Fundamentals of the constitutional order Russian Federation

Introduction____________________________________________________________ 3

Chapter 1. The concept of the foundations of the constitutional order of the Russian Federation 4

Chapter 2. Fundamentals of the constitutional order of the Russian Federation ______

2.1. Democratic state________________________________

2.2. Man, his rights and freedoms as the highest value _____________

2.3. Sovereign state ______________________________________

2.4. Economic basis _______________________________________

2.5. Welfare state ___________________________________________

Chapter 3. On threats to the constitutional order in the 21st century and the need for legal reform in Russia

Conclusion______________________________________________________

List of used literature and sources ___________________

Introduction

Each state is characterized by certain features in which its specificity is expressed. It can be democratic or totalitarian, republic or monarchy, etc. The combination of these features allows us to talk about a certain form, a certain way of organizing the state or about state system. This system, enshrined in the constitution of the state, becomes its constitutional system. Thus, the constitutional system is a certain form or a certain way of organizing the state, enshrined in its constitution.

However, there is another concept of the constitutional system, which is laid down, in particular, in the Constitution of the Russian Federation and does not apply to any state, but only to one whose form or method of organization is characterized by strictly defined features that make it possible to consider it a constitutional state.

The fact is that the presence of a constitution in a state does not mean at all that such a state can be considered constitutional. The constitutional state is characterized, first of all, by the fact that it ensures the subordination of the state to law.

It is known that any state, including a totalitarian one, is to some extent subject to law, is both a subject of law and a factor in law formation. Therefore, in order for the state to fully obey the law, this subordination must be provided with certain guarantees. These guarantees in their totality provide such a form or such a way of organizing the state, which can be called a constitutional system.

Thus, the constitutional system is a form or method of organizing the state, which ensures its subordination to law and characterizes it as a constitutional state.

Limitation state power right has one of the goals of creating optimal conditions for functioning civil society, which is an integral attribute of a constitutional state

Chapter 1. The concept of the foundations of the constitutional order of the Russian Federation

The leading place among the legal norms regulating the constitutional system of Russia belongs to the norms of the Constitution of the Russian Federation. This is due to the fact that the Constitution is endowed with the highest legal force and is the basis of current legislation.

The main role among them is played by the norms that fix the basic foundations of the Russian constitutional system, in which its humane essence, belonging to the family of democratic countries, is expressed. They act as pillars fundamentals of the constitutional order, which provide the Russian Federation with the character of a constitutional state.

In this way, the foundations of the constitutional order of the Russian Federation are understood as the main foundations of the state, its basic principles, which are designed to ensure the character of the constitutional state for the Russian Federation.

The Constitution of the Russian Federation contains a separate chapter (I) devoted to the foundations of the constitutional order of the Russian Federation, covering a fairly wide range of constitutionally regulated social relations that constitute the main foundations of the constitutional order of Russia.

Among the foundations of the constitutional system, according to the Constitution of the Russian Federation (Article 1), are primarily the foundations inherent in every constitutional state. These include democracy expressed in popular sovereignty; separation of powers; ideological and political diversity; in recognizing and guaranteeing local self-government, as well as the rule of law, the embodiment of which is the constitutional state. The basis of the constitutional state is also the recognition by the state of a person, his rights and freedoms the highest value. Such a basis is also a social market economy, within which the production and distribution of goods and benefits are mainly carried out.

Among the foundations of the constitutional system, enshrined in the Constitution of the Russian Federation, there are also federalism, sovereignty Russian state and republican form of government. They are not decisive for the characterization of Russia as a constitutional state. After all, republics within the Russian Federation are also constitutional states, although they are neither federal nor sovereign states. Many constitutional states and republics are not (for example, England, Denmark, Sweden and many others). The inclusion of federalism, sovereignty and the republican form of government among the foundations of the constitutional system of the Russian Federation is ensured by the desire of the legislator to give the most complete picture of the main features that characterize the Russian statehood. However, this does not mean that these foundations are in no way connected with the rest of the principles. On the contrary, in the conditions of the Russian Federation, they create the most favorable environment for the implementation of all other principles of Russian statehood.

And in general, each constitutional principle does not exist by itself. Together they constitute the state and therefore should be considered only in conjunction. These principles can complement and correct each other, and therefore, they are all interdependent.

Being the foundations of the Russian statehood, all of them can be changed only in a special order, specially established by the Constitution of the Russian Federation (Article 16). At the same time, no other provisions of the current Constitution of the Russian Federation may contradict the foundations of the constitutional order of the Russian Federation (Article 16).

Fixing the foundations of the constitutional order of the Russian Federation, the Constitution of the Russian Federation regulates not all, but the most important social relations that characterize the Russian statehood. The totality of legal norms regulating these relations forms the constitutional legal institution "Fundamentals of the Constitutional System of the Russian Federation", which occupies a leading place in the system of constitutional law in Russia.

Chapter 2. Fundamentals of the constitutional system of the Russian Federation

2.1. Democratic state

In accordance with the Constitution of the Russian Federation (Article 1). The Russian Federation is a democratic state. Its democratism finds expression, first of all, in providing in it democracy; separation of powers into legislative, executive and judicial; ideological and political diversity; local government .

The Constitution of the Russian Federation states (Article 3) that the bearer of sovereignty and the only source of power in the Russian Federation is its multinational people. This means that Russia is proclaimed a state of democracy or, in other words, a democratic state (democracy is the translation of the word "democracy" from ancient Greek).

Concerning people, then, from a legal point of view, the word “people” is identified with the concept of “citizens” and is defined as belonging to a given, associated within the framework of a single state, set of people to the corresponding state. The people form the physical substance of the state.

Power represents the ability to dispose or manage someone and something, to subordinate others to one's will. Power is a social phenomenon. It appears along with the emergence of human society and exists in every human society, since every human society requires management, which is provided various means including coercion.

With the emergence of the state, state power also arises, acting as one of the essential features of the state. State power has as its main elements the general will and force capable of ensuring the subordination of all members of society to it.

State power is characterized by the sovereignty of the state. It is manifested in the supremacy of state power, its unity and independence.

State power does not coincide directly with the population and is exercised by a special apparatus. Such an apparatus is the state apparatus, which is a set of state institutions through which the functions of the state are implemented. The state apparatus unites all government bodies, as well as the army, intelligence, compulsory institutions

State power has the power of state coercion, carried out by a coercive apparatus specially adapted for this purpose, which is part of the state apparatus. The state, in necessary cases, applies measures of state coercion to persons committing offenses. These measures, depending on the nature of the violations, are divided into disciplinary punishments, administrative impact, civil liability and criminal penalties.

State power is not the only form of power for the people. Its other form is local government . Local self-government bodies are not included in the system of state authorities.

In a democratic state, the only source of power and its bearer is the people. The recognition of the people as the supreme bearer of all power is the expression of popular sovereignty. popular sovereignty means that the people, not sharing their power with anyone, exercise it independently and independently of any social forces, use it exclusively in their own interests. Popular sovereignty is indivisible, has and can have only one subject - the people.

As already noted, the Constitution of the Russian Federation establishes the prerogative of the multinational people of Russia for all power, its sovereignty. This means that the Russian people do not share power with anyone, and no one but themselves can claim power in the Russian Federation. “No one can usurp power in the Russian Federation,” states the Constitution of Russia (Article 3). “The seizure of power or the appropriation of power is punishable by federal law.”

In this way, democracy means that all power belongs to the people, as well as the free exercise of this power by the people in full accordance with its sovereign will and fundamental interests.

AT under the conditions of democracy, the exercise of power is constituted, legitimized and controlled by the people, i.e., by the citizens of the state, since it acts in the form of self-determination and self-government of the people, in which all citizens can participate on an equal footing.

The people of the Russian Federation exercise their power both directly and through state authorities and local self-government bodies (Article 3 of the Constitution).

Depending on the form of expression of the will of the people, representative and direct democracy are distinguished.

Representative Democracy- the exercise by the people of power through elected authorized representatives who make decisions expressing the will of those whom they represent, the entire people, the population living in a particular territory.

Elected representation is the most important means of ensuring genuine democracy. It is formed by state bodies elected by the people and local self-government bodies.

Direct Democracy- it is a form of direct expression of the will of the people or any groups of the population. “The highest direct expression of the power of the people,” states the Constitution of the Russian Federation (Article 3), “are a referendum and free elections.”

2.2. Man, his rights and freedoms as the highest value

The Constitution of the Russian Federation (Article 2) considers a person, his rights and freedoms as the highest value. Thus, it declares its understanding of the relationship between the state and the individual, bringing the individual to the fore. Respect for the individual and its protection is an integral attribute of a constitutional state, its duty "Recognition, observance and protection of the rights and freedoms of man and citizen, - is indicated in the Constitution of the Russian Federation (Article 2), - the duty of the state."

The fundamental provisions established by the Constitution related to the attitude of the state to a person serve as a prerequisite for solving all the specific problems of legal regulation of the status of a person and a citizen in the Russian Federation. "Thus, the recognition of a person, his rights and freedoms as the highest value is a fundamental norm of the constitutional order of the Russian Federation, which forms the most important basis not only for a constitutional organized society, but also for the legal protection of this society from the revival of attempts to create conditions for suppressing the individual, infringing on his rights, ignoring individual interests and needs of people.

It must be said that the connection between the recognition of a person and his rights and freedoms as the highest value and specific rights and freedoms of a person and a citizen is that if Article 2 of the Constitution of the Russian Federation, which formulates the principle of the relationship between a person and the state, sets out this principle only negatively, then i.e. from the point of view of a possible violation of human rights, meaning only the object of protection, then the articles of the Constitution devoted to specific fundamental rights and freedoms of a person and a citizen are already formulated more subjectively and from positive positions (for example, Article 22 of the Constitution states that Everyone has the right to liberty and security of person).

The principle of recognizing a person, his rights and freedoms as the highest value should have a decisive influence not only on the content of the fundamental rights and freedoms of a person and citizen, but also on all the activities of a democratic state, its competence and potential.

The constitutional state is based on popular sovereignty, which is one of its most important foundations. Meanwhile, the bearer of this sovereignty, the people, consists of citizens, from whom, in the final analysis, all power comes.

Under the conditions of a constitutional state, the people become a democratically constituted community, consciously oriented towards the protection of man as the highest value and seeing this as his duty. Such an orientation of the people makes it possible to avoid the consequences that were the result of a conscious exaggeration of the role of the collective and the state and led to the domination of totalitarianism.

A people that is permanently unable or unwilling to recognize the value of the individual and act accordingly cannot be organized into a truly democratic society, even with the help of different kind legal instruments.

Thus, the authority of any organization, including the state, is by its nature secondary. There is no and cannot be recognition of the value of the state or any other organization, if the highest value of a person and a citizen is not recognized at the same time.

2.3 Sovereign state

Sovereignty of the state is the property of the state to independently and independently of the power of other states to exercise its functions on its territory and beyond its borders, in international communication

The sovereignty of the state is manifested in the supremacy of state power, its unity and independence.

In the literal sense, the word "sovereignty", derived from the Latin again supraneitas (from supra - above), means the supremacy of power by virtue of which it is "higher", i.e. her dominance. Supremacy state power is manifested in the fact that it determines the entire system of legal relations in the state, establishes the general legal order, legal capacity, rights and obligations of state bodies, public associations, officials and citizens. A vivid expression of the supremacy of state power is the supremacy throughout the state of the constitution and other laws issued by the highest bodies of state power.

An important property of sovereign state power is its independence. Independence of state power means the independence of the state in relations with other states

Since its founding in 1917, the Russian Federation has never formally lost its sovereignty. It was recognized as a sovereign state by all Soviet constitutions in force on its territory, both union and republican. However, this sovereignty was only of a potential nature. It could be realized only in the event of Russia's withdrawal from the USSR.

A significant step towards ensuring the true sovereignty of the Russian Federation was the Declaration "On the State Sovereignty of the Russian Soviet Federative Socialist Republic", adopted on June 12, 1990 by the first Congress of People's Deputies of the RSFSR. Expressing the will of the peoples of the RSFSR, the Declaration proclaimed the state sovereignty of the RSFSR throughout its territory and declared determination to create a democratic legal state as part of the renewed USSR.

The declaration characterizes the RSFSR as a sovereign state, created by the peoples who have historically united in it. It emphasizes that the sovereignty of the RSFSR is the only and necessary condition the existence of Russia, which has a centuries-old history, culture and established traditions, that it is proclaimed in the name of higher goals - ensuring to each person the inalienable right to a decent life, free development and use of their native language, and to each people - to self-determination in their chosen national-state and national - cultural forms.

For the first time, the multinational people of the RSFSR are recognized as the bearer of sovereignty and the source of state power, and their right to the direct exercise of state power is secured.

The Declaration states that it is the basis for the development of a new Constitution of the RSFSR and the improvement of republican legislation.

In order to protect the economic basis of the sovereignty of the Russian Federation and guided by the Declaration on State Sovereignty of the Russian Federation, on October 31, 1990, the Supreme Council of the Russian Federation adopted the Law "On Ensuring the Economic Basis for the Sovereignty of the RSFSR".

The main ideas of the Declaration and the Law "On Ensuring the Economic Basis for the Sovereignty of the Russian Federation" are reflected in the current Constitution of the Russian Federation. Thus, the Constitution establishes that the bearer of sovereignty and the only source of power in the Russian Federation is its multinational people (Article 3); that the sovereignty of the Russian Federation extends to its entire territory, and the Constitution of the Russian Federation and federal laws have supremacy throughout the entire territory of the Russian Federation (Article 4)

2.4 Economic basis

The economic basis of the constitutional system of the Russian Federation is the social market economy, which is in its infancy, within which the production and distribution of goods and benefits is carried out mainly through market relations, the participants of which are private business entities that are in a competitive relationship with each other. The Russian Federation supports this competition, and also takes measures to prevent monopoly privileges and exercises appropriate control.

“In the Russian Federation,” the Constitution of the Russian Federation states (Article 8), “the unity of the economic space, the free movement of goods, services and finances, support for competition, freedom economic activity».

The Russian Federation also has the Law “On Competition and Restriction of Monopoly Activities in Commodity Markets” dated March 22, 1991, which defines the organizational and legal framework for the prevention, restriction and suppression of monopoly activities and unfair competition and is aimed at providing conditions for the creation and effective functioning of commodity markets. markets.

By creating a social market economy, the Russian Federation strives to ensure freedom of economic activity, entrepreneurship and labor, fair competition and public benefit, so that the state regulates economic life in the interests of the individual and society, and economic relations are built on social partnership between man and the state , employee and employer, manufacturer and buyer.

The economic system of the Russian Federation is characterized by a variety of forms of ownership. The legal regulation of property relations is carried out through various legal norms, the central place among which belongs to the constitutional norms that serve as the basis for the entire legal regulation of property relations in the state.

The most important areas for creating a market economy in Russia are the privatization and denationalization of economically significant property.

In the Russian Federation, property relations not provided for by the Constitution are regulated by Civil Code and other legislative acts of the Russian Federation, as well as legislative acts of the republics within the Russian Federation, territories, regions, cities of federal significance, autonomous region and autonomous regions issued within the limits and powers.

2.5. welfare state

According to the Constitution of the Russian Federation (Article 7), the Russian Federation is a social state. Under the social it is customary to understand the state, the main task of which is to achieve such social progress, which is based on the principles of social equality, universal solidarity and mutual responsibility enshrined in law. The welfare state is designed to help the weak, strive to influence the distribution of economic benefits in the spirit of the principle of justice in order to ensure the existence of every worthy person.

It should be noted that declaring Russia a social state does not mean the country's return to a totalitarian state that promised its citizens general welfare through the creation of an economic system fully managed and organized by the state. possible in a democratic country to contribute equally to the welfare of all citizens and to the maximum possible even distribution of life's hardships.

The welfare state seeks to provide each of its citizens with a living wage worthy of a person.

The main goal of the state is to provide each of its inhabitants, as it is said, with a decent living wage. This is implemented in two ways:

1. Ensuring a decent standard of living for the working population at the expense of earned wages and providing jobs.

2. Providing disabled and low-income segments of the population with a decent standard of living through state payments and subsidies.

But, unfortunately, at present, the state Russian economy does not allow you to fully perform the above functions. The minimum wage and pension do not provide a normal and standard of living.

One can only hope that this phenomenon is temporary for our country.

Chapter 3. On threats to the constitutional order in the 21st century and the need for legal reform in Russia

For more than ten years Russia has been living in a democratic system of real constitutionalism. There is an opinion, and it is quite widespread, that constitutional democracy is not yet an achieved result, but a promising goal of the movement. There are weighty arguments to think so, but nevertheless, we can now say with full confidence that the foundations of a democratic constitutional system have already been created. Moreover, it should be taken into account that in Russia this process began much later than in other countries. We built the foundation of a unified federal state in the conditions of explosive centrifugal tendencies caused by the consequences of the collapse Soviet Union. And this most dangerous tendency, which could destroy the unified Russian statehood (as happened in parallel in Yugoslavia), has been largely overcome. Although it is still too early to talk about the complete cessation of the influence of centrifugal forces, because until now, after the presidential elections in 2004, individual regional leaders again hear the words about the need to build a federation on "divided sovereignty." And this is despite the decision of the Constitutional Court on the exclusion of provisions on sovereignty from the constitutions of the subjects of the Russian Federation.

According to the legal position formulated by the Constitutional Court, the sovereignty of the Russian Federation as a democratic federal legal state, extending to its entire territory, is enshrined in the Constitution of the Russian Federation as one of the foundations of the constitutional order (Part 1, Article 4). The bearer of sovereignty and the only source of power in the Russian Federation, according to the Constitution of Russia, is its multinational people (part 1, article 3), which, preserving the historically established state unity, based on the generally recognized principles of equality and self-determination of peoples and reviving the sovereign statehood of Russia, adopted Constitution of the Russian Federation (preamble).

Sovereignty, which implies, within the meaning of Articles 3, 4, 5, 67 and 79 of the Constitution of the Russian Federation, the supremacy, independence and autonomy of state power, the completeness of the legislative, executive and judiciary of the state on its territory and independence in international communication, is a necessary qualitative feature of the Russian Federation as a state, characterizing its constitutional and legal status.

The Constitution of the Russian Federation does not allow any other carrier of sovereignty and source of power, apart from the multinational people of Russia, and, therefore, does not imply any other state sovereignty, apart from the sovereignty of the Russian Federation. The sovereignty of the Russian Federation, by virtue of its Constitution, excludes the existence of two levels of sovereign authorities, located in a single system of state power, which would have supremacy and independence, that is, it does not allow the sovereignty of either the republics or other subjects of the Russian Federation.

The Constitution of the Russian Federation binds the sovereignty of the Russian Federation, its constitutional and legal status and powers, as well as the constitutional and legal status and powers of the republics that are part of the Russian Federation, not with their will in the form of an agreement, but with the will of the multinational Russian people - the bearer and sole the source of power in the Russian Federation, which, realizing the principle of equality and self-determination of peoples, constituted the revived sovereign statehood of Russia as a historically established state unity in its present federal structure.

The solution of the issue of sovereignty contained in the Constitution of the Russian Federation predetermines the nature of the federal structure, historically determined by the fact that the subjects of the Russian Federation do not have sovereignty, which initially belongs to the Russian Federation as a whole. Within the meaning of the preamble to the Constitution of the Russian Federation, Art. 3, 4, 5, 15 (p. 1), 65 (p. 1), 66 and 71 (p. "b") in their relationship, the republics as subjects of the Russian Federation do not have the status of a sovereign state and resolve this issue differently in their constitutions, they cannot, and therefore have no right to endow themselves with the properties of a sovereign state - even if their sovereignty would be recognized as limited (Decree of June 6, 2000 in the case of checking the constitutionality of certain provisions of the Constitution of the Republic of Altai and the Federal Law "On general principles organizations of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation"; Determination of June 27, 2000 at the request of a group of deputies State Duma on verification of compliance with the Constitution of the Russian Federation of certain provisions of the constitutions of the Republic of Adygea, the Republic of Bashkortostan, the Republic of Ingushetia, the Republic of Komi, the Republic of North Ossetia-Alania and the Republic of Tatarstan).

When asked today what was the most dangerous thing in the past decade of the Constitution of the Russian Federation, I answer without any hesitation that it was a real danger of the collapse of the country. Not a default, not ever-increasing social inequality, not an increase in poverty and social vices in the form of crime, corruption, drunkenness, drug addiction and prostitution. Namely, the collapse of the country. Because if all other social crises and anti-social phenomena can be overcome, overcome and turn the situation back, then the collapse of the state cannot be overcome. There is no turning back here. And no one in history has ever been able to restore anything in its former form.

It became possible to stop the disintegration only by relying on the current Constitution. Therefore, the main task of the Constitutional Court is to ensure its stability, strengthen and develop constitutional control over public authorities and institutions.

Due to legal ignorance and direct legal nihilism, voices are again heard about the need to "correct" the Constitution. There may be amendments, of course, but they are needed when they are dictated by objective social conditions, when amendments are caused by the course of historical development itself, and not by the desire of one group of people to please a higher group of people. To be honest, so far, out of all the proposals to amend the Constitution, there are none that cannot be achieved within the framework of the current Constitution. I would like to say to those who have a reformist itch regarding the Constitution: change codes, federal laws, by-laws, create effective organizational structures, introduce new Information Technology, find new forms of control, but do not encroach on the Constitution.

It is worth touching the Constitution once unjustifiably in a social and historical context, and this anti-constitutional virus will infect the entire organism of society and the state.

Ensuring the stability of the Constitution does not at all mean that the Constitutional Court should only be a "guardian of antiquity." On the contrary, in that rapidly changing, largely incomprehensible world that humanity entered in the 21st century and which is increasingly called the era of globalization, the Constitutional Court should act, as experts in the field of computer science say, "in real time."

To act in this way means to be aware of the threats that the modern world poses to the stability of the Constitution.

The first threat is related to attacks on the Westphalian system of world order.

As you know, the modern constitutional structure of states and the political structure of the world, in essence, took shape after the signing of the Treaties of Westphalia in 1648 and is based on the institution of the state as its main structural unit. The basis of this system is the principle of national sovereignty.

It is inside the Westphalian political system intergovernmental and international non-governmental organizations were formed and began to actively operate (back in the first half of the 19th century, after the victory over Napoleon, the Permanent Commission for Navigation on the Rhine was created, then the International Telegraph Union, the Universal Postal Union, etc.).

The two world wars of the 20th century failed to shake this system, which became even stronger after the creation of the United Nations.

And now, at the beginning of the 21st century, after the events of September 11, 2001, the biggest and most real threat to the existence of the Westphalian system, and hence to the very foundations of the constitutional structure of sovereign states, arose.

There are two types of attacks on the Westphalian system. One is connected with the opposition of human rights and the people's right to self-determination to the principles of state sovereignty and territorial integrity. The second - with the accusation of nation-states in the inability to ensure effective governance in the context of globalization, in the presence, in the words of the World Bank's first vice-president for Europe, Jean-Francois Richard, "old territorial instincts of nation-states." Hence the idea of ​​network management and the construction of organizations based on this principle to solve global problems is put forward.

The ideologists of "network structures" say directly that the "new thinking" may have its own miscalculations. But this, in their opinion, is "a necessary price to be paid." In the opinion of the already mentioned Richard, "the current international structure and any cosmetic reform of this structure will not produce good by themselves." In other words, from the point of view of such an ideology, everything should be demolished: the Westphalian system, state sovereignties, territorial integrity and, consequently, the existing system international law. And all this will be necessary price which must be paid.

The shock of September 11 led to the fact that unilateralism (one-sided selfish politics) defeated multilateralism (politics that require a mechanism for multilateral negotiations). But such a policy has its own laws. Here one cannot but agree with the outstanding modern scientist Manuel Castells, who believes that when a unilateral logic is imposed on a multilateral world, chaos ensues. In this sense, we all really got into an absolutely chaotic world, where everything becomes unpredictable. Non-legal world chaos has one right - the right of the strong and aggressive: this is not only the "right" of a superpower, but also the "right" of dictators, the "right" of the leaders of mafia and terrorist communities.

In American political analytics, words about "soft sovereignties" are increasingly being uttered. The concepts of "the right of ethnic groups and regions to self-determination" and "humanitarian interventions" are opposed to national sovereignties.

Such a major politician as Henry Kissinger, in his last year's interview with the newspaper Die Welt, declares the death of the Westphalian system and the meaninglessness of the idea of ​​state sovereignties.

The statements of individual politicians are reinforced by the already created aggressive "scientific" justification for the destruction of the Westphalian system. One of the ideologists of this trend is Michael Glennon, professor of international law from the USA. In his books and articles, he formulates the following "postulates": "The creators of a truly new world order must leave the castles in the air and abandon imaginary truths that go beyond politics, such as the theory of just wars or the idea of ​​the equality of sovereign states. These and other obsolete dogmas rest on archaic notions of a universal system, justice, and morality."

"As the world enters a new, transitional era, the old moralistic vocabulary needs to be shed so that decision makers can focus pragmatically on how big the stakes really are."

"Humanity does not need to reach a final agreement on good and evil. Before him is an empirical, not a theoretical task."

"An extremely destructive derivative of natural law is the idea of ​​the equal sovereignty of states ... Treating states as equals makes it difficult to treat people as equals."

The logic of this approach is clear and the position is more than frank. Following this logic, any national law is archaic and does not require protection. There is no "archaic" morality (which means there is no morality), there is no law "corresponding to politics". There is the destruction of international and national legality as such.

It is striking how similar such views are to the ideas of German fascism. Back in the early 1930s, Alfred Rosenberg, one of the ideologists of fascism, called for "an attack on the old concepts of the state, on the remnants of the medieval political system." The consequences of such an offensive are well known to all.

The Westphalian system has also been called into question by a number of international agreements under which significant amounts of state sovereignty are delegated to supranational bodies or parts of the state. An example of the first is the 1992 Maastricht Accords of Europe. An example of the second is the "principle of subsidiarity", according to which problems should be transferred to the lowest level that has the resources and capabilities to solve them.

Now, before our very eyes, the first "network" state is being created - the European Union, in which all decisions are made by a network of European governments. Moreover, in the European Union itself, the main dispute now is whether the members of the European Union will be sovereign states or regional states within a single network.

It must be said that the UN is also torn between a rigid Westphalian interpretation of state sovereignty and the growing influence of international humanitarian law and human rights, which limit the power of state leaders over the citizens of their countries. This was pointed out General Secretary UN Kofi Annan, after the war in Kosovo began in 1999 - without a Security Council resolution.

All this is a very ambiguous trend. It can be dangerous because it contains specific political concepts states and borders are being supplanted by legally indefinite geographic and socio-economic terms that have no basis in any law.

Obviously, we are all already "in globalization", and we need not to fall out of global peace, establish with him a mutually beneficial relationship of openness. But at the same time, you need to accurately understand the risk associated with openness. The risk of being dissolved in this far from being defined world. The risk of absorbing and reproducing on one's own territory the non-legal chaos advancing on the world political system.

And that is why it is precisely now that the international community of specialists in constitutional law especially requires an accurate analysis of the modern concept of full-fledged sovereignty. It takes into account all the imperatives of liberal democracy and at the same time provides all the components of a strong and legal - namely, legal - power. Precisely now, the preservation and strengthening of the global subjectivity of sovereign states in all its dimensions - political, economic, social - depends to a high degree on this.

The trampling of state sovereignties entails a whole chain of catastrophic changes for the world community. The racial ideas of Rosenberg in the 21st century were replaced by a new, even more sophisticated philosophy of denying the sovereign nation state and democracy as such. A kind of manifesto of this philosophy is the book of two Swedish scientists - Alexander Bard and Jan Zoderqvist called "NETOCRACY". These authors believe that September 11, 2001 in the future will be a symbol that " Information society has replaced capitalism as the dominant paradigm." In their opinion, the network will replace the individual as a great social project. (netiquette. - V.Z.) will replace law and order as the main types human activity more and more will move into the virtual world... The curators will assume the function of the state to control the observance of moral norms...".

And what this morality will look like in a "network society" without state and borders is also described in the book:

"The 21st century belongs to biology. A whole new world is taking shape before our eyes. A world in which humanism is being replaced by transhumanism."

"Sex is becoming more of a hobby, a manifestation of individuality, without any desirable or undesirable consequences. Reproduction will increasingly take place under strict laboratory control... to a large extent it will be possible to program offspring and even endow them with qualities that we previously hardly regarded as "human".

"What is unethical today will be universally accepted tomorrow."

It is impossible to treat such statements as "eccentricity" of two little-known scientists: "NETOCRACY" has already become a reference book for many intellectuals.

The second threat is related to the attack on constitutional human rights in the face of new challenges and threats.

September 11, 2001 not only marked the beginning of large-scale attacks on the national sovereignty and integrity of states, but became a trigger in the attack on constitutional human rights in many states. Such an offensive swept almost all over the world - from the United States and Europe to South-East Asia and Australia. Here are some examples.

In the United States, after September 11, the President signed the Patriot Act, and Congress unanimously approved it. This normative document largely limited the democratic rights of citizens and the media in the United States and at the same time expanded the rights of American intelligence agencies.

American human rights activists tried to protest this legislative act. But the US Special Court of Appeal further expanded the rights of the Department of Justice (the FBI is subordinate to the Department of Justice) to secretly wiretap telephones and the entire range of operational measures for electronic surveillance of "suspicious persons."

But that's not all. The Pentagon is now creating an unparalleled automated system collection personal information called "Total Awareness". It includes: email, data on credit cards and banking operations, information about travelers and tourists. At the same time, commercial databases are combined with government dossiers, in particular, with data from special services.

In Germany, the secret services also received new powers - and, in particular, the ability to check the bank accounts of people, even those who are not accused of anything.

In the UK it is allowed to detain foreigners for indefinite time and no judicial authorization is required.

In Belgium, a law has been passed that allows the police to conduct so-called soft investigations in cases where it is suspected that a crime is being prepared, but the investigation lacks specific information to bring charges.

The adoption of such laws in itself does not, of course, pose a threat to the constitutional foundations of these states. And, apparently, this is a completely adequate response to the ever-growing manifestations of terrorism, the growth of organized crime, drug trafficking and illegal migration - those phenomena that are commonly called new challenges and threats to humanity.

Another thing - to what extent can one go in restricting constitutional human rights? The recipes here are varied. Even a peculiar ideology of renunciation of fundamental human rights is being formed. In the United States, for example, a book was published by a well-known scientist, in the recent past an ardent human rights activist - Alan Dershowitz called "Why does terrorism work?", in which the author calls for the use of the principle of collective retribution against families, ethnic groups, confessional groups of terrorists; use any type of torture; significantly restrict immigration and the rights of foreigners, especially those from certain regions of the world, etc.

Such views are becoming more widespread in other countries, including Russia. And not only among scientists, but also politicians, for whom large groups of voters voted.

Can such trends be ignored by the constitutional law community? Where is the line in the restrictions of human rights, beyond which comes the denial of these rights? In the name of what and for whom are these restrictions carried out? How not to upset the balance between ensuring the security of the state and society and respect for human rights? I think that here it is necessary to search for adequate answers to the most difficult, most acute questions that life poses.

The third threat associated with restrictions in the implementation of the constitutional principle " welfare state". The term "welfare state" is not a manifestation of post-communist ideology. In the constitutions of Spain, Germany, France, Turkey, this term has been enshrined for a long time. Its essence lies in the desire to create equal opportunities for all members of society. A welfare state implies a social policy, recognizing the right of every member of society to such a standard of living (including food, clothing, housing, medical and social service), which is necessary to maintain the health and well-being of himself and his family when he works, as well as in cases of unemployment, illness, disability, old age, widowhood.

Is it possible to call many states, including Russia, social from these positions? We can say with full responsibility that it is not. The processes of globalization have made the rich countries even richer, the poor - even poorer. The latter include the countries of the so-called transitional period, including Russia.

In a report published in March 2004 by the All-Russian Center for the Study public opinion(VTsIOM) under the title "Russia on the Eve of the Presidential Elections" it is especially emphasized that the citizens set the task No. 1 for the future president of Russia to solve the issue of poverty.

One fifth of the population of our country is now in the poverty zone.

Sensitivity to this issue, the VTsIOM report says, is demonstrated not only by those groups of the population that are directly in the "poverty zone", but also by a considerable number of Russians who consider themselves to be middle strata, but are nevertheless forced to make great efforts to maintaining an acceptable standard of living.

Russians place the tasks of overcoming poverty and increasing the well-being of citizens higher than the tasks of economic recovery and increasing production.

Without the success of reforms in social sphere, including a full-scale reform of the system wages, this problem cannot be solved.

The next conclusion of sociologists concerns the attitude of the respondents to social role states. In society, scientists say, there is an urgent need for the "return" of the state, especially in those areas where it actually left in the 90s, but where it is vital (culture, science, education, public morality, protection of old age and childhood, personal security of citizens, increasing the level medical care, as well as the quality and accessibility of education, improving the living conditions of Russians, creating an affordable housing market). This is evidence not only that the attention of the state to social problems in last years weakened, but also the fact that the very "social burden" is distributed far from evenly.

The existing inequality of opportunity, which the Russian people will not put up with, creates the basis for instability.

Such a basis for instability is characteristic of the entire post-Soviet space. And the recent events in Georgia clearly showed this: when there is no welfare state, the rule of law also collapses. And it is not at all necessary that the change of power in an unconstitutional way will always follow the "velvet" option.

I think that it is possible and necessary to ensure the principle of the "welfare state" by legal means, including through legislative restrictions on the implementation of such socio-economic reforms that violate the constitutional rights and freedoms of citizens.

We understand that there are no simple, momentary solutions. The law should act in many respects when the socio-economic effect is calculated, when the forecast of the consequences of certain changes will work not to increase inequality, but to reduce it noticeably (noticeable for ordinary citizens).

From an economic point of view, how can this be achieved? Withdraw budget resources to support the poor? But after all, money is needed for the army, and for industry, and for education, and for many other things. Increase taxes and the budget so that there is enough for everyone? Or, as some left-wing radicals advise, take property from the oligarchs? How then will entrepreneurs invest in enterprises and create conditions for the country's economic growth and technological development, which alone can secure Russia's rightful place in the world of the 21st century and, among other things, decisively defeat poverty?

That is, the question of law and social justice as the main principles of the legal transformation of Russian society, and here, in the economic sphere, turns out to be a problem that will have to be solved with the help of complex and far from straightforward compromises and successive approximations.

A significant role belongs here to the Constitutional Court, which controls the accuracy and specificity of the legal norms that underlie the relevant decisions of law enforcement officers, including the courts, which is necessary so that the participants in the relevant legal relations can reasonably foresee the consequences of their behavior and be confident in the immutability of their officially recognized status, acquired rights, the effectiveness of their state protection.

According to the legal position formulated by the Constitutional Court in the Decree of May 24, 2001 in the case on the verification of the constitutionality of the provisions of part 1 of Article 1 and Article 2 of the Federal Law "On Housing Subsidies to Citizens Leaving the Far North and Equivalent Localities", giving back the force of the law, which worsens the situation of citizens and means, in essence, the abolition for these persons of the right acquired by them in accordance with the previous legislation and exercised by them in specific legal relations, is incompatible with the provisions of Art. 1 (part 1), 2, 18, 54 (part 1), 55 (part 2) and 56 of the Constitution, since, according to the meaning of these constitutional provisions, the change by the legislator of previously established conditions must be carried out in such a way that the principle of maintaining citizens' confidence in the law and the actions of the state, which implies the preservation of a reasonable stability of legal regulation and the inadmissibility of making arbitrary changes in the current system norms, as well as - if necessary - providing citizens with the opportunity (in particular, through the establishment of temporary regulation) during a certain transitional period to adapt to the changes introduced. Related to this are the legitimate expectations of citizens that the right acquired by them on the basis of the current legislation will be respected by the authorities and will be implemented.

This legal position is general character and confirmed by the Constitutional Court in the Resolution of January 29, 2004 on the case of checking the constitutionality of certain provisions of Article 30 of the Federal Law "On labor pensions in the Russian Federation", the Resolution of April 23, 2004 on the case of checking the constitutionality of certain provisions federal laws"On the federal budget for 2002", "On the federal budget for 2003", "On the federal budget for 2004" and annexes to them, as well as in the Ruling of December 4, 2003 at the request of a group of deputies of the State Duma to verify constitutionality Part 1 of Article 128 of the Federal Law "On the Federal Budget for 2003" and subparagraph 16 of paragraph 1 of Appendix 20 to this Federal Law.

The fourth threat is associated with problems in ensuring the constitutional principle of "the rule of law." This threat can be called the main one, because its essence lies in the existence of a rule of law state in the conditions of attacks on sovereignties, the integrity of states, human rights and the erosion of social justice as the basis of a welfare state.

This danger is real for many states, especially, as I have already noted, for those that have appeared in the post-Soviet space.

One can grieve over this for a long time, but I would like to reflect on what really needs to be countered by this most important complex threat, referring, of course, first of all to Russian problems.

The rule of law is our unconditional goal, towards which we have undoubtedly made very serious progress over the decade of the existence of the Russian Constitution. But to say that we have already fully achieved this goal, no responsible and sane citizen, alas, can.

A legal state is impossible without a legal society. Here, as in no other sphere of our life, the state is what society is. BUT Russian society, again, cannot yet be called legal. And they are moving - both the state and society - to a full-fledged legal state too slowly.

Results achieved in legal sphere for the post-Soviet era are really significant. But at the same time, I see how these results are still far from the legal ideal, and also how much this circumstance hinders the real development of Russia and what various risks and threats it creates.

Therefore, it is quite justified to raise the question of the need for a full-scale legal reform in Russia. If it is not forced, then all other reforms in the country are very likely to begin to slip. And very soon.

What specific content do I put into the concept of "legal reform" and what areas of it do I consider priority? I would single out the following three main tasks and at the same time directions of legal reform:

Legal transformation of Russian society;

Transformation and stabilization of the legal system;

Implementation of a rigid and sustainable system of law enforcement and ensuring citizens' access to justice.

Moreover, I emphasize that this is precisely a "triune", systemic task, which in all areas should be addressed comprehensively and simultaneously.

In order to achieve this triune task, it is necessary, in my opinion, to solve three major problems.

The first problem is the quality, modernity and consistency of legislation. We, judging by the appeals to the Constitutional Court that we have to deal with, still have a lot of bad laws. And bad in different ways.

Some of the adopted laws, alas, quite obviously contradict both the letter and the spirit of the Constitution.

Further, laws are often adopted that contradict international law binding on Russia. After all, our legal obligations under international conventions and agreements, again according to the Constitution, take precedence over domestic law. But many Russian legislators are apparently simply unaware of these international conventions. And they pass laws that already initially contain future legal conflicts.

Finally, quite a few laws are passed under the pressure of lobbying "interest groups". And such laws often contradict the basic interests of society and the state.

The insufficient qualifications and experience of a significant part of Russian legislators is an objective fact that cannot be brushed aside. However, not only professional lawyers sit in the parliaments of other countries (although there are usually much more professionals there). How to be here?

In many countries, this issue has long been resolved through a thorough discussion of draft laws in the professional community and (publicly!) In society as a whole, then in discussions (together with independent lawyers) in factions and specialized commissions of parliaments, and only after that in general parliamentary debates.

This is the only way to minimize the possibility of "bad" laws and the risk of further legal conflicts, which are used by all sorts of unscrupulous lobbyists, corrupt officials and political adventurers.

But, I would like to emphasize once again that high professionals should be at the origins of the legislative process. Those who are able to both master and critically comprehend all the richest Russian and international historical legal experience, and creatively apply it to the development of a specific Russian legal system. It is specific: I am convinced that a unified world law - pure water myth. And that calls to simply copy in Russia, for example, the German, American or French legal system - from thoughtlessness.

Second problem Russian law- instability of the legislation. Of course, this is one of the inevitable consequences of those "post-revolutionary" forced reforms that are being carried out in Russia. But even here we have a clear overshoot. For example, the newly adopted codes - Criminal, Criminal Procedure, etc. - will soon be changed almost by half. Moreover, they have been changed so that some "holes" have disappeared, but others have appeared, no less dangerous. And besides, all the codes are poorly linked to each other, which creates mutual legal conflicts.

Speaking about the problem of continuous unjustified changes in legislation, I will point out that there is another danger here. The stability of the legal system, including the Constitution as the Basic Law, is the key to social, political, economic, and ultimately state stability. And, paradoxical as it may sound, it is the key to development.

There can be no effective individual, corporate, state planning and forecasting, if it is not known how plans and forecasts compare with tomorrow's laws. There can be no sustainability and development if there is no effective planning and forecasting. Even purely psychologically, a person, a community, a society cannot function normally if tomorrow's "conditions of the game" are unknown.

The third problem is legal personnel. Their number in today's Russia is extremely insufficient, and their qualifications leave much to be desired. Highly qualified lawyers are in an acute shortage. Legal science as such is not provided with specialists of the level that allows solving the grandiose task of creating a new legal system. And this is one of the reasons why Russian law students are often taught not only badly, but also "the law of the day before yesterday."

However, the main thing is that under these conditions it is generally impossible to teach law effectively! The fact that a student is taught even in the third or fourth year, by the time he graduates from the university, is already outdated or turns out to be erroneous. Moreover, it often becomes outdated in key, basic indicators. Obviously, in such a situation, even the concept of "advanced legal education", which is now becoming very fashionable in the West, will not help.

The problems of legal education fully concern not only judges and law enforcement officers. They affect officials, entrepreneurs, and the military - all Russian citizens without exception. That is, we should talk about professional legal education, and about mass legal education and "literacy program". In fact, we will have to create a broad modern Russian legal consciousness.

How to create it? Since, let me remind you, we are not discussing problems, but problems, no one has ready-made recipes. In the roughest approximation, I can only outline the following chain: from the full-fledged modern legal consciousness of the legal community through the legal consciousness of all branches of government to mass legal consciousness.

Separately, it must be said about the legal consciousness of power. If the government strives to create convenient law “for itself”, then any legal reform will become nothing more than a fiction.

The ideal of legal reform is the unity of mass legal consciousness and the legal consciousness of the authorities in an effort to protect the rule of law in today's unstable, rapidly changing world.

Such unity is achieved when both mass and powerful legal consciousness realizes the truth, which lies in the fact that the Constitution is a general agreement between all social groups, including government, business, society as a whole, about the fundamental rules by which the country lives.

Yes, politics is a struggle, and the Constitution is a set of rules within which political struggle is possible. The Constitutional Court is an arbitrator, designed to monitor compliance with the main rules of the fight, guaranteeing that the fight will go exactly within the rules, and that no one will change these main rules to please the chosen players.

Of course, the Constitution does not exhaust these rules. In addition to it, there are rules for legislative codes and individual laws, moral rules, personal and group ideas and ideals, and much more. But all this must exist within the constitutional framework. And one of the special threats to society is the violation of the constitutional framework as the main rules.

Unreasonable changes, instability, violations of the Basic Law - impetus to the fact that the rest of the system of rules by which society lives will begin to be questioned, eroded, blurred. And then first the spirit, and then the letter of the rules - any rules - will begin to lose their meaning.

This is true for every society. Even for one in which the legal consciousness of citizens is purposefully brought up from childhood, as, for example, in the USA or Germany.

But in Russia, mass legal awareness is still in its infancy, weak and uncertain state. Therefore, we have a risk of further weakening of this sense of justice as a result of attempts to revise constitutional norms - both quite real and extremely dangerous.

I want to note that I am not a conservative opponent of any changes. Life goes on, reality changes. The constitution is not a "sacred cow". And therefore, the constitutional foundations of Russian statehood can and should be analyzed, discussed, and subjected to a thorough analysis. But this must be done only in a highly professional manner. And, most importantly, do not turn it into a tool for PR campaigns and political games.

The Constitution is too serious and dangerous a subject for such a game. This is the foundation on which our Russian statehood, which is far from being as strong as we would like, stands. This is the foundation of that common Russian house in which we all live - from a politician to a worker and from an entrepreneur to a homeless person.

But at the same time, the Constitution is not a dead text, not a dusty manuscript lying on a shelf just in case. She is not afraid of metaphor - the Word in its original biblical understanding. That is, the Word is active and creative. And the fact that it is acting and creating - you and I need to prove daily and hourly.

The text of the Constitution exists in a complex context of culture and ideologies, which cannot but influence its creative action. Moments of contact of this text with all real life, including political, economic, social reality - in his interpretations. And the essence of these interpretations is in practical law-making and law enforcement.

And it is here that a lot of legal "pitfalls" lie.

No constitution operates "on its own". Its main projections on everyday practice are laws and law enforcement. That is, a pyramid of legal interpretations, the basis of which is the Constitution.

As you know, the Constitutional Court is the pinnacle of the judiciary, exercising constitutional control.

I should note that the number of appeals to the Constitutional Court on issues of violations of constitutional norms by courts of various instances is constantly increasing.

This trend can be called positive, since it means that more and more citizens of the country master the legal system and begin to actively use it.

But at the same time, the same trend can be assessed as alarming. Because many of the complaints that have to be dealt with in the Constitutional Court are related to the mistakes of law enforcers. And the growing flow of applications in this regard cannot but reduce the efficiency of our work on the consideration of cases that have essential for Russian statehood.

It is rightly said that the Constitutional Court is not fire brigade that must rush with a siren to every legal fire at the first call. But at the same time, the Constitutional Court should not be allowed to turn out to be the body that every time "comes" to the already cooled down legal ashes. And here again the problem of the level of legal consciousness of the authorities and citizens arises.

The Constitutional Court does not have the right to consider problems on its own initiative. The legislation clearly states that the basis for their consideration is a request from official bodies of state power or a citizen's complaint about the violation of his constitutional rights and freedoms by the law applied in his case. Therefore, a lot depends on the reaction of Russian citizens and, above all, politicians on the timely presentation of problems before the Constitutional Court that fall within the sphere of our competence and require a response.

The role of the Constitutional Court is directly related to the highest level of Russian politics. That is why the slightest politicization of activities and decisions is categorically unacceptable for me and my colleagues. However, each of us is well aware that we are all in a single, in many respects crisis Russian reality.

This is a very complex and highly contradictory reality. In it, the most acute world processes and the collapsing structures of international law are outside the sphere of our control and decisive influence.

In this reality, there are many gaps between the shells of government, social and other institutions and their content. Lots of gaps between form and content. And the Constitution, as the most important legal institution, cannot be outside the distorting and transforming influence of such a reality.

Integral part top level state policy is anti-corruption policy. This follows, for example, from the preamble of the Decree of the President of Russia (November 24, 2003 N 1384), in accordance with which the Presidential Anti-Corruption Council was created, which included the Prime Minister, chairmen of the chambers of parliament, as well as chairmen of the Constitutional, Supreme and Arbitration Courts.

In the mentioned VTsIOM report titled "Russia on the Eve of the Presidential Elections" it is noted that the fight against corruption in power occupies the second position (after overcoming poverty) in the demands of Russians to the head of state.

There is no definition of corruption in Russian legislation. It is generally accepted that the term "corruption" comes from the Latin "corruptio", which translates as "corruption", "decomposition", "seduction", "bribery". In terms of meaning - exactly, but for a lawyer, of course, not enough.

The world community has developed legally clear definitions of criminal manifestations of corruption. They are contained in such documents as the Council of Europe conventions on criminal liability for corruption (1999) and civil liability for corruption (1999), the UN conventions against transnational organized crime (2000) and against corruption (2003). .).

Now the priority task is to ratify all four of the above conventions and start bringing Russian legislation in accordance with their requirements.

Moreover, not only the Criminal Code will have to be changed. The ratification of the UN conventions will force us to improve also the criminal procedure, administrative, investigative, civil, banking and other types of legislation.

For example, the UN Convention against Corruption (2003) speaks of the need for effective prevention of corruption. It is proposed, in particular, to achieve greater transparency in the financing of political parties and candidates for elected positions, in the management of public finances, and in the procedure for approving the national budget. It is proposed to introduce international legal accounting and auditing standards, adopt procedures that allow the public to receive information about decision-making processes, and so on.

Ratification of conventions is a very important procedure for a country. But it is not necessary to wait for the ratification of international conventions. In the fight against corruption, it is necessary to act on the principle of "here and now." For example, since August 2002, the Kaliningrad Region has been implementing the Law "On the procedure for providing information by public authorities", which was developed by deputies of the regional Duma with the participation of the international public organization Transparency International. The law regulates the mechanisms of access to official documents and materials, to meetings of public authorities, as well as cases of restricting access. The issues of providing materials and documents on the basis of requests have also been settled. This regional law, in my opinion, could become the basis for the adoption of a corresponding federal law.

At the present time, a draft law "Fundamentals of Legislation on Anti-Corruption Policy" has been prepared at the federal level. It was the basis of the CIS model law with the same name, which was already adopted by the Inter-Parliamentary Assembly on November 15, 2003. True, it is advisable to make significant changes to this draft law in accordance with the provisions of the UN Convention against Corruption (2003).

Another promising draft law has been prepared on issues of parliamentary control (parliamentary investigations) at the initiative of a public organization - the National Anti-Corruption Committee.

Now more and more often they say that it is necessary to conduct examinations of existing and developed laws for their corruption. home and very difficult problem here are the criteria for such examinations. Much here depends on the ideological attitudes of the experts themselves. Some will see signs of corruption in attempts to increase state control in one or another sphere of the economy, others, on the contrary, in an effort to weaken this control. But there is a criterion that is recognized by almost the entire expert community. Namely: the law creates room for corruption if it contains many reference norms that make it possible to "create" by-laws, departmental acts. And departmental instructions, in turn, do not answer many questions, which leads the participants in legal relations into an extralegal field.

Conclusion

Summing up all of the above, in three words about the Russian Federation, we can say this: Russia is an independent (sovereign) state, with an established system of economic and social institutions, is a constitutional state, the main document of which is the Constitution of the Russian Federation, which determines all the main aspects of the existence of both the state itself and the population living in it.

At the moment, the Russian Federation is experiencing a crisis in all spheres of its existence, is at the crossroads of the transition period and needs an intellectual, professional, tough and purposeful leadership, whose tasks will be to improve and bring to truly normal living conditions for the population, to raise the "fallen banner" Russian Army, eradicate corruption, lead the country on the path of progressive development and stand on a par with the most developed countries of the world, become their equal business partner

List of used literature and sources

1. The Constitution of the Russian Federation. Adopted by popular vote on December 12, 19932. E.I. Kozlova, O.E. Kutafin, Constitutional law Russia, ed. "Lawyer", 1995 3. A.V. Malko, E.V. Kolesnikov, Constitutional Law of the Russian Federation, ed. Norma, 20004. M.V. Smolensky, Constitutional Law of the Russian Federation, Rostov-on-Don, ed. "Phoenix", 2002 5. Richard J.-F. Twenty years later. Global problems and ways to solve them // Russia in global politics. T. 1. N 2. 2003.6. Network and chaos (interview with M. Castells) // Expert. 2003. No. 18.7. Glennon M. Security Council: What Causes the Failure? // Russia in global politics. T. 1. N 3. 2003.8. Henry E. Hitler over Europe? Hitler against the USSR. M.: IPTs "Russian rarity", 2004.9. Bard A., Zoderquist J. NETOCRACY. New ruling elite and life after capitalism. Stockholm School of Economics in St. Petersburg, 2004. S. XII.10. Baglay M.V. Constitutional law of the Russian Federation: Textbook for law schools and faculties. M., 1998.11. Zorkin V.D. On threats to the constitutional order in the 21st century and the need for legal reform in Russia // Journal of Russian Law., N 6, June 2004.

The constitutional system is the structure of society and the state, enshrined in the norms of constitutional law.

The constitutional system is characterized by special principles (basic principles) that underlie the relationship between a person, the state and society. Today in Russia, the state is a political organization of civil society, has a democratic legal character and a person in it, his rights, freedoms, honor, dignity are recognized as the highest value, and their observance and protection is the main duty of the state.

The constitutional and legal norms that fix the foundations of the constitutional order, the forms and institutions of the political structure of society, the foundations of the economic system constitute the institution of the foundations of the constitutional order, which occupies a leading place in the system of constitutional law.

Its norms are concentrated in ch. 1 "Fundamentals of the constitutional system" of the Constitution of the Russian Federation. It is noteworthy that each principle expressed in these norms is the basis, the starting point for the provisions of other chapters of the Constitution. The content of some fundamentals is expressed not in one, but in several articles. Thus, the characterization of Russia as a state is contained in Art. 1,7, 14 of the Constitution. The Russian Federation is defined as a democratic federal legal state with a republican form of government; as a social state whose policy is aimed at creating conditions that ensure a decent life and free development of a person; as a secular state in which no religion can be established as a state or obligatory.

The Russian Federation is thus being formed as a constitutional state, limiting itself to the framework of the Basic Law.

Fundamentals of the constitutional order

The foundations of the constitutional order of Russia include such principles for the structure of the state and society as:

man, his rights and freedoms as the highest value;

democracy;

full sovereignty of the Russian Federation;

equality of subjects of the Russian Federation;

single and equal citizenship, regardless of the grounds for its acquisition;

economic freedom as a condition for the development of the economic system;

separation of powers;

guarantees of local self-government;

ideological diversity;

political pluralism (principle of multi-party system);

the priority of the law;

priority of generally recognized principles and norms of international law and international treaties of Russia over national law;

a special procedure for changing the provisions of the Constitution of the Russian Federation, which constitute the foundations of the constitutional order.

Considering a person, his rights and freedoms as the highest value, the Constitution thereby determines the order of relations between the state and the individual. “Recognition, observance and protection of the rights and freedoms of man and citizen,” Art. 2 of the Constitution, is the duty of the state”. This principle is fundamental in establishing legal status person and citizen in the norms of Ch. 2 of the Constitution of the Russian Federation. and also testifies to the possibility of forming a legal state.

In accordance with Art. 3 of the Constitution of the Russian Federation, the bearer of sovereignty and the only source of power in Russia is its multinational people. The essence of the principle of democracy lies in the fact that the people exercise power directly, through a referendum and free elections, as well as through elected representative bodies of state power and local self-government bodies. Democracy is protected by the constitutional prohibition to assign power in the Russian Federation to anyone. Seizure of power or appropriation of power in accordance with Part 4 of Art. 3 is prosecuted under federal law.

The fullness of the sovereignty of the Russian Federation is the basis of the statehood of our country. The content of this principle is the characteristics of Russian statehood: the supremacy of state power, its unity, independence in relations with other states. Despite the federal structure of Russia, it is an integral state, and the Constitution and federal laws are valid throughout the state. Art. 4, fixing the principle under consideration, along with the following principle, constitute the basis for the provisions of Ch. 3 "Federal structure" of the Constitution.

The equality of the subjects of the Russian Federation is for the first time enshrined in the current Constitution. Part 1 Art. 5 gives a complete list of types of subjects of the Russian Federation: republics, territories, regions, cities of federal significance, autonomous regions and autonomous districts. The basis of the equality of the subjects of the Russian Federation is their constitutionally fixed equality in their relations with federal government bodies. However, this provision is programmatic. The constituent entities of the Russian Federation have not achieved actual equality, as evidenced by the process of concluding bilateral agreements on the delimitation of powers between a significant part of the constituent entities of the Russian Federation and federal government bodies.

Citizenship is a special political and legal relationship between the individual and the state, characterized by the establishment of mutual rights, duties and responsibilities between them, based on the recognition and respect for the dignity, fundamental rights and freedoms of a person. Citizenship is a fundamental element of the legal status of an individual. AT in full rights and freedoms in the territory of the state are enjoyed only by its citizens. The Constitution of the Russian Federation in Art. 6 proclaims a single and equal citizenship, regardless of the grounds for its acquisition. For the first time, a constitutional ban has been established on depriving a citizen of Russian citizenship, as well as a ban on depriving him of the right to change Russian citizenship to citizenship of another state.

Market relations can develop only in conditions of economic freedom and equality of all forms of ownership. Articles 8 and 9 of the Constitution establish a guarantee of uniform civil law regulation throughout the territory of the Russian Federation. This is expressed in the unity of the economic space, free movement of goods, services and financial resources, support for competition, and freedom of economic activity. The state recognizes and protects likewise private, state, municipal and other forms of ownership, including land. At the same time, land and other natural resources are considered as the basis of life and activity of the peoples living in the respective territory.

The separation of powers characterizes Russia as having entered the period of formation of a democratic legal state. The purpose of the division of power into three branches: legislative, executive and judicial - is to avoid arbitrariness in the activities of state authorities, the division of powers between them in such a way that they, through their activities, create the most favorable conditions for citizens to exercise their own rights, freedoms and duties. The proclamation of this principle in Art. 10 of the Constitution is also programmatic, since there are two more types of public authorities: the President and the prosecutor's office. In accordance with Art. State power in Russia is exercised by the President of the Russian Federation, the Federal Assembly (the Federation Council and the State Duma), the Government of the Russian Federation and the courts of the Russian Federation. Article 129 of the Constitution establishes that the Prosecutor's Office of the Russian Federation constitutes a single centralized system, without specifying the place of this body in the system of separation of powers.

Thus, in accordance with the current Constitution, the following types of state bodies have been formed: the Federal Assembly of the Russian Federation, which embodies the legislative power; Government of the Russian Federation - executive power; federal courts (the Constitutional Court, the Supreme Court, the Supreme Arbitration Court and other federal courts) - the judiciary; The President of the Russian Federation is the head of state, ensuring the coordinated functioning and interaction of state authorities (Article 80); prosecutor's office - supervisory authorities.

An important principle in the formation of the rule of law is the establishment of guarantees for local self-government. The Constitution does not fix the systems and types of local governments, since they are not included in the system of state authorities, but indicates (in Article 12) the independence of local governments within their powers.

Art. 13 of the Constitution establishes two principles that determine the formation and development of the political system of Russian society. The principle of ideological diversity lies in the fact that no ideology can be established as a state or mandatory. The principle of political pluralism (political diversity) implies a multi-party system. A feature of the implementation of these principles is the constitutionally guaranteed equality of all public associations before the law. Part 5 Art. 13 of the Constitution establishes a ban on the creation and activities of public associations whose goals or actions are aimed at forcibly changing the foundations of the constitutional order and violating the integrity of the Russian Federation, undermining the security of the state, creating armed formations, inciting social, racial, national and religious hatred.

Russia is a constitutional state, where the Constitution, as the Basic Law, has the highest legal force, has direct effect, that is, it is applied by the courts in the administration of justice and is applied throughout the territory of the Russian Federation. Laws and other legal acts must not contradict the Constitution. The main manifestation of the principle of the priority of law is the constitutional obligation of all public authorities, local governments, officials, citizens and their associations to comply with the Constitution of the Russian Federation and laws (part 3 of article 15). The content of this principle is supplemented by a constitutional guarantee that establishes a legal framework for the state interested in observing the laws, since it is it that is the legislator: “Laws are subject to official publication. Unpublished laws do not apply. Any normative legal acts affecting the rights, freedoms and duties of a person and a citizen cannot be applied if they are not officially published for general information” (part 3 of article 15).

The principle of priority of international law and international treaties Russia before national law characterizes the position of the Russian Federation in the international community of states. As a member of the UN, the Council of Europe and other international organizations, Russia bears the obligations arising from the decisions taken by these organizations. By concluding agreements with other states, Russia assumes the obligation to fulfill their conditions. All these norms are included in the composition of Russian national law only after the ratification of these acts by the State Duma. Part 4 Art. 15 of the Constitution establishes that the generally recognized principles and norms of international law and international treaties of the Russian Federation are part of its legal system. The guarantee of the implementation of this principle is the constitutionally fixed requirement: if an international treaty establishes other rules than those provided by law, then the rules of the international treaty are applied.

A special procedure for changing the provisions of the Constitution, which constitute the foundations of the constitutional system of Russia, acts as a fundamental principle that ensures not only the stability of the Basic Law, but also the inviolability of the state system of the Russian Federation. The content of this principle includes two main provisions;

the provisions of Ch. 1 of the Constitution cannot be revised by the Federal Assembly;

no other provisions of the Constitution may contradict the foundations of the constitutional order of the Russian Federation

Fundamentals of the Constitution of the Russian Federation

The legal basis of the Constitution of the Russian Federation contains the concept that modern Russia is being built as a legal, federal, democratic state with a republican form of government. Wherein, the main duty The state recognizes the observance and protection of the rights and freedoms of man and citizen. The Constitution of the Russian Federation is the main valid legal act of the state, fixing the foundations of the constitutional system of the Russian Federation, as well as directly the state structure, the rights and freedoms of man and citizen, the formation of three branches of government and local government. The Constitution of Russia consists of the Preamble, which enshrined the humanistic and democratic values ​​of the state and 2 sections that define the foundations of social, political, economic, legal social systems in Russia, fixing the fundamental rights and freedoms of the individual, the federal structure of the state and the procedure for making amendments and changes to the country's highest regulatory legal act.

Fundamentals of the constitutional order of the Russian Federation

To begin with, it should be clarified that the foundations of the constitutional order of the Russian Federation are established by Articles 1-16 of Chapter 1 of the Constitution of the Russian Federation. The constitutional system of Russia is a system of political, legal, economic and social relations, which are not only established, but also strictly protected by the current Constitution. Among the important features of the constitutional order are:

popular sovereignty,

inviolability of universally recognized human rights and freedoms,

division of power. \

Principles of the constitutional system of the Russian Federation

In accordance with the normative legal act of the foundations of the constitutional order of the Russian Federation - there is a system of principles covering all areas public life society and the state as a whole - socio-economic, political and legal, cultural and ideological, international and other. Consider the most important principles of the constitutional order of Russia:

Political and legal sphere:

the principle of democracy (Article 2) - an elective system for electing the supreme state power and local self-government for a certain period;

the principle of the priority of human rights and freedoms (Article 2) is the main subject of ensuring and protecting the constitutional order;

the principle of the legal nature of the state (Article 1) - the state self-limits itself by the legal norms in force in it, all officials, state bodies, public organizations and citizens, without exception, must obey these norms;

the principle of republicanism (Article 1) - our state is a mixed republic, simultaneously possessing the features of a parliamentary and presidential republic.

the principle of federalism (Article 1) - establishes a form of democratization of government; the principle of separation of powers (Article 10) - into the main branches - legislative, executive and judicial; the principle of local self-government (Article 12);

the principle of separation of religion from the state (Article 14).

Socio-economic sphere:

the principle of diversity and equality of forms of ownership (Article 8.9);

the principle of a single economic space (Article 8);

the principle of the social orientation of state policy (Article 7) - the main task of the state is to achieve high social progress, which is characterized by the growth of the welfare of citizens, including improving their lives, satisfying their spiritual and material needs.

Cultural and ideological sphere:

the principle of ideological pluralism (Article 13);

the principle of separation of ideology from the state (Article 13);

the principle of equality of religion and religious associations (Article 14).

International scope:

the principle of priority of the rules of international treaties of the Russian Federation over domestic laws (Article 15);

the principle of openness of the Russian legal system (Article 15).

In this way, legal basis The Constitution of the Russian Federation contains the concept that modern Russia is being built as a legal, federal, democratic state with a republican form of government. At the same time, the main duty of the state is the observance and protection of the rights and freedoms of man and citizen.

FEDERAL STATE STATE EDUCATIONAL INSTITUTION

HIGHER PROFESSIONAL EDUCATION

MOSCOW UNIVERSITY OF THE MIA OF RUSSIA

Department of Constitutional and Municipal Law

abstract

« Fundamentals of the constitutional order of the Russian Federation»

Checked: Executed:

doctor of jurisprudence cadet 120 academic professor of the platoon department

Police Colonel Private Police

Chervonyuk V.I. Filatov A.A.

Moscow 2013

Introduction…………………………………………………………………….…….…...3

The concept of the foundations of the constitutional order……………………………………………….4

Principles of the constitutional system…………………………………………….……...6

The economic basis of the constitutional order……………………………………...8

Social and spiritual foundations of the constitutional order of the Russian Federation……………………13

Ideological and political diversity…………………………………….17

Conclusion…………………………………………………………………………………19

List of used literature…………………………………………………..21

Introduction

Every country that considers itself civilized has its own constitution. And this is natural. The constitution is important and necessary for a modern state, primarily because it establishes its initial principles and purposes, functions and foundations of organization, forms and methods of activity. The Constitution establishes the limits and nature of state regulation in all major areas of social development, the relationship of the state with the person and citizen. Most importantly, the constitution gives the highest legal force to the fundamental rights and freedoms of a person, protects his honor and dignity. Starting to characterize the foundations of the constitutional system of the state, it is necessary to recall the concept of the state.

The state is a special organization of power and administration, which has a special apparatus of coercion and is able to make its orders binding on the population of the whole country. The Constitution is rightly called the fundamental, main law of the state. The foundations of the Constitutional system are a set of basic provisions and principles enshrined in the Constitution, in accordance with which other provisions of the Constitution and all normative acts adopted in the Russian Federation must be. At the same time, the foundations of the constitutional system seem to model the new Russian state and civil society. Special complex acts that would develop and illustrate the constitutional characteristics of the state (democratic, legal, federal (Art. 1), sovereign (Art. 4), social (Art. 7), secular (Art. 14), with a republican form of government ( Art. 1) and the principles of the constitutional system: democracy (Art. 3), separation of powers (Art. 10), ideological and political diversity (Art. 13), etc.), no. There are, of course, legislative and other legal acts directly or indirectly illustrating the provisions of the new chapter of the Constitution of the Russian Federation, and this work is an attempt to confirm this. one

The concept of the foundations of the constitutional order

The 1993 constitution takes precedence in legal system our state. It applies the concept, new to our legislation, of "the foundations of the constitutional system." It replaced the concept of "social structure" contained in the Constitution of the RSFSR of 1937 and the concept of "basis" in the Constitution of the RSFSR of 1978. social order and politics. "Each society has its own system: economic, political, social, spiritual relations. This social system is the basis for the state and law. The constitutional system is a set of principles enshrined in the constitution, its main provisions, in accordance with which be all other constitutional provisions, as well as current legislation.The foundations of the constitutional order form the core of the Constitution, the adoption of the constitution means the establishment of the obligation of the state to obey constitutional precepts.Otherwise, the existence of a fundamental law loses all meaning, as well as the concept of a rule of law.However, the concept of a constitutional order is It is applicable only to a state in which the constitution recognizes, consolidates, reliably protects and guarantees the rights and freedoms of man and citizen, all law corresponds to this constitution, and the state is subordinate to law in everything. The first order, therefore, is not reduced only to the fact of the existence of a constitution, but presupposes the existence of two necessary conditions: the constitution is democratic and it is respected. 2

Elements of the constitutional system of the Russian Federation:

1. republican form of government;

2. sovereignty of the Russian Federation;

3. rights and freedoms of the individual;

4. source of power - the multinational people of Russia;

5. supremacy of the Constitution of the Russian Federation and federal legislation;

6. federal state structure;

7. citizenship of the Russian Federation;

8. division of state power into legislative, executive and judicial;

9. organization of local self-government.

The provisions of Chapter 1 of the Constitution of the Russian Federation, which form the foundations of the constitutional system, occupy the main place in the hierarchy of constitutional norms. This finds its expression in the fact that all other provisions of the Constitution cannot contradict the foundations of the constitutional system in accordance with Part 2 of Art. 16 of the Constitution of the Russian Federation: "The provisions of this chapter of the Constitution constitute the foundations of the constitutional order of the Russian Federation and cannot be changed except in the manner established by this Constitution. No other provisions of this Constitution may contradict the foundations of the constitutional order of the Russian Federation." This instruction is addressed, first of all, to the second level (after the Constitutional Assembly) body of constituent power - the Federal Assembly, which can adopt laws on amendments and additions to the articles of the Constitution, but with the exception of those contained in Chapter 1, as well as Chapters 2 and 9 (part 1). 1 article 135). Not a single law adopted by the Federal Assembly that amends the Constitution of the Russian Federation should contradict the foundations of the constitutional order. All norms contained in subsequent chapters of the Constitution of the Russian Federation must be interpreted in accordance with the provisions of Chapter 1. The provisions of Ch. 1 of the Constitution of the Russian Federation can only be changed in the course of a complete revision of the entire Constitution. Thus, articles 1 of the chapter of the Constitution of the Russian Federation have the highest legal force over other articles, any changes to these articles are unacceptable. 3 Article 16 completes the most important chapter of the Constitution of Russia "Fundamentals of the constitutional system", which defines the main features of the state and social system, the form of government and political regime. These provisions are extremely important; all subsequent chapters of the Constitution are based on them. The principles enshrined in chapter 1, because of their extreme importance, require special protection. This is reflected in the Basic Law, which does not allow parliamentary revision of the provisions of this chapter. This constitutional provision gives stability to our Constitution and the constitutional order. If the proposals to revise the provisions of the Constitution are supported by 3/5 votes from total number members of the Federation Council and deputies of the State Duma, they can be considered in a special manner, provided for in Chapter 9 of the Constitution, following a very complicated procedure.

Principles of the constitutional order

Fundamentals of the constitutional order these are the main foundations of the state, its basic principles that characterize the Russian Federation as a constitutional state, which are guaranteed and provided by the state.

The Constitution of the Russian Federation, first of all, consolidates the principles, the main foundations of the Russian constitutional system, in which its humanistic orientation and democratic essence find expression, which characterize the Russian Federation as a constitutional state.

The Constitution of the Russian Federation recognizes such principles and properties of state power as the sovereignty of the state, separation of powers, state authorities and the relationship of local self-government with them as the foundations of the constitutional system.

Each constitutional principle does not operate on its own. All of them together and interconnected constitute the state, complement each other and are interdependent.

The following main principles of constitutional order RF:

1 ) democracy (it is characterized by the rule of power of the people; the origin of state power only on behalf of the multinational people of the Russian Federation; the presence of 2 forms of democracy: direct and representative);

2 ) priority of universal human values, rights and freedoms of an individual;

3 ) law supremacy;

4 ) federalism (it includes the territorial integrity of the state; the supremacy of state power and federal system rights throughout the territory of the Russian Federation, including the territory of the constituent entities of the Russian Federation; equality of the subjects of the Russian Federation before the Russian Federation as the sole bearer of state sovereignty, etc.);

5 ) state sovereignty (it includes the following elements: state integrity, unity of the system of state power, delimitation of jurisdiction and powers between state authorities of the Russian Federation and state authorities of the constituent entities of the Russian Federation, recognition of the equality of the peoples of Russia);

6 ) the social character of the Russian Federation (i.e., the policy of the Russian Federation is aimed at creating conditions that ensure a decent life and free development of a person);

7 ) the secular nature of the Russian state (i.e., in the Russian Federation, the activities of state power and religious associations are carried out independently of each other, the state has no right to interfere in the affairs of the church);

8 ) republican form of government (a feature of the republican form of government in the Russian Federation is that it is mixed, and not presidential or parliamentary);

9 a) separation of powers;

10 ) political pluralism (the Russian Federation guarantees social and political diversity, freedom of views and worldview of citizens);

11 ) the diversity of forms of ownership and freedom of economic relations (the territory of the Russian Federation is a single economic space, it guarantees the free movement of goods, services and financial resources, support for competition, freedom of economic activity).

A society of free people (civil society) obliges the state to serve a person, makes certain demands regarding the organization of state power and its limits. The foundations of the constitutional system contain guarantees against the establishment of total state control of public life. Article 4 of the Constitution of the Russian Federation is one of the starting articles included in Chapter 1 "Fundamentals of the Constitutional System". The essence of the first part of Article 4 is the declaration of sovereignty. This sovereignty presupposes the supremacy and unity of the power of the Federation and the obligatory acts of its bodies for all citizens and in general for all individuals on the territory of the Russian Federation. The principle of separation of powers, enshrined in general form in Article 10 of the Constitution of the Russian Federation, is implemented and specified in the norms of the Constitution, which determine the status and competence of the Federal Assembly, the President, the Government and the courts of the Russian Federation. four

The economic basis of the constitutional order

Contained in the eighth article, the constitutional principles form the basis of the constitutional economic order. These principles underlie a large set of constitutional norms, united by logical and legal ties and, therefore, representing a certain unity, a subsystem of norms built using the concept of "economic constitution". Through the efforts of economists and lawyers in Germany, France, Spain, Italy, the USA, Portugal, a theoretical construction has been created, built into the system of constitutional law, which tries to explain how the constitution regulates economic relations. It made it possible to link into a single whole such heterogeneous and contradictory phenomena as freedom of economic activity and state intervention in the economy. Associated with the concept of a welfare state, the economic constitution becomes the constitutional and legal basis of a socially oriented market economy.

As a subsystem of constitutional and legal norms, the economic constitution covers:

1) the principles of the foundations of the constitutional order on freedom of economic activity, a single economic space, diversity and equality various forms property, protection of competition (Article 8), on the social nature of the state (Article 7);

2) constitutional norms on fundamental economic rights and freedoms and fundamental rights of economic and constitutional significance, as well as on constitutional guarantees of entrepreneurship (Article 7, part 2 of article 34, part 1 of article 74, part 2 of art. 75); about the significance of generally recognized norms and principles of international law and the norms contained in international treaties of the Russian Federation (Article 15);

3) norms establishing constitutional economic public order: a) constitutional principles of state regulation of economic activity; b) norms on the possibility of restricting fundamental economic rights; c) norms on the powers of federal and regional government bodies in the field of legal regulation of entrepreneurship. The general theme unites the provisions of the Constitution relating to finance and taxes. Constitutional financial law is an independent part of the "economic constitution". The principle of the unity of the economic space is of particular importance in federal states, the subjects of which have their own legislation (Article 5 of the Constitution). It is also related to the category of "national unity" used in the preamble to the Constitution. A number of constitutional provisions in Ch. 3 of the Constitution "Federal structure" establish guarantees of the economic integrity of the federal state. 5

The Russian Federation guarantees the unity of the economic space, the free movement of goods, services and financial resources, the support of competition, and the freedom of economic activity. In the Russian Federation, private, state, municipal and other forms of ownership are recognized and protected in the same way. The right of private property is protected by law. Earth and others Natural resources are used and protected in the Russian Federation as the basis for the life and activities of the peoples living in the respective territory. Land and other natural resources may be in private, state, municipal and other forms of ownership. Citizens and their associations have the right to own land in private ownership. Possession, use and disposal of land and other natural resources are carried out by their owners freely, if this does not damage the environment and does not violate the rights and legitimate interests of other persons. The economic basis of the constitutional system of Russia is the social market economy, which is in its infancy, within which the production and distribution of goods and benefits is carried out mainly through market relations. Their participants are private business entities that compete with each other. The Russian Federation supports this competition, and also takes measures to prevent monopoly privileges and exercises appropriate control. Freedom of economic activity is a fundamental principle of a market economy. In combination with the right of private property, this is the main antipode of the totalitarian state economy with its planned and administrative-command systems. Freedom of economic activity means that people can freely create and transform enterprises, dispose of the products of their activity in order to make a profit. They have the right to trade freely, open banks and stock exchanges, and create economic associations. Individual enrichment from such activity, if it is not illegal, is not only not hostile to the interests of society, but just serves these interests. Therefore, citizens have the right to demand from the state protection from exorbitant taxation, corruption of public officials, racketeering and organized crime. The more real and stronger the guarantees in this area, the higher the rates of economic development and the living standards of the people. 6

At the same time, freedom of economic activity requires special attention from the state, because its abuse is fraught with a social explosion. The state must not only guarantee this freedom, but also regulate its use, giving the economy a social orientation. The freedom of an entrepreneur, for example, should not give rise to arbitrariness in creating working conditions for workers, violate the rights of consumers and social justice in society. Thus, the proclamation of freedom of economic activity not only does not exclude, but presupposes detailed and systematic state regulation of economic relations. The Constitution enshrined the diversity of forms of ownership, their equal protection. “In the Russian Federation,” it is established in Article 8, Clause 2 of the Constitution of the Russian Federation, “private, state, municipal and other forms of ownership are recognized and protected in the same way.” This provision is supplemented by the norms of Article 35 of the Constitution of the Russian Federation, which establishes that the right of private property is protected by law, everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons. No one may be deprived of his property except by a court decision. The expropriation of property for state needs may be carried out only on the condition of prior and equivalent compensation. State property is divided into federal and property of the constituent entities of the Russian Federation. Municipal property is the property of the city, district or other municipality on whose territory local self-government is exercised. Other forms of ownership include the property of public associations, non-profit organizations. The right of private property is also supplemented by the right of citizens to freely use their abilities and property for entrepreneurial and other economic activities enshrined in the law (Article 34, clause 1 of the Constitution of the Russian Federation). In a different way than the previous Constitution, the 1993 Constitution establishes the legal regime of land . Article 9 of the Constitution stipulates that “1. Land and other natural resources are used and protected in the Russian Federation as the basis for the life and activities of the peoples living in the respective territory. 2. Land and other natural resources may be in private, municipal and other forms of ownership.” The provisions of this article are supplemented by the norms of art. 36 of the Constitution of the Russian Federation, according to which citizens and their associations have the right to own land in private ownership. The possession, use and disposal of land and other natural resources is carried out by their owners freely, if this does not damage the environment and does not violate the rights and legitimate interests of other persons. In 2001, the Land Code of the Russian Federation was adopted, which establishes the legal regime for several categories of land (lands of settlements, forest fund, land for special purposes - defense, transport, etc.), allows their free circulation (purchase and sale of land of settlements, land under buildings , suburban, garden plots, etc.). The lands of the forest fund, water protection lands, specially protected territories, etc. are excluded from circulation. The turnover of agricultural lands is regulated by federal law. Agricultural land can only be in Russian ownership (state, municipalities, citizens of the Russian Federation, legal entities of the Russian Federation). Foreign citizens, stateless persons, foreign legal entities, as well as legal entities where the share of non-citizens of the Russian Federation in the authorized (reserve) capital is more than 50%, may own agricultural land plots only on a leasehold basis. The maximum and minimum sizes of land plots are established by the subjects of the Federation. So, in accordance with paragraph 2 of article 9 of the Law "On the peculiarities of the turnover of agricultural land in the Belgorod region" dated December 31, 2003. minimum size The land plot cannot be less than 50 hectares. In case of improper use of agricultural land, the plot can be forcibly withdrawn through the court. A piece of land can be requisitioned (for a fee) in case of natural disasters and other situations, confiscated by court (for a fee) or nationalized for state or municipal needs (transition of private property into public property), but only on a reimbursable basis and with a fair payment, which cannot be enforced by state or municipal authorities. The development of private property in Russia is associated with the privatization of state and municipal enterprises, land plots, and housing. Currently, privatization continues in accordance with the Federal Law of December 21, 2001 No. 178-FZ (as amended on July 18, 2005) “On the Privatization of State and Municipal Property” by selling at auctions (public auctions). The government annually establishes terms and lists of enterprises subject to privatization. These lists are considered by Parliament simultaneously with the approval of the budget. The Constitution of the Russian Federation also allows the reverse process: the forced alienation of private property (including legal entities) in the interests of society and the state (part 3, article 35). This can only be done on the condition of prior and equivalent compensation. Taking into account the federal nature of the national-state structure of Russia, the Constitution of the Russian Federation of 1993 defines: “The unity of the economic space, the free movement of goods, services and financial resources, the support of competition, and freedom of economic activity are guaranteed in the Russian Federation (Article 8, Clause 1 of the Constitution of the Russian Federation). The constitutional term “guaranteed” means the requirement for all state authorities of Russia and their officials not to violate the unity of the economic space, not to create any obstacles for the movement of goods, services, financial resources within the country, not to make decisions not to take any action aimed at limiting competition or independent economic activity of citizens and other subjects of economic relations. The guarantee of the free movement of goods, services and financial resources is to ensure a regime with no internal customs borders, the same (equal) position of entrepreneurs throughout Russia, regardless of their place of registration and location. In addition, the free movement of goods, services and financial resources should be ensured by uniform standards of legal regulation of the formation and operation of enterprises, uniform standards for certification of goods and services, uniform rules for licensing various types of entrepreneurial activity. 7

Social and spiritual foundations of the constitutional order of the Russian Federation

The Russian Federation is a social state. The main task of the welfare state is to achieve such social development, which is based on the principles of social justice, universal solidarity and mutual responsibility enshrined in law. The welfare state is called upon to help the weak, to influence the distribution of economic benefits in order to ensure a worthy existence for everyone.

It should be noted that the declaration of Russia as a social state does not mean the return of the country to a totalitarian state, which promised its citizens general welfare through the creation of an economic system completely controlled and organized by it. The welfare state, in the sense that the Constitution puts into it, should strive only for the maximum possible uniform promotion of the welfare of all citizens in the conditions of a democratic country and for the maximum possible even distribution of life's hardships.

The welfare state seeks to provide each of its citizens with a living wage worthy of a person. At the same time, it proceeds from the fact that every adult should be able to earn for himself and for the maintenance of his family. State intervention is carried out only when such an opportunity for various reasons cannot be realized and human needs cannot be properly satisfied.

The ability of a person to earn money, of course, presupposes, first of all, the availability of work. In a welfare state, as a rule, the right to work is fixed in connection with this. The Constitution contains only the right (Article 37) "to freely dispose of one's abilities for work, to choose the type of activity and profession." Of course, such a situation fully ensures the freedom of labor, but it calls into question the most important requirement of the welfare state, according to which each person must take care of obtaining an income from work to satisfy his needs. True, the situation is somewhat facilitated by the presence in the Constitution of the right to protection from unemployment (Article 37). eight

According to Article 7 of the Constitution of the Russian Federation, Russia is proclaimed a social state, whose policy is aimed at creating conditions that ensure a decent life and free development of a person. The main task of the welfare state is to achieve such social progress, which is based on the principles of social justice, universal solidarity and mutual responsibility enshrined in law. The welfare state is designed to help the weak, to influence the distribution of economic benefits based on the principle of justice, in order to ensure a worthy existence for everyone. The social state strives to provide each of its citizens with a living wage worthy of a person. At the same time, it proceeds from the fact that every adult should be able to earn for himself and for the maintenance of his family. The ability of a person to earn money presupposes, first of all, the availability of work. In a welfare state, as a rule, the right to work is fixed in connection with this. The Constitution of the Russian Federation contains only the right (Article 37) "to freely dispose of one's abilities for work, to choose the type of activity and profession." Everyone's personal responsibility for his own well-being is inextricably linked to the family. The family is the most important component of society, connecting it with the state. Increasing the social potential of the family, its activity in all spheres of society, strengthening marriage and family relations - all this is directly related to social development country to the full use of its capabilities. The family is equally important for society and for the state. This means that the family, motherhood, fatherhood, childhood should be protected by both society and the state, both legally and socially. One of the most important goals of the welfare state is to smooth out social inequality and overcome its extreme forms. A kind of social inequality is inequality associated with the loss of income or livelihood due to illness, disability, old age, loss of a breadwinner, unemployment, etc. The tool that the welfare state uses to counter this is social security. Most character traits of the social state are reflected in its social policy, which, in accordance with the Constitution of the Russian Federation (Article 7), “is aimed at creating conditions that ensure a decent life and free development of a person.” Social policy is a part of the general policy of the state, which concerns relations between social groups, between society as a whole and its members, associated with changes in the social structure, the growth of the welfare of citizens, the improvement of their lives, the satisfaction of their material and spiritual needs, the improvement of lifestyle. In paragraph 2 of Art. 7 indicates the main directions of the social policy of the state. “In the Russian Federation, the labor and health of people are protected, a guaranteed minimum wage is established, state support is provided for the family, motherhood, fatherhood and childhood, the disabled and the elderly, a system of social services is being developed, state pensions, benefits and other guarantees are being established. social protection". The already mentioned Article 2 of the Constitution of the Russian Federation, which proclaims a person, his rights and freedoms as the highest value, and recognizes the recognition, observance and protection of the rights and freedoms of a person and a citizen, is the responsibility of the state. The social orientation of the Constitution of the Russian Federation of 1993 is also manifested in the provisions of Chapter 2 "Rights and Freedoms of Man and Citizen", the content of which will be discussed in the next topic. Article 14 of the Constitution establishes that the Russian Federation is a secular state. A secular state is a state in which there is no official, state religion and none of the creeds is recognized as obligatory or preferable. In such a state, religion, its canons and dogmas, as well as religious associations acting in it are not entitled to influence the state system, the activities of state bodies and their officials, the system of public education and other areas of state activity. The secular nature of the state is ensured, as a rule, by the separation of the church (religious associations) from the state and the secular nature of public education (separation of the school from the church). No religion can be established as a state or compulsory one. Religious associations are separated from the state and are equal before the law. These constitutional provisions were developed in the Federal Law of September 26, 1997 No. No. 125-FZ (as amended on June 29, 2004) “On freedom of conscience and religious associations”. Regarding the relationship between the state and religious associations, the law establishes that the state does not interfere in the determination of a citizen's attitude to religious affiliation, in the upbringing of children by parents, in accordance with their convictions and taking into account the child's right to freedom of conscience and freedom of religion. The state does not impose on religious associations the performance of the functions of state power, other state bodies, state institutions and local governments; does not interfere in the activities of religious associations, if it does not contradict the law; ensures the secular nature of education in state and municipal educational institutions. Officials public authorities, local self-government bodies, as well as military personnel are not entitled to use their official position to form one or another attitude towards religion. In turn, religious associations, in accordance with constitutional principles, are created and carry out their activities independently of the state - in accordance with their own hierarchical institutional structure, they select, appoint their personnel in accordance with their own regulations, while working conditions and their remuneration are established in accordance with with the legislation of the Russian Federation labor agreement (contract). According to the law, religious associations do not perform the functions of state authorities and local self-government bodies; do not participate in elections to state authorities and local self-government bodies; do not participate in the activities of political parties and political movements, do not provide them financial assistance. But this does not mean at all that clergymen cannot be elected to state authorities and local self-government. They can, but their candidates are not nominated from religious associations and not as representatives of the respective church. According to the law, a religious association in the Russian Federation is a voluntary association of citizens of the Russian Federation, other persons permanently and legally residing in the territory of the Russian Federation, formed for the purpose of joint confession and dissemination of faith and having signs corresponding to this purpose: religion; performing divine services, other religious rites and ceremonies; teaching religion and religious education of their followers. Religious associations may be created in the form of religious groups and religious organizations. Religious groups are religious associations that carry out activities without state registration and acquiring the legal capacity of a legal entity, i.e. organizational and legal forms of small religious communities. The premises and property necessary for the activities of a religious group shall be provided for the use of the group by its members. Unlike them religious organizations– religious associations registered as legal entities. Religious organizations, depending on the territorial scope of their activities, are divided into local and centralized. A local religious organization is an organization consisting of at least ten members who have reached the age of 18 and permanently reside in the same locality or in the same urban or rural settlement. A centralized religious organization is an organization that, in accordance with its charter, consists of at least three local religious organizations. Religious organizations have the right to conduct religious ceremonies in medical and preventive and hospital institutions, orphanages, nursing homes for the elderly and the disabled, in institutions executing criminal sentences of imprisonment, at the request of citizens in them, in premises specially allocated by the administration for these goals. The command of military units, taking into account the requirements of military regulations, is not entitled to prevent the participation of military personnel in worship and other religious rites and ceremonies. At the request of religious associations, the relevant state authorities have the right to declare religious holidays as non-working (holiday) days in the respective territories. Such public holidays announced, in particular, the Nativity of Christ, as well as a number of Muslim religious holidays. Religious organizations may own buildings, land plots, industrial, social, charitable, cultural, educational and other purposes, cash and other property necessary to ensure their activities, including those classified as historical and cultural monuments. Religious organizations may be liquidated by decision of their founders or by a body authorized to do so by the charter of a religious organization, as well as by a court decision in the event of repeated or gross violations of the norms of the Constitution of the Russian Federation, federal laws, or in the event of a religious organization systematically carrying out activities that contradict the goals of its creation. 9

Constitutional system: concept and main elements

The concept of the constitutional system and its foundations:

Each state has certain specific features, the totality of which makes it possible to judge the form or method of its organization, i.e. about the state system. This system, enshrined in the constitution, becomes the constitutional system.

The constitutional system (in the narrow sense) is a certain organization of the state established by the Constitution. The constitutional system (in a broad sense) is a set of economic, political, social, legal, ideological, public relations arising in connection with the organization of higher authorities, the state system, the relationship between man and the state, as well as civil society and the state.

The concept of the foundations of the constitutional system of Russia includes the characteristics enshrined in the constitution as a democratic, legal, social, secular, federal state with a republican form of government.

The current Constitution of the Russian Federation was adopted at a national referendum held on December 12, 1993. On December 25, 1993, the new Constitution of the Russian Federation was officially published and began to operate.

The foundations of the constitutional order of the Russian Federation are the fundamental principles and principles that form the theoretical and regulatory framework the entire system of constitutional law of the Russian Federation. They are fixed in ch. 1 of the Constitution of the Russian Federation". The principles of the constitutional system of the Russian Federation are the fundamental principles of the state structure of the Russian Federation, directly dependent on the elements of the constitutional system of the Russian Federation.

The adoption of the constitution means the establishment of the obligation of the state to obey the constitutional precepts. Otherwise, the existence of a fundamental law loses all meaning, as well as the concept of a constitutional state. However, the concept of a constitutional system does not apply to every state. It is applicable only to a state in which the constitution recognizes, consolidates, securely protects and guarantees the rights and freedoms of man and citizen, all law corresponds to this constitution, and the state obeys law in everything. The constitutional system, therefore, is not reduced only to the fact of the existence of a constitution, but presupposes the existence of two necessary conditions: the constitution is democratic and it is respected.

In this way, constitutional order - this is a form or method of organizing the state, in which the rights and freedoms of man and citizen are respected, and the subordination of the state to law is ensured.

Elements of the constitutional system of the Russian Federation:

1. republican form of government;

2. sovereignty of the Russian Federation;

3. rights and freedoms of the individual;

4. source of power - the multinational people of Russia;

5. supremacy of the Constitution of the Russian Federation and federal legislation;

6. federal state structure;

7. citizenship of the Russian Federation;

8. division of state power into legislative, executive and judicial;

9. organization of local self-government.

The concept of the constitutional system often includes the established order (system) of relations between citizens, authorities, state and public organizations, in which their rights and obligations are enshrined in the constitution (basic law) of the state and are certainly observed.

In this regard, the features of the constitutional system include:

" the rule of law;

» broad human rights and freedoms, their guarantee;

» participation of the people in the exercise of state power and broad popular representation;

" separation of powers.

The protection of the constitutional system is ensured by:

A special procedure for proposals and amendments to Chapter I of the Constitution - Fundamentals of the constitutional system;

The inevitability of punishment of persons carrying out actions aimed at overthrowing the constitutional order.

The foundations of the constitutional system determine the principles of the organization of the state in its relationship with the individual and civil society. That is the meaning of these fundamentals.

The foundations of the constitutional system of the Russian Federation are not regulated by all, but by the most important social relations that characterize the Russian statehood. The totality of legal norms regulating these relations forms the constitutional legal institution "Fundamentals of the Constitutional System of the Russian Federation", which occupies a leading place in the system of constitutional law in Russia.

The constitutional consolidation of the foundations of the constitutional system ensures their proclamation on behalf of the peoples of Russia, their state will. This determines their legal significance, supremacy and obligation for all subjects of legal relations. The foundations of the constitutional system form the foundation of the entire legal regulation of the state and public life of Russia, they determine in legal form all the most important connections inherent in its organization. All of them can be changed only in a special order, specially established by the Constitution of the Russian Federation. At the same time, no other provisions of the Constitution can contradict the foundations of the constitutional system (Article 16 of the Constitution of the Russian Federation).

Thanks to the constitutional consolidation of the foundations of the constitutional system, the system of their guarantees is formed by both material, political, social and legal guarantees, and their implementation must be ensured by the state.

The foundations of the constitutional system are the main foundations of the state, its basic principles that characterize the Russian Federation as a constitutional state, which are guaranteed and provided by the state.

The Constitution of the Russian Federation, first of all, consolidates the principles, the main foundations of the Russian constitutional system, in which its humanistic orientation and democratic essence find expression, which characterize the Russian Federation as a constitutional state.

The Constitution of the Russian Federation recognizes such principles and properties of state power as the sovereignty of the state, separation of powers, state authorities and the relationship of local self-government with them as the foundations of the constitutional system.

Each constitutional principle does not operate on its own. All of them together and interconnected constitute the state, complement each other and are interdependent.

The following basic principles of the constitutional system of the Russian Federation are distinguished:

1) democracy (it is characterized by the rule of power of the people; the origin of state power only on behalf of the multinational people of the Russian Federation; the presence of 2 forms of democracy: direct and representative);

2) priority of universal human values, rights and freedoms of an individual;

3) the rule of law;

4) federalism (it includes the territorial integrity of the state; the supremacy of state power and the federal system of law throughout the territory of the Russian Federation, including the territory of the subjects of the Russian Federation; the equality of the subjects of the Russian Federation before the Russian Federation as the sole bearer of state sovereignty, etc.);

5) state sovereignty (it includes the following elements: state integrity, unity of the system of state power, delimitation of jurisdiction and powers between state authorities of the Russian Federation and state authorities of the constituent entities of the Russian Federation, recognition of the equality of the peoples of Russia);

6) the social character of the Russian Federation (i.e., the policy of the Russian Federation is aimed at creating conditions that ensure a decent life and free development of a person);

7) the secular nature of the Russian state (that is, in the Russian Federation, the activities of state power and religious associations are carried out independently of each other, the state has no right to interfere in the affairs of the church);

8) republican form of government (a feature of the republican form of government in the Russian Federation is that it is mixed, and not presidential or parliamentary);

9) separation of powers;

10) political pluralism (the Russian Federation guarantees social and political diversity, freedom of views and worldview of citizens);

11) the diversity of forms of ownership and freedom of economic relations (the territory of the Russian Federation is a single economic space, it guarantees the free movement of goods, services and financial resources, support for competition, freedom of economic activity).

The society of free people (civil society) obliges the state to serve a person, makes certain demands regarding the organization of state power and its limits. The foundations of the constitutional system contain guarantees against the establishment of total state control of public life.

The constitutional guarantees that determine the foundations of the constitutional order of Russia in the economic and political fields are as follows:

Unity of the economic space, free movement of goods, services and financial resources, support for competition;

Recognition of private, state, municipal and other forms of ownership and their protection in the same way;

Attitude to land and other natural resources as the basis of life and activity of the peoples living in the respective territory, and the possibility of their being in private, state, municipal and other forms of ownership;

The ban on the establishment of one ideology as a state or mandatory, recognition of ideological and political diversity, multi-party system;

The right of citizens to form public associations and the freedom of their activities.

Characteristics of the foundations of the constitutional system:

The foundations of the constitutional system of the Russian Federation can be conditionally divided into the following groups:

♦ state structure - state foundations;

♦ political system - political foundations;

♦ economic system - economic fundamentals;

♦ social system - social foundations;

♦ legal system - legal framework;

♦ the legal status of the individual.

The foundations of the state structure of the constitutional system of the Russian Federation are:

» according to the form of government of the Russian Federation - a republic;

» according to the form of the territorial-state structure of the Russian Federation - a federation;

» according to the form of the state regime of the Russian Federation - a democratic state;

» in the Russian Federation, local self-government is guaranteed, the bodies of which are not included in the system of state authorities;

» The Russian Federation is a sovereign state;

» the territory of the Russian Federation is integral and inviolable;

The basis of the constitutional system of Russia is democracy.

Democracy - the will of the people in governing the state directly or through representatives, which is carried out freely by the people, but in accordance with the requirements of the law, their sovereign will and the interests of the state. In the Russian Federation, power is legitimized and controlled by the people, the citizens of the Russian Federation.

Elements of democracy in the Russian Federation:

› collective entity - citizens of the Russian Federation;

› object - power.

Forms of democracy:

1) direct (direct) democracy;

2) representative (indirect) democracy.

Direct democracy is the direct expression of the will of the people or part of them to resolve the most important issues for the state in regulating public life.

Types of direct democracy:

1) referendum;

2) elections;

3) peaceful meetings, rallies, demonstrations, processions, picketing, etc.; 4) people's law-making initiative to local self-government bodies, the initiative of citizens to hold a referendum; 5) individual and collective appeals of citizens to state bodies and local self-government bodies.

Representative democracy (democracy) is the exercise of power by the people through representative bodies of state power and local self-government.

Forms of indirect democracy:

1) discussion of draft laws and other important issues of the public life of the state;

2) people's law-making initiative to the legislative bodies of the Russian Federation;

3) participation of citizens in the management of society through local governments, public organizations, gatherings and meetings of citizens;

4) individual and collective appeals of citizens to state authorities and local governments on all issues.