Supreme power c. Supreme power. Excerpt from the Supreme Power
If we understand by the people of all citizens of the state or persons who are (residing) in the territory of the country, or only capable persons who have active and passive suffrage, etc., then it turns out absolute monarchy, tyranny and any other state with an authoritarian or even totalitarian political regime are also democracies, since a monarch, a tyrant, and another usurper exercising power in the state is also a citizen, a person capable of acting, possessing an active and passive electoral law and residing in the country. Then, what is the difference between democracy (democracy) and non-democracy (not democracy)? It turns out that with this understanding of the people, there are no such differences, which means that either democracy is impossible at all, or any regime (totalitarian, fascist, despotic, etc.) can be safely called democracy. And in this case, the former American president and other US politicians are right when they argue that democracy is actively cultivated in Georgia.E. A. Tsishkovsky and S. S. Kuzakbirdiev justly point out this issue, subjecting the Constitution of Russia to a systematic interpretation. “So, in parts 1 and 2 of Art. 3 postulates that power belongs to the people, and part 4 of the same article allows the possibility of seizure or appropriation of power. If power belongs to a specific person, for example, the President of the Russian Federation, then another person (a group of persons) can seize or appropriate it through, say, a coup. However, if power belongs to such an abstraction as the people, is it possible, in principle, to take it away from the people? Who, then, can appropriate it for himself? Another people? Another part of the people? The same group of persons who appropriated power - is it not a part of this people? "
If we think of state power as public, and, accordingly, different from the whole people, separate, carried out by a special apparatus, as it were, separate from the whole people, then here too the problems of the embodiment of democracy (democracy) arise. This is due to the fact that the public nature of power “... means its remoteness from the general population and belonging to a narrow social group that exercises this power on a professional basis. Thus, the state, public nature of power already excludes its belonging to the people, to broad strata of the population. " And indeed, if power is exercised by the state apparatus, ostensibly on behalf of the entire people, then there is already doubt why power is exercised on behalf of the people, and not by the people themselves? Is he incapable of leadership, is he insane, or is he ill? Yes, and agree that the performance of any actions by yourself or by someone else, but on your behalf, are two big differences. In addition, another important question arises: Who does this notorious administrative apparatus consist of, if not of persons belonging to the same people? Are they aliens?
One more unresolved question remains. Many scholars and actors have expressed an opinion about the existence of representative democracy. If, as we found out above, direct democracy is impossible, then what can we say about representative, it certainly cannot be. There are also more convincing arguments in defense of this thesis. So, in the "... Federal Constitutional Law" On the Referendum Russian Federation”It is stated that a referendum, along with free elections, is the highest direct expression of the power of the people. However, further. it comes on citizens' voting ... Thus, the participants are citizens, not the people. The question arises: do the people belong to the people who did not exercise the relevant right ... or used the right, but spoiled the ballot, as well as persons deprived by law of the right to participate in the referendum? " G. Jellinek on this occasion quite rightly noted that in a “democratic republic, in fact, only
368
the minority of the people creates the will of the state. "
Moreover, let's hypothetically compare democracy in understanding it as a form of government with any other. It turns out that in non-democratic forms the population is divided into a small group - the rulers (let, say, 3000 people) and the people who do not have power. Now let's take 3000 people from the people and change their places with those who have power, the rulers. Will something change? I think not. Although in fact now the representatives of the people have power, it turns out that they are no longer the people, but the rulers. You must agree that it is impossible for everyone to have power and run the state, since there will be no people to rule. Therefore, the people are both ruling and subject, and, moreover, this dichotomy gives it (the people) the status of political integrity, unity, state society... So it turns out that democracy or democracy as a form of government in a literal sense is impossible. If we consider democracy as political regime, then the outstanding scientist Nikolai Mikhailovich Korkunov wrote, “In essence, not a single really existing state will fit the definition of democracy as the rule of all. The entire population, without exception, is not allowed anywhere to participate in the exercise of the functions of power. Even in antiquity, it might seem different, since there those deprived of political rights were at the same time and generally deprived of legal capacity, being in the position of slaves. By defining democracy as the rule of all, they meant all free people.
But in modern states, everyone is free, and yet nowhere does everyone participate in the functions of power. "
Other unresolved aspects related to the implementation of democracy are also raised in the literature. For example, E. A. Tsishkovsky and S. S. Kuzakbirdiev rightly argue that if the people have power, then the people should be the subject of legal relations, and, accordingly, have legal personality. But it is natural that such a property cannot belong to him, since the people “... cannot be taken into account or registered, he does not and cannot have life, death, education and liquidation, rights, competence, territory of functioning, mental condition, age, charter, position, etc. ". And accordingly, the people cannot be the subject of law, which means only one thing - they cannot have power.
The fictitiousness of the exercise of democracy has long been noticed by scientists. Thus, G. Jellinek wrote: “A people that at first glance seems to be a self-evident reality, upon closer examination, thus turns out to be a legal concept, the object of which does not at all coincide with individual individuals. The will of the people itself is not the physical will of the whole, but the legal will that arose on the basis of legal provisions from physical acts of will, for psychologically a single will never arises from the will of many, and only least if the majority is opposed by a minority that disagrees with it. The volitional acts of individual people cannot be summed and subtracted in such a way that a real phenomenon would correspond to such arithmetic actions. It is necessary, on the contrary, that the already established legal regulation determines that the will of the majority is considered the general will - the relative, absolute, majority of two-thirds. " It appears ".only a natural-legal abstraction when the people in a democratic republic are called the bearer state power and thus ascribe to him a position different from the position of a state body actually occupied by him. "
Having considered democracy (democracy) in various aspects of its possible implementation, we can say with confidence that in the literal sense, the rule of the people is impossible. In this regard, “... the direct exercise by the people of their power is a fiction that performs a legitimizing function in a democratic state. It's kind of the democratic equivalent of a sovereign monarch. The people here are thought of as the bearer and source of all the fullness of state power. The idea of popular sovereignty is used in political documents in order to create the effect of the "nationality" of state power, the derivation of state sovereignty from the people as a kind of sacred source of power, which in the New Time took the place of God. The people are usually presented as a collective whole, which is very convenient in order to present the politically formed will of the political elite or part of society as the will of this collective whole ("universal will"). So, a serious perception of the ideological construction "the people are the bearers of sovereignty" is a step backward. "
Democracy is possible if it is perceived only as a political regime in which power is exercised not by the peoples, but in the interests of the majority of the country's population. In this respect, the possibility of an ontology of democracy can be considered. However, it is worth recalling once again the well-known opinion of the greatest scientist of humanity - Plato, who spoke of democracy as the worst form of government, since it is alien to virtue. “Democracy is established as a result of the struggle between the rich and the poor, when the masses of the people get rid of their pampered, oppressive oligarchs who have lost all energy. Democracy is the destruction of the state system, the destruction of power due to the unbridled personal arbitrariness of each and every ... Democracy is a distortion of all the basic elements of the state system. "
The analysis of the category of democracy as the power of the people gives full reason to call it a fiction, a political slogan, an opportunistic statement, an ideological declaration, and even more so its real embodiment in the state and legal reality of a state seems to be more a phantasmagoric statement than a reality.
But if even for a moment, in the most daring ideas, imagine that there is a state in which power belongs entirely to the entire people, then it would be the most uncontrollable and anarchic state, since each person, possessing power, would strive to satisfy his personal interests , and accordingly, each citizen would "pull the blankets over himself." It is impossible to imagine more terrible state.
At the beginning of this section, we set ourselves the goal of clarifying the likelihood of the ontology of two legal categories - democracy and the rule of law. Having considered the first, it is necessary to consider the second.
More on the topic Who ultimately owns the power in the state ?:
- Chapter two. THAT THE BASIC AND FINAL GOAL OF THE REVOLUTION WAS NOT AS THOUGHT, THE DESTRUCTION OF RELIGIOUS AND DISASSEMBLY OF THE POLITICAL AUTHORITY
- For certain commodities, the leading role in setting the price level belongs to the exporting or importing countries. For other such goods, exchange quotations, prices of international trades, auctions are of decisive importance for setting the price level. With regard to finished goods, the decisive role in setting the level of prices in the world market belongs to the leading firms that produce and supply these types of goods and provide services to foreign markets. 8.4. BASIC PRICE
- HOW TO CHANGE AN APARTMENT IF ITS HALF BELONGS TO A DEAD MOTHER?
- § 7.1. The mechanism of the state. Identification of the mechanism of the state with the apparatus of state power
- The unity of state power in a state governed by the rule of law
- § 4. Modern French political science about power and state
- § 2. The judiciary as an instrument of self-restraint of the state
- Copyright - Agricultural law - Bar - Administrative law - Administrative process - Stock law - Budget system - Mining law - Civil procedure - Civil law - Civil law of foreign countries - Contract law - European law - Housing law - Laws and codes - Suffrage - Information law - Enforcement proceedings - History of political doctrines -
The state as a form of organizing political power in society. Power and control.
The term "state" is used in two meanings: firstly, to highlight the country as a political-geographical entity and, secondly, to designate the organization of political power, the system of institutions of power. The state in the first sense is studied by different sciences: sociology, political (sociological) geography, etc. The subject of the study of the science of jurisprudence is the state in the second (political and legal) sense. Therefore, this book will focus on the state as an organization of political power that exists in a particular country.
Forms of exercising state power is a practical expression of state activity in the implementation of state functions.
There are legal and non-legal forms of implementation of the functions of the state. The legal forms reflect the connection between the state and law, the duty of the state to act in the performance of its functions on the basis of law and within the framework of the law. In addition, they show how government agencies and officials work, what legal actions they perform. Usually, there are three legal forms of exercising the functions of the state - law-making, law-enforcement and law enforcement.
Lawmaking is the preparation and publication of normative legal acts, without which the implementation of other functions of the state is practically impossible. For example, how to carry out a social function without codified social legislation, social law?
The fact depends on the enforcement activity whether laws and other normative acts will be implemented or whether they will remain only the good wishes of the legislator. The main burden for the implementation of legal norms lies with the governing bodies (executive and administrative bodies) headed by the government of the country. This is the daily work to resolve various issues of a management nature, for the implementation of which the executive and administrative bodies issue appropriate acts, monitor the performance of duties by performers, etc.
Law enforcement activities, i.e., powerful operational and law enforcement activities for the protection of law and order, the rights and freedoms of citizens, etc., includes taking measures to prevent offenses, resolving legal cases, bringing to legal responsibility, etc.
The main features of the state. The supreme power and the mechanism of state power.
The state is a complex social formation that does not lend itself to direct empirical perception, since a high level of abstractness is inherent in the category of the state. The concept of the state can be given by indicating its essential features.
1. Territory. This is the spatial basis of the state, its physical, material, support. It includes land, subsoil, water and air space, continental shelf, etc. Territory is the space of the state occupied by its population, where the power of the political elite fully operates. On its territory, the state maintains its sovereign power and has the right to protect it from external invasion from other states and individuals.
2. Population. This is a human community living on the territory of the state. Population and people (nation) are not identical concepts. A people (nation) is a social group whose members have a sense of community and belonging to the state due to the common features of culture and historical consciousness.
3. Public authority... The term "power" means the ability to influence in the right direction, to subordinate to one's will, to impose it on those under his control, to exercise domination over them. The mechanism of the state, which is the material expression of state power, makes it possible to ensure the normal life of society. The most important parts of it are legislative and executive bodies. Due to its institutionalization, the state is relatively stable.
The distinguishing features of state power, in contrast to other types of power (political, party, religious, economic, industrial, family, etc.) are, firstly, its universality, or publicity, that is, the spread of prerogatives to the entire territory, the entire population, as well as the fact that it represents the whole society as a whole; secondly, its universality, that is, the ability to resolve any issues affecting common interests, and, thirdly, the generally binding nature of its instructions.
4. Right. As a system of binding rules of conduct, law is a powerful tool of governance and begins to be used with the emergence of statehood. The state carries out creative work, that is, it issues laws and other normative acts addressed to the entire population. The law allows the authorities to make their decrees indisputable, universally binding for the population of the entire country, in order to direct the behavior of the masses in a certain direction.
5. Law enforcement agencies. This part of the state apparatus is quite ramified and forms its own subsystem, which includes judicial authorities, prosecutors, police, security agencies, foreign intelligence, tax police, customs authorities, etc.
In addition to the application of sanctions for violation of legal norms (collection of customs duties, imposition of punishment, collection of tax, cancellation of an illegal act, etc.), law enforcement agencies are also used to prevent imbalances in society (registration of a transaction with a notary, court conciliation of disputing parties, warning by police officers offenses, etc.).
6. Army. One of the main goals of the ruling elite is to preserve the territorial integrity of the state. It is well known that border disputes between neighboring states are often the cause of military conflicts. Equipping the army with modern weapons makes it possible to seize the territory of not only adjacent states. For this reason, the country's armed forces are still a necessary attribute of any state. But they are used not only to protect territorial integrity. The army can also be used in critical internal conflicts, to maintain law and order and the ruling regime, although this is not its direct task.
7. Taxes. These are compulsory and non-repayable payments, collected in the established amounts and within a certain time frame, necessary for the maintenance of government bodies, law enforcement agencies, bodies to support the social sphere (education, science, culture, health, etc.), the creation of reserves in case of emergency incidents, disasters, as well as for the implementation of other common interests. Basically, taxes are collected compulsorily, but in countries with developed forms of statehood, they are gradually switching to their voluntary payment.
8. State sovereignty. As a sign of the state, state sovereignty means that the power that exists in the state acts as the supreme power, and in the world community - as independent and independent. In other words, state power legally stands above the power of any other institutions, parties located on the territory of a given state.
Distinguish between internal and external sovereignty. Internal sovereignty is the supremacy in dealing with internal affairs. External sovereignty is independence in external affairs. Internal sovereignty is constantly under pressure from national and international groups and other forces representing civil society.
The mechanism of the state is an integral hierarchical system government agencies and institutions, in practice, exercising state power, tasks and functions of the state. The mechanism of the state is an integral part of the essence of the state: outside and without the state mechanism, there is and cannot be a state
A special composition - state bodies and institutions that are part of the structure of the state mechanism consist of specially trained people
Special purposes of activity - the actual implementation of state power, tasks and functions of the state;
The state apparatus is understood as a system of bodies that directly carry out administrative activities and are endowed with powers of authority for this, and the concept of the "mechanism of the state" includes, along with the state apparatus, state institutions and organizations, as well as "material appendages" of the state apparatus (armed forces, police , penitentiary institutions, etc.), on the basis of which the state apparatus operates.
The mechanism of the state is a broader category, which includes the entire set of not only employees, but also material and technical objects that serve to implement state functions and tasks. Unlike the mechanism of the state, the apparatus of the state is understood only as an aggregate of civil servants. Thus, the state apparatus is not synonymous with the state mechanism, since the state mechanism, in addition to state bodies, also includes state institutions and enterprises.
3. Basic concepts of the origin and essence of the state.
1. Theological (divine) theory of the origin of state and law is the earliest theory that arose from the initial religious and mythological ideas about the origin of the world. Since the world was created by God, then both the state and the law have a divine origin. The most famous representative of this doctrine is the theologian Thomas Aquinas (1225-1274).
2. The patriarchal theory of the state, put forward by Aristotle, sees in the state an overgrown family, which also takes care of its subjects, as a father does to his children. The state power, in accordance with the patriarchal theory, is, as it were, the continuer of the paternal power, i.e. the power of the monarch, the sovereign for the people is like the power of the father in the family.
3. The contractual theory, or the theory of the contractual origin of state and law, which arose in Ancient Greece(the sophists, Epicurus, Hippias - V-IV centuries BC), was revived and rethought during the crisis of feudalism in the interests of the bourgeois class that was forming at that time. Its representatives (J. Lilburn, T. Hobbes, J. Locke, J.-J. Rousseau, C. Montesquieu, A.N. Radishchev, etc.) viewed the state and law as a product of human reason, and not divine will. People, emerging from the "natural" (pre-state) state, united into a state for certain conditions stipulated in the social contract concluded by them voluntarily and by mutual consent. The most important of these conditions were recognized as the protection of private property by the state and ensuring the safety of individuals who entered into an agreement. If the rulers violate the agreement concluded between them and the citizens, then they can be deprived of power.
4. Organic theory presents the state as a kind of human organism. The ancient Greek thinker Plato, for example, compared the structure and functions of the state with the ability and sides of the human soul. Aristotle believed that the state in many respects resembles a living human organism, and on this basis denied the possibility of a person's existence outside the state. Just as arms and legs, taken from the human body, cannot function independently, so a person cannot exist without a state. The largest representative of this theory, G. Spencer, argued that the state is a social organism, consisting of individuals, just as a living organism consists of cells. If the body is healthy, then its cells function normally. If the cells are sick, then they reduce the efficiency of the functioning of the whole organism, i.e. the state. State and law are a product organic evolution... Just as the fittest survive in nature, so in society, in the process of wars and conquests, there is a natural selection of the fittest states, functioning in accordance with the law of organic evolution.
5. The theory of violence. Most specific traits theories of violence are set forth in the works of E. Dühring, L. Gumplovich, K. Kautsky, and others. In accordance with this theory, the state is the result of violence, hostility, the conquest of some tribes by others, violence turns into the fundamental principle of state and law. The defeated tribe turns into slaves, and the victor turns into the ruling class, private property appears, the winners create a coercive apparatus for managing the vanquished, which turns into a state. Known in history real facts the existence of states as a result of the conquest of some peoples by others (for example, the Golden Horde). But the role of violence in history cannot be made absolute, since many states and legal systems were created in the past and are now being created not as a result of external conquest or only by force.
6. Psychological theory reduces the main reasons for the emergence of state and law to certain properties of the psyche of people, to biopsychic instincts, etc. The essence of this theory is to assert the psychological superior Aryan race to destroy entire peoples and national minorities.
7. The materialist (Marxist) theory proceeds from the fact that the state arose primarily due to economic reasons: the social division of labor, the emergence of private property, and then the split of society into classes with opposite economic interests. The state is replacing the tribal organization, and the law is replacing the tribal customs. As an objective result of these processes, a state arises, which special means suppression and bodies constantly engaged in management, restrains the confrontation between classes, providing mainly the interests of the economically ruling class. Since the state arose as a result of the division of society into classes, it was concluded that the state is a historically coming, temporary phenomenon - it arose together with the emergence of classes, etc. must inevitably die out with the disappearance of classes.
Read also:
|
Supreme authority Supreme authority- the highest power in the state, which is the source of the powers of all its bodies.
The supreme power has the following main features arising from its fundamental content and state significance:
- Unity (indivisibility)... "The state power is always one and, in its essence, cannot allow competition of another similar power in relation to the same persons, in the space of the same territory." The principle of separation of powers applies to state bodies subordinate to the supreme power, which delegates to them the appropriate powers (legislative, executive, judicial, etc.).
- Unlimited... The legal subordination of the bearer of supreme power to any external force (another state, supranational entity) means the transition of the supreme power to this power.
- Completeness... There is no power in the state that is not controlled by the supreme.
- Consistency and continuity... The termination of the existence of the supreme power is tantamount to the disappearance of the state itself (the loss of its independence). A change in the type of supreme power is possible not in an evolutionary way, but only in a revolutionary way - through the elimination of the old state system and the establishment of a new one.
- The bearer of supreme power is called a sovereign. Depending on its nature, there are three historical types of supreme power (first identified by Aristotle):
- Monarchical- the supreme power is concentrated in the hands of one person.
- Aristocratic- the supreme power belongs to the nobility.
- Democratic- the supreme power belongs to the people.
Legislative power - power in the field of legislation. In states where there is a separation of powers, the legislative power belongs to a separate state body that is engaged in the development of legislation. The functions of the legislature also include approving the government, approving changes in taxation, approving the country's budget, ratifying international agreements and treaties, and declaring war. The general name of the legislative body is parliament.
In Russia, the legislative power is represented by a bicameral The Federal Assembly which includes The State Duma and the Federation Council, in the regions - by legislative assemblies (parliaments).
· Executive power is one of the types of independent and independent public power in the state, which is a set of powers to manage public affairs. In this way, executive branch is a system of state bodies exercising these powers. Main purpose executive power in Russia - the organization of the practical implementation of the Constitution of the Russian Federation and the laws of the Russian Federation in the process of management activities aimed at meeting public interests, requests and needs of the population. It is carried out through the implementation of state and power powers by methods and means of public, mainly administrative law.
· The judiciary The existence of the judiciary is conditioned by the interest of society in maintaining the legal and social order, and its state nature is the duty of the state to maintain this order. The judiciary arises from the necessity and obligation of the state to interpret its will in the case when the normative interpretation proposed by the legislator for the general case and expressed in the rule of law conflicts with the normative interpretation of the state will in the process of individual regulation. The preservation of the universal and universal significance of law as a social regulator requires ensuring legal reality in the event of a dispute about the law itself. The ability and obligation to determine what is right in the event of a dispute about this in individual law enforcement, constitutes the basis of the judiciary, determines its place and role in the system of separation of powers, as well as political actors, forms a unique power resource of the judiciary.
- Political power is the ability of a certain social group or class to exercise its will, to influence the activities of other social groups or classes. Unlike other types of power (family, social, etc.), political power exerts its influence on large groups people, uses a specially created apparatus and specific means for this purpose. The most powerful element of political power is the state and the system of state bodies that exercise state power.
- Managerial power
- Public power is power that is separated from society and does not coincide with the population of the country, which is one of the features that distinguish the state from social order... Usually opposed to public authority. The emergence of public power is associated with the emergence of the first states.
- Symbolic power is the ability to form or change the categories of perception and assessment of the social world, which in turn can have a direct impact on its organization. The main source of symbolic power is symbolic capital. Also an important condition for the effectiveness of symbolic power is the adequacy of the description of reality.
4. State- This is a special form of organization of society, operating in a limited area. The state possesses certain means and methods of applying power within society, establishes a certain order of relationships between members of society, and involves the entire population in its activities in established and expanding territories. The order of relations between members of society and the use of power is determined by: the constitution, laws and other legal documents of the state, which are part of the formal structure of the state; as well as customs formed within society independently of the state, which are the basis for understanding the laws of the state and determine the non-formalized procedure for the application and interpretation of laws.
The presence of organizational documents (which set out the purpose of creation and tasks of the state):
- constitution,
- military doctrine,
- legislation.
- Availability of management (management apparatus):
- president (government),
- parliament,
- Management and planning:
- regulation of the life of society (system of law),
- state (political and foreign policy) activities,
- economic activity(economy),
- own monetary system,
- tax levies.
- Property (resources):
- territory,
- population,
- state treasury,
- borders, etc.
- The presence of subordinate organizations:
- law enforcement,
- military establishment,
- peripheral administrative organizations.
- Availability state language(languages).
- Sovereignty (the ability of a state to act in the international legal field as a legal entity recognized by other states).
- Public authority.
- Citizenship.
- State symbols.
State typology is a scientific classification of states according to certain types (groups) on the basis of their common characteristics, reflecting their general laws of origin, development and functioning inherent in a given state. Promotes a deeper identification of the signs, properties, essence of states, allows you to trace the patterns of their development, structural changes, as well as predict their further existence.
1. Theological theory of the origin of the state got its distribution in the XIII century, in the writings of Thomas Aquinas; v modern conditions it was developed by the Catholic Church (Maritain, Mercier, etc.).
According to the representatives of this doctrine, the state is not a product of the direct Divine will, but the consequences of the fall of primordial people. People needed public opposition to vices and therefore began to establish laws that limit evil and support good. The state, as a necessary element of life in a world tainted by sin, where the individual and society need protection from dangerous manifestations of sin, is blessed (sanctioned) by God. Therefore, everyone is obliged to obey state authority in everything that concerns the earthly order.
