АРГУМЕНТАЦІЯ В КОНСТИТУЦІЙНОМУ СУДОЧИНСТВІ

ЗАСАДИ ТА ПРОБЛЕМИ РЕАЛІЗАЦІЇ В УКРАЇНІ

Abstract

Melenko O., Stratiy O. Argumentation in constitutional judiciary: principles and problems of implementation in Ukraine. In the article modern doctrines of constitutionalism in terms of the place and role of the institute
of argumentation in constitutional constitutional doctrine. Analysis of Ukrainian legislation and modern
doctrines of constitutionalism in the field of argumentation, revealed many problems of organizational,
instrumental and institutional nature, which directly affect the effectiveness of the institution of argumentation in the constitutional acts of Ukraine. processes are being analyzed. In particular, the views of the representatives of the descriptive doctrine of constitutionalism emphasize the importance of using
such an argument as public opinion in the processes of constitutional justice. This argument can minimize
the negative impact of the political factor on the decision-making process of official interpreters of the
constitution (courts). Proponents of the normative doctrine of constitutionalism hold the opposite
view, because public opinion due to many factors (low legal culture, opportunism of the media and various
sociological institutions, etc.), is not able to fully reflect the interests of society as a whole. Members of
normative doctrine see the change in the content of the constitution itself as the main way to bring
constitutional norms to the needs of society. The role of the official interpreters of the constitution in this case is limited to strictly following the “letter of the law”. The article presents a system of arguments used in the process of constitutional justice of Ukraine, from which it is concluded that such an argument as public opinion, preached by adherents of the descriptive doctrine of constitutionalism, is not used. The article proposes the author’s interpretation of the term “constitutional argument”, which means the statement of the participants in the constitutional proceedings (parties and court), expressed in legal language in the form of judgment or inference, in order to confirm / refute therange of problems / disputes.
At the same time, the judgmentson which the statements of the participants in the constitutional
proceedings are based are legal facts and constitutional values, and the conclusions are judgments
supported by legislative norms.