Topic 1. Constitutional law of Russia as a branch of law, science and academic discipline

"Constitutional law" is an ambiguous term, it is used, as a rule, in three aspects: as a branch of law, as a corresponding branch of science, and as an academic discipline. At the same time, a branch of law is usually called a set of legal norms (sub-branches, institutions) that regulate a certain range of social relations that fall under the subject of this branch. A branch of science is a body of knowledge (teachings, theories, views, hypotheses, etc.) about the relevant branch of law, history, regularities and prospects for the development of legal relations in this branch, improvement of legislation and other sources of legal regulation, etc. Academic discipline (training course ), as a rule, is based on the current legal norms of the relevant industry and represents a body of knowledge about both these current norms and the state of science.

1.1. The subject, method and system of constitutional law in Russia, its place in the system of national law

The main defining criteria of any branch of law are an independent subject and a specific method of legal regulation. The subject of any branch of law consists of certain groups of social relations regulated by the norms of this branch.

In accordance with the prevailing approach to understanding the subject of constitutional law (sometimes the term "object of constitutional and legal regulation" is used), constitutional law in Russia, as in any country, regulates two main blocks of social relations:

1) related to the legal status of the individual and its relationship with the state and civil society;

2) related to the organization of the state and the functioning of public authority.

Two fundamental points should be kept in mind here. Firstly, being the basic, backbone branch of the national system of law, constitutional law regulates only the foundations of these social relations, while detailed regulation of various aspects of the legal status of an individual (rights, obligations, guarantees and responsibilities of a citizen as an owner, land user, employee, pensioner, consumer, entrepreneur, civil servant, witness, pedestrian, etc.), as well as the status and functioning of various state bodies and other government institutions, is carried out by the norms of other branches of Russian law (civil, land, labor, administrative, procedural, etc.). At the same time, there are relations regulated by the norms of only (or mainly) constitutional law - the status of the President of the Russian Federation, the chambers of the Federal Assembly - the Parliament of the Russian Federation, the legislative process, etc.

Secondly, from the second half of the XX century. in the world there is a tendency to expand the subject of constitutional and legal regulation. Various institutions of civil society (public associations, political parties, trade unions, church, family, school, labor collectives, cultural and sports organizations, community amateur performance groups, etc.) increasingly fall under this regulation, through which a person integrates into public life and which often act as a kind of mediator in the relationship between the individual and the state. This trend is also visible in Russia, although we do not have detailed regulation of the political, social, economic and spiritual spheres of society at the level of the main law.

Like any branch of law, constitutional law affects regulated social relations through a variety of legal techniques, means and methods (prescriptions, permissions, prohibitions, etc.). It is impossible to talk about the presence in constitutional law of its own method of legal regulation, but it should be emphasized that the distinctive feature of the method of constitutional and legal regulation is its imperativeness, the predominance of rigid, imperious prescriptions and rules.

Thus, the constitutional law of Russia is the leading, backbone branch of Russian law, a set of legal norms that fix and regulate the foundations of the legal status of an individual, public associations and other institutions of civil society, the economic, political, social and spiritual life of society, the organization of the state and the functioning of public authority. .

It is constitutional law that underlies the entire legal system of Russia, the Russian state and society operate on the basis of the norms of this branch of law, constitutional norms underlie the developed sectoral legislation of the Russian Federation.

The system of any branch of law is formed by the norms of law that make up this branch, united into institutions (sub-institutions) and sub-sectors. Describing the system of constitutional law in Russia, it should be noted that, firstly, in contrast to the "binary" branches (civil law - civil process, criminal law - criminal process, administrative law - administrative process, etc.), in constitutional law it is difficult to single out purely substantive constitutional law and constitutional process, although there are certainly procedural norms in constitutional law. These norms govern the dynamics of the legislative process, the electoral process, the holding of a referendum, the procedure for dismissal of the President of the Russian Federation, heads of subjects of the Russian Federation or the dissolution of representative bodies of power, etc.

Secondly, in the system of constitutional law, unlike many other branches of the national system of law (civil, administrative, criminal, labor, land, etc.), it is difficult to distinguish between general and special parts. Usually, the constituent sub-sectors and institutions are directly included in the system of constitutional law. At the same time, there is no clear boundary between sub-sectors and institutions (sub-institutions): in particular, it is difficult to correlate the scope and content of the institution of state power, on the one hand, and the sub-sectors of parliamentary law and electoral law, the institution of the head of state, on the other.

At the same time, with a certain degree of conditionality, two parts can be distinguished in the system of constitutional law in Russia:

1. General provisions, which include the following institutions:

▪ The Constitution of the Russian Federation and its properties;

▪ foundations of the constitutional system of Russia;

▪ the basics of the constitutional and legal status of the individual (including the institution of citizenship in the Russian Federation).

2. The constitutional system of power (institutional and territorial aspects), including the following sub-sectors and institutions:

▪ parliamentary law of the Russian Federation;

▪ electoral law and the electoral process in the Russian Federation;

▪ institution of the head of state;

▪ Institute of the Government of the Russian Federation;

▪ constitutional foundations of the judicial system, judicial power and prosecutor's office in the Russian Federation;

▪ territorial organization of public power (federal structure of Russia and constitutional foundations of local self-government).

Each component of the system of constitutional law is a corresponding set of constitutional and legal norms with its narrower subject of legal regulation, a certain range of subjects and specific sources.

1.2. Features of constitutional legal norms and constitutional legal relations

Along with the general features inherent in any legal norm (universal, non-personalized character, consciously volitional character, formal certainty, provision with the power of state coercion, etc.), constitutional legal norms have a number of distinctive features.

▪ Unlike the norms of other branches of law, some constitutional and legal norms are declarative in nature; such norms cannot always give rise to a specific legal relationship or form the basis of a law enforcement decision; Constitutional law is characterized by the presence of norms-principles, norms-goals, etc. Examples of such norms are the provisions of the preamble of the Constitution of the Russian Federation, Art. 1 ("The Russian Federation... is a democratic..., rule-of-law state..."), Art. 2 (“Man, his rights and freedoms are the highest value...”), etc. However, the above does not detract from the significance of the constitutional and legal norms under consideration: being prescriptions of a general nature, they are of significant importance not only in the social, political, ideological, but and in legal terms (these norms, in particular, are regularly referred to by the Constitutional Court of the Russian Federation in its acts). In addition, most of the constitutional and legal norms (establishing the system of power and the status of public authorities, the grounds for acquiring Russian citizenship, the delimitation of jurisdiction and powers between the federal center and the constituent entities of the Russian Federation, etc.) are still specific, and not declarative in nature.

▪ Since constitutional law is a branch of public law, most constitutional legal norms are imperative in nature, i.e. they represent rules and regulations that do not allow any other options for interpretation or behavior, for example: “the bearer of sovereignty and the only source of power in the Russian The Federation is its multinational people" (Part 1, Article 3 of the Constitution of the Russian Federation), "laws are subject to official publication..." (Part 3, Article 15), "No one can be convicted again for the same crime" ( Part 1, Article 50), “the same person cannot hold the position of President of the Russian Federation for more than two terms in a row” (Part 3, Article 81), “Before the newly elected President of the Russian Federation, the Government of the Russian Federation resigns its powers” ​​(Article 116 ) etc. At the same time, constitutional law also contains some positive (less rigid, giving the relevant subject the opportunity to choose) norms, for example: “The Government of the Russian Federation may submit a resignation, which is accepted or rejected by the President of the Russian Federation” (Part. 1 tbsp. 117 of the Constitution of the Russian Federation), “if the State Duma, within three months, repeatedly expresses no confidence in the Government of the Russian Federation, the President of the Russian Federation announces the resignation of the Government or dissolves the State Duma” (Part 3 of Article 117), “The Constitutional Assembly either confirms the immutability of the Constitution of the Russian Federation, or develops a draft of a new Constitution of the Russian Federation, which is adopted by the Constitutional Assembly... or submitted to a popular vote..." (Part 3 of Article 135), etc.

▪ Constitutional legal norms often have a truncated structure; most norms of constitutional law are not characterized by the presence of sanctions (often the norm consists only of a disposition): “The President of the Russian Federation has immunity” (Article 91 of the Constitution of the Russian Federation), “The State Duma is elected for a term of four years "(Part 1 of Article 96), "Local self-government is exercised by citizens through a referendum, elections, other forms of direct expression of will, through elected and other local government bodies" (Part 2 of Article 130), etc. At the same time, some constitutional -legal norms also contain sanctions - unfavorable consequences for subjects of constitutional legal relations who do not comply with the relevant regulations (rules on the removal from office of the President of the Russian Federation or the head of a region, on the dissolution of the legislative body of a subject of the Russian Federation, on the recall of a deputy of a representative body of power, etc.).

▪ Constitutional legal norms (primarily the norms of the Constitution of the Russian Federation) have a constituent character, including for other branches of Russian law. It is on the basis of constitutional and legal norms that the developed sectoral legislation of the Russian Federation has been formed; constitutional provisions are the source of almost all branches of the national legal system. Thus, the civil legislation of Russia is based on constitutional norms on diversity and equal protection of all forms of property, freedom of economic activity, unity of economic space, etc. (Articles 8, 34, 35 of the Constitution of the Russian Federation); labor legislation develops the norms of the Constitution of the Russian Federation on social statehood (Article 7), on freedom of labor and the right to rest (Article 37), etc.; land legislation cannot fail to take into account the requirements of the Constitution of the Russian Federation on the possibility of land and other natural resources being in private ownership, on the special legal regime of these objects of legal relations (Articles 9, 36, 42, 58); procedural legislation is based on the constitutional principles of justice and the functioning of the judiciary (Articles 46-54, Chapter 7 of the Constitution of the Russian Federation), etc.

It is possible to single out some features of constitutional and legal relations (due mainly to the specifics of the subject, method of constitutional and legal regulation and constitutional and legal norms).

▪ Constitutional legal relations are basic social relations in those areas that fall under the object of constitutional legal regulation (specificity of the object of legal relations), accordingly, the content of constitutional legal relations consists only of the fundamental (without detail) rights and obligations of the subjects of these relations in the field of legal regulation of the status of an individual, organization of the state and the functioning of public authority.

▪ The specificity of the subject composition includes the fact that the subject of only constitutional legal relations can be the people (namely the people, and not the population of a certain territory, a certain group of citizens, etc.), in particular, when participating in a referendum, in general elections, in lawful acts of disobedience the existing illegal, anti-constitutional regime.

▪ Along with the traditional grounds for the emergence, change and termination of legal relations - events (birth of a person, reaching the age of active and passive voting rights, death of the head of state or a deputy of a representative body, etc.) and actions (calling elections, adoption of a law, dissolution of the State Duma, publication of an unconstitutional act, etc.), constitutional legal relations can also give rise to legal facts - states (for example, the state of citizenship of the Russian Federation, the state of a subject within the Russian Federation).

▪ A special mechanism for implementing constitutional legal relations. Since constitutional legal norms are not characterized by the presence of sanctions, the implementation of constitutional legal regulations, rights and obligations of subjects of constitutional legal relations is ensured mainly through the norms of other branches of law (criminal, administrative, labor, civil, housing, procedural, etc.).

Author: Nekrasov S.I.

>> Forward: Constitutional development of Russia (Ideas of constitutionalism in Russia before October 1917. Constitutional (state) law of Russia in the Soviet (socialist) period. The formation of modern constitutionalism in Russia)

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