Symptom of "Memorial"

On October 10, I read in newspapers about the close closure of the Memorial. The Ministry of Justice of the Russian Federation appealed to the Supreme Court with a request for the liquidation of the company. Assuming that the two branches of the authorities in our country, although unconscious, are also inseparable, I involuntarily thought that everything has already been decided and we see on the surface only deceptive signs of a developing process, which is actually already completed. Under the impression of what I read, I recorded on my Facebook:

“Speaking is quite simple, then the situation with the“ memorial ”is bad. Here the law and instructions were faced with the right. Law is not equal to the law. The court may, by law and by the lawsuit of the Ministry of Justice, ban the “memorial”. And this will be a legal anti -law action. ”

In other words, I assumed that the case could be described by the words of V.I. Lenin: "Formally correct, but essentially mockery." Since the distinction between the right and law is very important, it is rarely carried out with proper purity, the actions of state institutions that are guarded by the law against a public organization that protects the law seemed to be highly successful (albeit outrageous) case in order to once again draw attention to this circumstance: the state could include us to obey, not convincing us of the lawfulness of our actions. Our ideas about the law are not exhausted by the current laws and other legal constructions. Law enforcement officers do not always protect the right, laws may also contradict the right.

On October 11, the “Memorial” website appeared on the Memorial Human Rights Center and the Russian Memorial Society : “In fact, the Ministry of Justice filed a lawsuit in the Supreme Court of the Russian Federation on the liquidation of the Memorial human rights center, and the other organization-the Russian historical, educational and human rights company Memorial”. The claims of the Ministry of Justice are called “completely groundless”: there are still no indications of the norm of the law, in accordance with which liquidation should occur, still, and the constitutional right of citizens to unite is violated, the statement said. If so (the response of the Ministry of Justice may follow in the near future), then it turns out that the mockery is essentially not even accompanied by formal correctness. This makes the situation less interesting, although no less outrageous. However, the general problem, which somehow arises wherever citizens have to argue with the state, remains.

To a greater or lesser extent, a citizen would like to see his state precisely legal, but the idea that an official is a speaking law belongs to another era.

Why is it possible to talk about anti -legal legal action? Are the fundamental rights (and in this case we can point out chapter 2 (Articles 17, 1-2; 18; 19, 2; 21, 1; 28, etc.) of the Constitution of the Russian Federation) not recorded in the basic law? Does it not turn out that the anti -law is always illegal, which, in fact, is evidenced by various kinds of claims and trials against state institutions? In this case, it is enough to indicate violations of the law and/or the legal procedure in order to straighten out the situation. This is not easy, often does not lead to success, but only this can be the right way in the rule of law. The question of whether the state is entirely, or at least partially unlawful or anti -law, is not put and may seem completely inappropriate. However, the matter, of course, is not so simple. After all, someone should declare, for example, the law or the application of the law in this particular case by unconstitutional? In a dispute between a citizen or a group of citizens insisting on their rights and state institutions, someone must be a judge and, in addition to having the ability to force the losing side to fulfill the court decision. But if the court (not formally, but in fact) is the state institution acting in accordance with, and not contrary to other institutions of the state, these institutions will never be lost. This is a trivial observation, but it cannot be ignored, because the call (if it had been heard) to make the courts (more) would not be clear to whom independent would be addressed to whom. Of course, there is the possibility of appeal to international courts, but its effectiveness depends on the readiness of the state to recognize the decisions of these latter. But we will not climb so far. We will ask better a question that has, of course, purely academic interest: is criticism of the constitution itself possible? Suppose that we would like to not only change this or that law or practice of its application as not enough corresponding to the letter or the spirit of the Constitution. In this case, it is in it that we find the last support. And if not in it, then where and in what? It can be criticized and promoted to improve it, based on the principles of law, which are better or worse reflected in its articles. There is a widespread point of view of legal positivism: everything is equal to the law, and the constitution is the basic law, but it is the law, only therefore we refer to it. However, there is another point of view according to which we rely on the Constitution not only because it is the law, but also because it, as the main law, embodies those principles of law, including the basic rights and freedoms of a citizen who are not a purely national invention, but raise legal states around the world. The appeal to rights and freedoms is not a whim of a citizen, but the result of the fact that he is aware of himself in the supra -state and unprocessed system of law. From this position, he is not on behalf of himself as an individual and on behalf of his social group, but on behalf of universal law, also embodied in the national constitution, he makes claims to his government, legislative and judicial power. The constitution is not just a document adopted in historical conditions. It was written with an eye on the history of law and its current state, taking into account the constitutions of those states, the likening of which is an important step in international relations. You cannot imagine the complete arbitrariness of the Constitution of any modern country. Otherwise, it is not clear why the definitions of rights and freedoms are wandering from the document to the document. This is precisely the result of modern legal thought. It is impossible to write a constitution with the recognition of racial segregation, slavery and much more in the same way, even if a considerable part of the citizens of the country will adhere to such views: the constitution is addressed outside, to those who evaluate the nature of this state, its suitability for contracts, etc., but the constitution is addressed simultaneously and inside, being not so much a direct expressive of the will of the empirically fixed majority, but as if by the law to the law. The growth, formulated by those who have learned to speak the language of law, for those who still master them in the future. Thus, the one who appeals to the constitution does something more than simply reminds of the historically established body of texts. Anyone who criticizes the Constitution may mean precisely this universal language of law, to speak in which not only permits, but also obliges the basic law of his country.

Such a presentation looks beautiful, like any appeal to the right in conditions, more leading to the thought of the Cold Civil War, about the right of the strong, about Fortune, the impudence as a valor (Machiavelli). But there is still no other language, except for the universal language of law. Anyone who was subdued by force, said Hobbes, did not stop war with his winner, but only suspended military operations, he will try to take his own at every opportunity. Only the right and the contract lead to the world (contracts must be observed, and their guarantor is sovereign). Therefore, the understanding of the supra -state and even the supranational nature of law is not only lost, leaves public life in times that have cynical realism, but also returns with inevitably when this realism leads to worse dead ends. But returns - in what form?

We are again forced to raise the question of who will interpret the right, who can declare legal unlawful, faced with the joint system of state institutions. Let's just say: this is an alarming, bad situation. To a greater or lesser extent, a citizen would like to see his state precisely legal, but the idea that an official is a speaking law belongs to another era.

The executive branch needs that its actions do not dispute. Effective management technique can be built on the fact that a citizen knows less than an official and should obey, not reason. This is the principle of rational policy. The legislator can entirely stand on the side of the official, the same applies to ships. This lack of disagreements in institutes means that communication regarding law and unlawful becomes purely and exclusively communication, the passing state institutions. In other words, a state that refuses to distinguish between law and law is faced with the fact that its laws can be publicly declared unlawful, and it itself is illegitimate. This kind of development in the past century was performed several times and rarely when it was without great shocks and tragic consequences. Neither remind of them, nor warn about dangers, however, in our task.