Chapter 3. Fundamentals of constitutional law
3.1. Concept and Sources of Constitutional Law
Constitutional law is the leading branch of the legal system of the Russian Federation; it is a system of constitutional legal norms governing the most important relations in society and state.
The main purposes of constitutional law are: the establishment of fundamental principles of the Russian society structure and the entire state, determination of foundations of the management of all social processes, and establishment of legal regulation limits for other branches of the Russian law system. As an independent branch, constitutional law has its own subject of regulation — combination of public relations related to the constitutional system of state, legal status of a person and a citizen and their relations with state, protection of their rights and freedoms, organization of a system of public authorities, local self-government, and electoral system.
Constitutional legal norms have all the characteristics inherent in all the rules of law: normativity, generally binding nature, formal certainty, conscious willing nature, etc., they are established by the state, as well as are guaranteed and protected by it. In the legal references, there are a number of specific characteristics distinguishing norms of constitutional law from other norms. First of all, it is their constituent nature not only for constitutional law itself but also for other branches. In addition, distinctive features of norms of constitutional law are: their political nature, a special number of subjects (people, political parties, public authorities, etc.), declarative nature of some constitutional norms (e.g., availability of norms as principles, norms as purposes); the diversity of legal forms of expression, as well as the structure of constitutional and legal norms (in some norms there is no hypothesis or sanction).
Classification of norms in constitutional law is diverse and depends on a number of grounds. Depending on the type of social relations, constitutional and legal norms are distinguished as related to the territorial and political system of the state, the form of government, the establishment of the legal status of a person and a citizen, the system of public authorities and local governments, etc.
Depending on the purpose of legal instruction: binding (e.g., Article 44, para. 3 of the RF Constitution: “Everyone shall be obliged to care for preservation of cultural and historical heritage and protect monuments of history and culture”, or Article 57 of the RF Constitution: “Everyone shall be obliged to pay legally established taxes and dues”); prohibiting (e.g., Article 13, para. 5 of the RF Constitution: “The creation and activities of public associations whose aims and actions are aimed at a forced change of the fundamental principles of the constitutional system and at violating the integrity of the Russian Federation, at undermining its security, at setting up armed units, and at instigating social, racial, national and religious strife shall be prohibited”, or Article 37, para. 2 of the RF Constitution: “Forced labour shall be banned”); authorizing (fixing the competence of the Russian Federation, its constituent entities, responsibilities of all state bodies, e.g., Articles 71–73, 83–90 of the RF Constitution).
By nature of the legal regulation method, constitutional legal norms can be divided into peremptory (a clear description of behavior, e.g., Article 116 of the RF Constitution: “The Government of the Russian Federation shall resign before a newly-elected President of the Russian Federation”), and discretionary (provision of a choice of behavior, e.g., Article 85, para. 1 of the RF Constitution stipulates that the President of the Russian Federation may use conciliatory procedures to solve disputes between the bodies of state authority of the RF and the bodies of state authority of the subjects of the RF, as well as between the bodies of state authority of the subjects of the RF. If no agreed decision is reached, he or she shall have the right to submit the dispute for consideration by a corresponding court).
Depending on the territory of influence, constitutional legal norms may be forced at the federal level (contained in the RF Constitution, RF laws on amendments to the RF Constitution, federal constitutional laws, federal laws, decrees of the President of the RF, and resolutions of the Government of the RF), at the level of constituent entities of the Federation (contained in the Constitution (Charter) of any constituent entity of the RF, laws and other regulations) and at the local self-government level (Charters of municipal entities, acts of representative bodies of municipalities and heads of municipalities regulating relations that are the subject of constitutional law).
By duration, constitutional legal norms are permanent (most of constitutional legal norms) and temporary (contained in the transitional provisions of constitutions and laws).
The legal references also differentiate constitutional legal norms: by nature of regulated social relations (financial and procedural); by functional role (regulatory and protective).
Constitutional law system as an independent branch of law is a set of constitutional norms and institutions which in turn are formed by combining constitutional norms into interconnected groups depending on the homogeneity of social relations regulated by them. In domestic legal science, there is an opinion that the identification of the types of constitutional law institutions is based on the structure of the RF Constitution. In this context, constitutional law institutions are as follows: fundamental principles of the constitutional system, human and civil rights and freedoms, federal structure, systems of public authorities, principles of their organization and activities (the institution of presidency, the legislative branch, the executive branch, and the judicial branch); local self-government systems, the procedure for amending and revising the RF Constitution. Institution of referendum and elections as the highest direct forms of democracy (electoral law) has its own characteristics. Thus, its norms can be found in almost all chapters of the RF Constitution (e.g., Article 3, para. 3, Chapter 1 of the RF Constitution “The supreme direct expression of the power of people shall be referenda and free elections”; Article 32, para. 2, Chapter 2 of the RF Constitution: “Citizens of the Russian Federation shall have the right to elect and be elected to state bodies of power and local self-government bodies, and also to participate in referenda”). Moreover, the main set of norms governing these public relations is included in federal constitutional laws [e.g., Federal Constitutional Law No. 5-FKZ of 28/06/2004 (as amended on 18/06/2017) “On the Referendum in the Russian Federation”], in federal laws of the RF [e.g., FL No. 67-FZ of 12/06/2002
(as amended on 01/06/2017) “On basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation”].