The social state in Russia and Belarus as a complex constitutional principle

Sherstneva Alena Vyacheslavovna ORCID: 0000-0002-9408-3489 Postgraduate student; Law Institute; South Ural State University 662501, Russia, Krasnoyarsk Territory, Sosnovoborsk, Yunosti str., 37 alena5883@mail.ru

Introduction

The characterization of the state as a social one, enshrined in the constitutions of the Russian Federation and the Republic of Belarus, corresponds to global trends. The principle of the welfare state acts as one of the foundations of the constitutional system, as well as the foundation for regulating social relations between the state and society. The modern period in these states is characterized by the development of public relations related to the implementation of the constitutional principle of the welfare state.

The purpose of the study is to define the concept and constitutional content of the principle of the social state based on the totality of theoretical knowledge, constitutional regulation and law enforcement practice of the constitutional courts of the Russian Federation and the Republic of Belarus.

The object of the study is the constitutional and legal relations that are formed in the process of constitutional regulation and implementation of the principle of the welfare state in the Russian Federation and the Republic of Belarus.

The subject of the study are the constitutional principles and norms that consolidate the principle of the welfare state in the Russian Federation and the Republic of Belarus; scientific works devoted to the principle of the welfare state, the problems of protecting social rights by constitutional control bodies; law enforcement practice of Constitutional Courts and Supreme Courts of the Russian Federation and the Republic of Belarus.

Such modern legal theorists and statesmen as S. S. Alekseev, S. A. Avakian, E. V. Aristov, M. V. Baglay, N. S. Bondar, T. A. Vasiliev, S. A. Glotov are engaged in the study of the constitutional principle of the social state, its correlation with the principles of justice, equality, decent life, as well as constitutional social rights, I. A. Dudko, A. A. Dzhagaryan, T. D. Zrazhevskaya, A. S. Kalmanova, A. T. Karasev, A. A. Klishas, N. V. Kolotova, A. G. Kuzmin, I. A. Ledyakh, E. A. Lukasheva, A.V. Malko, O. V. Martyshin, S. V. Narutto, V. V. Nevinsky, L. A. Nudnenko, E. E. Nikitina, A.M. Osavelyuk, O. V. Rodionova, S. B. Safina, V. N. Safonov, I. A. Umnova-Konyukhova, V. E. Chetvernin, V. E. Chirkin, T. Ya. Khabrieva, B. S. Ebzeev and others. Among the Belarusian constitutional scientists engaged in the study of issues of the social state, one can note G. A. Vasilevich, I. V. Veger, N. M. Kondratovich, P. P. Miklashevich, Ya. A. Pozhogo, I. I. Plyakhimovich, S. M. Sivets, I. G. Skorokhod and others.

The methodological basis of the research is based on a set of general philosophical (dialectical), general scientific (analysis, synthesis, logical, historical, systemic), as well as private scientific methods of scientific research: historical-legal, formal-legal (dogmatic), comparative-legal. The dialectical method was used when considering the welfare state in the Russian Federation and the Republic of Belarus as phenomena of legal reality. The formal legal method contributed to the definition of the concept of a social state, its essence, and the identification of the basic principles characteristic of the social state of the Russian Federation and the Republic of Belarus. The comparative legal method was used in the assessment of Russian and Belarusian legislation aimed at regulating and implementing the principle of the welfare state. This set of research methods made it possible to identify existing problems and suggest ways to solve them.

The concept of a social state

To date, the doctrine has not definitively defined the understanding of the welfare state. Scientists define the welfare state by pointing to certain categories: equality, social protection, social justice, dignity. At the same time, many of them agree that the welfare state is determined by its activities, the relationship between the state and the individual. The analysis of the definitions of this concept available in the scientific literature allows us to identify conceptual differences in the approach of scientists to the concept of the welfare state, which are due to its inconsistency in connection with the need to ensure the interests of both the state itself and various segments of the population. The analysis of the definitions of this concept available in the scientific literature makes it possible to identify conceptual differences in the approach of Russian and Belarusian scientists to the concept of a social state.

In the first approach (socialist), the welfare state is considered as a political and legal organization that implements a social function that ensures the redistribution of social benefits. For example, I. A. Umnova-Konyukhova emphasizes that a social state is a state that, at the constitutional level, is oriented towards the social nature of functioning, while it not only secures for each person his inalienable social rights and guarantees, but also creates a real mechanism for using them on the principles of social and legal responsibility of the state ^[1] S. G. Vasilevich understands by a social state such a state, the legal imperative of which is the creation of conditions for the comprehensive development of the individual, the realization of the full range of rights and freedoms, the proper fulfillment of constitutional duties, the provision of socio-economic assistance to citizens who, for objective reasons (age, disability, large families, etc.) are unable to compete on equal terms in the labor market with able-bodied people ^[2].

The second approach (liberal) is based on the principle of the individual's personal responsibility for providing for himself and his family. According to S. A. Avakian, a social state is considered to be a state that creates conditions for each person to ensure the necessary economic standard of living with their work; takes care of people's health; creates prerequisites for the free development of personality; takes on either full care or assistance in relation to those categories of citizens who are not able to They are able to live with dignity on their incomes ^[3]. B. S. Ebzeev argues that the welfare state is entrusted with some social tasks due to the economic and social development of society. At the same time, the welfare state does not abolish a person's personal responsibility for their own material well-being ^[4].

In the context of the search for a balance between public and individual responsibility, scientists seek to combine the first and second approaches in defining the welfare state. For example, I. I. Plyakhimovich notes that the essence of the welfare state is not limited to smoothing out the inequality of people, the state helps broad segments of the population, but such assistance is differentiated and provided to the extent necessary and fair (for example, free treatment in public health institutions). It is designed to mitigate the consequences of not only objective factors of inequality, but also subjective factors, when differences between people are quite justified and fair ^[5]. According to A. A. Klishas, the constitutional principle of the social state is manifested both in the positive obligations of the state towards the individual, expressed in measures of a public legal nature, the adoption of which is based on the principles of justice and equality, and in the functioning of the constitutional and legal mechanism, the implementation of which allows maintaining a balance of social interests ^[6].

At the same time, the development of a welfare state is the responsibility not only of the state, but of the whole society and the individual, and such an understanding of the concept should take root in the perception of citizens.

The approaches presented above to understanding the welfare state reflect its goals, proceed from a certain organization of the activities of public authorities in the exercise of social functions and the nature of the relationship between the state and the individual. However, they do not take into account that the welfare state simultaneously acts both as a model of the state and as a concept defining various aspects of its activities. With this in mind, the definition developed by O. V. Zabralova, who understands a multidimensional category by a social state, is the most justified.: It acts both as a model of the state, and as a concept reflecting the general orientation of state policy towards ensuring social protection of citizens, and as a model of public relations in a given state (in particular, relations between public authorities and a person) ^[7]. At the same time, this definition does not indicate the fundamental principles-the requirements for the implementation of a social function and the distribution of responsibility between the State and the individual on a reciprocal basis. It is obvious that in a social state there is a mutual responsibility of the state and the individual.

Taking into account the analysis, the result of the consideration of approaches to understanding the welfare state is its author's definition. According to the author, the social state acts as a multidimensional essential characteristic of the state, reflecting, firstly, the conceptual orientation of state policy to ensure social protection of citizens based on the principles of social equality, social justice, ensuring a decent standard of living, free social development, as well as other principles-requirements reflecting the social orientation of public authorities, and, Secondly, there is a model of relations between the state and man, functioning on the basis of mutual social and legal responsibility.

The principle of the welfare State as a public law narrative

V. S. Nazarova defines narrative jurisprudence as a special way of understanding law, proceeding from the fact that it is constructed and consists of stories presented in public in court proceedings ^[8]. V. L. Tolstykh notes that law is a narrative, since it describes events and actions that should take place, but at the moment Narratives are not part of reality ^[9]. The presented definitions of the narrative allow us to conclude that its basis is the narration of various aspects of the phenomenon, which make it possible to explore each of these aspects in their interaction.

The principle of the social state in the scientific literature is considered within the framework of the very concept of the social state or its content. At the same time, the principle of the social state reflects constitutional values, norms, principles and requirements, which together reproduce the essence of the phenomenon under consideration, which allows us to consider the principle of the social state from the perspective of a narrative approach and a composite principle.

I. A. Umnova-Konyukhova proposed to perceive the principle of the welfare state as a public legal narrative, which is understood as an information and normative basic unit structuring a certain range of constitutional values, principles and norms into a single constitutionally defined idea ^[10]. The principle of the social state by its nature refers specifically to such constitutional, public law narratives that reflect the ideological and objective basis of the social system, the concept of the social state, its concept, goals and objectives; social functions of the state and law; social values and objects of social protection, as well as such a fundamental institution of the industry as the principles of social rights ^[11].

The constitutional principle of the welfare State is of fundamental importance to the State. Its content reflects the values, ideas, and goals that the state strives to achieve. For example, in accordance with the constitutions of the Russian Federation and the Republic of Belarus, a person, his rights, freedoms, work of citizens, children, the disabled, the elderly are the highest value of society and the welfare state. Among the goals of the Russian and Belarusian welfare state, one can note the creation of conditions that ensure a decent standard of living and free social development.

The disunity of existing concepts of the welfare state, its essence, criteria, principles, analysis of the relationship between judicial practice and legislation, interpretation of the principle of the welfare state by the courts, development of legal positions for further implementation by legislative and executive bodies using a narrative approach makes it possible to generalize and identify the components of the principle of the welfare state as a public legal narrative. In this connection, it seems possible to agree with the point of view of I. A. Umnova-Konyukhova and attribute the principle of the welfare state to the constitutional narrative.

Based on the above, the principle of the welfare state can be defined as a complex basic constitutional principle – a legal narrative containing specific principles-requirements for the social nature of the state system and predetermining the system of social human rights and their guarantees, as well as the social responsibility of subjects of public relations.

The constitutional content of the principle of the social state as a legal narrative includes:

– the constitutional concept and the constitutional model of the welfare state resulting from it,

– constitutional principles-requirements for a social state,

– Constitutional social rights and their guarantees,

– social responsibility of subjects of public law relations.

The constitutional content of the principle of the welfare State in the Russian Federation and the Republic of Belarus

The Constitution of the Russian Federation (Article 7) defines the welfare state by means of criteria: the creation of conditions ensuring a decent life and free human development. Article 75.1 specifies the criteria of the welfare state: creating conditions for improving the well-being of citizens, mutual trust between society and the state, guaranteeing respect for the person at work, ensuring social partnership, social solidarity. In this construction, the welfare of citizens is made dependent on sustainable economic and political development.

The Constitution of the Republic of Belarus contains a different construction, Article 1 indicates the social character of the state. This article does not reflect the specific characteristics of the welfare state, but its main content is disclosed in a number of other articles of the Belarusian basic law. In particular, Article 2 establishes the responsibility of the State to the citizen for creating conditions for the free and decent development of the individual. Everyone has the right to a decent standard of living, including adequate food, clothing, housing and continuous improvement of the necessary conditions (art. 21). The citizen, in turn, is responsible to the state for fulfilling the duties assigned to him. The social nature of the state is reflected in Part 5 of Article 13 of the Constitution, according to which the state is called upon to regulate economic activity in the interests of man and society, to ensure the direction and coordination of public and private economic activities for social purposes

The Constitution of the Russian Federation has laid the basis for the concept of a social state only such characteristics as a decent life and free human development, whereas the Belarusian Constitution specifies the concept of a decent standard of living, indicating its components: adequate food, clothing, housing and constant improvement of the necessary conditions for this. At the same time, the Republic of Belarus directs and coordinates public and private economic activities for social purposes.

The concept of a welfare state for the Russian Federation is based on a combination of features of the continental and liberal models. The main postulates are: man is the highest value; state policy is aimed at creating conditions that ensure a decent existence and free human development; mutual social and legal responsibility of the state, society and the individual; social partnership.

The concept of the welfare state of the Republic of Belarus contains features of socialist, continental and liberal models. The main characteristics of the Belarusian welfare state are: a person is the highest value for the state, a strong social policy and a socially oriented economy, social security, the responsibility of the state to the individual and the individual to the state.

At the same time, the models of the welfare state in the Russian Federation and the Republic of Belarus take into account historical features and are conditioned by the specifics of the state legal system, the values and principles underlying it. The analyzed countries are characterized by the idea of paternalism, adherence to traditions, and the priority of the public over the private. The Russian Federation and the Republic of Belarus are forming and developing their own models of the welfare state, which combine the characteristics of generally recognized models and features of national identity.

It should be noted that these criteria do not fully characterize the principle of the welfare state. They can also include principles-requirements.

The problem of the constitutional principles of the welfare state in the scientific literature remains open due to the lack of unity of views among Russian and Belarusian scientists.

Professor V. E. Chirkin singled out decent life, free human development, the social function of private property, social partnership, socio-economic equality, social justice and social responsibility among the principles or indicators of the welfare state ^[12].

E.A. Lukasheva reveals the signs of a social state through its principles – human dignity, justice, responsibility, overcoming inequality in order to eliminate sharp discrepancies in the material statuses of individuals ^[13].

G. A. Vasilevich defines as signs of a social state the provision of a decent existence for a person, responsibility for the existence of society and the individual's responsibility to society as a whole ^[14].

Analyzing the consolidation of the principle of the welfare state in the Constitution of the Russian Federation, I. A. Umnova-Konyukhova justifiably draws attention to the limitations of their system and the incompleteness of regulation. In particular, the scientist writes that it is not enough to consolidate in Article 7 of the Constitution of the Russian Federation only two basic principles-criteria: the creation by the state of conditions ensuring a decent life and free human development (Part 1), which is confirmed by judicial practice. In particular, we are talking about the basic principles of social justice, social solidarity, social unity, social and legal responsibility, well-being (welfare), a decent standard of living, the elimination of social inequality and a number of others, repeatedly formulated and applied by the Constitutional Court of the Russian Federation as constitutional principles of the welfare state ^{[10, pp.5-6]}. A similar approach is typical for the decisions of the Supreme Court of the Republic of Belarus. The principles-requirements also include the protection of social rights and freedoms, equality in social rights, equal opportunities in social protection, social support for vulnerable segments of the population, support for family and childhood, wage fairness, equal remuneration for work of equal value without any distinction, the possibility of judicial protection of social rights, proportionality restrictions on social rights and freedoms, respect for the person at work and work itself, smoothing social inequality, preventing social contradictions, reducing social tension, achieving human and social welfare, increasing stability, ensuring equal and fair opportunities for personal development, and others.

Based on the above, it can be stated that the system of constitutional principles of the welfare state in Russia and the Republic of Belarus does not have an unambiguous structure, which allows us to identify common principles that coincide, which include a decent standard of living, free development, social equality, social justice, and social responsibility. Determining the criteria for a decent life in the States under consideration causes difficulties. In the Russian Federation, the level of decent living is related to the concepts of minimum wage and the subsistence minimum. In the Republic of Belarus – to meet human needs for food, clothing, and housing.

The role of the Constitutional Courts of the Russian Federation and the Republic of Belarus in the development of the concept of a social state

The constitutional courts of the Russian Federation and the Republic of Belarus play a special role in the development of the modern concept of the social state, formulate legal positions for the realization of social rights, determine the compliance of normative provisions of laws with Constitutions, identify the constitutional and legal meaning of legal norms or establish the presence of a gap, a conflict in legal regulation, thereby guiding the legislator in his law-making activities. It is the constitutional courts that ensure a uniform understanding of the principle of the social state and its proper implementation, they clarify the normative content of the relevant principles, adjust social legislation and established law enforcement practice in the field of regulation of social rights, they interpret the normative content of institutions of social legislation, and also take into account modern demands of society when regulating social rights.

For example, according to the position of the Constitutional Court of the Russian Federation, the goals of the policy of the Russian Federation as a social state proclaimed in the Constitution of the Russian Federation (art. 7, Part 1) determine the duty of the state to take care of the welfare of citizens, their social security, and if, due to age, health status, or other reasons beyond its control, a person cannot work and he does not have income to ensure a living wage for himself and his family, he has the right to count on receiving appropriate assistance, material support from the state and society (Resolution of the Constitutional Court of the Russian Federation dated 12/16/1997 No. 20-P).

The Constitutional Court of the Republic of Belarus has formulated the following position regarding the purpose of the welfare state: The Constitution proclaims the goal of the policy of the Republic of Belarus as a social state, its responsibility to the citizen for creating conditions for free and decent personal development, the right of everyone to a decent standard of living, including adequate food, clothing, housing and continuous improvement of the conditions necessary for this (Decision of the Constitutional Court of the Republic of Belarus dated 03/23/2010 No. R-432/2010); also noted that the constitutional principle of the social state implies the obligation of the state to ensure the growth of the welfare of citizens, to create conditions for improving their lives, meeting material and spiritual needs, to promote the development of their economic activity, overcoming dependent attitudes in the social sphere (Decision of the Constitutional Court of the Republic of Belarus dated 23.01.2018 No. R-1120/2018 ).

In the process of studying the practice of abstract and concrete norm control by the constitutional courts of the Russian Federation and the Republic of Belarus, similarities and differences in the interpretation and application of the principle of the welfare state were revealed.

The commonality of approaches is seen in the application of the principle of the social state in conjunction with such principles as free development, decent life, social justice, social equality, mutual responsibility of the state and the individual, maintaining citizens' trust in the law and state actions, balance of public and private interests and others, including concretizing their principles of law (non-discrimination in social protection, fair and equal remuneration for work, support for socially vulnerable segments of the population, equal opportunity for judicial protection of social rights, proportionality of restrictions on social rights, respect for the person of work and work itself, etc.). Unlike the Russian Federation in the Republic of Belarus, the concept of a social state is based on the unity of the rights and obligations of the state and the person, more the strict requirements of a socially oriented economy.

The influence of the Constitutional Courts of the Russian Federation and the Republic of Belarus on the practice of the Supreme Courts in implementing the principle of the welfare state and protecting social human rights has common features and differences. The common features reflect the coinciding approaches of the Constitutional Courts in using the principles of the welfare state, equality, and maintaining citizens' trust in the actions of the state. At the same time, the Supreme Court of the Russian Federation, unlike the Supreme Court of the Republic of Belarus, is characterized by a broader application of the principle of social justice in justifying decisions.

Conclusions

The analysis made it possible to achieve the main goal of the study. The author's definition of a social state is proposed, which means a multidimensional essential characteristic of the state, reflecting the conceptual orientation of state policy to ensure social protection of citizens based on the principles of social equality, social justice, ensuring a decent standard of living, free social development, as well as other principles-requirements reflecting the social orientation of public authority, and a model of relations between the state and a person functioning on the basis of mutual social and legal responsibility.

The principle of the social state is understood as a complex basic constitutional principle – a legal narrative containing specific principles-requirements for the social nature of the state system and predetermining the system of social human rights and their guarantees, as well as the social responsibility of subjects of public relations.

Among the constitutional principles of the welfare state in Russia and the Republic of Belarus, there are common principles that coincide, which include a decent standard of living, free development, social equality, social justice, and social responsibility. Determining the criteria for a decent life in the States under consideration causes difficulties. In the Russian Federation, the level of decent living is linked to the concepts of minimum wage and the subsistence minimum. In the Republic of Belarus – to meet human needs in food, clothing, and housing.

The Constitutional courts of the Russian Federation and the Republic of Belarus formulate a uniform understanding of the principle of the social state and its proper implementation, they clarify the normative content of the relevant principles, adjust social legislation and established law enforcement practice, they interpret the normative content of institutions of social legislation, and also take into account modern demands of society when regulating social rights.