Topic 1. Constitutional law in the system of Russian law
Question 1. The concept of constitutional law as a branch of public law: subject, method and tasks. The leading role of constitutional law in the Russian legal system.
The concept of “constitutional law” is multifaceted and is used in three forms: as a branch of law in the system of national law, i.e. a set of constitutional and legal norms in force in the territory of a given country; as a science that studies constitutional and legal norms and forms legal relations and institutions on their basis; as an academic discipline based on the data of science.
The constitutional law of Russia as a branch of law is an integral part of its national legal system, a set of legal norms that regulate social relations that arise in the process of exercising democracy, protect fundamental human rights and freedoms and establish for this purpose a certain system of state power based on the principle of “separation authorities.”
One of the most important achievements of the democratic process in Russia is the introduction into the consciousness of the people of the postulate: the people do not exist for the state, but the state exists for the people in order to protect the freedom of man and ensure his well-being. At the same time, it is necessary to maintain a balance between power and freedom, since freedom without a strong statehood turns into anarchy, and a state built on the refusal of its citizens from freedom turns into a totalitarian one.
Finding a balance between the freedom of the people and the power of the state is the main task and meaning of the constitutional law of Russia.
The constitutional law of Russia is firmly intertwined with politics and, in general, with the entire political system of the country.
Power relations affect human rights and freedoms and collide with the collective actions of people united in parties and movements that influence these relations through elections. Hence the great interest in the study of the institutions of constitutional law, the struggle of opinions around the political foundations of this industry and its institutions.
Like any branch of law, the constitutional law of Russia has its own subject – these are social relations regulated by the norms of a particular branch of law.
Clarification of the question of the subject of the branch of law is a necessary prerequisite for a correct understanding of the general qualities inherent in its norms and institutions; the specifics of legal regulation.
Without knowledge of the subject of each branch of law, law enforcement is impossible. It is necessary to clearly understand which industry standards are to be applied.
Constitutional law regulates relations that develop in all spheres of the life of society – political, economic, social, etc. However, this does not apply to all relations as a whole, but only to a certain layer of them, or rather, the foundation of these relations.
Hence, the subject of constitutional law includes those relations that can be called basic, fundamental in each of these areas. They form, as it were, the foundation of the entire building of a complex system of social ties subject to legal influence, they determine the structure of the entire social organism. Such relations act as backbone, ensuring the integrity of society, its unity as an organized and functioning structure based on the general principles of the political, economic and social structure of society and the state.
The subject of the constitutional law of Russia is also the most significant social relations in the political, economic, social, spiritual spheres of society, regulated by the norms of constitutional law. M.V. Baglai brings these relations into two blocks: regarding the structure of the state and the organization of state power (power relations) and regarding the protection of human rights and freedoms (relationships between a person and the state. Regulation of the structure of the state and the organization of state power is carried out by establishing fundamental provisions, principles that determine qualitative characteristic of the state. These include democracy, state sovereignty, separation of powers, form of government, form of state-territorial structure, as well as the definition of subjects of state power and methods of its implementation. This explains the fundamental nature of this branch of law. The peculiarity of the subject of constitutional law is that that the constitutional and legal regulation of social relations in various spheres of life covered by this industry is not the same.
Like any branch of law, constitutional law affects social relations by its inherent legal methods , which is understood as a set of techniques, means, forms of legal influence on social relations and their participants. Traditionally, in constitutional law, there are such methods of influencing social relations as the establishment of rights, the assignment of duties and responsibilities, permission and prohibition. The main methods are the method of regulatory influence, which prescribes the participants in public relations to behave in a certain way, and the protective method, the features of which are its constituent, imperative, universal character.
Constitutional law is the leading branch of the Russian system of law. This position is due to the following reasons:
• constitutional law establishes initial, imperative provisions for all branches of law;
• through constitutional law, a system of basic criteria for the formation of branches of law is created, and the procedure for assessing the operation of the norms of each branch of law is regulated for its compliance with the highest constitutional and legal values;
• constitutional law plays a backbone role in the development of branches of Russian law. All fundamental conflicts between branches of law (for example, between tax and civil law, civil and labor law) are resolved through the prism of constitutional and legal provisions;
• the development of the content of constitutional norms affects the change in the norms of other branches of law. Thus, the decision of the Constitutional Court of the Russian Federation confirmed the imperativeness of the norm for the entire criminal process that arrest, detention and detention are allowed only by a court decision.
Question 2. Constitutional norms, their features and types.
Constitutional legal norms are obligatory, abstract, formally defined rules in constitutional legal acts, established and protected by the state and aimed at regulating social relations that are the subject of constitutional law, by establishing the rights and obligations of their participants.
Features of CPN:
– Differ in content, sphere of social relations, on the regulation of which they are aimed
– differ in the sources in which they are expressed
– They are of a general regulatory nature and can be formulated in the form of norms-principles, norms-tasks, norms-goals, norms-definitions
– Addressed to a wide range of subjects of law
– Define the rules of conduct in the most general form, being specified through other branches of law
Types of constitutional legal norms:
According to the nature of the prescriptions contained in them:
According to the degree of certainty of the prescriptions contained in them:
By appointment in the mechanism of legal regulation:
By area of operation:
– Republican action
– Local action
By action in time:
– Permanent – Temporary – Exceptional
Considering the concept of constitutional and legal norms, it should be noted that they are characterized by common features inherent in all legal norms, regardless of their sectoral affiliation, as well as features that distinguish them as an independent part of the entire system of law. Constitutional and legal norms have the following specific features by which they can be distinguished from the norms of other branches of law.
1. The main purpose, role and place in the mechanism of legal regulation of constitutional and legal norms are determined by the special nature of the sphere of social relations they are aimed at regulating (for example, a person and the state).
2. A specific feature of the norms of constitutional law is the special nature of the sources of law in which they are expressed. Paragraph 3 of this chapter is devoted to the sources of the constitutional law of the Russian Federation, but the most important source in which the fundamental, most significant norms are expressed is a special act that has the highest legal force in the entire legal system – the Constitution of the Russian Federation. The highest legal force of the norms of the Constitution of the Russian Federation is due to the fact that the Constitution contains political and legal solutions to the most important problems of the state and society. The supreme legal force of constitutional norms is the basis of law and order in society. The Constitution of the Russian Federation establishes a hierarchy of the main sources of law (Article 16).
3. In constitutional law, much more than in other areas, general regulatory norms, and not norms of a specifically regulatory nature. General regulatory norms include norms-principles, norms-declarations, norms-definitions, norms-goals, norms-programs, norms-explanations, norms-references, etc. Thus, norms-principles are designed for all law enforcement entities, regardless of the type of legal these subjects are (civil law, administrative law, labor, etc.). Norms-principles and norms-declarations are often the fundamental provisions of constitutions. “State power in the Russian Federation is exercised on the basis of the division into legislative, executive and judicial. Legislative, executive and judicial authorities are independent” (Article 10 of the Constitution of the Russian Federation). Constitutions and other sources of constitutional law contain provisions in which explanations are given for the meaning of a particular term, it is established what is meant by individual words used in constitutions or other normative acts. “The Russian Federation – Russia is a democratic federal legal state with a republican form of government” (Article 1 of the Constitution of the Russian Federation). At the same time, there are also norms-rules in constitutional law. For example, in accordance with Part 2 of Art. 99 of the Constitution of the Russian Federation “The State Duma meets for the first meeting on the thirtieth day after the election.” In constitutional law, there are also norms-goals, norms-programs. This was especially characteristic of Soviet constitutions, the constitutions of the socialist countries, and some constitutions of the developing states. Such norms are program provisions, often transferred to the constitution from the program documents of the only ruling party. Among the norms of constitutional law, a group of norms is distinguished, which are called “rules-clarifications” and “rules-references”. Such norms are contained in the preambles of constitutions and legislative acts. They, for example, record the most important facts from national history, turning points in the life of the country and cannot be changed or canceled without applying the established procedure for amending and changing the constitution or legislative act.
4. Constituent nature of the prescriptions contained in the norms of constitutional law. It is the constitutional and legal norms that determine the forms of legal acts, the procedure for their adoption and publication, the competence of state bodies in the field of lawmaking, i.e. a mandatory order for the establishment of all legal norms of other industries. The norms of constitutional law also determine the very system of public authorities.
5. A special mechanism for the implementation of constitutional and legal norms. Many constitutional and legal norms in their implementation are associated with the emergence not of specific legal relations, but of a special type of relationship of a general nature or legal status (state of citizenship, state of subjects within the Russian Federation).
6. The specific nature of the subjects whose relations are regulated by the norms of constitutional law. These are such subjects as the people, the state, nations and nationalities, the highest state bodies.
7. Features of the structure of the norms of constitutional law. The constitutional and legal norm must be considered as a logically integral prescription, formally fixing the state-imperious decree, therefore, one can speak of a three-member structure (hypothesis, disposition and sanction) only as a general model. The structure of some constitutional norms corresponds to this model, the structure of others is presented in the form of various modifications with a changed number of elements. The ratio of elements is determined by such factors as the nature of regulated social relations, the functions performed, the features of legislative policy, the degree of perfection of legal technology. So, for example, in the norms of the constitutional law of the Russian Federation, norms with referential sanctions prevail, and norms in which there is no hypothesis are very common.
The norms of constitutional law are diverse and differ from each other. Distinctive features give grounds for their classification.
1. According to the degree of certainty of the prescriptions contained in them, the norms of constitutional law are divided into dispositive and imperative. Dispositive – these are norms that leave the choice of behavior at the discretion of the participant in constitutional legal relations. These are, for example, the rules that give the government the right to resign or dissolve parliament or its lower house in the event of a vote of no confidence, the right of the head of state to declare a state of emergency under certain conditions, etc. A dispositive norm in constitutional law can: – give several options for its implementation (for example, the President of the Russian Federation can approve or not approve a law received from the State Duma); – one authority to grant to several subjects (Article 104 of the Constitution of the Russian Federation establishes
a list of entities with the right of legislative initiative); – leave it at the discretion of the addressee whether to exercise the authority or not (having received proposals for candidates for the post of judge of the Constitutional Court of the Russian Federation, the President of the Russian Federation at his own discretion decides whether to take into account the submitted candidates). However, there are fewer dispositive norms in constitutional law than imperative ones that prescribe certain behavior under appropriate circumstances.
2. By appointment in the mechanism of legal regulation, the norms of constitutional law are divided into substantive and procedural. The substantive norm provides for the content of the action for the legal regulation of social relations. “Federal laws are adopted by the State Duma” (Part 1, Article 105 of the Constitution of the Russian Federation). The procedural norms determine the forms in which this norm must be implemented: “Federal laws are adopted by a majority vote of the total number of deputies of the State Duma, unless otherwise provided by the Constitution of the Russian Federation” (Part 2, Article 105 of the Constitution of the Russian Federation). Regulations of the chambers of parliaments, in some countries – laws on parliaments, are special sets of procedural norms.
3. Classification by legal force is carried out in direct proportion to the normative act (constitution, law, by-law) in which the norm of constitutional law is expressed. The norms of constitutions have the greatest legal force. In the Russian Federation, on the basis of Art. 16 of the Constitution of the Russian Federation of 1993, the hierarchy of norms of constitutional law is fixed. No legal norm may contradict the Constitution. Federal constitutional laws have the greatest legal force. All other normative legal acts are issued on the basis of the Constitution and federal constitutional laws: federal laws and subordinate normative legal acts. The legal basis on the basis of which its content is formed also depends on the level of legal force of the norm. The legal force also determines the procedure for the abolition of the norm, the line of its interaction with other norms, their correlation.
4. By territory of action. Distinguish between the norms in force throughout the country, and the norms in force in the territory of a group of subjects of the Federation, individual subjects of the Federation, municipalities.
5. The norms of constitutional law are also classified according to the time of their action. There are norms of permanent action (which are not due to any period of validity) and norms of temporary validity (i.e. calculated for a fixed period, which can either be named in the act itself or not named, but the temporality of the norms is emphasized by the name – “temporary regulations” , “temporary situation”. Temporary norms can be those that are expressed in acts of temporary action, in transitional provisions of constitutions, etc. “The institutions of the Republic provided for by this Constitution, it is noted in the Constitution of France, will be created within four months from the date of its promulgation “(Part 1 of Article 91). In a number of countries, laws on a state of emergency have been adopted. The norms of such laws are valid only in the event of a state of emergency or martial law. “In a state of emergency, to ensure the safety of citizens and protect the constitutional order, in accordance with the federal constitutional law, separate restrictions on rights and freedoms may be established, indicating the limit ov and their validity period” (part. 1 st. 56 of the Constitution of the Russian Federation).
6. Constitutional and legal norms also differ in content, i.e. in terms of regulated social relations. Some norms are associated with the sphere of public relations, others – with the consolidation of the foundations of the legal status of a person and a citizen, others – with a federal structure, and fourth – with the system of state bodies. There are other interconnected sets of norms regulating relatively close spheres of social relations. When applying the norms, it is important to establish all these relationships, to determine their place in the system of other norms that regulate this sphere of social relations.
7. By the nature of the instruction contained. This feature reveals the mechanism of the regulatory impact of the norm. Distinguish rules authorizing, obliging and prohibiting. Enabling norms fix the right of subjects to perform the actions provided for in them, determine the scope of their powers. These are the norms that fix the competence of the Russian Federation, its subjects, the subjects of jurisdiction of all state bodies. The norms-principles, norms-goals, norms-tasks, etc., contained in the Constitution, can be referred to the authorizing norms. They consolidate the powers of all subjects to act for the purposes of the prescriptions provided for in them. Binding norms establish the obligations of subjects to correlate their behavior, actions with the settings of these norms, to choose a variant of behavior that meets their requirements. These include norms that fix the constitutional obligations of citizens, and norms that exclude a different option for action than that provided for in the norm. Prohibiting norms contain prohibitions on the commission of certain actions provided for in them.
8. By subjects of lawmaking. The norms of constitutional law can come from the people (decisions made at referendums), the legislative (representative) authority (laws of the state, normative acts of the parliament and its chambers), the president (decrees, orders), the highest executive authority (decrees and orders of the government) , other executive authorities, authorities of the subjects of the Federation. A special role in constitutional law is played by the decisions of the judicial body of constitutional control (in the Russian Federation, the Constitutional Court of the Russian Federation, constitutional (charter) courts of the constituent entities of the Russian Federation).