Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)


Constitutional (Material) Obligation to Eliminate the Unconstitutionality of Legal Regulation, Decisionism

Author(s): Nikolay Antsiferov, Eduard Galitsky

The courts of constitutional justice can recognize a normative legal act or its individual provision as not complying with the constitution. Thus, such an act (or provision) can be removed from the legal system of the state. Meanwhile, there are the following controversial issues: - legal consequences of the adoption of such a decision; - actions of subjects of law-making activity to eliminate the unconstitutionality of legal regulation. In this regard, the issue of the role of judicial decisionism in ensuring the sustainability of legal regulation is also of interest. This study analyzes the current legislation (governing the elimination of unconstitutionality of legal regulation), as well as the prevailing judicial practice and doctrinal studies on this topic. The article examines the problems of imposing a constitutional obligation to eliminate the unconstitutionality of regulation and judicial decisionism. To determine the general trends in this problem, the experience of other states, both legislation and practice, is studied. For a better understanding, the problem is examined through the prism of a parliamentary system, democratic values and the relevant constitutional proceedings. After an act is recognized as unconstitutional, society loses the opportunity to exercise its rights in the absence of relevant mechanisms. One of the research aims is to define the subject responsible for filling the gaps in the legislation.