Once again about the Subject of Administrative Law and its Norms

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

The article was made with the information support of the Consultant Plus company 

The question of the subject of legal regulation is very important both from a doctrinal and practical point of view. This is especially true for those branches of law in respect of which there is a certain political and social "pressure".  Administrative law, just refers to these branches of law. In this regard, D.N. Bakhrah is right, who noted that "... the emergence of private enterprises, the development of Russian federalism, the formation of administrative proceedings, the emergence of municipal law, the sharp expansion of the application of administrative liability measures had a direct impact on the subject of administrative law" ^[1].

It must be remembered that the "fate" of administrative law – as an academic discipline – is quite complex. It is known that this academic discipline in the thirties of the last century was repeatedly excluded from the curriculum, and scientific research was carried out under the strict supervision of the relevant authorities, teachers of this discipline were often subjected to scientific obstruction, or even completely suspended from work. The reasons for this lie, among other things, in the definition of the subject of administrative law, as well as the role that the industry in question plays in the legal system, the life of the state, society, as well as an individual.

All this suggests that the question of the subject of administrative law in some historical periods of our history was not only legal, but to a greater extent political in nature. In the Soviet period of our history, only one monograph was published on the subject of administrative law (Kozlov Yu.M., 1967). And, it would seem, the question was closed on this, the subject of administrative law was defined, both scientifically and didactically. A large number of serious scientific studies concerning the problems of public service, management problems, administrative responsibility, administrative coercion, administrative process, norms of administrative law and administrative legal relations, the subject of this branch does not seem to have been specifically touched upon, or there was a statement of the fact that this branch regulates relations that develop in the sphere of state or public management. This approach was due to ideological reasons, ignoring which could lead to the historical and methodological connection of administrative law with police law and, accordingly, the connection of administrative activity with police activity. Until recently, the word "police" was a hostile, "bourgeois" word, and therefore the "police" part in the subject of administrative law was simply kept silent. Which, of course, impoverished this branch of law as an academic discipline and as a science.

In the early nineties, police law "returned", this was facilitated by liberal political transformations, the experience and scientific erudition of some representatives of the science of administrative law, whose works were used in the preparation of this work. It should be noted that the study of the branch of law begins with a general analysis of its subject and, what is very important in its disclosure, from the very beginning to identify the "key points", elements of the system of this branch of law. This will allow the person studying the subject of the branch of law to immediately pay attention to the main thing, it is better to understand and remember the normative and theoretical material. However, even at present, the focus in the subject of administrative law is on management problems, and the police aspect is overlooked, which of course does not contribute to the development of the theory of the relevant issue.

 The subject of administrative law is a rather diverse social relations that develop in particular in the field of public administration or in general in the field of public administration. These relations are horizontal and vertical in nature, these are the most diverse intra-management relations of interaction and coordination. It should be noted that these relations are not only internal, but also external, they are associated with the implementation of the functions of the relevant management structures. The relations connected with the civil service are quite large-scale, and of a very different nature, as well as relations conditioned by the rule-making activities of a subordinate nature. Thus, the management component occupies one of the key places in the subject of administrative law, public administration simply cannot exist without regulation of this industry.

However, the subject of administrative law should not be reduced to administrative relations only, despite the importance and scale of such relations, the specifics of social relations of the studied branch of law are much "richer", therefore, objectively there are protective, police relations. The police component of administrative law is very bright and informative, police law in the old days formed the basis for the formation of a holistic view of the subject of administrative law, however, unfortunately, this right has been forgotten for more than seventy years. However, objective reality forced us to turn to the component of the subject of administrative law, moreover, the term "police" itself appeared in the legislation. Note that the term "police" originally had a different semantic meaning than the one it has now.  Initially, police law is the law of cities, but over time the terms change their semantic meaning, this is due to a change in language, as well as the development of the regulatory framework in which the corresponding category is used. Police law is not the law of the Ministry of Internal Affairs or any other militarized structure, it is a whole system of norms and subjects functionally designed to ensure public safety, the protection of public order using coercive and positive legal means. Thus, only the organic "addition" of management law and police law makes it possible to form such a phenomenon as administrative law.

We emphasize that managerial relations sometimes closely overlap with police relations, in particular, we can talk about police management. Policing without a management component is devoid of meaning and functionality. In the course of management and policing, various kinds of conflicts and violations arise, including violations of the rights of citizens, as well as economic entities. In this regard, a system of norms and procedures is needed, which is designed to ensure the protection of citizens' rights. Proceeding from this, the institute of administrative justice appeared, within the framework of which judicial and non-judicial mechanisms for the protection and protection of citizens' rights were created. Thus, "inside" administrative law, we can talk about such an institution as "the law of administrative justice". Based on this position, a fairly coherent system of administrative law norms is being built, which create an integral legal education concerning all key aspects of social and managerial reality.                                                  

Within the system of administrative law, the norms of management law and the norms of police law are harmoniously combined, this is clearly seen in the example of the implementation of administrative and police coercion, administrative and police supervision. The police component within administrative law is sometimes called negative law, but one should not radically look at the phenomenon of police law, that is, identify it with the police state. Police law may well be an effective attribute of a democratic, legal and social state. This position is proved by the experience of state-building in a number of countries.  Administrative law is designed to improve the efficiency of the state in a variety of aspects, to create adequate forms and methods of administrative and police work, both in ordinary and in crisis situations.    

Disclosure of the subject of administrative law would be incomplete without studying the issue of the rule of law. The rule of law is the primary element of the branch of law, and therefore we will pay attention to some issues of the theory of norms of administrative law. The dogmatics of administrative law begins precisely with the study of legal norms, through the analysis of legal norms it is possible to substantiate the subject of legal regulation. In this regard, M.E. Trufanov, correctly, noted that "... the application of the norms of administrative law has its roots in the subject of the relevant branch of law" ^[2].

   In the theory of Soviet administrative law, special attention was paid to the study of legal norms, the definition of their sources, and the question of their codification was also raised. In the doctrine of administrative law, when studying the designated issue, it is necessary to pay attention to doctoral studies: Studenikina S.S. "The Soviet administrative-legal norm and its application" (M., 1949); and Koreneva A.P. "The application of the norms of Soviet administrative law" (L., 1971). These works have made a significant contribution to the study of this issue, as well as to the theory of administrative law in general.   

The question of the rule of law in general and the rule of administrative law, in particular, is quite conservative, today it is no longer possible to formulate a fundamentally new definition of the rule of law, despite this, there are author's definitions of this category, we also note that the question of the structure of the rule of law is also finally closed. Despite this, the study of the problem of administrative law norms may allow us to develop criteria for classifying these norms, formulate proposals on the effectiveness of their implementation, and also reconsider the question of their systematization. As S.S. Studenikin noted, "... the doctrine of the legal norm is the most important part of the theory of law" ^[3].

From the perspective of the current situation, certain experience in the development of administrative legislation, as well as the analysis of legal doctrine, it can be concluded that the norms of the relevant branch of law were systematized much later than the norms in criminal, civil, commercial law, etc. In imperial Russia, the norms of administrative law concerning the procedure for public service and the norms of police law underwent the greatest systematization. During the Soviet period of our history, the norms of administrative legislation were not systematized for a long time, although the issue was certainly raised, both at the national and republican levels, there was even talk of creating an Administrative Code at the republican level.

Nevertheless, the process of systematization (codification) of administrative law norms was quite difficult, due to the so-called "discussion" regarding the subject of this branch of law, in addition, the work on systematization of administrative law norms was hampered by political and ideological "views" regarding the subject of the relevant branch of law. As G.I. Petrov wrote at the time, "... the features of the codification of the norms of administrative law, in comparison with the codification of the norms of other branches of law, are very significant. Administrative law is a huge, complex, mobile branch of law, its codification will require a lot of time and effort" ^[4]. The process of codification of the norms of administrative law is permanent, the procedure for its implementation is generally clear. The creation of a single Administrative Code is impossible, and codification should be carried out in the areas of legal regulation and each "major" institution or subsystem of administrative law should have a "basic" law (code).

As A.E. Lunev noted some time ago, "... given the diversity and complexity of public relations regulated by the norms of administrative law, we believe that such an industry codification is the only possible and real one" ^[5]. This thesis was formulated a long time ago, it has passed the test of time, and it is along this path that the development of administrative legislation has gone.  The normative material of administrative legislation is decomposed into the law of management; police law, as well as the law of administrative justice.                                                                

       The norms of administrative law are a kind of legal norms in general. In this regard, let us pay attention to what is meant by the rule of law. As V.D. Filimonov noted, "... a rule of law is a generally binding rule of human behavior established by the state, which expresses a measure of social justice established in society and is aimed at organizing or protecting public relations through voluntary or compulsory fulfillment of the requirements contained therein" ^[6]. 

          V.I. Goyman-Chervonyuk notes that "... the norm of law is the initial element of a particle of law. A rule of law is generally binding formally defined prescriptions and principles that establish a measure of proper and possible behavior of participants in regulated relations and act as a criterion for the legality of such behavior" ^[7]. 

          S.S. Studenikin, from the position of his time, wrote that "... a legal norm is a rule of conduct that is established by the state to protect its interests, and the observance of which the state ensures with all the might of its coercive power" ^[8].

         The main emphasis in this definition is placed on the fact that the rule of law is aimed at protecting the interests of the state, today this concept does not correspond to the current development of legal policy. So, for example, in the Administrative Code of the Russian Federation, it is fixed that "... the tasks of legislation on administrative offenses are the protection of the individual, the protection of human and civil rights and freedoms, the protection of citizens' health" (Article 1). As you can see, the Administrative Code has put a person in the first place, his protection from administrative offenses. In this regard, it can be said that the norms of administrative law should be adopted in the interests of citizens, protection and provision of their property and non-property interests and benefits. Of course, public interest in administrative and legal regulation and the adoption of administrative law norms also has its place. The effect of the rule of administrative law, its observance cannot be ensured solely by coercive measures, and therefore the state uses various stimulating means that increase the effectiveness of the legal norm. Thus, "... when paying an administrative fine by a person brought to administrative responsibility for committing an administrative offense provided for in Chapter 12 of the Administrative Code, no later than twenty days from the date of the decision on the imposition of an administrative fine, an administrative fine may be paid in the amount of half of the amount of the administrative fine imposed" (Article 32.2). But it should be borne in mind that there are exceptions to this rule, this requirement does not apply to all articles of Chapter 12. However, it confirms the thesis that the enforcement of the rule of administrative law is carried out not only by coercive measures.

        Stimulating means of legal regulation are fixed by incentive norms, among these norms there are quite a lot of norms of administrative law. Incentive norms of administrative law are positive norms, however, an established obligation follows from the prescription of this norm. One can give an example of an incentive prescription, so according to the Federal Law of February 7, 2011 "About the police" "... the police have the right to encourage citizens who have assisted the police in performing other duties assigned to it" (Article 13). 

 As V.V. Savichev noted, "... the incentive norm of administrative law can be defined as an order establishing the right and duty of an official to provide a certain measure of encouragement, and for citizens – the right to demand the provision of encouragement for a useful behavior for society and the state. At the same time, this behavior option consists in the conscientious fulfillment of legal obligations or in achieving results that exceed the usual requirements associated with social activity, both individual citizens and collectives" ^[9].

Based on this, in the law "On the Police", it would be correct to fix that the police is obliged to encourage citizens who have assisted the police in performing other duties assigned to it   

        The rule of law is formal and binding, meanwhile it should be noted that the rule of law is far from the only regulator of public relations, although it has a state character. In the administrative and legal sphere, there are other regulators that are no less important from the point of view of regulating managerial and police legal relations. The rule of law comes from the State and is contained in a certain (established) source. As noted in the doctrine, "... the rule of law is a generally binding command expressed in the form of a state-imperious prescription and regulating public relations" ^[10].  

       As already noted, the norm of administrative law is a kind of legal norm, has all its features. As A.E. Lunev noted, "... the legal norms by which the state determines the functions, structure and forms of activity of public administration bodies, collectively form administrative and administrative procedural law" ^[11]. The thesis that law consists of a set of legal norms is generally accepted. At the same time, we point out that the norms of law differ from each other in the subject of their influence. The well-established point of view that the norms of administrative law regulate relations in the field of public and non-public administration dominates at the present time. A whole concept was formed for this position. Thus, in his research, A.P. Korenev noted that "... an administrative and legal norm is a rule of law regulating relations in the sphere of state and public administration, as well as managerial relations arising in other spheres of state activity" ^[12].                        

Regarding the norms of administrative law, Yu.M. Kozlov noted that "... administrative and legal norms are rules of conduct established by the state, the purpose of which is to regulate public relations that arise, change, and cease in the sphere of public administration" ^[13]. In this definition, a clear emphasis is placed on the fact that the norms of administrative law regulate managerial relations. Such a point of view prevails in the doctrine of administrative law. Thus, D.N. Bakhrah noted that "... the norms of administrative law are the rules established by the state governing the relations arising during the formation and activity of the executive power" ^[14].

This approach indicates a narrow understanding of the regulatory potential of the norms of administrative law. These norms regulate relations not only in the sphere of executive power, but also relations between economic entities, as well as citizens, etc. As K.S. Kaverina noted, "... the imperious implementation of the norms of administrative law is traditionally carried out within the framework of management activities. However, the goals and objectives of state (public) management should and can be effectively achieved (solved) at the level of non-governmental implementation of administrative and legal norms by citizens and organizations" ^[15].

 Today it is already obvious that the norms of administrative law regulate not only relations of a managerial nature, but also relations of a different order that are not related to the implementation of management. The norms of administrative law regulate relations in public places, relations related to ensuring public and personal safety. The norms of administrative law contain technical prescriptions of a very different nature, these prescriptions ensure the quality of goods and services, warn citizens about the danger of consumption (use), some goods (things).

All these and some other administrative relations do not fit into the sphere of public administration, this is due to the widespread administrative and legal reality. It should also be noted that the norms of administrative law regulate property relations, without the action of the norms of administrative law, the realization of property rights and other property rights is impossible. Without the application of the norms of administrative law, the legal realization of personal and family relations is impossible. All this indicates the breadth of the subject of administrative law and, accordingly, its norms.

In the subject of administrative law, attention was not paid to the fact that a system of administrative and legal means of protecting and protecting the rights of citizens has been formed in the legislation. The doctrine has developed the concept of administrative justice, the foreign experience of this institute has been studied, the theory of the law of complaint has been developed, despite this, in the subject of administrative law, as well as in its system, it is not indicated that the subject of this branch of law includes relations related to the protection and protection of the rights and freedoms of citizens (Institute of Administrative Justice).

The subject of administrative law is best characterized by the differentiation of legal norms according to certain criteria, one of the criteria for the classification of norms is the method of legal influence, based on this, these norms are divided into encouraging and prohibiting norms. The norms of administrative law containing prohibiting prescriptions occupy a special place in legal regulation, a legal prohibition is often associated with norms that provide for a measure of legal responsibility. Based on this, the prohibiting norm of administrative law is protective in nature. As N.N. Rybushkin noted, "... the prohibiting norms indicate the complete inadmissibility of this or that behavior within the framework of a regulated social relationship" ^[16].

In the subject of administrative law, there is a material and procedural part. Based on this, the norms of administrative law are divided into material norms and administrative procedural norms. The procedural norms of administrative law follow the material norms, and thereby ensure their implementation. A fairly vivid example of a logical combination of material and procedural norms of administrative law is the Administrative Code. This law enshrines material norms, in particular these norms of administrative law, determine the system of administrative penalties, the list of administrative offenses, and the implementation of these regulations is carried out through the proceedings on administrative offenses. Proceedings in cases of administrative offenses, as well as other administrative proceedings, are regulated by procedural norms, these norms consolidate guarantees of the legality of the implementation of material norms, determine the procedure for carrying out legally significant actions, etc.

Proceeding from its functionality, procedural norms of administrative law occupy an important place in the system of legal regulation, however, despite the importance of these norms, it is premature to talk about the need to create an independent branch of law as "administrative procedural law". Administrative law is a set of substantive and procedural norms, only their unity makes this branch of law effective.

The norms of administrative law are divided by construction. In this group, it is possible to distinguish definitive norms, norms of principles, norms of a declarative nature, as well as norms that regulate social relations through the action of other norms. Definitive norms or norms of definition are very important for understanding legal (administrative) terminology. It should be noted that the norms of definitions in the legislation are lacking, in particular, police practice requires such definitions as "public place", "public order", etc. The scope of application of administrative coercion needs to be defined as "administrative responsibility", etc. The norms of the principles fix the key prescriptions that the practice of administrative law regulation needs, the norms of the principles should take into account the experience of the past, the current reality, and also take into account the prospects for the operation of the norms of administrative law. Declarative norms of administrative law idealize objective reality, the corresponding norms define legal fictions, i.e. these norms fix what is not in real administrative reality. This is a technique of legal technique, with the help of which the law is filled with a humanistic and other meaning.

In the doctrine, the question of the structure of the rule of administrative law, as well as the forms of their implementation, has been developed quite meaningfully. Structurally, the norm of administrative law consists of a hypothesis, disposition and sanction. All three of these elements of the rule of administrative law in their entirety form it. The presence of three elements at once in the regulatory prescription does not occur, often the sanction is taken out of the regulatory norm of administrative law and is contained in another law. The forms of implementation of the norms of administrative law are quite archaic, the norm is implemented in compliance, execution, use and application.

As you can see, the norms of administrative law are quite diverse, and therefore they are contained in a variety of sources. Regarding the sources of administrative law, O.N. Ordina noted that they should be understood as "... officially documented forms of expression, consolidation and authorization of administrative legal norms used by the state, emanating from state bodies and officials or local self-government bodies of organizations or individuals engaged in administrative and public activities on the basis of relevant regulatory legal acts" ^[17].

Despite this approach, the main source of the norms of administrative law is the law, this normative legal act is designed to regulate the most important social relations that develop in the administrative and legal reality. It is the prescriptions of the law that can restrict the rights and freedoms of citizens, it is on the basis of the law that administrative coercion is applied. Taking into account the specifics of the subject of administrative law, its norms are contained in presidential decrees, government acts, regulatory legal acts of federal executive bodies. A significant layer of administrative law norms has been formed at the regional and local levels of public administration. A large number of norms of administrative law necessitates their systematization, as well as codification in the areas of legal regulation.