Law Science

Doctor of Law, Professor Golovkin, Roman B.

Candidate of History Shagushina, Anna V.

Vladimir Law Institute of the Federal Penal Service of the Russian Federation

Modernization of law: a measure of integration of law and other social norms in the legislation of Russia

Legal regulation - difficult and in many respects inconsistent process which is often identified with the result of ordering of the public relations by means of legal instructions. This situation is connected with etymological value of the term «regulation». The term «regulation» is used in Russian as action on a value of a verb to «regulate» in three values «1. To order, to adjust. 2. To direct development, movement of something with the purpose to order system. 3. To bring mechanisms and parts into such condition, at which they can work correctly, normally» [1, P. 672]. As an ordering, adjusting factor «regulation» is interpreted and in other reference materials and editions [2]. At the same time the term «legal regulation» designates wider volume of concept of regulation as includes, besides direct regulation of the relations also process of creation of legal instructions, i.e. right creativity. There are many researches devoted to right creativity as activity for creation by special subjects of legal instructions, in which many parties of this process are opened and investigated. At the same time, judging by some problems in right realization «white spots» still remain.

A wide use of different types of social norms during designing of legislative instructions is represented as one of the modern problems of domestic right creativity. In our opinion, this process proceeds in two courses: first, through sense of justice of persons participating in right creativity (this way is rather difficult for verifying); secondly, through fixing of different mentions and references to other social (not legal) regulators of the public relations in the texts of regulatory legal acts.

The analysis of the current legislation allows to establish rather frequent use in the texts of laws (in a reference form) such social norms as: morals, customs, traditions, rituals and religious norms.

References to moral norms gained the greatest distribution. In this or that form, more than hundred federal and regional regulatory legal acts refer to moral norms [3].

For example, Article 26 of the Law of the city of Moscow from July 6, 2005 of N 38 «Electoral code of the city of Moscow», «The name and an emblem of an electoral association» regarding the second part fixes a ban to use to an electoral association in the emblem the symbolic offending or discrediting National flag of the Russian Federation, the State Emblem of the Russian Federation, the National anthem of the Russian Federation, flags, the coats of arms, anthems of subjects of the Russian Federation, municipalities, the foreign states, religious symbols and the national feelings, breaking the conventional norms of morals [4].

Article 20 of the Law of the city of Moscow from September 30, 2009 of N 39 «About youth» defines the directions of preventive work on overcoming of the negative phenomena in the youth environment with the purposes of education of respect of youth to the law and moral norms [5].

The definition of the Supreme Court of the Russian Federation from June 9, 2009 in the matter of N KAS09-242 establishes that a judge in the professional activity and out of service is obliged to be guided by the rules of the behavior established by the standard moral norms [6].

Thus, the given examples show that the references on moral norms are issued as blanket dispositions of rules of law and therefore mentioned moral instructions are obligatory for addressees of legal instructions. However «vagueness», formal uncertainty of morals norms, plurality of its levels lead to that the legal instruction integrated with morals turns into fiction, or can unreasonably expand it.

The existing federal and regional legal instructions refer to the customs more than in forty acts [7]. For example, Article 5 of the civil code of the Russian Federation fixes the concept of custom of a business turn which is understood as a rule of the behavior developed and widely applied in any area of business activity which has not been provided by the legislation irrespective of, whether it is fixed in any document [8].

The international unified rules for documentary letters of credit directly fix customs in this sphere of the public relations. In Article 1 of Rules it is fixed that these unified rules and customs for documentary letters of credit, from the edition of 1993, are applied to all documentary letters of credit, including reserve letters of credit in that measure in which these Rules can be applied to them. They are obligatory for all interested parties in the absence of directly expressed agreement on other [9].

Traditions are mentioned in more than 30 acts [10]. For example, in the first part of article 131 of the Constitution of the Russian Federation it is affirmed that the local government is carried out in city, rural settlements and in other territories taking into account historical and other local traditions [11].

Article 9 of the criminal and executive code of the Russian Federation defining the essence of correction of condemned, fixes that correction of condemned is a formation at them of respect for the person, society, work, norms, rules and traditions of a human hostel [12].

Customs and traditions owing to their lag effect influence the consciousness most powerfully, therefore, right creative processes. Thus customs and the traditions fixed completely in the text of the rule of law, actually remaining in the consciousness as a custom, formally become a law.

Rituals are mentioned more than in 30 legislative sources [13]. Thus rules of law do not only refer to rituals, but also fix a ritual in the text of norms that leads to law and ritual merging. For example, Article 4 of the Federal Law from 13.03.1995 N 32-FL (an edition from 10.04.2009) «About days of military glory and memorials of Russia» directly fixes an order of carrying out military rituals [14]. The appendix N 2 to Army regulations approved by the Decree of the President of the Russian Federation N to 1495 fixes from 10.11.2007 Ritual of lifting and descent of National flag of the Russian Federation [15].

References to religious norms are expressed in the legislation less [16], but some religious norms are authorized by the law. For example, celebration of Christmas and Easter [17].

As a whole using of various social regulators is positively. In any case creators of legal instructions designing rules of law rely not only on knowledge of the law, but also to the ideas of good – the evil, justice - injustice, on the customs which have taken roots in consciousness and traditions, on religious representations. That is, this process is inevitable and isn't always obvious.

Nevertheless, direct references on other (not legal) social norms should be established and measured on compliance of need of a regulation of these or those relations by the considered way. A measure of using not legal social norms in legal regulation of the public relations has theoretical and applied aspects. In modern reference books the measure is treated in several semantic values: as unit of measure, as border, limit of manifestation something, as means of implementation something, and, at last, as Old Russian unit of measure of capacity of loose ph [1, P. 350.].

On the basis of the analysis of the legislation reflecting various social norms and with reference to modern right creativity the measure of using of various social norms in the process of a legal regulation of the public relations should answer the following criteria [18, P. 358-369].

First, the measure of using of social norms in right creativity - is a certain quantity of social norms, or their regulating elements which has qualitative value for the legal instruction. If a factor of regulatory effect from implementation of the combined legal instruction raises, i.e. legal instructions are be realized better, than before introduction in them social norms, the measure of using of social norms can be considered adequate, thus it can be expanded in quantitative expression of used social regulators. If a factor of regulatory influence decreases, or a factor is neutral, quantitative characteristics of a measure of using of other social regulators in legal instructions are expedient for reducing. Therefore, the main qualitative property of a measure of using of social norms in legal instructions is a degree of a settlementing of the public relations by law.

Secondly, the measure of using of other social regulators in legal instructions, in general, is the relation of specific certain quantities of social norms as independent measures. But their independence, at the same time, on the being is based on the quantitative relation and distinction on size. Therefore, their independence becomes a transition to each other and into the legal instruction. The measure of a combination of legal and other social norms in legal regulation of public relations, on termination of a successful combination disappears in the immense new integrated instruction. But this other part of a measure is its negativity only in itself.

Thirdly, the measure of using of social norms in legal instructions can represent itself as the return relation of measures of primary base legal instructions which as independent qualities on the being are based on the quantity and on the negative parity with each other. Thereby it appears that the primary measures expressed in legal instructions are only the moments of their truly independent unity which is an essence of a measure of regulation of public relations by means of law as a whole.

Fourthly, functional dependence of properties of the integrated legal instruction and properties of its elements (primary legal and other social norms) consists that qualitative definiteness of the whole (its properties, the border etc.), depends on the quantitative relation in which there are elements of the whole, i.e. the object of a structure. Dependence of properties of the whole and its elements and structural moments makes the basic maintenance of the law of mutual transition of quantitative and qualitative changes. So, a degree of quantitative increase in legal determination of some religious relations (resulted above legal fastening of Christian holidays) can negatively affect on a freedom of worship, actual limiting this constitutional law.

Fifthly, absence of mutual transition of measures that consist of new integrated, or the pseudo-integrated, legal command created by absorption by other social regulator of primary law, sometimes generates excessiveness of requirements of the state and imperious instruction. For example, introduction in rules of law, directly, reduces legal variability of moral regulators and does requirements containing in norms more rigid and uncompromising since the morals don't assume semitones, binarity is inherent in it: badly – good, fair – unfairly.

In this sense the measure generates specific excessiveness, violates thereby conditions of own existence of measured definiteness. The measure as though «increases» excessive, and the last leads to high-quality change, i.e. to other measure denying a former measure.

Thus, using in designing of legal instructions of other social norms is quite admissible and is inevitable, but the deep analysis of need and harmony of such integration is thus expedient.

Bibliography:

1. Ojegov S. I., Shvedova N. Y. Explanatory dictionary of Russian. – M., 2003.

2. See: Dal V. I. Explanatory dictionary of living great Russian language: In 4 Vol. - Vol. 4. – M., 1882. - P. 89; Lopatin V. V., Lopatina L.E. Small explanatory dictionary of Russian. - M., 1993. - P. 502; Large encyclopedic dictionary. - M; SPb., 2000. - P. 1004.

3. See, for example, some of them: The code of the Russian Federation about Administrative Offenses from 30.12.2001. N 195-FL (by the State Duma of Federal Assembly of the Russian Federation from 20.12.2001) (by an edition that is accepted from 21.12.2009). Part 6. The administrative offenses encroaching on health, sanitary-and-epidemiologic wellbeing of the population and public moral; The Criminal code of the Russian Federation from 13.06.1996 N 63-FL (by the State Duma of Federal Assembly of the Russian Federation 24.05.1996) (by an edition that is accepted from 29.12.2009) Part 25. Crimes against health of the population and public moral; The Civil code of the Russian Federation (Part one) from 30.11.1994 N 51-FL (by the State Duma of Federal Assembly of the Russian Federation 21.10.1994) (by an edition is accepted from 27.12.2009) Article 169. Invalidity of the transaction made on purpose, opposite to law and order and moral bases; etc.

4. Part 26 of the Law of the city of Moscow from July 6, 2005 of N 38 «Electoral code of the city of Moscow». (in an edition of Laws of Moscow from 15.02.2006 N 10, from 04.07.2007 N 28, from 22.04.2009 N 7, from 17.06.2009 N 20).

5. Article 20 of the Law of the city of Moscow from September 30, 2009 N 39. «About youth».

6. The definition of the Supreme Court of the Russian Federation from June 9, 2009 in the matter of N KAS09-242.

7. See, for example: The Civil code of the Russian Federation (part one) from 30.11.1994 N 51-FL (by the State Duma of Federal Assembly of the Russian Federation from 21.10.1994) (by an edition that is accepted from 27.12.2009) Article 5. Customs of a business turn; the Federal Law from 08.11.2007 N 261-FL (an edition from 27.12.2009) «About seaports in the Russian Federation and about modification of separate acts of the Russian Federation» (by the State Duma of Federal Assembly of the Russian Federation from 16.10.2007 is accepted) Article 3. Customs of seaport; «The unified rules and customs for documentary letters of credit» (the publication of the International chamber of commerce of N 500) (editions of 1993, came into force from 01.01.1994); etc.

8. Article 5 of the Civil code of the Russian Federation.

9. The unified rules and customs for documentary letters of credit (The publication of the International chamber of commerce of N 500). (Editions of 1993, came into force since January 1, 1994).

10. The decree of the President of the Russian Federation from 31.10.2009 N 1233 «About establishment of a heraldic sign - emblems, a flag and a banner of Service of external investigation of the Russian Federation» (together with «The provision on a heraldic sign - an emblem and a flag of Service of external investigation of the Russian Federation», «The provision on a banner of Service of external investigation of the Russian Federation»); the Decree of the President of the Russian Federation from 31.05.2006 N 549 «About establishment of professional holidays and memorable days in Armed forces of the Russian Federation»; «The Сonstitution of the Russian Federation» (it is accepted by national vote 12.12.1993) (taking into account by the amendments introduced by Laws of the Russian Federation about amendments to the Constitution of the Russian Federation from 30.12.2008 N 6-FCL, from 30.12.2008 N 7-FCL); the Federal constitutional law from 25.12.2000 N 1-FCL (an edition from 08.11.2008) «About National flag of the Russian Federation» (approved by the Council of Federation of Federal Assembly of the Russian Federation 20.12.2000); etc.

11. Article 131 of the Constitutions of the Russian Federation.

12. Article 9 of the Criminal and Executive code of the Russian Federation.

13. The Federal Law from 13.03.1995 N 32-FL (an edition from 10.04.2009) «About days of military glory and memorials of Russia» (accepted by the State Duma of Federal Assembly of the Russian Federation 10.02.1995) Article 4. Order of carrying out military rituals; the Decree of the President of the Russian Federation from 10.11.2007 N 1495 (an edition from 23.10.2008) «About the adoption of Army regulations of Armed forces of the Russian Federation» (together with «The charter of internal service of Armed forces of the Russian Federation», «The disciplinary charter of Armed forces of the Russian Federation», «The charter of garrison and guard services of Armed forces of the Russian Federation») the Second Appendix. Ritual of lifting and descent of National flag of the Russian Federation, an order of its storing, contenting and using at saluting; the Federal constitutional law from 25.12.2000 N 1-FCL (an edition from 08.11.2008) «About National flag of the Russian Federation» (approved by the Council of Federation of Federal Assembly of the Russian Federation 20.12.2000); Federal constitutional law from 25.12.2000 N 3-FCL (edition from 22.03.2001) «About the National anthem of the Russian Federation» (approved by the Council of Federation of Federal Assembly of the Russian Federation 20.12.2000); the Law of Moscow from 04.06.1997 N 11 (an edition from 06.06.2007) «About burial and funeral matter in the city of Moscow», etc.

14. The Federal Law from 13.03.1995 N 32-FL (an edition from 10.04.2009) «About days of military glory and memorials of Russia» (accepted by the State Duma of Federal Assembly of the Russian Federation 10.02.1995) Article 4. Order of carrying out of military rituals.

15. The decree of the President of the Russian Federation from 10.11.2007 N 1495 (an edition from 23.10.2008) «About the adoption of Аrmy regulations of Armed forces of the Russian Federation» (together with «The charter of internal service of Armed forces of the Russian Federation», «The disciplinary charter of Armed forces of the Russian Federation», «The charter of garrison and guard services of Armed forces of the Russian Federation») the Second Appendix. Ritual of lifting and descent of National flag of the Russian Federation, an order of its storing, contenting and using at saluting.

16. The Federal Law from 26.09.1997 N 125-FL (an edition from 23.07.2008) «About a freedom of worship and about religious associations» (accepted by the State Duma of Federal Assembly of the Russian Federation 19.09.1997); «The charter of the Kirov region from 27.03.1996 N 12-RL» (an edition from 29.09.2009) (accepted by the Kirov regional duma 29.02.1996); Law of Moscow from 06.07.2005 N 38 (edition from 17.06.2009) «An electoral code of the city of Moscow»; the Conclusion of the Commissioner for Human Rights in the Russian Federation «About to check of compliance of the Federal Law «About a freedom of worship and about religious associations» to international-legal obligations of the Russian Federation»; the Law of the Russian Federation from 25.10.1991 N 1807-1 (an edition from 11.12.2002) «About languages of the people of the Russian Federation»; etc.

17. January, 7 – Christmas, according to part 112 of the Labor code of the Russian Federation is a holiday. Easter - Light Christ's Revival as officially admits in a festive non-working day (item 10-1 of SPb. Law from 13.05.2009 N 210-44).

18. The criteria were developed taking into account the doctrine about measure G.W.F. Gegel. Gegel G.W.F. Measure // Logic Science. – M., 1998.