Учредительная власть и конституционная модернизация в современном конституционализме (российский, сравнительный и международный аспекты)

Translated title of the contribution: Constituent Power and Constitutional Modernisation in Modern Constitutionalism (Russian, Comparative, and International Aspects)

Research output: Contribution to journalArticlepeer-review

Abstract

The article considers the conceptual foundations of legal and constituent constitutionalism, the problem of permanent constitution and constitutional modernisation, the multiplicity of the term "constitutionalism" and the dynamic capabilities of the constitution, the relationship of the nation's right to adopt and change the constitution in Emer Vattel's views, social foundations and forms of constituent power, the influence of Hans Kelsen's normativism and Carl Schmitt's decisionism for the modem understanding of constituent power, prospects for the formation of a constituent constitutionalism in the conditions of an information society and e-government. The author explores the conceptual significance of the basic laws and the modern constitution as legal phenomena, their difference in constitutional and historical jurisprudence, the substantive characteristics of legal constitutionalism based on the model of a written, codified constitution widespread on the legal map of the world. The author discusses the scientific views of Vattel as a representative of the school of natural rights to the constitution and public authority, the differences between the constituent and legislative powers, the role of the nation's right to adopt a constitution and the right to change it. This article substantiates the scientific and political-legal significance of Schmitt's decisionism. The author believes that the Russian constitutional landscape is under a serious strain from the results of the influence of Schmitt's concept of decisionism. Political and legal forms of involving citizens in the constitutional popular monitoring of possible amendments and changes to the Constitution of the Russian Federation remain unclaimed by constitutional science and practice. The article examines Kelsen's views on the understanding of the constituent power and the basic norm. Constitutional scholars note that, at present, the democratic constitutional theory does not pay enough attention to the concept of constituent power and attribute this to the costs of the influence of Kelsen's legal positivism. The article uses the methods of discursive and comparative legal analysis, the method of constitutional hermeneutics, specific historical and formal legal methods of analysis. The article identifies the problems of regulation and implementation of constituent power in Russian constitutionalism. Conclusions are made: in the conditions of the modern information society and the e-state, attention should be paid to the development of new legal means for identifying the validity of the constitution, creating political and legal mechanisms of constitutional will and the will of the people that are adequate to technological possibilities and based on digital rights and digital constitutionalism.
Translated title of the contributionConstituent Power and Constitutional Modernisation in Modern Constitutionalism (Russian, Comparative, and International Aspects)
Original languageRussian
Pages (from-to)206-217
Number of pages12
JournalВестник Томского государственного университета
Issue number450
DOIs
Publication statusPublished - Jan 2020

Keywords

  • fundamental laws
  • legal constitutionalism
  • constituent constitutionalism
  • constituent power
  • teleocratic and nomocratic function
  • permanent constitution
  • natural constitutionalism
  • Wattel
  • decisionism
  • Schmitt
  • normativism
  • Kelsen

OECD FOS+WOS

  • 6 HUMANITIES
  • 5 SOCIAL SCIENCES

State classification of scientific and technological information

  • 10.15 Constitutional (state) law

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