27 septembre 2022
3 What Are the Characteristics That Define a Constitution as a Higher Law
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Quotes from Seward. But there is a law superior to the Constitution, which regulates our authority over the domain and enshrines it in the same noble objectives. an ethical or religious principle that takes precedence over the laws of society and that can be invoked to justify disobedience to a constitution or promulgated law with which it is in conflict. The Indian Constitution includes all the federal features of governance such as the dual system of government (centre and state), the distribution of powers between the three organs of the state (executive, judicial and legislative), constitutional supremacy, the independent judiciary and the bicameral (lower) system. Valery Zorkin, president of the Russian Constitutional Court, wrote in 2003: « Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction in recent years. However, no one can now say that we have achieved this goal. Such a rule of law simply cannot exist without a legal and just society. Here, as in no other area of our lives, the state reflects the level of maturity that society has reached. [13] In other countries, on the other hand, political leaders argue that all written laws must be respected in accordance with universal principles of morality, fairness and justice. These leaders argue that the rule of law, as a necessary consequence of the axiom that « no one is above the law, » requires that the government treat all individuals equally before the law. However, the proclaimed right to equal treatment may immediately become invalid whenever the government denies a certain category of individuals or human rights in general a sufficient level of respect, dignity and autonomy. [10] Therefore, the unwritten and generally explicit principles of equality, autonomy, dignity and respect are intended to prevail over conventional written laws adopted by the government.
It is these principles that are often referred to as the « natural law. » They also form the basis of the « higher legal theory ». The primacy of a higher law is a statement that no law can be applied by government unless it conforms to certain universal principles (written or not) of fairness, morality, and justice. [1] Thus, according to a higher law, the rule can serve as a practical legal criterion to qualify cases of political or economic decision-making if a government, although acting in accordance with clearly defined and properly adopted legal norms, still produces results that many observers perceive as unjust or unjust. [2] « This conclusion in no way presupposes a superiority of the judge over the legislature. It only assumed that the power of the people was greater than both; and that if the will of the legislature declared in its statutes is contrary to that of the people declared in the Constitution, judges should be governed by the latter and not by the former. They should regulate their decisions by fundamental laws and not by those that are not fundamental. The Russian concept of the rule of law has adopted many segments of constitutional economics, which serves as a practical implementation of higher legal theory in economics. The characteristics of the upper law are 1. lists the fundamental rights to life, liberty and property, 2.
establishes the government`s responsibility to protect these rights, 3. sets limits on how people can use their powers, such as civil rights, how resources are distributed, and how conflicts are managed, 4. The Russian legal system, which emerged in the 19th century as a result of the transformations initiated by the reforms of Emperor Alexander II, was (and still is) based mainly on the German legal tradition. From the latter, Russia had adopted the doctrine of the rule of law, which literally means « rule of law ». Its closest English analogue is « the rule of law ». [12] The Russian concept of the rule of law adopts the written constitution as the supreme law of the land (the rule of the constitution). This is a fundamental but indefinite principle that appears in the very first defining provision of Russia`s post-communist constitution: « The Russian Federation – Russia – represents a democratic federal constitutional state with a republican form of government. » Similarly, the very first defining provision of the Ukrainian Constitution states that « Ukraine is a sovereign and independent, democratic, social and legal state ». Therefore, the effort to make sense of the definition of « rule of law » is anything but theoretical. More than 200 years ago, Alexander Hamilton, James Madison and John Jay published a series of essays in which they promoted the ratification of the United States Constitution, now known as the Federalist Papers.
Explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist #78 that federal courts were « conceived as an intermediate organ between the people and their legislature » to ensure that the representatives of the people acted only within the framework of the powers conferred on Congress under the Constitution. The courts play a key role in upholding the rule of law, particularly when hearing complaints from minority groups or persons representing minority views. Equality before the law is such an essential part of the U.S. system of government that when a majority, intentionally or unintentionally, violates the rights of a minority, the court may deem it appropriate to hear both sides of the controversy in court.
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