TY - JOUR

T1 - Принцип соразмерности и основы конституционного строя

AU - Должиков, Алексей Вячеславович

PY - 2020/6

Y1 - 2020/6

N2 - The work analyzes the place of the principle of proportionality in the system of the fundamental principles of Russia's constitutional system. Although proportionality is more often used for judicial control in the area of constitutional rights, this principle extends to other constitutional institutions.In the system of fundamental principles of the constitutional state, proportionality is placed on the top among the elements of legal statehood. In terms of proportionality, the foundations of the constitutional system are fundamental principles of constitutionalism aimed at ensuring moderation of public power. The unwritten nature of proportionality makes it recognized in the practice of constitutional justice as one element of the law-bound state. In a historical aspect, proportionality has been a constitutional prohibition of excessiveness. Being a response to the previous experience of despotism, this prohibition involves inadmissibility of arbitrary state intervention in the sphere of individual freedom. In this capacity, proportionality is based on liberal political ideology. However, besides this manifestation, conditioned by liberal ideology, because of the synthesis of the concept of the r law-bound and social state in the future, proportionality is expressed in the constitutional prohibition of insufficient state actions. Here, proportionality imposes positive obligations on the legislators in implementing measures to protect constitutional rights.The synthesis of the law-bound and social state involves a balancing of the main opposing ideologies. For example, this means that constitutional justice should establish an optimal balance between economic freedoms and social rights. Moreover, the later goal of social justice does not remove the original task of constitutionalism in preventing arbitrary interference of the authorities in the sphere of individual freedom.Understanding proportionality is impossible without taking into account the interconnectedness of the formal and material aspects of legal statehood. The formal aspect of a law-bound state is expressed in the idea of strict adherence by the public authority to the valid rules regardless of their content. The material aspect of a law-bound state is related to the inability to solve the problems of legal wrong (injustice of legislation) positively. In this regard, proportionality serves as a means of anti-formalism and requires a meaningful evaluation of legislative and other regulatory decisions affecting constitutional rights.From a procedural point of view, being an element of legal statehood, proportionality is more a guiding principle of the authorities and cannot defend individuals in court when they file a constitutional complaint. The principle of proportionality can serve as the bases for controlling the rules of legislative and other regulations when it is connected with the alleged violation of specific constitutional rights provided for by the second chapter of the Russian Constitution.

AB - The work analyzes the place of the principle of proportionality in the system of the fundamental principles of Russia's constitutional system. Although proportionality is more often used for judicial control in the area of constitutional rights, this principle extends to other constitutional institutions.In the system of fundamental principles of the constitutional state, proportionality is placed on the top among the elements of legal statehood. In terms of proportionality, the foundations of the constitutional system are fundamental principles of constitutionalism aimed at ensuring moderation of public power. The unwritten nature of proportionality makes it recognized in the practice of constitutional justice as one element of the law-bound state. In a historical aspect, proportionality has been a constitutional prohibition of excessiveness. Being a response to the previous experience of despotism, this prohibition involves inadmissibility of arbitrary state intervention in the sphere of individual freedom. In this capacity, proportionality is based on liberal political ideology. However, besides this manifestation, conditioned by liberal ideology, because of the synthesis of the concept of the r law-bound and social state in the future, proportionality is expressed in the constitutional prohibition of insufficient state actions. Here, proportionality imposes positive obligations on the legislators in implementing measures to protect constitutional rights.The synthesis of the law-bound and social state involves a balancing of the main opposing ideologies. For example, this means that constitutional justice should establish an optimal balance between economic freedoms and social rights. Moreover, the later goal of social justice does not remove the original task of constitutionalism in preventing arbitrary interference of the authorities in the sphere of individual freedom.Understanding proportionality is impossible without taking into account the interconnectedness of the formal and material aspects of legal statehood. The formal aspect of a law-bound state is expressed in the idea of strict adherence by the public authority to the valid rules regardless of their content. The material aspect of a law-bound state is related to the inability to solve the problems of legal wrong (injustice of legislation) positively. In this regard, proportionality serves as a means of anti-formalism and requires a meaningful evaluation of legislative and other regulatory decisions affecting constitutional rights.From a procedural point of view, being an element of legal statehood, proportionality is more a guiding principle of the authorities and cannot defend individuals in court when they file a constitutional complaint. The principle of proportionality can serve as the bases for controlling the rules of legislative and other regulations when it is connected with the alleged violation of specific constitutional rights provided for by the second chapter of the Russian Constitution.

KW - the principle of proportionality

KW - fundamental principles of the constitutional system

KW - law-bound state

UR - https://www.mendeley.com/catalogue/e9249192-f19d-3927-a3b8-b7903b44c7c3/

U2 - 10.17223/22253513/36/6

DO - 10.17223/22253513/36/6

M3 - статья

SP - 56

EP - 69

JO - ВЕСТНИК ТОМСКОГО ГОСУДАРСТВЕННОГО УНИВЕРСИТЕТА. ПРАВО

JF - ВЕСТНИК ТОМСКОГО ГОСУДАРСТВЕННОГО УНИВЕРСИТЕТА. ПРАВО

SN - 2225-3513

IS - 36

ER -