A.A. Liverovskiy

Development of Constitutional Law Conceptual Framework

2018. No. 2. P. 229–247 [issue contents]
The article raises the issue of the paradigm shift of constitutional law in modernconditions related with transition of Russian Federation to a fundamentally new stageof its constitutional development at the end of the 20th century. The reconstruction ofconstitutional legal understanding is connected with overcoming of legal, political andideological problems of the transitional period. This study involves the application of arational methodology of clarifying traditional humanitarian concepts of constitutional lawbased on natural legal understanding. The doctrine of supremacy of the constitution isexamined in terms of the predetermination of its legal content towards the positive law asthe result of the activities of state authorities. Discussing the mythological construction ofthe 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 naturalorigin. Highlighting the traditional and religious basis of the content of regulators of socialrelations specific to the “pre-state monoethnic communities” the author reveals their“constitutionality” on the basis of concept of “constitutional culture”. Such an approach tothe sources of law allows to obtain a more precise idea of the categories of constitutionallaw and to justify their natural-legal origin based on rational modeling. Within framework ofnatural legal understanding a model of constitutional regulation of social relations basedon a fundamental system of constitutional principles has been constructed. The analysisof content of decisions of the bodies of constitutional justice allowed to determine themechanism for regulating of social relations by constitutional principles (constitutionalregulation) which is different from the mechanism by the normative regulation. The conceptof 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 ConstitutionalCourt of the Russian Federation as “flexible doctrines” the creation of which correctsand predetermines constitutional development of the state. Judicial resolution of thedichotomy: constitutional regime/legislative regime by the constitutional court throughthe constitutional regulation allows to emphasize a law-making characteristic on theactivity of Constitutional Court of Russian Federation and thus to clarify its place and rolein the system of interaction between a person, society and a state.
Citation: Liverovskiy A. (2018) Razvitie ponyatiynogo apparata konstitutsionnogo prava [Development of Constitutional Law Conceptual Framework]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 229-247 (in Russian)
Rambler's Top100 rss