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Реферат About the elasticity of constitutional principles and constitutional policy





hanging the constitutional text. Some uncertainty, unpredictability, secret in the normative contents of the constitutional principles, relativism in the constitutional interpretation are not the lacks lowering democratic legitimation of the constitutional justice, but, on the contrary, is the way of creation of conditions for competition of various political , social forces. It seems to us that Karl Schmidt was right, when he put forward the assumption that there exists the general liberal principle [3]. Usually liberalism is understood as the certain views in economic sphere - free competition of private persons, freedom of contract and trade, choice of trade and residence. By virtue of these phenomena and, first of all, of the competition (see Article 8, Part One of the Constitution of the Russian Federation), there appears the certain social harmony. Other expressions of the general liberal principle, in K. Schmidt s opinion without which the free competition in the sphere of economy fades are the free competition of ideas and opinions (see Article 13, Article 29 of the Constitution of the Russian Federation), freedom of press generating truth. Truth in philosophical sense is relative, as it is the result of harmony, which is the balance being the result of the competition.one of his speeches Prof. Pastukhov V.B. has formulated the conclusion that the constitutional policy in Russia is realized at random raquo ;. He meant the danger the entropy of the constitutional policy of spontaneous constitutional development. We think, this danger is not exaggerated. It is enough to recollect about the experiments which carried out by the legislator with the order of formation of the Council of Federation (Article 96, Part Two of the Constitution of the Russian Federation) when formation was interpreted, in view of the constitutional principles as electivity of the members of the Council of Federation of Federal Assembly by the people, and then there has been carried out transition to the system of actual assignment of the by representative and executive organs of the power of the subjects of the Russian Federation., unscientific development of the constitutional law is the result of the defective constitutional policy. And the Constitutional Court of the Russian Federation shall share the responsibility for it. The constitutional policy should be based on the objective nature of the constitutional principles. Representations about the constitutional principles should not vary proceeding from the bolshevist approach. It is necessary to remember, that the constitutional law is the very fragile mechanism not standing commands.of representations about the constitutional principles should be, in its turn, carried out on the basis of external, rational, transparent rules whose formation should be the major task of the constitutional law., we face the task to create constitutionally-legal axseology. A number of the decisions of the Constitutional Court of the Russian Federation and, first of all, Resolution from December 21, 2005 No. 13-П on the case concerning the new order of allocation with powers of the supreme officials of subjects of the Russian Federation, testify to strengthening of the constitutional principle of unity of the state. One of the German scientists writes that the strong state has become the fundamental idea of ??the Russian constitutional justice [4] .Vividly, it is necessary to take into consideration the barefaced criticism [5] .Constitutional Court should not glorify one of the constitutional principles, but also proves, by virtue of which axseological representations the specified glorifications has taken place. Thus, it is obviously not enough to be limited by the indication to change of the concrete social - legal conditions, or change in the system of legal regulation. The common rule of interaction of the constitutional principles is their interstrengthening. As a matter of fact, this rule of interpretation of the constitutional principles, has been formulated by the European Court on Human Rights. In the decision on the case Bouman against the United Kingdom, the European Court has specified, that the right to freedom of speech, guaranteed by Article 10 of the Convention on protection of human rights and fundamental freedoms, is necessary to be considered in view of the right to free elections. The most important thing in the legal position of the European Court is that the two constitutional principles are interconnected and therefore should strengthen each other.of one of the interconnected constitutional principles is more likely exception of the common rule. Therefore, any glorified one of the interconnected constitutional principles should be quite carefully argued.



2. The special organ of the constitutional justice: nature and positioning regarding conceptualism. Factors of influence


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