Law/Constitutional law

Doctor of Science (д.ю.н.), full professor Frolova E.E.

People’s Friendship University of Russia, Russian Federation

Doctor of Philisophy (к.ю.н.), Voykova N.A.

The Russian Presidential Academy of National Economy and Public Administration, Russian Federation

SOME QUESTIONS OF THE THEORY OF SEPARATION OF THE AUTHORITIES IN THE RUSSIAN FEDERATION

The legal institution and the concept "separation of the authorities" of the same name doesn't lose relevance in the modern Russian state, and the retrospective of its origin and results of the undertaken historical analysis of development of institute allow to open their additional aspects.

It is known that the history carries the nature of emergence of separation of the authorities to monarchic board of continental Europe at the end of the late Middle Ages, and its further development - by the period (era) of the Renaissance and Education. The essence of statement of this political question was that functions of public administration, i.e. implementation of the government can't constitute a prerogative of one person - the monarch that his legal acts (ordinances, leaflets, etc.) can't express a will and interests of the different estates. The question of the legal acts establishing new taxes and fees was especially sharply put and it is simple about lawless taxes and requisitions which, eventually, led to revolutionary overthrow of this form of government.

Cardinal change socially - a political system in the Russian Federation, acceptance and the introduction in legal force 20 years ago Constitutions of the Russian state in which the government is organized on the constitutional principle of its separation into separate branches, conceptual change of the relation to the rights and freedoms of the person and the citizen still, in our opinion, require development of new scientific reasons and solutions of practical problems of the state construction and forming of the right, its industries.

The Constitution existing in the Russian Federation is sustained in traditions of the liberal democrats putting in the forefront the personal rights, freedoms and interests of the person and citizen as the main social value as the main object of federal protection against infringement of freedom, independence and property of the individual. It determines content of activities of all state institutes of the sovereign power which are allocated with legal powers necessary for them.

But in the conditions of absence of real civil society and institutes corresponding to it, the strong executive authority was always necessary. It is fixed in the new Constitution in the form of powers of the President and the Government.

The legislature also possesses very wide competence. At last, for the first time in Russia the Constitutional Court - the keeper of Constitution and constitutional principles in the Russian Federation was created. In effect, for the first time its missing part without which the state building constantly I remained unfinished is interwoven into “fabric” of the Russian statehood.

Creation of institute of presidency, parliament, government and the constitutional control demanded redistribution of competence between legislative and executive branches of the power, and also strengthening of control of their law-making activities. These organizations of authentic parliamentarism already work, perform the sovereign government of the Russian Federation.

It is known that parliamentarism substantially shows the level of political self-determination of the nation (people); in parliament its interests which shall receive legal expression in the form of laws are provided. Parliament, and only it, shall create legal laws. But whether they are? It is possible to assume that law-making activities of parliament are continuation of objective process of the right education proceeding in society behind walls of parliament. But what role of parliament in this process? Probably, it mediates and affirms the right which objectively developed or developing in society as the relation. Parliament, expressing a will of the people (nation), shall establish a general measure of these relations, and this measure (scale) shall become an imperative for all subjects of the relations regulated by the law. In the law-making activities the parliament determines, first of all, equality of subjects in their relations. Their legal equality — justice scale. For achievement of these purposes the legislator not only provides the corresponding state mechanism, but also institute of legal responsibility.

However in the Constitution of the Russian Federation the President will push on the first place in system of implementation national the sovereignty.

Between these branches of the single government already repeatedly there are sharp political legal disputes with which decision the Constitutional Court of the Russian Federation quite often interferes. Independent from any branch of the power this body true "forced" to work the principle of isolation of various branches of the government, their functioning within the Constitution and the right.

However the Constitution (Fundamental law) fixes that minimum of the natural, positive and public rights and freedoms of citizens which can't be broken by anybody in the constitutional state. It is also the highest legality in society which judicial authority and, first of all protects the Constitutional Court. Not accidentally the Law on the Constitutional Court of the Russian Federation established (outlined) limits of permission of affairs for the Constitutional Court by the solution only of points of law (Art. 3 of the Law). And in this article legal dispute is considered only from the point of view of constitutionality, and the court isn't connected thus by the arguments and reasons stated in the petition, the individual claim or request. These activities of the Constitutional Court push it on that level are institutional the arranged public power (state) on which it only also can provide constitutionality in life of civil society.

Forming new socially - a political system in Russia, the existing Federal Constitution is stimulated by intensity of scientific research of problems of parliamentarism and the inalienable rights and freedoms of the person and citizen, their protection and protection.

Analyzing the organization and level of the organization of the government in the Russian Federation, it is offered to address to world history, some aspects which ("lessons") became very useful to the Russian Federation as democratic state with the divided functions of each branch of the power. As a result of revolutionary changes in England very original model of the organization of the Supreme government which here provides more than 300 years effective management of the country was created. In this system of board the parliament means the king (queen), House of Lords and the House of Commons - the Supreme meeting, uncontrollably in decisions on all questions of public and private law. These acts are the highest manifestation and the indisputable proof of the sovereign power of parliament.

In this system of parliamentary board of function of public administration and power on their implementation are assigned to various central bodies. The monarch kept a number of the prerogatives in the main directions of the state activities: legislative, executive and judicial. In effect, the monarch, being a symbol of unity of the people of the United Kingdom of Great Britain and Northern Ireland, unites activities of all central state bodies in the single mechanism. In relation to the British system of board of more pertinent would be to speak about organization-legal consolidation in the nation-wide scale of activities of all state institutes to which the appropriate legal authority for accomplishment of their state functions is conferred by parliament.

In the states of the European continent forming of the organization of the Supreme government went differently, than on the British Isles though the class representation appeared and created here earlier, than in England.

Deputies of the third estate of the General states called in 1789 declared themselves National assembly of France. So the French revolution which considerably resolved an issue with feudal absolutist system of the organization of the government not only in France, but also had the revolutionizing impact on all countries of Europe and America began.

The feudal despotism which received the classical completion in an absolute monarchy was object of fixed close attention from progressive thinkers of many centuries, since an era of late feudalism and before overthrow of the French absolutism, i.e. until the end of the XVIII century.

It is necessary to emphasize that the principles of parliamentarism located many English ideologists of the XVII century, especially those who protected results of English revolution. Among them D. Milton, the outstanding English poet and the author of a number of political lampoons ranks high. He considered that people established the royalty only for ensuring protection of the natural rights against violators, this power is derivative of the people, it is the unique source of the power. D. Milton denies a divine origin of the power of the king, he claimed that ancient Greeks and Romans considered not only legal, but nice and heroic case, worthy statues and wreaths, murder of the contemptible tyrant without court at any time. Even more preferably the public and just trial over the tyrant as it was made by the English people which dethroned the king is. Being the supporter of people's sovereignty. Milton supported concentration of the power in hands "the best and the wisest", applying for this purpose a qualification electoral right and multi-phase elections.

Che. Montesquieu's doctrine about the organization of the Supreme government laid the foundation not only theories of the right state that already in itself immortalizes a name of the great thinker, but was also important source of scientific reasons and constant development of the concept of unity of the government, its sources, complex studying of variety of forms of the modern state, its main components, in particular the forms of government, a state system, political regimes, sociological aspects of the state. Since the time of Ch. Montesquieu the state in general and its basic elements became institutes of the constitutional (state) right and objects of research of science of a constitutional right.

It had and has beneficial influence on development of science of a constitutional right in the modern Russian Federation. Removal of mandative ideological dogmas allows the Russian researchers to study more deeply problems of separation and isolation of various branches of the government, and at the same time organizationally - legal interrelation between them, the main properties and characteristics of parliamentarism in general and features of its manifestation in the states with various form of government.

This short characteristic of some features of the specific forms of government shows legal opportunities of structuring and functioning of the Supreme government unrestricted organizationally – shows the people's (national) sovereignty and the main institution of civil society.

Thus, separation of the authorities is not simply the theory about their "separation" (because it is impossible, as the government one), it and not job specialization on its implementation. It is such institutional and functional organization of the government in case of which spokesmen of people's sovereignty and, therefore, the sovereignty of the state are the supreme legal bodies of the national legislation, and the professional device is the contractor of laws of these bodies, the judicial system shall provide application and implementation of legal acts, and the constitutional justice — a non-breakable constitutional (the main, vital) the rights and freedoms of citizens.

This separation of "authorities" shouldn't be identified with the theory of Che. Montesquieu who undoubtedly played a big role in social progress. At the same time to try to take from it "in parts" the positiva moments and to reject all "bad" it would be wrong.

The methodology of this theory can help Russia with legal reasons for the organization of the government in which system "controls and counterbalances" will provide functioning of the state as institutions of civil society, and judicial system together with the constitutional jurisdiction will provide rule of law and constitutionality in relations between the state and the individual.