Konstitucinis paprotys konstitucijos interpretavimo procese.
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In this article the author analyzes the first written constitutions adopted at the end of the eighteenth century (the Constitution of the United States of 1787, the Constitution of Polish – Lithuanian State and the Constitution of France of 1791). These constitutional acts mark the beginning of the era of constitutionalism. These are the constitutions of the first phase (‘wave’) of constitutional development, which laid the foundations for the further establishment of constitutionalism in the world. The history of the first modern constitutions confirms that the nations adopt constitutions in order to protect individuals from possible abuses of state power. The essence of constitutional regulation is the restriction of this power. The three countries differ in many ways, but all had certain tradition of the restriction of powers. The first modern constitutions established the separation of powers and protected classical individual rights. They have become an example for the authors of later constitutions. These constitutions propose legal standards for constitutional development. Each of these constitutions is an original system of principles and norms. Unwritten constitutional conventions also known as lex non scripta, are under permanent scholarly scrutiny. This does not happen only in the Anglo-Saxon scholarly tradition. When analyzing the issues of unwritten law, a considerable number of representatives of this tradition, starting with W. Blackstone and finishing with contemporary British and American scholars, also talk about the existence of constitutional conventions. It should also be noted that issues pertaining to unwritten law and issues of conventions in particular, are often mentioned and analyzed in the works of scholars of the Roman-Germanic legal tradition. Italian, French, German and Czech scholars take account of constitutional conventions, analyze their features and hold discourse on their future. However, in the course of scholarly debate, the issues of constitutional conventions have been dealt with in a fairly controversial manner. Even though individual scholars recognize constitutional conventions, the variety of opinions and conceptions is too large to form a uniform understanding. The development of constitutional conventions in society is a complex process which takes place among the subjects of constitutional legal relations in the form of continuous dialogue. Scholarly doctrine uses such terms as constitutional customs (the scholarly doctrine of continental Europe) and constitutional conventions (Anglo-Saxon scholarly doctrine). The term convention is extremely informative, as it reveals the principle used to form constitutional conventions i.e. it emphasizes the importance of agreement. The conventional character of customs means that rather than being a unilateral decision, the behavior by the relevant parties originated on the grounds of an agreement. Behavior patterns of non-conventional character can not be sustainable because of their nature. The legal power of the Constitution ensures that the lex scripta and all other non-legal norms are unable to distort or in any other way ignore constitutional regulation. Thus while recognizing that constitutional conventions may exist, we must also recognize that they do not have a supreme regulatory function. One should resort to unwritten law to determine the modus operandi of the subjects of constitutional legal relations only when a particular question of constitutional legal regulation is left unresolved by following the explicit wording (expressis verbis) of the Constitution or the contents of official constitutional doctrine. In the case of competing legal norms, the choices made by the subjects in question should be determined by the Constitution and laws rather than unwritten law (including constitutional conventions). Conventions i.e. agreements between relevant parties may only be possible provided they are in line with the Constitution and legal acts of lower legal power. Practice, recurrent on the grounds of agreements, is a prerequisite for the creation of constitutional conventions.
- Straipsniai / Articles