No 11 (2018)
25<SUP>TH</SUP> ANNIVERSARY OF THE CONSTITUTION OF RUSSIA: CONCLUSIONS AND PERSPECTIVES OF DEVELOPMENT
9-15 645
Abstract
The paper is devoted to the analysis of several issues related to the implementation and development of constitutional models. The author emphasizes and highlights the role of the current Constitution as a political and legal instrument providing purposeful administration of diverse changes associated with the change of political, economic, legal and, in the end, socio-political order in general. It is noted that constitutional models set forth in the Basic Law of the State in their organic totality provide for a "future plan" for Russia and establish guidelines for the development of the society and the State. Special attention is paid to the consideration of the reasons influencing the quality of implementation of constitutional models. The key reason involves the objective features of the cultural and historical context under which the 1993 Constitution began to operate. Implementation of Constitutional objectives started during the period when legal and institutional basis corresponding to the new constitutional determinations did not exist, and old and new ideas concerning approved and acceptable future, strategy and tactics of the country's development were coexisting and competing in both social consciousness and consciousness of elites. The persistence of such competing perceptions and corresponding models of the desired future still influence the quality and completeness of "constitutional intentions" implementation. The paper shows that the analysis of constitutional models implementation strongly requires the use of cross-disciplinary approaches, since any research with regard to the "constitutional plan" and its factual implementation, and, even more, the search for the reasons of the current state of affairs, necessarily goes beyond the scope of the subject area of constitutional law, namely: political science, social psychology, history, economics.
16-22 1833
Abstract
The paper analyzes the current state of affairs, value and social significance of the 1993 Constitution, presents views with regard to its viability in light of necessity to reform the Basic Law and to elicit the current Constitution potential. In the author's opinion, the dynamics of the constitutional reform determines the degree of its prerequisites' formation. Whether a political decision is adopted or not depends on the constitutional situation in the country, i.e. on the existence of the objectives, conditions and means necessary for the implementation of constitutional reforms. The author argues that in the context in question socio-economic, political conditions are the most important. The legal mechanism applied to the constitutional reform is in the process of being developed. The nature of relations between the President of the Russian Federation, the Federal Assembly, the Government of the Russian Federation, public authorities of the RF constituent entities attests to a high degree of internal political stability in the society. Thus, adoption of the new Russian Constitution will not result in a significant destabilization of the society and the State.
23-39 2277
Abstract
The paper carries out evaluation of the relevance of a liberal-democratic idea enshrined in the 1993 Constitution, constitutional goals and values and their compliance with the needs of a modern society on the basis of a 25-year-long operation of the Constitution. The author compares the "constitutional ideal" enshrined in the Constitution of the Russian Federation and the reality. Evaluation is carried out in light of the international experience of constitutional development. It is noted that the value and authority of the Constitution suffer erosion under the influence of numerous objective and subjective factors due to the influence of which a significant gap between the ideal enshrined in the Constitution and the reality emerges, and the ideal itself is questioned. Trends are considered in sequence: 1) formation of constitutional axiology, humanization and socialization of constitutions, expansion of constitutional morality; 2) emergence of new doctrines of the constitutional ideal based on the constitutional compromise under the conditions of crisis of liberal-democratic and other constitutional doctrines; 3) emergence of global constitutionalism which changes the scope of constitution authority, intensifies international interventions in the constitutional design and forms universal constitutional standards. On the example of the Russian Federation, the paper highlights positive and negative consequences of the Soviet socialist state system transformation into the liberal-democratic constitutional system. The author focuses on the problem of legitimacy of the 1993 Constitution of the Russian Federation in the context of optimization of constitutional design that depends on the level of publicity of constitutional procedures. It is suggested that further discussion of the problems of legitimacy of the Constitution of the Russian Federation makes no sense. Otherwise, the legitimacy of the entire RF system of legislation adopted on its basis is challenged. Also, it is important to take into account application of forms and procedures of civil consent with regard to the adoption of the Constitution of the Russian Federation as reflected in the work of the Constitutional Conference, the Agreement on Public Consent and the nation-wide Referendum. Assessing the prospects of constitutional development, the author argues that under modern threats and challenges to humanity there is an objective need to review certain constitutional and other legal standards set out in national and international law. The author proposes to apply this approach to the constitutional regulation and constitutional studies and to call it constitutional futuristic; and the doctrine forming the constitutional ideal of the future should be called constitutional futurism. The constitutional ideal determination is based on examination of the level of Constitution implementation, which appears to be measured by three main indicators: constitutional congruence, effectiveness and objectivity of constitutional provisions. The main task of the constitutional futuristic is to identify, based on the assessment of the level of implementation of the current Constitution, the potential of constitutional development aimed at improving the constitutional order. The content of this potential during the recent period should be associated with the search for fundamentally new standards of life leading to a qualitatively different level of development of a human civilization. This approach predetermines the new structuring of constitutions and, accordingly, the branch of constitutional law, the result of which will be the transformation of constitutional law of survival into its highest type, namely, constitutional law of life based on the constitutional ideal.
40-62 2475
Abstract
The article examines four modes of modernization of the Constitution of the Russian Federation: the Constitution revision (provisions of Chapters 1, 2 and 9), adoption of amendments to Chapters 3-8, introduction of amendments to Part 1 of Art. 65 concerning the composition of the Russian Federation and changes in the names of constituent entities of the Russian Federation. The paper carries out an in-depth analysis of Art. 134-137 of the Constitution that establish the basis of normative models of modernization regimes, express judgments concerning what form the Federal Constitutional Law on the Constitutional Assembly may take, as well as on some elements of the structure of this body. The paper informs about the drafts of the law in question put to the vote in the State Duma. The author believes that the adoption of the Constitution by popular vote should not be considered solely as an auxiliary method applied when a draft law is not approved by the two-thirds of the members of the Constitutional Assembly. The article deals with the provisions of the Federal Law "On the Procedure for the Adoption and Entry Into Force of Amendments to the Constitution of the Russian Federation," reveals the key contradictions that appeared during its adoption, and examines the legal regulation of the law on amendments carried out by the RF constituent entities of the Russian Federation, draws attention to the shortcomings of the federal and regional regulation (in particular, legislation of the RF constituent entities of the Russian Federation provides for different majority decisions by which the legislative authority approves the constitutional amendment), focuses on specific features of legal and technical perfection of laws on amendments. The article focuses on the procedure of introducing draft constitutional amendments (more than 30 initiatives), their adoption, approval by legislative bodies, as well as making amendments to Art. 65 of the Constitution. The author draws conclusions with regard to efficiency of the existing models of the second-fourth regimes of modernization, that, under the conditions of the existing political realities that permit adoption and approval of amendments on a fast-track basis, inflexibility of the legal framework of the second regime of modernization is nominal.
INTERACTION BETWEEN THE STATE AND THE PERSON: A HUMANISTIC ASPECT OF THE RUSSIAN CONSTITUTION
63-68 3325
Abstract
The paper deals with the problem of securing a legal status of a man and citizen in the Russian Federation. Due to the process of globalization, this has become a universal, global problem that requires an international community to make a uniform and harmonized decision. It is important to note that the very task of providing comprehensive guarantees of justice and independence of the man and citizen results in reexamination and reconsideration of the issue of constitutional guarantees. An urgent problem is the need to study new aspects and to highlight the role the 1993 Constitution of the Russian Federation plays in securing human and civil rights and freedoms. Two aspects a subjected to in-depth examination: A systematic nature of guarantees of human rights and freedoms, and the place of judicial guarantees in this system. First, the paper demonstrates a systemic connection between constitutional and state guarantees, which is also manifested in the fact that in the most complete way the guarantees given by the state are enshrined in the Constitution of the Russian Federation. A substantive aspect of constitutional guarantees of human rights and freedoms, the uniqueness of their effectiveness is explained in detail. Also, the author underscores the role of courts and judicial guarantees in the Russian Federation concerning the possibility of obtaining compensation for damage caused by unlawful acts. By virtue of constitutional guarantees and their supremacy over other types of guarantees, the Russian Federation has developed a coherent system of guarantees of human rights and freedoms that has substantially enhanced and diversified the opportunities of each person in this field.
69-82 887
Abstract
The article is devoted to the analysis of disputable issues of the development of a synthesized constitutional and legal concept of interaction between the State and an individual. It is noted that the purpose in question can be reached using different scientific fields and allows the application of multidisciplinary methodology. The author analyzes the change in reflection of the problem of interaction between the State and an individual within the framework of the subject matter of domestic constitutional law. It is concluded that similar to the subject matter of constitutional law that is not static and cannot be outlined once and forever, in the emerging constitutional-legal concept of relations between the State and an individual a static and a dynamic elements can be determined. The first static element can involve invariable participants of interaction, namely, the State and an individual (person). The second dynamic element concerns the principles, methods and forms of both direct and reverse interaction between the named actors. A key element requires an understanding of typology and nature of the relationship between the State and the individual. The paper outlines the stages of the process of formation of the modern Russian constitutional and legal concept of relations between the individual and the State: formation and modernization. The stage of formation of the concept mentioned above fully corresponds to the transitional (inter-system) state of the Russian State and constitutional law. With this regard, it can be described as intertypic. The article deals with the problems of combining the idea of "a service State" and "a strong State" as well as the correlation of the system-centrism, person-centrism and solidarity in the Russian Constitution. The objectives, constitutional principles, forms of interaction between the State and the individual are also considered. The proposal is made to include into the concept constitutionally legitimate conduct of interacting actors as an independent element. The paper determines the criteria of such conduct and draws conclusions about its importance and value in the context of interaction between the State and the person.
THE CONSTITUTION AS THE BASIS OF THE LAW SYSTEM OF RUSSIA
83-92 1648
Abstract
The article deals with the issues connected with the constitutional provisions of the fundamental constitutional principle of the unity of the state-legal system that preserves the integrity and sovereignty of the Russian State. Attention is drawn to the experience of constitutional consolidation of the federal order, the features of modern regulation of federal relations in the RF Constitution that have been preserved since the Soviet period. The author draws attention to the uniqueness of the domestic model of federation that has no analogues among foreign federal states. The article criticizes the statements that claim expediency of developing in Russia the federation that is based exclusively on territorial rather than national principles. Also, it criticyzes the concepts that separation of republics as constituent entities of the federation "is unreasonable and dangerous," and that "the most appropriate form of the state order for Russia" is a "unitary republic." The author substantiates the idea that the unity in a federal state due to its rich historical experience can be achieved only trough the unity of diversity. Thus, there is no need for constitutional reforms of federalism. It is concluded that the unity of a multi-ethnic, multi-confessional federal state should be strengthened not by forciable reforms, but by the development of the economy and, as a consequence, increase in financing in a social sphere in compliance with the interests and improvement of the well-being of people in different fields. The article analyzes the evolution of the federal system of Russia, the current state of which differs not only from the Soviet period, but also from the federalism that developed in Russia before and after the introduction of the 1993 Constitution of the Russian Federation. Having identified modern federal problems, the author argues that optimization of the constitutional model of Russian federalism should be supported by legislative establishment of a reasonable balance between powers and finances in compliance with the peculiarities of specific constituent entities of the Russian Federation, as well as encouraging different regions to develop their own economies. At the same time, the objective the Russian state pursues is to preserve the ethnic identity of all peoples inhabiting Russia and the political and legal identity of Russia.
93-105 653
Abstract
The article examines the content of the concept 'authority', a feature inherent in the Constitution of the Russian Federation. The authoritativeness is defined as the phenomenon of public awareness and the Constitution's rootedness in the consciousness of society, the belief that it is able to build an ideal model of constitutionally mediated relations that meet the canons of the due, just and legal. Two groups of parameters determining the authority of the Constitution of the Russian Federation are revealed. The first group forms the qualities of the Constitution, which follow from its content (goals, principles, provisions). The second group of parameters has a security character (legitimacy, international recognition, efficiency, constitutional stability). The authority of the Constitution of the Russian Federation, along with its substantive qualities, is due to the level of political and legal culture of society and, above all, the highest authorities.
CONSTITUTIONAL AXIOLOGY
106-121 1092
Abstract
Constitutional values are human values recognized and protected by the Constitution of the State as its basic law and at the same time a set of development guidelines. Acting as the "core" of the legal system, the Constitution and its values are subject to the general process of development of the legal system, at the same time serving as a guide for the development of this system. In the first place, the value of the Constitution itself is predominant in the system of constitutional values, through the prism of the universalization of which it is possible to detect trends in the development of the system of constitutional values. In particular, there is a clear trend towards the universalization of constitutional values in general and the value of the Constitution in particular. Universalization is an objectively determined process of their unification of values through mutual penetration of national legal cultures, formation of supranational legal and international legal communities. The main directions of universalization of the value of the Constitution are manifested in the recognition of the historical authority of the Constitution by humankind. The Constitution is universally perceived as the basic law of society and the state, the "social contract", the carrier of the official state ideology, the guardian of the cultural identity of the state-forming people. The universalization is acknowledged in the unification of legal features, the order of adoption and amendment of the Constitution with the active involvement of citizens and their associations in these procedures; in the allocation as an independent institution of constitutional law of the system of fundamental (basic) constitutional principles. The limits of the universalization of constitutional values are rooted in the inadmissibility of the destruction of the historical memory of the people of its cultural identity; mentality and settled environment of the people; the established structure of society and the state, the position of the people and the state in the international community, satisfying their interests.
RUSSIAN CONSTITUTION AND INTERNATIONAL LAW
122-133 6443
Abstract
In the light of various concepts that exist and are widely used in domestic theory of international law, the term and the category 'generally recognized principles and norms of international law' have become an integral part of the Russian contemporary justice in a whole due to the provisions of the 1993 Constitution of the Russian Federation. There is no exaggeration or subjectivism in this assertion, since both the general theory of state and law and the branch legal sciences in our country "transpose" this concept in every way, believing obviously that the theory of international law itself has managed to elucidate whatever possible this term. It remains no more but to analyze the individual salient features of its application in domestic law - constitutional, criminal, civil, administrative, labor, etc. However, it is the international legal science that has not yet become able to define the substance and scope of the generally recognized principles and norms as part of the said system of law and to correlate, in the light of the results as achieved, to other categories and concepts immune to International Law. The main reason for this is the absence of unconditional confirmation of the term under consideration by positive law - it is neither fixed in the UN Charter nor in the UN General Assembly resolution "Declaration on principles of international law concerning friendly relations and cooperation among States in accordance with the Charter of the United Nations" of October 24, 1970. The same is to be referred to the "Final act of the Conference on Security and Cooperation in Europe" dated of August 1, 1975, although it would be mistakenly to assume that it is in general compatible with contemporary international law. A secondary factor contributing to such a state of things lives in the discrimination of approaches from the end of domestic and foreign doctrines, as well as in the lack of unanimity within each of them.
EVOLUTION OF CONSTITUTIONAL REGULATION OF THE SYSTEM OF PUBLIC AUTHORITIES
134-144 1265
Abstract
25 years have passed since the adoption of the current basic law of our state - the Constitution of the Russian Federation. The Federation Council, as the upper house of the Parliament of the Russian Federation, among other bodies of state power and institutions of constitutional law, has repeatedly experienced the changes introduced by Russian legislation. The study of the constitutional evolution of such elements of the constitutional and legal status of the Federation Council as the order of its formation, its relationship with the principle of separation of powers, made it possible to answer a number of questions that scientists-constitutionalists have repeatedly posed. In particular, what should be the most rational procedure for the formation of the Federation Council that would lead to effective results of the upper house activities? What should be the ratio of the branches of power within the legislative consolidation of the Federation Council? Is the scope of powers of the upper house of the Federal Assembly sufficient? When we talk about the order of formation, we analyze three ways of forming the upper house of the Russian Parliament: by election, by joining the Federation Council by office and by empowering a member of the upper house of the legislative body of the Russian Federation by appointing the relevant state authority of the subject of the Russian Federation. In addition, there is a lively interest in the discussion unfolding around the issue of the correlation of the principle of separation of powers both vertically and horizontally and the procedure for the formation of the Federation Council of the Federal Assembly of the Russian Federation. The purpose of this study is to identify positive and negative aspects in the process of constitutional evolution of the abovementioned elements of the upper chamber of the Russian Parliament for finding the option that would make it possible for the Federation Council to show results in the form of quality legislation.
145-150 1653
Abstract
The article discusses the features of the form of government of the Russian Federation, which determine the specifics of the mechanism of interaction between the head of the State and the executive and legislative authorities of the Russian Federation. The role of the Constitution of the Russian Federation in the formation of the mechanism of state power is difficult to overestimate. It was designed to solve the issues of organization of power, and to find a balance of relations "Federation - constituent entity of the Federation", as well as to comply with the principles of federalism and unity of the system of state power. In many ways, it was the adoption of the 1993 Constitution that made it possible to stabilize the social and political situation in the Russian Federation. Close attention is given to the specific form of government of the Russian Federation - the so-called semi-presidential or mixed Republic. The status of the President of the Russian Federation is extremely interesting, given the form of government enshrined in the Constitution. The personal factor, according to many scientists, plays a significant role in state-building and in historical perspective, especially given how Russia has changed at the turn of the century. The analysis of the constitutional norms and the existing practice of relations between the President of the Russian Federation and the legislative bodies of state power of the Russian Federation makes it possible to draw conclusions that this Constitution of the Russian Federation legally uses the "theory of rationalized parliamentarism" in the consolidation of the powers of the state authorities. It presupposes the legal constitutional consolidation of the limitation of the role of Parliament in the state administration and domination in the state mechanism, first of all of the head of state and the executive power. According to the developers of this theory, it is necessary to improve the efficiency of public administration. The influence of historical traditions of the organization of powers in the Russian State and the corresponding foreign experience on the mechanism of state power operation in the Russian Federation is considered.
CONSTITUTIONAL LEGAL CONSCIOUSNESS IN RUSSIA
151-161 476
Abstract
The author relies on a non-classical methodology that recognizes the social subject, regardless of his position, capable of self-knowledge, self-development and self-realization through the law, the basic values of which are laid down in the national Constitution. A special role in the disclosure of the meaning of constitutional norms belongs to law enforcement officers, and especially judges, so important is the constitutionalisation of their legal consciousness. Classical approaches to legal consciousness, based on a rational understanding of the subject as a linearly perceiving legal impact, are unable to explain the mechanism of constitutionalisation. This can be facilitated by the legal theory of identity, which includes philosophical, legal, theoretical and sectoral (constitutional and legal) aspects. In the context of this theory, the constitutionalisation of legal consciousness is carried out through the achievement of legal, constitutional identity, formed through the interiorization of external values and meanings of law in the inner world of man, resulting in the formation of new properties of personality. Legal status is an important basis of legal consciousness and legal identity as a potential opportunity to develop the proposed rules and the place they define. However, their real development is due to the target orientation of a particular subject, whose identity is always built up as a positive system of ideas about himself. In this sense, the formation of legal, constitutional identity is accompanied by a positive assessment of the subject reflection of his legal properties in their own minds. In this case, the property is understood as something that provides a distinction or commonality of the subject of law with other subjects and is found in its relation to them ("I am a conscientious and fair judge"). For the law enforcement officer, it is important not to have formal knowledge of the constitutional provisions, but to turn them into an ontologically inherent quality of the individual, when a person making a decision cannot do otherwise, even in a situation of choice, evaluation by the professional community or public opinion, as this will lead to the loss of personality, loss of self-esteem, the risk of reducing the level of professionalism.
HISTORY OF CONSTITUTIONAL DEVELOPMENT OF RUSSIA
162-168 506
Abstract
The article highlights one of the most important issues of the Soviet political and legal history. The choice of political form, which was made almost immediately after the victory of the Bolsheviks in the 1917 Revolution, meant the transfer of the country to a new path of state building. The Soviets became an alternative to the parliamentary Republic. The article analyzes the basic principles of both political systems and the reasons for this choice. It emphasizes the supranational nature of the political direction, the so-called "direct action", which took place not only in Russia but also in a number of European countries. The author notes the determining influence that both national political traditions and borrowings from Western European systems had on the formation of the representative system. In the European historical experience of parliamentarism, the new Russia was accepted in the absence of political legitimate parties. The system of Soviets essentially denied the "bourgeois" principles of separation of powers, implementing the experience of the French revolution for this purpose. However, the full power of local councils, for example, clearly exceeded the competence of municipal European bodies. The Soviets claimed the same universality as the Parliament had. Unlike it, they had a whole system of hierarchically built local authorities. The Soviet democracy is prone to unanimity and unfriendly attitude to the opposition, which is always in the minority. This principle ("democratic centralism") was reinforced by the existence of a hierarchical system of councils, which was a sufficiently effective filter for decision-making processes. The emergency powers of the Soviets especially increased in the context of the civil war and the fight against intervention. Under these conditions, the process of constitutional construction acquired specific features and the Constitution of 1918 became a kind of documentary of the historical era.
ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)
ISSN 2686-7869 (Online)