Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Vol. 40, Nº 72 (2022), 774-784
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/09/2021 Aceptado el 19/12/2021
Eectiveness of legislation and
implementation of the rule of law
DOI: https://doi.org/10.46398/cuestpol.4072.46
Gulnaz Eldarovna Adygezalova *
Sergey Alekseevich Zhinkin **
Irina Stanislavovna Kich ***
Lyudmila Vasilyevna Butko ****
Lyudmila Petrovna Vysotskaya *****
Abstract
The article aims to consider the relevant aspects of such a
multifaceted phenomenon as eciency in state activities and
legal systems. In modern Russia, not only the eectiveness of
laws, but also the eectiveness of state activities in implementing
the rule of law, gains importance. To solve the tasks posed, they
used the following methods: logical (description, classication),
structural-system, formal-dogmatic and comparative. As a result
of the study, it has been revealed that the eectiveness of legislation and the
eectiveness of activities to implement the rule of law are inextricably linked
to the social component, that is, to meet public needs and interests. It is
concluded that the eectiveness of Russian legislation is related not only to
the achievement of the objectives set by the legislator, the fulllment of the
legislative objectives and the results obtained, but also to the fulllment of
the laws with the needs of social development and public interests. Eective
implementation of the rule of law also has a prominent social component.
The abstract principles of the rule of law must be full of real social content.
Keywords: legal eciency; realization of the rule of law; legal principles;
social reality; public interest.
* Kuban State University, Krasnodar, Russia. ORCID ID: https://orcid.org/0000-0003-3682-2121
** Kuban State University, Krasnodar, Russia. ORCID ID: https://orcid.org/0000-0002-0291-4469
*** Kuban State University, Krasnodar, Russia. ORCID ID: https://orcid.org/0000-0003-2995-2163
**** Kuban State University, Krasnodar, Russia. ORCID ID: https://orcid.org/0000-0002-7080-398X
***** Kuban State University, Krasnodar, Russia. ORCID ID: https://orcid.org/0000-0002-1824-1959
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CUESTIONES POLÍTICAS
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Efectividad de la legislación e implementación del
estado de derecho
Resumen
El artículo tiene como objetivo considerar los aspectos relevantes
de un fenómeno tan multifacético como la eciencia en las actividades
estatales y los sistemas legales. En la Rusia moderna, gana importancia
no solo la ecacia de las leyes, sino también la ecacia de las actividades
estatales en la implementación del estado de derecho. Para resolver las
tareas planteadas, se utilizaron los siguientes métodos: lógico (descripción,
clasicación), sistema-estructural, formal-dogmático y comparativo. Como
resultado del estudio, se ha revelado que la efectividad de la legislación y la
efectividad de las actividades para implementar el estado de derecho están
indisolublemente vinculadas con el componente social, es decir, satisfacer
las necesidades e intereses públicos. Se concluye que, la efectividad de
la legislación rusa está relacionada no solo con el logro de los objetivos
establecidos por el legislador, el cumplimiento de los objetivos legislativos
y los resultados obtenidos, sino también, con el cumplimiento de las
leyes con las necesidades del desarrollo social y los intereses públicos.
La implementación efectiva del estado de derecho también tiene un
componente social destacado. Los principios abstractos del estado de
derecho deben estar llenos de contenido social real.
Palabras clave: eciencia legal; realización del estado de derecho;
principios juridicos; realidad social; interes público.
Introduction
The eectiveness of legislation, its regulatory norms and institutions
has become the research subject in Russian science, including the scientic
works of V.I. Nikitinskii (1971), L.S. Yavich, A.S. Pashkova (1970), V.V.
Lapaeva (2011) and other renowned scholars. The issues related to the
eective functioning of civil society and the rule of law have also been
considered in Russian legal science. The theory of the rule of law and its
development were covered by O.K. Ganoev (2011), N.E. Gridchina (2005),
V.D. Zorkin (2011), I.V. Leonov (2005), M.N. Marchenko (2014), M.V.
Ogneva (2012), O.V. Ralko (2011), F.M. Ryanov (2010), etc.
Scholars also paid attention to specic principles and characteristics
of the rule of law, in particular, the principle of mutual responsibility of
state and an individual, the legal status and specic rights of an individual
in a state governed by the rule of law. The Russian science dwelled on the
principle of limiting state power (Gdalevich, 2008), the interaction between
776
Gulnaz Eldarovna Adygezalova, Sergey Alekseevich Zhinkin, Irina Stanislavovna Kich, Lyudmila
Vasilyevna Butko y Lyudmila Petrovna Vysotskaya
Eectiveness of legislation and implementation of the rule of law
state and its citizens, as well as their participation in the management of
public aairs (Yatsenko, 2007).
However, there are still many gaps in the study of the above-mentioned
issues. The principles of the rule of law and partially the eectiveness of
their implementation were studied in the theses by E.G. Antonova (1996),
N.E. Kvacheva (1996) and T.N. Dovbush (2005) published a long time ago.
The relevant issues were also mentioned in connection with the study of
the legal impact and legal consciousness during dierent historical periods
(Mordovtsev et al., 2017).
At the same time, the eective implementation of these principles,
including the purposeful formation of a system of state and social
mechanisms, has not been subject to special research in Russian science. In
other words, specic theoretical and practical issues related to the eective
implementation of the rule of law, including the formation and operation of
appropriate mechanisms, as well as many ways to improve the eectiveness
of legislation have not been addressed in a separate scientic study.
1. Methods
The research methods are determined by a rather broad subject and
include, rst of all, logical (denition, description, proof and refutation,
classication) and comparative methods to compare features and activities
of the phenomena under study. It is also proposed to use the formal-
dogmatic method to analyze ways to improve the eectiveness of laws in
the area under study.
2. Results
The most important direction in increasing the eciency of the current
legislation is to improve its social aspects. The goals set by the legislator
should correspond to the needs of social development and the interests of
the general population.
To ensure eectiveness, mechanisms for implementing the rule of
law should combine common goals, means, technologies and procedures
for such implementation, as well as those entities involved in such
implementation.
The mechanisms for the eective implementation of the rule of law should
have an unambiguous social orientation, aim not only at the introduction
of certain doctrines into the state legislation but at their maximum social
adaptation, achieving real social goals using these principles and satisfying
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the most urgent needs of social development. This is conditioned by the fact
that the theory of the rule of law and the system of its principles exist for
society, and not vice versa, i.e. social development should not be controlled
even by engaging theoretical ideas.
To ensure eectiveness, the mechanisms for implementing the rule
of law under formation should be classied based on several grounds.
According to the subjects of implementation, such mechanisms can be
subdivided into state and public, whose eectiveness might dier. Public
mechanisms should be implemented and are already implemented
(although unsystematically) by authorized state bodies of both federal and
regional levels.
3. Discussion
In our opinion, mechanisms for implementing the rule of law embrace
a set of means, tools and approaches that aim at realizing the relevant
principles, as well as state bodies and public associations that directly
implement these principles or control their implementation. Accordingly,
the better implementation these mechanisms provide, the more eective
they are.
The functional dependence of the state and its bodies on society, their
subordination to society and their orientation towards social needs should
underlie the eectiveness of mechanisms for implementing the rule of law.
The principles of the rule of law and their implementation in the context
of ensuring their eectiveness should not contradict the historical needs of
developing society or the specics of its current functioning. If the initial,
“classical” separation of powers into legislative, executive and judicial
branches leads to constant conicts between the branches of power and
even a crisis of power, then such a model should be transformed by forming
other branches or redistributing the powers of the existing branches for
their mutual containment and control.
The mechanisms for implementing the rule of law to ensure their
eectiveness should include:
• Certain actors (rst of all, state bodies and ocials, various public
associations and social groups, political leaders, etc.). Moreover,
their signicance and relationship in the implementation of various
principles of the rule of law can dier signicantly.
• Certain system of means, technologies and tools (methods of legal
regulation, information, educational means, etc.).
778
Gulnaz Eldarovna Adygezalova, Sergey Alekseevich Zhinkin, Irina Stanislavovna Kich, Lyudmila
Vasilyevna Butko y Lyudmila Petrovna Vysotskaya
Eectiveness of legislation and implementation of the rule of law
• Certain established procedures for their implementation (in
particular, procedures for holding public discussions of bills,
protecting rights and freedoms, procedures for combating abuse
of oce and other abuses of government bodies to the prejudice of
their own citizens, etc).
An important, but only initial stage of ensuring the eective functioning
of the above-mentioned mechanisms is to consolidate the relevant
principles in laws. Under the Constitution, the activity of the state
apparatus is regulated by legal norms of a higher order. This tool “ensures
the consolidation and development of the basic principles of the rule of law,
the inviolability and impossibility of excluding these principles” (Gasanov,
Stremoukhov, 2004).
The mechanisms for implementing the rule of law have the following
basic features, which is also important in the context of ensuring the
eectiveness of these mechanisms.
1. They aim at achieving a specic goal, namely the implementation
of a particular principle recognized as a principle of the rule of law.
2. They include a set of applied means or procedures of a legal,
educational, organizational, informational and other nature.
3. They are executed by certain (as a rule, enshrined in legislation)
actors. These subjects comprise authorized government bodies and
various associations, civil society institutions that might not aim at
implementing certain principles of the rule of law as the main goal
of their activities.
The mechanisms for implementing the rule of law can be divided and
classied on several grounds, which is important in the context of their
eectiveness.
According to the subjects of their implementation, such mechanisms
should be subdivided into state and public. Authorized bodies of the federal
and regional levels are responsible for state mechanisms. Public mechanisms
are used by various public associations, social groups or individual citizens.
At the same time, an urgent task is to determine the role and correlation
of these mechanisms in the eective implementation of specic principles
of the rule of law, the consolidation and practical development of various
aspects of their interaction.
Depending on the means used, organizational, stimulating, informational
and educational mechanisms can be distinguished that have their own
specic eectiveness. Unfortunately, the actual form of such mechanisms is
not enshrined and has not even been studied in the relevant legal doctrine.
Therefore, let us consider this classication in more detail.
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Thus, organizational mechanisms should be understood as a set of
organizational means and procedures for implementing the principles
of legal statehood, as well as bodies and organizations involved in the
implementation of these means and procedures. Such bodies do not have to
be specially created for the implementation of the rule of law. However, the
goals related to the implementation of such principles should be within their
competence and, possibly, be enshrined in their constituent documents.
We should also consider organizational procedures for public control
over the activities of state bodies and ocials, detailed and “transparent”
reports of state bodies on their activities and their public discussion, as well
as procedures for expressing popular distrust in ocials that existed in the
Soviet period. Such procedures should ensure the eective implementation
of the rule of law.
Informational mechanisms are primarily associated with the formation
of information ows that would aim at 1) informing citizens and their
associations about the goals and guidelines in the formation of legal
statehood; 2) forming such a public opinion that proceeds from the need to
build a legal state and implement the rule of law; 3) informing members of
society about topical issues related to the formation of legal statehood and
the implementation of certain principles of the rule of law.
The relevant procedures are to some extent enshrined in the existing
legislation. In this relation, we should mention Federal Law No. 149-FZ
“On Information, Information Technologies and Information Protection”
(July 27, 2006) which consolidates such signicant principles (Article 3) as
“freedom of search, obtaining, transmission, production and distribution of
information by any legal method; openness of information on the activity of
state authorities and local self-government bodies and free access thereto
except for the cases established by federal acts”. Accordingly, it is possible
to draw some conclusions about the compliance of such activities with the
eective implementation of the rule of law based on the generalization of
the information collected.
Federal Law No. 8-FZ “On Providing Access to Information on the
Activities of Government Bodies and Bodies of Local Self-Government”
(February 9, 2009) enshrines several principles granting access to
information on the activities of state bodies and local self-government
bodies that might be used as a means of increasing the eectiveness of
informational mechanisms for implementing the rule of law, in particular:
limited activities of state power, responsibility of the state to society
and individuals, the openness and availability of information on various
activities of state bodies and local self-government bodies, except for
cases provided by the federal law; the reliability of the information on
the activities of state bodies and local self-government bodies; the timely
provision of such information, etc.
780
Gulnaz Eldarovna Adygezalova, Sergey Alekseevich Zhinkin, Irina Stanislavovna Kich, Lyudmila
Vasilyevna Butko y Lyudmila Petrovna Vysotskaya
Eectiveness of legislation and implementation of the rule of law
Now we will briey describe stimulating mechanisms for implementing
the rule of law, including in the context of ensuring the eectiveness of such
implementation. Being a system or set of legal and other means, as well as
tools and the relevant subjects, these mechanisms aim at encouraging:
1. respect for law, regulations and other elements of the Russian legal
system.
2. the formation of an active civil position and active participation of
most citizens in various activities to improve the legal system and
its components.
3. the activity of citizens connected with the implementation of socially
useful, socially-oriented tasks to satisfy public needs protected by
law and meet social challenges.
4. activities associated with the complete understanding and
implementation of the rule of law in public life.
This mechanism should also provide a set of measures to stimulate those
civil servants and civil society associations that would adhere to the rule of
law in their activities.
Today it is essential to form an eective educational mechanism for
implementing the rule of law. This mechanism can be implemented by
both state bodies and civil society associations combined with the system of
legal education and the provision of free legal aid. There are already certain
models of the relevant measures in the educational sphere. In modern
Russia, various activities on patriotic education are quite popular and cover
both the federal and regional levels, including the most diverse activities
of the relevant state and public structures. Such activities can eectively
implement the rule of law.
The criterion for the eectiveness of the rule of law and mechanisms
for its implementation in the current Russian legislation should be the
adaptation of these mechanisms to modern Russian conditions and needs
of the further social development. For the needs of social and state-legal
development, it is relevant not only to formally designate or proclaim
certain mechanisms but also to determine the main ways of optimizing
activities and increasing the eciency of these mechanisms. These ways
can be as follows:
• To improve and increase the eectiveness of the legislation in force
both at the federal and regional levels, to dene the means used,
powers and responsibilities of the relevant subjects, primarily state
bodies and ocials;
• To improve and increase the eciency of procedures for using
appropriate tools and technologies, as well as promote a broad
public discussion and introduce the relevant adjustments;
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CUESTIONES POLÍTICAS
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• To involve active citizens and civil society organizations in
activities for the functioning, optimization and enhancement of the
eectiveness of these mechanisms.
In relation to the mechanisms for implementing the rule of law, including
state mechanisms, it is quite obvious that they should be equipped with the
necessary means of coercion to ensure their eectiveness. Indeed, this is
correlated with a broader issue covered in the relevant literature, namely
the issue of developing optimal models for combining coercion, persuasion
and self-organization in social regulation (Magomedrasulov, 2010).
If mechanisms for implementing the rule of law prove to be ineective
in the context of a specic legal system in a certain period, then it will be
advisable:
1. To adjust the existing mechanisms, for example, to change their
elements or the subjects involved in their implementation;
2. If necessary, to adjust the very content of any implemented
principle to adapt it to social conditions and needs, to increase its
eectiveness.
Currently, we can present the main forms of improving the mechanisms
for implementing the rule of law and increasing their eciency in the
following way:
• To expand their social base and content-oriented social component.
• To strengthen the eective interaction and complementarity of state
and public mechanisms.
• To improve and increase the eectiveness of public control over
the activities of federal and regional bodies of state power and the
functioning of the most important elements of the legal system.
Among various principles of the rule of law, it is necessary to dene
those the most relevant for the current development of the Russian society
and state, as well as to assess the implementation of these principles.
Conclusion
We achieved the initial objective of this study, i.e. highlighted the
importance of the social component in ensuring the eectiveness of the
existing legislation.
In the context of ensuring legal eectiveness, we dened mechanisms for
implementing the rule of law and their main features, considered principles
of their functioning and classied such mechanisms.
782
Gulnaz Eldarovna Adygezalova, Sergey Alekseevich Zhinkin, Irina Stanislavovna Kich, Lyudmila
Vasilyevna Butko y Lyudmila Petrovna Vysotskaya
Eectiveness of legislation and implementation of the rule of law
The eciency of the current Russian legislation should be increased
in several aspects, namely social eciency, values-based, special legal,
psychological, etc. If the existing legislation does not comply with the needs
of developing society, it is impossible to ensure the eectiveness of the
above-mentioned mechanisms.
The eective principles of the rule of law should be lled with a specic
socio-historical content that would correspond to the current conditions in
legislation, state policy and law enforcement, including litigation practice.
In addition, there is a need for the legislative consolidation of mechanisms
and procedures for implementing these principles and their realization in
the daily activities of both government bodies and civil society institutions.
For their eectiveness, the mechanisms for implementing the rule of law
should not be limited to the use of proper legal means. In the course of
such implementation, other tools, technologies and means (organizational,
informational, educational, etc.) can and should be widely used to increase
eciency. Therefore, such mechanisms should be interpreted more broadly.
Prospects for further research are associated with identifying specic
ways to improve the implementation of ‘rule of law’ principles in relation to
the conditions of modern Russia, as well as regulatory, cultural and other
restrictions connected with the eective functioning of such mechanisms.
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Esta revista fue editada en formato digital y publicada
en enero de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 72