The Idea of a Social State as a Basis for the Legal Regulation of the Social Sphere in the Russian Federation

Iakovlev-Chernyshev Vasilii Aleksandrovich Graduate student; Department of Theory, History of State and Law; Sochi Branch of the All-Russian State University of Justice 354057, Russia, Krasnodar Territory, Sochi, Dagomysskaya str., 42 basil.yakovlev@mail.ru Other publications by this author

Social policy is the most important priority of the Russian state. It is no coincidence that the Constitution of the Russian Federation, in Part 1 of Article 7, establishes that Russia is a social state. At the same time, the problems of implementing the idea of a welfare state, the questions of how to regulate the social sphere and what ideological and ideological message underlies the consolidation of relevant legal norms have always been and remain quite topical.

The controversial issues in the field under study are both theoretical and practical in nature, therefore, in our opinion, it is fundamental to conduct scientific research in order to solve the following tasks:

1) identification of the essence of the idea of a social state, including the relationship between the concepts of "social state" and "rule of law";

2) consideration of the stages of formation and development of the welfare state, the specifics of the consolidation of this concept in legislation;

3) determining the place of social rights and freedoms of man and citizen in the hierarchy of constitutional values;

4) determining how we should interpret such evaluative concepts as "decent life", "free human development".

It seems that the solution of the above tasks will contribute to the justification of the main line of building a social state in Russia, taking into account its economic capabilities, as well as the needs of certain segments of the population.

In order to understand the nature of the welfare state and the reasons for its emergence, it is necessary, in our opinion, to emphasize the fact that the very idea of a State governed by the rule of law does not imply a social state. This is confirmed, for example, in the works of B. A. Kistyakovsky, a pre-revolutionary lawyer, who noted that human and civil rights (at that time related to individual freedom from state interference and political rights) "will be joined by a third category of rights – to positive services. These are actually socialist rights, which consist in the right to work, or in the right of every person to use land and tools of production, in the right of every person to develop all their abilities and talents, and, finally, in the right to satisfy all their urgent and inalienable needs. All these socialist rights can be combined in one general formula as the right to a decent human existence" ^{[1, p. 19]}. That is, according to the scientist, the socialist state was making a big step forward compared to the rule of law, which did not make any progressive, in some sense even revolutionary, leaps in this direction at that time. Although it must be said that B. A. Kistyakovsky did not see any significant problems in the relationship between the socialist and the rule of law.

In modern literature, the contradiction between the legal and social state is described in some detail, in particular, by Z. Sh. Gafurov.  According to the scientist, the rule of law and the social state stand in opposition to each other, and the antithesis "the rule of law – the social state" stands alongside such vivid examples as the antitheses "bourgeois state – socialist state", "liberal democratic - social democratic", etc. ^{[2, p. 9]} Moreover, the author believes that "the welfare state is a clear deviation from the logic of development and the nature of capitalism, which can only be explained to a small extent by concern for creating demand and consumers of mass products" ^{[2, p. 6]}. He also agrees with the conclusions of S. S. Alekseev that the definitions of the social state given by scientists are definitions of the socialist state, since the names are as close as possible, and the characteristics used are inherent in socialist statehood ^{[2, p. 6; 3, pp. 683-685]}. In our opinion, we can fully agree with this position, since it was in the socialist state and largely thanks to it that the right to work, labor protection and other social rights began to be consolidated, including at the international level, as evidenced by the history of the USSR ^{[4, p. 3-4]}.

Based on the above, it can be concluded that socialism and the socialist concept played the most active role in the formation of the welfare state as such.

If we trace the milestones of the consolidation of the concept and ideas of the welfare state at the Constitutional level, then we can proceed from an in-depth study of this issue conducted by V. E. Chirkin, who identified a number of stages in the development of the welfare state ^{[5, pp. 53-56]}.

Let's consider the stages highlighted by him in relation to how certain postulates of the welfare state are reflected in modern Russian legislation:

1. The idea of a social state, still far from being embodied, originates in the Constitution of Mexico of 1917, the Weimar Constitution of Germany of 1919 and the Constitution of Ireland of 1937. It is worth noting that these countries were going through a rather difficult period, since these constitutions "were adopted in the wake of a revolutionary upsurge." The Constitution of the RSFSR of 1918 also did not contain the term social state, instead the phrase "socialist state of workers and peasants" was used, which was considered the most correct and fair at that time.

2. One of the first provisions relating to the concept of the welfare state is the thesis on the social function of private property. It was first consolidated in the Weimar Constitution of 1919 and the Constitution of West Germany of 1949. Quite important and significant are the formulations in these constitutions that "private property should serve the public interest, the common good", partly it is also possible to note the idea of the possibility of agrarian reform, consisting in the alienation of land beyond the established maximum and its distribution among landless peasants, etc. Note that in the Constitution of the Russian Federation the idea of a social function There is no private property.

3. Another provision included in some constitutions is social partnership. Thus, in the Egyptian Constitution of 1971, social partnership is extended primarily to the relations of labor and capital, employees and employers. In Russia, social partnership is reflected not in the Constitution, but in section II of the Labor Code of the Russian Federation "Social Partnership at work" (Articles 23-55 of the Labor Code of the Russian Federation). At the same time, social partnership can be interpreted much more broadly than in the usual sense, including for the Russian doctrine. Thus, from the standpoint of constitutional law and broad interpretation, social partnership may include economic issues, fundamental issues of society, the procedure for the peaceful resolution of social conflicts, etc. However, as noted by the author, this side of the welfare state has not been developed in domestic and foreign constitutional law. 

4. The next postulate that needs to be highlighted is the socio–economic equality of individuals, communities, etc. In this case, we are talking rather not about the complete physical or economic equality of all, which is a utopia, but about providing initially equal starting socio-economic opportunities. Of course, there are certain exceptions in the form of the fact that foreigners cannot enter the civil service in the Russian Federation, or small indigenous peoples receive privileges in certain areas. The point is that in almost all fields of activity (with some exceptions, an example of which (far from all) above is given) everyone should have a formally equal opportunity to achieve results at the expense of their individual qualities. We agree with V. E. Chirkin's opinion that the content of this postulate is not covered only by the listed aspects, but the other sides have not yet been studied in sufficient depth.

5. Finally, the last postulate that we will consider in this study is social justice. This concept is not disclosed in detail in the Constitution of the Russian Federation, but it is present in federal laws on public associations and political parties. In many countries, the consumer basket, the minimum wage, medical care, education, housing, etc. are considered in relation to social justice.

Thus, the content of the idea of a welfare state is gradually developing and continues to be filled with new meanings, which is accompanied by the modernization of structures that have already received their consolidation.

The analysis of scientific ideas about the social state at the present stage has allowed us to identify the following approaches:

firstly, a number of researchers understand the social state as a democratic political regime, or the function of the state, which make it possible to ensure a decent (high) standard of living and reproduction of the population ^{[6, p. 26; 7, p. 105]};

Secondly, a group of scientists considers the welfare state from the point of view of the model, the concept of the state, which is aimed at achieving social justice ^{[8, p. 5; 9, p. 29]};

Thirdly, there is an opinion that a social state is an active, interventionist, regulatory state that intervenes in the sphere of socio-economic relations and relations in the field of culture, spiritual life, ultimately for general (public) purposes, although not always in practice equally observing (and by its position not able to equally respect the interests of all strata of society and individuals ^{[10, p. 28]};

Fourth, some researchers consider the Western European concept of a "welfare state based on social investments" as a model of the welfare state ^{[11, 12]}, which has three priority areas: human capital, the position of the family in the economy and employment relations ^{[11, p. 20]}.

Outlining far from all the ideas of modern scientists about the social state, we can nevertheless note the fact that the social state is presented in different ways by different authors. At the same time, it is obvious that, giving definitions of the welfare state, everyone is forced to decide on a number of key issues, including:

1. Should the state provide full-fledged maintenance to citizens who may not have a job (i.e. pay unemployment benefits, which would be enough for a decent standard of living)? Or, on the contrary, should it motivate citizens to go to work by paying relatively low benefits and gradually reducing them due to the risks of the emergence of many dependents who want to receive money without bringing any benefit to society and the state?

2. Should the state actively interfere in social policy, or should it act as a kind of passive participant who only monitors the observance of the rule of law and the observance of human and civil rights and freedoms?

3. How should social justice be manifested? Will it consist in providing formally equal initial starting opportunities, or will attempts be made to recreate the idea of universal equality of citizens?

4. Should the capitalist state adopt some features of the socialist state in the field of social policy, or is this not considered in principle?

There are other questions that, in our opinion, require an answer, but these are among the most important.

It is also important that in order to resolve issues in the field of social policy, it is necessary to determine the position regarding the place of social rights in the human rights system. The solution to this issue should lie in the plane of one of the three fundamental positions:

1) social rights are inalienable, fundamental human rights, no different from personal rights;

2) Social rights play a secondary role in the human rights system. The guarantee and protection of human and civil rights and freedoms are primarily carried out in the field of personal and political rights. As N. V. Varlamova notes, for example, "socio-economic rights are structured in the sense that they are always provided by the state and can be claimed only to the extent that it is established by law" ^{[13, p. 91]};

3) Social rights are of great importance in the human rights system, their role cannot be called secondary. However, the rule of law does not necessarily have to be a social state, these concepts cannot be identified, there is an initial, basic contradiction in their semantic load. Social rights are guaranteed and protected to the extent that they do not harm personal and political rights in the event of contradictions and competition of constitutional provisions resolved with the help of constitutional values.

The first position, which we also adhere to, is traditional for most constitutionalists ^{[14, p. 101]}. The second position can be deduced from the study, for example, of some pre-revolutionary (B. A. Kistyakovsky) and modern (N. V. Varlamov) literature. The possibility of such a thesis is also due to the fact that the content of the concept of "social state" in the Constitution of the Russian Federation is revealed in such a way that the state is not obliged to meet the vital needs of every person ^[15], as V. D. Zorkin pointed out in direct text in 2015. The third position may be based, for example, on the interpretation of Articles 1 and 7 of Chapter 1 of the Constitution of the Russian Federation. The point is that in Article 1, when listing the main characteristics of the Russian state, the social state is not mentioned. It appears only in Article 7 of the Constitution of the Russian Federation ^{[16, pp. 69-71]}. In turn, this raises questions related to the interpretation of whether the welfare state is of primary importance in the foundations of the constitutional system of Russia, or whether it is still secondary in the hierarchy of values enshrined in Chapter 1 of the Constitution of the Russian Federation.

The choice of one of the above options has not only theoretical, but also practical significance, since it contains an ideological and ideological message for strategic planning of the development of the social sphere at the legal, political, economic, and cultural level. The effectiveness of public administration in the field of social services should also be determined on this basis. The possibility of planning social policy, including for 20-25 years ahead, makes sense when determining the main line regarding what a welfare state in Russia should be.

At the same time, it is worth noting that special attention was paid to social issues during the introduction of constitutional amendments in 2020.

Thus, the following constitutional norms were introduced:

1) the new Article 67.1 of the Constitution of the Russian Federation in Part 4 states that children are the most important priority of state policy. This part also emphasizes that "the state, ensuring the priority of family education, assumes the responsibilities of parents in relation to children left without care";

2) paragraph "g" of Article 72 of the Constitution of the Russian Federation now states that the joint responsibility of the federal center and the subjects of the Federation is "to ensure the provision of affordable and high-quality medical care, the preservation and strengthening of public health...";

3) in the new paragraph "g1" of Article 72 of the Constitution of the Russian Federation, the protection of the family, motherhood, fatherhood and childhood is enshrined in the joint jurisdiction of Russia and its subjects... creating conditions for decent upbringing of children in the family, as well as for adult children to fulfill the duty of caring for their parents";

4) in Part 5-7 of Article 75 of the Constitution of the Russian Federation, it pays attention to labor rights, the pension system, indexation of social and pension payments, and other social support;

5) the new Article 75.1 of the Constitution of the Russian Federation states that Russia creates conditions for sustainable economic growth of the country and improving the welfare of citizens.

Thus, very important amendments were made to Chapter 3 of the Constitution of the Russian Federation. They largely filled in the previously existing gaps and resolved the situation described in 2015 by the Chairman of the Constitutional Court of the Russian Federation V. D. Zorkin, who noted that there may be cases that are completely at the mercy of the legislator and his discretion ^[15].

Nevertheless, V. D. Zorkin, who in 2008 pointed out that the provisions on the social state remain a constitutional ideal ^{[17, p. 49]}, in 2018 noted: "we are still far from implementing article 7 of the Constitution ... I regret to note that ... (key to the constitutional understanding of law) the concepts of "decent life" and "free human development" have not received ... not only a proper practical embodiment, but also a theoretical embodiment adequate to their significance" ^[18]. This was also mentioned in his article of 2023, dedicated to the 30th anniversary of the Constitution of the Russian Federation ^[19].

In our opinion, it is quite difficult to give an unambiguous definition of these concepts. For example, the concept of "decent life", as D. S. Velieva notes, scientists understand very inconsistently (some consider it an institution, others consider it a subjective right, etc.) ^{[20, p. 81]}. Therefore, it seems that for their more correct and adequate understanding, these evaluation categories should first be considered in a practical plane with subsequent theoretical analysis. Based on this, we propose to evaluate the concept of "decent life" according to the following formal criteria:

1. A person has sufficient means to purchase products necessary to meet the needs of his body. At the same time, in our opinion, we should proceed from the maximum values. For example, a nutritionist, candidate of medical Sciences Bobrovsky speaks about the need to consume from 50 to 150 grams of meat per day (published by RIA Novosti on 04/28/2022). Therefore, it should be assumed that one person should be able to consume at least 4.5 kg of meat per month. In general, in this case, it is necessary to proceed from the results of scientific research and the practical experience of highly qualified specialists in the field of healthcare. In our opinion, calculations of the same plan should be applied to other socially significant food necessities, fixed in the Decree of the Government of the Russian Federation No. 530 dated 07/15/2010 "On Approval of the Rules for Setting Maximum Permissible Retail Prices for Certain Types of Socially Significant food Necessities, a list of certain types of socially significant food Necessities, in particular in respect of which maximum permissible retail prices may be established, and a list of certain types of socially significant food products, for the purchase of a certain amount of which an economic entity engaged in trading activities is not allowed to pay remuneration."

2. A person must have an acceptable level of wages, that is, have sufficient funds to pay for utilities and at the same time maintain the ability to purchase necessary goods, receive services, etc. Based on real tariffs and prices, this level is easily identified for each subject of the Russian Federation. At the same time, the level of social benefits, for example, for pensioners should also allow them to provide a decent standard of living.

3. Every citizen should have a decent home. The concept of "decent housing" in this case is evaluative in nature, and it should be specified. By this term, we mean, for example, a large family of five has a 6-room apartment (one room for spouses, as well as a separate room for each child). The area of such an apartment for a large family should be about 150 m2. In this regard, it is interesting to see the Law of the Belgorod Region dated 03/15/2010 No. 331 "On ancestral estates in the Belgorod region", in Article 2 of which it is stated that "a ancestral estate is a land plot (land plots) with buildings, structures, and other property located on it, on which the management of a manor farm is organized." Unfortunately, similar or similar initiatives were rejected at the federal level and were not reflected in legislation, as evidenced, for example, by the Resolution of the State Duma of the Federal Assembly of the Russian Federation dated 04/12/2023 No. 3627-8 of the State Duma "On the draft Federal Law No. 87131-8 "On Family Estates and Family Settlements in the Russian Federation". Also, when talking about decent housing, we immediately mean the availability of gas supply, water supply, electricity, etc. In fact, in this case, we should talk about the fact that every citizen in need for himself and his family should find a commensurate home on acceptable terms. Thus, through the use of this term, we increase the guarantee and high level of social rights and freedoms of man and citizen, create conditions for increasing the demographic indicators of Russia and the material prosperity of citizens.

4. A person should have the opportunity for stable employment. We believe that in this case, in all cases, a citizen should have priority over foreign persons when applying for a job. The only exception can be cases when there are simply no citizens with the same high qualifications and level of knowledge in a certain high-tech industry. But such situations, in our opinion, can occur extremely rarely and will not have any negative effect on the guarantee of social rights and freedoms of Russian citizens.

5. Everyone should have guaranteed free medical care, legal assistance, and insurance guarantees.

6. Every citizen should have the opportunity to go on vacation within the country at least once a year. We believe that the state should work more actively in this direction and find conditions based on the interests of all participants in these legal relations that allow every Russian citizen to have the opportunity to relax in a certain corner of the country. Such a policy will allow: 1) to improve the quality of recreation for citizens; 2) to develop domestic tourism with greater efficiency; 3) to increase the incomes of participants offering services in the field of tourism; 4) to accelerate the pace of money supply movement within the country, increasing the level of economic development and enriching the state treasury.

We believe that this list is not exhaustive, but it could be the minimum that, from a formal point of view, would allow us to assess what should be meant by the concept of "decent life".

In the literature, one can find the opinion that "decent life" is a psychological category and cannot be provided by the state ^[21]. We agree that everyone has their own vision of what should be understood by a decent life, but the state is quite capable of highlighting some of the most fundamental, core elements that need to be supported. We also do not fully agree with K. S. Dorenko's position that the ideas of a welfare state can be implemented in a steadily developing liberal economy ^[22]. We believe that in this area a lot depends on state regulation of the activities of economic entities, so that the latter are engaged in the implementation of socially significant measures for a person, society and the state in a certain part. Such steps, in our opinion, are more typical for a mixed economy, which is better suited to solving the tasks facing the state within the framework of social policy.

Turning to the concept of "free human development", we note that it is much more difficult to bring it under any criteria. Therefore, it seems that the free development of a person should be understood as the possibility of his creative, spiritual development, the availability of an acceptable level of free time for recreation and cultural, recreational activities.

Thus, based on the results of the conducted research, the following main conclusions can be drawn:

1. It seems reasonable to believe that the "social state" and the "rule of law" are incompatible concepts, and the characteristics of the social state, highlighted by many scientists, coincide with the characteristics of the socialist state.

2. The first beginnings of the idea of a welfare state appeared in the legislation of a number of countries more than 100 years ago, they received significant development within the framework of the socialist system (primarily in the USSR). However, to date, not all provisions related to the social state have been reflected in the Constitution of the Russian Federation. Some of them are fixed, for example, in the Labor Code of the Russian Federation, the Federal Law on Public Associations, the Federal Law on Political Parties, etc.

3. In modern scientific literature, there are many different definitions of the concept of "social state". Their analysis allowed us to identify the presence of at least four approaches: 1) it is a democratic political regime, or a function of the state; 2) it is a concept of the state, which is aimed at achieving social justice; 3) it is an active, interventionist, regulatory state dealing with the sphere of socio-economic relations; 4) it is the concept of a "welfare state based on social investments."

4. In order to resolve issues in the field of social policy, it is necessary to determine the understanding of the place of social rights in the human rights system. The solution to this issue should lie in the plane of one of the three fundamental positions: 1) social rights are inalienable, inalienable in nature; 2) social rights occupy a secondary place in the system of human and civil rights and freedoms; 3) social rights play an important role, however, when there is a competition of constitutional values, they may fade into the background compared to personal and political rights and freedoms.

5. The 2020 Constitutional amendments significantly expanded and strengthened the guarantee of social rights, reducing the latitude of discretion of the legislator in this area. However, not all issues have been resolved. For example, the concept of "decent life" is evaluative in nature and is defined by scientists in different ways (some see it as an institution, others as a subjective right, etc.). It seems that due to the inability to give a single definition that suits everyone in a meaningful way, it is necessary to evaluate the practical implementation of this concept through formal criteria. These criteria will make it possible to establish whether a person has sufficient funds to purchase socially significant food products; an acceptable wage level that allows them to pay for utilities, as well as all other necessary goods and services; decent housing as a structural element of the concept of "decent life"; opportunities to have stable employment; opportunities to receive free medical and legal assistance, insurance guarantees; opportunities to go on vacation within the country at least once a year. The concept of "free human development", as well as the term "decent life", is also evaluative. It is much more difficult to bring it under any criteria. Therefore, it seems that the free development of a person should be understood as the possibility of his creative, spiritual development, the availability of an acceptable level of free time for recreation and cultural, recreational activities.

It seems that the above can become the basis for making adjustments to social legislation and strategic planning in the field of social policy, which will make it possible to more effectively implement the idea of a welfare state within the framework of legal regulation of the social sphere of Russia.