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ОглавлениеPart 1 Basics of the theory of state and law Part 2. Basics of constitutional law Part 5. Basics of administrative law Part 6. Basics of criminal law Для бесплатного чтения доступна только часть главы! Для чтения полной версии необходимо приобрести книгуPart 1 Basics of the theory of state and lawChapter 1. Origins of state and law1.1. Primary Causes and Forms of the Birth of StateThere are many views and theories concerning the origins of state, since state is the main political structure of society which emerges at a certain stage of its development and which is the principal institute of power in any civilised society. Different sciences provide a rich factual background on the causes and forms of state origin. Such facts are rather hard to classify or unite in one uniform doctrine of the origin of state. Therefore there are several theories of the origins of state: theological (by will of God), contractual (by will of mind), psychological (due to the humans, psychology), organic (biological factors), materialistic (societal and economic factors), theory of violence (politico-military factors), etc. Such a variety of opinions exists since the process of state origination was affected by environmental, psychological, historical, ethnic, moral, religious and other factors. Such factors, apart from manifesting in different ways in different regions of the world, were differently interpreted by various researches and philosophers who lived in different historical periods. The dissolution of the primitive communal society with its clan system and the emergence of state authority occurred differently in different regions and under varying conditions: such processes had their own peculiarities in different societies. The formation of state is a long process and happened in different ways and within different time periods for different nations. In the East, (Egypt, Babylon, China, India, etc.) “Asiatic mode of production” was most common. Such a form of state origination is linked to the necessity to conduct wide-scale works in such regions (construction and maintenance of irrigation facilities, different agricultural works, irrigated cropping, etc.). Therefore the most firm structures in such societies were clan systems, village communities, collective property and other institutes which were the most suitable for such works. The first states of the Ancient East were pre-class states: they simultaneously exploited the village communities and managed them, i.e. organised the production. Another form of state origination was present in Athens and Rome where the slave-owning states emerged as a result of the advent of private property and the division of society into classes. Athens exemplifies the classical form of state origination since the state there emerged as a direct result of clashes between classes — the internal clashes within the communal society. Two revolutions within one century which resulted in Solons, (594 BC) and Cleisthenes,s reforms (509 BC), lead to the final dismantlement of the old communal system and the old form of government, to the territorial division of the population and the creation of political authority: legislative and executive bodies, active military forces, police and customs, prisons and other state institutions. Ancient Roman state origination has been sped up by the strife between the plebs and the Roman nobility — patricians. The plebs were free men from the ranks of the conquered peoples who did not have Roman lineage and were not considered a part of the Roman people. If the plebs possessed land property, they were obliged to pay taxes and serve in the military, but they were deprived of the political rights and could not enjoy the rights to Roman land plots. The political movement of the plebs for the patrician privileges may be seen as the fight against the ancient societal hierarchy based on blood ties. The plebs, victory eliminated the old structures and created a state based on territorial division and the division of wealth. This supports the theory that states may emerge as a result of disintegration of tribal relations and the lessening of the importance of blood ties. The advent of Ancient Germanic states was largely caused by the conquest of large territories (namely, the Western part of the Roman Empire) by the German tribes. These tribes which at that time had a primitive tribal societal structure could not use it to govern Roman provinces while it was not suitable for managing such large territories. Enforcement mechanisms and coercion machinery became necessary. The supreme warlord became the monarch; the common property became the royal property; tribal authorities quickly evolved into state authorities. In any case, the process of state origination is an objective and natural phenomenon in the course of societal development and transformation which may be explained by various economic, political, social, moral, religious, environmental and other reasons. 1.2. Principal Theories of State OriginVarious and rather numerous theories of state origin make some definite manner of statehood formation its cornerstone. One believes that neither theory is able to list an exhaustive summary of factors affected the formation of the state. The best known theories include the following: 1. Theological theory. It was widespread in the works of Catholic Church ideologists of the Middle Ages (Thomas Aquinas, Saint Augustine), and it goes on evolving in modern Islamic and Catholic (Jacques Maritain) advocates’ works. According to the advocates of this doctrine, the state is a product of divine will, whereby state authority is eternal and unyielding, and depends primarily on religious organisations and characters. Therefore, each and every person must obey the sovereign unconditionally. The existing socioeconomic and legal inequality is predetermined by the abovementioned God’s will, and one must come to terms therewith. No resistance must be furnished against God’s power holder on Earth. Consequently, any disobedience against state authority may be considered disobedience against the Lord. Any secular authority is derivative from that of the Church and religious organisations. The ideologists of the theological doctrine lay an odor of sanctity to the state and rulers (the latter being representatives and spokesmen of divine will), thereby raising their prestige, and encouraging social order, harmony, and spirituality. Greater focus is placed on the “commissioners” between God and state authority — the church and religious organisations. 2. Patriarchal theory (advocates include Aristotle, Robert Filmer, Nikolay Mikhaylovskiy). This theory’s proponents consider the fact that people are social creatures craving communication and developing at their best in harmonic families. As the family evolves and grows, these processes ultimately are followed by formation of state. Therefore, the state is a product of extension of family. Consequently, the sovereign power is a product of father’s unlimited power in the family. Due to the fact that patriarchal power is godsent, subjects are to obey the sovereign. No resistance is allowed. Monarch’s patriarchal care can provide necessary living conditions. Like the father of the family, the monarch of the state is neither elected, nor appointed, nor deposed by his subjects, since they are his children. 3. Contractual theory (advocates include Benedict Spinoza, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Hugo Grotius, Paul Holbach, Alexander Radischev). According to these philosophers, the state emerged as a product of conscious activities, as a result of a contract made by and between people who previously were in a “natural”, disconnected, unorganised, primitive condition. The state is a rational union of people based on an agreement whereby they surrender some part of their freedom and authority to the state. Isolated individuals turn into a united nation inhabiting a particular territory. As a result, the rulers and the society are left with a series of mutual rights and obligations and liability for non-performance. Thus, the state is vested with exclusive rights to adopt laws, levy taxes, punish criminals, etc., although it must at the same time protect its territory, citizens’ rights, their property, etc. The citizens must abide by the laws, pay taxes, but they are also entitled to protection of their liberty and property. Should the rulers abuse their power, the citizens may rescind the contract through deposition. 4. Patrimonial theory (the most eminent representative is Ludwig von Galler). According to this theory, the state originated from the landlord's right to his land (patrimonium), and it spread onto people who lived on the land. Therefore, the rulers reign over a territory due to their original right to property. In this situation, the people are represented as tenants to the land, and officials as managers. 5. Theory of violence. This theory took full shape in the nineteenth century in the works of Eugen Duhring, Ludwig Gumplowicz, Karl Kautsky, and others. They did not see the origins of the statehood in economic relations, divine intervention, or social contract, but saw it in militarist political factors — violence and exploitation of one nation by another. Management of conquered territories required enforcement mechanism, which was the state. Thus, the state is an organisation for governance of one nation over another. Violence and subordination is the foundation of formation of economic dominance. As a result of wars, tribes reformed into castes, estates, and classes. The conquerors enslaved the conquered. Consequently, the state is a force inflicted from the outside, rather than a product of inner social development. K. Kautsky reasoned that, as the society evolves, the state turns into a means of reaching universal harmony, a protective body which aims to provide common welfare for the weak as well as for the strong. This theory was embraced by the Nazi Germany as its official ideology. 6. Organic theory. It was widespread in the second half of the nineteenth century in the works of Herbert Spencer, René Worms, August Kont, Albert Schaeffle, etc. This doctrine considers the state an organism, the parts whereof interact like ones of a living organism. Thus, the state is a product of social evolution, which is a form of biological evolution. Like a living organism, the state has a brain (its rulers) and a means of enforcing its decisions (its subjects). Just as the fittest biological organisms survive during natural selection, separate states emerge during wars (natural selection, as well), governments are formed, management structure is worked out. Thus, the state is virtually equalised to a biological organism. 7. Materialistic (Marxist) theory (Karl Marx, Friedrich Engels, Vladimir Lenin). This doctrine dominated for decades in many countries, including Russia, the majority of Eastern European countries, as well as a number of Western European countries. According to this theory, the state emerged due to socioeconomic factors. Three types of division of labour played a significant role in the emergence of state: cattle breeding separated from agriculture, then craftsmanship, then barter. This division of labour and development of work equipment boosted the productivity. Surplus was produced, which lead to origination of private property. As a result, the society split into the haves and the have-nots, the exploiters and the exploited. The most significant after-effect of private property is the detachment of public authority, which no longer represented the whole society’s interests. The commanding role went over to the rich, the managers, who created a political body — the state, which acted as a means of protecting the interests of the well-to-do. To sum up, the state emerged primarily for the conservation and maintenance of superiority of one class over the other, as well as of society’s integrity. The advocates of this theory believed that, as soon as classes and social inequality are erased, the state will perish. This theory is quite rational, although it seriously underestimated ethnic, religious, psychological, military, and other factors which influenced the statehood. 8. Psychological theory (Leo Petrazhitsky, Siegmund Freud). According to this theory, the origins of the state lie in human psyche: some are inclined to lead, and others — to be lead. The founders of this theory focus on the human need to live in a society, the need to search for authority. At the same time, there have always been people who are dissident or aggressive. The state emerged for the suppression of those psychological personal qualities, as well. Consequently, on the one hand, the state is aimed at catering the majority’s needs for obedience, and on the other hand, at suppressing the aggressive tendencies. Therefore, the nature of state is psychological, rooted in the human psyche principles. There are also other theories of origins of state: irrigational (Karl August Wirrfogel), sportive (José Ortega y Gasset), racial (Joseph Arthur Gobineau), etc. One must remember, however, that each of the above theories is merely yet another point of view at the statehood and may not claim omnitude. 1.3. Peculiarities of the Birth of LawLaw as a social institute emerged almost simultaneously with the state, since they generally support each other's existence and efficiency (although there are differing opinions on this topic). The state cannot exist without the law (since the law regulates the political authority and often is a means of enacting state policies), just as the law cannot exist without statehood (since the state establishes, warrants and enforces legal rules). State agencies are the main structures in control of compliance with law and enforcing the respective legal sanctions in case of a breach of legal rules. Apart from that, it is worth noting that the state is not the only force which may create the law. For example, in the East, the Quran and other religious norms are the supreme source of law. Besides, the clergy sometimes directly influences the legislative process: both in Russia and in Western Europe. It is an axiom that the law is the only means for the state to impose its will as compulsory for everyone. The advent of law is a long process which lasted during the lives of many generations. Initially, only some separate legal concepts and principles came into existence. Over time, such “fragments” of law gradually formed a uniform, inherently consistent legal system of any given society. It may be argued that historically the law emerged to maintain the dominant position and ensure the safety of some societal strata and groups and only subsequently it evolved into the instrument of social compromise. For example, an infringement on the life or property of noblemen traditionally led to a much more severe penalty than the same actions committed against a member of a non-priviledged group. E.g, under the Ancient Babylonian Hammurabi Code (XVIII century BC), a thief was obliged to compensate the owner of the stolen item its losses tenfold, and if property belonged to a church or to the supreme state authorities, thirtyfold. Customs were kept in the mind of people and manifested in their behaviour. In contrast, legal rules were from their very emergence in a written form and publicly available. Formality and positivism of the law are its principal characters, and without them the law may not exist. Law is a more complex regulator than custom, while, apart from prohibitions, it uses other methods such as authorisation (enabling) and obligation (command) which make it possible to choose between a number of methods to regulate social relations. The birth of law is a result of sophistication of social interactions and aggravation of societal antagonism, since primitive social norms were insufficient for coping with both of the above. There are three ways in which legal rules were mainly formed: 1) transformation of primitive customs into legal rules and their sanctioning by the state; 2) law-making activity of the state which manifests in promulgating special documents containing legal rules — i.e., legal acts (laws, decrees, orders, etc.); 3) court practice, consisting of case-by-case decisions of state courts which grow into precedents — guiding models for judges in similar or analogous cases. Many factors including cultural, historical, geographical and other had an impact on the birth of the law. Thus, legal rules, just as customary norms, are one of the types of social norms, although they significantly differ from customary norms. Customs were created by the society as a whole, whereas the law is formed either by states themselves, or by their authorised bodies, or by other social institutions. Customs manifested general will and were a habitude of sorts, whereas the law embodies the balance between the interests of a person, a society, and a state.Customs could exist in a non-formalised form, whereas the law is always formalised in official documents (laws, subordinate acts, decrees, court orders, etc.). Customs are enforced by the society itself and by the force of societal persuasion, whereas the law is enforced and safeguarded by the state and its specialised enforcement and management agencies. Test questions and tasks 1. Which are the principal causes of the birth of the state? 2. Please name the principal characteristics of state formation in the East, Athens and Rome. 3. Where does the main difference lie between the materialistic theory of state origination and the theory of violence? 4. Please list the differences between a legal rule and a custom. Chapter 2. State: Its Essence and Functions2.1. State Power: Its Nature and Distinctive FeaturesState power (state authority) is a type of social power without which existence of any organised society is unthinkable. Almost all social relations are in some way or another a manifestation of power, since social power is a very important form of managing not only social behaviour, but also complex social processes. Social power is practically the only way to ensure alignment between the actions of individuals. In general, social power denotes a domination-submission relationship between members of the society which is inherent in any group of people and which is based on coercion (enforcement). As M. Weber noted, power is “the ability of an individual or group to achieve their own goals or aims when others are trying to prevent them from realising them”, regardless of the basis for such ability. In academic literature, there have been various viewpoints as to the interrelation between two notions: “state power” and “political power”. According to one view, state power is a narrower category than political power, since political power is exercised by the state as a whole or its specialised agencies as well as by other, non-state elements of the political system: local governments, political parties, labour unions, etc. At the same time, while state power represents the society as a whole, political power often represents only a part of the society or a social group. According to another, less widespread point of view, the notions of “political power” and “state power” are one and the same, since the political power is emanated from the state and is exercised by the state (either directly or indirectly) and upon its authorisation. State power is a relationship of authority and hierarchy between political actors, individuals and entities supported by state coercion (enforcement). State power leads to the establishment of a system where it becomes the supreme influencing force, recognised by the population of the state (willingly or against their will). State power is characterised by the following distinctive features: 1. it extends to the whole territory of the state and all society; 2. it is public-political (i.e. it is emanated from the society and governs it on the basis of certain criteria); 3. it is supported by state coercion; 4. it is executed only by specially authorised agencies (bodies) and persons (public officials, politicians, internal bodies, etc.); 5. it establishes a system of taxes and is financed by the taxpayers' means; 6. it determines and supports a division of the population on the basis of certain territorial criteria; 7. it is legitimate and legal. Legitimacy and legality of power are not the same notion. Legality is the legal basis of the power, its legal characteristic, whereas legitimacy is the trust of the population to the power, its justification in the public perception, which is its moral characteristic. Any authority (power) which promulgates laws, however unpopular, is legal, whereas it may be illegimate, i. e. unaccepted and neglected by the population. It is widely believed that state power is the supreme form of power within any state. 2.2. Definition and Characteristics of StateThe state is an apparatus of public-political authority at a certain territory. All other organisations which constitute the society’s political system coordinate with the state and its legal regulations, laws in some way or another. There is a number of definitions of state, which is justified by its contradictory nature, as well as by various takes on its essence. For instance, M. Baitin supposes that the state is an organisation of political authority required for the performance of objectives of the particular classes as well as common objectives intrinsic to all societies. A number of scholars believe that the state is designed to combine two principalities: the class and the universal. The class approach to the essence of the state focuses on the assumption that the state is, above all, an organisation of political power of the economically dominant class. Using this approach, the state is used in the narrow sense — as a means of protecting the dominant class’s interests. In this case, the priority of the dominating class’s interests will inevitably cause opposition of the other classes. The problem therefore arises: the opposition should be eliminated with the help of violence, dictatorship, domination. Slave states, feudal states, early bourgeois states, socialist states (at the stage of proletarian dictatorship) are to a large extent class states. The universal approach focuses on the fact that the state should be the common welfare institution designed for achievement of social compromise. The search for mutually advantageous ways of reconciliation of conflicting social interests must become the main priority of each and every governmental agency and the state on the whole. Pursuant to this approach, the state does not take a definite class position, but acts as an arbitrator trying to reconcile social conflicts, collisions, and challenges. Regardless of the fact that the class and the universal approach to the essence of the state are two completely different takes on its nature and purpose, a lot of scholars encourage to consider them both in conjunction, since each state is designed to see for performance of common tasks as well as class-specific tasks. According to the religious approach, the state is defined as an organisation of political power which assists the enforcement of some religion’s interests. Take, for instance, Catholic Vatican, Muslim states — Pakistan, Iran, Saudi Arabia, which are motivated by religious principles. The national (nationalist) approach defines the state as an organisation of political authority which protects the interests of the ethnic majority at the cost of ignoring other nations’ interests. Perfect examples in this regard are modern Latvia, Estonia, which, having declared democratic states of law, in reality (as confirmed by international organisations and commissions) implement nationalistic policy (in the interests of native people) and infringe on other nationalities’ rights. The racial approach defines the state as an organisation of political authority which protects a certain race’s interests at the cost of ignoring other races’ interests. This approach was popular in the eighteenth, nineteenth, and even in early twenteeth century. That being said, the state may be defined as an organisation of political authority which strives to satisfy particular group’s interests (class, common, religious, national, others) on the certain territory. Other widely spread definitions of state include the following. The state is “a social union of free people where a peaceful order was imposed and the exclusive right to exercise coercion was granted to state agencies” (N. Korkunov), is a “natural organisation of authority designed for the protection of the existing public order” (L. Gumplowicz), is a “union of individuals based on the rule of law, on common territory, on loyalty to certain authoriy” (I. Ilyin), is a “special political hierarchy of the society in possession of an enforcement apparatus and expressing the will and interests of the dominant class or the whole nation” (V. Lazarev). We believe that the most suitable characteristic of the essence of the state is the following: it is a management apparatus which acts on a scale of the society on the whole and is limited by certain territory. Therefore, one can declare that the state is a united political organisation of the society whose authority covers the whole territory of the state and its population, and which possesses a special enforcement apparatus along with sovereignty. This definition includes authority, territory, and population as the three most important features of state (also reffered to as “triad of the state”). The state differs from other social institutions, organisations, and establishments in the following: 1) the state is the sole official representative of the society on the whole; 2) the state is responsible for its territory and population, i.e. for those who are united under its authority regardless of their affiliation with some race, tribe, institution; 3) the state is tightly bound with its population (institute of citizenship); 4) the state has public authority which is separate from the society and population (enforcement apparatus, the judiciary, officials, the army, the police, courts, prisons, etc.); 5) the state establishes a system of taxes, fees, and payments required for solving universal social matters and for maintaining the bureaucratic apparatus; 6) the state is indivisible from law (the two are interdependent), it creates and maintains the system of judicature for addressing conflicts; 7) the state, as a rule, holds a monopoly in rule-making (adopts laws and regulations) and in legal application of physical coercion and force; 8) the state possesses the materiel for implementing its policy (state property, budget, currency, etc.); 9) the state possesses sovereignty (territorial supremacy and independence in foreign relations). In the society, authority may come from the party, the family, religion, etc. However, the only type of authority whose decisions are binding for all citizens, organisations, and institutions belongs to the state. It is generally believed that the state is the sole bearer of sovereign power. Apart from the abovementioned characteristics, the state has certain paraphernalia. The core ones include the national emblem, the flag, and the anthem. 2.3. State Functions and Their ClassificationFunctions of state are the primary lines of activity of the state. It is through the functions that one sees the essence of the state, its nature and social designation. The subject matter of functions reflects what the state and its governmental agencies do, which matters they address. Functions of state should not be confused or equated with functions of separate governmental agencies, i.e. with the matters of competence of various state organisations according to their position in state mechanism and political system. Functions of state should not be equated to state objectives. While the former represent the lines of state activity, the latter are the aims which the state pursues. Consequently, the objectives predetermine the functions. Functions illustrate the socially-oriented role of the state at some period of its development, therefore functions evolve along with the state, depending on the environment where the state exists. Functions of state may be classified depending on various criteria. Based on the duration they can be permanent (e.g., economic) and temporary (e.g., humanitarian relief for the benefit of a region hit by an earthquake). Based on the principle of separation of powers they can be legislative (law-making), executive (managerial), and judiciary. Based on their significance they can be primary (e.g., public order maintenance) and secondary (i.e., compound elements of the primary functions, e.g. function of dispute settlement, protection of competition at the market of goods and services, etc.). Внимание! Авторские права на книгу "Basics of Russian Law. Textbook" (Malko A.V., Subochev V.V., Fedorov G.V.) охраняются законодательством! |
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