Topic 3. Sources of Russian constitutional law

Sources of constitutional law are external forms of expression of constitutional legal norms. The theory of law names as the main sources of law a normative legal act, legal precedent and legal custom (along with such sources as an agreement (sometimes referred to as a "normative agreement"), legal doctrine, party documents (in conditions of one-party systems), religious norms, etc. .).

It can be argued that all the main sources of law take place in the Russian legal system. Since the Russian Federation belongs to the number of states of the continental (European, Romano-Germanic) legal system, the main source of law (including constitutional) in Russia is the result of the rule-making activities of various government institutions - a normative legal act. In turn, a group of normative legal acts is a very voluminous set of sources, so it can be subject to internal classification. At the same time, the system of normative legal acts is distinguished by a clear hierarchy and correlation in legal force.

The most common division of normative legal acts is their division into laws and by-laws. Law is a collective concept, the legal system of modern Russia knows the following types of laws:

1) the Constitution of the Russian Federation - the Basic Law of the state;

2) federal constitutional laws. This type of laws appeared in Russia only with the adoption of the Constitution of the Russian Federation in 1993. In essence, Russian federal constitutional laws are organic laws, they are adopted only on issues expressly provided for by the Constitution of the Russian Federation, in development of its provisions. The Constitution of the Russian Federation does not always unambiguously determine whether one or more federal constitutional laws must (or can) be adopted in the relevant area of ​​public relations; The Basic Law provides for about two dozen issues on which federal constitutional laws should be adopted. They should regulate important areas of public relations: the country's judicial system, the status of the Constitutional Court of the Russian Federation, arbitration courts and courts of general jurisdiction, the Government of the Russian Federation, the Commissioner for Human Rights in the Russian Federation, military and state of emergency regimes, the procedure for holding a referendum, etc. Federal constitutional laws differ from other laws, not only with greater legal force (federal laws cannot contradict federal constitutional laws - part 3 of article 76 of the Constitution of the Russian Federation), but also with a more complex procedure for their adoption: for the adoption of these laws, approval by a qualified majority of the chambers of the Federal Assembly of the Russian Federation is required (not less than 3/4 of the votes of the total number of members of the Federation Council and at least 2/3 of the votes of the total number of deputies of the State Duma); in relation to the federal constitutional laws adopted by the Parliament, the President of the Russian Federation does not have the right of veto;

3) federal laws. This is the most numerous type of sources of constitutional law. However, the following circumstances must be kept in mind here.

Firstly, in contrast to federal constitutional laws, the sources of constitutional law are not all federal laws adopted in Russia, but only those of them, the content of which falls under the subject of constitutional legal regulation (in particular, regulating issues of citizenship, the status of the head of state, deputy representative body of power, the procedure for the formation of the chambers of parliament, etc.).

Secondly, such laws can be adopted only on subjects of exclusive jurisdiction of the Russian Federation and joint jurisdiction of the Russian Federation and its subjects (Articles 71, 72 of the Constitution of the Russian Federation).

Thirdly, federal laws (as well as the laws of the constituent entities of the Russian Federation) are, as a rule, normative acts, but it is possible to adopt a law and a special, individual, in fact, administrative nature (for example, on the dissolution of the representative body of a municipality, on the transfer to a foreign state of a specific property of cultural value, in accordance with the provisions of the Federal Law of April 15.04.1998, 64 No. XNUMX-FZ "On cultural property transferred to the USSR as a result of World War II and located on the territory of the Russian Federation"). Such federal laws are also constitutional and legal in their content, but they cannot be considered as a source of law, since they do not contain legal norms as such (based on the fact that a legal norm is a generally binding rule of conduct that extends its effect to an indefinite circle of persons) .

Fourthly, all federal laws have the same legal force, however, the federal legislator has the right to establish the priority of individual federal laws (primarily codified acts) over other federal laws in a certain area of ​​public relations (the corresponding legal position was set out by the Constitutional Court of the Russian Federation in the Decree dated June 29.06.2004, 13 No. 7-P in the case of checking the constitutionality of certain provisions of articles 15, 107, 234, 450 and 6 of the Code of Criminal Procedure of the Russian Federation in connection with the request of a group of deputies of the State Duma). With regard to the sphere of constitutional and legal regulation, such a situation takes place, in particular, in the electoral legislation - paragraph 1 of Art. 12.06.2002 of the Federal Law of June 67, XNUMX No. XNUMX-FZ "On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation" and establishes the priority of the said Federal Law over other federal laws (it is important to keep in mind that the priority of one federal law established by the legislator over others is not unconditional, but is limited by the framework of a special subject of regulation). Federal laws are adopted according to a simpler (usual) procedure compared to federal constitutional laws;

4) laws on amendments to the Constitution of the Russian Federation. These laws must be singled out as an independent group not only on the basis of the specifics of their content, but also due to a special adoption procedure. General provisions for the adoption of laws on amendments are contained in Art. 136 of the Constitution of the Russian Federation, and the details are in the Federal Law of March 04.03.1998, 33 No. 3-FZ "On the procedure for the adoption and entry into force of amendments to the Constitution of the Russian Federation." By adopting the laws in question, changes can be made not to all chapters of the Basic Law, but only to ch. 8-XNUMX, changing other chapters is possible only in the order of revision, i.e., the adoption of a new Constitution. The procedure for enacting amendment laws is much more complicated than for ordinary federal laws. So far, there has been no practice of adopting laws on amendments to the Constitution in Russia;

5) laws of subjects of the Russian Federation. This type of sources of constitutional law is also relatively new. The Constitution of the Russian Federation of 1993 granted the subjects of the Russian Federation fairly broad powers, including the right to adopt their own laws. The Russian regions very actively use this right, and the number of these regulatory legal acts is extremely large. The place of these laws in the hierarchical system of normative legal acts of the Russian Federation cannot be unequivocally determined; here it is necessary to take into account the scope of legal (legislative) regulation. The fact is that they can be adopted both on subjects of their own jurisdiction of the subjects of the Russian Federation, and on subjects of joint jurisdiction of the Russian Federation and its subjects (Articles 72, 73, part 4 of Article 76 of the Constitution of the Russian Federation), and in the latter case, regional laws must comply with federal (including those adopted later), and in the first case, regional law has priority. The sources of constitutional law are not all regional laws, but only those regulating social relations that fall under the subject of constitutional and legal regulation.

A large group of normative legal acts - the sources of constitutional law - are by-laws. At the same time, not all of them are sources of constitutional law, but only those that regulate social relations that are the subject of the leading branch of law. These include:

1) decrees of the President of the Russian Federation. It should be clarified that the decrees of the head of state, which are part of the sphere of constitutional and legal relations, but are individual, and not normative in nature (for example, on granting citizenship, on awarding state awards, on pardon, on dismissal of the head of the region, etc. ), as well as the orders of the President of the Russian Federation, which are of a normative nature are extremely rare, cannot be considered as sources of law, since they do not contain generally binding rules of conduct. Examples of sources of law under consideration, in particular, are Decrees of the President of the Russian Federation of December 28.12.2001, 1500 No. 14.11.2001 "On commissions for pardons in the territories of the constituent entities of the Russian Federation", of November 1325, 13.05.2000 No. 849 "On approval of the Regulations on the procedure for considering issues of citizenship of the Russian Federation", dated May 21.04.2000, 706 No. XNUMX "On the Plenipotentiary Representative of the President of the Russian Federation in the Federal District", dated April XNUMX, XNUMX No. XNUMX "On the Approval of the Military Doctrine of the Russian Federation", on the introduction of a state of emergency in certain areas, etc.;

2) Decrees of the Government of the Russian Federation. These acts must not contradict not only the Constitution of the Russian Federation and federal laws, but also the decrees of the President of the Russian Federation, who has the right to cancel government decrees if they contradict legal acts of greater legal force;

3) departmental acts (orders, regulations, instructions, rules) issued by executive authorities within their competence. These acts should not contradict, among other things, the resolutions of the Government of the Russian Federation. Governmental and departmental acts (Ministry of Internal Affairs of the Russian Federation, Ministry of Justice of the Russian Federation, etc.) may, in particular, approve the rules for considering issues of citizenship of the Russian Federation, registration of citizens, registration of political parties and other public associations, features of the implementation of certain constitutional rights (electoral , for freedom of movement, for work and leisure, for freedom of correspondence, etc.) by citizens serving criminal sentences, etc.;

4) acts of the chambers of the Federal Assembly (except for laws) that have a normative character. Here, first of all, we mean the regulations of the State Duma and the Federation Council, which are important in regulating the procedure for exercising the powers of the chambers of parliament (sometimes these acts are singled out as an independent group of sources of constitutional law).

5) other (except for laws) regulatory legal acts of the constituent entities of the Russian Federation (primarily acts of the executive authorities of the regions: presidents of the republics, governors and heads of administrations of other constituent entities of the Russian Federation, regional governments, administrations, their departments, departments, departments, etc.), as well as acts of local governments adopted within their competence (in particular, on issues of organizing local public authorities).

The assignment of other forms of law to the sources of the constitutional law of Russia is indisputable and debatable.

Judicial precedent is the main source of law in countries of the Anglo-Saxon legal system. In the countries of the continental legal system, which includes Russia, judicial precedent is not considered as a source of law. However, the following must be kept in mind here. As a general rule, decisions of courts of general jurisdiction and arbitration courts in Russia are not a source of law. But relatively recently, such judicial bodies as the Constitutional Court of the Russian Federation and constitutional (statutory) courts of the constituent entities of the Russian Federation appeared in the judicial system of the Russian Federation. The legal nature of the decisions of these judicial bodies is fundamentally different: they are essentially normative and precedent in nature, obligatory not only for persons participating in the case (i.e., they apply to an indefinite circle of persons), decisions of constitutional justice bodies are final, they cannot be canceled in in the order of appeal, cassation, supervision, overcome by re-adopting an act declared unconstitutional. Consequently, decisions of judicial bodies of constitutional justice in the Russian Federation should be considered as sources of constitutional law.

It is possible to speak about legal custom as a source of the constitutional law of the Russian Federation with a significant degree of conventionality. The fact is that customs, before becoming the norm, must be fixed in the rules of conduct for a sufficiently long time and be sanctioned by the state (at least in the form of tacit approval), while the period of truly constitutional development in Russia is still short. At the same time, we can be cautious about the appearance in the Russian doctrine and practice of certain constitutional customs (primarily in the sphere of functioning of public power), for example: the President of the Russian Federation nominates the candidacy of the Chairman of the Government of the Russian Federation to the State Duma only after preliminary consultations with the leaders of parliamentary factions and deputy groups distribution of leadership positions in the State Duma and parliamentary committees between factions in proportion to the mandates received, assigning groups of bills, depending on the subject of regulation, to certain parliamentary committees and commissions, exercising part of the constitutional powers of the head of state (pardoning, awarding state awards, forming the judiciary, etc.). ) only in agreement with the regions, etc.

The treaty can be considered as a source of constitutional law. At the same time, if international treaties existed in the domestic legal system for a long time, then intra-federal (intrastate) treaties are a relatively new phenomenon for Russian reality. Agreements between state authorities of the Russian Federation and state authorities of its subjects are provided for by the federal Constitution (part 3 of article 11, parts 2, 3 of article 78).

The concept of a "self-executing treaty" has not been adopted in Russia: both international treaties and treaties concluded between federal and regional government bodies do not enter into force automatically after signing. In accordance with Federal Laws No. 15.07.95-FZ of July 101, 06.10.1999 "On International Treaties of the Russian Federation" and No. 184-FZ of October XNUMX, XNUMX "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation", they are subject to ratification (approval) through the adoption of a federal law, which brings these agreements closer, in fact, to regulatory legal acts.

Some constitutionalists (M. V. Baglai, A. E. Kozlov and others) consider natural law as a set of natural, inalienable human rights and freedoms as an independent source of constitutional law (all the sources considered above are combined into positive law with this approach). Such an approach certainly has a right to exist. However, any right must be realizable and protected, and the implementation and, especially, the protection of rights and freedoms are possible with the positive consolidation of these rights and freedoms (in a normative act, a court decision, an agreement, etc.). Practically all generally recognized (natural) human rights and freedoms in the Russian Federation are fixed positively, at the level of the Basic Law, including thanks to the wording of Part 4 of Art. 15 and Art. 55 of the Constitution of the Russian Federation.

Author: Nekrasov S.I.

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