Principles of law-making and their implementation under martial law: the technical- legal dimension

The author of the scientific paper has conducted a doctrinal study of the principles of law-making from the perspective of their role and practical implementation in the activities of public authorities under martial law. It is noted that the functioning of the legal system of any state is grounded in a particular foundation legal principles which encapsulate positive socio-legal experience, define the main direction of development in the relevant sphere of life, and unify the operation of all other elements of the legal regulation mechanism (legal norms, acts of application and interpretation of law, legal culture, etc.). These elements must, at minimum, not contradict the fundamentals of law in their content. Based on an analysis of the doctrinal understanding of principles in law, the paper emphasizes that principles essentially represent the spirit of the law. This spirit may find formal expression at the level of a norm, or it may remain solely at the level of legal consciousness and the legal culture of the social environment in which the relevant legal system operates. Taking into account the specific features of an emergency situation and particularly a situation of a military nature it is concluded that, at the national level, society and the state pay a double price for failure to observe principles in the law-making process. This results in deficiencies in the legal technique of legislative acts, conflicts and declaratory nature of legal norms, and a mismatch between legislative innovations and actual societal needs as well as the state of development of the relevant sphere of social life. It is underscored that, under such exceptional conditions, legislation must be maximally systematic, effective, flexible, scientifically and practically substantiated, and responsive to the current conditions of societal life. It must also be of high quality in terms of adherence to legal technique, since the law-maker beyond performing the ordinary functions assigned in normal conditions is now required to fulfill additional special functions as well. These include, in particular, creating legal conditions for the rapid and comprehensive prevention (or at least minimization) of the negative impact of an emergency of national significance namely, full-scale armed aggression. Observance of principles in the exercise of emergency law-making activity is the key guarantee of achieving this. The analysis of views presented in legal doctrine concerning the concept and types of principles of law-making has enabled the author to demonstrate the necessity of distinguishing special principles of law-making that apply under martial law. Among such principles are those of extraordinariness, expediency, limited public access to law-making activity and law-making information, proportionality and optimality in restricting the rights and freedoms of natural persons, as well as the rights and legitimate interests of legal persons, and others. Considering the practice of implementing these principles, the paper concludes that European practice of law-making in emergency conditions including the practice of the European Court of Human Rights developed at a time when the challenges currently facing Ukraine were not yet acutely felt (the hybrid nature of warfare, information attacks, cyber threats, threats to the physical functioning of law-making entities, etc.). Therefore, it is now important to thoroughly analyze the relevant European standards of emergency law-making and to apply them with due regard to national interests, societal and state needs, the nature and impact of martial law on the mechanism of legal regulation in specific spheres of life.