Crime against Justice on the French and German Criminal Law

Abstract

Transfer of certain governmental authority constituting the scope of public authorities’ competence, not assuming its general alienation, is a common pattern of our times and in legal science is referred to as “delegation”. This article is supposed to clarify the essence of “delegation” as a notion of constitutional law. For this purpose, delegation is considered as a specific constitutional law notion on the one hand and as a general legal notion traced back to the early legal sources such as Digest of Justinian on the other. Recognized as a separate notion, “delegation” is proposed to be considered with reference to such notions as “state”, “governmental authority”, “separation of powers” and others. Analysis of the notions mentioned above regard to the constitutional law context has made it possible to define delegation in the light of philosophical ideas about the essence of governmental authority and public entities to which it belongs. For instance, ascertaining that governmental authority exclusively belongs to a public-law entity (the state) allowed to designate a specific subject of constitutional delegation, which is neither sovereignty nor state power, but governmental authority shared between the separate branches of government. Besides descripting specific features of constitutional delegation, the article also provides some undermining them in recent decades trends, namely, legislative delegation (i. e. delegation of law-making authority by the legislature to the executive) and private delegation (i. e. delegation of governmental authority to nongovernmental entities).

References

1. Avtonomov, A.S. (2002). Electoral power. Moscow (in Russ.).
2. Avtonomov, A.S. (2004). Systematicity as a characteristic of the constitutional law categories. Social Sciences and Modernity, 4, pp. 145–154 (in Russ.).
3. Alekseev, A.S. (1895). About the doctrine of legal nature of the state and state power. Moscow (in Russ.).
4. Alekseev, A.S. (1982). Russian public law: compendium of lectures. Moscow (in Russ.).
5. Bourdieu, P. (2016). On the State: a course of lectures at the Collège de France (1989–1992). Moscow (in Russ.).
6. Bourdieu, P. (1993). Sociology of Politics: Translated from French. Moscow (in Russ.).
7. Vasilyeva, S.V. (2015). Transfer of governmental powers to entities: legal mechanism. Comparative Constitutional Review, 5, pp. 28–37 (in Russ.).
8. Gessen, V.M. (1917). Fundamentals of constitutional law. Petrograd (in Russ.).
9. Hobbes, T. (2001). Leviathan: Or the Matter, Forme and Power of a Commonwealth Ecclasiasticall and Civil. Moscow (in Russ.).
10. Jellinek, G. (2004). General Theory of the State. St. Petersburg (in Russ.).
11. Ishekov, K.A. (2010). Implementation of separation of powers as a principle of constitutional law in constituent entities of the Russian Federation. Saratov (in Russ.).
12. Kistiakovsky, B.A. (1909). State law (general and Russian): lectures. Vol. 1. Moscow (in Russ.).
13. Kistiakovsky, B.A. (1913). The essence of governmental authority. Yaroslavl (in Russ.).
14. Levin, I.D. (1960). The Modern Bourgeois Science of Public Law. Moscow (in Russ.).
15. Naryshkin, S.E. and Khabrieva, T.Y. (2006). Administrative reform in Russia: a few outcomes and tasks of the legal science. Journal of Russian Law, 11, pp. 3–13 (in Russ.).
16. Nersesyants, V.S. (2004). The history of political and legal sciences: a textbook for universities. Moscow (in Russ.).
17. Sheludchenko, I.A. (2022). Delegation of governmental authority to private bodies in the Russian Federation: articulation of issue. Constitutional and Municipal Law, 9, pp. 70–76 (in Russ.).
18. Abramson, H.I. (1989). A fifth branch of government: The private regulators and their constitutionality. Hastings Constitutional Law Quarterly, 16 (2), 165–220.
19. Dicey, A.V. (1915). The Development of Administrative Law in England. Law Quarterly Review, 31 (2), 148–153.
20. Downey, L. (2020). Delegation in democracy: A temporal analysis. Journal of Political Philosophy, 29 (3), 305–329.
21. Hewart, G. (1929). The New Despotism. London.
22. Iancu, B. (2012). Legislative delegation: The erosion of normative limits in modern constitutionalism. NY.
23. Locke, J. (2003). Two Treatises of Government and Letter on Toleration (ed. Shapiro, Ian). New Haven.
24. Metzger, G.E. (2003). Privatization as Delegation. Columbia Law Review, 103 (6), 1367–1502.
25. Rice, J. (2017). The private nondelegation doctrine: Preventing the delegation of regulatory authority to private parties and international organizations. California Law Review, 105 (2), 539–572.
26. Rousseau, J.-J. (1994). Discourse on political economy and the social contract / translated with introduction and notes by Christopher Betts. NY.
27. Story, J. (1839). Commentaries on the Law of Agency: As a Branch of Commercial and Maritime Jurisprudence, with Occasional Illustrations from the Civil and Foreign Law. Boston.