Legitimation of hazards in the national legal order as an antagonistic dimension of law-making

It is substantiated that constitutional flaws in a draft normative legal act, if not eliminated in time during its development stage, acquire the characteristics of hazards to the constitutional order of the state and to the fundamental rights and freedoms of individuals and citizens once the act is adopted. It is emphasized that, unlike hybrid hazards, which are concealed or disguised as other processes within the legal framework, hazards arising from the deliberate disregard of the Constitution of Ukraine during law-making are evident and, as a rule, are detected and identified at specific stages of the legislative process. It is established that the EU’s law-making practice applies hazard-based and risk-based approaches, which allow for determining the degree of negative impact and the level of risk acceptability depending on the scale of the hazards posed. Based on this, it is proposed to introduce into the national law-making methodology a set of legal drafting methods used by the European Commission for impact assessment of proposed legislative initiatives on various spheres of public relations. This should be done in accordance with the typology of influencing factors, considering alternative actions in case of identified risks and hazards, applying both hazard-based and risk-based approaches, and aligning them with the EU’s fundamental values, Sustainable Development Goals, and international legal instruments, with a special focus on the cross-cutting functional role of fundamental rights, which will ultimately contribute to improving the quality of legislation and ensuring its compliance with the Constitution of Ukraine. The urgent need to implement this set of legal drafting methods is demonstrated through selected examples from national law-making practice.

legitimation, hazards, legal order, law-making, constitutional order, antagonistic dimension, fundamental values of the EU