| Article title | Postmodern Constitutionalism and the Judicial Review of State Discretion in National Security and Foreign Policy |
|---|---|
| Authors |
Jurgita Paužaitė-Kulvinskienė
Professor Dr.
Faculty of Law, Vilnius University
(Vilnius, Lithuania)
ORCID ID: https://orcid.org/0000-0002-3643-6928
Jurgita.pauzaite@tf.vu.lt
|
| Journal name | Legal journal «Law of Ukraine» (Ukrainian version) |
| Journal issue | 1 / 2026 |
| Pages | 27 - 47 |
| ISSN (print) | 1026-9932 |
| ISSN (online) | 2310-323X |
| DOI | https://doi.org/10.33498/louu-2026-01-027 |
| Received | 09.03.2026 |
| Accepted | 23.03.2026 |
| Published | 01.04.2026 |
| Abstract | Modern constitutional law increasingly operates in a complex legal environment shaped by globalization, supranational integration, technological development and geopolitical instability. In this context, the traditional understanding of constitutional law as a closed national legal system is being gradually replaced by a postmodern constitutional paradigm emphasizing legal pluralism, interpretative flexibility and the dynamic interaction between different legal orders. The purpose of the article is to analyze how the postmodern understanding of the constitution influences the interpretation of state institutions’ discretionary powers, particularly in the areas of national security and foreign policy, and to determine the limits of constitutional judicial review in these sensitive spheres of public governance. The research is based on doctrinal, systematic and comparative legal methods. Particular attention is paid to the jurisprudence of constitutional courts (US, Germany and Lithuania) and the interaction between constitutional principles such as the rule of law, proportionality, separation of powers and effective judicial protection. The article demonstrates that modern constitutional law increasingly functions as jurisprudential law, where constitutional norms acquire concrete meaning through judicial interpretation. Constitutional courts therefore play a crucial role in balancing competing constitutional values while ensuring that the discretionary powers of political institutions remain within constitutional limits. It is concluded that even in highly sensitive policy areas such as national security and foreign relations, discretionary powers of state institutions cannot be immune from constitutional scrutiny. However, judicial review in such cases must remain restrained and focused on verifying the legality, proportionality, procedural fairness and absence of manifest error rather than substituting political decision-making. |
| Keywords | postmodern; constitution; constitutional court; judicial review; discretion; national security; foreign policy; constitutional pluralism; rule of law. |
| References | 1. Alexy R, A Theory of Constitutional Rights (Oxford University Press 2002). |
| Electronic version | Download |