2020年5月13日

This constitution has the features of an intergovernmental agreement, which is reflected in the form of government in the UAE.

and 1949 p., acts of membership in the House of Lords 1958 p. and 1963 p., Act of Citizenship 1981, Act of People’s Representation 1983 p. (election law) and many others. The most significant feature of unwritten constitutions is that the norms of the laws that are part of them are norms of an ordinary nature. The concept of the basic law is not used in the constitutional theory and practice of the respective countries.

Unwritten constitutions cannot be considered as purely legal constitutions. The reason for this is not only the lack of a single act of higher legal force, but also the relatively limited significance of legal norms in the overall scope of constitutional regulation. Not very definite, but generally agreed normative content of unwritten constitutions contains components not only of a legal nature. They have rules, the legal nature of which raises doubts or even objections. Such norms should first of all include the norms of the so-called constitutional agreements. Therefore, unwritten constitutions are a kind of political and legal phenomena.

The very definition of the relevant constitutions as unwritten should be considered inaccurate, because in fact they consist of both written components (laws and court precedents) and unwritten ones (customs, constitutional agreements). The Constitution as the basic law in form and in essence is a systematized act. The constitutions of these countries can be defined as unsystematized, which also do not have the legal qualities of the basic law.

The second common meaning of the term "constitution" there is a de facto constitution.

The actual constitution is a real order of organization and exercise of state power, the actual relationship between the state and the individual. Legal and factual constitutions may coincide. Those provisions of the legal constitution that are consistent with existing social relations are real, those that are not consistent are fictitious. At the same time, the question of the reality or fictitiousness of a constitution, including its individual provisions, should not be equated with the question of democracy or reaction.

The science of constitutional law is not limited to the given meanings of the term "constitution"… The most interesting, among others, is the definition of the constitution as a system of restrictions on state power by proclaiming and ensuring the rights and freedoms of citizens. This definition has its origins in the general idea of constitutionalism as a government that is limited and based on the law of a fundamental nature.

The most important feature of the constitution as a basic law is the highest legal force. The concept of the basic law is associated with the concepts formulated in the XVII-XVIII centuries. Representatives of the then school of natural law called the constitution the basic law and considered it as the original act of sovereign power and as the source of any established power.

The concept of the constitution as a basic law is historically connected with the theory of social contract, formulated by the famous French educator Jean-Jacques Rousseau. He considered the basic law as a means of fixing the contract on the basis of which the state system is established. An example of such a social treaty was considered, in particular, the Constitution of France in 1791, and the parties to the treaty – the king and the body of popular representation. The contractual nature was recognized by some constitutions of the XIX century.

The concept of the constitution as a basic law is closely related to the theory of people’s sovereignty, formulated in the XVIII century. One of the foundations of this theory was the idea of constituent power, according to which only the people are the subject of such power, and it is the people, directly or through their elected representatives, have the right to decide on the conditions of their political existence. Thus, the need to adopt constitutions in a referendum or a specially elected representative body – the constituent assembly – was recognized.

Over time, the interpretation of the constituent power by representation was extended to cases of adoption of constitutions by parliaments, although sometimes attention was drawn to the difference in the content of the mandates of members of parliament and members of the constituent assembly. At the same time, supporters of the classical concept of constituent power recognize its fundamental difference from the legislature. The latter, being established by the authorities, is a derivative and operates within the competence defined by the constituent.

A special procedure for its adoption and amendment is a clear manifestation and at the same time a confirmation of the qualities of the constitution as a basic law. Historically, the first ways of adopting constitutions were the constituent assembly (constitutional assembly, convention, etc.) and the referendum. The Constituent Assembly adopted the current Constitution of the United States, the first Constitution of France, the current Constitution of Norway and some other constitutions of the XIX century. Most of the constitutional acts of France in the late eighteenth and early nineteenth centuries were put to a referendum. Often the referendum was preceded by the development and approval of constitutions by the constituent assembly.

The same methods of adopting constitutions are used today. The Constituent Assembly approved or adopted the current constitutions of Italy, India, Portugal, Bulgaria, Romania and other countries. Referendum is widely used as a way of adopting modern constitutions. In this case, it usually acts only as the final stage of constitutional lawmaking. Sometimes, as before, a referendum is preceded by the drafting and approval of a constitution by the constituent assembly (Romania).

Quite often the draft constitution is developed by a special commission, which usually includes members of parliament (Ireland, Denmark, Spain), or its development is controlled by the government (Kazakhstan, France, Turkey, Russia). In any case, the role of citizens participating in the relevant referendums is limited to the opportunity to vote "by" or "against" of the proposed project.

The history of foreign countries shows that the role of a referendum as a way of passing a basic law should not be exaggerated. Its meaning and content can be distorted and even nullified by various manipulations of the ruling circles, their active influence on the mass political consciousness. There is no direct relationship between the use of the referendum procedure and the democracy of the constitution itself. The main factor here is the distribution of political forces in society at the time of adoption of the constitution, their ability to reflect and protect their interests.

A fairly common way of adopting a constitution is to introduce it by the legislature (parliament) on the basis of a so-called qualified majority (usually 2/3 of the total number of deputies). Thus, the current constitutions of Austria, Finland, Sweden, Japan, as well as the basic laws of the vast majority of Central and Eastern Europe and those formed in the former Soviet Union were adopted.

Sometimes the parliament approves a special procedure for drafting and approving a basic law, which it itself follows. Thus the current Constitution of Greece was adopted. In some cases, parliament directly declares itself a constituent assembly and acts accordingly. This procedure was used in the adoption in the 60 years of XX century. the first constitutions in most French-speaking countries in Africa, as well as constitutions in a number of other developing countries.

Another way to adopt a constitution is to introduce it by a unilateral act of the head of state. These are the so-called chartered, or donated, constitutions. They are characteristic primarily of countries with monarchical forms of government. The draft basic law is developed under the control of the monarch himself (in parliamentary monarchies – under the control of the government) without the involvement of a representative body or electorate and is approved by him.

The constitutions of the vast majority of European states have historically been outlawed. The constitutions of Bahrain, Jordan, Kuwait, Morocco, and some other states, where the heads of state – monarchs – retain considerable power, are outlined. A specific type of constitution is the first constitution of the former British colonies, granted by the metropolis at the time of independence. These constitutions were adopted in the form of an act of the British monarch – an order in a secret council, but in essence have always been government lawmaking. Most of these constitutions have been repealed today, but they remain in countries that continue to maintain state and legal ties with their former metropolis (Bahamas, Mauritius, Jamaica, and others).

Constitutions adopted by the governing body of the ruling party or should also be recognized as outlawed "revolutionary councils" and other similar power structures that are usually formed as a result of military coups in developing countries. Sometimes the outlawed nature of such constitutions is camouflaged by various seemingly democratic forms.

There are other, more comprehensive ways of adopting constitutions. In particular, the draft of the current Basic Law of Germany was developed by a special constitutional convention, which included the prime ministers of the lands. It was then discussed in a parliamentary council formed with the participation of the occupation administrations of the United States, Great Britain and France. Members of this council were also representatives of the legislative bodies of the lands – Landtags. The final stage of constitutional creativity was the approval of the draft Basic Law by the Landtags, after which it entered into force.

The procedure for adopting the current Constitution of Australia differed significantly. Its draft was developed by the constitutional convention. Delegates to this convention were elected by 123helpme.me the population of the colonies, on the basis of which, over time, the states were formed – the subjects of the future federation. The draft constitution was put to a referendum in the colonies and later finally adopted by the British Parliament in the form of a special law. This procedure combines almost all existing ways of adopting constitutions. The Australian constitution is "folk" that is adopted using the means of direct and representative democracy. At the same time, elements of an outlawed constitution can be found here.

Another interesting example is the current Constitution of the United Arab Emirates (UAE). The procedure for its introduction was that the draft developed by politicians and lawyers was signed (and thus approved) by the rulers of all emirates. This constitution has the features of an intergovernmental agreement, which is reflected in the form of government in the UAE.

The method of adopting the constitution plays an important role in determining the basic characteristics of the political and state system of a particular country.