DOI: https://doi.org/10.34069/AI/2024.79.07.15
How to Cite:
Krusian, A., Batanova, N., Omelchenko, N., Batanov, O., & Kostetska, T. (2024). Towards a new Ukraine?: substantive and value-oriented guidelines of Ukrainian constitutionalism in the post-war period. Amazonia Investiga, 13(79), 189-202. https://doi.org/10.34069/AI/2024.79.07.15
Towards a new Ukraine?: substantive and value-oriented guidelines of Ukrainian constitutionalism in the post-war period
До нової України?: змістовно-ціннісні орієнтири українського конституціоналізму в повоєнний період
Received: April 28, 2024 Accepted: July 7, 2024
Written by:
Anzhelika Krusian
https://orcid.org/0000-0001-6437-2864
WoS Researcher ID: CYW-4069-2022
Doctor of Law Sciences, Professor, Scientific Secretary of the V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Ukraine.
Nataliia Batanova
https://orcid.org/0000-0003-1828-6708
WoS Researcher ID: KMX-2230-2024
Candidate of Law Science, Senior Researcher of Department of Interdisciplinary and Comparative Legal Studies, V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Ukraine.
Nataliia Omelchenko
https://orcid.org/0000-0003-3096-257X
WoS Researcher ID: JZU-1183-2024
Candidate of Law Sciences, Associate Professor, Senior Researcher of Department of Constitutional Law and Local Self-government of the V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Ukraine.
Oleksandr Batanov
https://orcid.org/0000-0002-0239-4539
WoS Researcher ID: ACG-5719-2022
Doctor of Law Sciences, Professor, Leading Researcher of Department of Constitutional Law and Local Self-government of the V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Ukraine.
Tetiana Kostetska
https://orcid.org/0000-0002-3841-4925
WoS Researcher ID: LEL-7754-2024
Candidate of Law Sciences, Associate Professor, Senior Researcher of Department of Constitutional Law and Local Self-government of the V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Ukraine.
Abstract
The aim of the study is to analyze the substantive and value-oriented guidelines of modern Ukrainian constitutionalism in the post-war period. The relevance of the research is driven by the need to restore and reform Ukraine's legal system in the post-war period. Rebuilding the country requires not only physical reconstruction but also a rethinking and strengthening of the constitutional foundations upon which the state is built. The research methodology includes doctrinal research, comparative analysis, and empirical research methods. The study analyzed the shift in the values of Ukrainian constitutionalism in the post-war period. Key directions for the restoration and development of Ukraine's legal system were identified, including ensuring sovereignty, protecting citizens' rights and freedoms, developing democratic institutions, economic stability, national identity, international cooperation and integration, humanitarian support for war victims, and environmental sustainability. Challenges and opportunities facing Ukrainian society in the context of post-war recovery were analyzed, and measures to strengthen the legal order and democratic values were proposed.
Keywords: constitutionalism, guarantees, legislative adaptation, substantive and value-oriented guidelines, constitutional and legal responsibility.
Анотація
Метою дослідження є аналіз змістовно-ціннісних орієнтирів сучасного українського конституціоналізму у повоєнний період. Актуальність дослідження зумовлена необхідністю відновлення та реформування правової системи України в умовах повоєнного періоду. Відбудова країни потребує не тільки фізичної реконструкції, але й переосмислення та зміцнення конституційних засад, на яких будується держава. Методологію дослідження складають такі методи: метод доктринального дослідження, порівняльний метод, метод емпіричного дослідження: метод доктринального дослідження, порівняльний метод, метод емпіричного дослідження. У результаті дослідження проаналізовано зміну цінностей українського конституціоналізму у повоєнний період. Визначено ключові напрямки відновлення і розвитку правової системи України, зокрема забезпечення суверенітету, захист прав і свобод громадян, розвиток демократичних інститутів, економічна стабільність, національна ідентичність, міжнародне співробітництво та інтеграція, гуманітарна підтримка постраждалих від війни та екологічна стійкість. Проаналізовано виклики та можливості, що постають перед українським суспільством у контексті відновлення після війни, а також запропоновано заходи для зміцнення правового порядку і демократичних цінностей.
Ключові слова: конституціоналізм, гарантії, адаптація законодавства, змістовно-ціннісні орієнтири, конституційно-правова відповідальність.
Introduction
At the core of the doctrine and practice of constitutionalism is the focus on the individual, who is the main dimension of this concept's scientific and practical paradigm. The individual serves as the primary value-oriented guideline for the further development of constitutionalism, with their rights, freedoms, and legitimate interests being the ultimate goal of this system's functioning. The essence of modern Ukrainian constitutionalism, based on the principles of democracy and the rule of law, is defined by this goal.
In the current conditions of war, the issue of changes in the practical paradigm of Ukrainian constitutionalism becomes pertinent. This situation requires scientific research to ensure the effective functioning of the constitutional system and to identify the main trends in its development during the post-war reconstruction in Ukraine. Furthermore, it is important to conduct scientific research on innovative directions for the development of Ukrainian constitutionalism in the context of European integration efforts and the global challenges of the modern world.
Given the above, it is important to investigate the substantive and value-oriented guidelines of modern Ukrainian constitutionalism in the post-war period. The research tasks are:
The object of the study is modern Ukrainian constitutionalism, encompassing constitutional norms, principles, institutions, and processes that define the legal and political order of Ukraine in the context of post-war recovery. The subject of the study is the substantive and value-oriented guidelines of Ukraine's constitutional order in the post-war period, their impact on the legal status of individuals, the organization and functioning of state power, and the interaction between state bodies and civil society institutions.
The structure of the article, including key elements in each section is the following:
Purpose and Overview:
Core Focus: The introduction establishes the centrality of the individual within the doctrine and practice of constitutionalism, emphasizing the protection of individual rights, freedoms, and legitimate interests as the primary objective of constitutional systems.
Contextual Background: It briefly introduces modern Ukrainian constitutionalism, highlighting its foundation on democratic principles and the rule of law.
Relevance: The introduction stresses the urgency of re-evaluating Ukrainian constitutionalism due to the war. This re-evaluation is crucial for ensuring the effective functioning of the constitutional system during the post-war reconstruction period and aligning with European integration efforts amidst global challenges.
Research Aim: The introduction concludes with a clear statement on the necessity to investigate the substantive and value-oriented guidelines of Ukrainian constitutionalism in the post-war context.
Research Objectives:
To identify and analyze the fundamental values enshrined in the Ukrainian Constitution that are relevant for the post-war period.
To study the impact of the war on Ukrainian constitutionalism and identify new challenges and tasks faced by Ukraine.
To examine the necessity and possible directions for constitutional changes to restore and strengthen democratic institutions in the post-war period.
Scope of the Study:
Object of the Study: Modern Ukrainian constitutionalism, including norms, principles, institutions, and processes defining Ukraine's legal and political order in the post-war recovery context.
Subject of the Study: The substantive and value-oriented guidelines of Ukraine's constitutional order in the post-war period, their impact on the legal status of individuals, the organization and functioning of state power, and the interaction between state bodies and civil society institutions.
Purpose:
Establishing the Theoretical Framework: To provide a comprehensive review of existing literature on constitutionalism, with a particular focus on its application and evolution in Ukraine.
Identifying Gaps: To highlight the lack of research specifically addressing the post-war reconstruction of constitutional systems in Ukraine and the impact of European integration efforts.
Content:
Historical Context: Review the development of constitutionalism in Ukraine, tracing its roots and evolution, especially after independence and during different political regimes.
Theoretical Perspectives: Discuss different theoretical frameworks and paradigms of constitutionalism that have been applied to Ukraine and similar contexts, such as transitional democracies and post-conflict societies.
Impact of War on Constitutional Systems: Analyze literature on the effects of war and conflict on constitutionalism, focusing on case studies or theoretical works that can provide insights into the Ukrainian context.
European Integration and Global Challenges: Review scholarly discussions on how European integration efforts and global challenges (e.g., security, human rights, democracy) intersect with national constitutional frameworks, particularly in transitional states.
Purpose:
To outline the research design, methods, and approaches used to investigate the substantive and value-oriented guidelines of Ukrainian constitutionalism in the post-war period.
Content:
Research Design: Explain the overall research approach (e.g., qualitative, quantitative, mixed-methods) adopted for the study.
Data Collection: Detail the sources of data, including constitutional documents, legal texts, government reports, and scholarly articles. Mention if any empirical data collection was conducted, such as interviews, surveys, or case studies.
Analytical Framework: Describe the methods used for data analysis, such as thematic analysis, content analysis, or comparative analysis. Explain how these methods are appropriate for addressing the research objectives.
Limitations: Acknowledge any potential limitations of the study, such as data availability, scope constraints, or methodological biases, and how these were mitigated.
Purpose:
To present the findings from the research and provide a critical analysis of how these findings address the research objectives.
Content:
Fundamental Values Post-War: Discuss the fundamental values identified in the Ukrainian Constitution that remain pertinent or have gained new relevance in the post-war context.
Impact of War on Constitutionalism: Analyze the effects of the war on Ukraine's constitutional order, highlighting shifts in values, new challenges, and emerging tasks. Discuss how these changes impact the legal status of individuals and the functioning of state power.
Constitutional Changes and Democratic Institutions: Examine the necessity for constitutional changes to restore and strengthen democratic institutions. Discuss potential directions for these changes, drawing from empirical data or comparative analysis with other post-conflict societies.
European Integration and Global Challenges: Integrate the findings with broader discussions on European integration efforts and global challenges, assessing how Ukrainian constitutionalism can adapt to these dynamics while maintaining its core principles.
Purpose:
To summarize the main findings of the study, highlight the significance of these findings for the future of Ukrainian constitutionalism, and provide recommendations for further research or policy development.
Content:
Summary of Key Findings: Recap the primary insights gained from the study, particularly regarding the substantive and value-oriented guidelines of Ukrainian constitutionalism in the post-war period.
Implications for Ukrainian Constitutionalism: Discuss the broader implications of the study’s findings for the development of constitutionalism in Ukraine, especially in terms of democratic resilience, rule of law, and individual rights.
Future Directions: Offer recommendations for future research, suggesting areas that require further investigation or monitoring, such as long-term impacts of post-war reconstruction on constitutional practices or the integration of European norms into the Ukrainian constitutional framework.
Policy Recommendations: Provide practical recommendations for policymakers on how to strengthen democratic institutions and uphold constitutional values in the post-war and European integration contexts.
By structuring the article in this manner, the reader is guided through a logical progression from understanding the background and context of the study to exploring the methodology, analyzing the findings, and reflecting on the implications and future directions. This structure ensures clarity and coherence, making it easier for the reader to follow the arguments and understand the significance of the research.
Theoretical Framework or Literature Review
Venislavsky's (2014) research examined constitutional values as the foundation for consolidating the Ukrainian people. Venislavsky considers the fundamental values of the constitutional order to be those political, legal, and moral ideals that the people, as the sole source of power, strive to achieve in the process of state-building and constitutional construction in Ukraine, which are reflected in the Preamble of the Constitution of Ukraine and the norm-principles that form the basis of the constitutional order. We agree with the researcher's position and believe that constitutional norms should enshrine the ideals agreed upon by society.
Kolodiy (2023) investigated the modernization of the Constitution of Ukraine in the context of post-war recovery. The author's conclusion deserves attention: is there really a need to modernize the Constitution of Ukraine? Is it a nationwide idea that is objectively necessary and supported by the majority of the country's citizens? Is Ukrainian society ready to actively work on a new draft Constitution, participate in its discussion, and implement the changes it will entail? Answers to these questions should form the basis for deciding on the method of modernizing the Constitution of Ukraine.
Krusyan's (2023) research analyzed Ukrainian constitutionalism in wartime conditions. It was noted that recent scientific research shows the development of such aspects of constitutionalism as the study of the problems of the globalization of constitutional law, which includes the analysis of the current aspects of this phenomenon; the doctrinal conceptualization of various models of constitutionalism, such as American, British, and European; the determination of the presence of transnational (global) constitutionalism; the development of various types of constitutionalism that correspond to the relevant areas of modern society development, including informational, economic, and ecological constitutionalism. We agree with the author that these areas of constitutionalism research are important for the development of Ukrainian constitutional and legal science and modern constitutionalism. It is important to note that some of these areas are the subject of academic discussions and may cause controversies, which contributes to further scientific explorations and doctrinal discussions.
Sofinska & Friedberg (2023) conducted an analysis of constitutional changes. Shcherbakova (2013) examined the values of united Europe. It was noted that Europeans are united by a historically formed worldview that includes the traditions of developing democracy as the best form of government. They also face the consequences of economic integration and political challenges, particularly the current risks of eastward expansion. The most important issues for Europe now are three main problems: the division of the EU into different levels of development, the functional imperatives of increasing integration, and the cumulative consequences of political decisions made. The EU's economic integration, which began under the banner of economic unification, also affects socio-cultural and political aspects. The European Union, being a successful project due to the institutionalization of political, economic, and social fields, could not have achieved such a level of success without broad tolerance for different cultures and peoples. The formation of European identity and consciousness occurs mainly in a supranational socio-political space through elite influence and administrative decisions that facilitate the movement of goods and capital in a common economic and monetary space. The EU has problems not only in the political sphere but also in that the economy remains the dominant aspect of European integration. The Union also faces difficulties in dividing into avant-garde states and those that are moving more slowly. Discussions about a "two-speed Europe" have been ongoing for a long time, as economic unity has led to political differences. Europe's experience in abandoning the colonial system and world hegemony has given Europeans confidence in the ability to solve problems and organize their lives. This experience, along with the history of fighting authoritarian regimes and building civil society, unites European peoples in confidence in the effectiveness of democratic processes. The success of Europe's political unification is extremely important and can serve as an example for other regions of the world. In Asia, Latin America, Africa, and the Arab world, approaches and methods of political unification are just beginning to take shape, while Europe demonstrates the success of such an approach. Thus, the formation of European consciousness and identity is a process that cannot occur solely through administrative decisions but requires deep integration at all levels of social life.
Herman's (1972) article demonstrates how the concepts of constitutionalism changed and adapted during the Second World War and the Cold War. This process included adaptation to new geopolitical conditions, particularly in the context of the formation of the UN and the spread of the influence of the USA and the USSR. The author examines how global conflicts caused changes in approaches to constitutional norms and values, for example, the necessity of defining rights and freedoms under conditions of international peace and security. The author emphasizes that the internationalization of constitutionalism became an important factor in strengthening human rights and democracy in various countries of the world after the Second World War.
Downing (1988) researched how military crises and wars influenced the development of constitutionalism in Europe, particularly through the necessity of regulating power during and after military actions. The author analyzes how cultural and ideological changes caused by wars influenced the understanding of constitutional principles and norms in early modern times. This includes changes in the perception of human rights, the responsibilities of power, and social contracts. Thus, the article provides an important link between military conflicts and the development of constitutionalism in early modern Europe, highlighting their impact on political institutions and cultural ideas of that time.
Kotova and Tzouvala (2022) believe that in the context of increasing geopolitical competition, the future international legal order must be anti-imperialist; otherwise, it might not exist at all.
Müllerson's (2017) work reflects the importance of ideological disputes in the modern world and their impact on international relations, offering a deep analysis of the geopolitical and cultural aspects of such conflicts.
Zarbiyev (2022) focused on the imperfection of the values of international law. Zarbiyev highlights the need for improving international law, especially considering the risks of using false or manipulative arguments to justify the actions of states and other actors in international relations. The article proposes a conceptual approach to defining and understanding which justifications can be considered "false" or "demonstrably unacceptable" in international law. Zarbiyev's conclusions question the ethics and legitimacy of some approaches to international law, drawing attention to the necessity of open dialogue and critical review of the practice of using legal arguments. Thus, Farid Zarbiyev's article provides important considerations regarding the ethical and legal aspects of using justifications in international law, calling for greater responsibility and adherence to the principles of justice and the rule of law in international relations.
The article by dos Reis, & Grzybowski, (2021) examines contemporary trends in the interaction of international law and politics, indicating ambiguity and frequent cases of overlap between these spheres. The authors put forward ideas on the need for new approaches to regulating the relationship between international law and politics in the context of the modern globalized world.
Batanov O., Batanova N., Verlos, Omelchenko, and Lukashenko (2022) noted that constitutional and legal responsibility has legal characteristics that reveal its essence and content, as well as define its purpose in society and the state. It occupies a special place in the system of protection of the Constitution and the constitutional order, acting in synergistic unity with all mechanisms for protecting fundamental constitutional values. Proper understanding of the essential and functional-teleological characteristics of constitutional and legal responsibility as a tool for protecting constitutional values determines its functionality and effectiveness. This is the relationship between the results of its influence on constitutional and legal relations and the goal set before it. Effective application of sanctions of constitutional and legal responsibility shapes political practice.
Lauterpacht (2011) examined the functions of law in the international community. Chaban and Vernygora (2010) in their work "Ukraine's Constitutional 'SAGA': Ukrainian Media Reflection of the Constitutional Process" noted that critical study of the images created by authoritative national media sources is an important perspective for inclusion in legal historiography, especially when assessing discursive interpretations (or misinterpretations) of historical arguments.
Modern Ukrainian constitutionalism in the post-war period relies on a number of substantive and value-based orientations that determine its directions and development. The main trends in the development of Ukrainian constitutionalism in the context of integration into the European Union and ensuring a balance of international interests include the following.
Legislative framework and constitutional enshrinement of human rights and freedoms - researchers pay attention to analyzing the legislative enshrinement of constitutionalism values in the post-war period.
Institutional reform and legal control - attention is given to the changes in social relations during the war and the need to consolidate these changes at the constitutional level of Ukraine.
European integration and international obligations.
Civil society and public participation - the role of civil society during the war and the need to consolidate changes at the legislative level are noted.
Methodology
The study of the substantive and value-oriented guidelines of modern Ukrainian constitutionalism in the post-war period employed several methods, including doctrinal research, comparative analysis, and empirical research.
The study of the substantive and value-oriented guidelines of modern Ukrainian constitutionalism in the post-war period employed several methods, including doctrinal research, comparative analysis, and empirical research.
Data Collection
The study employed a multifaceted empirical approach to gather comprehensive data on Ukraine's legal system, socio-political institutions, and economic mechanisms in the context of post-war recovery. The primary data collection techniques included:
Examination of Legal Acts: An in-depth review of existing legal documents was conducted, including the Ukrainian Constitution, laws, subordinate acts, and international treaties. This examination focused on the regulations governing state institutions, citizens' rights and freedoms, and economic and social relations.
Legislative Comparison: Ukrainian laws were compared with international standards, especially those set by the European Union and other relevant international organizations. This comparison aimed to assess the alignment of Ukrainian legislation with global norms and identify areas needing reform or adjustment.
Direct Observation: The study involved direct observation of processes within the legal system and state institutions, as well as the socio-political phenomena occurring during the post-war period. This observational method provided real-time insights into the functioning and dynamics of these entities.
Data Analysis
The data analysis was conducted using several complementary methods to provide a nuanced understanding of Ukrainian constitutionalism in the post-war context:
Empirical Analysis:
Descriptive Analysis: The collected data was analyzed to provide a detailed description of the current state of Ukraine’s constitutional system, legal frameworks, and socio-political processes. This analysis helped in identifying key issues, challenges, and areas of concern within the Ukrainian context.
Effectiveness Evaluation: The effectiveness of current reforms and policies was assessed based on empirical data and expert evaluations. This evaluation provided a basis for formulating recommendations aimed at improving the functionality and transparency of state institutions and enhancing public engagement in governance processes.
Doctrinal Research:
Legal Norms and Theories Analysis: A thorough analysis of the legal norms, theories, and principles underlying Ukraine’s constitutional system was conducted. This included studying the Constitution, legislative amendments, and international legal obligations to understand their impact on the country's legal landscape.
Comparative Legal Analysis: Ukrainian constitutional law was compared with legal systems in other countries, particularly those with similar historical backgrounds or undergoing comparable socio-economic transformations. This analysis identified effective constitutional solutions and legal mechanisms that could be adapted to the Ukrainian context.
Theoretical Framework Development: The doctrinal research also involved developing theoretical models to explain the essence and purpose of constitutional norms in Ukraine, their role within the broader legal system, and their impact on societal structures.
Comparative Method:
Cross-Country Comparison: A comparative analysis was conducted by examining constitutional reforms and legal mechanisms from other countries that have experienced similar post-conflict recovery phases. This analysis aimed to discover effective legal practices and approaches that could be tailored to the Ukrainian context to foster stable and sustainable development of constitutional law.
Identification of Gaps and Best Practices: Through comparative analysis, the study highlighted weaknesses in the national legal system and identified best practices that could be adapted from other jurisdictions. This method facilitated the development of actionable recommendations for enhancing legal practices and bolstering the institutional capacity of Ukrainian state bodies.
By integrating these methodologies, the study offered a comprehensive examination of the substantive and value-oriented guidelines shaping modern Ukrainian constitutionalism. The findings provided a detailed understanding of the challenges and opportunities for legal and institutional development in Ukraine during the post-war recovery period, as well as recommendations for future reforms and policy directions.
Results and Discussion
Constitutionalism is a complex and multifaceted concept that integrates various elements of legal, political, and moral nature. The substantive-value guidelines of constitutionalism include the following main aspects: the rule of law, the separation of powers between the legislative, executive, and judicial branches to prevent the usurpation of power, the protection of fundamental human and citizen rights and freedoms, democracy, the recognition of law as the primary regulator of social relations, ensuring equal opportunities for all citizens, respect for the dignity and value of every person, and constitutional control. These guidelines not only determine the structure and functioning of state power but also form the value foundation of social life, contributing to the development of a democratic society where the rights and freedoms of every citizen are protected and respected.
Krusyan (2024) notes that constitutionalism is a public-legal system of constitutional organization of modern society based on law, democracy, and the affirmation of constitutional-legal human freedom, the content of which includes the constitution and constitutional legislation, constitutional legal relations, constitutional legal consciousness, and constitutional legal order. The functioning of this system is aimed at limiting (self-limiting) public power in favor of civil society, human rights, and freedoms.
The peculiarity of the core values of the constitutional order is that they are formed in the consciousness of society throughout the entire period of national statehood development. They are partially reflected or directly enshrined in various political and legal acts adopted at different stages of state development, and they enter the official text of the current Constitution of Ukraine in their mostly formulated and finalized form. Their formation is significantly influenced by the national-historical traditions and customs of the Ukrainian people. Values are a kind of cultural "code" that ensures the process of cultural identification of the individual, society, and nation, as well as the development of the national consciousness of the entire people.
The protection of the rights and interests of individuals and citizens in Ukraine is based on constitutional norms, current legislation, and international agreements ratified by the Verkhovna Rada. However, the dynamics of international law development are higher than the speed of adaptation of Ukrainian legislation to European norms and standards, which determine progressive changes in the international legal system. A positive aspect is that the strategy of state-legal reform in Ukraine, particularly in accordance with constitutional requirements, is aimed at approaching the European Union.
For example, the Association Agreement between Ukraine and the European Union defines democracy, respect for human rights, and the rule of law as key aspects on which common values are based (Verkhovna Rada of Ukraine, 2014). This Agreement contains provisions requiring unwavering respect for democratic principles and human rights, which correspond to international standards such as the Helsinki Final Act (Organization for Security and Cooperation in Europe, 1975), the Paris Charter (Organization for Security and Cooperation in Europe, 1990), the UN Universal Declaration of Human Rights (United Nations, 1948), and the Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1950).
The Association Agreement between Ukraine, on one side, and the European Union, the European Atomic Energy Community, and their Member States, on the other side, dated 27.06.2014, plays an important role today in strengthening the legal protection of democratic values, human and citizen rights in Ukraine. It is a significant step towards building constitutionalism in Ukraine, strengthening the place of the Constitution in the national legal space.
The Ukrainian Constitution contains clear commitments to protect human rights and freedoms and ensure decent living conditions. According to Article 3 of the Basic Law, the individual, their life and health, honor and dignity, inviolability, and security are the highest social values in Ukraine. Human rights and freedoms are recognized as inalienable and inviolable, and their protection is carried out by the court and through the activities of other state authorities. An important principle of constitutionalism is the impossibility of amending the Constitution of Ukraine if such amendments involve the abolition or restriction of human and citizen rights and freedoms. These principles determine the nature of constitutional law in Ukraine and reflect the importance of the Basic Law as the foundation of the social contract in the country (Law 254к/96-VR, 1996).
Venislavskyi (2014) proposes to conditionally divide all the basic values of the constitutional order enshrined in the text of the Constitution of Ukraine into two large groups:
Key historical, political, legal, moral, and ideological ideas contained in the preamble. This group briefly defines the general goals for which the Constitution is adopted: ensuring human rights and freedoms, decent living conditions, strengthening civic harmony, developing a democratic, social, legal state. These values occupy a leading place in the hierarchy of social values and are considered universal and civilization-wide. They include the following basic constitutional values: awareness of responsibility before God, one's conscience, past, present, and future generations; care for strengthening civic harmony in Ukraine; the ideas of democracy (the Constitution is adopted on behalf of the people as an expression of its sovereign will with a desire to develop and strengthen a democratic state); state and historical values (consideration of the centuries-old history of Ukrainian state-building and the right to self-determination exercised by the Ukrainian nation, the entire Ukrainian people; development and strengthening of the rule of law). These fundamental political-legal ideas permeate the entire content of the Constitution, influencing all its provisions.
Political-legal values and ideas formally embodied in specific constitutional principles, mainly enshrined in Section I of the Basic Law of Ukraine. These principles are fundamental, as most of them define the essence of the constitutional order of Ukraine and its foundations. It is according to the constitutional principles that the normative regulation of practically all social relations is carried out. They are a concentrated expression of the most important essential features and values of modern constitutionalism, which in their entirety and interconnection reflect the peculiarities of domestic state-building and the main ideas of Ukrainian society. The basic values of the constitutional order, through which the social ideal is manifested and which are extremely important for society and the state, include: social freedom in a broad sense, legal limitation of public power, priority of the individual, their rights and freedoms, state sovereignty, republican form of government, social orientation of state activity, state responsibility to the individual, ideological, political, economic pluralism, guaranteeing local self-government, interethnic harmony, etc. (Venislavskyi, 2014).
Ensuring the constitutional rights of citizens in Ukraine, particularly the category of "human and citizen rights," becomes an extremely complex task in conditions of military conflict. This issue is very complex and debated. On the one hand, the threat to these rights is primarily posed by the actions of the aggressor country, which are effectively war crimes. On the other hand, due to "security and defense issues," the state often limits some citizen rights without sufficient legal balance between the necessity of restrictions and their legal consequences. Currently, Ukraine has not yet achieved effective assurance of such a balance, while society lacks unity in resolving this issue and experiences additional pressure from the state, which is often perceived as unfounded and unjust.
The state must compensate for this excessive pressure by means that maintain unity and support from citizens; however, the chosen path often does not ensure this. The introduction of curfews, movement restrictions, and document checks, although justified by national security needs, are often ineffective and lack proper legal formalization, control, or connection with the declared purpose of the measures (Kolodiy, 2023).
We believe that in the context of defining current problems in the functioning of Ukrainian constitutionalism during the war, it is necessary to focus on the constitutional-legal status of the individual and citizen. The conditions of martial law lead to certain peculiarities in this context, as the normative-legal environment regulating social relations in such conditions changes due to the adoption of extraordinary and other special normative-legal acts. In particular, temporary restrictions on rights and freedoms are established, according to Article 64 of the Constitution of Ukraine. Such conditions highlight the need for special measures to ensure and protect human and citizen rights in wartime. It is important that restrictions on constitutional rights and freedoms are lawful, pursue a legitimate aim, and do not violate the essence of these rights (Law 254к/96-VR, 1996).
Under martial law, significant transformations have occurred in the system of organization and functioning of public authorities at the local level. These changes are reflected in the creation of military administrations, the alteration of local government powers, and new forms of interaction with state authorities, particularly with military administrations. Public authorities have adapted their functional focus in accordance with the requirements of the legal regime of martial law, which entails granting necessary powers to ensure national security and defense. This has led to increased coordination and interaction between local governments and military structures, as well as the necessity for clear delineation of their powers.
When analyzing the functioning of public authorities during wartime, it is important to consider that democratic institutions, though limited by the conditions of martial law, continue to function. Concurrently, issues related to the roles of the President and Parliament require attention and correction after the war. Changes in the organization and functioning of state power in the context of martial law are justified but should be minimized after the war to ensure the goals of constitutionalism, which involves limiting power in the interests of the rights and freedoms of citizens and civil society.
Under martial law, Ukraine's constitutional legislation, which forms the basis of modern constitutionalism, undergoes significant changes, even though the Constitution itself remains unchanged. These changes reflect the state’s priorities during wartime, such as defense, national security, law enforcement, human rights protection, the economy, and foreign policy. Notably, the war stimulates the adoption of special legislation aimed at supporting the national defense effort, which requires further improvement.
In the context of the further development of Ukrainian constitutionalism, the continuation of European integration processes is also relevant, gaining particular significance during the war. Despite the conflict, Ukraine has not only maintained but accelerated its path toward European integration. These steps are crucial for affirming constitutional principles, protecting citizens' rights and freedoms during and after the war, and promoting the development of constitutionalism in Ukraine. In February 2023, Ukraine received an important document from the European Commission called the "Analytical Report Supplementing the Commission's Opinion on Ukraine's Application for EU Membership." This document audits Ukraine's alignment with European law and outlines a plan for future accession negotiations, consisting of nine main steps, known as the "Main steps EU accession" (Commission staff working document, 2023).
According to the European Commission's analysis, Ukrainian legislation in certain areas is already quite close to European law, such as energy, the customs union, external relations, and foreign, security, and defense policy. In other areas, such as the free movement of goods, media, food safety, economic policy, science and research, Ukraine shows a medium level of preparation. There are also areas where the alignment with European norms has only begun, such as the freedom to provide services, freedom of movement of capital, public procurement, antitrust policy, corporate law, financial services, justice, freedom and security, education and culture, consumer protection, and healthcare, where Ukraine has demonstrated an inconsistent level of integration.
To meet the requirements of the European community, Ukraine must adapt its legislation to European law across all thirty-three "negotiation chapters." This requires not only mechanical adaptation but also real practical integration of EU law into Ukraine's political and legal system, particularly in the areas of human rights and other European values. Therefore, for the further development of Ukrainian constitutionalism, it is important to focus on European integration processes, which demand significant efforts to adapt legislation to European standards and principles, as well as its actual implementation in Ukraine's constitutional and legal practice.
Another aspect influencing the directions of modern Ukrainian constitutionalism is the role of civil society. The war has changed not only the practical activities of civil society but also the theoretical understanding of its role. The current realities of martial law have led to new emphases in doctrinal characterization, making it more patriotically oriented, initiative-driven, and active. Significant changes have also occurred in the functional role of civil society, particularly in strengthening interaction with government structures to overcome the consequences of aggression and enhance the country's defense capabilities (Krusyan, 2023).
In this context, Batanova (2018, 2020) aptly notes the role of constitutional and legal responsibility in ensuring the substantive and value orientations of constitutionalism. Constitutional and legal responsibility is aimed at ensuring the stability of the constitutional order and the balance of rights and duties of participants in constitutional legal relations. This involves the possibility of the state applying coercive measures in the event of a constitutional delict, which means a negative assessment of unlawful behavior, disciplines the subjects of constitutional legal relations, prompting them to properly fulfill their constitutional duties, and also performs a preventive function. Therefore, constitutional control and constitutional legal responsibility in their synergistic unity become important means of ensuring constitutional legality and law and order. Identifying the relationship between control and responsibility helps to understand the special content of control as a guarantee of constitutional norms. Constitutional control is a specific institution for ensuring the principle of constitutional supremacy. It acts as a specialized mechanism, a system for ensuring the constitution as a normative legal act of the highest legal force, and is a type of control function. Thus, constitutional control is the activity of state bodies to implement the principle of constitutional supremacy and maintain the regime of constitutional legality through specific methods. Its general goal is to ensure the stability of the constitutional order, the normal functioning of society, a dignified life and free development of individuals, the formation of civil society, and the rule of law. Despite the specific goals of each constitutional law institution (constitutional order and its principles, human rights, territorial organization, the organization and activities of state power, local self-government, etc.), the ultimate goal remains unified, as it is what constitutional law aspires to as a whole.
The war has also revealed substantial problems that require comprehensive solutions, such as collaborationism and violations in volunteer activities. Ukrainian civil society has become a reliable support for the state in many social challenges, including post-war reconstruction and European integration. Therefore, highlighting the role of civil society in affirming and further developing Ukrainian statehood, as well as in the post-war reconstruction of the country, is critically important in the context of current challenges.
Discussing the issue of human rights restrictions during the war, especially considering the necessity to adhere to international principles and standards of international humanitarian law, it is important to pay attention to the issue of ensuring and protecting human rights in the temporarily occupied territories of Ukraine. Currently, on these territories, fundamental human rights and freedoms are massively violated, such as the right to life, liberty and personal security; the right to humane treatment and the prohibition of torture, cruel and inhumane treatment; the right to a fair trial and protection from arbitrary arrest; the right to freedom of movement; the right to citizenship; the right to property; the right to freedom of thought and expression; the right to social protection, etc.
Undoubtedly, the state may declare its inability to protect basic human rights in uncontrolled territories. However, this approach does not solve the problem of maintaining sovereignty, territorial integrity, and human rights protection. Moreover, it is unacceptable in the context of modern Ukrainian constitutionalism.
Regarding the issue of modernizing the Constitution of Ukraine in the context of post-war recovery, we believe this step is possible as a future stage of the country's development. Firstly, post-war recovery will take place in the future; secondly, it is extremely difficult to predict what it will be like; thirdly, it is unknown what political, economic, social, spiritual, legal, and other factors will influence this process and what concepts, strategies, and plans will accompany it.
However, it can be confidently stated that the issue of modernizing the Constitution of Ukraine will be relevant in the process of post-war recovery. Although it may not become a priority or urgent, it will undoubtedly become foundational for the modernization of Ukraine's legal system. Given this, it is possible to consider prospective directions for its implementation in the context of new value orientations.
Conclusion
As a result of the conducted research on the substantive and value orientations of modern Ukrainian constitutionalism, the following conclusions were drawn:
For further scientific research, it is deemed necessary to explore the experiences of other countries that have undergone military conflicts and successfully restored their constitutional order, as well as to analyze mechanisms for overcoming constitutional crises and ensuring stability of the legal system in post-conflict conditions.
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