Derivative Constitutional Law Enforcement: Concept, Mechanism and Place in the System of Law Implementation
Abstract
The article is devoted to the substantiation and disclosure of the category of «derived constitutional law enforcement» as a special form of implementation of constitutional norms in the context of a developed system of sectoral legislation. The starting point of the study is the observation that in the vast majority of cases, the law enforcement officer does not directly refer to the Constitution, but to the laws and regulations specifying it. This circumstance casts doubt on the doctrinal ideas about the direct effect of the Basic Law as the main mode of its implementation. The purpose of the work is to introduce the category of «derived constitutional law enforcement» into scholar circulation, to define its concept, identify its essential features, reveal the mechanism and determine its place in the system of constitutional and overall legal regulation. The methodological basis of the research consists of general academic (dialectical, systemic, structural and functional) and private scholar (formal legal, comparative legal, interpretative) methods, as well as a method for analyzing law enforcement. The author’s definition of derived constitutional law enforcement is formulated as a process of authoritative activity of competent authorities, within that constitutional norms are implemented indirectly — through the application of legal acts specifying them. Its main features are revealed: indirect (multi-layered) character, hierarchical connectedness, concretization as a way of implementation, normative secondary nature of applied acts, controllability. The mechanism of derivative law enforcement is revealed as a «chain of mediation», that includes four levels: a constitutional norm, an industry law, by-laws, and an individual law enforcement decision. The derivative law enforcement in the activities of courts and executive authorities is analyzed, and the special role of the Constitutional Court as a guarantor of the preservation of constitutional meaning in the process of multi-layered implementation of constitutional norms is shown. The novelty of the study lies in the substantiation and introduction of the category of «derived constitutional law enforcement» allowing to describe the real mechanism of the implementation of the Constitution in a new way. It is concluded derivative constitutional law enforcement is the dominant mode of Constitutional implementation in a developed system of sectoral legislation, and its impact depends from the quality of laws, the level of legal awareness of law enforcement officers and the activities of constitutional control bodies.
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