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The concepts of “constitutional law” and “state law”

Constitutional law is usually considered by legal science in three aspects: as a branch of law that exists in any state and is the leading branch of its legal system; as a legal science that studies the branch of law of the same name, its constituent norms, constitutional legal relations formed on their basis and trends in their development; as an academic discipline, a system of knowledge based on the achievements of science and industry used to train highly qualified specialists in the field of jurisprudence.

Since constitutional law is the leading branch of Russian law, its norms are basic for both public and private law, and in this sense, constitutional law is public-private (1).

In the Russian Federation, as in some foreign countries, along with the term “constitutional law”, another term is used - “state law”. Basically, their content coincides (2), although there are differences, mainly in the subject and scope of regulated relations.

For example, researchers studying state law focus primarily on the fact that state legal norms establish the basic principles that determine the structure of the state and civil society. They express, first of all, the qualitative characteristics of the state organization of society, such principles as the form of government, the form of government, ownership of power, subjects of state power and methods of its implementation, the general principles of functioning of the entire system of political organization of society1

Scientists who use the concept of “constitutional law” primarily focus the subject of research on the system of norms regulating relations that develop in the process of interaction between the individual, society and the state, associated with the exercise of public power and designed to ensure the legitimacy of this power, if it exists and operates in the interests of man, within the framework and on the basis of law. Thus, constitutional law, in their view, is a system of legal norms that ensure and guarantee the implementation and protection of fundamental human rights and freedoms, the development of democratic public institutions, the construction and functioning of the state and its institutions2.

Other authors, on the contrary, are not inclined to idealize the dominance of human rights and freedoms in constitutional law and believe that the provisions of Art. 2 of the Constitution of the Russian Federation can remain either a slogan3 or an attempt to legitimize a double standard. IN AND. Yakunin believes that “the system of double standards, at least at the level of the Constitution of the Russian Federation, must be rethought. Naturally, we are not talking about denying the principle of human rights as the highest value. But this ideologeme, which is universal for most countries of the world community, must be supplemented by others related to the national, historically formed specifics of Russia.

Article 2 of the Constitution offers a neoliberal interpretation of the highest state values. In the proposed value series “man, his rights and freedoms,” as noted above, there was no place for Russia itself. What is unconditional is that its independence should also be considered one of the basic constitutional values, and priority over others”1. Moreover, in Art. 2 of the Constitution, the state is considered as a technical or service means for the convenience of citizens. In reality, it acts as the highest uncontrollable authority, and citizens as interchangeable cogs. Moreover, uncontrolled officials, having taken a supra-legal position, feel not like employees, but commanders.

In relation to Russia before the revolution of 1917, scientists used the concept of state law2, using the term constitutional law for foreign states, where, thanks to scientists of the Anglo-Saxon legal family, this terminology became widespread, and the political system was distinguished by the separation of powers, direct “law of the people” and popular representation.

The term state law was also used by the Soviet school, although the motives were different. Priority was given to the “all-encompassing” state, collective, class, and party. A person in this system was considered as a “cog”, “cogwheel”, “drive belt” (in the terminology of those years) in the system of an “all-encompassing” society based on class values. In addition, state law was significantly politicized; Soviet constitutions were more of an ideological and political document than a legal one.

The return to the concept of constitutional law in Russia occurred during the years of the so-called “perestroika” in the second half of the 1980s and early 1990s, when issues of human rights and their protection, democratization of society, separation of powers, the rule of law, the subordination of the state to law, the forms of direct expression of the will of the people.

Of course, it is impossible to both identify and separate constitutional and state problems, much less oppose them. They can only be resolved through close interaction and organic interrelation. In their combination, the constitutional idea enshrined in the norm of the current Constitution of Russia1 is realized to some extent: “Man, his rights and freedoms are the highest value.”

However, the dispute between domestic scientists about the content of these terms has lasted for several decades (since the 70s of the last century), but there is still no consensus on this issue. Supporters of the concept of “constitutional law” gave arguments in its defense. Their meaning is that even in Soviet times, textbooks on state law corresponded to the Constitution of the USSR, that the term “state law” does not reflect the specifics of the branch, because any legal norm, no matter what branch of law it relates to, is established by the state, and in In this sense, every normative instruction of a state body can be classified as state law.

Supporters of preserving the name of the industry and science “state law” insisted that the discussion is conceptual in nature, determines the content and scope of the subject of legal regulation of the branch of law, which historically developed precisely as state law and has its own traditions in society. At the same time, N.A. Bogdanova believes that the modern trend of expanding the subject of state legal regulation by including concepts related to various aspects of the structure and functioning of civil society, aimed at protecting it from state intervention, is an argument in favor of calling the relevant science and branch constitutional law. At the same time, the boundaries of its regulation and study are expanding. They go beyond the traditional subject of state law, shifting the emphasis in understanding the role of the state in the chain “state - society - people”. The initial and most important reference point is the person, his rights and freedoms, and society is considered as the main link between man and the state.

A kind of compromise approach is proposed by E.I. Kolyushin, who believes that the concepts of “constitutional law” and “state law” are identical in their content, therefore the term “constitutional (state) law” seems to be the most successful in relation to Russia. This emphasizes the continuity of development and relieves the tension caused by the political opposition of these concepts1.

During the discussion, neither side was able to prove that they were right, since it was actually more about a dispute of terms rather than about the content of the industry. In addition, arguments in favor of the fact that a constitutional system has not yet developed in Russia and there is no real priority for human rights and freedoms are gradually losing their significance due to the obvious modern tendency towards respect for human rights, towards economic and socio-cultural changes in Russian society, towards compromise and cooperation of government bodies at various levels among themselves and with the local government system. Apparently, this is why today the overwhelming majority of textbooks are called “Constitutional Law of Russia,” which, according to I.A. Konyukhova, testifies to the transformation of the views of the Russian school of government and a more solid establishment of the doctrine of constitutionalism2. S.A. also named the textbook the same way. Avakyan, emphasizing that constitutional and state law comes from the state, and the subject of the branch here is identical. The limits of regulation by a branch of the law of public relations depend not on its name, but on the nature of these relations and the objective need only to establish their legal foundations or also in detailed legal design3.

1.5. The relationship between state law and constitutional law

Both in our country and abroad, both of these terms are used as the name of the branch of law we are considering. There is no fundamental difference between them, and it is most often a matter of tradition. In the USA and France, for example, the term "constitutional law" is used, and in Germany - "state law". In pre-revolutionary Russia, both names were used, although there was no actual constitution in the country, which caused a dispute about the terms. After 1917, the name “state law” became more common, most likely due to the total nationalization of public life. In modern conditions, most Russian researchers are inclined to replace the traditional name with “constitutional law”. This is seen as a kind of sign of the rejection of totalitarian statehood in favor of constitutionalism and democracy.

The course “Constitutional Law” is taught in law schools of the Russian Federation. It is based on the results of research by V. Karpiko, V. Chernetsky on the subject and system of constitutional law, V. F. Kotok on constitutional legal relations, I. E. Farber, V. A. Rzhevsky, B. S. Krylov on the essence of constitutional law, S. A. Avakyan, I. P. Ilyinsky, L. A. Morozova, O. E. Kutafin on the theory of constitutional regulation, G. V. Barabasheva, M. I. Piskotina, V. I. Fadeeva, I. Y. Sheremet on problems of municipal law and local self-government.

Supporters of the term “state law” believe that this name is more consistent with the requirements of historical continuity in the designation of the industry. But they are objected to, citing books of the pre-revolutionary and Soviet periods, published under the title “Constitutional Law”.

There are also more fundamental disputes against naming an academic discipline constitutional law. According to scientists, a constitutional system has not yet developed in Russia; there is no priority for the person, his rights and freedoms.

In our opinion, this statement needs to be specified, since there are obvious tendencies towards compromise and cooperation between government bodies at various levels, towards respect for human rights, and towards economic and cultural changes.

The issue of distinguishing between the subjects of state and constitutional law is truly problematic. Each of these industries has its own subject, the scope of regulated relations, and a set of regulatory documents. However, both in state and constitutional law they have a single source - the Constitution of Russia.

We must agree with the statement that the subject of state and constitutional law includes principles and norms governing the form of state organization, as well as the formation, structure and exercise of state power.

Opponents of the term “constitutional law” motivated their position by the fact that the proposed name is not new, that it is widely used by bourgeois government scholars. In the literature, this view has been fairly criticized. At the same time, it was quite rightly noted that the term “state law” was also taken from bourgeois literature.

Some authors explained the inappropriateness of replacing the course “State Law” with “Constitutional Law” by the identity of state law and the constitution and the need to define the branch of law by the specifics of the social relations regulated by it, and not by the nature of the main source of law - the constitution.

Almost until 1992, constitutional law as a branch of law and as an independent legal science was not distinguished in the general system of Soviet legislation, and therefore it was not taught in law schools. There was a branch of law, science and an academic discipline called “Public Law of the USSR and Foreign Countries.” Although the specificity of state law, in essence, is constitutional law, because it considers mainly the foundations of the constitutional system, which are enshrined in the constitution (fundamental law) of the state.

It is appropriate to emphasize that not all legal scholars considered the term “state law” to be successful in previous years. This was confirmed by the heated debate on constitutional issues that unfolded in the late 50s and early 60s. In particular, some authors, as a compromise, proposed using the double name “state (constitutional) law.” And yet, over time, the term “state law” came into common use.

The main reason why constitutional law was not recognized is that the importance of the Constitution itself for the life of society was objectively underestimated, because the rule of law was not actually built (this goal was not even proclaimed until 1988).

A number of considerations can be made in favor of the term “constitutional law”:

any legal norm, no matter what branch of law it relates to (state, civil, labor, criminal law, etc.), is always established by the state, and for this reason all branches of law can be called “state”. But then the specificity of “state law” itself is lost;

the specificity of state constitutional law exists and lies in the fact that the norms of state law determine the foundations of the political and economic systems of society, the foundations of state activities in the field of social development, and establish the symbols of state sovereignty - coats of arms, flags, anthems and capitals;

the legal basis for democratic transformations in the formation of a modern civil society and the rule of law can only be represented by the Constitution, as the Basic Law of the state;

the term “constitutional law” is used in three meanings: as a branch of law (or branch of legislation), as a branch of legal science, and as an academic discipline. Each of these categories has its own function and its own object.

The science of constitutional law has its own subject of study. It is a set (systems) of methods, methods, means of cognition of the social system, government structure and the foundations of the legal status of citizens. The branch of law has its own subject of regulation. Through constitutional and legal norms, it consolidates the foundations of the constitutional system. Since these norms constitute a special branch of law, it should be recognized that constitutional law is the subject of both jurisprudence and state science in general.

Constitutional law as an academic discipline is characterized by the following features.

It is the basis of all other relations, since it is in it that the fundamentals of the structure of society and the state are expressed, which determine the content of all social relations.

In constitutional relations, the power of the people is affirmed, the will and interests of the people, all nations and nationalities are embodied.

Social relations express the structure of society and the state as an integral organism, as a single economic and political life.

The relations that constitute the subject of constitutional law are characterized by a special circle of subjects, which include people, nations, the Russian Federation, republics, and national-territorial entities.

A distinctive feature of these relations is the special legal form of their consolidation. The main ones are regulated by the constitutions of the Russian Federation and republics, as well as laws of constitutional significance.

Thus, “state” and “constitutional” law are used in the name of the corresponding branch of national law. The choice of name for the legal branch of a particular state in question depends on a number of factors: firstly, on the approach to the scope of regulation of the industry; secondly, on the position on the importance of the qualitative aspects of the social and state system of a particular country for characterizing the industry; thirdly, from highlighting the priority in the relationship: state and law; fourthly, from the historical and legal traditions of a particular country.

Constitutional (state) law in jurisprudence is considered in three aspects: as a branch of the law of specific states, as a science and as an academic discipline in the legal education system. When choosing one of these two terms, we must apply it to all three aspects if we want to avoid terminological confusion.
The terms "constitutional law" and "state law" are often considered synonymous. Indeed, if, as is customary primarily in European literature (including our domestic one), we consider the corresponding system of legal norms to be a branch of law, then the range of social relations regulated by it in countries where one or another of these terms is used is approximately the same. The choice of the term is usually dictated by the national tradition of word usage. Thus, the Anglo-Saxon and Roman legal systems traditionally use the term “constitutional law,” while the German system typically uses the term “state law.” In Switzerland, in its predominantly German-speaking part, the term “state law” is used, while in the remaining, Romance-speaking parts of this country, “constitutional law” is used.
Upon closer examination of the issue, one can, however, notice that the difference in terminology reflects (not always, but often enough) the essential difference between the corresponding concepts. Thus, in Great Britain, the USA, and France, by the beginning or at the beginning of the 19th century, a constitutional system had been established, the minimum features of which were the judicial protection of human rights and the separation of powers. In Germany this happened later. It is noteworthy that now in Germany the term “constitutional law” has begun to be used, although in a narrower meaning. However, to designate an academic discipline in German law schools, the terms “public law” or “state law in the broad sense” are often used, which cover administrative law, judicial law, and some other branches of law. State law in the narrow sense - an analogue of constitutional law - is considered as a fundamental part of public law. For example, the textbook by Dr. A. Katz (Germany), which went through a dozen editions, is called: “Public Law. Basic course in public law"*. Another German author, professor at the University of Cologne Klaus Stern, emphasizes in his major five-volume work that constitutional law forms the central sphere of state law and can be characterized as state law in the narrow sense**.
* Katz A. Staatsrecht. Grundkurs im offentlichen Recht. Heidelberg: C.F. Muller Jur. Verl., 1991. See especially: S. 8 f. See also: Stern K. Das Staatsrecht der Bundesrepublik Deutschland. Bd. 1. Grundbegriffc und Grundlagen des Staatsrechts, Strukturprinzpien der Verfassung. Munchen: C.H. Beck'sche Verlagsbuchhandlung 1984, S. 7 ff.
** See: Stern K. a.a. O., S. 11.
As for the so-called socialist countries, following the Soviet example (and in our country there has never been a full-fledged constitutional system and, therefore, constitutional law), they initially used the term “state law”, with the exception of Cuba, where the traditional Romanesque legal terminology, which included the term “constitutional law” even in the absence of a constitutional order. Later, as one of the formal signs of real or illusory democratization in Hungary, Poland, Romania, and Yugoslavia, the corresponding branch of law began to be called constitutional law. Now in the Eastern European former socialist countries, as well as in Mongolia, like us, the process of creating a constitutional system and valid constitutional law is unfolding. The same can be stated in relation to a number of countries of the former “socialist orientation” (Algeria, Benin, Mozambique, Nicaragua, etc.), where the terminology inherent in the Romanesque or Anglo-Saxon legal systems was adopted from the former metropolises, although this movement is still located there at the very initial stage and different development options are possible.
In the literature, however, one can find a different understanding of the difference between constitutional and state law than that stated above. Thus, the German constitutionalist Konrad Hesse believes that since the constitution is not limited to the establishment of a state system, but also covers the basics of non-state life (marriage, property, etc.), ““constitutional” law is more comprehensive than “state” law, which according to meaning and content means only the law of the state. On the other hand, “constitutional” law is limited in comparison with “state” law in the sense that “state” law includes, for example, administrative and procedural law...”*.
* Hesse K. Fundamentals of constitutional law of Germany. M.: YuL, 1981. P. 29. This translation was made from the 11th German edition of the book, published in 1978. In what follows we will use the later edition: Hesse K. Grundzuge des Verfassungsrechts der Bundesrepublik Deutschland. 18., erg. Aufl. Heidelberg: Muller, Jur. Verl., 1991.
In our domestic literature, back in Soviet times, an opinion was expressed, in particular by V.A. Kikotem, I.P. Ilyinsky that constitutional law is a system of constitutional norms proper, which do not form branches of law, being its core, including the principles of all branches*. There is considerable reason for this position, but this idea, unfortunately, has not received thorough scientific development in our country, and therefore in this textbook it is hardly advisable to use such an unestablished scientific category as the “core of law.” Having limited ourselves to communicating this idea to the reader, we will continue to characterize the system of legal norms we are studying as a branch of law, which in each country is of fundamental importance for other branches.
* See: Current theoretical problems of the development of state law and Soviet construction. M.: IGP AN SSSR, 1976. pp. 180–182, 216–220. It should be noted that in Soviet literature disputes repeatedly arose about the name of this branch of law. Their last surge occurred in the 60s, when an attempt was made, which did not end in anything, to develop and adopt a new Constitution of the USSR (see the works of defenders of “state law”, professors S.S. Kravchuk, A.I. Lepeshkin, and supporters of “constitutional Law" by professors V.F. Kotok, I.E. Farber). In 1975, a team of Leningrad authors under the leadership of prof. V.A. Ryanzhina even published a textbook called “Soviet Constitutional Law,” but the tradition of calling the branch state law stood then and fell only in recent years.
Today, only a relatively small group of countries uses the term “state law,” while the vast majority of them designate the fundamental branch of their law with the term “constitutional law,” regardless of whether a constitutional system actually exists there or not. Therefore, in order to simplify the text in the textbook in the future, as a rule, we call the considered branch of law only constitutional law.

Constitutional law is usually considered by legal science in three aspects: (1) as a branch of law that exists in any state and is the leading public branch of its legal system; (2) as legal science, studying the branch of law of the same name, its constituent norms, the constitutional and legal relations formed on their basis and the trends in their development; (3) as academic discipline, a knowledge system based on the achievements of science and industry used to train highly qualified specialists in the field of jurisprudence.

Since constitutional law is the leading branch of Russian law, its norms are basic for both public and private law. Therefore, constitutional law, being a branch of public law, enshrines in its content the most important principles of other branches of law, and in this sense, it can be classified, as noted by O.E. Kutafin, to public-private law 1 Kutafin O.E. Subject of constitutional law. M.: Lawyer. 2001. P. 44., in the subject of which public and private legal interests converge.

In the Russian Federation, as in some foreign countries, along with the term “constitutional law”, another term is used - “state law”. In the main, their content is the same 2 For example, E.I. Kolyushin considers these concepts as synonyms, since in their content the concepts “constitutional law” and “state law” are identical // Kolyushin E.N. Constitutional law of Russia: Course of lectures. M.: Gorodets. 2006. pp. 14, 15., although there are differences, mainly in the subject and scope of regulated relations.

For example, researchers studying state law focus primarily on the fact that state legal norms establish the basic principles that determine the structure of the state and civil society. They express, first of all, the qualitative characteristics of the state organization of society, such principles as the form of government, the form of government, ownership of power, subjects of state power and methods of its implementation, the general principles of the functioning of the entire system of political organization of society 3 State law of the Russian Federation: A course of lectures for legal institutes and faculties / Ed. O.E. Kutafina. T. I. M.. 1993. P. 8..

Scientists who use the concept of “constitutional law” primarily focus the subject of research on the system of norms regulating relations that develop in the process of interaction between the individual, society and the state, associated with the exercise of public power and designed to ensure the legitimacy of this power, if it exists and operates in human interests, within the framework and on the basis of law. Thus, constitutional law, in their view, is a system of legal norms that ensure and guarantee the implementation and protection of fundamental human rights and freedoms, the development of democratic public institutions, the construction and functioning of the state and its institutions 4 Constitutional law of foreign countries: Textbook for universities / Ed. ed. M.V. Baglaya. Yu.I. Leibo. L.M. Entina. M., 2000. P. 8..

Other authors, on the contrary, are not inclined to idealize the dominance of human rights and freedoms in constitutional law and believe that the provisions of Art. 2 of the Constitution of the Russian Federation can remain either a slogan 5 “In connection with the modern slogan of the priority of human rights (and this is precisely a slogan, because it easily turns into the formula “help yourself”), interference in the modern life of any resident is a priori associated with the fear of violation of his rights.” See: Baburin S.N. Golik Yu.V., Kapitonov S.A. The role of the state in the modern world // Current problems of modern Russian state studies: collection. scientific works. Vol. 1 / Under general ed. S.N. Baburina. M.: Publishing house RGGEU, 2008. P. 16., or an attempt to legitimize a double standard. IN AND. Yakunin believes that

the system of double standards, at least at the level of the Constitution of the Russian Federation, must be rethought. Naturally, we are not talking about denying the principle of human rights as the highest value. But this ideologeme, which is universal for most countries of the world community, must be supplemented by others related to the national, historically formed specifics of Russia.

Article 2 of the Constitution offers a neoliberal interpretation of the highest state values. In the proposed value series “man, his rights and freedoms,” as noted above, there was no place for Russia itself. It is unconditional that its independence should also be considered one of the basic constitutional values, and priority over others. 6 Yakunin V.I. State ideology and national idea: constitutional-value approach // State and law. 2007. No. 5. P. 7..

At the same time, some authors argue that Art. 2 of the Constitution, the state is considered as a technical or service means for the convenience of citizens. In reality, it acts as the highest uncontrollable authority, and citizens - as interchangeable cogs. Moreover, uncontrolled officials, having taken a supra-legal position, feel not like employees, but commanders. It is worth noting here that, probably, such statements need to be approached critically, and the use of the category of party congresses of the 30s “cogs” in relation to citizens of the Russian Federation is completely unacceptable, just as it is unacceptable not to see the conceptual and doctrinal nature of the second article of the Basic Law with facets, it thinned out and became the essence of all legal regulation of social relations of society and the state precisely through the highest values of man, his rights and freedoms.

In relation to Russia before the revolution of 1917, scientists used the concept of state law 7 Despite the fact that for the law school of Russia at the end of the 19th century. - beginning of the 20th century A broad approach to the subject was characteristic, since together with the state structure the rights of subjects, the basic principles of state power, issues of the organization of supreme power, state bodies, self-government and its relationship with local government were considered., using the term constitutional law for foreign countries, where, thanks to scientists of the Anglo-Saxon legal family, this terminology became widespread, and the political system was distinguished by the separation of powers, direct “law of the people” and popular representation.

Most domestic pre-revolutionary state scientists believed that the subject of state law is homogeneous. For example, N.M. Korkunov, I. Andreevsky, A.D. Gradovsky reduced the content of the subject of state law to the relations of state power. Although A.S. Alekseev, for example, believed that the subject of state law covers not only power relations, but also the legal status of citizens 8 Korkunov N.M. Russian state law. St. Petersburg, 1409. T. 1. P. 48; Andreevsky I. Russian state law. St. Petersburg; M.. 1866; Gradovsky A.D. General state law. St. Petersburg, 1885; Alekseev A.S. Russian state law. M., 1897. P. 8..

The term state law was also used by the Soviet legal school, although the motives were different. Priority was given to the “all-encompassing” state, collective, class, and party. A person in this system was considered as a “cog”, “cogwheel”, “drive belt” (in the terminology of those years) in the system of an “all-encompassing” society based on class values. In addition, state law was significantly politicized; Soviet constitutions were more of an ideological and political document than a legal one. 9 This position was once expressed by Professor M.A. Reisner, pointing out that “unlike the constitution of bourgeois democracy, our constitution is built on the principles not of legal validity, but of expediency,” and further: “Our science of the constitution is predominantly not legal, but political” (see; Reisner M.A. Lectures at the accelerated courses of the General Staff of the Republic of Kazakhstan of the Red Army in 1918/1919. M., 1919. P. 148)..

A return to the concept of constitutional law in Russia occurred during the years of perestroika in the second half of the 1980s and early 1990s, when questions about human rights and their protection, the democratization of society, the separation of powers, the rule of law, the subordination of the state to law, the forms of direct expression of the will of the people.

Of course, it is impossible to both identify and artificially separate constitutional and state problems, much less contrast them. They can only be resolved through close interaction and organic interrelation. In their combination, the constitutional idea enshrined in the norm of the current Constitution of Russia is realized to some extent: “ Man, his rights and freedoms are the highest value».

However, the debate between domestic scientists about the content of these terms has lasted for several decades (since the 1970s), but there is still no consensus on this issue. Supporters of the concept of “constitutional law” gave arguments in its defense. Their meaning is that even in Soviet times, textbooks on state law corresponded to the Constitution of the USSR, that the term “state law” does not reflect the specifics of the branch, because any legal norm, no matter what branch of law it relates to, is established by the state, and in In this sense, every normative instruction of a state body can be classified as state law.

Supporters of preserving the name of the industry and science “state law” insisted that the discussion is conceptual in nature, determines the content and scope of the subject of legal regulation of the branch of law, which historically developed precisely as state law and has its own traditions in society. At the same time, N.A. Bogdanova believes that the modern trend of expanding the subject of state legal regulation by including concepts related to various aspects of the structure and functioning of civil society, aimed at protecting it from state intervention, is an argument in favor of calling the relevant science and industry constitutional law. At the same time, the boundaries of its regulation and study are expanding. They go beyond the traditional subject of state law, shifting the emphasis in understanding the role of the state in the chain “state - society - people”. The initial and most important reference point is the person, his rights and freedoms, and society is considered as the main link between man and the state.

During the discussion, neither side was able to prove that they were right, since it was actually more about a dispute of terms rather than about the content of the industry. In addition, arguments in favor of the fact that a constitutional system has not yet developed in Russia and there is no real priority for human rights and freedoms are gradually losing their significance due to the obvious modern tendency towards respect for human rights, towards economic and socio-cultural changes in Russian society , to compromise and cooperation of government bodies of various levels among themselves and with the local government system. Apparently, this is why today the overwhelming majority of textbooks are called “Constitutional Law of Russia,” which, according to I.A. Konyukhova, testifies to the transformation of the views of the Russian school of government and a more solid establishment of the doctrine of constitutionalism 11 Konyukhova I.A. Constitutional law of the Russian Federation. General part: Course of lectures. M.. 2006. P. 36.. S.A. also named the textbook the same way. Avakyan, emphasizing that constitutional and state law comes from the state, and the subject of the branch here is identical. The limits of regulation by a branch of the law of public relations depend not on its name, but on the nature of these relations and the objective need only to establish their legal basis or also in detailed legal design 12 Avakyan S.A. Constitutional law of Russia: Training course. In 2 volumes, 4th ed., revised. and additional T. I. M., 2010. P. 56..

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Implementation of the principle of democracy in the Russian Federation. The relationship between the concepts of “state” and “constitutional” law in the Russian Federation

1 . Reimplementation of the people principlepower in the Russian Federation

The principle of democracy is manifested in the democratic organization of the state, the republican form of government, in which the bearer of sovereignty and the only source of power in the Russian Federation is its multinational people. The people exercise their power through various channels, including directly (for example, through elections of the president and representative bodies of state power) or through local government bodies Baglay M.V. Constitutional law of the Russian Federation: textbook. for universities. M., 2007. P.234. .

In accordance with the Constitution of the Russian Federation, the Constitution of the Russian Federation // Rossiyskaya Gazeta. - 1993. - December 25. (Article 1) The Russian Federation is a democratic state. Its democracy finds expression primarily in the separation of powers into legislative, executive and judicial; political diversity; local self-government and democracy.

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 “democracy” translated from ancient Greek).

From a legal point of view, the concept of “people” is identified with the concept of “citizens” and is defined as the belonging of a given set of people associated within a single state to the corresponding state. The people form the physical substrate of the state Kozlova E.I., Kutafin O.E. Constitutional law of Russia: Textbook. M., 2008. C342. .

It should be said that during the years of Soviet power, the people were understood as a certain historical community of people, which changes depending on the development tasks solved by society in a given period. In accordance with this, the people could consist only of workers or include those social strata that, although not classified as workers by their social status, nevertheless objectively participated in solving the problems of the progressive development of the country. This approach to defining the concept of “people” opened up wide opportunities for the totalitarian state to apply discriminatory measures to millions of citizens of the country who were objectionable for one reason or another.

Power is the ability to command or control someone or something, to subordinate others to your will. Power is a social phenomenon. It arises along with the emergence of society and exists in every society, since every society requires management, which is ensured by various means, including coercion.

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

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

State power does not coincide directly with the population and is exercised by a special state apparatus. It represents a set of government institutions through which the functions of the state are implemented. The state apparatus unites all state bodies, as well as the army, intelligence, and 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, if necessary, applies measures of state coercion to persons who have committed offenses. These measures, depending on the nature of the violations, are divided into disciplinary penalties, administrative sanctions, civil liability and criminal penalties.

State power is not the only form of power of the people. Another form of people's power is local self-government. Local governments are not included in the system of state authorities.

Recognition of the people as the supreme bearer of all power is an expression of popular sovereignty. Popular sovereignty means that the people, without sharing their power with anyone, exercise it independently and independently of any social forces, using it exclusively in their own interests. People's sovereignty is indivisible, has and can have only one subject - the people Kozlova E.I., Kutafin O.E. Constitutional law of Russia: Textbook. M., 2008. C344. .

The Constitution of the Russian Federation enshrines the prerogative of the multinational people of Russia for all power, their absolute power. This means that the Russian people do not share power with anyone and no one except themselves can lay claim to power in the Russian Federation. “No one can appropriate power in the Russian Federation,” says Art. 3. - Seizure of power or appropriation of power is prosecuted under federal law.”

Thus, democracy is the ownership of all power by the people, as well as the free exercise by the people of this power in full accordance with their sovereign will and fundamental interests.

In conditions of democracy, the exercise of power is constituted, legitimized and controlled by the people, i.e. citizens of the state, since it acts in the forms of self-determination and self-government of the people, in which all citizens can participate on equal rights. Democracy as a form of state and method of government thus turns into an organizational principle of possessing power and its exercise, which determines that the solution of any state tasks or the implementation of power requires legitimation emanating from the people or going back to them. The idea of the people as the starting and ending point of democratic legitimation is basic in the understanding of democracy.

The people of the Russian Federation exercise their power both directly and through state authorities and local governments (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 is the exercise of power by the people through elected authorized representatives who make decisions expressing the will of those they represent: the entire people, the population living in a particular territory.

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

Direct democracy 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.”

According to the Federal Constitutional Law No. 5_FKZ of June 28, 2004 “On the referendum of the Russian Federation” Collection of Legislation of the Russian Federation, 07/05/2004. No. 27. Art. 2710., referendum of the Russian Federation - a popular vote of citizens of the Russian Federation who have the right to participate in a referendum on issues of national importance.

The referendum is held on the basis of universal, equal, direct and free expression of the will of citizens of the Russian Federation by secret ballot.

Citizens of the Russian Federation have the right to participate in a referendum regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances.

The referendum of the Russian Federation is held throughout its territory.

The issue of adopting a new Constitution of the Russian Federation must be submitted to a referendum of the Russian Federation if the Constitutional Assembly decides to submit a draft new Constitution of Russia to a popular vote.

The following questions cannot be submitted to a referendum of the Russian Federation:

1) on changing the status of the subject (subjects) of the Russian Federation, enshrined in the Constitution of the Russian Federation;

2) on the early termination or extension of the term of office of the President of the Russian Federation, the State Duma of the Federal Assembly of the Russian Federation, as well as on the holding of early elections of the President of the Russian Federation, deputies of the State Duma of the Federal Assembly of the Russian Federation, or on the postponement of such elections;

3) on the election, appointment, early termination, suspension or extension of the powers of persons holding public positions in the Russian Federation;

4) on the personnel of federal government bodies and other federal government bodies;

5) on the election, early termination, suspension or extension of the term of office of bodies formed in accordance with an international treaty of the Russian Federation, or officials elected or appointed to a position in accordance with an international treaty of the Russian Federation, as well as on the creation of such bodies or appointment to the position of such persons, unless otherwise provided by an international treaty of the Russian Federation;

6) on the adoption and amendment of the federal budget, execution and amendment of the internal financial obligations of the Russian Federation;

7) on the introduction, amendment and abolition of federal taxes and fees, as well as on exemption from their payment;

8) on taking emergency and urgent measures to ensure the health and safety of the population;

9) about amnesty and pardon.

Issues submitted to a referendum of the Russian Federation should not limit or cancel the generally recognized rights and freedoms of man and citizen and the constitutional guarantees of their implementation.

Decisions adopted by an all-Russian referendum have the highest legal force, do not require any approval and are mandatory for application throughout the Russian Federation.

In addition to all-Russian referendums, republican (republics within the Russian Federation), regional and local referendums on the most important issues in the life of the republic, region, etc. can be held.

According to the Federal Law of June 12, 2002 No. 67_ФЗ (as amended on November 9, 2009) “On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation” Collection of Legislation of the Russian Federation, 06/17/2002. No. 24. Art. 2253. (Article 12), only issues within the jurisdiction of the subject of the Russian Federation or joint jurisdiction of the Russian Federation and the subjects of the Russian Federation can be submitted to a referendum of a constituent entity of the Russian Federation and a local referendum, if these issues are not regulated by the Constitution of the Russian Federation or federal law .

Only issues of local importance can be put to a local referendum. Constitutions (charters), laws of constituent entities of the Russian Federation, charters of municipalities may determine issues that are subject to mandatory submission to a referendum of a constituent entity of the Russian Federation or a local referendum.

The following questions cannot be submitted to a referendum of a constituent entity of the Russian Federation or a local referendum:

a) on the early termination or extension of the term of office of state authorities of a constituent entity of the Russian Federation, local self-government bodies, on the suspension of the exercise of their powers, as well as on holding early elections to state authorities of a constituent entity of the Russian Federation, local self-government bodies, or on the postponement of these elections;

b) on the personnel of government bodies of a constituent entity of the Russian Federation, local government bodies;

c) on the election of deputies and officials, on approval, on appointment and dismissal of officials, as well as on giving consent to their appointment and dismissal;

d) on the adoption or change of the corresponding budget, the fulfillment and change of financial obligations of a constituent entity of the Russian Federation, a municipal entity;

e) on taking emergency and urgent measures to ensure the health and safety of the population.

A referendum is not held under conditions of martial law or a state of emergency imposed on the territory of the Russian Federation, or on the territory in which the referendum is supposed to be held, or on part of this territory, as well as within three months after the lifting of the martial law or state of emergency.

Elections mean the participation of citizens in the exercise of the power of the people through the selection from their midst by voting of representatives to perform in state bodies or local governments their functions in the exercise of power in accordance with the will and interests of citizens expressed in elections.

The main thing about elections is that they are a form of citizens exercising their power. The most significant feature of elections is the direct expression of the will of citizens and their nomination from among themselves of representatives for the implementation of democracy.

This is fully consistent with the rule according to which the right to participate in government, primarily active and passive suffrage, is granted to citizens of a particular state, i.e. persons with citizenship. Suffrage is the right of not just a person, but a citizen.

Elections of state bodies and local self-government bodies, provided for by the Constitution of the Russian Federation, are free and conducted on the basis of universal, equal and direct suffrage by secret ballot.

2 . Cothe relationship between the concepts “state” and “constitutional”e" law in the Russian Federation

The question of “Constitutional” or “State” was the object of scientific dispute both in pre-Soviet state legal literature and in Soviet state science. It has not been resolved even today. This problem is becoming “eternal”. And this is due to different approaches to the scope of legal regulation of the branch of law under consideration and to unequal positions on the issue of the significance of existing aspects of the social and state system for the characteristics of the industry and science; Also, as an argument, they cite such a formal argument as the need to reflect in the name of the industry the name of its main source O.V. Makarov. Correlation between law and state // State and law, 1995. No. 5. P. 13. .

There are three main points of view (theories) on the relationship between the concepts of “constitutional” and “state” law:

1) these two concepts are identical and are used as identical;

2) the term “constitutional law” is broader than the concept of “state law”, while the concept of “state law” is sometimes considered unacceptable;

3) the concept of “state law” is broader than the concept of “constitutional law”.

Supporters of a broad vision of the subject of state law include not only the structure of the state, but also public administration, significantly expanding the scope of state legal regulation. This interpretation of industry and science was characteristic of the German school of public law and became widespread in pre-Soviet Russia. Following this concept, textbooks on Russian state law, along with a section on the state system (structure) of Russia, included problems of the form of government, state unity, the rights of subjects, the basic principles of state power, questions of the organization of supreme power (legislative and governmental), and contained chapters on the “subordinate” management" (functioning, forms, elements of administrative activity, organization of central and local administration) and self-government.

Adherents of state law in Soviet legal science had every reason to defend their position in view of the established understanding of the all-encompassing role of the state in society, the broad vision of state power accepted in science, extending to both the highest and local levels of government and cemented by the unity of the system of Councils connecting legislative and administrative functions, rule-making and executive and administrative activities. In addition, the Soviet Constitution had more value as an ideological and political document than as a supreme legal act, and could not become a truly operational, directly applied source of law, much less give a name to the industry.

The analysis of Western authors is noteworthy: “As the legal basic structure of society, the constitution is not limited to the structure of state life. Its regulation also covers the fundamentals of non-state life, which is especially obvious in its guarantees that relate to marriage and family, property, education and the actions of social groups, or freedom of art and science. Therefore, “constitutional” law, on the one hand, has a wider field of action than “state” law, which in the meaning of the words and in essence means only the law of the state; on the other hand, constitutional law is more limited, since state law can also cover the law of the state, which cannot be attributed to the basic structure of the commonwealth. These concepts, therefore, are only partially identical” Hesse K. Fundamentals of Constitutional Law of the Federal Republic of Germany / Transl. with him. E.A. Sidorova. Ed. and with intro. Art. ON THE. Sidorova. M., 1981. P. 112. .

A similar view can be found in another German author, Professor P. Badura, who writes: “The constitution of a state means the fundamental legal regulations regarding the organization and implementation of state power, state tasks and fundamental rights collected in one constitutional law (“constitutional charter”). The legal provisions included in the constitutional law form constitutional law, which differs from other norms of the legal order by its complicated changeability, binds public power in all forms of its manifestation and has priority over other legal provisions, especially laws.” Badura P. Systematic expansion of the Basic Law of the Federal Republic of Germany . M.: MSU, 1996. P.6. .

The modern trend of Russian science, which consists in expanding the subject of state legal regulation by including relations related to various aspects of the structure and functioning of civil society, aimed at protecting it from state intervention, is an argument in favor of naming the relevant science and industry - Constitutional Law . At the same time, the scope of its regulation and study, which goes beyond the traditional subject of state law, is becoming wider, and acceptance in understanding the role of the modern state in the relationship “state - society - people” is shifting.

The judgments of Professor N.V. seem reasonable. Vitruk Vitruk N.V. Constitutional responsibility: questions of theory and practice // Constitutional and legal responsibility: problems of Russia, experience of foreign countries / Ed. S.A. Avakyana. M., 2001. P. 34., who worked for many years as a judge of the Constitutional Court of the Russian Federation, that the subject and content of constitutional law in our science are unjustifiably expanded at the expense of state law, including parliamentary law, administrative (regulatory) and judicial law, which regulate relations related to the organization and functioning of the legislative, executive and judicial powers.

A feature of constitutional law is the breadth of regulation of social relations. It covers all spheres of society: economic, social, political and spiritual, while other sectors cover only certain aspects of social relations with their regulatory action. However, such a breadth of regulation does not exclude the specificity of those social relations that form the subject of constitutional law. Sometimes their specificity is seen in the fact that these relations arise and develop in connection with the organization of the state as a whole, covering all aspects of its structure. Accordingly, it is believed that the state constitutes the single core around which an integral complex of social relations is formed. It is they who are subject to such legal regulation, the result of which is the creation of an independent branch of law. Those who take this position call this branch “public law.” But such a name does not fully reflect the nature of regulated social relations; it suffers from a narrow approach to the regulatory process, since it excludes civil society from it and is based on the primacy of the state over the individual. Rzhevsky V. A. Fundamentals of State and Law. Rostov-on-Don, 2003. P.278. .

Of course, the state as a phenomenon of social life is included in the sphere of constitutional regulation, therefore the name “state law” is applicable and used in the literature along with the name “constitutional law”. But in any case, the state cannot act as a priority category; it is bound by law and must be considered from the position of the organization of society and the primacy of the status of a person and a citizen. This means that the state constitutes a specially organized society, which consists of people. Consequently, at the heart of the relationships that develop in the sphere of state organization of society is a person, which is one of the necessary conditions for the existence of a rule of law state.

It is a person with all his inherent qualities and characteristics of social activity, as well as groups of people (nations, social groups, the entire multinational people, etc.) and their associations (public organizations, parties, religious denominations, and ultimately the state in in general) are participants in those relations that crystallize in the form of a special industry. Such relations are aimed at the exercise of actual power and sovereignty of the people, as well as at achieving individual freedom in the process of activities of people, their social groups and associations in relations with the state. Mass relations of this kind and the most significant for society are called constitutional relations, since they embody the actual constitution of society, expressing its structure and character. The concept of constitutional relations was first considered in the work of: Farber I.E., Rzhevsky V.A. Questions of the theory of Soviet constitutional law. Saratov, 1967. pp. 16-25.. There is a necessary connection between the actual and legal constitutions, and the essence of this connection is that the actual constitution (the relationship of social forces) is reflected in constitutional law and is regulated by it, i.e. is the subject of legal regulation.

So, it is the subject of regulation that determines the constitutional character of this branch, which is constitutional law not so much by its main source - the legal constitution (this matters as a secondary, additional factor), but by its subject, which constitutes constitutional relations (the actual constitution).

The initial and most important guideline of constitutional law is the person, his rights and freedoms, and society is considered as the main mediating link between man and the state. Constitutional law is formed and strengthened in a state that is characterized by a wide range of not only proclaimed but also guaranteed human rights and freedoms, real popular representation and direct implementation of democracy, consistent implementation of the principle of separation of powers. The development of Constitutional law is possible only in a Constitutional state, which is the real embodiment of a legal state.

The relationship between the concepts of “constitutional law” and “state law”. The relationship between the concepts of state law, constitutional law and domestic law

The concepts of “constitutional law” and “state law”

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