Legal globalization: law, inevitability, prospects
- Тип работы:
- Государство и право
Детальная информация о работе
Выдержка из работы
Legal globalization: law, inevitability, prospects
The law in the 21century cannot remain away from the general dynamic process developed in various spheres of public life as they are the phenomenon rigidly included in the context of social development. One of the most typical processes of modern world development in the humanitarian sphere is globalization penetrating practically all sides of life of modern society and bearing both positive, and obviously negative social charge. We shall try to analyze the phenomenon of the law in the context of the process of globalization and, thus, we shall try to understand influence of consequences of global processes in the modern world on development of the legal phenomenon, including features of the domestic legal system.
Processes of globalization cannot bypass the phenomenon of the state which in new conditions is exposed to the most rigid check on durability for all centuries-old history. Globalization has put questions relating to such firm fundamental bases of the state development as state sovereignty. Accordingly, there has been essentially modified actually administrative function of the state that is accompanied by obvious decrease of its administrative potential.
As the subject of our investigation is not the problem of influence of processes of globalization on the phenomenon of the state, we shall leave behind brackets the detailed analysis of parity of globalization and the state, having noted, that the specified phenomenon of the last years, characterized by easing of opportunities of the sovereign-state influence on the processes of global development with inevitability entails the cardinal reassessment of traditional understanding of the legal phenomenon, natural devaluation of opportunities of its regulatative influences. In the given case it is meaningful to speak about irrespectivity of further reasoning to fashionable and, certainly, theoretically useful disputes concerning problems of law understanding, the majority of which anyhow mention the questions of parity of the state and the law. However, it is hard to find the scientific idea generally denying this or that interrelation of these major and, undoubtedly, rather close, social phenomena.
In view of the above mentioned it is rather logical to speak about trend of further scientific-legal researches, in particular, for analysis of adaptive ability of the legal phenomenon, including social needs and opportunities of expansion of regulatative potential of the law.
First of all, it would be desirable to mention structural changes of the phenomenon of the law. Here, in our opinion, the most typical for the last decades is the phenomenon of convergence of the legal systems. The question is the process of rapprochement of the two basic legal families — continental and Anglo-Saxon, shown in interseculation of the most important characteristics of the both. On the one hand, the continental legal family is specified with the essential increase of value of the precedent practice, mainly, in connection with strengthening of the role of the constitutional justice. On the other hand, surveying characteristic tendencies in development of Anglo-Saxon legal family, it is necessary to note expansion of actually legislative influence in the zone of the general law.
Certainly, we do not mean unification of the two legal families mostly widespread in the modern world. At the given stage it is possible to assert with definiteness about obviously expressed tendency to rapprochement of typology of their structural construction in the sphere, mainly, of formation of the list of sources of the law, characteristic for the both families. Thus, there does not cause any doubt validity of ascertaining and, obviously, necessity of preservation of the known originality of the national legal systems united by certain attributes in the corresponding legal families.
However, the general vector of development of the world legal phenomenon in conditions of globalization is obvious. It is, thus, important thus that adapted characteristics of the legal families should have positive potential that the legal systems perceived historically caused positive features of each other.
For continental legal family it would be essentially important to incorporate such dynamic properties of Anglo-Saxon family as rather inoperative state reaction (in the given case on the part of the judicial branch of the power) on the changing public relations having the legal nature and by virtue of this reason requiring special-legal influence, i.e. legal regulation. Besides the specified reaction, as a rule, can not but be characterized by the increased quality of decision of the arisen social problem requiring legal (more precisely, normative) sanctions, by the special level of professionalism so necessary in the process of removal of the social contradiction by means of legal-technical means.
Let’s state not popular reason concerning the parity of the level of the special-legal, juridical-technical decision of regulatative problems within the framework of the constitutional process and within the framework of traditional legislative process with its «democratic» — in understanding of democracy of the before last century — to the component, and also rigidly connected with the component of political component. The specified parity will hardly be in favour of the traditional parliamentarism and to the detriment of the constitutional justice.
At the same time the Anglo-Saxon legal family receives essential dividends from the raising role of the law as the major source of the right that promotes stabilization of the national legal systems making the specified family, raises its stability, provides optimum equation between preservation of the fundamental principles of law and dynamics of the concrete legal; norms regulating social relations, so quickly developing in an epoch of globalizations and under the influence of the later.
Tendencies of convergence anyhow could not bypass the domestic legal system. Still from formal-legal positions the judiciary practice is not recognized as the official source of the law. However it would be ridiculous to deny huge regulatative value which there has resolutions of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. Examination of the texts of the specified resolutions in many cases gives the grounds for thinking about the parity of interpretation of the legal norm and actually law creative process, which result is the obligatory rule of behaviour.
Frequently the side between the given phenomena of legal activity is so narrow that it is possible to speak, as it has been already done in the modern special-legal publications, on the mixed legal nature — on the normative-interpretation character of the judicial acts being the result of generalization of judiciary practice and simultaneously determining the vector of the further development of this practice.
If to speak about acts of the Constitutional Court of the Russian Federation, both about resolutions, and definitions, especially about so-called definitions with the positive contents then the regulatative and normative component of the given formal interpretation acts is so essential, that their contents determines not only the direction of judicial practice in various jurisdictions, but also the orientation of the legislative activity of the parliament.
Whether the specified circumstance is subjected to positive estimation or requires negative attitude? Most likely, as well as any complex phenomenon, it is far from unequivocal recognition. On the one hand, undoubtedly important is preservation of that rather delicate side between actually lawmaking and judicial normative interpretation, as the necessity of preservation of division of functional filling of two powerful imperious mechanisms (legislative and judicial) is axiomatical.
At the same time interests of the society, which services is the most important applicability of the state machinery in all its structural and functional displays, should have the unconditional priority, especially in the situation when imperfection of structurally functional differentiation of branches of the government attracts failures in the system of the government and as inevitable consequence, infringement of social development as a whole, shown in infringements of rights, freedoms and legitimate interests of the citizens. The question is, in particular, the cases when blanks in legal regulation of these or that public relations arising by virtue of normal process of society or by virtue of defective development of the government are not filled with legislature. In the given case the legal system should provide inclusion of regulative mechanisms, i.e. judicial law making which is the most effective mechanism.
Certainly, the nature of law making activity of judicial power has essential specificity whose basic contents is reduced to that the law making cannot be by definition be the dominant judicial functional. On the contrary, natural from the point of view of legal nature of the judicial power is its orientation to law enforcement, the sanction of legal dispute, to legal interpretation. In connection with the sanction of legal dispute there is possible realization by court being the body of the government is its law making function. Thus it is not necessary to connect law making of judicial act of high instances with their compulsion relating to extremely subordinate judicial bodies. Essentially more important for the future development of the domestic state development is analysis of limits of compulsion of statutory acts issued by bodies of judicial power addressed to others, except for subordinate courts, subjects. It is possible in particular, to mention normative instructions of the Constitutional Court of the Russian Federation to address to the Federal Assembly about the necessity of settlement of the question at the legislative level and about provisional substantial parameters of the forthcoming normative regulation.
It is interesting to note that in similar cases the Constitutional Court naturally fills the blank in legal regulation, establishing the concrete obligatory rule of behavior, i.e. the legal norm for the period until the event when after the target date the Federal Assembly will carry out already made legislative regulation. It is necessary to note, that such «judicial» norm occurs as a result of removal of the social contradiction by means of normative-legal regulation in connection with the sanction of the concrete legal dispute, and as a result of the revealed during the process of judicial law enforcement, mainly, the constitutional legal proceedings of a blank. The fact is that in some countries (Hungary, Portugal, and Byelorussia) the functional of the constitutional justice comprises such reasonably interesting power as the right of the constitutional court to establish illegality of blanks in legal regulation of social relations.
Speaking about the opportunity of an official recognition of judiciary practice as the source of law, it is necessary to mean one more important quality characterizing the source of law. In the given case the question is an admissibility to refer to the corresponding judicial act in the process of law enforcement activity. Absolutely clear that the modern domestic enforcement does not exclude, but also assumes active use of references to decisions of judicial bodies of the government, first of all the Constitutional Court both in law enforcement acts of subordinate judicial bodies of other jurisdictions, and, that is more essential, in statutory legal acts of the organs of the government. Legal positions of the Constitutional Court of the Russian Federation are actively put in substantiation of legislative acts adopted by the federal parliament and regional representative, by legislature of the government.
The general look at functional applicability of bodies of the government distributed among the three major «branches», requires comprehension of that circumstance, that general social applicability and immanent legal nature of the parliament is mainly in representation. In fact, the parliament is the final compiler of national will and for this reason it is authorized to be the barrier of sovereignty to establish the most fundamental and, hence, general in their legal contents principles of existence and functioning of the society from which contents of norms issued by the legislative body proceeds.
Thus this body cannot be isolated from the system of law realization referring to organization of the work (internal aspect of realization powers of the parliament), and concerning opportunities of adoption of individual-legal acts directed to address of other players of political-legal process — for example, personnel decisions of the representative authority (external aspect of law realization powers of the parliament).
The parliament is functionally connected to the system of the sanction of public conflicts (for example, dismissal from posts of high officials, etc.), removal of social contradictions (this function is frequently identified with court). Another case is that realization of the given direction of activity of the representative body is possible by means of specifically parliamentary means reflecting the representative nature of this body of the government. We shall also note that the later considered function of representative bodies of the government is not the basic and has more likely auxiliary character.
The system of executive power cannot also be discharged from law making activity though it can terminologically seem, that the law making component is not quite compatible with the legal nature of the executive power. However, another statement of the question is absurd and senseless. Realizing its major social applicability — to provide professional management of public processes, the executive power cannot achieve this purpose, without carrying out law making function on regulation of the given processes. Thus, specificity of normative legal regulation in executive system considerably big concrete definition of legal instructions, operative, even their instructive character is obvious. In the given special instructions principles and general norms issued by body of national representation find their realization.
At the same time it is impossible to deny participation of the executive authority in mechanisms of the sanction of legal disputes, first of all in administrative sphere. Certainly, performance of the later function is provided by the executive authority (bureaucracy) by means of the specific administrative means not having any relations to the legal proceedings and having subsidiary character referring to the major direction of activity of bureaucratic system — to positive social management.
At last, the judicial authority, having as the basic social applicability maintenance of balance of the developing public system, achieves this purpose by means of the sanction of legal disputes in the process of legal proceedings and, thus, results in misbalanced as a result of an offence (system of offences) social system in to the condition of the legal balance. Thus the basic function — actually judicial activity — is the sanction of concrete legal dispute (to judge people).
However activity of the judicial authority cannot be limited by it. At the certain stage of its development there appears quasi judicial function consisting in estimation of legality of the legal act (to judge the document). In the process of normative control there occurs inevitably of law making function of court which operatively can professionally remove the public contradiction by means of authentic completion of the blank formed as a result of actually law making activity of the court.
As is known, the fact that decision-making by court about recognition of corresponding norm contradicting statutory legal act of greater validity results in essence and as general rule exception of such norm of corresponding legal system. The Created legal defect most effectively, anyway for the certain period of time, restricted by the corresponding reaction of the legislative organ, can be eliminated by court. We believe the given approach underlies functioning of Anglo-Saxon legal family and its efficiency should be appreciated referring to the opportunity implementation in mechanisms of the continental legal system.
It is necessary to note the circumstance that for judicial authority the executive function is not excluded. Thus, by analogy with the system of the legislative bodies of the government it is not the main at estimation of the legal nature of judicial authority; however, it also has internal and external orientation. Internal aspect of law enforcement function of court is reduced to adoption of the corresponding legal acts concerning the organization of its work as body of the government. The external aspect mentions entrance of judicial bodies in the system of checks and balances, being the direct component of the system of division of powers.
Thus, each system of the government (legislative, executive, judicial), divided from the point of view of distinctions of the social applicability possesses the corresponding set of functions, namely -law making, law enforcement and jurisdictional. Each of the specified systems of the government realizes the edition of obligatory rules of behavior, is the participant of administrative process (in broad sense), and at last, is involved in removal of public contradictions by means of the sanction of legal disputes. Thus, each of the branches of the government applies specific, and inherent only to each of them set of legal means of realization of these functions, and the specified specificity predetermines features of the legal nature of each of the systems of the government. It is important to remember, that for each of them the priority is one of three basic functions. All the rest have only subsiciar value.
Speaking about judicial practice as the source of the law, it is necessary to note, that explanation of the Supreme Court and the Supreme Arbitration Court which are given by the specified high judicial bodies of the Russian Federation by virtue of the direct instruction of the Constitution (Articles 126, 127), the same as the acts of the Constitutional Court underlie not only decisions of subordinate courts according to general and arbitration jurisdictions, but are actively applied as substantiations of other law enforcement decisions, including adopted in the system of executive power. The explanations of supreme judicial bodies made in the corresponding resolutions of their plenums, and in other forms (for example, circulars of the Supreme Arbitration Court) should be the normative reference point in the process of realization of the legislative regulation of public relations.
Discussion on influence of processes of globalization on legal system can be continued by mentioning of one more important circumstance concerning the problems implementations of norms of the international humanitarian law in the corresponding national legal systems. It is necessary to note, that accordingly the domestic legislation exception is not an exception, as it pays special attention to the necessity of account of practice of the European court on human rights in the national law enforcement. Article 1 of the Law of the Russian Federation «About ratification of the European convention on protection of human rights and fundamental freedom and reports to it» fixes compulsion for the Russian Federation of practice of interpretation and application by the European Court on human rights of the specified Convention and reports to it at consideration of cases with participation of the Russian Federation.
The certain interest is caused by the more general statement of question on the parity of the international and national law, the questions connected with implementation of the conventional principles and norms of international law in corresponding national legal system. The given question (it sometimes calls the question of domestic officials in frameworks of global processes) proceeds from the normative positions fixed in Part Four Article 15 of the Constitution of the Russian Federation.
Influence of processes of globalization on the sphere of law is shown in the phenomenon of legal standardization. If at the beginning and the first half of the twentieth century it was possible to speak about the rapprochement of legal forms happening gradually in the process of objective development of the public systems in the direction of their rapprochement with coming of the epoch of globalization the given processes have got the new qualitative measurement. At present it is necessary to speak not about rapprochement, namely about unification, about introduction of uniform standards in the legal sphere. In essence it is possible to speak about purposeful standardization of the legal phenomena and processes.
Mainly this tendency has mentioned the humanitarian law. It is proved by the European standards of human rights fixed in the above mentioned Convention on protection of human rights and fundamental freedoms. The given standards pawned in the normative complex of the national humanitarian right, provide its unification that, in turn, guarantees legal protection of a person irrespective of his formal — legal connection with the concrete state. Besides the humanitarian law is provided with rather effective over national mechanisms of protection.
However standardization has mentioned not only the sphere of the humanitarian law. The similar processes though and not so scale are happening in the national legislation in connection with the entry of the corresponding states into the World trading organization. The given processes of trading globalization generate standardization of the trading legislation.
Functioning of the International organization of labour (SQUANDERER) and participation in it of the Russian Federation inevitability attracts inclusion in the domestic labour legislation of regulatative elements of the international labour law (though its existence as branch of international law is rather conditional).
And if it is not the time to speak about the international trading standards and international labour standards at the same degree as we speak about the international humanitarian standards, the tendency of global legal development in the specified branch spheres is obvious.
The tendency of standardization has entered the sphere of legal techniques. It is known, that world legal space in that part it provides regulation, for example, economic relations, it is impossible without the unified document circulation of the corresponding subject of these relations taking place in searches of exit to the world market. The uniform unified forms of legal documents are gradually formed, development of uniform unified norms of registration of the financial documentation and the financial reporting, is developing.
It is possible to continue the long list of the examples showing active influence of processes of globalization on unification of legal forms. We shall note one more tendency concerning the procedural legislation. Globalization influence has mentioned even such sphere rigidly connected with the state sovereignty as the constitutional legal proceedings. Now it is possible to speak about the standard list of powers of the constitutional courts (bodies of the constitutional control) which to some extent fill the competence of the given bodies of different countries. The original unified list of powers of bodies of the constitutional justice can be differentiated in three main groups.
The first group makes powers on realization of the constitutional control of various legal acts. In the given case we mean first of all the subsequent control (sometimes speak about the repressive control) actually laws, other acts of the parliament, statutory legal acts of the head of the state, the normative legal acts issued by enforcement authorities, statutory legal acts of regional authorities (with reference to the states having the federal form of the territorial structure), at last, statutory legal acts of institutions of local government of municipal units. The preliminary control of acts refers to the given group of powers including the preliminary control of the international contracts.
The second group of powers of bodies of the constitutional justice can be conditionally named quazi control. We mean such powers as the right of the body of the constitutional justice to establishment of illegality of blanks in legal regulation, consideration of individual constitutional complaints, resolution of disputes about the competence, realization of control over elections and referenda, participation in the procedure of dismissal from the post of higher officials and also procedure of the prescheduled termination (dissolution) of representative bodies of the government and bodies of the local self management. At last, the specified group comprises such power as verification of constitutionality of acts and activity of political parties and other public associations.
One more group of functional of the constitutional courts is interpretational powers including interpretation of the constitution and revealing of the constitutionally legal sense of the normative legal contents of laws.
To some extent the listed powers are inherent to the bodies of the constitutional control of the different states that allows speaking about standardization of the constitutional process in the modern world.
It’s not a secret, that the vector of globalization is basically directed from the most advanced countries to the countries of less developed in economic, political, social and legal sphere. In this respect hardly there are grounds for statements about equation of globalizational processes. The given position in full is distributed to the sphere of globalized law. The fact of active entry of this or that state into the integration processes of global development inevitability leads to «opening of sluices» on a way reintegration elements of more developed legal systems into the less developed systems, but aspiring operatively to make up for lost time for the periods of isolation and to try to apprehend the most important achievements of the world legal civilization.
Anyway some institutes of legislation during carrying out of radical economic reforms and in our country as well have been incorporated in domestic legal system practically in linguistic way, i.e. in fact by means of the translated text of statutory legal acts. Such characteristic adequately, for example, the corporative and joint-stock legislation, legislation on securities market, the legislation on bankruptcy.
The given act is quite natural. But thus at times we forget about self-sufficiency of national legal systems, about necessity of preservation of their originality for it is difficult to overestimate potential of self-feedback of the national legal system which has preserved independence, by way of estimation of its opportunities to affect development of the world process of legal development in comparison with the unified normative systems having rather remote contact to the sovereignty of those geographical spaces within the limits of its action of the above mentioned standard of statutory files is distributed.
Globalization in law has structural displays. First of all we mean that as a result of global processes there happens formation of essentially new structural legal formations which by virtue of absence of their direct communication with the state sovereignty and national jurisdiction, and absence of coordination of the sovereign state wills (that characterizes the genesis of the international law as the special legal system) can find their place neither in the structure of national, nor in the structure of the international legal systems.
Really, what the commercial law, the conventional law is? Hardly have they had attributes of internationally legal branches and, it is especially ridiculous to speak about their relation to the national legal systems. The science should pay attention arising as a result of globalization of legal new formations, having understood their structural features, having understood their legal nature. Of special interest is the ecological legislation, the humanitarian law, actively developing information law, and regional law, in particular, the law of the European Union? We should take interest in research of the legal nature of transnational justice which creation is substantially the result of comprehension of the need of organizational protection of effective functioning of the new globalized legal validity.
We have considered only some features of modern legal globalization. Relative scarcity of publications on the given topic, on the one hand, and the extreme intensity of the process of globalization covering the legal sphere of the public life of the modern world, on the other hand, can and should stimulate the more active and deep research of processes in the legal integration carrying not only a positive charge.
Institute of the constitutional justice in political-legal system of modern Russia
I. Concept and evolution of the constitutional justice in the postsoviet Russia
In modern domestic legal glossary the word «justice» is perceived ambiguously.
In formal aspect judicial authorities are structural divisions of the Ministry of Justice  (registration service, service of judicial police officers, service of execution of punishments, etc.). Besides justice comprises investigation managements created at the corresponding law enforcement bodies (the Ministry of Internal Affairs, the Federal Service of Security, Prosecutor’s Office).
In the context of the constitutionally-functional approach the justice is perceived as the set of bodies of legal proceedings and activity on realization of justice. constitutional justice court russia
Justice is the purposeful activity of the state bodies possessing jurisdiction in the sphere of application of law and capable to make imperious decisions on cases connected with the sanction of disputable and disputed situations, and determination of measures of the legal responsibility concerning persons recognized guilty of committing offences.
Consideration of justice as the field of activity of judicial establishments of justice is sufficiently perspective. In the context of the given approach it is meaningful to allocate stable (settled) spheres of judicial activity and the spheres in the process of development. In conditions of modern Russia stable spheres of legal proceedings is the sphere of criminal, civil, arbitration, military justice. In turn it is necessary to relate administrative, juvenile and the constitutional justice to the number of developing spheres.
Analysis of processes of development of the system of the constitutional justice of Russia allows making the conclusion that at present the given system has at the greater degree political character instead of legal. Thus, consideration of genesis of domestic constitutional justice (at the example of development of the Constitutional Court of Russia) allows allocating three basic stages in development of the given body.
1. The liberal-romantic period (1991−1993). During the given period the Constitutional Court was perceived as the supreme body of the judicial authority occupying the basic place in the system of checks and balances and capable to make decisions, possessing the direct validity. In particular according to the Law about the Constitutional Court of 1991 the decision of the Court about recognition of the statutory-legal act unconstitutional meant recognition of the given act legally insignificant, i.e. lost validity in no event after its adoption. Besides during the above-named period the Constitutional Court could independently initiate consideration of cases connected with realization of the judicial control in the spheres determined by its jurisdiction.
2. The transitive period (1994−2000). After open opposition of the position of the Constitutional Court to the position of the President and stay of activity in 1993−1994. The Constitutional Court renews its activity in the updated structure and according to the new law, significally, limited its jurisdiction. At the same time, obvious weakness of state structure of «modern Russia», at the stage of its development has caused uncertainty of positions of the Constitutional Court. On the one hand, the example of the rigid attitude on the part of the power resolutely stopping events of real restraint of absolute tendencies on the part of the previous structure of the Constitutional Court has caused the certain care of the new structure at decision-making. On the other hand, the incessant criticism of power structures, and obvious feebleness of the Constitutional Court in questions of maintenance of rights and legitimate interests of the citizens (during this period the large-scale military operation in the Chechen Republic, began which led to mass violations of rights of a person and a citizen, both in the North Caucasian region, and on the entire territory of Russia), has predetermined «escape» of the Constitutional Court from law enforcement sphere into law interpretation sphere connected with interpretation of the Constitution.
3. The propresidential period (2000 — till present). Coming to power of President V.V. Putin and his course on strengthening of the role of the state (in fact — of state bureaucracy) in sociopolitical system has caused large-scale reform of the government whose basic purpose was creation of controlled structures of the government, finally, isolated on the President. During the given period the essence of the Constitutional Court definitely changes. From the significant element in the system of checks and balances it turns to tool body whose primary goal is legitimating of initiatives proceeding from the President and their «binding» to the working Constitution.
The change of sociopolitical (instead of legal) essence of the Constitutional Court at different stages of its genesis can explain the circumstance, that decisions adopted by court at the first and second stages, at present cardinally differ from decisions adopted on the same questions.
II. Normative bases of the Russian constitutional justice
The question on normative base of formation and functioning of the constitutional justice relates to the number of debatable. According to the Law about the Constitutional Court «Judges of the Constitutional Court of the Russian Federation are guided at realization of their powers solely by the Constitution and the current Federal Law». By the way the Chairman of the Constitutional Court, Doctor of Jurisprudence, Professor V.D. Zorkin in his speech at the opening ceremony of the new judicial year in the European Court on human rights (Strasbourg, January 21, 2005), has even more narrowed the normative basis of activity of the Constitutional Court having declared, that «the Constitutional Court of the Russian Federation in the activity is guided exclusively by the Constitution and judges of the Constitutional Court swear solely to it taking to the oath at entering the post».
It is necessary to note, that the quoted formulations suppose extremely literal interpretation and limit normative base of the constitutional justice solely to two (and, according to the Chairman of the Constitutional Court in general to one) statutory acts, from which only one (namely the Law about the Constitutional Court) has actually tool character.
The similar situation means presence of the serious blank in the constitutional legislation, and in its turn predetermines decrease in efficiency of the constitutionally-legal regulation.
Completion of the designated blank in practice is carried out due to wide application of analogies of the law. Thus, as an argument by which judges of the Constitutional Court are guided at development of projects of decisions, are applied the earlier adopted decisions and resolutions of the Constitutional Court, that gives activity of the given body, in fact, the precedent character.
Speaking about normative maintenance of activity of the Constitutional Court, it is necessary to note, that till present the problem of parity of material and remedial aspects of the constitutional justice has not been solved (for the sake of justice it is necessary to note, that the given situation has developed in the domestic administrative law). If to apply the method of comparative analysis and branch analogy referring to branches of criminal and civilized cycle it is possible to allocate precisely material and procedural basis submitted with corresponding codes. Referring to the constitutional justice the similar division is rather inconvenient. It is possible to consider the Constitution as the material basis, and the law about the Constitutional Court as the procedural basis with great degree of reserve. The Constitution (despite the declared principle of its direct action) cannot be considered as the tool of direct regulation-guarding activity, first of all by virtue of the specialized character of norms forming it. In their majority all its norms are norms of purpose and norms of principles. The Constitution does not practically contain actually behavioral norms characterized by classical three-type structure. And the law about the Constitutional Court of the Russian Federation (which regarding the characteristics of the constitutional process is based on the principle of the Civil Procedural Code) by virtue of the small volume is not capable to regulate precisely the most significant questions in the given sphere. Thus, there are not considered such significant for procedural sphere questions as jurisdiction and jurisdiction of the Constitutional Court, constitutional lawful subjectiveness, conditions and the order of conciliation procedures, etc. Besides the law contains many abstract, in concrete positions and discrepancies lowering its efficiency. In particular, Article 81 says that «non execution, inadequate or hindrance to execution of the decision of the Constitutional Court of the Russian Federation leads to responsibility established by the Federal Law». However, further in the text of the law the institute of legal responsibility is not considered at all.
Summing up it is possible to make the conclusion that the normative base of the constitutional justice at present is rather far from the optimum condition and requires serious completion.
III. Organizational structure of the constitutional justice
As to organizational structure of the constitutional justice. During the present period there have formed two levels of the constitutional justice: federal-presented by the Constitutional Court of the Russian Federation and regional-presented by the constitutional (charter) courts of subjects.
In our opinion the main problem in the given sphere is the problem of absence of interaction between the equal-level bodies of the constitutional justice. It is necessary to ascertain absence of any, legal mechanism, interaction of the Constitutional Court of the Russian Federation with the constitutional (charter) courts of subjects  that causes presence of plurality of collisions, first of all in the sphere of questions related to joint conducting of the federal center and the subjects. Besides in a number of subjects there are no bodies of the constitutional justice, and accordingly there appears the problem of the legal sanction of cases related to jurisdiction to the given bodies of legal proceedings. The question is, whether bodies of the constitutional (charter) justice of subjects are necessary if a number of subjects quite easy without the given bodies manage to operate (for example, Moscow, the Leningrad region, the Krasnodar and the Krasnoyarsk territories and etc).
Besides the law does not stipulate the mechanism connected with appeal and revision of decisions adopted by bodies of the constitutional justice, both at the regional, and at the federal levels. It turns out, that any decisions are final and are not subjected to appeal (protest). In the situation when in the structure of courts a number of judges do not possess essential experience in the sphere of directly judicial activity the given situation can hardly be considered optimal. Taking into account possible in any social system of the tendencies of subjectivity and bias of adopted decisions, and, unfortunately characteristic for the domestic judicial system (the same as for other state structures) corruption, it is necessary to admit, that absence of system of cassation and supervision concerning adopted by judges of the Constitutional Court law enforcement and interpretation acts significally reduces the effectiveness of the system of the constitutional justice and in fact puts it above the law.
IV. To the question about execution of decisions of the Constitutional Court
Efficiency of legal influence is determined by its productivity. Referring to the judicial enforcement it means execution of the judgement. At the same time, taking into account high probability of refusal of the person from voluntary execution of unprofitable personally for him judgement the legislator has provided the mechanism of compulsory executive proceeding. Such mechanisms are generated and function in the spheres of criminal, civil, military, arbitration justice. However, in the system of the constitutional justice till present there has not been created the mechanism of compulsory execution of judgement that gives to its decisions, in fact the declarative character.
V. Problems and prospects of the domestic constitutional justice
Generalizing the above mentioned, it is necessary to make the conclusion that the domestic constitutional justice is being developed at present.
It is necessary to allocate factors lowering its efficiency as the body of legal proceedings:
— The politized character of activity;
— Imperfection of normative and, first of all procedural bases determining the order of the constitutional legal proceedings;
— Absence of the mechanism of compulsory execution of judgements.
Besides it is necessary to specify non sanction of questions connected with differentiation of the jurisdictions and fixing of principles of interaction of the Constitutional Court of the Russian Federation and the constitutional (charter) courts of the subjects.
The above mentioned negative moments at the same time, do not mean recognition of the system of the constitutional justice useless, or even harmful for the modern judicial system. Any new undertaking has both admirers, and opponents.
The criticism should not be perceived as an appeal to refusal from the idea of the constitutional justice. At present, in our opinion, the most important for Russia is preservation of earlier formed during the last two decades, democratic tradition. Preservation and keeping of the given tradition in many respects is determined by presence in the country of institutes peculiar for the countries of stable democracy. Destiny of still very «young» Russian democracy depends on one of such institutes as, undoubtedly, is the constitutional justice which perfection must be constantly developed.
1. «The Ministry of Justice of the Russian Federation (Minjust) is a federal executive body, which exercises legal regulation and draws up and actualizes the state policy in the spheres of executing criminal punishments, profession of barrister, notary public, maintaining the work of courts, executing judicial and non-judicial decisions, registration of real estate transactions and rights, registration of births, deaths and marriages, registration of non-commercial organizations (including registration of branches of international and foreign non-commercial non-governmental organizations), registration of associations, political parties and religious organizations and in other spheres, prescribed by law». www. minjust. ru/
2. Neither the Law on the Constitutional Court of Russia, nor the Law on the Judicial System of Russia describe the principles or technologies of interaction between the Federal Constitutional Court and regional Constitutional Courts. No law establishes a strict border between the jurisdictions of the Federal and regional Courts.
1. Г. Загребельский. Толкование законов: стабильность или трансформация? Сравнительное конституционное обозрение. — 2014. — № 3. — С. 1.
2. Рональд Дворкин. О правах всерьез. — М., 2014. — С. 109−120.
3. К. Шмитт. Духовно-историческое положение парламентаризма. В книге: К. Шмитт. Политическая теология. — М., 2010. — С. 187.
4. См.: А. Нуесбергер. Сильное государство как основополагающая идея российского конституционного правосудия. / Сравнительное конституционное обозрение. — 2006. — № 1. — С. 154.ПоказатьСвернуть