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.
Publisher
Institute of Philosophy, Russian Academy of Sciences