Development of Constitutional Law Conceptual Framework

Abstract

The article raises the issue of the paradigm shift of constitutional law in modern conditions related with transition of Russian Federation to a fundamentally new stage of its constitutional development at the end of the 20th century. The reconstruction of constitutional legal understanding is connected with overcoming of legal, political and ideological problems of the transitional period. This study involves the application of a rational methodology of clarifying traditional humanitarian concepts of constitutional law based on natural legal understanding. The doctrine of supremacy of the constitution is examined in terms of the predetermination of its legal content towards the positive law as the result of the activities of state authorities. Discussing the mythological construction of the establishment of legal order in traditional communities contained in the Old Testament, the author suggests construction of the formation of social relations by regulators of natural origin. Highlighting the traditional and religious basis of the content of regulators of social relations specific to the “pre-state monoethnic communities” the author reveals their “constitutionality” on the basis of concept of “constitutional culture”. Such an approach to the sources of law allows to obtain a more precise idea of the categories of constitutional law and to justify their natural-legal origin based on rational modeling. Within framework of natural legal understanding a model of constitutional regulation of social relations based on a fundamental system of constitutional principles has been constructed. The analysis of content of decisions of the bodies of constitutional justice allowed to determine the mechanism for regulating of social relations by constitutional principles (constitutional regulation) which is different from the mechanism by the normative regulation. The concept of Right of the Constitution as a natural-legal form of constitutional regulation is formulated. Its application leads to the representation of the legal positions of the Constitutional Court of the Russian Federation as “flexible doctrines” the creation of which corrects and predetermines constitutional development of the state. Judicial resolution of the dichotomy: constitutional regime/legislative regime by the constitutional court through the constitutional regulation allows to emphasize a law-making characteristic on the activity of Constitutional Court of Russian Federation and thus to clarify its place and role in the system of interaction between a person, society and a state.