The constitutional law in the modern world: basic directions and forms of development - Государство и право реферат
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The constitutional law in the modern world: basic directions and forms of development
Concept of development basic law. Protection of freedom through the implementation of the principle of subsidiarity. Analysis of the humanitarian aspects of the legal status of a person. Systematic review of articles of the constitution of Russia.
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THE CONSTITUTIONAL LAW IN THE MODERN WORLD: BASIC DIRECTIONS AND FORMS OF DEVELOPMENT
Modern environmental problems find the decision in activity of the state, in basic directions and kinds of activity of its bodies. So, in many countries there exist specialized ministries and departments on control and regulation of activity in the sphere of environment, their functions the whole system of legislative acts providing strict measures of legal responsibility for infringement of their requirements. Alongside with the supreme and local bodies of the government the control over exact and strict observance of environmental legislation is realized by the bodies of public prosecutor's supervision.
At present problems of protection and rational use of natural riches have got the great economic, social and political value. They touch interests of all states. The more reasonably the riches are used, the greater successes are achieved by the state and the society in economic, social sphere. Only ecologically "reliable" states are becoming in XXI century most attractive political partners.
Nature protection is put forward into the number of the sharpest social problems and becomes one of the major nation-wide tasks that find the reflection in the working constitutional legislation. Activity on nature protection within the limits of the competence is realized by the parts of the constitutional mechanism of the state and its bodies. Carrying out of these principles provides purposefulness of environmental functions on the decision of tasks facing the state in the sphere of protection and rational use of natural resources [25].
The following moment which cannot be bypassed, is the tendency of progressing professionalism and specialization that is caused by the general tendencies of development of the society, crisis of parliamentarism and in this connection the role of executive authority increases. The symptoms of the crisis condition of parliamentarism is absenteeism of voters and members of parliament, transfer of part of powers of parliament to the executive authority, strengthening of the role of parties, committees and commissions to detriment of parliament, etc.
More often there is traced the tendency of division of presidents from executive authority which finds the expression not only in practice, but in norms of constitutions. In fact, there has begun to be formed the independent institute of the presidential authority [26], that today has produced such phenomenon, as presidentialism which is critically enough estimated by modern experts in the field of the constitutional law and political process [27]. So, the American researcher H. Lints has come to the conclusion that the choice of presidential structures leads to strengthening of political instability, opposition of legislative and executive agencies, to decrease of respect to the principles of legality. It negatively estimates presidential models in the post Soviet states [28].
The appearing special version of presidential authority in modern conditions is characterized by some specific features. First of all, it is the tendency to the “democratic leadership”. So, presidents of the majority of post socialist republics have come to power under democratic slogans. But, destroying totalitarism, the majority of them have aspired to create the image of the national leader allocated with wide powers. Sometimes, in general there is traced the tendency of orientation of constitutions of these states under the certain charismatic person (the Russian Federation, Kazakhstan and others). Secondly, the presidential authority in that kind as it develops in some modern post socialist states has the complex character. In the new states having no constant traditions of republican government, the presidential authority "grasps" and unites some elements of powers of other bodies: Permanent veto of legislative acts, unsigned laws, aspiration to publish orders or decrees valid as laws, the competence concerning formation of all vertical of the executive authority, the significant influence on the judicial authority (Armenia, the Russian Federation, Belarus, Kazakhstan and others). And therefore, the basic attribute of the new presidential authority is the aspiration of the head of the state "to rise" artificially "to rise" above other authorities, to concentrate the functions of the arbitrator in respect to them.
In the number of other countries, on the contrary, there takes place the process of strengthening of the parliamentary mode (for example, incessant discussions about the necessity institutionalization of the two-chamber parliament, and transformation of president and parliamentary republic into parliamentary-president republicin modern Ukraine), fixing in the constitutions of all principles of parliamentarism. New constitutions of the Scandinavian countries, for example, have put the parliament on the first place in the system of bodies of the government. They have received unlimited legislative powers, the wide right of control over activity of executive authority, there has been entered the principle of the political responsibility of the government before the parliament, there have been shown to minimum the rights of the head of the state in favour of the parliament and the government.
Triumphal procession of principles of subcidiarity, regionalization and decentralization, happened after the World War II in Europe and the USA, generated the tendency municipalization the constitutional life and the constitutional law. In the world there increases the comprehension of that the excessive centralism does not change the state, but leads to strengthening of functional inability of the state authorities. Local self-management, regionalization and decentralization are becoming now the leading principles of the European policy and constitutionally-legal regulation. So, the basic orientation of the principle of subcidiarity in the XX century comprised in overcoming fascist and socialist tendencies, protection of autonomy of the person and rights to self-management of local political units. Subcidiarity of organization of authority was opposed to tendencies in direction of the authoritative centralized state.
Subcidiarity was considered the precondition of the system which is based on the freedom: the state which adheres to the principle of subcidiarity, guarantees of the citizens freedom and independence; it guarantees local and regional self-management. Protection of freedom through realization of the principle of subcidiarity is at present proclaimed as one of the traditional values of the European political system (the European Charter of local self-management of 1985, the project of the European Charter of regional self-management of 1997), on the one hand, recognition and warranting of the wide catalogue of the rights of territorial collectives in the democratic countries creates conditions for formation in them of the model of the so-called “ the municipal state”, and, on the other, - the developed local self-management is considered as ”the starting tool” of the process of euro integration.
Municipilization of the constitutional life and constitutional law, first of all, has the output on the local level, mentions all processes of transformation and updating of authority in conditions of democratization of the state and the society. Properties of authority in such conditions are, first, its “humanization”, caused as the recognition by the independent subject of imperious relations of the citizen of the state, and presence of special subjects - territorial collectives.
Secondly, diversification of authorities, recognition of the local self-management as equal partner of the government, transfers the public authority mainly in the sphere of the private law, sphere of functioning of individuals - inhabitants of the certain territories and their associations which mainly is free from the state-legal regulation, into the sphere of “independent” space, considering, that exactly in this sphere the possible free display and realization of interests, both territorial collectives, and its members - inhabitants of the certain territories, that is within the limits of the civil society.
Thirdly, the municipal authority finds the legal regulation within the limits of the constitutional law which though is “the classical” branch of the public law, however under its multivector influence is exposed to essential “privatization” in conditions of democratic changes. At the same time, the municipal authority does not leave completely the sphere of publicity, and its subjects of regulation (including constitutionally-legal) become ostensibly adjacent, penetrated with private-legal beginnings [29].
Such tendency of “privatization” of the constitutional law is the consequence{ of one of the major features of local self-management which is closely connected with the natural right, and leads to permanent “retraction” in the orbit of the constitutionally-legal regulation of private-legal positions as the normative principles of the public law. In the basis of this process there is the recognition of supremacy of human values and private interests above all others, including public.
Except for municipalization of the constitutional law, it is necessary to pay attention to regionalization which, for example, has become dominating feature in modern Europe. Movement for regionalism amplifies both in the European Union, and beyond its borders. It strengthens confidence, that powers of the European Union, the state-members of the Union and regions mutually supplement each other. In this connection, for example, the assembly of the European regions in 1996 there was proclaimed the Declaration about regionalism [30].
It is necessary to note, that the modern states show sufficient aspiration to “regionalization” of the territory or expansion of the existing regional structures. Serious enough changes have occurred, in particular, in modern Great Britain where there take place the processes externally reminding federalization, and the existing status of autonomous units and the character of mutual relations between autonomies and the central authority gives the basis to some authors to consider it as the regionalist state [31]; and in Italy and France where powers of the supreme state bodies have recently been considered decentralized. The example to that are the law of Italy from October 7, 2001 which has made essential amendments to the Constitution of Italy concerning the questions of authority at different territorial levels, the law on amendments to the Constitution of France from March 28, 2003 which essentially reforms territorial collectives, etc. So, Article 114 of the Constitutions of Italy now fixes, that municipalities, provinces, big cities (with mother countries), regions are autonomies with own powers (authority) though their legal status is till regulated by the state. Article 72 of the law of France about decentralization provides, that communes (local territorial units), regions, other territorial units with the special status, overseas territories to which according to Article 74 the autonomy is given, are territorial collectives, and it means, that according to the French concept of territorial collective in all of them there should be elected the local representative bodies. Besides all of them have “the regional authority”, i. e. their acts though are not laws, however can be valid local laws. Change of borders of territorial collectives can be made only after preliminary consultations with the population, and in certain cases - on its consent (on the referendum) [32].
It is necessary to pay attention to the fact that artificially cultivated some time ago in Ukraine idea of federalism as the original panacea from all political and economic troubles, the most completed form of regionalism and “constant condition for self-realization of potential of regions, each territorial unit, each citizen” [33], in modern world is developing much more slowly, and recently has appeared more weakened, rather than strengthened. So, L.D.Karafiello and K.Malfrit though convinced of positive influence of federalism on the processes of transition to democracy, write, that “the federalist dialectics keeps polarity, conflict ness and intensity” [34]. The American political scientist W.Riker objects, that federalism always serves as the guarantee of democratic freedom. In his opinion, there is no simple causal relationship between federalism and freedom [35]. The modern state of general prosperity, according to German professor considers A.Rainer, does not support the idea of federalism, but aspires the equalizing the blessings received by people on the basis of equal participation of each person in affairs of the state and the society. Thus, in his opinion, there is the tendency of rapprochement of federal and regional systems [36].
The brightest illustration of this tendency, which can be named “quazi federalism”, is the gradual transformation in modern time of a number of unitary states into “the states of autonomies”, the whole or the greater part of whose territory consists of autonomous units. They are quite often called regionalist states which in the certain sense occupy the intermediate place between the unitary and federative states, as a whole not being beyond the limits of unitarism[37]. Such states are Italy, Spain, the South African Republic, and Sri Lanka. But, however, the form of political-territorial structure in Papua New Guinea is not absolutely clear. The Spanish author M.Garsia, the most essential characteristics of such states, considers the presence of features, “specific for the federation” [38]. In fact, they are not unitary states, but are yet federative.
It is necessary to note both the tendency of codifications of the constitutional law which is comprised in increase in constitutionally-legal material of remedially-procedural norms and codified acts. In particular it concerns the referendum and selective legislation, the constitutional legal proceedings, rules of functioning of bodies of the government and local self-management in the post Soviet countries: aspiration to pass selective codes, constitutionally-remedial codified acts, municipal codes (Ukraine, Russia, etc.).
Dynamic development of modern information, in particular computer, technologies testifies to presence of tendencies of mathematization of the constitutional law. Penetration into the constitutional life of methods of cybernetics, computer techniques, Internet technologies has opened ample opportunities for the constitutional law. The feature of cybernetics is that it investigates quantitative communications and relations in the processes of management. Exactly through quantitative characteristics it is possible to approach the analysis of qualitative changes in political-legal processes. the subject of constitutionally-legal cybernetics are qualitative and structural changes, as well as formally logic communications and relations which exist in the constitutional mechanism of the modern states, in the legislative, selective and referendum process, in lawful and law-making activity.
Cybernetic models are applied, in particular, for development of optimum systems of organization of bodies of the government and bodies of local self-management, calculation of votes on elections, development and passing administrative decisions as nation-wide, and, in particular, of local character. Quantitative reproduction of functions of these or that bodies in the form of the model influences the formation of the best variant of their structure and competence; quantitative reproduction of the certain processes of activity of these bodies, for example, testifies to penetration of mathematics into the analysis of publicly-imperious activity.
Cybernetics allows to show more fully the laws of structure and functions of the corresponding bodies, structure of administrative and territorial units, to determine the degree of their independence, self-controllability and efficiency. The cybernetic method is applied for development of the automated systems of reception, processing, preservation and search of the legal information, for determination of efficiency of constitutionally-legal regulation, for the systematized account of statutory-legal acts, etc.
Among tendencies of development of the constitutional law we can name the tendency of novelization which is connected with the tendency of its institualization that is shown in permanent processes of occurrence and formation of new democratic constitutionally-legal institutes, occurrence of new public relations which require the prompt legal regulation [39].
As an example it is possible to name administrative and constitutional justice, ombudsmen, replacement of administrative trusteeship over local self-management by administrative supervision. The special role among the new institutes is played by the constitutionally -legal responsibility. The given tendency is shown in the form of direct introduction in the constitutionally-legal turn of the category constitutionally-legal responsibility (Austria, Poland), fixing of the wide file of the constitutional sanctions, and aspiration at least on the doctrine level to prove the necessity of formation of special constitutionally-delict acts (Ukraine, Russia) [40]. In the legal literature there is given reason to the necessity of allocation of the constitutionally-legal institute of language, as “the set of legal norms which regulate lingual legal relations.” [41].
The following tendency of modern constitutionalism is the tendency of oriented foreign policy of the constitutional law. First of all, the norms of o the fundamental laws more precisely determine the competence of higher bodies of the government concerning the questions of foreign policy. They, as a rule, strengthen positions of parliaments in decision of the most urgent questions of: war and peace, ratification of the international contracts, determination of major principles of foreign policy, use of the certain form of the parliamentary control over the foreign policy activity of the government, etc.
In the number of constitutions of the foreign states there is completely forbidden accommodation of the nuclear weapons, or it is supposed solely on the basis of the special law. In many constitutions there are determined in details other principles of foreign policy of the state. So, if constitutions which were adopted at the end of XVІІІ - at the beginning of the ХІХ century, fixed the right to war as the integral display of the state sovereignty the majority of modern constitutions contain refusal from conducting the war as the means of realization of the foreign policy and sanction of international disputes (India, Japan, and Austria).
At present the function of defense is filled with the new contents and principles of military-political activity of the state in conditions of transition from confrontation and rivalry to relations of cooperation and dialogue, priority of not military, in particular political, economic and other spheres of maintenance of military safety. The majority of modern states have apprehended the defensive doctrine whose essence consists in creation of the optimum sufficiency of forces and means for prevention of the probable aggression on the part of the other state. Such approach to questions of military confrontation appreciably reduces the opportunity of wars, assuming in the future the prospect of their gradual disappearance [42].
Tendencies of development of the constitutional law in the countries of the world testify to the fact, that it is impossible to analyze the modern state and law from individualist positions. Experience of many newly formed states testifies to the fact, that it is impossible to operate freely with some categories of global constitutionalism. Slogans of “sovereignty”, ideas of absolute freedom of the market and non-interference of the state, hyper accentuation on division of authorities without taking into account its unity and existing of the constitutional realities, unjustified or sometimes declarative recognition of “liberties” of local self-management, underestimation of value of the social and economic rights and the superfluous bias aside “natural” human rights without adequate mechanisms of their realization, uncontrollable privatization, etc., have led to deterioration of the standard of life of the person in the post Soviet states.
In the majority of the states (they are mainly the developing countries) there is developing the tendency of reduction of the role of the constitution as the fundamental law. It is characteristic for the post Soviet states that are quite often accompanied by verbal declarations about respect of the constitutional order. Together with instability of the constitutional legislation are quite aside the times when the constitution was considered as the firm, inviolable document and amendments to it were made very seldom, becoming the event in the life of this country. At in the developing countries the constitution works for some years. So, in Venezuela for the period of a century and a half there were replaced almost thirty constitutions, in Thailand for the period of 60 years there were adopted 15 constitutions, in Yemen -10 constitutions were replaced during 30 years, in France after the World War II two constitutions (1946 and 1958).
In the second half of the XX century there have appeared the documents (they are often called national charters) which were put above the constitution. The National charter of Algeria of 1976 (in a update 1986), the Charter of Malagasy socialist revolution of 1975, etc. The constitutional value was sometimes given to the documents of the ruling party on an one-party system (for example, on Seychelles). There appear no conventional for the world constitutional practice time constitutional acts (for example, the Constitutional Contract between the Supreme Rada of Ukraine and the President of Ukraine “ About the bases of organization and functioning of the government and local self-management in Ukraine for the period of adoption of the new Constitution of Ukraine” 1995) . In many Muslim countries above the constitution there are the Koran and Synna. The constitutions are cancelled and replaced with the acts of military authorities after state and military coup d'etats. The international terrorism has become the universal factor of undermining of legality, including constitutional.
Despite the designated turns and zigzags, time deviations, global constitutional transformations and the political failures, the outlined general tendencies of development of the constitutional law testify to the fact that the idea of constitutionalism, embodiment of universal human values, high moral requirements into political-legal life find their development. Exactly realization of these ideas and values will appreciably assist avoidance of global catastrophe (nuclear, ecological, socio cultural), overcoming by peaceful ways of opposition of religions, ideologies, social and political system, and the future will become the period of the universal recognition of democratic principles of the constitutional law in unity of riches and variety of its concrete systems in separately taken states.
The analysis of humanitarian aspects of constitutionally-legal status of the person, including the feature of such of the most important element as complex of political rights and freedoms particularly actualizes in modern conditions of the economic turbulence.
The Constitution of the Russian Federation contains exceedingly actual positions, concerning the feature of rights and freedoms of a person and a citizen, in which there are fixed the most important principles of the modern humanitarian law. First of all it is necessary to note the constitutional recognition of the priority of regulation of rights and freedoms of a person and a citizen by means of the universal principles and norms of the international law, directly comprising the national legal system (Part 4 Article 15, Part 1 Article 17 of the Constitution of the Russian Federation). This circumstance is indicative of the high plank taken by the Russian Federation obligations in the humanitarian sphere.
The vital importance belongs to the fact of the constitutional recognition of the main rights and freedoms inalienable and belonging to each person from birth (Part 2 Article 17 of the Constitution of the Russian Federation). We mean in this instance the statement in the known sense of naturally-legal nature of the main rights and freedoms.
Very important is the circumstance that the Constitution of the Russian Federation does not absolutize the legal nature of the main rights and freedoms. Their value is in statics, in foreshortening of belonging to each person is unquestionable. However in dynamics of concrete legal relations, as well as in the system of real law and order main rights and freedoms are relative as by virtue of positions of Part 3 Article 17 of the Constitution of the Russian Federation realization of rights and freedoms of a person and a citizen must not violate rights and freedoms of other persons.
Special importance has the constitutional proclamation of the direct action of rights and freedoms (Article 18 of the Constitution of the Russian Federation). Fixing essentially the main vector of any sphere of activity of the state authorities, the Constitution contains specific uniform humanitarian presumption: the main rights and freedoms determine the sense, contents and application of the laws, activity of legislative and executive authorities, local self management and are provided by the justice.
In this connection there is natural introduction by positions of Article 64 of the Constitution of the Russian Federation of the hard mechanism of change of norms of Chapter 2 of the Constitution of the Russian Federation since they fix the bases of the legal status of the person that by virtue of Article 2 of the Constitution of the Russian Federation is recognized the supreme value and, consequently, can not but have the principle importance for stable operating of the legal system as a whole.
The special importance have the state warranties of equality of rights and freedoms of a person and a citizen regardless of sex, race, nationality, language, origin, property and official position, place of residence, relation to religion, beliefs, belonging to public associations, as well as other circumstances. In this connection, the Constitution forbids any forms of restriction of rights of the citizens on social, race, national, sexual, language or religious belonging. Positions of Article 19 of the Constitution of the Russian Federation also fix the principle of equality of all before the law and court.
The fundamental warranty of realization of the constitutional rights and freedoms is fixed in positions of Articles 45 and 46 of the Constitution of the Russian Federation. Essentially the principle of state protection of rights and freedoms of a person and a citizen (Article 45 of the Constitution of the Russian Federation), as well as the principle of judicial protection (Article 46 of the Constitution of the Russian Federation) kept in Chapter 2 of the Constitution occupy the special place as "universal stabilizers", presenting the general mechanism of provision of free realization of rights and freedoms, on the one hand, and the most important constitutionally legal mechanism of removal of obstacles in the process of humanitarian legal realization, on the other hand.
The contents of Chapter 2 of the Constitution of the Russian Federation correspond basically to the uniform list of rights and freedoms recognized by the democratic community. As a whole they form the system of civil (personal), political, social, economic, cultural, ecological rights.
Protection of the main rights and freedoms of a person and a citizen, including, political, is one of the main directions in activity of the Constitutional Court of the Russian Federation. Since the event of its formation the Constitutional Court of the Russian Federation with making the resolution has considered about 50 cases on complaints on the violation of the constitutional rights and freedoms of the citizens of the political nature. The main number of the cases of the given category about 40% are the cases connected with the violation of the constitutional rights and freedoms of the citizens in the sphere of electoral rights and the right to participation in the referendum. It is necessary to note that over the period of its activity the Constitutional Court of the Russian Federation has considered questions, connected with the right to free elections, not less than hundred times that confirms the exclusive importance and dynamics of development of the given institute.
About 15% of the considered cases about the violation of constitutional rights and freedoms of the citizens of the political nature are the cases connected with the violation of rights and freedoms of the citizens by the laws, regulating legal relations in the sphere of organization of the bodies of state authorities and bodies of local self management.
The political rights, alongside with the personal, pertain to the so-called "rights of the first generation" and are called to provide the citizens with the possibility of participations in public and political life of the country, in management of deals of the state, in formation bodies of state authorities and local self management, as well as participation in their activity. The Constitution of the Russian Federation fixes the political rights in positions of Articles 3
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