Пошук загального у праві як змістовної подібності національних правопорядків (друга половина XVIII – перша третина ХІХ ст.)

The current constitutionalism transformation significantly influence the dynamics of implementing international humanitarian law (IHL) norms into national legal systems. In the context of globalization, the erosion of traditional notions of state sovereignty, and increasing interactions between international and domestic law, new forms of adaptation of humanitarian norms are observed. The transformation of constitutional frameworks generates both additional guarantees for the adherence to IHL and risks of weakening its provisions during periods of constitutional reforms or political instability. The subject of this research is the processes of interaction between international humanitarian law norms and the transforming constitutional systems of contemporary states. Constitutionalism, traditionally viewed as an expression of state stability and legal order, is currently undergoing substantial transformations influenced by both internal and external factors. These changes affect not only the structure and functions of state institutions but also the mechanisms of perceiving and implementing international obligations, including in the field of international humanitarian law (IHL). The impact of the transformation of constitutionalism on the processes of implementing IHL norms becomes particularly significant in the face of growing challenges associated with globalization, regionalization, and the changing nature of modern armed conflicts. The methodological foundation of the research comprises systemic, comparative-legal, and historical-legal approaches, allowing for a comprehensive examination of constitutionalism evolution in the context of the development of international humanitarian law. The novelty of the research lies in identifying stable patterns of transformation of constitutional mechanisms for the implementation of international humanitarian law across various legal systems. It is shown that changes in the constitutional structure of states can both facilitate and hinder the effective fulfillment of humanitarian obligations. The research findings emphasize the need for the establishment of stable constitutional guarantees for the protection of IHL norms. The significance of constitutional justice in maintaining international humanitarian standards during reforms is underscored. During this research, a deep analysis of the transformation of national constitutional systems in the context of implementing international humanitarian law (IHL) norms was conducted, identifying key regularities and factors determining the effectiveness of these processes across different legal systems. Based on the conducted analysis, it was concluded that constitutional law, in its current form, is insufficiently effective in addressing the issue of implementing IHL norms.

Lex Rei Sitae in Perspective: National Developments of a Common Rule?

The focus is on the legal awareness of legal scholars and legal practitioners. However, before we begin to consider the features of these types of legal consciousness, we need to clarify the concept of legal awareness, which is the cornerstone of our study. Note that the study of this concept has a long history, dating back to antiquity. Philosophers, and later scientists, tried to define the phenomenon of legal consciousness. It is the long historical process of forming ideas about legal consciousness that has led to the existence of many different definitions of this category. First of all, it is necessary to pay attention to the importance of this type of legal awareness, because legal doctrine plays a key role in the process of lawmaking and law enforcement. A striking example is the legislator’s appeal in the process of rule-making to the basic dogmas of law and morality, to the ideas of natural law, and in the event of conflicts – to various scientifically sound ways to solve them. In addition, in Ukraine it should become a rule for deputies to seek advice from the country’s leading scientists to ensure the effectiveness of rule-making. However, deputies usually do this infrequently or do not take into account the opinions of reputable scholars, which has a negative impact on the state of Ukrainian legislation. In order to understand the value of a scientist’s opinion, it is necessary to find out the features of scientific legal consciousness. Scientific legal consciousness is a set of ideas, concepts, views that reflect a systematic, theoretical knowledge of law. The legal consciousness of a scientist, in contrast to the everyday legal consciousness of a citizen, is formed through a deep and thorough study of socio-legal reality. Legal awareness of legal scholars is formed on the basis of purposeful research using special methods of cognition, which provide for the establishment of truth as a result of systematization, generalization of the obtained reliable facts relating to legal reality. The complexity of doctrinal legal consciousness is due to its versatility, because this type of legal consciousness is characterized by a synthesis of elements of political, moral, religious and economic consciousness. It is also important to remember that doctrine is recognized as a source of law and therefore creates a legal relationship. Therefore, scholars face an important and responsible task - to form a high-quality, meaningful and effective doctrine that will be an important source of law and which will prevent the formalization of law and its «death». Attention is paid to the complexity of lawyers. In particular, it is the presence of high requirements for his business and moral qualities. Knowledge of social norms, stable immunity to legal nihilism and immorality, upbringing, excluding motives of personal impartiality, subjectivism, abuse of power or official position, a morally stable person – these are the main qualities of the character of lawyers. The main means of forming legal awareness of lawyers include legal education and legal education. After all, these tools are the primary (basic) elements of the mechanism of formation of legal awareness in future professionals in the field of law, whose action is aimed at developing legal competence, which provides an integrated ability to fully implement in practice knowledge, methods, experience of lawful behavior, legal values models of legal behavior. Of course, neither legal education nor legal education covers the whole complex of formation of individual legal consciousness of a lawyer, but they are determining factors in this process. The main functions of this type of legal consciousness are studied. These include: cognitive, aimed at obtaining legal knowledge, information about current legislation and the specifics of its application in practice, evaluation, which is implemented through the assessment legally significant events, phenomena, circumstances and documents, as well as comparing them with accepted values and norms in society; regulatory, allows you to form a mechanism for regulating behavior or action, taking into account the legal framework. The correlation of these types of legal consciousness is determined, firstly, doctrinal legal consciousness has a constructive character, as opposed to professional legal consciousness, which is normative. It is important that in each of the types the dominant property is not combined with similar properties characteristic of other types of legal consciousness. Secondly, the main element of doctrinal legal consciousness is the conceptual idea, and professional legal consciousness is the norm. Third, the understanding of law, regardless of its type, is inherent only in doctrinal legal consciousness. In turn, professional legal awareness is characterized by legal knowledge. Fourth, the compared types of legal consciousness differ in the dominant mechanisms of action: in doctrinal legal consciousness the mechanism of faith dominates, in professional legal consciousness – the mechanism of ideology. It should be noted that only in the close interaction of legal awareness of legal scholars and legal practitioners is it possible to achieve the development and improvement of our legal system. Scholars fill law with meaning, forming legal ideology, and lawyers in practice implement the dogmas of law and in the process of professional activity identify new issues to be studied and solved by scientists, creating an effective mechanism that improves with the emergence of new types and areas of public relations. Keywords: legal awareness, professions on legal awareness of a lawyer, society.

European Science Foundation: Standing Committee for the Social Sciences SCSS) Standing Committee for the Humanities (SCH)

En este trabajo se abordan los aspectos históricos de la introducción de la extensión de efectos de sentencias firmes en el ordenamiento jurídico nacional y el impacto que esta figura ha tenido en el ámbito contencioso-administrativo desde una perspectiva procesal. Igualmente, se exponen sus fundamentos tanto sustantivos como formales, acercando esta herramienta (que es bastante desconocida) a los operadores jurídicos. Cuestiones como el derecho a la tutela judicial efectiva, la ejecución de sentencias o la extensión de la cosa juzgada son sometidas a revisión cuando entra en juego un instrumento de estas características. Pero, ¿realmente es tanta su eficacia como para justificar su difícil encaje en el ordenamiento? De ahí radica la importancia de conocer su historia y de establecer su fundamentación.Recibido: 23.07.2019Aceptado: 16.12.2019Publicación en línea: 31.12.2019

This article provides a comprehensive analysis of the realisation of international legal norms within national legal systems, with particular focus on the conceptual and structural challenges related to normative coherence. The author examines realisation not as a static or merely formal process, but as a complex and evolving phenomenon shaped by legal, institutional, and interpretative dimensions. Realisation of international law encompasses a wide range of mechanisms, including incorporation, transformation, adaptation, and internalisation. The doctrinal frameworks of monism and dualism, the constitutional hierarchy of norms, and national legal traditions influence these mechanisms. Drawing on contemporary international legal theory, the study emphasises the importance of internalisation as a condition for the effective functioning of international law at the domestic level. Internalisation is interpreted not only as a legal technique but as a normative process whereby international norms become embedded in national legal and political consciousness. This includes the use of global standards in legislative reform, executive practice, and most notably, judicial reasoning. The article further explores the growing relevance of soft law in the process of realisation. Soft law instruments — declarations, guidelines, principles — though not legally binding, exert significant normative influence. They provide orientation in areas where hard law is lacking or politically sensitive, such as environmental law, human rights, and digital governance. Their incorporation into administrative practices, policy design, and judicial decisions reflects an emerging layer of normative realisation that transcends strict positivist models. Realisation is also understood as a vehicle of legal legitimacy. The degree to which a state realises international legal obligations reflects its openness to normative pluralism and its alignment with global legal standards. Moreover, the process of realisation contributes to the legal identity of the state by shaping its constitutional narrative and value system by transnational principles such as the rule of law, human dignity, and democratic accountability. In conclusion, the article argues that the realization of international law must be viewed not only through the lens of legal effectiveness but also as a measure of normative integration, institutional adaptability, and constitutional compatibility. It is a multidimensional and dynamic process that bridges international legal authority with domestic legal autonomy, functioning as both a technical and symbolic instrument of legal development in a globalized legal environment. Key words: International law; Realisation of law; Implementation of international norms; Internalisation; Transformation of norms; Soft law; Interpretative application; Coherence of legal systems; Global legal integration.

The paper deals with the recent Weiss/PSPP decisions of the Court of Justice of the European Union and the German Federal Constitutional Court, attempting to contextualise these decisions within previous conflicts between these two courts. The FCC’s case law is studied through the perspective of three different types of reviews it developed: fundamental rights review, ultra vires review and constitutional identity review. Then, a detailed analysis of the Weiss and PSPP cases is given in order to understand the repercussions of the first case in which the FCC officially exercised its proclaimed competences and declared the CJEU and ECB’s decisions as ultra vires, undermining fundamental principles of the EU legal order. This act could potentially lead to significant changes in current mechanisms of resolving disputes between the highest courts of the EU and national legal orders. Finally, the future of judicial conflicts is discussed through the analysis of the Weiler/Sarmiento model and the system (or lack of system) of resolving the conflicts currently in place. The paper concludes by highlighting that the Weiss/PSPP decisions could very well be those that finally stimulate a long-needed solution.

The rise of orbital commercial human spaceflight raises urgent legal questions regarding the applicability of existing international space law to new categories of space travellers. This article addresses the core issue of how to ensure the rescue and return of such persons at the international level. Central to this analysis is the interpretation of the term ‘astronaut’ under the Outer Space Treaty (OST) and the Rescue and Return Agreement (ARRA). The article explores definitions in the international legal order, specifically the International Space Station (ISS) framework, the national legal order, with a focus on the United States of America (USA), and in legal literature. While certain trends are visible, it is argued that a lack of a formal, universally accepted legal definition at the international level undermines legal clarity. As human spaceflight becomes increasingly commercialized, the international community must establish a coherent legal framework that ensures protection for all persons in outer space, regardless of their status.

Introduction This chapter is about the role of the European Court of Justice (ECJ) in the development of private law. The ECJ has done so by modelling private law through the interpretation of primary law (for example, the fundamental freedoms and the competition rules) and secondary Union law (such as consumer directives and regulations) and by creating rights on the basis of the nature of the Union legal order and/or of general principles of Union law (liability for infringement of Union law). Institutional aspects, private international law (like the Rome Regulations), the role of the court in settling private law disputes according to the law applicable to the contract under Article 238 EC [Article 272 TFEU] (‘arbitration clause’) and the impact of EC sector-specific regulation on contract law will be disregarded. The future role of the ECJ, if and when some form of general European contract law emerges, or the court’s case law on unjust enrichment, which basically concerns the relationship between individuals and the administration, are also omitted. Six areas in which different aspects of the role of the court become apparent have been selected. Three relate to fundamental freedoms, two to secondary Union law and one to general principles of Union law. These different areas will also show differences in the degree of readiness of the court to interfere in national legal orders.

Non-discrimination on the Ground of Religion: A Fundamental Element of the EU Constitutional Legal Order?

The article is focused on the effect of the establishment and application the European Union law in Poland immediately after 2004. By becoming the law binding in Poland (and other member states of the EU), the EU law effected significant changes in the sphere of law creation and application. Traditionally, in the national legal order, the law of the highest force is the constitution, while in accordance with the EU legal order, the regulations of the European law are superior in their application in the territory of the member states, including the regulations of the constitution. The present analysis explains how the dilemma of the simultaneous superiority of the regulations of the constitution and the regulations of the EU law was solved in Poland and what importance is attributed to the concept of favourable interpretation of the national law and the EU law. The present paper poses the hypothesis that the model of reconciling the regulations of the Polish law and the regulations of the European law developed in Poland immediately after 2004 was correctly established. It contributes well to Poland meeting international obligations, at the same time respecting the superior position of the constitution.

This chapter discusses the three factors that may lead to the primary application of national law: an agreement by the disputing parties to apply national law; considerations of host state sovereignty; and the national nature of the claim. National law will primarily apply when the parties have so agreed, or because of considerations of the host state's sovereign right to regulate activities on its territory. A more neutral choice-of-law determinant than state sovereignty is the nature of the claim. Thus, if the ‘essential basis’ of the claim is national in nature, such as is the case regarding claims for breach of contract, national law primarily applies. When investment tribunals apply national law to the merits of the dispute for any of the foregoing reasons, they could be seen to take on the role of agents of the national legal order in question in a way converse to how national courts are agents of the international legal order when they apply international law. International law may still play a role when the applicable national legal order contains gaps.

Over the past decades, most issues concerning the interface between EU law and national law have been resolved, and the Member States’ authorities have grown to accept the basic tenets of supremacy and direct effect. However, from the moment that rules of international law come into play as well, the relationship between norms from the EU and the national legal order becomes less clear-cut. To smoothen the interplay between international, European and national law, the Treaties contain several tools and mechanisms, but these do not succeed in eradicating the tensions altogether. In this chapter, we will explore some of the (potential) fracture lines, and analyse the legal provisions that seek to iron them out. First, attention is devoted to the place of the EU in the international legal order and the way it has generally positioned itself (para. 9.2). Thereby, we shall also discuss the internal rank and effect of international law norms, as well as the meandering views of the EU Courts on that subject. Hereafter, we take a closer look at the position of the Member States, sandwiched between their international and European commitments (para. 9.3). In that investigation, particular attention will be devoted to the intricacies of managing mixed agreements, as well as to the (waning) possibilities for seeking enforcement at international courts and tribunals.

The book is devoted to some actual problems of philosophy and philosophy of law. It discusses the problem of monism-pluralism in philosophy and philosophy of law, criticizes philosophy of postpositivism and postmodernism, and invites to return to dialectic as a universal global methodological basis of scientific cognition. On the basis of dialectics in the book deals with law. It explores the subject of philosophy of law, ontology and epistemology of law, methodology and content of law, legal consciousness and its deformation, problems of legal science and their solutions, legal progress and etc. It substantiates the theory of comprehending study of law. It proposes new ideas and suggestions. Monograph is addressed to researches in the field of philosophy and philosophy of law, lawyers, teachers, postgraduates, students, and also to everyone who are interested in problems of philosophy and law.

Purpose: The article aims to establish the causes of deformation of professional legal consciousness. The quality and level of development of legal consciousness of an advocate are determined by the degree of protection of human rights and freedoms, as well as by the state of legality and legal order. In view of the above, the fight against the manifestations of deformation of professional legal consciousness is an accute problem of building a legal and social state. Prevention and elimination of professional deformation of an advocate is impossible without establishing the reasons for its occurrence. Methods: The author relied on general methods of cognition, as well as such private scientific methods as structural and systemic, functional, comparative and legal, statistical, study of empirical material: disciplinary and law enforcement practices. Results: Some aspects of the nature of the deformation of legal consciousness of an advocate have been investigated, external and internal factors contributing to its appearance have been revealed, as well as the reasons for the formation of this negative phenomenon of legal reality, which have been implemented by example, including the advocacy. Conclusions: It is noted that circumstances leading to distortions in the professional legal consciousness affect representatives of the legal community equally or almost equally, but only a smaller proportion of them violate the requirements of legal norms and corporate ethics. A natural question arises as to the reasons why the said "anomalies" of the structure of legal consciousness arise in some cases and not in others. The following conclusion is grounded: the "trigger" of professional deformation of both an advocate and any other person is the degradation of the moral structure of the person - individually formed notions of conscience, shame, justice, the measure allowed and so on.