Written constitutions examples. §2 Classification of constitutions

Types of constitutions

According to the form of expression:

Written constitution is a normative legal act that holistically regulates issues of constitutional significance. A written constitution can be a single and only act, such as the US Constitution. However, it may consist of several acts (their parts), substantively complementing each other and formally proclaimed as components of a single constitution. Thus, the modern Constitution of France includes the Constitution of 1958, the Declaration of 1789, the preamble of the Constitution of 1946.

Unwritten constitution - a set of laws, judicial acts, and customs that are ordinary in form (for example, the constitution of Great Britain, New Zealand). They are not formally interconnected within the framework of a single act or official set of acts and do not delimit themselves from others legal sources on the basis of special legal force.

By subjects of adoption:

Granted a constitution is put into effect by an act of the head of state (the highest executive authority), for example the Constitution of Qatar. The granted constitution was the basic state laws of the Russian Empire of 1906, put into effect by an act of the emperor.

Folk the constitution can be adopted by referendum, by parliament, by the highest body of power formed exclusively for the adoption of the constitution (constituent assembly, constitutional assembly).

In order of acceptance and amendment:

Flexible constitution is the basic law, adopted and amended in the same manner as the ordinary laws of the state.

Tough constitution is a basic law adopted and amended in a more complex manner than the ordinary laws of the corresponding country. The tightening of changes to the constitution is dictated in the conditions of specific states for various reasons: the desire of politically and economically dominant groups in society interested in the immutability of the constitution to ensure its stability; the need to ensure the sustainable development of society, the state, legislation without constant “shake-ups”, etc. Most written constitutions are strict in the order of adoption.

Legal and actual constitutions.

Legal a constitution is a written or unwritten, granted or popular, flexible or rigid constitution.

Actual constitution is the actual structure of social-state relations, to one degree or another reproducing its model enshrined in the legal constitution.

By effectiveness

Real a constitution is one whose provisions are embodied in reality, and the legal and actual constitutions coincide.

Fictitious the constitution enshrines principles and institutions that are either absent in reality or that differ in practice from their constitutional model. In life it is difficult to find a constitution that would be real or fictitious in all its provisions. Therefore, it is important to evaluate individual constitutional norms and institutions from the point of view of reality or fictitiousness.

Separately

Sometimes the division of constitutions into types is based on individual elements of their content. Thus, constitutions are distinguished according to the form of government they establish (constitutions of unitary, federal states, federal constitutions and constitutions of constituent entities of the Federation); by form of government (constitutions of presidential, parliamentary republics, limited monarchies).

Fundamentals of the constitutional system of the Russian Federation

The fundamentals of the constitutional system of Russia include such principles of the structure of the state and society as:

man, his rights and freedoms as the highest value;

democracy;

fullness of sovereignty Russian Federation;

equality of subjects of the Russian Federation;

single and equal citizenship regardless of the grounds for its acquisition;

economic freedom as a condition for the development of the economic system;

separation of powers;

guarantees of local self-government;

ideological diversity;

political pluralism (the principle of multi-party system);

priority of law;

priority of generally accepted principles and norms international law and international treaties of Russia before national law;

a special procedure for changing the provisions of the Constitution of the Russian Federation, which form the basis of the constitutional system.

The main constitutional principles of the organization of Russian society

1. Participation of the people in organizing the activities of state bodies (as one of the constituent principles of popular sovereignty). - the bearer of sovereignty and the only source of power in the Russian Federation is its multinational people (Article 3, Part 1); - the people exercise their power directly, also through organs state power and local government bodies (Article 3,4.2); - citizens of the Russian Federation have the right to participate in the management of state affairs directly and through their representatives (Article 32, Part 1); - citizens of the Russian Federation have the right to elect and be elected to government bodies and local self-government bodies, as well as to participate in a referendum (Article 32, Part 2); - citizens of the Russian Federation have equal access to public service (Article 32, Part 4). 2. One of the most important principles of organizing the system of state power of the Russian Federation, according to the Constitution of the Russian Federation (Article 10), is the separation of executive, legislative and judicial powers. The separation of powers is a structure-forming and functional principle for the purpose of rational organization and control of state power. The principle of separation of powers has two aspects. Firstly, this is the distribution of powers between the state bodies themselves. No one body possesses all state power in its entirety. It is prohibited to perform functions belonging to another body. Thus, in a rule-of-law state there is no unlimited power not bound by the law and principles of the constitution. The separation of powers serves as a mechanism to protect individual rights as enshrined in the constitution. The separation of powers is expressed in a system of checks and balances, so that none of the bodies takes an authoritarian-absolutist position and overthrows the law and the constitution. 3. The principle of delimitation of jurisdiction and powers between state authorities of the Russian Federation and state authorities of the constituent entities of the Russian Federation (Article 11 of the Constitution of the Russian Federation) reflects the peculiarities of the state structure of Russia, the decentralization of state power, the departure from administrative-command management methods, and the process of democratization in general society. It follows from the Constitution of the Russian Federation that the constituent entities of the Russian Federation have the right to establish their own system of government bodies by adopting their own regulations. However, such acts must comply with the fundamentals of the constitutional system and the general principles of the organization of representative and executive bodies of state power (Article 77, Part 1), other provisions of the Constitution of the Russian Federation and federal legal acts specifying them. State power in the constituent entities of the Russian Federation must be based on the principles of a democratic federal rule of law state with a republican form of government (Article 1, Part 1), the unity of the system of state power (Article 5, Part 3), as well as the exercise of state power based on the separation of legislative, executive and judicial authorities and the resulting independence of their bodies (Article 10). 4. Legality in the organization and activities of state bodies. This principle presupposes compliance with the Constitution of the Russian Federation, laws and other acts of the Russian state by all government bodies and officials (Article 15, Part 2 of the Constitution of the Russian Federation). Legality in the organization and activities of the system of state bodies of Russia includes the following requirements: a) the formation of state bodies in strict accordance with laws and other regulations of the state, b) ensuring the functioning of state bodies within the framework of their competence, c) carrying out activities in appropriate organizational and legal forms using the methods inherent in the relevant authorities, in strict accordance with the procedural rules established for a particular government body, d) cooperation of government bodies with public organizations, taking into account their social status. This refers to their interaction on the basis of the leadership of government bodies by subordinate organizations, coordination of activities with non-subordinate organizations, etc.

Temporary and permanent

Usually constitutions are adopted and are in force on an ongoing basis; it is clear that even the most carefully developed constitution may sooner or later become outdated and cease to meet newly developed conditions. However, when accepting new constitution it is assumed that it will be constant, i.e. its action is designed to long term. The constancy of the country's constitution is a very positive sign indicating stability of this state, about the thoroughness of developing the basic provisions of the country’s basic law, about the fact that the country’s development is moving in the direction provided for when the constitution was created.

However, the temporary nature of the constitution does not mean that it is defective or inferior. This rather a sign that the country is expecting and preparing for serious changes, for changes so important and fundamental that the adoption of a permanent constitution does not seem appropriate, because the expected changes are either difficult to predict, or the temporary constitution acts as a kind of lifesaver, it is like an insurance policy that justifies the existence and functioning of the state for a certain period.

Temporary constitutions can be adopted for a specified period or until a certain event occurs. For example, the 1959 Constitution of Thailand, which included only 20 articles, was in force until the drafting of a permanent Constitution by the Constituent Assembly.

Most constitutions are naturally permanent. For example, the Mexican Constitution of 1917, which contains the largest number of amendments, or the oldest constitution, the US Constitution, are permanent and stable.

Written and unwritten

According to the method of objectification of the Basic Law, that is, according to how the will of the founder is externally, realistically and objectively expressed, constitutions are divided into written and unwritten. Written constitutions are compiled in the form of a single document, built according to a certain scheme and having standard structure, sections and content, naturally, differ in each specific case, but in general have much in common. Typically, a written constitution includes a preamble, a body text, and transitional provisions or accompanying appendices.

Unwritten constitutions are a rare exception. Currently they only exist in the UK and New Zealand. The unwritten constitution has the same range of subjects legal regulation, as written. In other words, the unwritten constitution establishes the form of government, the form of government, the structure of the highest bodies of state power, the legal status of the individual, etc., but its instructions are contained not in a single document, but in a huge number of sources of law. Thus, the form of objectification of the unwritten constitution is uncertain. For example, in Britain, for a short period of time (1653 - 1660), a written constitution was in force - O. Cromwell’s instrument of governance, but it did not leave a noticeable mark on the development of British constitutionalism. The modern unwritten constitution of Britain is a very complex conglomerate of various kinds of sources. This constitution is constantly being supplemented and changed. It is very flexible and convenient in a practical sense, and unlike its written counterparts, it does not require a complex procedure for accepting additions and changes. There are many more for this simple ways- from parliamentary law to the creation of a new precedent.

Actually, the “constitution” of Great Britain also contains written sources. The written part includes status law, i.e. acts adopted in various years and even eras by parliament regulating issues of a constitutional nature, but none of these laws is the fundamental law, which is considered the Constitution of the country, and court decisions (precedents) that have as their subject matters of the same constitutional nature. Although court decisions are objectively written, i.e. fixed on paper, nature, however, the doctrine classifies them as an unwritten part of the law.

The peculiar system of English constitutional law as a whole, of course, covers all aspects of regulation, but each of the components included in this law - court decisions, law or any custom - does not claim to be general principles; all of them, as a rule, owe their origin to special cases, individual needs that necessitated the need to supplement and adapt the existing procedure for resolving certain issues to new circumstances.

By its nature, it can be said that the unwritten constitution is very close in essence to the actual constitution. Currently, most of the constitutions of various states are written, because this facilitates the work of state authorities, having a single, clear source of provisions that these authorities must follow when carrying out their activities.

The Constitution can be called a social contract (a contract not in the legal sense), in which the political interests of various parts of society are agreed upon. Each such part - social class, social layer, territorial, national or other community - defends its social interests in political struggle, and the degree to which they can be harmonized is reflected in the constitution. Without such coordination, no legal order could exist in society. However, it cannot be argued that the constitution takes into account all social interests equally. Thus, a community that is more influential for one reason or another (economic) usually has a stronger influence that determines the content of the constitution. There are examples of this from the recent past of the countries of the former “socialist camp” and the former USSR.

1. The concept of the constitution

The word (term) “constitution” means “establishment”, “device”. The Constitution, as the Basic Law of the state, establishes the political form of existence of society, the system of state bodies, establishes the procedure for their formation and method of functioning, and secures the rights and freedoms of man and citizen.
If we define the constitution as a legal category in the most general way, then we can say that it is a system of legal norms that, as a rule, have supreme legal force and regulate the fundamentals of relations between man and society, on the one hand, and the state, on the other, as well as the fundamentals organization and activities of the state itself. The definition of the subject of regulation, as we see, is the same here as the subject of regulation of constitutional law, but the difference lies in the highest legal force of constitutional norms, recognized in the vast majority of states. These legal norms may be concentrated in one or a few regulations, sometimes called fundamental laws, or may be contained in an indefinite number of ordinary laws and, in addition, in judicial precedents and constitutional customs. In countries where there is no formal legal constitution, the distinction between the constitution and constitutional law cannot be drawn.
Constitutions owe their origin to the rise to power of the bourgeoisie, or more precisely, to its entry into the political arena in the fight against feudalism. In a country like England, where bourgeois “transformations began earlier than in other countries, much earlier than constitutional documents were adopted in these countries.
Thus, the adoption of constitutions was undeniably a progressive act.

2. Legal and actual constitutions

All constitutions can be divided into legal and factual. The legal constitution of a state means an actually existing document that establishes the foundations of the state, political and economic structure of a given country, adopted in the manner prescribed by law. However, a legal constitution in its essence is just a document, a piece of paper; when it is actually applied in life, a lot of problems and ambiguities arise, which are intended to be resolved by specific legislative acts adopted by various government bodies and officials in pursuance of the provisions of the constitution. Thus, the Russian Constitution directly states the need to adopt a number of constitutional laws, because in fact, the constitution itself is the backbone, the general plan of the legislative framework of the state, and cannot provide solutions to specific issues. It contains only basic principles that should guide citizens, officials and organizations of all types and forms of ownership of a given country. Thus, legal acts that specify the provisions of the constitution can be called the actual constitution of a given state.
The preferable situation is when the legal and actual constitutions completely coincide, i.e. the main document defining the foundations of government is valid in real life.
Significant discrepancies between the legal and actually operating constitutions indicate the instability of the political system of the state, the fictitiousness of a legally adopted constitution, which is typical for totalitarian or military states (this was typical for the constitutions previously in force in Russia and the Soviet Union, which were excellent in their content, however those democratic principles that were enshrined in them were not only not put into practice, but were violated in the most flagrant manner).
3. Unitary and federal constitutions.

All states, depending on the form of government, are divided into federal, consisting of republics, lands, cantons, provinces, states and other subjects of the federation, and unitary, representing one, single, indivisible state. Accordingly, constitutions are divided into unitary and federal. They will differ in the range of regulated issues, because Federal constitutions must necessarily contain a section devoted to subjects of joint jurisdiction and defining areas regulated by legislation at the level of the subjects of the federation.

4. Federal constitutions and constitutions of federal subjects.

Constitutions of this type can only exist in federal states with a complex structure. In such cases, federal constitutions are dominant, while the constitutions of the constituent entities of the federation will be secondary in relation to them and should not contradict the basic law of the state. The constitutions of the subjects of the federation usually have a more detailed and specific nature; they should regulate issues of more local significance than national constitutions, which only outline and define the general principles of government.

5. Democratic and reactionary (authoritarian) constitutions.

Depending on the nature of the political regime, constitutions are divided into democratic and reactionary. Of course, this division is largely arbitrary. From my point of view, this division is better used when talking about actual constitutions, i.e. about those that actually operate and whose provisions and principles are actually used in government, because a legal constitution can contain as many ideal, democratic principles as desired, but they can only exist on paper, having nothing to do with reality. Democratic constitutions guarantee and protect a certain range of rights and freedoms for their citizens, allow for free education and activity political parties of various kinds, provide freedom in carrying out economic activities, etc.
Reactionary constitutions can limit or prohibit the activities of political parties or other organizations, establish the dictates of one party (which was typical of Soviet constitutions), determine the limits of the exercise of rights and freedoms, and limit citizens in the practical implementation of inalienable, natural rights.
Authoritarian, and especially total, constitutions are characterized by increased ideological saturation compared to democratic ones, up to the mention of specific ideologies hostile to the existing system in the country, or, conversely, recognition of adherence to one specific ideology. Authoritarian constitutions sometimes proclaim different principles of organizing state power than democratic ones , for example, the creation of government bodies on a corporate basis. However, it is important to keep in mind that democratic constitutions sometimes serve as a cover for an authoritarian political regime; sometimes, although less often, on the contrary, a democratic regime preserves an authoritarian constitution for some time.
6. Temporary and permanent constitutions.

Typically, constitutions are adopted and are in force on a permanent basis; of course, it is clear that even the most carefully developed constitution may sooner or later become outdated and cease to meet newly established conditions (usually political or economic). However, when a new constitution is adopted, it is assumed that it will be permanent, i.e. its action is designed for a more or less long period. The constancy of the country's constitution is a very positive sign, indicating the stability of the state, the thoroughness of the development of the basic provisions of the country's basic law, and the fact that the country's development is moving in the direction envisaged when the constitution was created.
However, the temporary nature of the constitution does not mean that it is defective or inferior. This is rather a sign that the country is expecting and preparing for serious changes, for changes so important and fundamental that the adoption of a permanent constitution does not seem appropriate, because the expected changes are either difficult to predict, or the temporary constitution acts as a kind of lifesaver, it is a kind of insurance that justifies the existence and functioning of the state for a certain period.
Temporary constitutions can be adopted for a specified period or until a certain event occurs. For example, the 1959 Constitution of Thailand, which included only 20 articles, was in force until the drafting of a permanent Constitution by the Constituent Assembly.
Most constitutions are naturally permanent. For example, the Mexican Constitution of 1917, which contains the largest number of amendments, or the oldest constitution, the US Constitution, are permanent and stable.
Many states, usually Latin American, have replaced dozens of constitutions in a relatively short period of their existence, for example Bolivia - 20 constitutions, Colombia - 11, Dominican Republic– 15, Haiti – 23, Venezuela – 22. This was a consequence of private military coups typical of these countries, as well as the desire of the military, who came to power by force, to gain a foothold in power in a more legal and legal way.

7. Written and unwritten constitutions.

According to the method of objectification of the Basic Law, that is, according to how the will of the founder is externally, realistically and objectively expressed, constitutions are divided into written and unwritten. Written constitutions are compiled in the form of a single document, constructed according to a certain scheme and having a standard structure, sections and content, which naturally differ in each specific case, but in general have much in common. Typically, a written constitution includes a preamble, a body text, and transitional provisions or accompanying appendices.
The preamble usually contains a solemn formula for the proclamation of the constitution, the purpose of adopting the constitution, references to the previous constitution and some other documents. By general rule preamble, although it is integral part text of the constitution, but usually it is not normative in nature. Its provisions are considered purely introductory and declarative, with the exception of those that are reference norms (for example, the preamble to the French Constitution). Very often, modern constitutions (Austria, Belgium, Denmark, Iceland, Italy, most Latin American countries) do not have a preamble, but the general trend still boils down to the fact that the newest constitutions (including the Russian one) have a small preamble.
The main constitutional text is usually divided into parts, chapters, sections, and articles. For example, the text of the Italian Constitution consists of a section “Basic principles” and two parts - “Rights and duties of citizens” and “ Political system Republics." Parts are divided into chapters, chapters into sections, sections into articles. The constitutions of Germany, Japan, France, India, Malaysia and some other countries have a similar structure. Usually the largest structural divisions of the text have names, but they may not be ( "USA). Some constitutions (India, Bangladesh) are accompanied by amendments that specify and clarify general provisions constitution on certain issues. Some constitutions have transitional provisions (Italy).
Unwritten constitutions are a rare exception. Currently they only exist in the UK and New Zealand. An unwritten constitution has the same range of subjects of legal regulation as a written one. In other words, the unwritten constitution establishes the form of government, the form of government, the structure of the highest bodies of state power, the legal status of the individual, etc., but its instructions are contained not in a single document, but in a huge number of sources of law. Thus, the form of objectification of the unwritten constitution is uncertain. For example, in Britain, for a short period of time (1653 - 1660), a written constitution was in force - O. Cromwell’s instrument of governance, but it did not leave a noticeable mark on the development of British constitutionalism. The modern unwritten constitution of Britain is a very complex conglomerate of various kinds of sources. This constitution is constantly being supplemented and changed. It is very flexible and convenient in a practical sense, and unlike its written counterparts, it does not require a complex procedure for accepting additions and changes. There are many simpler ways to do this - from parliamentary legislation to creating a new precedent.
Actually, the “constitution” of Great Britain also contains written sources. The written part includes status law, i.e. acts adopted in various years and even eras by parliament regulating issues of a constitutional nature, but none of these laws is the fundamental law, which is considered the Constitution of the country, and court decisions (precedents) that have as their subject matters of the same constitutional nature. Although court decisions are objectively written, i.e. fixed on paper, nature, however, the doctrine classifies them as an unwritten part of the law. the expression “written” law means a law formally passed by Parliament, whether it is written down on paper or not, and the term “unwritten” law is used to mean a law not passed by Parliament. Judicial decisions constitute the “common law” system; they affect mainly the rights and freedoms of citizens (which is included in any written constitution), as well as the relations of various government bodies. There are a huge number of judicial precedents; highest value of these are decisions of the highest courts, especially the House of Lords - the supreme court of the country. Its decisions are binding on all courts.
The actual unwritten part includes constitutional agreements, which are not legally recorded anywhere, but which, as a rule, regulate the most important issues of state life. These agreements, or the common law system, are regarded in the UK as the basis of constitutional law. Custom represents rules established in practice that do not enjoy judicial protection. Royal prerogatives, for example, form part of common law. They include rules governing the appointment of ministers, the collective responsibility of the cabinet, the dissolution of parliament, the conclusion of international treaties, the declaration of war, etc. In practice, these prerogatives are exercised by the crown (monarch) upon receipt of the approval of the government in power. The sovereignty of Parliament, a fundamental principle of British constitutional law, is also a principle of common law. He has been recognized by the courts on several occasions; in particular, in 1840 the court confirmed the right of parliament to try its members for violation of their rights and privileges, and in 1884 the court confirmed the full right of parliament to manage its internal affairs.
Historically, constitutional conventions have varied origins. They arise due to circumstances as a result of inter-party struggle; The slow evolution of existing practice and its adaptation to changing conditions also plays a role. No one can force compliance with a constitutional custom; There is no special body for this. Parliament - the theoretical guardian of sovereignty - can at any time propose a new rule, repealing or abolishing the previous custom. There is no precise list of constitutional conventions. They operate in virtually every element of the British political system.
Status law is fragmented; There are about four thousand parliamentary acts on constitutional issues, and this number is constantly increasing. Some acts of parliament can be considered as purely constitutional, entirely devoted to any issue of constitutional regulation. These, in particular, include several laws on the composition, relationships and powers of the chambers of parliament (Parliament Acts of 1911 and 1949, Peerage Act of 1963), laws on the legal status of individuals, for example, the Habeas Corpus Act of 1679. , Bill of Rights 1689 (however, these acts are now more of a historical nature, since they were gradually almost completely replaced by later laws in the field of criminal and criminal procedure law), laws on suffrage (Acts on the Representation of the People 1949, 1969, 1974, etc.); local government laws (Local Government Acts 1972 and 1985). Constitutional norms are also contained in laws in which the regulation of such norms is part of the act along with other issues. For example, the Ministers of the Crown Act 1975, along with issues of a constitutional nature, contains many provisions related to administrative law. Constitutional norms may also be contained in acts of delegated legislation.
The peculiar system of English constitutional law as a whole, of course, covers all aspects of this regulation, but each of the components included in this law - court decisions, law or any custom - does not claim to be general principles; all of them, as a rule, owe their origin to special cases, individual needs that necessitated the need to supplement and adapt the existing procedure for resolving certain issues to new circumstances.
By its nature, it can be said that the unwritten constitution is very close in essence to the actual constitution. Currently, most of the constitutions of various states are written, because this facilitates the work of state authorities, having a single, clear source of provisions that these authorities must follow when carrying out their activities.

8. Rigid, especially rigid and flexible constitutions.

According to the method of changing, introducing amendments and additions and repealing, constitutions are also divided into two, sometimes three groups.
Rigid constitutions are amended and supplemented in a special manner, more complex than that adopted for the ordinary legislative procedure. Both the adoption of the constitution and its amendment fall within the competence of the legislative branch, and it functions in accordance with stricter procedural rules than the legislative branch.
Flexible constitutions are amended and supplemented in the same manner as ordinary parliamentary laws. There are no special procedures for this case. The constitutions of Great Britain and New Zealand (among the unwritten constitutions) belong to this type. However, there are also written, codified constitutions that do not provide for a special procedure for their amendment. Examples include the Statute of the Realm of 1848 of King Charles Albert (Italy), the Constitution of Monaco of 1911, constitutional documents Saudi Arabia(written uncodified constitution), the Constitution of Ghana 1960, the constitution of India. Usually, the adoption of a new legislative act is sufficient to make changes. Thus, each subsequent law containing constitutional norms changes or replaces the previous one or establishes provisions that were not previously regulated or were regulated by customary law. The adoption of a subsequent new law is carried out in the same manner as the previous one.
The situation is much more complicated when it is necessary to change a rigid constitution. The rigidity of constitutions aims to ensure their stability, which, in turn, helps to strengthen their authority and the relative constancy of the constitutional system. Eat different ways ensuring the rigidity of constitutions.
Most often, to change the constitution, a requirement of a qualified majority in the houses of parliament is established. Sometimes a repeat vote of the parliament of the same convocation is required after a certain period. To change particularly strict constitutions, it is envisaged that amendments must be approved by referendum or by a certain majority of the constituent entities of the federation, or the amendments must be re-adopted by the next parliament. For example, to change the US Constitution, the amendment must be approved by 2/3 of the total number of members of each house of Congress and the legislatures of 3/4 (i.e., 38) states. In Italy, to amend the Constitution, two consecutive discussions in Parliament are required with an interval of at least three months and approval in the second vote by an absolute majority of votes in each chamber; if the majority is not 2/3 in each chamber, then 1/5 of the members of any chamber, 500 thousand voters or five regional Councils may demand a referendum on amending the Constitution, which requires approval by a majority of valid votes.
Rigidity is one of the reasons for the immutability of such constitutions as the Japanese Constitution of 1946 and the Danish Constitution of 1953.
In constitutions mixed type different parts of them change differently. There are few such constitutions. For example, amending most provisions of the Maltese Constitution requires an absolute majority of all members of the House of Representatives (ordinary legislation requires a simple majority of the members of the House present and voting).
Another part of the Constitution (for example, on the composition and procedure for electing Parliament, on the President of the Republic) can only be changed by a unanimous decision of all members of the Chamber. Certain provisions of the Constitution are amended by a decision of two-thirds of all members of Parliament, followed by approval in a referendum.
In the Indian Constitution, a number of provisions (on the election of the President of the Republic, on the executive and judicial powers, etc.) are amended by the decision of two-thirds of the present and voting members of both houses of Parliament, followed by the approval of at least half of the legislature ( legislative assemblies) states. The same provisions of the Constitution, such as the list of states and union territories, are amended at the proposal of the President of the Republic by a simple majority vote in both houses of Parliament.
The most common way to incorporate amendments into the text of the constitution is to simply replace previous provisions with newly approved ones, or delete previous provisions, or add new ones (Italy, Germany, etc.). However, there is another way to include amendments, namely, adding new provisions to the current text without formally excluding those norms that have ceased to be in effect. The United States was the first to use this method: amendments are published separately after the original text of the Constitution. The Venezuelan Constitution of 1961 even regulated this procedure in para. 6 tbsp. 245: “Amendments will be assigned sequential numbers, and they will be published following the text of the Constitution without changing its text, with reference after which amended article to the number and date of the amendment.” This method is used in Yugoslavia and was partially used in the former Czech-Slovakia.
The first method has the advantage that it does not require the law enforcer or other person to compare the old and new rules to establish which of the them are currently in effect and, in addition, provides easy visibility of all current regulatory material. The second method allows you to always see all previously valid constitutional texts, which may be necessary for a law enforcement official or other interested party.
The main reason for amending the constitution is the new ratio political forces in society. To reform rigid constitutions, this ratio must change significantly, and the change must be more or less sustainable.
Most often, the influence of the changed balance of forces is noticeable when transforming the fundamental provisions of constitutions - on rights and freedoms, on the form of government, etc. However, there are amendments that are technical in nature and do not cause intense struggle in parliament and society.
Most constitutions do not contain provisions for revision, but some do contain such restrictions, either substantive or temporary. Most often they relate to the form of government in the country. In the French Third Republic Art. 2 of the Constitutional Law of 1884 stated: “The republican form of government cannot be the subject of proposals for revision.” Identical wording is contained in Art. 95 of the French Constitution of 1946 and almost the same in Article 89 of the fundamental law of this country in 1958. We find similar provisions in Article 139 of the Italian Constitution and in a number of other acts. The Greek Constitution prohibits changing the provisions defining the foundations and form of government of the state as a parliamentary republic, as well as a number of specially specified norms (Article 100, paragraph 1). Constitution of Portugal in Art. 290, entitled “Limits to the revision of the Constitution”, established a list of 15 points that must be respected in the revision; This is a republican form of government, the principle of general and direct elections by secret ballot, the principle of separation of powers and interdependence of government bodies, etc.
From the meaning of Art. 131 of the Belgian Constitution of 1831 it follows that a complete revision of this act is impossible.
Constitutions sometimes set a certain period of time during which they cannot be amended. Such provisions are intended to ensure the stabilization of the newly established constitutional order over a period of time. The first such constitution was the French one of 1791, which prohibited any revision during the first two legislatures, that is, for four years, and given that for amendments to come into force they had to be adopted within three consecutive legislatures (Article 4, Section VII) , then only in 1801 it would be possible to change this Constitution (it is known, however, that the next Constitution was adopted already in 1793). The Greek Constitution allows revision only after five years have passed from the end of the previous revision procedure.
A number of constitutions prohibit their revision during a national emergency. French Constitution of 1946 in Art. 94 prohibited the initiation or continuation of review proceedings in the event of occupation by foreign troops of all or part of the country. The purpose of this rule is to avoid a repetition of the practices of the Vichy regime, during which the constitution of the Third Republic was abolished on July 10, 1940. The same prohibition is included in Art. 89 of the French Constitution of 1958, and in 1968 to the Belgian Constitution: “No revision may be made or continued in time of war or when the Houses are unable to meet on national territory.”
In connection with the limitations of revision, an interesting question is about introducing amendments to those norms that regulate the very procedure for amending the constitution. These articles are amended, as a general rule, in the same order as other provisions. So, in 1922, Art. 196 of the Dutch Constitution, in 1982 the first three articles of the section on the revision of the Portuguese Constitution were transformed.
etc.................

1. Depending on the method of changing constitutions: flexible and rigid.

Flexible constitutions - This those for which a parliamentary decision (simple majority or qualified) is sufficient to change. The constitution is the most flexible Great Britain, the laws that are included in this constitution are changed by a simple majority vote (50% + 1 vote). Flexible is Basic Law of Germany 1949, changing it requires the adoption of a constitutional law by a qualified majority (2/3 of each house of parliament - the Bundestag (lower) and the Bundesrat (upper), as the chambers of parliament are called).

Tough are constitution, for changing which, in addition to the decision of parliament, additional procedures are also required, for example, referendum, consent of the constituent entities of the federation in federal states, in France there is such an additional procedure as approval by a joint meeting of the chambers of parliament. An example of such a rigid constitution is the US Constitution. The procedure for changing it: in order for a constitutional amendment to come into force, it must be approved by 2/3 of each house of parliament - Congress (Senate and House of Representatives), after which the amendment must be approved by 3/4 of the states (parliaments do this on their behalf). The US Constitution was amended 27 times during its entire period. At the same time, the Congress approved about 200 amendments, but the states approved only the same 27 amendments that now exist.

2. According to the form, constitutions are divided into written and unwritten.

Written constitutions are fixed in some normative act, one or more. Examples of such written constitutions are the USA, France, and Germany.

Unwritten constitutions- these are constitutions that contain, in addition to written sources of laws (which are enshrined on paper), unwritten sources - customs (a rule of behavior that is not enshrined anywhere and is oral in nature). Two constitutions are unwritten: Great Britain and New Zealand. The unwritten constitution of Great Britain consists of the following elements: statutes (laws), judicial precedents, constitutional customs, legal doctrine.

3.Depending depending on the structure of the constitution, they are distinguished: consolidated and unconsolidated .

Consolidated - This constitutions, which consist of one document. For example, the US Constitution, the German Basic Law.

Unconsolidated - This constitutions, which consist of several documents, several normative acts. For example, the Constitution French Republic 1958 (+ Declaration of the Rights of Man and of the Citizen 1789, Preamble to the Constitution of 1946). The Swedish Constitution is unconsolidated.

In textbooks, they also call codified and uncodified constitutions as an option.

4. The textbook contains additional types of classifications: republican and monarchical, federal and unitary, permanent and temporary.

Homework to the first seminar: bring the Constitution of the French Republic of 1958. There should be not only the French Constitution itself, but also the Declaration of Human Rights and Freedoms of 1789 and the Preamble to the 1946 Constitution (the 1946 Constitution was repealed, but the preamble was left). Also bring the Constitution of the Russian Federation. (The Constitution of the Russian Federation must be worn to every lesson!!!)

We will study mainly 4 constitutions foreign countries: USA, Germany, France and UK.

In various states, the branch of law in question is called either state or constitutional law. In this lecture the concepts are the same.

The types of constitutions are determined by the choice of classification criterion. The most superficial analysis reveals a variety of such criteria.

Depending on the forms There are two types of constitutions: written And unwritten.

A written constitution is a special legislative act or several acts at different times (for example, two in Denmark, four in Finland, Sweden), which are officially proclaimed as the fundamental laws of a given country. When there are several acts that make up a country's constitution, one of them is usually considered fundamental or key. In Sweden and Finland, for example, founding document The act of "Form of Government" is considered.

An unwritten constitution is a system of various laws, judicial precedents, customs, and conventional norms, which together establish the foundations existing system, but are not formally proclaimed as main laws (Great Britain, New Zealand, Israel). Laws regulating issues at the constitutional level are adopted in the usual manner for all laws. Along with laws, an integral part of the unwritten constitution are also constitutional agreements that regulate very important questions related to the exercise of government power. In New Zealand, for example, such agreements are made between the Governor-General, representing the authority of the Queen of Great Britain, the Government and Parliament.

In Great Britain, along with statutes (bills that have the nature of laws) and constitutional agreements, precedents have a significant influence on the content of the constitution. When making decisions of a normative nature, especially in the field of regulation and protection of rights and freedoms, courts are based on the so-called general principles justice. Some government scholars believe that the British Constitution also includes doctrinal sources, i.e. legal positions and theoretical principles set out by outstanding British scientists (Blackstone, Mill, Dicey, Locke, etc.). Their opinion is indeed resorted to when interpreting constitutional gaps, but this practice is random and, as a rule, transitional in nature, and its controversial nature is obvious. It is hardly worth officially recognizing the doctrines of scientists as an integral part of the constitution, since neither state authorities nor courts are actually obliged to resort to the authoritative positions of people, even eminent ones, but not endowed with the right to create a constitution.

It should be noted that at present there are no constitutions that are entirely unwritten. Even Great Britain, which is considered a classic country of an unwritten constitution, has many written acts as part of its fundamental law. Essentially, these are combined constitutions containing written and unwritten norms.

From point of view structures, constitutions are divided into consolidated And unconsolidated. In most countries, the constitution is a single consolidated document. At the same time, in a number of states the constitution was formed as a set of laws adopted in different time(unconsolidated or uncodified constitution). The name of each of them is usually given in accordance with the subject of regulation: “Form of Government”, “Act of the Riksdag”, “Act of Succession to the Throne” - in Sweden; laws on the Knesset (parliament), on land, on the judicial system - in Israel; Diet Charter – in Finland, etc.

By order of publication constitutions are divided into 1) octroirovannye (bestowed); 2) representative– adopted by a representative body (constituent assembly, parliament); 3) folk - approved by referendum.

Octroted constitutions, as noted earlier, are issued by the authority of the head of state without the participation of representative bodies. In an era of destruction feudal system in Europe, constitutions were often “bestowed” by the monarch “on his people.” In the modern period, this form of octroduction is less common (for example, Qatar, Kuwait, etc.). During the collapse of the colonial system in the 20th century. The octroduction took the form of a grant by the metropolis of the constitution of the former colony.

By its nature, octroduction, as a rule, is a forced rather than a voluntary measure. Emerging circumstances, and not the abstract will of the ruler, force him to grant a constitution. European sanctioned constitutions of the 19th century. were born as a result of the struggle of the popular masses led by the bourgeoisie, many modern “granted” constitutions were won as a result of the victories of national liberation revolutions.

From point of view the procedure for changing the constitution and introducing amendments to it, differentiate flexible And hard constitution.

Flexible constitutions can be amended by adopting an ordinary law. In this way, changes are achieved in the unwritten constitutions of Great Britain, Israel, New Zealand, and in certain parts of the written Constitution of India. However, in most countries, the procedure for introducing changes and amendments to the constitution differs from the usual process of lawmaking in a more complicated procedure.

From the point of view of the degree of complexity, we can roughly distinguish between rigid and particularly rigid constitutions. An amendment to a rigid constitution, as a rule, must be adopted by a qualified majority of each house or parliament as a whole (for example, 2/3 of the total votes of each house in Austria, the Netherlands; 3/5 in Greece, Spain; 3/4 in Bulgaria; 3/5 of deputies at a joint meeting of the chambers in France).

A more stringent procedure provides for several levels of approval of amendments. Thus, amendments to the Constitution of Japan are introduced at the initiative of Parliament with the consent of at least 2/3 of the total number of members of both chambers and then submitted to the approval of the people. An amendment is considered approved if a majority of those who voted are in favor of it, either by way of a special referendum or by election - in accordance with the decision of the Parliament (Article 96 of the Constitution of Japan). The procedure for approving amendments adopted by parliament in a referendum is provided for in Denmark and Egypt.

In most federal states, an amendment is considered adopted if the decision of parliament is approved by the constituent parts of the federation (3/4 of state legislatures or conventions in the USA, the majority of cantons by referendum after approval of the amendments by the people of the country as a whole - in Switzerland).

Sometimes the constitution declares certain provisions to be “eternal,” unchangeable. Such restrictions are examples of particularly harsh constitutions. Many constitutions of the new generation include provisions prohibiting the revision of certain, most important provisions. For example, in Germany the provisions of Art. 20 of the Basic Law of the Federal Republic of Germany, according to which: “1. The Federal Republic of Germany is a democratic and social federal state. 2. All state power comes from the people. It is exercised by the people through elections and voting, as well as through special bodies of legislation, executive power and justice. 3. Legislation is bound by the constitutional system, executive branch and justice – by law and right. 4. All Germans have the right to resist anyone who tries to eliminate this system, if other means cannot be used." In accordance with Article 79 of the Constitution of the Federal Republic of Germany, provisions affecting the division of the Federation into lands and the principles of cooperation of lands in the field of legislation are not subject to revision , as well as such fundamental principles as the protection of personal dignity, the inviolability and inalienability of human rights.

Other examples of particularly harsh constitutions can be given. According to the constitutions of France and Italy, the provisions on the republican form of government are not subject to revision; in Portugal, the provisions on the right to democratic opposition are not subject to revision. There are countries (Greece, Romania) where entire sections of the constitution are declared unchanged. For example, according to Art. 110 of the Greek Constitution, the norms of the Constitution that define the foundations and form of government of the state as a parliamentary republic, as well as such principles as respect and protection of individual rights, equality before the law, freedom of conscience, separation of powers, etc. cannot be changed.

Currently, there is a tendency for all more so-called “mixed” constitutions according to the order of amending constitutions: some of their articles are not subject to amendment at all, others are amended in a complicated manner, and others in a simplified manner. It is naturally more difficult to amend a rigid constitution than a flexible one, but if the text of a constitutional document remains untouched for a long time, this does not mean that the actual constitution of the country remains unchanged. The latter is transformed every time the balance of forces in the country changes, as well as other conditions of constitutional development, although such changes are not always reflected in the text of the constitutional document.

Depending on the validity period there are constitutions permanent And temporary. A permanent constitution does not pre-establish any chronological boundaries for its operation. Attribution to this group does not mean, however, that the fundamental law is in effect completely untimely. The content of the constitution can be changed in one form or another over time. In addition, there are cases when constitutions adopted and officially called permanent were soon replaced by new, more progressive or, on the contrary, reactionary ones. A temporary constitution limits its duration or defines the conditions under which it is replaced by a permanent constitution (for example, the Constitutional Declaration of the Yemen Arab Republic 1974, the temporary constitutions of the UAE 1971, Sudan 1985, Thailand 1991, South Africa 1994. and etc.). A constitution (constitutional act) of a temporary nature is usually adopted during so-called turning points or transitional periods in the history of the state. For example, in Portugal this took place after the liquidation of fascism, where Provisional Constitutional Provisions were introduced in 1974.

The limited validity of the constitution does not mean that its term is very short. The temporary condition can last quite a long time. Thus, in the UAE, the interim constitution was in force for more than a quarter of a century. The Basic Law of the Federal Republic of Germany was adopted as temporary in 1949, which actually became permanent. Constitutions with a limited duration are usually adopted without convocation constituent assembly and are not submitted to a referendum. They are proclaimed, as a rule, by the head of state (Constitution of Thailand 1991) or the new leadership of the country after another coup (Constitution of Sudan 1985). The method of adopting temporary constitutions of African states in the context of the destruction of colonial and totalitarian regimes turned out to be very specific. Here, in the conditions of tribalist regimes and fierce armed struggle of individual groups for power, temporary constitutions were adopted at national reconciliation conferences (Zaire, Ethiopia, etc.). In some countries, permanent constitutions were adopted in this way (Benin, Congo, Chad, etc.).

A number of scientists differentiate constitutions according to such criteria as conditionality of constitutional priorities. The first generation of constitutions, the priority of which was expressed in the regulation of state power and relations between power and man, primarily from the standpoint of the natural rights of the latter, are called instrumental And individualistic constitutions. Constitutions of the second and third generations, which added to the tasks of constitutional regulation the issues of socio-economic development of society, achieving an adequate standard of living of the people, social groups and every person in unity based on social justice and solidarity, are called social And collectivist constitutions .

The classification of constitutions is of scientific and practical interest according to socio-ideological characteristics. Thus, Marxist-Leninist teaching distinguishes bourgeois constitution And socialist types, as well as the constitution transitional to the bourgeois (in capitalist-oriented countries) and socialist type (in revolutionary democratic states, including in socialist-oriented countries). Until recently, this classification was considered as reflecting the realities that developed during the early and subsequent stages of development of capitalist and socialist society. It should be noted, however, that in modern states, processes of convergence of different legal systems have taken place at a qualitatively new level. Elements of the once distinct systems of capitalism and socialism are intertwined in a much more complex and deeper way. In the conditions of the collapse of the socialist systems of state and law, the socialization of the bourgeois system, domestic state scientists are trying today to avoid using the very terms “socialist” and “bourgeois” to characterize constitutions and other constitutional and legal phenomena.

From the point of view of those enshrined in the constitution state legal regimes can be distinguished constitutions of democratic, authoritarian And totalitarian states. Thus, in some monarchical states (for example, Brunei, Qatar, Saudi Arabia, Lesotho, South Africa, Zaire) constitutions are or have been in force that are still far from democratic models. It should be noted that openly totalitarian or authoritarian constitutions are extremely rare. At the same time, in the countries mentioned, the undemocratic regime is often hidden behind declarative and demagogic norms. In particular, the ideas of the caliphate permeate the Constitution (Basic Nizam) of Saudi Arabia in 1992, the Sultanate of Oman in 1996, and the UAE in 1996 (as amended in 2004).

Some scientists, based on goal setting, formulated in the fundamental law, there are constitutions programmatic And stating. All socialist constitutions that define the goals of building socialism and communism are usually called programmatic. For example, in China, its leaders set in the constitution the goal of building communism, the implementation of which, in their opinion, will require approximately 100 years. The goals of building communism are stated in the Constitution of the DPRK of 1972. Most constitutions are statement-making. They do not contain programmatic provisions for the transformation of society. The above division is arbitrary. A careful analysis of the provisions of constitutions of both types shows that a significant part of the norms of program constitutions are statement-making in nature, and statement-making fundamental laws almost always contain separate rules of a program nature (especially in the preambles).

From point of view state-territorial structure, distinguish: constitutions of supranational entities; state constitutions(federal and unitary); constitution components federations or other territorial entities, based on autonomy.

As is known, the Treaty on the Establishment of the Union State of Belarus and Russia also provides for the adoption of the Constitution (Constitutional Act) of the Union State - a supranational entity.

Constitution sovereign states(federal and unitary) - the core and main link in the chain of constitutions adopted in the world. It was on the basis of the study of constitutions of this type that the actual doctrine of the constitution as the fundamental law of the state and society arose.

In federal states, the constituent parts of the federation also have constitutions or fundamental laws with a different name, equal in status to the constitution. This type of act is also typical of state-territorial formations of a number of so-called decentralized states. Constitutions are also found in autonomies of a political nature.

Other classifications can be cited, some of which have already been discussed above, when analyzing the essence and basic properties of the constitution (fictitious and real constitutions, factual and legal, etc.).

• Some scientists, in particular M.A. Mogunova, believe that the legal acts adopted in England during the period of early bourgeois reforms were already of a constitutional nature, for example, the Instrument of Administration of 1653, the Act on Better Ensuring the Freedom of the Subject and Preventing Imprisonment for seas 1679 See: Constitutional law of foreign countries / under general ed.. M. V. Baglaya, Yu. I. Leibo, L. M. Entina. M., 2001. P. 51.
• See for example: Chirkin V. E. Modern model constitutions: previous and new priorities // Izv. universities Jurisprudence. 2003. No. 2. P. 51.