The principle of justice in the construction of a special legal status (historical and theoretical aspect)

Schmidt Anna Valeryevna Lecturer; Department of Theory of State and Law; Saratov State Law Academy 410056, Russia, Saratov region, Saratov, Volskaya str., 1 aftoboto@mail.ru Other publications by this author

Introduction. The formation of the substantive side of the special legal status, i.e. the specific rights and obligations included in it, should be assessed from the point of view of compliance with certain fundamental general legal ideas.

Among these principles, the principle of justice seems to occupy a special place, which is often given the importance of the system-forming principle of law as such, for example: "only law and justice. After all, justice is, in fact, just because it embodies and expresses universally valid correctness, and this in its rationalized form means universal legality, i.e. the essence and beginning of law, the meaning of the legal principle of universal equality and freedom" ^{[6, p.28]}.

It should be noted that the principle of justice as a factor of special legal status can be considered in two forms.

Historically, the first of these forms is justice as a general philosophical worldview idea, bearing an ethical rather than a special legal character. At the same time, already in the first philosophical model of justice, belonging to Plato, it is no longer considered simply as a moral ideal, but as a specific condition determining the social position of people: "justice consists in everyone having their own and fulfilling their own too" ^{[7, p.243]}. In other words, justice is understood as the basis for granting people social statuses.

For the subsequent legal consolidation of justice as a principle, the Aristotelian division of justice into equalizing and distributive is important ^{[1, pp.150-151]}. Two parallel mechanisms – identification and differentiation – act respectively as two main ways of realizing justice at the level of legal status, more precisely at its two levels, general and special.

In modern philosophical thought, the direct influence of justice on social, and therefore on legal status, can be traced in the theory of J. Rawls, who, as is known, defines justice as the principle of a social structure in which the distribution of benefits takes place in such a way that it is, if possible, perceived as acceptable by all members of society, regardless of their status: "the principles of justice for the basic structure of society are the objects of the initial agreement. These are the principles that free and rational individuals pursuing their interests, in the initial position of equality, will accept as defining fundamental agreements about their association" ^{[9, p.25]}.

However, the question of the applicability of certain concepts of justice, having a socio-philosophical or ethical character, in the field of law is quite complex. Such scientists as S.S. Alekseev, A.A. Solovyova, G.O. Belanova, O.L. Tsybulevskaya, A.V. Konovalov, V.V. Bulgakov, A.Y. Arakelyan, S.A. Ivanova, V.A. Katomina, I.E. Vinnitsky, M.V. Konovalchuk and others have been studying this topic at various times.

It seems that the solution of the problem in the application and understanding of the nature of justice as a special concept is associated with the presence of the following points of discussion. Firstly, there is no more or less uniform idea of justice in this sense, as a result of which recourse to relevant theories may give rise to undesirable discrepancies in legal practice. Secondly, since these aspects of justice are not legally formalized, doubts arise about the validity of their application.

The second form of existence of the idea of justice in relation to law is expressed in the ways of its normative consolidation, which are characteristic of current legislation.

The nature of justice in the context of a special legal status. There are no sufficient grounds in the modern Russian legal system to unequivocally proclaim justice as a general legal principle. At the same time, separate variants of the formalization of the principles of justice take place in a number of branches of law: constitutional, criminal, civil law, procedural branches, etc.

The interpretation of the role of justice in the system of positive law is as ambiguous as in its philosophical and ethical aspects. For example, G. Kelsen tends to recognize justice as a subjective characteristic: "the question whether the law of a certain country or a certain decision of a certain court is fair depends on the idea of justice assumed by the responsible subject, and this idea is based on the emotional function of his consciousness" ^{[3, p.235]}.

An alternative understanding of the principle of justice in the context of legal regulation suggests that it is not only an individual psychological attitude, but above all a legal structure with a specific normative content.

The most productive interpretation of justice as proportionality seems to be, for example: "the principle of justice, if we consider it in the most general approximation, that is, precisely as a formal, immanent sociocultural invariant, is reduced to "proportionality" in retribution, exchange and distribution" ^{[8, p.136]}. This approach, among other things, is consistent with the criminal law definition of justice, Part 1 of Article 6 of the Criminal Code of the Russian Federation: "Punishment and other measures of a criminal nature applied to a person who has committed a crime must be fair, that is, correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator".

Although there is no official definition of justice in civil law, similar views are expressed in civil science; for example, A.Ya. Ryzhenkov suggests identifying justice with equivalence, the essence of which he reveals as follows: "Equivalence as a whole is characterized by two signs: the presence of two (or more) comparable elements and their mutual correspondence to each other" ^{[10, p.26]}. V.A. Vaypan mentions the same idea: "Socially fair business relations can be defined as a set of public market economic relations with the participation of business entities regarding its organization and management, circulation of goods, works, services and money arising on the basis of an agreement between the parties, equivalence and competition in the conditions of mandatory state regulation of entrepreneurial activity" ^{[2, pp.16-17]}.

An example of using this criterion can be paragraph 2 of the reasoning part of the Resolution of the Constitutional Court of the Russian Federation dated 04/21/2003 No.6-P "In the case of checking the constitutionality of the provisions of paragraphs 1 and 2 of Article 167 of the Civil Code of the Russian Federation in connection with complaints from citizens O.M. Marinicheva, A.V. Nemirovskaya, Z.A. Sklyanova, R.M. Sklyanova and V.M. Shiryaev", which states: "based on the general legal principle of justice, the protection of property rights and other property rights, as well as the rights and obligations of the parties to the contract should be carried out on the basis of proportionality and proportionality, so that a balance of rights and legitimate interests of all participants in civil turnover – owners, parties to the contract, third parties - is ensured" (Resolution of the Constitutional Court of the Russian Federation dated 04/21/2003 No. 6-P). Thus, justice as a requirement for a special legal status consists in ensuring that its elements are proportionate (appropriate, equivalent). However, in order to further decipher this principle, it is necessary to find out exactly what the special legal status should correspond to.

The specific content of the special legal status is formed by those rights and obligations of its bearers, which constitute their specificity in comparison with other subjects of law. In other words, a special legal status is formed by additions to the general legal status or exceptions from it. The main guideline in the process of law-making and law enforcement should be considered the so-called "common good" as a total analogue of the entire system of legal values.

Thus, P.L. Lichter notes: "The value catalog, which has received constitutional legitimization, must be adequately perceived and responsibly taken into account by the state, receiving its normative formalization not only in laws, but also in decisions of the highest judicial authorities. It is necessary to ensure that the general social interests in the field of human rights, territorial integrity, state independence, and national security are taken into account" ^{[4, p.83]}.

At the same time, the priority of the common good in any conflict situations of legal regulation is essentially not in doubt: "Recognition of the priority of the common good over private interest dominates the history of political thought from antiquity to the present day among both conservatives and liberals. There are disputes about what the common good consists of, as well as who and in what way has the right to determine what corresponds or does not correspond to it" ^{[5, p.56]}.

Any special legal status can be considered as a way of secondary distribution of social benefits. The property of secondariness is acquired here insofar as the primary model of endowing subjects of law with certain social benefits is already fixed in the general legal status, which is nothing more than an average set of values, the use of which is guaranteed for its bearer, which for individuals (citizens) is embodied, for example, in the system of individual rights and freedoms.

Accordingly, the very existence of special legal statuses indicates, first of all, that there is a need to adjust the general legal status in the part in which it provides a certain amount of social benefits to the subject.

It is quite obvious that such an adjustment can be carried out in two main directions: either by providing additional benefits, or by depriving those that are already included in the structure of the general legal status.

The principle of fairness in relation to special legal status means the following:

1) any specific rights and obligations included in it must be established on certain grounds;

2) the content of these rights and obligations must correspond to the nature of these grounds.

Thus, violations of justice in the construction of a special legal status can be of two kinds: either arbitrary (groundless) granting of rights or assignment of duties, or, if there are such grounds, excessive or insufficient nature of rights and duties.

The main aspects of the principle of justice. In addition, it seems important to distinguish two aspects of equity in this context: qualitative and quantitative.

The qualitative characteristic of justice is to ensure that the grounds of a special legal status, on the one hand, and its content, on the other, are homogeneous in their value nature; for example, that an act of positive social significance (merit) generates a positive legal assessment expressed in the provision of additional benefits (encouragement), and vice versa.

The quantitative measurement of justice assumes that the volume of social benefits or encumbrances inherent in a special legal status, at least with some degree of accuracy, reflected the similar significance of what served as the basis for this.

From a practical point of view, the fairness of a special legal status can be revealed at two levels: individual (law enforcement) or normative (law-making).

Law enforcement justice is sufficiently guaranteed at the legislative level and consists in ensuring that in the case when a special legal status is assigned to a person by an act of any competent authority, this decision is justified; similarly, any changes in the special legal status, as well as any dynamics of legal realization, for example, the exercise of rights and obligations by the bearer of this status, occurred in compliance with the conditions that are provided for them. However, in this sense, justice is as similar as possible to the principle of legality, which is reflected, for example, in paragraph 2 of Article 297 of the Criminal Procedure Code of the Russian Federation: "A sentence is recognized as lawful, justified and fair if it is decided in accordance with the requirements of this Code and is based on the correct application of criminal law."

The situation is more complicated with the fairness of the special legal status at the regulatory level. The problem lies in the fact that when consolidating certain rights and obligations of legal entities, there is no formal requirement that such innovations be subjected to a separate justification; therefore, checking the validity of the normative content of the special legal status itself presents some difficulty.

The main tool here can be a functional (teleological) interpretation of the relevant provisions of the law in order to establish exactly what social necessity underlay them and whether the interests of the holders of this status themselves were taken into account.

As for the procedural forms of maintaining justice, at the law enforcement level, its verification is carried out within the framework of such a universal institution as appeal; at the regulatory level, non-compliance with justice may become the basis for changing the relevant norms within the framework of the legislative process or through norm control.

Conclusion. Observance of legal justice is an important requirement for the implementation of special legal statuses. Its meaningful meaning is to maintain a balance of rights and interests based on proportionality and proportionality. For this purpose, in the process of law-making and law enforcement, the main guideline is used in the form of the "common good" as a total analogue of the entire system of legal values. The existence of special legal statuses makes it possible to adjust the general legal status in the part in which it provides a certain amount of social benefits to the subject. However, in some cases, this adjustment will violate the principle of fairness. In particular, such violations may be expressed in arbitrary (unjustified) granting of rights or duties, or in excessive or insufficient granting of rights and duties. In order to neutralize this, attention should be paid to the qualitative and quantitative aspects of justice, as well as to the individual and normative levels of its manifestation.