Factual Constitution in Contemporary Ukrainian Constitutional Doctrine: Concept, Features and Identification Criteria

The study addresses the need to explain more precisely the relationship between the normative model established by the legal constitution and the actual state of constitutionally significant social relations. The article aims to conceptualise the factual constitution as a relatively independent category of constitutional law. The research uses doctrinal, formal legal, systemic and comparative analysis of Ukrainian and international scholarship. Existing definitions are shown to emphasise different aspects of the same phenomenon: actual social relations, the organisation of public power, institutions and established practices. These elements should be considered together: social relations form the substantive basis of the factual constitution, institutions give them an organised form, and practices show how they operate. The factual constitution is distinguished from the broader constitutional reality, constitutional practice, implementation of the constitution and other related concepts. Ten features are identified. Constitutional significance, systemic character, relative stability and functional determinacy form the identifying core of the category. The factual constitution is not limited to the implementation of the legal constitution or to the de jure/de facto gap: it may correspond to the normative model, specify it, deviate from it or develop ahead of formal regulation. On this basis, an authorial definition is proposed and its possible use in the analysis of particular constitutional institutions is outlined. Further research should focus on operationalising the proposed criteria and testing them in relation to particular constitutional institutions.