Whether the Republic needs constitutional justice
The Constitutional Court of the Russian Federation essentially promotes entailment in life of the principles of justice, democracy. Analyze the judicial practice of the Constitutional Court of Republic Adygea. The Republican interpretation of freedom.
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WHETHER THE REPUBLIC NEEDS CONSTITUTIONAL JUSTICE?
Since the end of the XVIII century in the countries, generally named West, in which by this time there has been terminated the process of development of the civil society, there were adopted constitutions - the supreme laws, forming the bases of the legal system of each country called to guarantee the civil society and protect its members from autocracy of the state. This practice has currently gained the global scale: the country without the written constitution presents update rare exception.
Moreover, the contents of the constitution are more and more unified. The main its block forms the developing system of rights and freedoms of a person and a citizen and guarantees of their protection, and the system publicly forms the system of imperious bodies, comprising the second necessary block of the contents of the constitutions, basing in this or that degree on the fundamental principle of division of the powers, assuming their mutual balance and hereunder exception of the dictate of one of them. In such way constitution's guarantee protection of the person from possibility of the arbitrariness of public authorities, promote the rational organization of the later.
The end of 19th century - by the beginning of the 20th century the volume of the legal regulation of public relations in more or less developed countries of the world there increased in such a way that there were required special guarantees of protection of the constitutions themselves distortions and perversions in the current legislation. The administrative and constitutional justice have started to serve the provision of such guarantees.
There is still disputed the question about legality of differences of notions "right" and "law" and the hierarchy in their relations. The priority of the Fundamental Law of the state over the legislation is determined by the same as the primate of the right on the law: the Constitution is the positive natural right plus determination of the forms of organization of the instrument of the official instrument in respect of the natural right, named the state power. Proceeding from it, it is possible to offer the necessary wording, which in our opinion seems right: "justice common" - protector of the legal law, "justice constitutional" - protector of the right. At present, the constitutional checking has become nearly essential attribute of democratic statehood and in majority of the states it is realized by the specialized constitutional justice.
At present in Russia there is basically formed democratic infrastructure that is there installed the system of institutes, through which there can be realized self-management of the society at all levels. The constitutional justice occupies in this system the significant place.
Giving general interpretation of the Constitution, applicable to estimation of the most significant statutory acts, first of all laws, the Constitutional Court of the Russian Federation essentially promotes entailment in life of the principles of law, justice, democracy, consequent application of the state to service for the interests of the person and society and the corresponding development of the whole statehood.
Such role is played by the constitutional (authorized) courts, created in 16 subjects of the Russian Federation. In 53 subjects there exist the laws about the constitutional (authorized) courts of the subjects of the Russian Federation.
Adopted in 1999 the Federal constitutional law "About judicial system of the Russian Federation" gave the legal bases of existence of the constitutional (authorized) courts in the subjects of the Russian Federation. Thus Article 27 of the Law specifies that the constitutional (authorized) court of the subject of the Russian Federation can be created by the subject of the Russian Federation for consideration of the questions on the correspondence of the laws of the subject of the Russian Federation, statutory legal acts of the bodies of state authorities of the subjects of the Russian Federation, bodies local self-management of the subject of the Russian Federation to the constitution (charter) of the subject of the Russian Federation, as well as for interpretation of the constitution (charter) of the subject of the Russian Federation.
It is necessary to note that the heads of the majority of the subjects of the Russian Federation do not consider it necessary to create such courts, as they do not want any checking of their activity. For instance, in the republic (Mordoviya) the created originally Constitutional Court was abolished, since it disturbed the former President of the republic. Certainly, not all decisions of the constitutional justice are perfect, however in the suppressing majority it protects the real sense of the constitutional legislation and except for purely legal, has significant educative importance both for the citizens and for official.
During 10 years of its existence the Constitutional Court of Republic Adygea, has accumulated the significant experience. As to results of its activity, it is necessary to note the certain legal positions, worded in its decisions, disregarding which it is already impossible the correct understanding and enforcement activity of the republican Constitution.
But judicial practice of the Constitutional Court of Republic Adygea has manifested itself for the expired decennial event not only as the facility of legal protection of the republican Constitution from perversion by the current legislation, not only as the contribution to creation and development of the theory of the constitutional law. Judicial practice has to continue to decide the problem of protection of the constitutional justice from never-ending attempts of its liquidation in this or that way. And here again, interferes the feudal psychology of a number of politicians and officials, for whom the court if it is independent is the uncomfortable institute for them.
One of the main objections against existence of the constitutional (authorized) courts for instance reference to their weak intensity in examination of cases. Herewith their activity is compared with courts of general jurisdiction. We think such analogy is incorrect. The constitutional questions and disputes are absolutely not comparable with criminal and civil cases, more over these cases on administrative offenses. Beginning with the preliminary examination of the application, there follows preparation and hearing of the case with making final decision requiring multimonths ( 2-3 months,) of the scale examination not only domestic, but also foreign legislative law enforcement and doctrine array, as well as uniform principles and norms of the international law. This complex research work is unknown to judges of general jurisdiction.
And even under these circumstances for the ten-year period of its activity the Constitutional Court of Republic Adygea has adopted more than 64 resolutions and definitions, made 3 conclusions.
According to the researcher professor V.A Kryazhkov the Intensity of activity of our constitutional (authorized) courts is at the level of constitutional (state) courts of the German lands during the period of their formation.
We think we should expect that psychology of our society will and evolve toward perception of the values, which are up-date recognized by the society in the developed countries, first of all, rights and freedoms of a person and a citizen. However this process cannot be short. Probably, it will take the period of two generations.
In conclusion, I'd like to note that the Constitutional Court of Republic Adygea formed in 1997 shows that there has occurred the legal reinforcement of our society and with the origin of the judicial authorities of the subject there has been created the important premises of conversion of the Constitution in the acting law. And both citizens and legal persons have got additional guarantees in protection of their own interests.
Among the variety of political legal points of view expressed by the Western researchers concerning the freedom of the person it is possible to select two main trends: liberal and republican. Traditionally liberal society is considered realization of the negative freedom. Freedom is main value of liberalism, but liberalism is not the philosophy of free society.
The Republican interpretation of freedom is based on analysis of the position of lucky slaves. Thus, in the opinion of R. Helli, the majorities of American Negroes, Russian serfs, soviet workers, collective farmers, representatives of intelligentsia, as well as their modern legal successors were and remain slaves since they have negative freedom, but do not run from their masters. The position of slaves is abhorrent since their negative freedom always depends on will of their masters or chiefs . Safety of slaves is doubtful, and freedom is unstable. The given moment was fixed by E. Berk in 1773. in the dispute with Methodist, who did not want to pass the law about freedom of protestant dissidence. The Methodists confirmed that dissidents possess actual freedom and do not need is legal stipulation. E. Berk named the given freedom as condescension: "Condescension is the relief of the position of the slave, instead of determination of freedom. Condescension is the condition of life of slaves. If I described the servitude, I would agree with the people rejecting i : this life depends on someone will, rather than law" .
K.Skinner also considers loss of freedom inevitable at absence of laws: "In fact such freedom is similar to authority of condescending master. The efficient guarantee of the individual freedom is the presence of the appropriate social institutes of active self-management. For achievement of this purpose it is possible and necessary to force the citizens to execute public duties and support freedom, which falls under its dependence solely on individuals. Modern liberals try to clean the political scene from all notions, except for the personal interest and rights of the individual. Therefore liberalism threatens rights and freedoms simultaneously" .
The thesis of K. Skinner about freedom under protection of the law is convincing since emphasizes the contrast of free people and slaves. But other positions of Skinner (institutes of self-management protect freedom by means of rights of the person; liberals are enemies of freedom since emphasize rights of individuals, and laws are consider the shackle of laws) are considered disputable. It is difficult to qualify the law as the necessary condition of freedom. The problem is that it is difficult to make the strict difference between liberal and republican interpretation of freedom.
Both traditions of political thought emphasize the role of institutes of control over political power (law and order, constitutional rule, division of authorities) for preservation of free society. But the republicans and liberals differently understand control. The republicans prefix this function to the government. It controls political institutes, promoting political participation of the citizens and responsibility of executive authorities. The republicans offer to intensify the state for the sake of increasing of responsibility of the representative and executive authorities and enforcement of individuals to execute duties of the citizen. The liberals deny the political institutes as the way of control of authorities. Political institutes do not allow diffusing the power and realizing social (not political) division of the powers. The liberals recognize the necessity of institutional control, but consider the concentration of the power the greater of freedom. The liberal accent on rights and freedoms of the individual on account of the civil duties is directed to restriction of state authorities by reduction of the sphere of public policy. The reasons of such reduction are connected with freedom.
The first reason has described by J. St. Mill. The power will convert active and fair part of society of the government. Any act of concentration of capable and talented people in powerful-management structures of the state is dangerous. Finally the better part of the society is absorbed by the government. And in the society there remain no people, capable not only to criticize, but also to control professionally the government. For decision of any social questions there should be required smart people. Increase of state power weakens the public life. If to radicalize this thesis, it would be better to have on all positions on powerful-management hierarchy of the state untalented people.
The second reason is specified by E.Berk: "The state should be limited with its own deals, rather than they try into deals of the society. However at the level of lowering from the state level to the level of provinces, its power falls. The people possessing power are unable to execute the duties of the lower levels, and if they manage to do it, they do not reach success at the higher level. Usually people possessing the power do not have presentations what falls into sphere of the law, and what is regulated by the common law" . With expansion of rights of the state it can worse and worse support order and safety required for freedom. The increase of functions of the state weakens the control of the society on the executive power.
Both above mentioned concepts of freedom are embodied in the political-legal practical activity of the USA, Canada, Japan and, somehow, in Great Britain. However the countries of the continental Europe both Eastern, and Western, gravitate to another ideology of freedom - freedom in condition of the social state, when requirement to the state not to interfere affairs of the person is not absolute and is complemented by requirement to create the necessary conditions for all-round free development of each person.
The disintegration of the Soviet Union and "socialist camp" has brought to spreading of extremely critical attitude to their ideological, standpoint bases. At the same time, analysis of development of political-legal thought on the problem of freedom of a person would be far from full without consideration of the contribution, which the soviet school of law has put into decision of the above mentioned problem. The given school based on strict party positions, came from the fundamental postulate of Marxism-Leninism, including that the "highest manifestation of freedom of a person is liberation of a person from exploitation" .
From the point of view of Marxist-Leninist philosophy freedom is ability of a person to act in accordance with their own interests and purposes, basing on cognition of objective necessity. Freedom is not absolute, but relative and is carried out in life by means of choice of the definite plan of action. It is that more, than better people realize their own real possibilities, than more facilities for achievement of the put purposes are in their charge, than in greater measure they coincide their interests with longings of the greater masses of people, public classes and objective tendencies of the public progress.
And so results the Marxist definition of freedom as "cognitive necessity", according to which freedom of a person, group, class, and society is not concluded "in the not imaginative independence" on objective laws, but in ability to choose, "...make decisions" . This relative historically, but at the same time real practical freedom of a person to choose its mode behavior in different circumstance entrusts on it moral and social responsibility for their own action. The so-called "negative freedom" (from deprivations, exploitation, social and national oppression) is the condition of the "positive freedom" (for creative labor, self-management, all-round development of the personality and etc.). Freedom is not equivalent to arbitrariness. The person is free in his own thoughts and actions not because they are caused by nothing. Caused condition of human thoughts, interests, intentions and actions does not cancel the freedom, since they are not uniquely determined. Regardless of the origin of their purposes and intentions people possess freedom so far as they save the real possibility of the choice and preferences, which objectively corresponds to their interests since external circumstances do not compel them to act notwithstanding their personal interests and needs. Freedom is always concrete and relative. Depending on objective conditions and concrete circumstances people can possess freedom or can be deprived of it; they can possess freedom in one sphere of activity and be deprived of it in another; finally, and the degree of their freedom can be quite different - from freedom in choice of purposes through freedom in choice of facilities of freedom of adjustment and reality.
In reality freedom is present as the unceasing chain of freedom of the choice, which was realized by people in the past and has brought the society to its given state; in turn, and need is present in freedom as the objective circumstance and cannot be carried out into life otherwise as due to free activity of the people. Historical determinism, consequently, does not deny freedom of t choice in public activity of the people, but assumes it and comprises its result.
The important principal in theoretical plan of the basic principle of historical materialism was the conclusion that rights and freedoms of a person are predestined by the given social system, the level of development of production forces, the degree of cognition of objective processes in nature and society, by the position of a person in the society. Freedom of a person is always only a part of freedom, which the given society disposes as a whole. In scholastic literature of that time there was invariably specified that rights and freedoms of a person is the public phenomena, conditioned by the system of the given society, first of all economic bases and political organization . Only at the end of the soviet power attention of scientists was redirected from bases aspects of freedom to other aspects. So, for V.Kudryavtsev the main thing in freedom is the possibility of choice, the right to act on will, without enforcement . It is natural that in conditions of one-party system, negation of pluralism and paternalistic policy of the soviet state such possibility was greatly narrowed. On the whole, for the soviet political-legal practice it was characteristic essential, in comparison with previous historical epochs, expansion of social-economic elements of freedom of a person under simultaneous narrowing of its political-ideological element.
The modern period of development of the society is characterized by the new tendencies in realization and perception of freedom. Figuratively speaking, freedom turned out to be in no need. The majority of people did not feel and do not feel the longing to this value and , do not try to reach it as self-purpose and do not clearly what it actually is. For lack of demand on the part of majority of the people freedom as well as in postwar consuming society of the West, and in the soviet society was deformed, the notion of freedom was distorted, it has become to be used not in its true notion, it has been used by those who used arguments about achievement of freedom for achievement of their own personal mercenary and dark purposes. Freedom as the human value has been changed by separate narrow notions, like freedom from the upper dominating class, freedom to enterprise, narrow national freedom, when in the country it is possible to humiliate people, speaking the other language.
At present freedom is understood in the wrong way. It is supposed, for instance that you are free if you can undertake business, but the state does not interfere your activity, or you are free, when there are no masters, landowners and capitalist and etc. All these representations about freedom assume presence of one criterion, satisfiability of which determines the difference between freedom and not freedom there is assumed the desire of a person to have a certain possibility or right, when he becomes completely free. Actually, notion of freedom is formulated in analogy with another notion, which has nothing in common with freedom, but in the basis of system of valuables of modern civilization - the notion of need. There is certain need until while you are deprived of it, you not free, however when you satisfy it you are free! In modern civilization there is no belief of freedom as about universal notion, as about notion, whose sense is determined by internal essence of a person, and the condition of freedom is fixed not only by external criteria, but strictly by the person.
One of the main premises of freedom is presentation of the person that he gets something or loses, choosing one or another, and, coming from it, he should decide what is better for him. If, for instance, someone tries to force you to do what is unacceptable not for you can consider all variants and decide that death in fight with this "someone" is the better choice, rather than subservience. But if you badly realize, in what way one variant differs from the other, the choice between them can accordingly realization of their freedom for you difficult. Thereby, at careful consideration it is absolutely clear that the main limiter of freedom is an internal limiter. The main enemy of freedom in a person is ignorance, absence of clear beliefs about things, absence of beliefs, and absence of the desire to realize the truth. The person can lose the way leading to freedom, under the influence of some obtruding desires, but the main obstacle on this way is, certainly, dogmatism, laziness and ignorance. Longing for truth and reasonable perception of the world and longing for liberty are indissolubly connected.
The longing for freedom, revealing in separate elementary actions of choice, for the reasonable person comes in the united process of self-realization, self-determination that he is capable to understand things and solve problems, appearing. The reasonable person takes the responsibility for his own decisions, he is not scared that certain decisions can be wrong since the possibility to understand what is right and what is wrong and is more important for him than conservation of illusions. His choice, either judgment about practicability of this or other choice, is the manifestation of a person, is supportive by the system of his beliefs and principles, in correctness of which he was earlier certified on his own experience, making responsible choices. Being in constant searching the reasonable person constantly finds for himself something new and improves him. The legal notion of freedom of a person covers only legally significant volitional behavior that is only such actions or inaction, which are regulated by norms of the law and generate legally significant consequences. This narrows the circle of the behavioral acts of a person, who can be subjected to legal estimation on the subject of their correspondence to the principle of freedom. There is not subjected to legal estimation on sign of freedom of the behavior of a person with essential vice of the will or behavior, out the frame of legal regulation.
Freedom in legal sense of the word means, on the one hand, the guaranteed by the state possibility of the physical person to act on own will ( independently to choose the concrete legally significant model of behavior) within the framework of the positive right for the purpose of satisfaction of their own needs, recognized by the society reasonable and motivated, and on the other hand - the prohibition to other subjects (including the state) to influence upon the will of the physical person for the purpose of compulsion him to the determined model of the behavior. According to D.Z. Mutagirov, freedom of a person "assumes absence of any artificial restrictions and prohibitions in expression of the sovereign will of the individual if there do not restricted public norms and interests, and mortality of the society and rights of the other people are violated and insulted." .
Freedom of a person is historically volatile notion; its limits and contents directly depend on the level of development of the society and the state. On the general rule, the limits of freedom of the individual, on the one hand - are rights, freedoms and legal interests of other persons, but on the other hand - interests of the state and society (national safety, public order, public morality and etc.). At the same time with complication of the public relations, with new interrelations and interdependences there appear new threats to freedom of a person; consequently, there appears the need in statutory fixing of new rights and freedoms of a person. Exactly this explains the fact that update existing and universal list of fundamental rights and freedoms is open and needs expansion.
Freedom of a person in its broad legal sense is its right to rational and lawful self-determination, recognized by the society and guaranteed by the state. It comprises such elements, as independent purposefulness (determination of own needs and ways of their realization) and independent realization of purposes (individual or collective, active or passive) of the person as the social value. Freedom as the certain legal condition of a person in the legal, constitutional state is stipulated at the level of the Fundamental Law both on the background of the fundamental political principle, and as the determined list of possibilities of legally significant behavior, directed to all-round development of the person, satisfaction of varied needs of a person. The practice of the constitutional stipulation of the freedom of a person in different states is enough varied and instructive; and it will be the subject of the final, third section of our research.
constitutional court justice democracy
См.: Хелли Р. Холопство в России: 1450--1725. М., 2008
Burke E. The Philosophy of Edmund Burke. - Ann Arbor, University of Michigan Press, 1970. - Р.77.
Skinner Q. The paradoxes of political liberty // Miller D. (ed.). Liberty. Oxford University Press, 2001, p.204
Burke E. Op.cit., p.31
Материалы ХХII съезда КПСС. - М.: Госполитиздат, 2002. - С.330.
Энгельс Ф. Анти-Дюринг. - М.: Мысль, 2006. - С.112.
Основы теории государства и права / Отв. ред. С.С. Алексеев. - М.: Юридическая литература, 1971. - С.69.
Кудрявцев В. Правовые грани свободы // Советское государство и право. - 2009. - № 11. - С.3.
Мутагиров Д.З. Права и свободы человека: теория и практика. Учеб. Пособие. - М.: Университетская книга, Логос, 2006. - С.219.
Конституционные суды немецких земель: проблема становления, М. «Юрист», 2014 год.
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