16Арановский Константин Викторович - доктор юридических наук, судья Конституционного Суда Российской Федерации, профессор кафедрой конституционного и административного права Юридической школы ДВФУ, заслуженный юрист РФ, г. Владивосток. E-mail: [email protected].
Князев Сергей Дмитриевич - доктор юридических наук, профессор, судья Конституционного Суда Российской Федерации, заведующий кафедрой конституционного и административного права Юридической школы ДВФУ, заслуженный юрист РФ, заслуженный деятель науки РФ, г. Владивосток. E-mail: [email protected].
РОЛЬ КОНСТИТУЦИИ В ПОЛИТИКО-ПРАВОВОМ ОБУСТРОЙСТВЕ РОССИИ: ИСХОДНЫЕ ОБСТОЯТЕЛЬСТВА И ПЕРСПЕКТИВЫ
Нынешняя российская Конституция достигла возраста 20 лет. И хотя её текст не остался незыблемым, изменения не имели принципиального характера. Необходимо осмотреться и оценить то, что сделано и соотнести отечественное конституционное движение с тем, что известно по опыту других народов. Важно опираться на ясные и проверяемые критерии, среди которых существенными представляются содержательно-исторический, структурно-формальный, генетический и подобные им.
В части содержания, обусловленного историческим временем, наша Конституция является актом третьего, последнего поколения, в разряде постсоциалистических конституций. Конституции послевоенного времени образовали третье поколение, представленное в обширных, торжественных, хорошо составленных законодательных текстах, когда конституционные стандарты стали ясными, а доставшийся от прошлого опыт - убедительным в позитивном и в отрицательном смыслах. В классификации по структурно-формальному признаку наша Конституция занимает вполне определенное место. Большинство современных конституций устроены так, что формообразующую роль в их строении выполняет основной закон, в котором собраны главные конституционные правоположения. Генетически (по происхождению) конституции различаются на оригинальные и заимствованные. Оригинальны конституции тех стран, которые эволюционным и естественным для себя путем освоили набор правил, известный теперь как конституция. Другим странам конституционное право досталось в заимствованиях. Они развивали государственность по иному, нежели конституционный, пути. Определяя место нашей Конституции, позволительно утверждать, что её текст представляет собой результат умного, но всё же заимствования. Почти всё известное нам теперь по отечественному конституционному праву, вошло в оборот на Западе задолго до написания действующей российской Конституции.
С принятием Конституции РФ выполнена самая простая часть работы по освоению конституционного права. Но само по себе конституционное законодательство, даже хорошего качества, не дает конституционному праву верной опоры. Конституцию образует общность действующих правоположений, основанный на верховенстве права и на правах личности политический строй, а не основной закон, искусно написанный. Сила конституции кроется не столько в букве и в рассуждениях о её духе, сколько в последовательном восприятии её ценностей и неукоснительном следовании им.
Ключевые слова: Конституция, государственность, конституционные стандарты
Konstantin V. Aranovskiy, Doctor of Law, Judge of the Constitutional Court of the Russian Federation, Honored Lawyer of the Russian Federation, Professor of Constitutional and Administrative Law Department, School of Law, Far Eastern Federal University. E-mail: law [email protected].
Sergey D. Knyazev, Doctor of Law, Judge of the Constitutional Court of the Russian Federation, Honored Lawyer of the Russian Federation, Chair of Constitutional and Administrative Law Department, School of Law, Far Eastern Federal University. E-mail: [email protected].
THE ROLE OF THE CONSTITUTION IN THE DEVELOPMENT OF THE RUSSIAN POLITICAL AND LEGAL SYSTEMS: INITIAL CONDITIONS AND
PROSPECTS
The current Russian Constitution has reached a significant age. Although the wording did not remain totally original, the amendments of some provisions did not have principal nature and did not relate to the essence of the Russian constitutionalism. The attempt to have a look and assess what has been done and what has been left for the future is timed to coincide with the 20 years anniversary of the Russian Constitution and is the right step to greater understanding of the development of Russia's institutions. It is important to rely upon clear and verifiable criteria: historical background, structural/formal, genetic (in the sense of origin) and the like.
Regarding the background that is conditioned by the historical period of the written constitutions, our Constitution is among the acts of the third and the latest generation, last in row of the post-Socialist constitutions. Post-warconstitutions formed in the third generation are represented by long, sometimes solemn yet well-worded legislative texts written when constitutional standards became clear and when past experience was necessary in evaluating positive and negative aspects of previous writings. In the structural/formal classification, our Constitution occupies a certain place. Most modern constitutions are worded in such a way that the key role in their structure is played by the Basic Law, which puts together the basic constitutional provisions. Genetically, i.e., by origin, constitutions are divided into original and borrowed. Original constitutions are constitutions of the countries which have utilized a number of rules in an evolutionary and natural manner. Other countries, then, borrowed the constitutional law as a model for their own constitutions. They were developing state-building in other ways rather than by constitutional mechanisms. The Russian Constitution is the result of borrowing-quite smart borrowing and not at all mechanical, but still, borrowed it remained. No constitution engineering itself is unable to guarantee the success of democracy and constitutionalism. Constitution is established first of all by valid provisions, a political regime based on the supremacy of law and individual rights and not by a skillfully written basic law.
Key words: Constitution, statehood and constitutional standards.
The current Russian Constitution, legitimizing the current national political and legal systems, has reached a significant age. Surely, 20 years for the Basic Law is not a great amount of time, yet it is not a short amount of time either, taking into consideration rather less favorable and shorter lives of many other constitutional acts. That success is especially impressive in the midst of our legislative enthusiasm (if not to say, legislative fever) when in the improvement of laws or in their faults, the essence of possible hopes and failures is unleashed and the object of these expectancies and worries is thoroughly evaluated. In such circumstances, it is not possible to simply keep the Constitution unchanged, a recognition that is a a great achievement already. Although the wording did not remain totally original, it may hardly be admitted that the amendments of some provisions initiated by the President of the Russian Federation in December 2008 (in connection with the term of office of head of state and Parliament's lower chamber and the hearing by the State Duma of Government's annual reports on work results) did not have an innovative l nature and did not relate to the essence of Russian constitutionalism.
The coming anniversary, greeted without pathos and exclamations (upon cancellation of the related national holiday) is giving hope for the future of the constitutional safety.. Happy agitation, and occasional aggravation,as a response to the constitution are not the best sentiments
to adhere to in bringing up the constitution in day to day basis 1 [1]. Tained by such polar-opposite sentiment, achievements and failures are seen as extraordinary and illusions due to impatience for visible progress put too much bad pressure on the development of constitutional matters. A calm look over the authentic situation concerning our Constitution is much more useful, together with a rational approach that seeks the instruments offered by it to the citizens and authorities in settlement of any life, politics, administrative matters and conflicts. Americans, including the Founding Fathers of the USA Constitution, felt little hope for the justice and happiness that would emanate from their new constitution and had to first experience a fragile structure with an uncertain future, but, pragmatically meeting the risks head-on, were able to keepi the constitutional faith through many challenges. In the end, it finally got the political regime which now seems s strong and sustainable. That restraint and insistence, gradual reliance upon constitutional rules and implicit adherence to them made a much greater contribution to the constitutional construction in America than the various technical, legislative solutions that that were not quite inventive and effective in American constitutional law.
The attempt to have a look and assess what has been done and what has been left for a future time to coincide with the 20th' anniversary of the Russian Constitution is necessity. Here, it is essential to compare the national constitutional movement with that of the other nations. A number of comparisons of the Russian Federation's Constitution with otherforeign constitutionalswill contribute to the correct understanding and orientation in the Russian constitutional space [2].
In such study, it is desirable to restrain from making comparisons by effective and showy criteria, following any biased mood, and engaging in metaphoric classifications like dividing constitutions into written and unwritten, flexible and stiff, instrumental and social [3]. What is the need to determine the Russian Constitution as written? For some time, Americans and French enjoyed the feeling of arrogant supremacy over England by contrasting a written Constitution with an unwritten one, feeling supremacy like maturing children feel over ageing parents, or a winner feelsover a defeated enemy, seeking to find merits in perceived advantages that are nonexistent. Given such judgments, classifications appear vague and inconsistent, dominated by ambitions rather than truth. Those times have past and Russia should hardly join the young (and groundless, as proven later) boasting of Americans and French of the 18th century, explaining the advantages of their written Constitution as distinct from faulty unwritten one, i.e., English. Generally, the British Constitution may not be called unwritten, given that a large part of its provisions is documented in statutory (written) law. On the other hand, following the principle of dividing constitutions into written and unwritten it may be asserted that the American, the Canadian and a number of other Constitutions have a lot of reasons to be deemed unwritten, as many of their constitutional provisions are fixed in unwritten case law (Constitution is what judges say about it)and constitutional conventions (customs and agreements).
It is important to rely upon clear and verifiable criteria, including: historical background, structural/formal typology, genetic basis (in the sense of origin) and the like.
Regarding the background conditioned by the historical period when constitutions appear, our Constitution is among the acts of the third and the latest generation, in the lastrow of post-Socialist constitutions. Historical circumstances of constitutional appearance, such as whether it is its own or borrowed, as well as the political and legal experience of the nations, their lawyers and legislators puts a particular brand of seal on each generation. In the distribution of constitutions by generations, the time criterion has an influential but not the main influence while the content difference is more foretelling. Sometimes constitutional institutions seem to be far ahead of their time. For example, the impact of the American constitutional on American way of
1 Subject to the total acceptance of Constitution, overall acknowledgment of the constitutional law, its becoming a national tradition will require a lot of efforts and time to make the basics/principles declared by the Constitution be a natural part of the Russian nation's life.
life that is based in freedom and justice took over one hundred years to become an example for other countries. Yet, nations still took an old-fashioned and outdated constitution. A good example is when Finland, following independence, continued using the old Swedish constitution, despite being in a new century of ideas and solutions. Out of the first generation, characterized by the early 17th century and terminating at the turn of 19th and 20* centuries, a significant number of constitutions were enacted: part of the British Constitution, the French Declaration of Rights and Liberties of Man and the Citizen of 1789, the Constitutions of Canada, the Constitution of the USA and a few more. Constitutionalism was at that time a new and brave initiative with very few operating institutions that we know now, but it did addressjustice, forms of political liability of governments to parliaments freedom of conscience, social rights, and more. During this time, understandable caution in plans and expectations of the constitution was causing political neutrality, moderating the language of those constitutions and escaping from handling any promises and programs burdensome for the state. This is mainly why many of them were in effect for so long, giving no reason of discontent for any parties.
The second generation of constitutions was formed before WWII, when constitutionalism was suffering greatly in the atmosphere of socialist, nationalist and democratic enthusiasm, as well as inevitably heavy disappointments. People, especially in the European continent, were either acclaiming the constitutional law with social optimism or were decisively rejecting it due to gradual identification with ideology of communist, national-socialism, fascism, and authoritarianism. Surely, from the technical point of view, the constitutional law had undergone great development. The whole number of institutions, even those that were unknown and lacked in visibility were greatly impacted by constitutional law and its values that are currently accepted as a standard. The Weimar Constitution, written by Prof. Hugo Preuss and adopted by Germany in 1919, became a distinguished example. In that constitution, religious tolerance was replaced by freedom of conscience, and liberalism by social state. However, it is erroneous to think that the technical achievements of the second constitutional generation were the most educative. Social hopes as well as the political situation of growing socialism and the threat of communism became the catalysts towards seeking improvement of the degrading start-building and changing political regime., under wh It was in Germany where a social state or creeping or cold socialism [4], as called by F. A. Hayek, deteriorated into a national-socialist state.
The post-war period formed the third generation constitutions. The structure and the diversity of interests subject to approval and settlement on the constitutional basics led to better-established institutions in the past, mainly during the time of the first generation constitutions. The new constitutional provisions were structured in the context of the lessons of caution learned in the first decades after WWII, although that empathy is weakening now. Nevertheless, modern constitutions, including the Russian, often gratify social squander and so called social rights, but do not offer any legally strict liabilities in that sense. Troubles inherited by the constitutions of the second generation probably convinced many that the basis and the chief participant of the constitutional legal order is not to be a passive citizen, whose needs are taken care of by the regime, but rather, a free individual who relies on himself/herself and on strict principles of just action. The Anglo-Saxons from various parts of the world, who did not follow the promises of social state-building, kept this faith in individualism, suspicion of authority, and proved to be able to hold civil responsibility, a case that was very distinct from the continental Europe. There, in order to remain within the constitutional legal order, a lot has to be done to shift the social state principles toward true constitutionalism. Declaring, say, the right to labor, a constitution of the third generation guarantees liberal freedom from forced labor and the right to choose a profession with fair remuneration for work with little assistance from the state authorities, but does not pledge overall employment, so that expectations of work and salary of any job applicant would be met on situational basis..
Surely, the constitutional texts of the latest generation were made by using the basic law's form, except for the case of Israel, whose structure and content are becoming greatly similar. The time has come when experience itself is interfering in making bold and original basic law or one
that is vastly experimental and innovative but would ultimately be discarded for lack of quality.. In the meantime, no one can guarantee even in this day and age against the appearance of constitutional acts made out of pressures of a passing fad or out of light-mindedness and over-excitement,. In general, the Russian Constitution has managed to avoid such faults. It is written rather moderately and technically, capacious when appropriate, quite attentive not to deny public expectations, and careful not to give much support to the dependency and collectivism principles of the social-state. Like many post-socialist countries, Russia was initially approaching constitutionalism through the amendments to the previous Basic Law, changing the socialist content to fit the constitutional content and adding separate constitutional acts. However, rather soon, sooner than, say, Poland or Hungary, it managed to develop a modern constitution of European type, and its quality is not the worst of the post-socialist states. That stipulation deserves some more attention, because, as opposed to Hungary*, Russia, at least in wording its Constitution, had not been blamed for restricting any fundamental personal values.
In the structural/formal classification, our Constitution occupies a certain place. Most modern constitutions are worded in such a way that the key role in their structure is characterized by the Basic Law which, as stated, holds together the basic constitutional provisions. However, no constitution may do with only one basic law, even if it is worded very verbosely. Basic Law should be developed by other parameters of law in a combination with aspects of history and tradition; such laws include statutory law, case law, parliamentary custom law, etc. A Constitution may include amendments, formally contained alongside the basic law, as is the case in the USA, or in separate constitutional laws like in Czech Republic. It can also include federative treaties like in the United States and Mexico or in other legal acts (charts, pacts, etc.) such as in Russia.
Constitutions are structurally represented by a series of constitutional laws, so that the constitution does not become the basic law as is the case in Israel, Canada, Austria and Sweden. Let us remember again the classification of constitutions into written and unwritten. Should we classify the Israeli or the Austrian Constitutions as unwritten if they are deprived of the basic law form, or should they be deemed written if they are represented in statutory laws? Then the view of basic law is losing grounds as the key feature of written constitution. What is the manner in which we can distinguish written constitutions from unwritten constitutions? Is not it more correct to leave that classification aside as having no reasonable basis or usefulness?
Finally, the United Kingdom - homeland of the constitutional institutions - almost singularly, together with New Zealand, does not wish to give its constitution the form deliberately fit for it and the structure allowing it to formally be placed in the middle of the national legal system. Lord Palmerstone ironically promised to award the person who will bring him a copy of the English constitution. The wise Englishman did not risk his gambling his money, allegedly knowing that there is no separate constitutional statute in the UK. That leaves us a rather spectacular example illustrating thatthe constitution and the basic law are not the same thing. Indeed, the basic law is just a form (not always constitutional by content) and a single edition of the basic law will not create a constitution. Rather, constitution is not a regulation of a supreme legal effect but rather a way of life, the sum of rules reflecting societal values but not having any coherent content. In this respect, a regime based on civil freedom rules with the governance of law, which is created and nourished by national solidarity2 [5].
Genetically, i.e., by origin, constitutions are divided into original and borrowed. Original constitutions are characterized as the constitutions of countries which have utilized a number of principles based on individual values in an evolutionary and natural manner, producing constitutional law as the basis of protection of its society. Countries and nations with an original constitution rely solely on their own experiences and on local legal material to craft their principles of govenance, although they surely are influenced by common constitutional. England,
2
As V. Sinkyavichyus fairly opines, the text of a constitution is an initial point for opening the true sense and content of constitutional regulation.
France, Germany, Netherlands, Switzerland, Scandinavia, the USA, jointly or separately, were all involved in original constitution-building. Those are all nations of the West that mainly follow the protestant branch of Christianity and that are of Germanic origin (hardly Celtic, Slavic, Semitic or Turkic) - the descendants of Anglo-Saxons, Franks, Normans and others and jointly called Teutons long ago.
Other countries borrowed the constitutional law model. They were developing statebuilding in other ways than constitutional (influenced by Confucianism, Islam, Catholic absolutism, Orthodox Byzantine Christianity, and socialism) or did not even attempt to begin to develop state-building. Constitutions were borrowed in various circumstances. Distancing ourselves from particularities, it is possible to specify the two core ways it was borrowed: by transfer of the constitutional culture by its bearers and Western constitutional pressure which, along with the industrial, financial, military technologies ensured the delivery of constitutional material to the countries initially lacking fundamental rights, law of governance and restriction of the power of authorities. Transfer of constitutional material outside the original (West-European) oasis of constitutional tradition is observed in the examples of venturesome Europeans, mainly Anglo-Saxons, who colonized new areas, clearing them in a variety of ways, to fit their economic, religious and cultural way of living in the new territories. Transfer of constitutional material by bearers of Western, capitalist and Protestant (mainly Calvinist) culture, led to the implementation of borrowed material in a very admirable way, evidenced by Canada, Australia and New Zealand. The progress of European Catholics (Portuguese and Spanish) in the transfer of constitutionalism to the new areas is rather less impressive.
Pressure definitely meets viscous latent or direct and sharp resistance in the nations that were unable to be depopulated, demoralized or deprived of political ambitions. Those nations suffered military, political, economic and moral losses that in some way or other gave rise to the modern countries of the West.
Some borrowers of the constitutional material felt affinity and a strong bond with the experiences of a certain state, and those became the cases of integral, whole-scale borrowings. Such cases are rare, and none of them may be listed as an absolute example. In this respect,, Australian or Canadian borrowings are just consistent reproductions of the British constitutional materials, but are characterized by unique additions, as England did not offer its dominions federalism or the experience of publishing the basic law. Those supplements were obtained by Australia and Canada as borrowings from the American constitutional model. Here, we can also mention the almost completely repeated wording of the French constitution adapted by Cote-d'Ivoire Republic, as well as the influence of the US constitutional law on Latin American constitutions and the present Japanese constitution, while its foregoer - the Meiji era constitution - had clear German influence.
We should not forget that in the Islamic countries especially any borrowing of constitutions as basic, supreme laws often had formal, imitative and decorative nature and was not directly aimed at the adaptation of those constitutional ideas to the reality of the Islamic world.
Therefore, the adaption of constitutions in Iran, Kuwait, Saudi Arabia and of other constitutional acts of borrowing in various Islamic states did not lead to separation from the Sharia law. Although law literature sometimes states that such legal sources like the Cairo Declaration of Human Rights (1990) or the Basic Law of Saudi Arabia (1992) consistently reflect the constitutional ideas of human rights rather than the values typical of Islamic culture [6], it still remains undisputed that the legal documents did not help establish constitutionalism or constitutional law in traditionally Muslim countries and that does not allow speaking about them in full.
It is still rare to use the constitutional doctrine in some rare cases such as those, of the socialist countries. To prove that, it is enough to examine the Socialist Constitution of the PDRK (established in 1972 and amended in 2009), which establishes North Korea as a sovereign, socialist state representing the interests of its Korean nation and relies on ideological and
political unity based on the union of workers and peasants led by the proletariat, the socialist production relations and self-reliant national economy. Meantime, even in spite of the fact that communism is not mentioned in the text of the Constitution, Juche (self-reliance) and Songun (army's priority) ideology remains the fundamental basis of the PDRK. It is clear that in such circumstances, the PRDK's Constitution has little in common with the constitutional tradition, principally contradicting it, and therefore may not be deemed as an authentic constitution constitution.
Meantime, if we look at the experience of South Korea, which due to understandable political reasons, was deemed as a suitable case-study to demonstrate the advantages of market economy and sustainability of the Western democratic values throughthe borrowing of such constitutional institutions like priority of human rights and freedoms, separation of powers, multi-party system, specialized court constitution control, etc. Its experience has been a lot more organic than that of North Korea. Furthermore, in some ways, South Korean constitutionalism is developing a longstanding deference to the Constitution and to the rules which established it. For example, it included a clause in the Constitution about the impossibility for any acting President to be elected for a second term, which is not typical for presidential republics [7]. Without any thoughtful suppositions, we can note that the density of the Protestant population in South Korea is rather high now, with the presence of communities of Calvinists (Presbyterians) and Methodists exceeding 20% of the total population and covering an extensive part of the land as well as most affluent parts of the country. Here, we can connect this scenario with the earlier discussion about the constitutional history and influence of European Protestants that were the decisive economic, moral and political minority in Europe.
Defining the place of our Russian Constitution in the context of such constitutional variations, it is acceptable to state that its text is the result of borrowing. Speaking about the constitutional material used as a model for the constitution, especially concerning the constitutional law institutions and constitutional state-building, it is fairly apparent to discern that almost everything known to us in the national constitutional law became Western practice long before the writing of the current Russian Constitution.
Should Russia be regarded as a participant of the constitutional tradition [9], whereby it develops its logics and contributes to newest trends of constitutionalism is of, another matter. Is our Constitution original or was Russia forced to join world constitutionalism? Had it been written in a time and place when West's leadership would not dominate, would Russia develop in another state and legal tradition? That is not only an abstract musing and the reply should be sought not only out of interest. We consider that only possessing an original (by origin) constitution or a constitution established with the transfer of the whole culture breeding constitutionalism. However, this trend has exceptions, for example, the national-socialist, authoritarian and other alternatives in recent life of Eastern Europe's nations). Forced constitutionalism promises a rather "hard life" of that Constitution, and the risk of failure, especially along with weakening pressure and growing development of the country which was forced to join the world of constitutionalism. Maintaining such constitutionalism requires special political savvy and flexibility to not only remain loyal to the constitutional fate like Americans and Englishmen, but to break the traditional fate and establish a unique blueprint a new constitution. Even if the constitutional tradition is not deemed a strange and forced legal thing, it is still impossible to avoid the fact that in the national political and legal sphere, plenty is brought into a systematic incompliance or a direct contradiction with the constitution law.
Summarizing the edifying sense from the suggested contrasts, we can surely say that upon the adoption of the Constitution of the Russian Federation, the simplest part of work on establishment of the constitutional law was done. Our Constitution's fate seems rather favorable, because in many aspects, the legislative task was fulfilled quite successfully, both with inspiration that is essential, and with the framework of examining the world experience in the context of the third generation constitutions.
Yet, the constitutional legislature itself, even though of good quality, does not give sufficient support to the constitutional law. Strange as it may seem, the countries successful in constitutionalism practice are not the main suppliers of brilliant inventions in the constitutional law. They greatly adherence to often old and imperfect rules, while the creators of distinguished samples of the constitutional legislative techniques are busy with the aspects of constitutional law-making, oftentimes neglecting the constitutional legal discipline, civil freedoms and legitimacy. First of all, a constitution is established by valid provisions of known quality, a political regime based on the supremacy of law and individual rights but not a skillfully written basic law. American colonies, not yet becoming states, would establish constitutional charts, which, strictly speaking, could not be called basic laws, an example being a chart established by a special patent of Pennsylvania's private owner. However, the charts can be considered early constitutions. Any basic law is just a present form, a common shell of a constitution, very important but not mandatory in essence. Establishment of formalities alone without a constitution's striking root in the society cannot promise a clear future, while the constitution which has already been established may stay without any basic law. However, in societies like Russia, which spent most of their history outside of the constitutional tradition and did not have time to gradually grow within their own culture, the basic law provides the required foundation.
Russia might be unable or might not wish to adopt the full scope of constitutional standards (which is the same). It is possible that striving to do that is a task too costly and fraught with loss. The culture of Teuton Protestants, which provided the grounds for many constitutions is rather different from the Russian culture (and most other cultures), whose violent transformation will be quite expensive. Direct imitation is a wrong way to establish constitutional way of life and its expenditures are seen here and there. The Russian constitutional law is already suffering from the attempts to establish federalism instead of a unitary state with national autonomies and to establish local administration, instead of municipal decentralization, in order to put individual freedom on top of all values. And an inevitable shift from the declared intentions is treason to constitutional democracy or a shift towards authoritarian centralism, which undermines the principles of a constitution.
Anyway, although not totally by its own initiative, Russia stepped off that path and may have escaped suffering any damage. First of all, our country is not in isolation, and no one will liberate it from the international affairs under the rules determined by leading nations, for which a constitution is the true essence of a free life. Secondly, constitutional tradition has created and has offered a lot of institutions, legal forms and solutions, which are obviously useful and definitely should be applied and developed in Russia.
Besides due caution and useful right to Do no harm, constitutional development needs to focus on a more practical task - to ensure to the Constitution of the Russian Federation long-term immunity and to avoid temptation of engaging in rushed improvements. The matter at hand is not that our Constitution personalizes perfection and gives no reason for discussion on constitutional improvements. There are no ideal constitutional legislative acts and there can be none, due not only to legislative faults but also to the difference of public interests, which is always too great, so that no one legislative text would be equally fit for everyone at any time. Serious reasons for blaming the principles of a constitution will always be found. They, however, should not be allowed to be influential.
For the constitution's sake (and mostly for Russia's benefit) it important to have something fundamental enough to be perceived not only as a human creation but rather as a product of history and would thereby enjoy internal dignity, like, for example, Russian Orthodox Christianity. If constitution law order would receive anything similar in strength, its prospects would give more firmness. Therefore, the Constitution should better exist without any drastic changes and even without frequent improvements as long as possible, in order to let time accomplish the tasks which cannot be achieved by any human will, even the most rational and decisive.. Then, the Constitution may become not just a recognized legal act but the source of unshakable, governmental legitimacy. An unchangeable Constitution would also help put out
dangerous, legislative fever. The continuous wishes to improve laws is developing legal carelessness and is developed itself from the irresponsibleness of a special kind when people do not accept the hard work to respect the available and not quite fit rules but are ready to explain own lack of success and impatient negligence by imperfect legislative basis or faults of legal terrain. Legislative arrogance does not allow legal confidence to grow, and it is only possible if people do not regard rules as free will objects but imagine the basic rules as a continuous force, faceless (unbiased) in essence, unreachable by the abuse of power.
If we think abstractly, meaning solely the interests of the constitutional future, and assume that Russia has nothing more precious than the Constitution, we should, much to the annoyance of a great number of citizens, make an unpleasant assessment that slow development of the constitutional law is the only way to establish a Constitution - the constitution law itself. It cannot be established without gradual evolution. In discordance with the Program of CPSU promising to build communism before the advent of 21st century, we may note that many of the present Russian citizens will not fully live under constitutional rules of a legal order and if they will, they will be observers and contemporaries but not active participants and beneficiaries of the constitutional development. In essence, every constitution has never been a list of rules equally suitable for all. So far, in constitutional societies, the benefits and burdens of civil freedom, legal equality and supremacy of law are available not equally and not to everyone but to a part of population that is expanding gradually but steadily. It is useful to know beforehand that that if Russia has to remain on the constitutional path it selected, the Russian constitutional fate will not develop by itself. Risks and losses cannot be avoided and many people will participate in the constitutional discourse for a long time to come, yet many will not.
How skeptical it would not be, the aforesaid is more correct than groundless optimism in the lights of which is it impossible to see obstacles and dangers, unavoidable in the constitutional fate especially at early stages. Moderate assessments and cautious expectations may disappoint only those who feel only idle hopes and uncertain dreams of a notion of providing a good life of everyone. Breaking such carelessness is not a great loss for constitutionalism. Constitution is able to be created and supported by deep implicit and calm faith in the fairness of its rules and cannot be affected by expected risks and hard work. In that sense, the point specified by P. Leyland [9] can hardly be ignored: perception of constitutionalism is not an event in connection with adoption or review of the Basic Law but a long and quite complex process of constitutional order development, which, due to its nature, may be only continuous.
No constitutional engineering itself is able to guarantee the success of democracy and constitutionalism. It is essential to clearly recognize that the power of a constitution is not in its language and abstract philosophy, but rather, in the consistent emphasis of its values and their strict observance, even when it brings no short-term benefit. No constitution can represent its provisions and actively protect them without the support of its nation.
REFERENCES
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2. Comparative Constitutional Design. Ed. by Tom Ginsburg // New York: Cambridge University Press, 2012.
3. Shapoval V.N. Comparative constitutional law. - Kiev, 2007. - P. 59-60.
4. Hayek F.A. Evil self-reliance. Socialism's mistakes. - Moscow, 1992.
5. Sinkyavichyus V. Constitution concept in resolutions of Constitution Court of Lithuanian Republic // Constitution justice. Bulletin of constitution control authorities of new democracy countries. - 2013. - № 1. - P. 27.
6. Constitutional law institutes / Ed. by Doctor of Law, Prof. L.V. Andrichenko, Doctor of Law, Prof. A.E. Postnikov. - Mocsow, 2011. - P. 84.
7. Ivanov A.M., Knyazev S.D. Basics of constitutional law on the Korean peninsula. - Vladivostok, 2002.
8. Aranovskiy K.V. Constitutional tradition in Russian media. - Saint-Petersburg., 2003.
9. Leyland P. The multifaceted constitutional dynamics of U.K. devolution // International Journal of Constitutional Law. - Vol. 9. - 2011. - № 1. - P. 272.
