Основы основ: экспрессивный и функциональный потенциал конституционных устремлений
The article presents a study of a particular group of constitutional norms which define fundamental values and aspirations of a political community. Aspirations which are usually found in constitutional preambles and chapters devoted to basic features of constitutional order are analysed from two perspectives. Firstly, the authors describe theoretical approaches to understanding peculiarities of aspirational provisions and factors shaping their development. Secondly, they turn to uncovering the potential and challenges of pragmatic use of aspirations by constitutional courts,
Aspirational provisions name and describe fundamental values of a community and thus, play a crucial role in establishing its constitutional identity. It is argued that values expressing identity construct a bridge between nation’s past and future, and stress the importance of preserving long-standing legal traditions as well as transforming legal system to achieve certain goals. The problem is that due to highly abstract nature of aspirational provisions and wide discretionary powers of constitutional courts, there is a substantial risk of manipulative use of aspirational arguments in the process of solving specific conflicts. The authors investigate constitutional jurisprudence of various countries, including Russia, and come to a conclusion that referral to aspirations requires a higher level of reflection and self-control on the part of the courts.