science.
At the same time, at present, in the XXI century the Ukrainian scientists-constitutionalists continue to adhere mostly positivistic and neo-positivistic to methodology at determination of the category «the system of the constitutional law». In particular, in a number of modern textbooks and manuals on the constitutional law of Ukraine the system in this field of the law is determined as «its internal construction which is characterized by unity and interaction of elements of this system to which belong the constitutionally-legal norms and constitutionally-legal institutes» [3]. Other Ukrainian jurists adhere the same point of view [4].
Improvement of researches of theoretical bases of the multidimensional system of the constitutional law in Ukraine has been begun by us also from generalization of existing by that time definitions of the corresponding legal category [5] and researches of problems of influence of division of the law into private and public in the system of modern constitutional law [6]. The basic result of the specified scientific development by 2000-2002 has become the modernized definition of the concept of the system of the constitutional law of Ukraine and the hypothesis about revealing in it of such primary components of the elements of the law as private and public law.
These results of scientific researches can also be referred to modernizations of the strengthened sights on the category «system of the constitutional law». However, they could not be considered in another way, as their results were caused by positivistic and neo positivistic methodology which actually remained uncontested in the Ukrainian jurisprudence by the beginning of XXI century. But, already from the beginning of this century, the Ukrainian jurists have ceased to be satisfied with the out-of-date methodology of research for cognition of the legal nature of the modern phenomena of the constitutional life, including the system of the constitutional law of Ukraine.
The thorough updating of theoretical and methodological approaches to cognition of both traditional, and the newest problems of the theory and practice of the Ukrainian constitutionalism and constitutional law making and law enforcement activity has become the objective need of the present time. So, determining for the system of the constitutional law of Ukraine and theoretical representations about it have become the processes of globalization which have found the most relief and consecutive display in Euro integration tendencies of development of the legal life in our state [7].
However, if the national system of the constitutional law at the end of the XX century - at the beginning of XXI century began to be enriched with the new institutes (institute of ombudsman, institute of the constitutional justice, institute of the parliamentary control, institute of the parliamentary coalition, institute of lobbying, and etc.) and with other components (the constitutional procedural law, constitutional collision l law, etc.), the formation of new theoretical and methodological approaches to revealing of essence and contents, as well as new legal properties of this system occurred much more difficult and longer. Nowadays there exists a number of theoretical and methodological paradigms of the system of the constitutional law [8], but the basic paradigm is in the fact that exactly this system has never been the subject of fundamental monographic researches not only in Ukraine, but in other states of the world. Even in the former USSR where the problematics of the system of the law was «cult» for the Soviet jurists [9], there were no independent editions, devoted to the questions of the system of the Soviet state law.
West-European and American constitutionally-legal science did not give excessive attention to the problems of researches of the given branch system. As a rule, among the components of the system of the constitutional law of the mentioned countries there are named the norms and principles of the constitutional law whereas the category «institute of the constitutional law», widespread enough in the Ukrainian and Russian jurisprudence [10], still remains very little applied in West-European and American legal science.
But, it would be erroneous to consider that the West-European jurisprudence remains at present indifferent to problems of the system in the law. So, according R. Tsippelius at [present in a number of Roman-German states of Western Europe there have generated at least two legal schools which formed the strengthened position of their representatives concerning the statutory system of the law. We speak about school of jurisprudence of concept (Begriffsjurisprudenz) whose representatives consider the law as the closed, final system of norms, and the school of independent law (Freirechtslehre) which is based on the theoretical postulate which demands from the judge the search of validity in each special case on the basis of free law enforcement [11].
It is impossible to ignore and generated after World War II in France and widespread in the course of time in a number of the states of Roman-German legal system the political school of the constitutional law which methodology provides revealing of the basic political institutes of the society and the state and their system studying. One of the brightest and at the same time accessible, by virtue of translation of the work into the Russian language, examples of application of the political-institutional approach concerning research of constitutionally-legal phenomena, is the edition of Professor of Strasbourg University Zh.-P. Jacque «the constitutional law and political institutes «, that refers to the series of «Mementos» («the course», «manual») [12]. In this course which on the border of centuries has sustained the fourth edition, Zh.-P. Jacque has formulated his own vision of the system of the constitutional law of France presented by the basic political institutes, being in their close interaction. The similar theoretic and methodological approaches have been spread in the post Soviet states, in particular in the Russian Federation [13].
The above mentioned the political-institutional methodological approach, contrary to its appeal, cannot change by itself the research of the system of the constitutional law in its objective measurement. In this sense there are worthy the newest concepts of the systems of the national law of the post socialist countries - Bulgaria, Poland, Romania, Slovakia, Czech Republic, etc. They became the original scientific symbiosis of achievements of the academic science of the times of development in these countries of socialism and West-European and American political-legal thought concerning the system and structure of the law as a whole and their relations with other phenomena of the legal reality.
At the same time, we can speak only about the separate strengthened concepts of the system of the national constitutional law of these states. The majority of them have received the completed kind, though not general recognition, in jurisprudence of the post socialist states of Central and East Europe only in the XXI century. Thus, the mentioned concepts have not become the subject of independent monographies, but have received the introduction mainly in theoretical-methodological approaches to the system of understanding of the constitutional law as a whole. Most fully it has appeared in the structure of the corresponding branch textbooks of scientists-constitutionalists from Poland, Czech and other post socialist states of Europe [14].
So, the worthy is the concept of multiplane system of the constitutional law, formulated by the famous Czech scientific-constitutionalist Karel Klim. In the textbook on the constitutional law of the Czech Republic the scientist has offered the concept of division of the system of the constitutional law into general and special part with the further structurization of these subsystems of the constitutional law.
In particular, in opinion of Karel Klim, the general part of the constitutional law of the Czech Republic is presented by a) the general theory of the constitution and b) constitutionally-legal bases of the European Union, and the special part is presented by a) the theory of the Czech constitution; b) material constitutional law; the remedial constitutional law, g) the conflict constitutional law [15]. Scientific value of the concept of system of the constitutional law of the Czech Republic, given in K. Klim's textbook is that the jurist has not only carried out the statement of the question about many-sided nature of this branch system, but has found out, has revealed the perspective model of development of the system of the constitutional law in the post socialist society.
Exactly «revealing», instead of «construction» of the system of the constitutional law is the corner stone of modern methodology of cognition of the basic constitutionally - - legal phenomena that does not exclude the necessity of their perspective modeling. According to the famous Austria-American thinker, the Nobel prize winner Fridrich von Hayek, criticizing the widespread concept of «the constructive rationalism» of Charles Popper, the existing legal institutes have not been created on someone's plan, and it was not possible to equip the society on the scheduled basis not limiting its opportunity to apply useful knowledge [16]. That is, the statement of the question formulated in the Soviet jurisprudence about «construction», «designing» of the system of the constitutional (state) law which still exists in the modernized kind both in post Soviet, and especially in the Russian science of the constitutional law, has appeared erroneous.
Actually, the system of the constitutional law of each separately taken state has mostly objective character and, finally, is determined by material and social conditions of the life of the society. The system of the constitutional law cannot be created, designed, developed or constructed. It objectively exists outside of our will, but, as any objective is really existing phenomenon, the system of the constitutional law and its properties can be cognitive solely by conscious and system scientific researches.
At the same time, the mechanical loan of above mentioned theoretical-methodological approaches of foreign jurists concerning cognition of multivariate system of the constitutional law is not optimum by development of the domestic constitutionally-legal thought. The analyzed world outlook European post positivistic methodology, being perspective for cognition of the phenomena of the constitutionally-legal life in Ukraine, should be applied in the complex and creatively, without aspiration to recreate results to which have already come modern European scientists, in fact each national system of the constitutional law, as well as methodology of its cognition, is unique.
At the same time, achievement of the designated purpose will allow to come to detection of the new legal properties of the system of the constitutional law of Ukraine and its components, to find out before unknown levels and aspects of this system, to establish the existing between these elements and levels objective legal relations as well as to determine volumetric multilevel model of the system and structure of the modern national constitutional law which would become the effective theoretical-methodological basis of the system of the working constitutional legislation, and in the long term would become ideologically-legal ground of the whole constitutional law-making and law enforcement activity in Ukraine.
As it was stated earlier, the steps to achievement of the designated purpose have been carried out in jurisprudence of Ukraine in the XXI century. So, nowadays in the domestic constitutionally-legal science there have been spread the theoretical-methodological approaches which assist detection and studying of multifigurativeness and multidimensionality of the system of the modern constitutional law. In formation of the new conceptual approaches to understanding of essence and contents of the system of the law the Ukrainian constitutionally-legal science has made the appreciable step forward not only compared with the Soviet and post Soviet state legal science, but with the general theory of the law.
For the first time the concept of multidimensional model of the system of the constitutional law of Ukraine has received the complex substantiation in 2006 in the first volume of the academic course on the constitutional law of Ukraine, devoted to the problems of general theory in this field of the law. In this work we tried to prove, that the system of the modern constitutional law of any country of the world is the complex, historically generated phenomenon of legal life. It includes, first of all, institutes and norms of the constitutional law, but close to them there exist other elements of this branch system. Their existence is caused by genetic, creative, functional and structural characteristics and properties of the system of the constitutional law. I.e., institutes and norms of the constitutional law exist in the structure of multilevel cuts of the system of the constitutional law, namely: natural and positive constitutional law; general and special part of the constitutional law; material and remedial constitutional law; national and international constitutional law, etc.
Also there has been made the conclusion, that to the systems of the national law of any country of the world and other cuts of the law are inherent - private and public, subjective and objective, secular and initial, right and wrong» [17], or «shadow right» [18], etc. However, the named cuts still require additional researches concerning the opportunity of recognition for them of legal properties of components of the system of the constitutional law.
Proceeding from the contents of the specified basic positions, for the system of the constitutional law of Ukraine there was offered to understand objectively caused set of institutes and norms of the constitutional law, as well as other structural elements (natural and positive, general and especial, material and remedial, national and international) constitutional law which regulate public relations, being the subject of the constitutional law [19]. We shall note, that nowadays such approach of the definition of the system of the constitutional law of Ukraine has got support and development in works of some Ukrainian jurists [20].
Thus, it has been established and scientifically proved, that the system of the constitutional law of Ukraine has the complex structure which is not limited to such components as institutes and norms of the constitutional law. Except for them there are also such cuts, original subsystems of the constitutional law, as natural and positive, general and especial part, material and remedial, national and international constitutional law. Such multidimensionality and multiconceptiveness of the system of the constitutional law of Ukraine is caused, first of all, by multifunctionality of this field of the law, complexity of the subject of its legal regulation.
In the course of the mentioned research the system of the constitutional law for the first time in the Ukrainian jurisprudence has been researched not as the concept, but as the complex legal category. It is obvious, that detection of essence and contents of the category «the system of the constitutional law» is impossible without the analysis of the concept «the system» as the general scientific category. Application of the category of the system, the system approach to cognition of these or that including the legal phenomena, has the important theoretical and practical value as allows to understand the unity of the law through the organic interrelation and harmonious interaction of its components.
The scientists who researched the problems of systems in philosophy, law, sociology, cybernetics, the theory of management, mathematics, biology and other sciences, have come to the conclusion, that to the category «the system» there are inherent integrity, autonomy, self-sufficiency, internal coordination, especial connection with Environment, firm interrelation of elements of the system, exhaustiveness or approach exhaustiveness of the varieties of some elements of the system. At the same time, the Ukrainian science has not come to the uniform point of view concerning the semantic filling of the category «the system».
The use of the term «the system» by different scientists and in different sciences essentially differs one from another - and not only for its values but and for the semantic and in and formal principles put in its essence; often in their usage they leave extremely wide understanding of changes of character of the researched objects (system objects), and sometimes the use philosophical and general scientific basis, etc. [21]. For understanding of the category «the system» in the constitutional law it is especially important to determinate its legal value.
In this sense the most successful, in our opinion, is the definition of the legal measurement of the category «the system», offered by N.M. Parkhomenko in whose opinion this category is objectively created for achievement of the legal purpose, rather proof, independent and autonomous structurally-ordered complete unity consisting of structural elements closely connected with each other in their relations [22]. At the same time, there also exist other qualifying attributes of the category «the system» in the law.
In our opinion, for the category «the system» in jurisprudence the most important measurements are its structure, i.e. internal construction, «skeleton» of the system, as well as detail-functional relations between the basic components of this structure. In due time S.S. Alekseev defined the structure of the law as «the way of communication, organization of elements of the phenomenon» [23]. Besides, the understanding of essence and contents of any system is impossible without revealing the dialectics of its genesis and establishment of deterministic relationship of cause and effect of its development. and The system of the constitutional law of Ukraine is not the exception.
As it has earlier been noted, occurrence and statement of the system of the law became the result of enough late historical development of the state. Primarily the law found itself in the rules of the law, but complication of the public relations settled by the legal norms and occurrence of various methods of legal influence on these public relations, has led to formation of norms in the first complex legal communities - institutes of the law, and in due course the institutes were generated in sub branches and branches of the law[24]. With scientific substantiation of the system approach to cognition of the constitutional law, the category of the system gets its modern value and contents in this sphere of the law.
Thus, the system of the constitutional law of Ukraine has been revealed and cognitive as the objective unity for essence, contents and form of concrete elements of the constitutional law in structurally ordered complete unity which is allocated with independence, internal coordination, autonomy of functioning and organic relations with Environment.
The system of the constitutional law of Ukraine is formed under the influence of formation and development of public relations in political, economic, social and cultural (spiritual) spheres that confirms the thesis about multifactority in formation of the system of the constitutional law. This system reflexly though less reliefly than the system of the legislation, reacts to all the changes occurring in the sphere of public relations in Ukraine. The dominating factors influencing the system of the constitutional law of Ukraine are political, economic and social changes in the society which have objective character, but it is necessary to consider cultural, information, ecological and other factors.
The constitutional law as the sphere of the law regulating public relations in the sphere of the power, is appreciably formed under the influence of the state legal policy in the sphere of the constitutional law under which there is understood the complex of activities, realized by the bodies of legislative, executive and judicial authority in the legal sphere, strategy and tactics of activity of the state in the field of the constitutional law making, realization and protection of the law[25]. Since 2004, the state legal policy of Ukraine is indissolubly connected with the constitutional processes and the constitutionally-legal reform which was initiated with adoption of the Law of Ukraine «About entry of changes to the Constitution of Ukraine» from December 8, 2004 [26].
The formation of the modern system of the constitutional law of Ukraine is also influenced by cultural (spiritual), information and other factors, namely: the level of legal culture of the participants of the constitutional law making and law enforcement activity; the level of development of the constitutionally-legal science and education; information of participants of legal relations about the newest methods and principles of cognition of the corresponding branch of the system, etc.
Thus, the system of the constitutional law of Ukraine as the independent legal category has mostly objective character. However, the recognition of objectivity of the system of the constitutional law of Ukraine cannot be identified with fatality of its character as the formation and development of this system is influenced also by the subjective factors (sights and concepts of Ukrainian and foreign scientists and experts on the system of the constitutional law and its structure; demand of the corresponding sights and concepts in the constitutional law making and law enforcement activity, etc.) which also should be considered, revealing essence and content corresponding to the constitutionally-legal phenomenon.
But, the full representation about the multidimensional system of the constitutional law of Ukraine can be formed by the some of knowledge of legal properties of its components and order of their interaction, legal relations. It is known, that in the Soviet state legal science in due time there was affirmed about the rigid hierarchical structure of the corresponding sphere of the Soviet law presented by the two-level elements - institutes and norms of the state (constitutional) law which in turn have own structural levels. Refusal of the one-plane positivistic methodological approach to the system of law has allowed to deny this thesis and to find out new levels (cuts) of the system of the post Soviet constitutional law. It promoted also to formation of new theoretical-methodological representations about the structure of the constitutional law of Ukraine both in its basic elements and parts.
It is necessary to agree with the Soviet researcher of the systems A.M. Averyanov who confirms that any system consists of elements, that is objects, which in the set form the corresponding system. Thus, indivisibility of the element as the primary making system is relative as each element can have own system and structure. And the norm of the right is such element in the law.
The element of the system, according to A.M. Averyanov should be distinguished from parts of the system. As a part of the system can act any independently or naturally allocated group of elements. So, in the organism as in the system there are formed cells whereas its parts can be the named finiteness, internal bodies and in general any part of an organism. I.e., inside the system there are formed and function subsystems - parts of the system [27].
The corresponding law of organic systems, in our opinion, is also inherent to the structure of the constitutional law of Ukraine. So, the norm of the constitutional law is the original «section», the basic element of the system of the constitutional law whereas institutes of the constitutional law uniting in their structure norms of the constitutional law, act as the subsystem, i.e. i a part of the system of the constitutional law of Ukraine.
The greater level of autonomy as parts of the system of the constitutional law of Ukraine have such historically generated subsystems as natural and positive, general and special parts, material and remedial, national and international law, etc. Their structure, alongside with the norms of the constitutional law, comprises institutes of the corresponding field of the law which already by definition are subsystems, parts of the system of the constitutional law of Ukraine. Accordingly, the mentioned macrosubsystems, with the purpose of their relief allocation for designation of «the vertical» measurement of the system of the constitutional law [28] and avoiding of terminological mess, should be named not parts, but levels, or cuts of the system of the constitutional law of Ukraine.
For rather short time from 2006-2009, alongside with institutes and norms of the constitutional law [29], we have researched legal properties and other components and parts (levels, cuts) of this system - natural and positive [30], material and remedial [31], general part and special part [32], national and international constitutional law [33]. The results of these researches have allowed to reveal multiconceptive structure of the system of the constitutional law of Ukraine, presented by norms, institutes and other components of this system. In fact, the system of the constitutional law, being the element of the system of the national right, in turn is also the macrosystem and is characterized by multilevel and multivector structure which expresses the degree of its institutionality [34].
The primary, genetically caused cut of the system of the constitutional law is its division into the natural and positive law. Let's remind, that formation of the first authentically known and world-wide recognized constitutions in the XVII-XVIII centuries was carried out under the influence of adherents of the theory of the natural law (G. Grotsiy, T. Gobbs, J. Milton, J. Lilbern, O. Sidnej, J. Lock, B. Spinosa, S. Pufendorf, C. Tomazy, H. Volf, J.J. Russo, I.P. Kozelskiy, S.J. Desnitsky, I.A. Tretjakov, A.M. Radishchev, O.P. Kunitsyn, D. Lody and oth
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