Law and Modern States, 2014, No. 2


                LAW
                AND MODERN
                STATES




Comparative Studies Journal







2014 / No 2

                 LAW AND MODERN STATES
                 Comparative Studies Journal


FOUNDER: Consulting and Legal Protection of People Foundation

ISSN 2307-3306

DOI: http://dx.doi.org/10.14420/











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EDITORIAL BOARD:


Svetlana Boshno, Doctor of Legal Sciences, Professor (Moscow)
William E. Butler, John Edward Fowler Distinguished Professor of Law Dickinson School of Law, Pensylvania State University (USA)
Olga Belousova, Doctor of Economics, Professor (Moscow)
Marina Davydova, Doctor of Legal Sciences, Professor (Moscow)
Kadyrbech Delokarov, Doctor of Philosophical Sciences, Professor, Honoured Science Worker of Russian Federation (Moscow)
Ekaterina Dogadailo, LLD, Ph.D (Jurisprudence), Associate Professor (Moscow)
Jenny M.T. Hardjatno, Doctor, ProfessorUniversity of Indonesia, Director of Center of European Studies University of Indonesia, Jakarta (Indonesia)
Abulfas Guseinov, Doctor of Legal Sciences, Professor Baku State University (Azerbaijan)
Marina Markhgeim, Doctor of Legal Sciences, Professor (Rostov-on-Don)
Elena Nazarova, Doctor of Sociological Sciences, Professor (Moscow)
Sergey Pavlikov, Doctor of Legal Sciences, Professor (Moscow)
William E. Pomeranz, Doctor of Legal Sciences, Ph.D., Deputy Director Kennan Institute (USA)
Igor Ponkin, Doctor of Legal Sciences, Professor (Moscow)
Valery Rybalkin, Doctor of Philology, Professor Kiev National State University, Head of Division of National Academy of Sciences (Ukraine)
Alevtina Shevchenko, Doctor of Political Sciences, Professor (Moscow)
Olga Tsybulevskaya, Doctor of Legal Sciences, Professor (Saratov)
Andrey Vassoevich, Doctor of Philosofical Sciences, Ph.D. (Economics), Professor (St. Piteresburg)
Elena Vinogradova, Doctor of Legal Sciences, Professor (St. Pitersburg)

            CONTENT


EDITORIAL
Maxim Suvorov, Svetlana Boshno THE ROLE OF «UPPER» HOUSES OF PARLIAMENTS IN THE SYSTEM OF BODIES OF STATE POWER: DOMESTIC AND FOREIGN EXPERIENCE - ROUNDTABLE OF THE COUNCIL OF THE FEDERATION
(DOI: http://dx.doi.Org/10.14420/en.2014.2.1)............................5

PHILOSOPHY OF LAW Gadis Gadzhiev ON THE PHILOSOPHICAL AND LEGAL MEANINGS OF THE RIGHT OF A
PEOPLE TO BE THEMSELVES (DOI: http://dx.doi.org/10.14420/en.2014.2.2)...11
Levon Batiyev EVOLUTION OF LEGAL CONSCIOUSNESS FROM ANTIQUITY TO
MODERN AGE (THESES TO THE HISTORY OF LEGAL PHILOSOPHY) DOI: http://dx.doi.org/10.14420/en.2014.2.3)............................18

DEVELOPMENT OF THE LEGAL SYSTEM
Ruslan Magomedov PRIVATE REGULATORY LEGAL ACTS IN THE RUSSIAN
FEDERATION (DOI: http://dx.doi.org/10.14420/en.2014.2.4)................25
Anatoli Samochkin UNCONSTITUTIONALITY OF THE LEGISLATION ON TAX DEDUCTIONS WITH REGARD TO SUBDIVISION OF LAND LOTS

(DOI: http://dx.doi.org/10.14420/en.2014.2.5)..................................30

JURISPRUDENCE: PRESENTATION OF A TEXTBOOK
Svetlana Boshno CODIFICATION
(DOI: http://dx.doi.org/10.14420/en.2014.2.6)..................................40

                   EDITORIAL


                   «THE ROLE OF «UPPER» HOUSES OF PARLIAMENTS
                   IN THE SYSTEM OF BODIES OF STATE POWER: DOMESTIC AND FOREIGN EXPERIENCE» -ROUNDTABLE OF THE COUNCIL OF THE FEDERATION
DOI: http://dx.doi.org/10.14420/en.2014.2.1
      Topical issue of parliamentary activity is the process of forming chambers of the legislature. In the Russian Federation, the process of forming chambers of the highest representative body has changed several times, but the discussion about the most useful for the country a process of forming does not stop until the present time.
      The Council of the Federation was elected, formed by positions of the heads of government of subjects of the Russian Federation, was appointed from a number of different categories of persons (deputies of the legislature, local government, with the residency requirement, and without it, and other requirements). Effective to date a model is set by the Federal Law of 07.02.2013 No 147-FZ.
      It is these controversial issues in conjunction with the draft law on amending the Constitution of the Russian Federation a round table was devoted to, organized by the Council of the Federation Committee on the House Rules and Parliamentary Performance Management on April 7, 2014.
      The participants of the debate discussed the global experience in forming chambers of the supreme legislative body and the possibility of changes in the Russian parliamentary legislation.
      Members of the Council of the Federation, representatives of the Presidential Administration of the Russian Federation, the Government of the Russian Federation, scientific and expert community participated in the discussion.
      Speakers highlighted the main methods for the formation of the upper houses of parliaments of the world, including genetic models (UK), lifetime appointment (Canada), professional criteria (Slovenia), and noted the importance of international experience.
      The roundtable participants discussed the problem of forming the presidential quota as a part of the Council of the Federation. A group of deputies of the State

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Duma prepared a relevant draft law of the Russian Federation on the amendment to the Constitution of the Russian Federation. Article 95 of the Constitution is proposed to present in the new edition, which will entitle the President of the Russian Federation to appoint members of the Council of the Federation - representatives of the Russian Federation, in addition to members of the Council of the Federation - representatives of state authorities of the subjects of the Russian Federation. The total number of representatives of the Russian Federation may not exceed 10 percent of the number of representatives of the subjects.
      According to the draft, the President of the Russian Federation may not relieve from the duty appointed before its entry into the office a member of the Council of the Federation - the representative of the Russian Federation during the first term of the office, except for the cases stipulated by the federal law. New senators will have the same powers as the other currently existing members of the House - the representatives of the state authorities of the subjects of the Russian Federation.
      This proposal is based on international experience. There are about 200 parliaments in the world, half of which is bicameral, and half of the bicameral parliaments has a presidential quota. Thus, the parliaments of 40 states currently have a presidential quota. The practice of appointing members of the upper house by the head of the state is very common, both in federal and unitary states for centuries.
      Discussion was held at the round table. In the opinion of Oleg Eu. Panteleyev, a member of the Council of the Federation, First Deputy Chairman of the Council of the Federation Committee on the House Rules and Parliamentary Performance Management, appointment by the President of the Russian Federation of a part of the upper house of the federal parliament does not contradict the principle of separation between executive and legislative powers, as President by the Constitution is not included in the executive branch of the government. Moreover, according to the Constitution, the President ensures the coordinated functioning and interaction of public authorities, including, and, negotiates interests, and resolves disputes between the federal and regional authorities. Therefore, the presidential quota in the Council of the Federation may become a tool for implementing relevant constitutional powers of the head of the state. In addition, the suggested process will allow to delegate to the Council of the Federation leaders with great public and political experience. According to the parliamentarian, the implementation of this proposal will create additional conditions for achieving a balance of powers and legal interests of the Russian Federation and its subjects, which is one of the main objectives of the activity of the Council of the Federation as a constitutional body. A suggestion was made to consider the criteria to be met by the candidate of the presidential quota, to have a more detailed approach to the terms of the new members.
      Vladimir M. Platonov, Chairman of the Moscow City Duma, analyzed the changes in the electoral legislation and noted the instability of the legal institution. However, he said with confidence that the electoral legislation was changed for the

Maxim Suvorov, Svetlana Boshno «THE ROLE OF
«UPPER» HOUSES OF PARLIAMENTS IN THE SYSTEM...

7

better. The proof was in the absence of litigation during election campaigns.
      He revealed some shortcomings of the existing process of forming the upper chamber from the number of deputies of legislative bodies of the subjects of RF. In connection with the legally binding obligation of non-overlapping mandates, giving the powers of a member of the Council of the Federation to the regional deputy leads to the need for new elections. It is inexpedient. (It should be noted, that there is a global experience in combining various elected and appointed positions. And it is not axiomatic that with the presence of the status of a member of parliament, a citizen should be denied the initial position - in our case - the deputy of the regional legislature - Ed.).
      V.M. Platonov drew attention to the fact that in case of a change in Article 95 of the Constitution of the Russian Federation it could be improved the wording «representatives of the state authorities of the subjects of the Russian Federation». From his point of view, the most important thing is to ensure the continuity of the composition of the Chamber, which would correspond to the nature of the appearance of the upper chamber and its powers. According to him, the Council of the Federation exists for creation of stability in the country, in parliamentary activity.
      But the most radical proposal is to change the participation of the Council of the Federation in the legislative process. It is proposed, on the basis of international experience, to establish that the Council of the Federation makes its own corrections to the law received from the State Duma and returns it to the State Duma for further refinement. And the law goes from house to house until a compromise is found.
      Yuri A. Tikhomirov, Doctor of Legal Sciences, Chief Scientist of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, devoted his speech to the following key aspects: the criteria for the formation of the presidential quota, monitoring of legislation and the need to stabilize election law.
      In order to determine which process of forming the chamber is better, it is necessary to picture, what resources are available for the efficiency of its functioning. People with academic attitude to the world should work in the Council of the Federation. In large federal states, upper houses of parliaments are designed to accurately and completely reflect the specific nature of regions.
      According to the professor, a certain quota makes sense, but from that standpoint that it provides stability and continuity of the work of the Council of the Federation. Y.A Tikhomirov indicated that for the improvement of the popularity of the Chamber people’s artists, ministers who have proved to be effective, heads of regional legislatures and governors, who have extensive experience should work there.
      Alexey S. Avtonomov, chief research scientist at the Institute of State and Law, Russian Academy of Sciences, Director of the Center for Comparative Law of the Higher School of Economics, the editor-in-chief of «State and Law» journal took the floor on issues of national representation in the context of bicameral.

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      Since the dawn of parliamentarism, in its modern sense, from the XVIII century, the question of representation of people occupied the minds of different nations. Parliament is a representative body, and therefore, the question arises: whom should it represent and how?
      For federal states, it has a great significance a representation of territorial interests of the subjects of the Federation. That is why, as a rule, there are bicameral parliaments in federations. Exceptions are also very exotic - it is the Comoros, united or Federated States of Micronesia, Tanzania. And all the other federal states in varying degrees, have a second chamber. As for Germany, its parliamentary experience is called a hidden bicamerlsme (bicameral), as formally, under the Constitution, Bundesrat is not called House of Parliament and, in general, as such anywhere in the legislation more specifically as part of the parliament is not indicated. However, Bundesrat («federal council») can be at least partly attributed to the German Parliament by functions.
      All the other large and small federations, such as Belgium, have bicameral parliaments, which are represented by regional as well as ethnic, and ethno-linguistic interests.
      As A.S. Avtonomov noted, first of all, it should be determined, why we needed a second chamber, and only on this basis, to develop the process of forming it. In general, the evolution of forming the Council of the Federation was directed towards increasing the role of voters in the formation of the Council of the Federation, including as well in fact the two-stage procedure for electing, empowering members of the Council of the Federation. If we are talking about representation of people, the question arises on the impact of the status of parliament by presidential quota, whether this innovation would enhance the role of parliament as a representative body or not.
      In some countries, appointed members of the upper chamber, enter the house in order to any group that somehow cannot be presented in view of elections, should receive a voice in parliament. Appointed parliamentarians are also present in quite the old parliaments, which in the process of their reform reject outdated forms of the formation of the upper house. At that A.S. Avtonomov noticed that to refer to foreign experience was not always effective, there were completely different conditions for the birth of the parliamentary system and the existence of parliaments. And because of this, we could hardly just say unequivocally that if there is so there, then we need it as well. We rightly criticize the lack of democracy in one country or another, why we are going to take an example in this regard.
      Benjamin E. Chirkin, chief researcher at the Institute of State and Law, Russian Academy of Sciences, Doctor of Legal Sciences, noted that there were six ways of forming upper chambers of parliaments, many of which were totally unsuitable for us: assignability of upper chamber - as in Canada, the Lords - in the UK or in Germany. Apparently, indirect elections, such as in France, would not work for us either. But there was something, we could probably use.
      In some countries (there are two) there is a corporate method of formation, when members of the upper house of the Parliament are formed from certain

Maxim Suvorov, Svetlana Boshno «The role of «upper»
houses of parliaments in the system...

9

social groups of population. One could hardly form the Upper House as a whole like this, as, for example, this is the case in Ireland or in Slovenia, but the questions of corporate representation in science are under discussion. And a certain part of the members of the upper chamber may be formed based on this principle.
      The second point is the occurrence of the ex officio membership of the upper House of the former Presidents. In many countries, in Italy, in India, and in other countries, Presidents at the end of their term, become ex officio members of the upper House. This, as noted by Professor Chirkin, gave some stability, sustainability and the use of a huge experience of the highest official.
      There are many countries where a presidential quota is provided. In Italy and in India quota includes individuals, who have made a significant contribution to the development of their homeland, praised it in different areas (representatives of science, culture, art). Number of presidential quota is different. Thus, in Italy it is only one sixtieth (5 persons from 315 members of the upper chamber).
      V.E. Chirkin also proposed to clarify the wording, stating «no more than 10 percent of the constitutional number».
      There was a suggestion on the improvement of the Constitution outside the recommendation made at the round table topics - in terms of improving the legislative process. There were controversial questions remained about the constitutional term «a law adopted by the State Duma», the name of the republics - the subjects of the Russian Federation - states in Art. 5 of the Constitution of the Russian Federation.
      Andrey V. Yatskin, plenipotentiary representative of the Russian Federation Government in the Council of the Federation, stressed the importance of the question of electivity or of appointment of members of parliament. The origin of mandate gets special significance during professional activities of members of the Council of the Federation as part of international bodies and organizations. The status of representatives of the executive body of the region, who, in accordance with the old law on the process of forming the chamber, were individually appointed by the highest authority of the subject, was repeatedly open to question.
      In the future, there can be problems with the designated members of the Council of the Federation, and it will again raise the issue of representation.
      Svetlana V. Boshno, Doctor of Legal Sciences, Professor, Head of Political Science and Law Department of the Russian Presidential Academy of National Economy and Public Administration delivered a speech on problems of comparative legal expertise of parliamentarism and the principles of lawmaking. The doctrine of comparative legal science, according to S.V. Boshno, indicated that we should not take the experience of others, we had consider how it would impact our domestic political landscape. The above fully applies to the problem of formation of houses of the legislative body.
      An important problem is the combination of stability and variability of the legislation. Those states where the legislation is focused on tradition, are proud of it, because the legislation is a very specific tool for which people have to tune.

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But this takes time. It should allow the people for whom it is intended, the time to learn to live with it. They should get to know it, they should get used to it, have to get used to observe it. If the law is changed before it has given its fruit, it is a very strange symptom. Even if we simply divide five processes of formation by 20 years, it is already too frequent changes. Several months have passed since the entry into force of the new process of formation. During this time, we did not get the Council of the Federation, which would firstly be formed by the new order. The new model has not yet shown its effectiveness or shortcomings. Only based on this experience, we could go to the next step. In fact, the new model appears when the former has not yet manifested itself, not compromised, not exhausted, we are actually talking about it still know nothing.
      S.V. Boshno noted that it was possible to consider non-traditional solution to the problem of forming the Council of the Federation on the basis of international practice. If to delete the phrase in the Constitution that the Council of the Federation includes representatives of state power of subjects, then one could get quite a common model, which will have the following wording: by two representatives from the subject of the Federation. And the world knows such models.
      Yet the most important thing is the idea of representation. Indeed, there are bodies formed directly and indirectly. But indirectly several times, or multiple delegation, leads to what is already quite not clear who represents whom. Multiple delegation turn the probability into 100 percent of certainty of the communication gap between parliamentarians and their primary voters.
      Very promising is the idea of professional representation in the formation of houses of the legislature. So, in the Parliament of Slovenia, 18 of 40 members are chosen on a professional basis. The idea of professionalization of the members of legislature goes on topics of lobbying, the internal structure of the parliament, the fight against corruption. On the one hand, members of the Council of the Federation represent the subject of the Federation in legislature, but they position themselves in the office as a profession or business from which they have come to the parliament. For example, a member of the Council of the Federation is an entrepreneur, he joins the Committee on Entrepreneurship, and it turns out that he already appears to have two representatives: one - his professional representation, the second - as a member of the subject of the Federation.
      Overall, the discussion was lively and engaged. The subject matter of formation of parliament in a domestic and world practice requires constant study. Connection of efforts of legislators, experts and the public creates prerequisites for the coordination of interests even at the early stages of creation of law.

                    Maxim A. Suvorov, Ph.D., Senior Advisor to the Office of the
      Council of the Federation Committee on theHouse Rules and Parliamentary
Performance Management
Svetlana V. Boshno, editor-in-chief

                    PHILOSOPHY OF LAW

                    ON THE PHILOSOPHICAL AND LEGAL MEANINGS OF THE RIGHT OF A PEOPLE TO BE THEMSELVES
DOI: http://dx.doi.Org/10.14420/en.2014.2.2
Gadis Gadzhiev, Justice of the Constitutional Court of Russia, Prof., doctor of Law, e-mail: ksrf@ksrf.ru.

Abstract.           In the present article the author makes an assumption that the
                    wording of the preamble of the Constitution of the Russian Federation of 1993 that the multinational people of Russian «is united by a common fate on their land» is not just a decorative declaration, but has a profound philosophical, cultural, historical and legal grounds. This formula reflects the specific tradition, cultural identity and the «independence» of the Russian law and Russian statehood, the path of becoming of which at times diverge from the western, European one. This discrepancy can be explained in terms of philosophical debate between realists and nominalists, which, in part, is being continued by J. Rawls and J. Habermas. This debate, in author’s opinion, can bring clarity to the understanding of modern concepts of human rights, the idea of socio-historical basis of limitation of rights. This aspect is particularly important, bearing in mind the unfolding conflict of matching of so-called liberal European and traditional Russian legal values.
Keywords:           preamble to the Constitution, the people, ethnicity, Law, statehood,
                    traditions, cultural identity, nomenalizm and realism, selfdetermination, liberalism, minority rights, collectivism.


       L1. The eighty four words of which the preamble to the Russian Constitution consists include some fervent, politically impassioned words. In fact, the Constitution begins with the first statement that we, the multinational people of the Russian Federation, are united by a common fate on our land.
       Of course, we could suggest that the writers of the text of the Constitution demonstrated a tendency towards simple rhetoric in the preamble. However, legal experts take the position that every word in such important texts as the texts of fundamental laws embodies attributes of legal concepts. These legal concepts are often a specification of philosophical concepts. Such, in our view, is the concept of a «common fate», in the way it characterizes the people who created the constitution.
       The concept of a «common fate» was not developed further in the doctrine of constitutional law. However, recent dramatic political events place it at the epicentre of legal and philosophical discussion.