Constitutional doctrine as a source of constitutional law
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2018, Vol 29, Issue
Abstract
The main tendencies of development and improvement of the system of modern sources of constitutional law of Ukraine are considered in the article. The views of scholars on the place of the constitutional doctrine in the system of sources of law are analyzed. The essence and significance of the constitutional doctrine as a source of constitutional law are revealed. The advantages of doctrine as a source of law are characterized. On the basis of the analysis of scientific literature, the author draws attention to the possible benefits of the use of legal doctrine in constitutional proceedings. In recent years, the problem of trends in the development and improvement of sources of law, both in terms of the theory of state and law, as well as in certain areas of public law, has repeatedly attracted the attention of scholars. To date, the process of modernizing the doctrine of sources of law is characterized by some attention to the study of the latest (non-traditional) sources of law, in particular, such as the legal doctrine. The legal doctrine can be defined as a doctrine, a system of theoretical and practical provisions, ideas, basic principles that reveal the essence of law, its purpose and function. In turn, the form of expression of the legal doctrine is the scientific work of lawyers, whose theoretical positions and conclusions in the course of long-term use have become a scientific approach to solving particular practical problems. The most concentrated manifestation of the practical function of legal science, which is to promote the development and improvement of law, appears in the legal doctrine as a phenomenon that most effectively combines scientific developments with the practice of creating and applying law, while taking into account both the context of the legal culture and the influence of the main factors of development of society. Recognition of legal doctrine as a source of law is conditioned by the following reasons: the formal certainty of the legal doctrine is achieved through the written form of expression of the works of scientists and the popularity of the doctrine among professional lawyers and subjects of law; the general obligation of legal doctrine stems from the authority, respect for scholars and lawyers in society, as well as the general recognition of the work of jurists; the implementation of legal doctrine is provided by state sanction in legal acts or judicial practice. In the United Kingdom, individual works by lawyers are recognized as a source of constitutional law. This is explained by the fact that they contain the necessary generalizations, as well as analysis of written and unwritten rules of the constitution. In addition, the Parliament and the courts, in the absence of rules of the statutes, constitutional agreements and judicial precedents, refer to the scholarly works of such experts in constitutional law of Great Britain as D. Locke, D. Lowe, D. Mill, E. Burke, A. Dacey, E. May and others. In the countries of continental Europe, the legal doctrine as a source of constitutional law has also received some recognition. Thus, in recent years, the Federal Constitutional Court of Germany has begun to refer to the scientific achievements of renowned state scholars of the country, which contributed to the increase of the effectiveness of constitutional control in Germany and served as an impetus for further fundamental research in the field of constitutional law with a view to further their practical implementation. In Ukraine, the constitutional doctrine becomes a source of law in the case when the Constitutional Court usually officially uses in its activities the provisions and conclusions of scientific research of constitutional scientists. In this case, doctrinal ideas are a measure of legitimate behavior and receive state support. The possibility of recognizing constitutional doctrine as the source of constitutional law depends on the essence of law and its approach. The significance and significance of the constitutional doctrine as a source of constitutional law is due to the peculiarities of the historical development of the state, the understanding of law, the current state of the system of sources of law and the state’s affiliation with one or another legal system. The simplest and most obvious proof of the role of doctrine is the direct consolidation of the doctrinal provisions in the law.
Authors and Affiliations
Olena Biloskurska
Keywords
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