Understanding of Constitutionality in Legal Philosophical Discourse: Imaginary and Genuine Alternatives

Abstract

Ensuring compliance of legal acts with the constitution is a problem of legal dogma and practice, as well as of the philosophy of law. In the latter, these ques­tions are linked with more general problems of validity of normative orders, in­cluding a legal one. In positivist philosophy of law, there are two alternative ap­proaches to their understanding – analytical jurisprudence and legal realism. The first describes the legal order as a system of norms, where the validity of a norm is determined by its compliance with a norm of higher level. However, because of the ambiguity of constitutional text it is often impossible to give a definite answer on the conformity of law with the constitution. The recognition of a law as constitutional depends upon the discretion of the constitutional re­view body which decides a case. These approaches of the analytical philosophy of law are practically identical to the legal realists position according to which a normative text doesn’t have any meaning before it’s interpretation by the autho­rized body, that determines a real content of a text. Within the framework of these areas of legal thought, the idea of ​​ constitutional review loses any meaning, and the effectiveness of the constitution, not only its supremacy, is called into question. Non-positivist approach is a genuine alternative to this understanding of constitutionality. According to it the limiting of public authorities and human rights realization are the purposes of a constitution. In formal legal sense, consti­tution as a normative act only fix those principles that guarantee the proper orga­nization of government. These principles express the essence of the constitution and serve as standards of constitutional review. Such understanding of constitu­tionality justifies different interpretations of constitutional text, and at the same time sets limits to it with the help of agreed understanding of general principles.