Theoretical and practical problems of formation of the rule of law in Russia

ISSN 2500-0217 / Включен в Перечень ВАК

 

Ryan Fanis Mansurovich
Doctor of Law, Professor.


At the beginning of his speech, I want to note that this conference we have initiated in Ufa, because more than 15 years doing pretty deep issues of law. Went for the ninth year, we established a federal magazine "Rule of Law", which is more than half the period of its existence is in the list of leading Russian scientific journals.

Problems of the rule of law, we began to engage in because, firstly, the post-Soviet Russia in its 1993 Constitution clearly positioned itself was legal state. We believe that such a record in post-Soviet Russia the Constitution did not appear spontaneously, but it is well thought out and based on the then situation in the socio - political life in the world. Secondly, and most importantly, legal state for the then Soviet Russia could not speak a new type of state and, above all, in the essential terms. We proceeded from the assumption that if the Soviet state, all political forces and the scientific community, was treated as a separate type of state, the post-Soviet state could not be new, fundamentally independent type of state, at least in relation to the type of Soviet socialist state.

However, the transition period from the Soviet state to the real post-Soviet states, considerably delayed. Moreover, the legal state after 90 years of the last century, in particular, in the zero years of the XXI century, began to speak less and less. By now even created the impression that the rule of law, since the invention relates to the west, as if to Russia did not fit.

But be that as it may, the post-Soviet Russia still has not found a new, life-affirming vision of its state-legal life. In this sense, the nature of a post-Soviet Russia today is in a state even "frightening" uncertainty. So, the Communists believe that in today's Russia formed capitalist oligarchic state, and therefore, not without success, calling back to the Soviet state. Some of today's Russia is positioned as a state with a strong authoritarian regime, and some even believe that in today's Russia formed a kind of criminal state. And this is not a complete list of statements about today's Russian state. Therefore, we still continue to disturb the lack of modern Russia, unequivocally supported by the official authorities, the typological characteristics of its current state. After all, can not state power for a long time remain uncertain typologically. That is, any government should decide on the principles on which it relies for its activities, the values ​​for which she focuses on in their daily life.

Since the days of Count SS Uvarov, Minister of Education of Russia, such values ​​were nominated for Russian Orthodoxy, Autocracy, Nationality (1834). In Soviet times, the state-legal values ​​radically changed. Events 90-ies of the last century also occurred due to the fact that the values ​​of the Soviet period did not satisfy many. More than 20 years post-Soviet period, but so far there is no consistency between the Russian society and state action on the values ​​of the future state - legal development. But the most important thing in this issue is that the current government, in our opinion, she was not defined with the basic principles in their operations.

And all this is happening in an environment where in the world today is the optimal state, with clearly defined principles in their life activity, is considered the main resource efficient software development. First of all, it's principles such as: state-forming people (civil society) is the only source of power; the rule of law in a society coming from the people and enshrined in the Constitution of the society; the supremacy of Parliament, as the true representative body of civil society among the other branches of government; a clear separation of powers emanating from civil society, strictly into three branches; protection of the rights and freedoms of man and citizen - the main duty of the state, etc.

Not an abundance of natural, energy and even human resources determines the social welfare of people in many countries of the world today, namely the nature and range of the above-noted principles, their strict adherence to the activity of the government of a particular country.

If we analyze and evaluate, whereby countries are divided into developed and developing, that is: which countries are advanced today, gone in many ways the quality of life ahead; which runs the capital and where do people go for permanent residence, it is found 35-40 countries in the world that are more advanced than others. These developed countries, just, and highlights the nature and character of its statehood. I do not know whether this is news to you, but I will say that all of these developed countries today are the rule of law.

First of all, here are 27 member states of the European Union. In accordance with the Copenhagen criteria adopted in June 1993 in Copenhagen, countries - EU members and aspiring to become members must comply with the principles of the rule of law. In addition to 27 existing EU member states, 6 countries (Iceland, Macedonia, Serbia, Turkey, Croatia and Montenegro) currently have the status of candidates for membership of the European Union. They also need to "catch up" towards the development of the rule of law.

Next. Legal are those countries that have historically formed as a constitutional parliamentary monarchy. In addition to the UK, Spain, Sweden, which today is a legal state, first of all, as members of the EU, this includes other countries located in different continents. In particular, Canada, Australia, Japan and some others.

Among the legal states and the United States are to its nature state based on the principle of 'rule of law', and those states that are developing in the system of state very similar to the US statehood. It is countries such as the United Mexican States, Argentina, Brazil, etc.

All of these states differ from our country is unique in that they have other, compared to us, the type of state - legal system. They are, as already noted, the legal state.

Rule of law, and some - where the state identified by the State based on the principles of 'rule of law "," rule of law "," rule by the people ", today has become a major trend in the world of state-legal construction. Moreover, this trend emerged in the world as a trend in the last 20-30 years. It happened after a fundamental shift (rethinking) in the ideological and political spheres that have occurred as a result of the termination of the Cold War and the collapse of the socialist camp.

It was after these events, public opinion in many countries of the world again turned its attention to the peaceful, evolutionary explanation of the development of the whole of humanity and individual countries. Became popular again slightly forgotten ideas of the model of state with the release of a man as the highest value. These ideas, of course, are the Anglo-Saxon model of statehood and the continental model of legal statehood. Even intensified the trend of convergence between the two models of statehood.

It is important to note that in the direction of the rule of law was followed by those States that at one time belonged to the socialist camp. I mean Poland, Czech Republic, Slovakia, Romania, Hungary, Bulgaria and the Baltic republics of the former Soviet Union, which after 90 years of the last century - really transformed into a legal state.

Only post-Soviet Russia, despite the fact that, in its Constitution of 1993 recorded a legal state itself, unfortunately, did not want or failed to transform the present state of law, and how to put it mildly, "stuck" in a state of uncertainty.

If, for example, Turkey, declaring itself a state of law, with respective changes (in 2001-2002 and in 2004goda) in its Constitution of 1982, to undertake specific activities to elevate the level of the Parliament of the supreme power in the country, Russia is still in this direction doing nothing. Before our eyes turned towards the Georgia law. Today, even Madagascar, Mozambique, which have been associated as a country where, basically, live pirates, officially headed for the construction of the rule of law.

Reasons as to why Russia does not choose a firm course towards the rule of law, quite a lot. But I have here focused on those who, to some extent depend on us, the participants of this conference.

It is primarily a question of the development of the correct theory of law. It's no wonder they say: practice without theory is blind. In our country, nor the current government, and even a social science of science, including our theory of state and law, not seriously took up the elucidation of the true essence of the rule of law. In the socio - political sphere (including the scope of state - legal science) is still bossed idea of ​​a state of law, originating from the XIX All-Union Party Conference of the CPSU in 1988. At this conference, MS Gorbachev for the first Soviet times in a positive perspective, used the term "state of law", saying that "the most important characteristics for the rule of law is to actually ensure the rule of law" [1]. Of course, further disclosure of this thesis in the same speech leaves no doubt that MS Gorbachev talked not so much about the true state of law, much of the state of law, and in the spirit of what was then the theory of socialist legality. This idea of ​​a state of law further migrated to the numerous works of leading Russian scientists jurists published immediately after the conference. These ideas about the state of law, basically, still exist. As a result, today alone, including the leaders of our country, believe that we are already living in a state of law, and others - rule of law, as well as once communism, referred to as a pipe dream. But be that as it may, such a mess with the rule of law in our country, it turns out, because often Russians understand it is not so, as those in developed countries, where the true state of law is rooted in real life is much deeper and wider. Besides, all this, our state-legal science is still not afraid of the word, too primitive explains the essence of the rule of law.

So, if we look at the many books on the theory of state and law, then the state of law here refers to the state, which itself is limited by law. As can be seen from the speeches of our state leaders, they understand the concept of "state of law" about the same.

Meanwhile, in those foreign countries where the state of law is largely a reality under the legal state understand the state, civil society being founded and controlled by him or his representative body (Parliament). As this same foreign practice, legal state established civil society is limited by the Constitution, coming from the same civil society. In those jurisdictions, states Parliament is a true representative body of civil society and of the people he supervises the activities of the government.

Therefore, in contrast to those who drives a legal state to the welfare state, we believe that in theory is not any so-called welfare state can be legal. At the same time, the modern constitutional state can not deal with social problems. Hence, rule of law and the welfare state do not correspond to each other as independent and competing types of states. You can only talk about the degree of social state of law or of the social function of the rule of law. The welfare state is not an independent type of state.

Legal state - independent type of state. It is not superimposed on what - another type of state. Legal state is formed from the new public institutions, lack of States without dorosshih to the level of the rule of law. These include institutions such as state-forming people (or civil society), which are the source of power and the bearer of sovereignty; civil society, which forms the state power, determines the direction of its activities and exercise parliamentary (legislative and budgetary) control over the executive; main (supreme) function of state power is to ensure and protect the rights and freedoms of man and citizen, and others.

These institutions, in our opinion, should be attributed to the typological characteristic features of the rule of law.

In other words, in a state of law is fundamentally changing the nature of the relationship between society and the state, between the state and the individual. This fundamentally new qualitative change in the relationship between society and the state is characterized by a new phase of human development. That is why this stage of the development of mankind and made history as the modern times.

If so come to an understanding of the rule of law, its true history dates back to the period of establishment in England XVII century Anglo-Saxon model of statehood. This model of statehood found its implementation in England and then in the US and other countries belonging to the Anglo-Saxon legal family.

But Russia, as well as its sample in this matter - Germany, the roots of the rule of law sought in the depths of Roman law, and hence the device of the Roman Empire. If you pay attention to the issue of disclosure of the formation of the rule of law in the Russian literature, then, for example, in all our textbooks on the theory of state and law theory of the origins of the rule of law usually attributed to Plato and Aristotle. Yes, and the significant differences in the understanding of constitutionalism in countries with an Anglo-Saxon model of statehood and the Romano-Germanic state model we do not pay attention.

Meanwhile, in the Roman-Germanic model of statehood under the Constitution refers to the device state, and under constitutionalism - the teaching of the theory and practice of the use of this constitution in real life people. In the Anglo - Saxon model of the same state constitutionalism - a doctrine to limit the activity of the government civil society and the constitution - an act emanating from the society and contains specific requirements for such limitation. That is, the constitution is rightly regarded as an act emanating from the civil society and of the limits of government activity. This situation was theoretically justified in the works D.Lokka, D.Yuma, Kant, and it has found its practical implementation, not only in England but also in the US, and later in other countries of Anglo - Saxon model of statehood.

The differences between the Anglo - Saxon and Roman - German model of statehood in theory, in our opinion, reach such a level that, if strictly follow the Romano - German state model, the parameters of genuine state of law is impossible to get out. Rule of law, in the truest sense - is the fruit of the Anglo - Saxon model of statehood. If today, in real life, we see the rule of law in countries which were previously classified Romano - German model of statehood, such a result is due to the convergence of these two models of statehood. This convergence is today, and I can even say that the main motivating factors of this convergence is the principle of the rule of law, often remain misunderstood in domestic science. Thus, in the domestic science "theory of state and law" is often used as the concept of "legal law." This term we have borrowed from the western Russian authors, in particular, from Kant.

Last modified on 17/04/2015

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ISSN 2500-0217 / Включен в Перечень ВАК