Mazurenko Andrey
Petrovich
Doctor of Law, Associate Professor,
the Head of the Chair
of Theory and History of State and Law
of the North-Caucasian Branch
of the Federal University
Pyatigorsk, 40 let Oktyabrya Str., 56
decanpetrovich@mail.ru, 89627412626
POLICY OF LAW
Summary
The main problem
dealt with in this article is the analysis of the possibilities of the policy
of law concerning lawmaking optimizing. Here different points of view on the
subject of the character and content of the policy of law are introduced. The
authors suggest marking out its special type, and namely the lawmaking policy,
which is considered as the basis for the extensive improvement of the law
system.
Having a special
function, the lawmaking policy is viewed as a universal means of the lawmaking
optimizing in modern Russia.
Body of the article
In the post-Soviet
period the development of the Russia’s society was marked by scaling
transformations in all its spheres which lead to the introduction of new
tendencies, political and legal phenomena and processes that juridical science
was greatly interested to research. In particular, the intensive study of the
problems of the law policy being regarded as a new and complex-structured
political and legal phenomenon of compound character started in these years.
One should note that that was the period when everybody realized that though
being given various characteristics and definitions the law policy is primarily
seen in the society as a law making policy.
Law policy is a
unique phenomenon. In the first place its specificity is characterized by the
fact that it objectively and simultaneously belongs both to the spheres of law
and politics. Since the 1990s the law policy theory has been experiencing a
qualitatively new stage of its development. It features an indissoluble
connection to the democratization of the Russian society and state, the
formation of new views concerning the place and the significance of law in the
life of modern Russia. Nowadays people recognize the law policy as one of the
most important factors of the acceptance of the natural and inalienable human
rights and freedoms, the construction of a law-based state and civil society,
the process generating the legal security system, the implementation of social,
economical and other types of reforms.
These days the law
policy is taking the first place in the context of social being as under
present-day conditions it is impossible to implement all other types of
policies in a civilized and guaranteed way without a law policy. An
ill-conceived and weak law policy with an imperfect and incomplete legal basis,
with antinomies in legal enactments, with indistinct priorities leads to
implementation failures of social, economical, national policies [1].
Thereupon, while developing Russia’s policy of law it is vital not to “stew in
our own juice” but to draw attention to the European Union’s experience of
generating the united strategy of the legal development of its European
Community member-countries [2].
Researchers note that
from scientific point of view it is necessary not just to study the law policy
as it is but also to work out the scientific propositions of its state to be.
Top scientists of Saratov law school in their works present a very reasonable
approach to defining the policy of law. For example, N.I.Matuzov considers that
the policy of law being one of the types of policy in general (used as a
generic term) represents a set of measures, ideas, tasks, goals, programmes,
methods implemented in the sphere of law and by means of law [3]. But we think that to define the policy of
law just as a set of ideas, goals, tasks and so on is not quite reasonable: “…
ideas can never lead you beyond the old world order: in all cases they can only
lead you beyond the ideas of the old world order. Ideas cannot implement
anything. In order to implement ideas we need people who have to bend their
efforts” [4]. ‘In order to stop the idea from being abstract we need the human
activity” [5].
Perhaps it is due to
that that N.V.Isakov thinks that “the policy of law is a scientifically based
complex political and legal activity of the state in cooperation with private
organizations aimed at defining and achieving strategic goals and fulfilling
tactical tasks of society reforming on the basis of the legal regulation
mechanism” [6]. Considering this standpoint as quite reasonable, we think that
it would be more correct to define the phenomenon under study in combination of
this point of view with the first definition given, as it is incorrect to
understand the policy of law as just an activity because in this case its
essential conceptual aspect remains disregarded.
In our opinion, the
policy of law as it is is a complex phenomenon of dual nature. On the one hand,
it basically means that this is a policy based on the law, while on the other
hand, it is the law itself used as a means of ruling and managing the society
in the political sphere. The law policy is implemented in the activities of
corresponding parties that are guided by the ideas of strategic character
concerning the progressive legal development of the society.
The scientific
comprehension of the essence and scope of the tasks being fulfilled by the law
policy in the modern period makes it possible to draw a valid conclusion that
in case the leading elite of the Russian state acting as a means of carrying
democratic transformations of the society demonstrates the presence of
political will, it is able to form and in the future to achieve the goals of
strategic character: 1) to create and develop the fundamentals of the
law-governed state and civil state; 2) to regulate complex interactions of the
society and the state; 3) to serve as a real guarantee of citizens’ human
rights and freedoms.
The prime main aim of
the law policy is working out of legal measures against lawlessness,
bureaucracy, corruption, crimes, contempt against personal rights. It means
that law policy has to foresee energetic actions first of all in the sphere of
lawmaking as the initial one in relation to all other types of legal
activities.
In our opinion,
lawmaking presents one of universal forms of the law policy implementation. As
this area of law policy is the most important, substantial and general, it is
necessary to recognize the lawmaking policy as an independent type of law
policy.
In case law policy
with the lawmaking policy as its part is scientifically substantiated and
realistic, it can function as a general national policy and a reliable means of
democratic reforms. But here we can encounter serious side-effects and even
abuse. And the malfunctions of such policy, though being detected mainly in the
process of enforcement, are quite often caused by the lawmaking policy. The
significance of such mistakes is quite high because after being implemented in
laws and other legal enactments they cannot be corrected, but at best adjusted in the process of the implementation of the
law-enforcement policy functioning. The necessity of overcoming such negative
tendencies is assumed as a basis for the research of the problems of the
lawmaking policy as an important means of optimizing the lawmaking process in
our country.
Lawmaking is the most
important constituent part of the legal regulation. It is of sufficient
importance for the further development of the latter and for a higher
significance of law in general. In its turn, lawmaking includes a whole number
of degrees, stages, phases and is exposed to the influence of a great amount of
social reality factors which in total and in the dialectical combination
determine the essence of this or that legal norm, its contents and form, its
position in the system, branch and institute of law, its purpose and place in
the society’s life. The lawmaking policy is thought to be regarded as one
of such determining factors.
S.V.Polenina also
singles out this fact. In her opinion the lawmaking policy primarily stands for
a united political and legal factor of legislation (lawmaking). The specific
character of this factor lies in the fact that theoretically its function is to
concentrate the most essential interests of all social groups, layers, classes
and of the whole society in general. Being formed under the influence of the
dynamics of economical, national, spiritual, moral, ethical and other types of
social relations in the society the mentioned factor reflects the activity of
state structures, social associations, citizens and juridical entities in the
process of lawmaking [7]. It is confirmed by the fact that lawmaking policy has
its own aims, means, forms, methods and is aimed at obtaining such a specific
result as providing all the necessary conditions for the lawmaking renovation
and eventually for the creation of a science-based, balanced and
non-controversial legislature which conforms to the major priorities of the
Russia’s policy of law.
Lawmaking, its
continual renovation should always be considered as the most important ones by
the state administration activities. The lawmaking policy is the way to the
lawmaking improvement, to its optimization [8]. So we come to the conclusion
that lawmaking represents the object of the lawmaking policy impact.
Nowadays scientists
pay more attention to the problems of lawmaking. A vast range of published
works of all levels and in different editions dwell on the research of this
phenomenon. Quite a number of theses have been written on this issue during the
last years. Such heightened interest is explained by the significance that the
lawmaking is expected to have and actually has under the circumstances of
modern Russia.
At the turn of two
millenniums the Russian Federation undergoes global reforms and drastic changes
in its social life. Social relations change quickly, the structure of both
bodies of state power and local authorities adjust in accordance with the
time-posed objectives. The abundance of the regulatory and legal enactments
passed in our country witness the tendency that the state long for the
regulation of the most important sides of the social life. But as well one
should be warned against legal idealism, the conception that all social
problems can be solved by passing the corresponding laws. This makes it
necessary for science of law to work out theoretical concepts, scientific
conclusions, practical recommendations and suggestions dealing with the
lawmaking activities and lawmaking policy of the modern Russian state that are
relevant to the life realities.
In our opinion there
are no grounds for the identification of such notions as “lawmaking” and “law
policy” as each of these phenomena has its own subject. So, while the lawmaking
has the creation of new, change or annulment of the present legal norms as a
subject, the subject of the lawmaking policy is the working out and the
realization of the plan and policy of the lawmaking activity, the creation of
the necessary conditions for a higher effectiveness and modernization of
lawmaking. Some researches go even further. So, for example, T.A.Zolotukhina
considers that lawmaking is a constituent element of the lawmaking policy which
is a much wider notion and which comprises not only the process of the
creation, change and annulment of the
legal norms proper but also the activity aimed at formation and management of
the lawmaking process, working out the concepts, ideas of lawmaking,
priorities, aims , tasks of the lawmaking activity [9]. Similar ideas are
demonstrated by Y.S.Selivanova who notes that in the basis of the lawmaking
policy there should be a certain concept suggesting notions concerning the aims
of the lawmaking process and the methods it can be influenced by [10].
Such a concept is by
all means necessary. It should be worked out on the basis of the law policy
concept being treated as its special variety. The aim of this concept is to
contribute to the lawmaking renovation, the arrangement of conditions that are
necessary for the development of modern federal and regional legislature, municipal
law systems. The implementation of the tasks mentioned is possible only under
conditions of the predictability of the political and law progress strategic
course in the sphere of lawmaking which is supported by means of the
science-based principles, priorities, aims, means and forms of the lawmaking
policy implementation fixed on the conceptual level. Besides, one should note
that strategy in the sphere of lawmaking is a type of activity aimed at forming
the most general conceptual political and law approaches and perspective
guidelines (of a long-term programme) of development and improvement of the
Russia’s law system.
The lawmaking
strategy and the lawmaking policy are closely associated juridical categories.
In our opinion, the lawmaking policy is a far broader notion. This conclusion
is based on the fact that such policy is not just a strategy but also a tactics
indeed in the lawmaking sphere. Except for planning and forecasting it also
comprises such mandatory constituents as scientific basis, responsiveness to
public opinion, expert and methodological guidance of legislation, system
approach in the sphere of legal regulation and others which serve as a means of
solving tactical problems that the lawmaking policy faces [11].
Theoretically, law
policy must have its own strategy and tactics, clear and sound aims and
corresponding means of their implementation. It is possible to implement
juridical ideas in case their implementation grounds on well-thought decisions
and tasks on the basis of law policy and actions of tactical character. So, in
the sphere of tactics the policy of law solves immediate problems. Taking into
consideration the fact that the policy of law serves as an essential basis of
the lawmaking policy we can substantially state that the latter combines the
functions of tactics and strategy in the sphere of lawmaking. The absence of
tactical tasks as well as strategic conceptual ideas and aims based on a
long-term forecast reveals the absence of the lawmaking policy. If this is the case
there is no and there cannot be any policy but its semblance.
Conclusion
Having carried out
the analysis we come to the conclusion that despite its organic links with the
policy of law, the lawmaking policy is obliged to possess its own long-term
aims, be implemented on the basis of specific unique principles, use special
forms and methods aimed at the implementation of concrete results which
correspond to the priorities of the Russian law policy. Therefore, the lawmaking policy being, on the
one hand, an independent political and legal phenomenon and on the other hand
presenting a special type of law policy, acts as a special type of law policy
and a mighty means of optimizing the lawmaking process.
Summary
1. It is suggested
that the optimizing process of lawmaking should be considered as a process of
its constant renovation, actualization of its ideas and plans that serve as a
means of a more mobile link between the lawmaking activity and social,
economic, political, legal and spiritual needs of the society; it is also
suggested that lawmaking should be more flexible and adequate to the challenges
of time. The science-based lawmaking policy is expected to become the most
important means of such optimizing aimed at the elimination of distortions of
the lawmaking social mechanism, guaranteeing in the process of its
implementation the maximum and objective interaction of all the factors that
influence either directly or implicitly the lawmaking development.
2. The lawmaking
policy is a complex and diverse phenomenon. Having lawmaking activity as a
basis it is aimed at its optimizing and detailed development of the law system.
The lawmaking policy effectiveness is due to the fact that it uses the
instruments of law policy being its constituent, its main type. At the same
time the self-sufficiency of the lawmaking policy is determined by the
characteristics that distinguish it from other types of law policy (enforcement
policy, law-interpretating policy, law-educative policy and so on). The
analysis of the mentioned characteristics makes it possible to conclude that,
on the one hand, the lawmaking policy is a complex of conceptual ideas,
programmes, plans aimed at the lawmaking development, making it more effective
in order to create a well-organized, comprehensive and consistent system of
law, and on the other hand, it is a science-based, consistent and systematic
activity of the state structures and subjects of the civil society that form
and implement the strategy and tactics of lawmaking.
3. For the deeper
understanding of the essence of the lawmaking policy it is reasonable to
specify the above-mentioned features of this political and legal phenomenon: a)
it acts as a united political and legal factor of optimizing the lawmaking
activity; b) it presents the most important law policy type of the Russian
state; c) it is grounded upon a distinctly regulated basis; d) it is
characterized by the presence of many subjects: it is formed and implemented by
both the state with its bodies and officials and numerous subjects of the civil
society; e) it is of public character; f) it is a multi-level system: it is
implemented at different stages (on different levels) of state and social
organization (federal, regional, municipal, local); g) it longs for the
creation of inter-consistent, holistic and integral law system; h) it is based
on the requirement of compulsory usage of scientific potential while preparing
the law to be passed and while the proper lawmaking; i) it uses the instruments
of forecasting and planning which guarantee its consistency and predictability;
j) it is of systematic character: it combines many instruments of the lawmaking
process into an interrelated inter-related; k) in the sphere of lawmaking it
combines the features of both strategy and tactics.
Bibliography
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