Law / 1. History of State and Law
Doctor of Law, Associate Professor Mazurenko AP
North-Caucasus
Federal University, Russia
Law-making policy of Russia in XXI century
Abstract: The paper is devoted to theoretical and applied problems of law-making
policy in modern Russia. Reveals the object of research, its relevance, the
necessity of conceptualizing law-making policy as an important factor in
modernizing the law-making. It is noted that the experience of leading countries
suggests the impossibility of creating a viable legal system without the
support of socially oriented and balanced law-making, based on optimization
that is effective legislative creation policy.
Keywords: law-making, legislative policy, conceptualization, modernization,
efficiency.
I. Introduction. Two decades of Russian reforms are accompanied by dramatic changes in
the law. Virtually re-formed by all the main areas of legislation, a much
higher level elevated the role of law as the principal means of regulating
social relations. It's important role in the mechanism of
state took the legislature. Legislating in the country is developing at an
unprecedented pace. So, if 70 years of the Soviet Union was issued about 80
acts of the union legislation, but today only at the level of the federal
parliament adopted 450 laws per year. But, despite these very positive changes,
all the more clearly declare themselves the problems of Russian law-making,
which urgently require modernization of its system, develop scientifically
sound strategies and tactics in the named field, using new tools to address the
numerous deficiencies making activity.
Experts estimate that today one in every seven law contains serious
errors. Typicality of lawmaking errors as unsystematic legal acts, their
internal contradictions and unnecessary multiplicity, abundance in the
legislation of declarative rules, are not equipped with mechanisms for
implementation, as well as recurrence of similar mistakes over the years talk
about their systemic nature. In addition, the lawmaker was not able to fully
synchronizerovat federal, regional and municipal levels right creative process.
It is still not established a systematic, balanced approach to legal
strategy and tactics do not become the norm mine if legal reform reliance on
scientific analysis and prognosis, responsiveness to public opinion and
qualified assessment of the likely consequences of decisions. Legislation in
many respects does not manage to timely and adequately regulate already
actually existing social relations of
stimulate the development of new and necessary social relationships [1].
Too underestimated the value of the planning elements in lawmaking.
All of this suggests is still low as a law-making work, it lags far
behind the economic, social, political and other needs of society, the large
number of lawmaking mistakes and other errors in the legal regulation. Cope
with the aforementioned problems with disposable, episodic action impossible.
Requires a systemic response - legislative creation policy, which differs just
a systemic nature, joining a number of tools lawmaking process in an
interrelated mechanism.
Legislative creation of policy is a way to improve and update the
law-making, improving its effectiveness. This type of policy is required for
forming opaque contradictory, and internally unified, coherent, consistent the
lawmaking process to make it systematic and legal certainty. In this context,
there is an obvious need for a study of features, identifying the nature and
development of the conceptual foundations of law-making policy as an important
factor in modernizing the law-making in the Russian Federation.
Questions of legislative policy raised at the beginning of XIX century
in the writings of the founder of legal positivism D. Austin. However, further
legislative creation (legislative) policy has not been studied separately and
in fact identified with the politics of law (A.I. Ilyin, B.A. Kistyakovsky, G.
Landau, S.A. Muromtsev, P.I. Novgorodtsev, L.I. Petrazhitsky, G.F.
Shershenevich).
One of the first to the study of modern law-making policy turned S.V.
Polenina. Followed by the individual aspects of the problem highlighted in the
work of scholars such as J.G. Arzamas, I.A. Gdalevich, L.V. Goloskokov, A.D.
Revelers, M.L. Davydov, A.B. Didikin, V.A. Zatonsky, T.A. Zolotukhin, I.A.
Ivannikov, N.V. Isakov, M.A. Kostenko, A.J. Lavrik, A.V. Malko, A.Y.
Mordovtsev, A.I. Ovchinnikov, M.P. Petrov, O.J. Rybakov, K.A. Jets, V. V.
Subochev, S.J. Sumenkov, E.S. Selivanov, V.V. Trofimov, V.I. Shepelev, I.I.
Shuvalov, O.V. Yatsenko et al.
At the same time on this subject is still suffering from a distinct lack
of monographic studies. Preferential attention of Russian scientists in recent
years have focused on analysis of individual problems of lawmaking, legislative
technique, the genesis of Russian parlamentarism, etc. Questions directly to
the law-making policy, mainly considered in the context of the research
problems of modern Russian legal policies. The results of these studies have
identified a number of discussion points, and sometimes just a new, untapped
facets of this complex phenomenon of political and legal reality. In the
context of events in the country and the world changes, further in-depth analysis
of demand questions about the nature and purpose of law-making policy, its
social and moral principles, the impact on the processes of humanization of
law, strengthening the rule of law, the rights and lawful interests of
individuals, building a democratic state of law and etc.
II. Formulation of
the problem. As a result, held in Russia over
the past years did not fully effective law-making policy Gatherelk
contradiction between the real public relations and mi existing system of law
to govern these relationships. This contradiction constitutes an important
social problem that requires a scientific understanding and practical
solutions.
Based on the foregoing, the purpose of this study is to examine the
problems pravoobrazovaniya in Russia and propose a mechanism for law-making
policy analysis capacity of its impact on development and modernization of
lawmaking.
Specifics of the study, as well as stated above objective, predetermined the
need to use different methods of learning. His total was the ideological basis
of dialectical-materialist approach to explaining the phenomena and processes
of political and legal reality. First of all, we should highlight elements of
this method as the application of universal principles of scientific knowledge:
the objectivity and comprehensiveness, the concrete-historical approach and
completeness of the study. In addition to the work used, and other scientific
and special techniques such as analysis and synthesis, induction and deduction,
systematic and structural approach, formal logic, specifically, sociological,
statistical and other methods.
III. Results. For the modern Russian state is vitally important need is for
comprehensive modernization of all spheres of his life, including law-making.
It should be recognized that the problems of the last has always been and
remain a subject of close attention of scientists, politicians, representatives
of government, business and ordinary citizens. This circumstance is due to the
need to constantly improve various forms of state guidance of society, an
important part of which supports law-making.
Currently, we are witnessing the intense pace of legislative activity
that allows a number of scientists say that Russia is experiencing a kind of
"law-making boom" [2]. In this case, not all cases, the content of
legislation legally impeccable. This is, in particular, according to the annual
reports of the Council of Federation on the status of legislation in the
Russian Federation. So, more than 80% (!) Acts of the federal legislation are
the laws on making amendments and additions to existing legislation [3].
Correction lawmaking at the federal level has become an avalanche character.
Even more depressing situation in Russian regions.
Existing legislation often lags behind the swift but the changing
realities of life. Arising in this connection gaps generate a lot of
outstanding issues and disputes over the implementation of the government,
protection of individual rights, property, etc.
It should also be said about the randomness in the formation of an array
of regulations, a violation of the priorities in the legal regulation in the
current legislation, the enactment of new laws without linking them with
existing, violation of the system connected bonds between the laws and regulations,
between the laws and regulations of the treaty mi, lack of unity of
terminology, which violates agreed system of legal acts of undue haste drafting
important legal decisions, developed the practice of non-compliance with the
rules of the legislative law-making machinery [4]. As rightly pointed out by
V.N. Lopatin, laws are made and often without sufficient examination of the
consequences of their implementation, there linking with existing legislation
and international law, in order to lobby for certain social groups ... [5].
These drawbacks in the development of legislation erode unity Noe legal
space of Russia, pose a threat to its preservation. They generate a weakening
of the legal system and its uneven effects throughout the country, opposition
to the federal government and regional structures, legislative and executive
bodies governmental; ineffective legal support for various sectors of the
economy and social sphere, which is fraught with disruption of current and
promisingtive socio-economic programs; contradiction between the form mal rules
and "shadow law" between official and actual skim relations;
instability of the state and public institutions and little support for their
population; contradictory relation solution of national or international law
[6]. Existing problems in the legal regulation of GR move for an indefinite time the idea of forming and establishing the rule of law in Russia [7], whose foundation
is based on the pringroin rule of law, the most complete support of the rights
and freedoms of Cherights.
In the post-Soviet Russia was hypertrofirovannoy role of political
factors, political ideology, not national, but the nature of the group, which
resulted in a sharp change in ideological orientation pravotvorche properties.
Leading vector orientation was for approval to the legislation of the
liberal-democratic ideas, values and institutions, and
mainly by borrowing Western models and standards. This method of law making was
typical for Russia at the end of last and the beginning of this century. In
recent years the situation has changed to some extent. Began to realize the
truth that focus exclusively on the Western model of development does not meet
the expectations of the majority grewsian citizens, and the borrowing of
international achievements in the legal field should always be taking into
account national circumstances and by adapting to the Russian reality [8].
Today, a change in ideological orientation in the law-making to the legal
modernization in all spheres of society and state, a gradual shift from
liberalism in the direction of the neoconservative ideology, involving social
progress and updating based on respect for the traditional values.
It should be noted that the idea of modernization of the law was first contacted by representatives of the
scientific community [9], and even a few years before the famous article of the
Russian President "Forward, Russia!" Where he announced the
principles of a new political strategy, which were later fleshed out in its
annual Address to the Federal Assembly is in the form of the concept of
comprehensive modernization of the country.
In our view, the main goal of modernization of lawmaking serves to
create conditions for accelerated development of legislation. As rightly
pointed V.P. Eagles: "The main thing - to be able to predict the life
passes a law to simulate the situation in its scope. Unfortunately, most of our
laws - it's additions and changes to previously adopted basic laws. Proportion
of catch-up lawmaking is large enough [10]. In other words, if we want to see
the modernization of legislative drafting as a process of continuous updating
of advanced legislation, you must actively engage to ensure law-making factors:
programming, informational, political, legal, organizational, and others, to
anticipate possible social relations, new and ever-changing needs of society
and state. This is indicated, and ex-chairman of the upper chamber of Russian
parliament S. Mironov: "To effectively address the challenges posed by our
citizens, we must be proactive, raise the question of establishing the legal
framework aimed at the prospect of creating conditions for implementing the
strategic plans of the country" [11].
Problem of advanced development of legislation, understood as a priority
the modernization of domestic lawmaking, is able to solve a scientifically
sound and socially oriented legislative creation policy in the formation of a
leadership role to play in the modern Russian state is interested and active
participation of civil society actors.
This poses a problem of legal science to develop new means of
influencing law-making to its modernization. Under such an upgrade should be
understood as a process of permanent renewal, updating ideas and plans of
lawmaking, which allows a mobile link law-making activities with
socio-economic, political, legal and spiritual needs of society, to make
lawmaking more flexible and adequate to the challenges of time.
The complex is available today in this field defects, and, above all,
the backlog of lawmaking by the objective needs of society adversely reflects
is on state-legal development of the country, which ultimately leads to social
unrest, riots, the threat of destabilizingtion of public-private relationships.
Deformation of the social mechanism of lawmaking, not only affect the state of
the law-making and the quality of legislation, but also imply a more profound
implications, affecting law enforcement, legal behavior of citizens and the
state of justice [12]. In terms of modernization of the legal system is one of
the main objectives - the removal of these deformations, the improvement of the
social mechanism of lawmaking, whichrye can be achieved, including through the
country's competent law-making policy of maximum objective consideration of the
interaction of all factors that have a direct or indirect influence on the
development of Russian law-making.
IV. Conclusions. The scientific novelty of this paper is that the author, based on
research carried out by him, worked out the theoretical and practical
recommendations concerning the need for law-making policy as a factor in
modernizing the law-making in contemporary Russia. The novelty of these results
is also reflected in the fact that in the paper by studying a variety of
sources, carried out a systematic theoretical analysis of this phenomenon,
characterized the current state of lawmaking, identifies their shortcomings,
are named by their causes.
Theoretical analysis of law-making policy organically amended application.
Developed specific proposals for overcoming the identified deficiencies,
formulate new approaches and conclusions relating to the appointment and place
of law-making policy in the Russian socio-legal and public policy practices,
revealing the possibility of its positive impact on law-making process.
Substantiated the leading role of higher authorities in establishing an
effective law-making policy.
These and other findings supplement and concretize this growing and
highly demanded in modern conditions the direction of legal science, which is a
legal policy, as well as enrich the theory of lawmaking and the whole general
theory of law with new approaches to solving practical problems of law-making
activities.
The theoretical significance of the article is that its justifications for the
concept of law-making policy, fills a gap in legal science, on the
conceptualization of this type of legal policy. They clarify and update the
largely conceptual apparatus on the above issues, as well as contribute to the
development of the theory of lawmaking and in general the general theory of
law, promote better understanding of the problems dealt with in science.
The practical significance of this work is that developed and justified
in its findings and recommendations to improve the lawmaking process can be
used in a real law-making in research and development of general theoretical
and industrial problems of law-making policy in the educational process in
teaching courses of the theory of State and Law , Problems of Theory of State
and Law, special courses on legal technology, legal and law-making policies,
issues and law-making, etc. In addition, they can serve as a basis for further
research into the formation and implementation of Russia's law-making policy.
Literature
1. Report of the Council of Federation, 2009 "On the status of
legislation in the Russian Federation / / Official site of the Federation
Council of Federal Assembly of Russian Federation. URL: http://council.gov.ru/journalsf/cat9/journal57/2010/ number371.html (date accessed 04/10/2014).
2. Komarov S.A. The General Theory of State and Law. SPb., 2001. S. 40;
Pigolkin AS Federal framework of Russian legislation / Value legislation of the
Russian Federation radios and legislation of the Russian Federation. M., 2003.
P. 28.
3. Report of the Council of Federation, 2008 "On the status of
legislation in the Russian Federation" / Under the general. Ed. S.M.
Mironov, G.E. Burbulis. M., 2009. P. 495-496.
4. Il'in A.V. Optimization of the law-making in today's Russia
(Questions of Theory and Practice), Ed. S.A. Komarov. SPb., 2005. P. 4-5.
5. Lopatin V.N. Constitutional law and law-making problems in Russia //
Journal of Russian law. 2004. ¹ 5. P. 8.
6. The concept of development of Russian legislation in order to ensure
uniform ¬ of legal space in Russia, "Journal of Russian law. 2002. ¹ 6.
7. Ilyin A.V., Kosopkin A.S. Theoretical, legal and practical problems
of lawmaking in modern Russia and the ways of their possible solutions. P. 22.
8. Lukyanov E.G. Some problems of lawmaking in modern Russia // Legal.
2007. ¹ 6. P. 165.
9. Goloskokov L.V. Modernization of Russian law: an
information-theoretic approach: Dis. ... Dock. jur. Science. Krasnodar, 2005;
Information means of modernization of Russian law: proceedings of
scientific-methodical seminar in the Saratov branch of the Institute of State
and Law, RAS // Legal policy and legal life. 2005. ¹ 1; Hawk V.A. The most
important theoretical and methodological problems of modernization of legal
reform in Russia // Philosophy of Law. 2007. ¹ 5.
10. Modernization as a process of renewal of society // Parliamentary
newspaper. 2014. July 2.
11. Laws should not lag behind in life // Parliamentary newspaper. 2014. September 24.
12. Lukyanov E.G. Some problems of lawmaking in contemporary Russia. P.
165.
|
|