To the issue of the concept of the “sovereignty holder” (comparative legal analysis)
The article is devoted to the main issues associated with the concept of the sovereignty holder posed by modern English and French experts on constitutional law and the general theory of state. The author traces the evolution of this concept from its first emergence in the scientific literature to the present time and also raises the question of the most adequate methodology of its research. In particular, the author distinguishes between the essence and the exercise of sovereignty, as well as between the descriptive and the prescriptive points of view on its content. In fact, the positivist epistemology imposes the choice of descriptive terms; however, such choice is not a monopoly of the positivist epistemology. Based on the analysis of the structure and content of the concept of sovereignty, a distinction between the possession of sovereignty and its implementation is made. The author emphasizes that the legislator’s choice of a particular model of democracy (direct, representative or semi-direct) depends on the degree of identification of governors with the sovereign. despite a rather critical attitude of a number of foreign lawyers to the prospects of the concept of the sovereignty holder in the 21st century, the author argues that its heuristic potential is not completely exhausted, considering the formation and development of communitarian and international law in the field of human rights. Besides, in contemporary discourse about constitutional justice the reference to the sovereignty of the people or the nation is likely to disappear, and any argument regarding the sovereignty holder becomes useless. Thus, it appears problematic to combine constitutional justice and democracy viewed as a form of government of the sovereign people.
state, sovereignty, people, nation, direct democracy, representative democracy, semi-direct democracy, human rights
Maklakov V. V. Konstitutsii zarubezhnykh gosudarstv: Velikobritaniia, Frantsiia, Germaniia, Italiia, Evropeiskii soiuz, Soedinennye Shtaty Ameriki, Iaponiia, Indiia: ucheb. posobie [Constitutions of foreign countries: United Kingdom, France, Germany, Italy, European Union, United States of America, Japan, India: studies]. Moscow, Wolters Kluwer, 2006. 608 p. (In Russian)
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