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Constitutional Foundations of the Entrepreneurial Activity: the Notion and the Content

S.V. Belykh, Candidate of Law, Associate Professor, Constitutional Law Department, Ural State Law Academy,Yekaterinburg, Russia

The notion of “constitutional foundations” is very popular in legal literature. Examining an issue of the notion of constitutional foundations, academic lawyers define their legal essence in different ways without considering the meaning of this category.

Thus, V.V. Gladyshev writes about constitutional foundations as basic principles of a state[1]. A wider definition of constitutional foundations is given by O.N. Gorbunova. She formulated them as the constitutional rules of law that are the basis of the current legislation[2]. E.A. Ravinsky also studied the issue of constitutional foundations of the Soviet state. He defined the sense of the said notion both as principles and norms recognized by the Constitution[3]. A.O. Minyaev has a similar view. At the same time, the author thinks that constitutional foundations should be first of all understood as the legal norms of the Constitution defining the fundamentals ( origins, principles, basis) of the society organization and state organization as a whole and also some particular social relationships[4].

The most harmonious opinion seems to be the opinion of I.A. Umnova and A.A. Belkin. They define constitutional foundations as a special legal notion which reflects the fact that real relations playing the role of fundamentals in the society are confirmed and protected by legal means. Their special legal function consists in the fact that they serve as the next link in the regulation of certain legal ties[5]. The above-mentioned authors are supported by M.N. Marchenko and E.S. Merkulov[6].

At present, the question of the scientific and legal definition of the notion of “constitutional foundations” has acquired a great importance. During the process of building a rule-of-law state, Constitution is regarded as a legal document of the highest legal force that determines the development of all branches of law and has a direct effect. The entire body of law is based upon the Constitution, gaining general recognition. When a country adopts its constitution, it gets a new starting point of the existence.

To disclose the notion of constitutional foundations, it is necessary to draw attention to the essence of the constitutional legislation, political and legal requirements and provisions based upon this legislation, legal principles as well as their correlation to other constitutional foundations.

Constitutional legislation is a branch of the Russian legislation. It defines basic principles of building the state, its activities, and its institutions. This branch defines the place of a person, its status as a citizen. It also regulates basic aspects of the civil society and lays down the legal system of the state[7].

There are a number of criteria that attribute certain normative acts to constitutional legislation, but the question about the exact criteria is left open. The following criteria should be named: 1) the status of a subject that passed a legal act; 2) formal and legal principles of a legal act; 3) the essence of relationships regulated by the act and their role in the society and the state[8].

In view of the above , the following documents are a part of the constitutional legislation: the RF Constitution, constitutional laws, federal laws, constitutions and charters of the RF subjects (RF constituent entities), laws of the RF subjects passed in accordance with their constitutions and charters, laws on ratification of international treaties and agreements, and model laws passed by the Inter-Parliamentary Assembly of the CIS member states[9].

At the same time, the notion of the constitutional law is narrower. It includes the basic law of the country, constitutional laws specially defined by it (laws on the amendments to the Constitution, federal constitutional laws), constitutions and charters of the federal subjects. It is necessary to note that the constitutions and the charters of the RF subjects are basic legislative acts of the RF subjects that regulate the structure of the state power, the place of citizens, and the structure of the financial system on their territories.

Constitutional foundations should not be identified with the constitutional principles which are their constituent part but differ from other types of foundations in their legal importance and functional purpose. Legal principles are basically the result of reflection of economic relationships and political circumstances of social development. At the same time, the principles are only a component, a moment of concretization and specific interpretation of society’s outlook; its ideas and fundamentals[10].

Legal principles serve as a peculiar bearing structure on the basis of which not only legal norms, institutions and branches, but the entire system of law rests . Principles serve as a main guideline of all law-making and law enforcement activities of government authorities. The level of coherence, stability and efficiency of the legal system directly depends upon the level of observance of the principles in question[11].

The law has a great influence upon all economic and social processes. The principles of law and of the entire mechanism of legal regulation act as a driving force and the fundamentals characterizing the content of the legal norms, law enforcement acts, and main directions of their functional impact on social relationships[12].

There are various opinions about the nature of legal principles in legal literature. Speaking about principles as ideas, it is necessary to understand that their fundamentals may be formed even before certain forms of law as legal principles are created. A legal principle, in its turn, means requirements imposed on a certain system of law and formed before the formation of the system of law. Without their formation, it would be impossible to create a new system of law leading to transformation of legal principles into principles of law[13].

S.S. Alekseev defines principles as initial normative and guiding fundamentals reflected in law which characterize its content, its foundations, and mechanisms of social life expressed in it. In other words, “principles act as such legal phenomena that directly connect the content of law with its fundamentals, i.e. mechanisms of social life which this system of law is based upon and which it guarantees”[14].

As an attempt to learn the objective law, a principle is a result of human activity. A number of repeated events and abstractions are repeatedly generalized , producing the highest degree of generalization of social demands. Normative consolidation as a legal and social norm helps the principle to extend to the sphere of relationships from which it has been abstracted. Being laid down in the constitution, the principle gets the highest expression of normalization.

Legal principles become generally valid in legislation and in the system of legal norms. R.Z. Livshits and V.I. Nikitsky say that there are no norms in which legal principles would not be reflected[15].

Full implementation of legal ideas (principles) happens during state and legal, and social practice when there are such legal forms of social relationships which a lawmaker wants to achieve[16].

The effectiveness of legal principles depends upon their scientific maturity and reasonableness, the level of cultural development of the society, impeccability of legal means with whose help they are supported. Recognition by the Constitution gives absolute legal validity to the principle of law as the RF Constitution is the fundamental law of the state and has direct effect.

Entrepreneurial activity (entrepreneurship) is a complex and many-sided social and economic phenomenon. In the sphere of the effect of law, this activity becomes an object of inter-branch regulation. Entrepreneurial relationships are directly or indirectly regulated by the norms of many different branches of public and private law. Constitutional law also plays its role in this regulation.

The peculiarity of constitutional and legal regulation of entrepreneurial relationships is determined by a specific place of the constitutional law in the system of Russian law.

The indication of the fundamental nature of the constitutional (state) law in relation to the other branches of law has become commonplace. As A.A. Bezuglov and S.A. Soldatov say,

“…if subjects of the other branches of law (civil, criminal, etc.) are independent of each other, then the subject of the constitutional law and the social relationships regulated by it do not exist separately and independently from social relationships regulated by the other branches of law. They are initial, principal and basic for all the others”[17].

The quoted authors illustrate their thought in terms of tax relationships. They think that all tax relationships are regulated by the norms of the tax law, and the basic and principal social relationships in the sphere of taxation are the subject of the constitutional law. The fundamental nature of relationships regulated by the norms of the constitutional law in relation to relationships which are the subject of the other branches of law also means that the norms of the constitutional law are fundamental in relation to the norms of the other branches[18].

Another point of view has V.O. Luchin. He believes that the RF Constitution proclaims only basic and principal provisions that act directly but are defined by other legislative acts. Constitutional norms are aimed at common and universal regulation of a status of the subjects of law. They touch upon all the most important sides but only generally (not in detail), expressing the most essential features of their legal position[19].

The authors of the textbook on the general theory of state and law argue that the subject of constitutional law is fundamentals of the socio-economic and political system.. This is a system of “society-state-individual” relationships. The mentioned branch is not an integrated or general part of all the branches. It is not a “superbranch”. It is the initial branch[20]. In other words, the Basic Law expresses the essential side (the construction of the essence) of socio-economic, political and spiritual (worldview) processes in the society.

Paradoxically enough, the indication of the fundamental and leading nature of the constitutional law bears some defectiveness of constitutional and legal regulation. The principal and framework regulation is enough for the fundamentals but not enough for a full-fledged branch of law. Full-fledged regulation presupposes the use of a wide collection of the specified approaches and the methods of regulation of social relationships. A.A.Bezuglov and S.A. Soldatov say that the subject of the constitutional law contains not only fundamental but other relationships as well[21].

That is why A.N. Kokotov decided to introduce two different, though interconnected, definitions of the constitutional law. The first one characterizes constitutional law as an ordinary branch of law in the sense of the used methods and ways of regulation. The second one characterizes the constitutional law as a peculiar general part of the Russian law, i.e. as a leading and fundamental branch[22].

A.N. Kokotov thinks that the constitutional law as a common branch of law is a combination of constitutional and common norms defining the system and the procedures of the activity of supreme state authority institutions and the political system with the help of a method of general and detailed regulation[23]. Evidently, the entrepreneurship and the economic activity in general are not included in the subject of the constitutional law in the said meaning. This means that the entrepreneurship is the subject of general and frame constitutional and legal regulation. This is the case when one speaks about constitutional and legal fundamentals of particular social relationships. In this direction, the constitutional law acts in the meaning of the general part of the Russian law (according to A.N. Kokotov).

The constitutional law in this sense is explained by the said author as a combination of constitutional norms setting forth socio-economic, political and management, spiritual and cultural principles of the Russian society, the basis of a legal position of a person and a citizen. These principles specify the structure of the Russian law, common goals, principles and values of all its branches ensuring their coordinated and noncontradictory action[24].

If the entrepreneurial activity is a subject of this way of regulation, then the direction of the constitutional and legal effect upon the entrepreneurial relationships is reflected in the following: first, separation (aim at such separation) of a complex intersectoral array of norms which is necessary and sufficient for regulating entrepreneurial relationships; second, definition of common aims, principles and values for all branches that regulate entrepreneurial relationships[25]; third, legislative and law-enforcement coordination of norms of various branches used to regulate entrepreneurial relationships; exclusions of contradictions between them. Such regulation is achieved, particularly, through a more precise definition of the subject of a legal regulation of various branches of law, legislation, and a clear differentiation of the spheres of their regulation. Of course, the constitutional text is very laconic and abstract, so it cannot give a comprehensive model of solving the mentioned problem. But here technologies of constitutional and judicial interpretation come to the foreground. The Constitutional Court acts as if it extends the Constitution, specifying it and clarifying its content. Naturally, it cannot treat the text of the Constitution arbitrarily.

Thus, the constitutional foundations of the entrepreneurial activity are a specific legal notion reflecting requirements common for the legal system and specific forms of its realization through certain norms or groups of norms aiming at organizing and carrying out entrepreneurial activity. Constitutional foundations in this sense can be regarded as principles and other fundamentals and requirements set out by the constitutional legislation which are necessary to develop the state and legal system in the entrepreneurial sphere.

The consolidation of the constitutional foundations of the legal system is the urgent task of the science of constitutional law and branches of public and private law based upon it. Unfortunately, this problem has not been solved for many years in the Russian science though the constitutional features have been analysed. Meanwhile, if the constitutional laws exert an efficient influence upon the development of the legal system, then the stable legal order in the society will be more noticeable[26].



[1] V.V. Gladyshev. Konstitutsionnye osnovy vneshnei politiki sovetskogo gosudarstva [Constitutional Foundation of the Foreign Policy of the Soviet State]. Moscow, 1978.

[2] Finansovoe pravo: Uchebnik [Financial Law: Textbook]. Edited by prof. O.N. Gorbunova. Yurist Publishing House. Moscow, 1996, p. 30.

[3] E.A. Rovinsky. Osnovnye voprosy teorii sovetskogo finansovogo prava [Basic Questions of the Theory of the Soviet Financial Law]. Moscow, 1960.

[4] A.O. Minyaev. Konstitutsionnye osnovy ekologicheskogo prava // Avtoreferat dissertatsii na soiskanie stepeni kandidata yuridicheskikh nauk [Constitutional foundations of the environmental law // Thesis Abstract]. Moscow, 2003, p.15.

[5] I.A. Umnova. Konstitutsionnye osnovy sovremennogo rossiiskogo federalisma [Constitutional Foundations of Modern Russian Federalism]. Workbook. 2nd edition revised and corrected. Delo Publishing House. Moskow, 2000, p. 45; A.A. Belkin. Kategoria “osnova” v Konstitutsii SSSR [Category of “Foundation” in the USSR Constitution]. Herald of Pushkin Leningrad State University, No. 11, 1983, p. 77.

[6] Obshaya teoria gosudarstva i prava [General Theory of State and Law]. Academic course in 3 volumes. 2nd edition revised and corrected. Edited by professor M.N. Marchenko. V.3. Moscow, 2001, p. 287, pp. 292 – 293; E.S. Merkulov. Systema organov gosudarstvennoi vlasti sub’ektov Rossiiskoi Federatsii // Avtoreferat dissertatsii na soiskanie stepeni kandidata yuridicheskikh nauk [The System of the State Power of the RF // Thesis Abstract] (constitutional and legal study). Yekaterinburg, 2007, p. 23.

[7] Konstitutsionnoe zakonodatelstvo Rossii [Russian Constitutional Legislation]. Edited by Yu.A. Tikhomirov. Moscow, 1999, p. 22.

[8] Problemy nauki konstitutsionnogo prava [Problems of the Constitutional Law Science]. Monograph. USLA Publishing House. Yekaterinburg, 1998, pp. 32 – 33.

[9] Konstitutsionnoe zakonodatelstvo Rossii [Russian Constitutional Legislation]. Edited by Yu.A. Tikhomirov. Moscow. 1999, pp. 34 – 36.

[10] A.M. Vasilyev. Pravovye kategorii. metodologicheskie aspecty razrabotky systemy kategoriy teorii prava [Legal Cathegories. Methodological Aspects of Working out the System of Theory of Law]. Yuridicheskaya Literatura Publishing House. Moscow, 1976, p. 216.

[11] Obchaya teoriya gosudarstva i prava [General Theory of State and Law]. Academic cource. Vol 2. Teoriya prava [Theory of law]. Zertsalo Publishing House. Moscow, 1998, p. 23.

[12] V.A. Yusupov. Teoriya administrativnogo prava [Theory of Administrative Law]. Yuridicheskaya Literatura Publishing House. Moscow, 1985, p. 30.

[13] E.A. Lukasheva. Sotsialistichskoe pravosoznanie i zakonnost [Social Sence of Justice and Lawfulness]. Moscow. 1973, pp. 107 – 108.

[14] S.S. Alekseev. Problemy teorii prava [Problems of the Theory of Law]. Vol. 2. Sverdlovsk, 1973, p. 102.

[15] R.Z. Livshits, V.I. Nikitsky. Printsipy sovetskogo trudovogo prava [Principles of the Soviet Labor Law]. Sovetskoe gosudarstvo i pravo [Soviet State and Law]. 1974, No. 8.

[16] A.M. Vasilyev. Pravovye kategorii. metodologicheskie aspecty razrabotky systemy kategoriy teorii prava [Legal Cathegories. Methodological Aspects of Working out the System of Theory of Law]. Yuridicheskaya Literatura Publishing House. Moscow, 1976, p. 216.

[17] A.A. Bezuglov, S.A. Soldatov. Konstitutsionnoe pravo Rossii [Russian Constitutional Law] in 3 volumes. Vol. 1. Profobrazovanie Publishing House. Moscow, 2001, pp. 13 – 14.

[18] On the leading role of the constitutional law see, eg. S.S. Alekseev. Problemy teorii prava [Problems of the Theory of Law]. Lecture Course in 2 volumes. Vol. 1. Sverdlovsk, 1972, p. 142; Obschaiya teoriia prava [General Theory of Law]: Textbook. Edited by A.S. Pigolkin. 2nd edition. Moscow. Moscow Bauman State Technical University, 1996, p. 187; M.V. Baglai. Konstitutsionnoe pravo Rossiiskoi Federatsii [Constitutional Law of the Russian Federation]: Textbook. NORMA-INFRA•M Publishing House. Moscow, 1998, pp. 3 – 5; E.I. Kozlova, O.E. Kutafin. Konstitutsionnoe pravo Rossii [Constitutional Law of Russia]. Textbook, 3rd edition. Yurist Publishing House. Moscow, 2002, pp. 10 – 14; I.A. Kravets. Rossiiskaya Konstitutsiia i problemy eio realizatsii [Russian Constitution and the Problems of its Realization]. // Konstitutsionnoe pravo: vostochnoevropeiskoe obozreniie [Constitutional Law: East European Review]. 2003, No. 4, pp. 65 – 68; Konstitutsionnoe pravo sub’ektov Rossiiskoi Federatsii [Constitutional Law of the RF Subjects]. Gorodetsizdat. Moscow, 2002, p. 21, and others; Yu. K. Krasnov. Gosudarstvennoe pravo Rossii [Constitutional Law of Russia] Tutorial. Yurist Publishing House. Moscow. 2002, p. 17, and others.

[19] See: V.O. Luchin. Konstitutsionnye normy i pravootnosheniia [Constitutional Norms and Legal Relationships]. Moscow. 1997, pp. 66, 122.

[20] Obshaya teoriia gosudarstva i prava [General History of State and Law] in two volumes. / Edited by M. N. Marchenko. Moscow State Lomonosov University. Vol. 2. Teoriia prava [Theory of Law]. V.V. Borisov, N.L. Granat, Yu. I. Grevtsоv and others. Zertsalo Publishing House. Moscow, 1998, pp. 240 – 241.

[21] A.A. Bezuglov, S.A. Soldatov. Konstitutsionne pravo Rossii [Russian Constitutional Law] in 3 volumes. Vol. 1. Profobrazovanie Publishing House. Moscow, 2001, p. 14.

[22] Konstitutsionnoe Pravo Rossii [Constitutional Law of Russia]. Textbook. Edited by A.N. Kokotov and M.I. Kukushkin. Moscow. Yurist Publishing House. 2003, p. 25.

[23] Ibid., p. 25.

[24] Konstitutsionnoe Pravo Rossii [Constitutional Law of Russia]. Textbook. Edited by A.N. Kokotov and M.I. Kukushkin. Moscow. Yurist Publishing House. 2003, p. 25.

[25] About aims, values and principles in law, see, eg.: N. Nenovsky. Pravo i tsennosti [Law and Values]. Moscow. Progress Publishing House; V. Malko, K.V. Shundikov. Tseli i sredstva v prave i pravovoi politike [Aims and Means in Law and Legal Practice]. Saratov, Saratov State Law Academy, 2003; E.A. Lukasheva. Printsypy sotsialisticheskogo prava [Principles of the Socialist Law] // Sovetskoe gosudarstvo i pravo [Soviet State and Law]. 1970, No. 6; V.M. Semyonov. Spetsificheskiie Otraslevye printsipy sovetskogo grazhdanskogo protsessualnogo prava [Specific Sectoral principles of the Soviet Civil Procedural Law]. // Compilation of academic studies of the Sverdlovsk Institute of Law. Sverdlovsk, Issue 2. 1964.

[26] Konstitutsionnoe Zakonodatelstvo Rossii [Constitutional Legislation of Russia]. Edited by Yu. A.Tikhomirov, Moscow. 1999, p. 13.

Bibliography:

  1. A.A. Belkin. Kategoria “osnova” v Konstitutsii SSSR [Category of “Foundation” in the USSR Constitution]. Herald of Pushkin Leningrad State University, № 11, 1983, p. 77.
  2. A.A. Bezuglov, S.A. Soldatov. Konstitutsionne pravo Rossii [Russian Constitutional Law] in 3 volumes. Vol. 1. Profobrazovanie Publishing House. Moscow, 2001, p. 14.
  3. A.M. Vasilyev. Pravovye kategorii. metodologicheskie aspecty razrabotky systemy kategoriy teorii prava [Legal Cathegories. Methodological Aspects of Working out the System of Theory of Law]. Yuridicheskaya Literatura Publishing House. Moscow, 1976, p. 216.
  4. A.O. Minyaev. Konstitutsionnye osnovy ekologicheskogo prava // Avtoreferat dissertatsii na soiskanie stepeni kandidata yuridicheskikh nauk [Constitutional foundations of the environmental law // Thesis Abstract]. Moscow, 2003, p.15.
  5. E.A. Lukasheva. Printsypy sotsialisticheskogo prava [Principles of the Socialist Law] // Sovetskoe gosudarstvo i pravo [Soviet State and Law]. 1970, № 6.
  6. E.A. Lukasheva. Sotsialistichskoe pravosoznanie i zakonnost [Social Sence of Justice and Lawfulness]. Moscow. 1973, pp. 107 – 108.
  7. E.A. Rovinsky. Osnovnye voprosy teorii sovetskogo finansovogo prava [Basic Questions of the Theory of the Soviet Financial Law]. Moscow, 1960.
  8. E.I. Kozlova, O.E. Kutafin. Konstitutsionnoe pravo Rossii [Constitutional Law of Russia]. Textbook, 3rd edition. Yurist Publishing House. Moscow, 2002, pp. 10 – 14.
  9. E.S. Merkulov. Systema organov gosudarstvennoi vlasti sub’ektov Rossiiskoi Federatsii // Avtoreferat dissertatsii na soiskanie stepeni kandidata yuridicheskikh nauk [The System of the State Power of the RF // Thesis Abstract] (constitutional and legal study). Yekaterinburg, 2007, p. 23.
  10. Finansovoe pravo: Uchebnik [Financial Law: Textbook]. Edited by prof. O.N. Gorbunova. Yurist Publishing House. Moscow, 1996, p. 30.
  11. I.A. Kravets. Rossiiskaya Konstitutsiia i problemy eio realizatsii [Russian Constitution and the Problems of its Realization]. // Konstitutsionnoe pravo: vostochnoevropeiskoe obozreniie [Constitutional Law: East European Review]. 2003, № 4, pp. 65 – 68.
  12. I.A. Umnova. Konstitutsionnye osnovy sovremennogo rossiiskogo federalisma [Constitutional Foundations of Modern Russian Federalism]. Workbook. 2nd edition revised and corrected. Delo Publishing House. Moskow, 2000, p. 45.
  13. Konstitutsionnoe Pravo Rossii [Constitutional Law of Russia]. Textbook. Edited by A.N. Kokotov and M.I. Kukushkin. Moscow. Yurist Publishing House. 2003, p. 25.
  14. Konstitutsionnoe pravo sub’ektov Rossiiskoi Federatsii [Constitutional Law of the RF Subjects]. Gorodetsizdat. Moscow, 2002, p. 21.
  15. Konstitutsionnoe Zakonodatelstvo Rossii [Constitutional Legislation of Russia]. Edited by Yu. A.Tikhomirov, Moscow. 1999.
  16. M.V. Baglai. Konstitutsionnoe pravo Rossiiskoi Federatsii [Constitutional Law of the Russian Federation]: Textbook. NORMA-INFRA•M Publishing House. Moscow, 1998, pp. 3 – 5.
  17. N. Nenovsky. Pravo i tsennosti [Law and Values]. Moscow. Progress Publishing House; V. Malko, K.V. Shundikov. Tseli i sredstva v prave i pravovoi politike [Aims and Means in Law and Legal Practice]. Saratov, Saratov State Law Academy, 2003.
  18. Obschaiya teoriia prava [General Theory of Law]: Textbook. Edited by A.S. Pigolkin. 2nd edition. Moscow. Moscow Bauman State Technical University, 1996, p. 187.
  19. Obshaya teoria gosudarstva i prava [General Theory of State and Law]. Academic course in 3 volumes. 2nd edition revised and corrected. Edited by professor M.N. Marchenko. V.3. Moscow, 2001, p. 287, pp. 240 – 293.
  20. R.Z. Livshits, V.I. Nikitsky. Printsipy sovetskogo trudovogo prava [Principles of the Soviet Labor Law]. Sovetskoe gosudarstvo i pravo [Soviet State and Law]. 1974, № 8.
  21. S.S. Alekseev. Problemy teorii prava [Problems of the Theory of Law]. Vol. 2. Sverdlovsk, 1973, p. 102.
  22. S.S. Alekseev. Problemy teorii prava [Problems of the Theory of Law]. Lecture Course in 2 volumes. Vol. 1. Sverdlovsk, 1972, p. 142.
  23. V.A. Yusupov. Teoriya administrativnogo prava [Theory of Administrative Law]. Yuridicheskaya Literatura Publishing House. Moscow, 1985, p. 30.
  24. V.M. Semyonov. Spetsificheskiie Otraslevye printsipy sovetskogo grazhdanskogo protsessualnogo prava [Specific Sectoral principles of the Soviet Civil Procedural Law]. // Compilation of academic studies of the Sverdlovsk Institute of Law. Sverdlovsk, Issue 2. 1964.
  25. V.O. Luchin. Konstitutsionnye normy i pravootnosheniia [Constitutional Norms and Legal Relationships]. Moscow. 1997, pp. 66, 122.
  26. V.V. Gladyshev. Konstitutsionnye osnovy vneshnei politiki sovetskogo gosudarstva [Constitutional Foundation of the Foreign Policy of the Soviet State]. Moscow, 1978.
  27. Yu. K. Krasnov. Gosudarstvennoe pravo Rossii [Constitutional Law of Russia] Tutorial. Yurist Publishing House. Moscow. 2002, p. 17, and others.