From theory and practice, we know about a wide variety of types and forms of states. But they all have similar elements. The state stands out among other social formations by special features inherent only to it.
The state is an organization of the political power of society, covering a certain territory, acting simultaneously as a means of safeguarding the interests of the whole society and a special mechanism of control and suppression.
Signs of the state are:
♦ the presence of public authority;
♦ sovereignty;
♦ territory and administrative-territorial division;
♦ legal system;
♦ citizenship;
♦ taxes and fees.
Public authority includes a combination of control apparatus and suppression apparatus.
Manadgement Department - bodies of legislative and executive power and other bodies with the help of which management is carried out.
Suppression apparatus - special bodies that are competent and have the strength and means to enforce state will:
Security agencies and police (police);
Courts and prosecutors
The system of correctional institutions (prisons, colonies, etc.).
Featurespublic authority:
◊ separated from society;
◊ does not have a social character and is not directly controlled by the people (power control in the pre-state period);
◊ most often does not express the interests of the whole society, but a certain part of it (class, social group, etc.), often the management apparatus itself;
◊ is carried out by a special layer of people (officials, deputies, etc.) endowed with state-power powers specially trained for this, for which management (suppression) is the main activity that does not participate directly in social production;
◊ relies on written formalized law;
◊ backed by coercive power of the state.
The presence of a special enforcement apparatus. Only the state has a court, a prosecutor’s office, internal affairs bodies, etc., and material appendages (army, prisons, etc.) that ensure the implementation of state decisions, including by necessity and coercive means. To perform the functions of the state, one part of the apparatus serves the legislation, enforcement of laws and judicial protection of citizens, while the other maintains the internal rule of law and ensures the external security of the state.
As a form of society, the state acts simultaneously as a structure and mechanism of public self-government. Therefore, the openness of the state to society and the degree of citizen involvement in state affairs characterize the level of development of the state as democratic and legal.
State sovereignty - the independence of the power of a given state from any other power. State sovereignty may be internal and external.
Interior sovereignty - the full spread of the state’s jurisdiction over its entire territory and the exclusive right to pass laws, independence from any other authority within the country, supremacy over any other organizations.
Externalsovereignty - complete independence in the foreign policy of the state, i.e., independence from other states in international relations.
It is through the state that international relations are maintained, and the state is perceived on the world stage as an independent and independent structure.
State sovereignty should not be confused with popular sovereignty. Popular sovereignty is the initial principle of democracy, which means that power belongs to the people and comes from the people. The state can partially limit its sovereignty (join international unions, organizations), but without sovereignty (for example, during occupation) it cannot be fully.
Division of the population in the territory
The territory of the state is the space to which its jurisdiction extends. The territory usually has a special division, called the administrative-territorial (regions, provinces, departments, etc.). This is done for ease of management.
At present (unlike the pre-state period), it is important that a person belongs to a certain territory, and not to a tribe or clan. In the conditions of the state, the population is divided according to their residence in a certain territory. This is due both to the need to levy taxes and to the best management conditions, since the decomposition of the primitive communal system leads to constant movements of people.
Uniting all people living in the same territory, the state is an exponent of common interests and a determinant of the purpose of life of the entire community within the state.
Legal system - The legal "skeleton" of the state. The state, its institutions, power are enshrined in law and act (in a civilized society), relying on law and legal means. Only the state has the right to issue binding normative acts: laws, decrees, decrees, etc.
Citizenship - A stable legal relationship of persons residing in the territory of the state with this state, expressed in the presence of mutual rights, duties and responsibilities.
The state is the only organization of power throughout the country. No other organization (political, social, etc.) covers the entire population. Each person, by virtue of his birth, establishes a certain relationship with the state, becoming his citizen or subject, and acquires, on the one hand, the obligation to obey state-imperious orders, and on the other, the right to patronage and protection of the state. The institution of citizenship in the legal sense aligns people with each other and makes them equal in relation to the state.
Taxes and fees - the material basis of the activities of the state and its bodies - funds collected from individuals and legal entities located in the state to support the activities of public authorities, social support for the poor, etc.
The essence of the state is what:
~ this is a territorial organization of people:
~ this overcomes tribal (“blood”) relationships and is replaced by social relations;
~ a structure is created that is neutral to the national, religious and social characteristics of people.
The state differs from the tribal organization in the following ways. Firstly, by public authority not coinciding with the entire population, isolated from it. The peculiarity of public power in the state is that it belongs only to the economically dominant class, is political, class power. This public authority relies on special detachments of armed people - initially on the monarch's squads, and later on the army, police, prisons and other coercive institutions; finally, on officials specially engaged in managing people, subjecting the latter to the will of the economically dominant class.
Secondly, division of subjects not by kinship, but on a territorial basis. Around the fortified castles of monarchs (kings, princes, etc.), under the protection of their walls, the trade and craft population settled, cities grew. A rich hereditary noble settled here too. It was in the cities, first of all, people were connected not by kinship, but by neighborly relations. Over time, kinship ties are replaced by neighbors and in rural areas.
The reasons and basic laws of state formation were the same for all the peoples of our planet. However, in different regions of the world, among different peoples, the process of state formation had its own characteristics, sometimes very significant. They were associated with the geographical environment, specific historical conditions in which these or those states were created.
The classic form is the emergence of the state due to the action of only internal factors of the development of a given society, stratification into antagonistic classes. This form can be considered on the example of the Athenian state. Subsequently, along this path went the formation of the state among other peoples, for example among the Slavs. The emergence of the state among the Athenians is a highly typical example of the formation of the state in general, because it, on the one hand, takes place in its pure form, without any violent interference, external or internal, on the other hand, because in this case a highly developed form states - a democratic republic - arises directly from the clan system, and, finally, because we are well aware of all the essential details of the formation of this state. In Rome, a tribal society turns into a closed aristocracy, surrounded by a large, disempowered, disenfranchised, but bearing a plebs; the triumph of the plebs explodes the old tribal system and erects a state on its ruins, in which the tribal aristocracy and the plebs will soon completely dissolve. For the German victors of the Roman Empire, the state arises as a direct result of the conquest of vast foreign territories, for the rule over which the clan system does not provide any means. Consequently, the process of state formation is often “pushed”, accelerated by factors external to a given society, for example, a war with neighboring tribes or already existing states. As a result of the conquest of the vast territories of the slave-holding Roman Empire by the German tribes, the tribal organization of the winners, which was at the stage of military democracy, quickly degenerated into a feudal state.
64. THEORY OF ARRIVAL OF THE STATESPERANSKIY MIKHAIL MIKHAILOVICH (1772-1839) - one of the representatives of liberalism at the end of the 18th century. in Russia.
short biography: S. was born into a family of a village priest. After graduation in St. Petersburg, he began to make an official career. Later, Alexander I S. was appointed state secretary of the royal court. S. is the author of the plan for the liberal reorganization of Russia.
Major works: “The Plan of State Transformation”, “Guide to Knowledge of Laws”, “Code of Laws”, “Introduction to the Regulation on State Laws”.
His views:
1) the origin of the state. The state, according to S., arose as a public union. It is created for the benefit and safety of people. The people are the source of government power, since any legitimate government has arisen on the basis of the common will of the people;
2) on the tasks of state transformations. S. considered constitutional monarchy to be the best form of government. In accordance with this, S. distinguished two tasks of state transformations: preparing Russia for the adoption of the Constitution, eliminating serfdom, since it is impossible to establish a constitutional monarchy with serfdom. The process of liquidation of serfdom is carried out in two stages: the liquidation of land landed estates, the capitalization of land relations. As for the laws, S. argued that they should be adopted with the mandatory participation of an elected State Duma. The totality of all laws makes up the Constitution;
3) on the system of representative bodies:
a) the lowest link - the rural municipality council, which consists of landowners, townspeople with real estate, as well as peasants;
b) the middle link is the district council, whose deputies are elected by the rural municipality council;
c) the Council of State, whose members are appointed by the emperor.
The monarch has absolute power;
4) to the Senate. The Senate is the highest judicial body to which all lower courts are subordinate;
5) on the estate.
S. believed that the state should have the following groups of estates:
a) the nobility - the upper class, which includes persons who carry the military or public service;
6) the middle estate is made up of merchants, odnodvortsi, petty bourgeois, villagers who have real estate;
c) the lower class - the working people who do not have the right to vote (local peasants, artisans, domestic servants and other workers).
65 . Bureaucracy and the StateA rather long period in our social psychology formed a negative attitude towards such a phenomenon as bureaucracy. The state is impossible without bureaucracy in its various formal expressions. The phenomenon of bureaucracy is dualistic in nature.
State bodies characterize the formation of a special layer of people in the state, physically divorced from material production, but performing very important managerial functions. This layer is known under various names: officials, bureaucrats, managers, functionaries, nomenclature, managers, etc. It is an association of professionals engaged in managerial work - this is a special and important profession.
As a rule, this layer of people ensures the fulfillment of the functions of the state, state power, state bodies in the interests of society and the people. But in a certain historical situation, functionaries can take the path of ensuring their own interests. It was then that situations arise when special bodies (sinecure) are created for certain individuals or they are looking for new functions for these bodies, etc.
The construction of the state apparatus should go from functions to the body, and not vice versa, and on a strict legal basis.
Bureaucracy (from fr. bureau - bureau, office and Greek. κράτος - domination, power) - this word means the direction that public administration takes in countries where all things are concentrated in the hands of central government authorities acting on orders (authorities) and through orders (subordinates); then by B. they mean a class of persons sharply distinguished from the rest of society and consisting of these agents of the central government.
The word "bureaucracy" usually recalls pictures of clerical red tape, poor work, useless activities, many hours of waiting for information and forms that have already been canceled, and attempts to fight the municipality. All this really happens. However, the root cause of all these negative phenomena is not the bureaucracy as such, but the shortcomings in the implementation of the rules of work and the goals of the organization, the usual difficulties associated with the size of the organization, the behavior of employees that do not correspond to the rules and objectives of the organization. The concept of rational bureaucracy, originally formulated in the early 1900s by the German sociologist Max Weber, at least ideally, is one of the most useful ideas in the history of mankind. Weber's theory did not contain descriptions of specific organizations. Weber proposed the bureaucracy rather as a kind of normative model, an ideal that organizations should strive to achieve. The foreign term "bureaucratic" is fully consistent with the Russian word "command". In Western Europe, the emergence and strengthening of B. went parallel to the emergence and strengthening of state power. Alongside political centralization, administrative centralization also developed, as the first tool and help it was necessary in order to oust the feudal aristocracy and the old communal authorities from all possible spheres of government and create a special class of officials directly and exclusively subordinated to the influences of the central government .
With the decline and degeneration of local corporations, unions and estates, new management tasks appeared, the scope of state power expanded continuously until the so-called police state (XVII-XVIII centuries), in which all departures of spiritual and material life were equally subordinated to the guardianship of state power, developed.
In the police state, the bureaucracy reaches its highest development, and here its disadvantageous features are the most distinct - the features that it preserved in the 19th century in countries whose management is still based on the principles of centralization. With this nature of governance, government bodies are unable to cope with extensive material and usually fall into formalism. Due to its considerable size and consciousness of its power, bureaucracy takes a special exceptional position: it feels itself as the leading center of all social life and forms a special caste outside the people.
In general, three disadvantages of such an administrative system make themselves felt: 1) public affairs that require government intervention are more often conducted badly than well; 2) the governed must tolerate interference by the authorities in relations where this is not necessary; 3) contact with authorities is rarely dispensed with without the personal dignity of the layman. The combination of these three disadvantages and that direction is different government controlled, which is usually characterized by one word: bureaucracy. Its focus is usually the police; but where it has taken root, it extends its influence to all bureaucracy, to judicial and legislative power.
The conduct of any complex business in life, whether private or public, inevitably requires observance of certain forms. With the expansion of the tasks pursued, these forms are multiplied and the “multivariate” of modern governance is an inevitable companion for the development and complication of public life. But the difference between the Bureaucracy and the healthy system of administration is that in the latter the form is respected for the cause and if necessary is sacrificed to the cause, while the Bureaucracy keeps the form for its own sake and sacrifices the essence of the matter to it.
The subordinate authorities see their task not to usefully act within the limits specified by it, but to fulfill the requirements imposed from above, that is, to unsubscribe, to fulfill a number of prescribed formalities and thereby satisfy the higher authorities. Administrative activity comes down to writing; instead of actual execution are content with writing paper. And since paper execution never encounters any obstacles, the highest government is getting used to making demands to its local authorities that are practically impossible. The result is a complete discord between paper and reality.
The second distinguishing feature of B. lies in the estrangement of bureaucracy from the rest of the population, in its caste exclusivity. The state takes its employees from all classes, in the same college it unites the sons of the noble families, urban inhabitants and peasants; but they all feel equally alienated from all classes. Consciousness of the common good is alien to them; they do not share the life tasks of any of the classes or classes separately.
The bureaucrat is a poor member of the community; community relations seem humiliating to him; submission to community authorities is unbearable for him. He has no fellow citizens at all, because he does not feel himself either a member of the community or a citizen of the state. These manifestations of the caste spirit of bureaucracy, from which only exceptional natures can completely abandon, deeply and disastrously affect the relations of the mass of the population to the state.
When the masses see the representative of the state only in the person of bureaucracy, which shies away from it and puts itself on some unattainable height, when any contact with state bodies threatens only with troubles and constraints, then the state itself becomes something alien or even hostile to the masses. The consciousness of one’s belonging to the state, the consciousness that you make up the living part of a great organism, the ability and desire for self-sacrifice, in a word, the feeling of statehood is weakening. But after all, meanwhile, it is this feeling that makes the state strong in the days of peace and stable in moments of danger.
B.'s existence is not connected with a certain form of government; it is possible in republican and monarchical states, in monarchies unlimited and constitutional. Overcoming B. is extremely difficult. New institutions, if only they are brought into life under the cover of B., are immediately imbued with its spirit. Even constitutional guarantees are powerless here, because no constitutional assembly governs itself, cannot even give governance a stable direction. In France, bureaucratic forms of government and administrative centralization even received new strength it was after the coups that created a new order of things.
Peter the Great is often considered the ancestor of B. in Russia, and Count Speransky is its founder and final organizer. In fact, the mere “gathering of the Russian land” necessarily required centralization in administration, and centralization gives rise to bureaucracy. Only the historical foundations of Russian B. are different in comparison with Western European bureaucracies.
Thus, criticism of the bureaucracy draws attention to the effectiveness of the system, and to questions of its compatibility with the honor and dignity of the individual.
The only area where bureaucracy is irreplaceable is the application of laws in court. It is in jurisprudence that the form is really more important than the content, and high efficiency (in the time frame for considering cases, for example) has an extremely low priority compared, for example, to the principle of legality.
66. CHURCH AND STATEThe Church as an institutional representative of a particular religion plays a significant role in the political system of any society, including in multi-faith Russia. Political parties and official authorities try to use its moral and ideological influence, although, according to Art. 14 of the Constitution “The Russian Federation is a secular state” and “religious associations are separate from the state”. Religious denominations - various areas of Christianity, Islam, Buddhism and Judaism - their church institutions are actively involved in politics, especially regional and national-ethnic. FROMthe oldest and most famous system of relations between church and state is the system of an established or state church. The state recognizes one religion among all the true religion and one church exclusively supports and patronizes, to condemn all other churches and faiths. This prejudice means in general that all other churches are not recognized as true or completely true; but it is practically expressed in an unequal form, with many diverse shades, and sometimes from non-recognition and alienation comes to persecution. In any case, under the operation of this system, foreign confessions are subject to some more or less significant derogation in honor, in law and advantage, in comparison with their own, with the prevailing confession. The state cannot be a representative of the material interests of society alone; in that case, it would deprive itself of spiritual strength and renounce spiritual unity with the people. The state is the stronger and the more important it is, the more clearly the spiritual representation is indicated in it. Only under this condition is a sense of legitimacy, respect for the law and trust in state power maintained and strengthened among the people and in civilian life. Neither the beginning of the integrity of a state or state good, state benefit, or even the beginning of a moral one - are not sufficient in themselves to establish a strong link between the people and state power; and the moral principle is unstable, fragile, devoid of the main root when it renounces religious sanction. This central, collective power will undoubtedly be deprived of a state that, in the name of an impartial attitude towards all beliefs, itself renounces all beliefs - whatever. The confidence of the masses of people in the rulers is based on faith, that is, not only on the people’s unity with the government, but also on the simple conviction that the government has faith and acts by faith. Therefore, even pagans and Mohammedans have more confidence and respect for such a government, which is based on firm principles of belief - whatever, rather than for a government that does not recognize its faith and treats all beliefs equally.
This is the undeniable advantage of this system. But over the centuries, circumstances have changed, under which this system got its start, and new circumstances arose under which its operation became more difficult than before. At that time, when the first foundations of European civilization and politics were laid, the Christian state was a firmly integral and inextricable alliance with a single Christian church. Then, in the midst of the Christian church itself, the initial unity was divided into diverse interpretations and divergences, of which each began to appropriate the meaning of a single true teaching and a single true church. Thus, the state had to have before it several diverse exercises, between which the mass of people was distributed in time. With the violation of unity and integrity in beliefs, such a time may come when the dominant church, supported by the state, turns out to be a minority church, and itself weakens in sympathy or completely loses the sympathy of the masses of the people. Then important difficulties may arise in determining the relationship between the state with its church and churches, to which the majority belongs.
67. TYPOLOGY OF THE STATEABOUTnoting the multiplicity of points of view related to the consideration of the typology of the state, two main scientific approaches should be distinguished: formational and civilizational. The essence of the first (formational) is to understand the state as a system of interrelated economic (basic) relations that predetermine the formation of a superstructure uniting social, political, and ideological relations. Proponents of this approach consider the state as a specific social body that arises and dies at a certain stage in the development of society - a socio-economic formation. The activity of the state in this case is primarily coercive and involves the use of force to resolve class contradictions arising from the conflict between advanced productive forces and backward production relations. The main historical types of states in accordance with the formation approach are the exploiter-type states (slave, feudal, bourgeois), characterized by the presence of private property (slaves, land, means of production, surplus capital) and irreconcilable (antagonistic) contradictions between the class of oppressors and the class of oppressed.
An atypical formational approach is the socialist state, which arises as a result of the victory of the proletariat over the bourgeoisie and marks the beginning of the transition from the bourgeois to the communist (stateless) socio-economic formation.
In a socialist state
· Private ownership of the means of production is replaced by state ownership (public property);
· Contradictions come state property (nationwide);
· Contradictions between classes cease to be antagonistic in nature;
· There is a tendency towards the merging of the main classes (workers, peasants, the stratum of the working intelligentsia) and the formation of a single socially homogeneous community - the Soviet people; the state continues to be a “coercive coercive mechanism”, but the orientation of coercive measures is changing - from the apparatus of enslavement by one class to another, the state is turning into an instrument to ensure and protect the interests of the community in the international arena, guaranteeing law and order in the state itself.
Noting the positive features of this approach, we should first of all note its specificity, which allows us to clearly identify the main historical types of state-legal systems. As negative sides: point out the dogmatism (“Marx’s teaching is omnipotent because it is true”) and the one-sidedness of the formation typology, which takes only the economic criterion as the basis for typologization.
Civilization approach to typology of states.The civilization approach is focused on cognition of features state development through all forms of human activity: labor, political, social, religious - in all the variety of social ties. Moreover, in the framework of this approach, the type of state is determined not so much by objective material factors as by ideally spiritual, cultural factors. In particular, A.J. Toynbee writes that the cultural element is the soul, blood, lymph, the essence of civilization; in comparison, economic and, all the more, political criteria seem artificial, inconsequential, ordinary creatures of nature and the driving forces of civilization.
Toynbee formulates the concept of civilization as a relatively closed and local state of society, characterized by a commonality of religious, psychological, cultural, geographical and other signs, two of which remain unchanged: religion and the forms of its organization, as well as the degree of remoteness from the place where this society originally originated . Of the numerous “initial civilizations,” Toynbee said, only those who survived could gradually master the living environment and develop a spiritual foundation in all types of human activity (Egyptian, Chinese, Iranian, Syrian, Mexican, Western, Far Eastern, Orthodox, Arab, etc. .) Each civilization gives a stable community to all states existing within its framework.
The civilization approach allows us to distinguish not only the opposition of classes and social groups, but also the sphere of their interaction on the basis of universal human interests. Civilization forms such hostel standards that, with all their differences, are important for all social and cultural groups, thereby keeping them within a single whole. At the same time, the multiplicity of assessment criteria used by various authors to analyze this or that civilizational form, predetermines the uncertainty of this approach, complicates its practical application in the research process ..
68. STRUCTURAL ELEMENTS OF THE LEGAL REGULATION METHODThe need for various legal means operating in the MPR is determined by the different nature of the movement of subjects' interests in values, the presence of numerous obstacles that stand in this way. It is the ambiguity of the problem of satisfying interests as a substantive moment that also implies the diversity of their legal registration and provision.
The following main stages and elements of the legal regulation process can be distinguished: 1) the rule of law; 2) a legal fact or actual composition with such a decisive indicator as the organizational-executive enforcement act; 3) legal relationship; 4) acts of the exercise of rights and obligations; 5) a protective law enforcement act (optional element).
At the first stage, a rule of behavior is formulated, which is aimed at satisfying certain interests that are in the field of law and require their fair ordering. Here, not only the range of interests and, accordingly, legal relations is determined within which their implementation will be lawful, but obstacles to this process are also predicted, as well as possible legal means to overcome them. The named stage is reflected in such an element of the MPR as the rule of law.
At the second stage, the determination of special conditions takes place, upon the occurrence of which the action of the general programs is “turned on” and which allow us to move from general rules to more detailed ones. The element denoting this stage is a legal fact, which is used as a “trigger” for the movement of specific interests along the legal “channel”.
However, often this requires a whole system of legal facts (actual composition), where one of them must be decisive. It is just such a fact that the subject sometimes does not have enough for the further movement of interest in a value that can satisfy it. The absence of such a decisive legal fact acts as an obstacle, which must be considered from two points of view: from the substantive (social, material) and from the formal (legal). From the point of view of content, an obstacle will be the dissatisfaction of the subject’s own interests, as well as public interests. In the formal legal sense, an obstacle is expressed in the absence of a decisive legal fact. Moreover, this obstacle is overcome only at the level of law enforcement as a result of the adoption of the relevant act of application of the law.
The act of applying law is the main element of the totality of legal facts, without which a specific rule of law cannot be implemented. It is always decisive, for it is required at the very “last moment”, when other elements of the actual composition are already available. So, in order to exercise the right to enter a university (as part of a more general right to higher education), an act of application (order of the rector to enroll in students) is necessary when the applicant has submitted the required documents to the admissions committee, passed the entrance exams and passed the competition, those. when there are already three other legal facts. The act of application consolidates them into a single legal composition, gives them credibility and entails the emergence of personal subjective rights and obligations, thereby overcoming obstacles and creating the opportunity to meet the interests of citizens.
This is only a function of special competent bodies, management entities, and not citizens who do not have the authority to apply the rule of law, do not act as law enforcers, and therefore, in this situation, they will not be able to satisfy their interests on their own. Only the law enforcement body will be able to ensure the implementation of the legal norm, adopt an act that will become the mediating link between the norm and the result of its action, will lay the foundation for a new series of legal and social consequences, and therefore, for the further development of public relations, clothed in legal form.
This type of enforcement is called operational-executive, because it is based on positive regulation and is designed to develop social ties. It is in it that the right-stimulating factors are embodied to the greatest extent, which is characteristic of acts on the promotion, assignment of personal ranks, on the establishment of payments, benefits, on registration of marriage, on finding a job, etc.
Consequently, the second stage of the legal regulation process is reflected in such an element of the MPR as a legal fact or actual composition, where the operative-enforcement law acts as a decisive legal fact.
The third stage is the establishment of a specific legal relationship with a very definite division of subjects into authorized and obligated. In other words, it reveals which of the parties has an interest and the corresponding subjective right, designed to satisfy it, and which is obliged either not to impede this satisfaction (prohibition), or to carry out certain active actions in the interests of the authorized person (duty). In any case, we are talking about a legal relationship that arises on the basis of legal norms and in the presence of legal facts and where the abstract program is transformed into a specific rule of conduct for the relevant entities. It is concretized to the extent that the interests of the parties are individualized, and more precisely, the main interest of the authorized person, which acts as a criterion for the distribution of rights and obligations between opposing legal persons. This stage is embodied precisely in such an element of the MPR as the legal relationship.
The fourth stage - the implementation of subjective rights and legal duties, in which legal regulation achieves its goals - allows the interest of the subject to be satisfied. Acts of the implementation of subjective rights and obligations - this is the main means by which rights and obligations are implemented - are implemented in the behavior of specific subjects. These acts can be expressed in three forms: compliance, execution and use.
69. RELIGION AND LAWAs you know, the church is separated from the state, but is not separated from the society with which it is connected by a common spiritual, moral, cultural life. It has a powerful effect on the consciousness and behavior of people, acts as an important stabilizing factor.
Weight representatives of religious organizations, associations, faiths, communities that exist on the territory of the Russian Federation are guided by the exercise of their constitutional right to freedom of conscience both by their religious rules and beliefs, and by the current legislation of the Russian Federation. The last basic legal act regulating the activities of all types of religions in Russia (Christianity, Judaism, Islam, Buddhism) is the Federal Law “On Freedom of Conscience and Religious Associations” of September 26, 1997.
This law also defines the relationship between the church and the official authorities, it intertwines legal and some religious norms. The church respects the law, laws, the order established in the state, and the state guarantees the possibility of free religious activity, not contradicting the principles of public morality and humanism. Religious freedom is an essential feature of a civilian democratic society. The revival of religious life, respect for the feelings of believers, the restoration of temples destroyed in their time - an undoubted spiritual achievement of a new Russia.
The close relationship between law and religion is evidenced by the fact that many Christian commandments, such as “do not kill,” “do not steal,” “do not bear false witness,” and others are enshrined in the law and are considered crimes by him. In Muslim countries, law is generally based to a large extent on religious dogmas (norms of adat, sharia), for the violation of which very severe penalties are provided. Sharia is Islamic (Muslim) law, and adat is a system of customs and traditions.
Religious norms as mandatory rules of behavior for believers are contained in such well-known historical monuments as the Old Testament, New Testament, Quran, Talmud, Sunna, the Holy Books of Buddhism, as well as in the current decisions of various cathedrals, colleges, clergy, governing structures of the church hierarchy. The Russian Orthodox Church knows canon law.
The Constitution of the Russian Federation states: “The Russian Federation is a secular state. No religion can be established as state or mandatory. 2. Religious associations are separated from the state and are equal before the law ”(Article 14). “Everyone is guaranteed freedom of conscience, freedom of religion, including the right to profess individually or jointly with others any religion or not to profess any, freely choose, have and disseminate religious and other beliefs and act in accordance with them” (Article 28).
“A citizen of the Russian Federation, in the event that his convictions or religion is contrary to military service, as well as in other cases established by federal law, has the right to replace it with alternative civilian service” (paragraph 3 of article 59). However, the law on alternative civil service has not yet been adopted.
It should be noted that in recent years, religious freedom has increasingly come into conflict with the ideas of human rights, humanism, morality, and other generally recognized values. Today in Russia there are about 10 thousand so-called non-traditional religious associations. Not all of them perform truly socially useful or at least harmless functions. There are separate cult groups, sects, whose activities are far from harmless and, in fact, are socially destructive, morally condemned in nature, especially foreign ones, including Catholic, Protestant ones. The headquarters of some religious communities are located in the USA, Canada and other countries.
70 STATE SUPERVISION IN THE CONDITIONS OF GLOBALIZATIONSTATE Sovereignty The Russian Federation is a sovereign state.
G. S. RF - the independence and freedom of the multinational people of Russia in determining their political, economic, social and cultural development, as well as territorial integrity, the supremacy of the Russian Federation and its independence in relations with other states.
The sovereignty of the Russian Federation is “a natural and necessary condition for the existence of Russian statehood, which has a long history, culture and established traditions” (Declaration on State Sovereignty of the RSFSR of June 12, 1990).
A prerequisite for the formation of a sovereign state is a nation as a historical and cultural association of people.
The multinational people of Russia is the only bearer of sovereignty and a source of state power.
G. S. of the Russian Federation consists of the rights of individual peoples of Russia, therefore, the Russian Federation guarantees the right of each people of Russia to self-determination within the territory of the Russian Federation in their chosen national-state and national-cultural forms, preservation of national culture and history, free development and use of the native language etc.
Structural elements of G. S. RF:
1) the independence and independence of state power of the Russian Federation;
2) the supremacy of state power throughout the territory of the Russian Federation, including its individual entities;
3) the territorial integrity of the Russian Federation.
The autonomy and independence of the state power of the Russian Federation suggests that the Russian Federation independently determines the direction of both domestic and foreign policy.
To ensure the right of state
Jurisprudence.
State
State - a special form of organization of political power in society, possessing sovereignty and administering society on the basis of law, using a special mechanism (apparatus).
The state has a monopoly on the exercise of power and on the management of society.
Theories of state origin:
· Theological (divine will).
· Patriarchal (the transformation of a large family into a nation and the transformation of paternal power over children into the state power of the monarch over his subjects, obliged to obey him in everything).
· Contractual (people entered into an agreement with the state, transferring to it part of their rights that belonged to them from birth, so that the state would manage the company on their behalf and ensure order in it).
· Theory of violence (in primitive society, strong tribes conquered the weak, creating a special suppression apparatus to manage the conquered territories and ensure the submission of their population).
· Irrigation theory (there was a need to organize large-scale public works on the construction of irrigation facilities. For this, a special apparatus was created - the state).
· Marxist theory (at a certain stage in the development of a primitive society, due to the improvement of its productive forces, surpluses of products and goods appear in excess of those necessary for personal consumption. These surpluses accumulate in individuals (primarily leaders and elders), thus creating private property, which is not The emergence of property inequality led to the split of a previously homogeneous society into classes with conflicting interests (rich and poor, slaves and slaveholders) .As a result, the economically dominant class needed a special structure to keep slaves in obedience, and therefore the state was created as a special apparatus, a machine with which slaveholders established their political dominance).
Signs of the state:
· The presence of special state. bodies (government, police, courts, etc.)
· State power extends to everyone on the territory of the state
· Only the state can establish rules of conduct (rule of law)
· Only the state can levy taxes and other mandatory fees on the population
· State has sovereignty
State functions:
o In the economic sphere - long-term planning and forecasting of the country's economic development, the formation of state. budget and control over its spending, the establishment of a tax system.
o In the social sphere - social. Protection of the most vulnerable segments of the population (disabled, unemployed, large families), old-age pensions, allocation of funds for free education, healthcare, road construction, development of public transport, communications, etc.
o In the political sphere - the protection of law and order, the rights and freedoms of citizens, the prevention of ethnic and religious conflicts, assistance to internally displaced persons and migrants.
o In the cultural sphere - state. support and financing of art, national culture, concern for the moral health of society.
· External functions
o Mutually beneficial economic, political, scientific, technical, military, cultural cooperation with other states.
o Protection from attack, external aggression, protection of state. borders.
o Securing peace on Earth, preventing wars, disarmament, eliminating nuclear, chemical and other weapons of mass destruction, fighting international terrorism.
State form
State form - organization and organization of state. authorities, as well as methods for its implementation.
Form of government (who owns the power):
· Monarchy (supreme power belongs to one person).
o Absolute - the monarch does not share power with anyone. (Ancient Egypt, Ancient China, etc.).
o Limited constitutional - along with the monarch there is another higher authority (for example, parliament).
§ Parliamentary - the monarch is limited in rights and this is enshrined in the main law (constitution). (Belgium, Sweden, Japan).
§ Dualistic - the duality of supreme power: the monarch forms the government, but the legislative power belongs to the parliament. (It is rare - Morocco, Jordan).
· The Republic (the supreme power belongs to the bodies elected by the people for a certain term, while the elected representatives bear legal responsibility for their actions in managing the company).
o Presidential - the president, elected by the electoral college (or directly by the people) for a certain term, is both the head of state and the head of the executive branch. He leads the government, which he himself forms. (USA).
o Parliamentary - the president is elected by parliament and does not have a large amount of power. He is only the head of state and does not head the executive branch. At the head of the government is the prime minister. (Germany, Italy).
o Mixed (France, Russia).
The device of the state-va (territorial division):
· Unitary - a state in whose territory, for the convenience of management, is divided into administrative-territorial units (regions, districts, departments, voivodships, etc.) that do not have independence. (Poland, France, Lithuania).
· Federal - state, which is a voluntary association of several sovereign states. When combined, they create a qualitatively new state in which they receive the status of objects of the federation (states, republics, lands, etc.). At the same time, new federal authorities are created, to which members (subjects) of the federation transfer part of their authority, thereby limiting their sovereignty. Two systems of government - federal (operate throughout the state) and the subjects of the federation (operate only on its territory). Laws - federal and federal subjects. (USA, Germany, Russia).
· Confederation - a union of sovereign states concluded by them to achieve any specific goals (joint solution of economic problems, defense). (USA from 1776 to 1787)
State (political) regimes:
· Democratic (ensures the equality of all citizens and the actual implementation of all civil and political rights and freedoms, as well as equal access for all citizens and their associations to participate in public and state affairs).
· Anti-democratic
o Totalitarian (the state exercises full, universal (total) control over all areas of society).
The judicial system of the Russian Federation
Elections
Election system:
· Majority (One candidate from one constituency. The list of voters shall contain no more than two candidates. Citizens vote for the best in their opinion.)
· Mixed (in some countries) (Half of the list is by majority, half by proportional).
Electoral qualifications affect candidates and voters.
Candidates:
· Must have reached a certain age (usually 21).
· For some candidates, the qualification of residence is introduced (to live a certain number of years in the country).
Voters must be capable, full of age, have citizenship, and have no restriction of rights (to sit in prison, for example).
In a number of countries there is a property qualification (only wealthy citizens are allowed to vote).
There is a minimum turnout threshold (for most countries 50% + 1 person).
All elected deputies receive state. salary and immunity from persecution (cannot be subjected to arrest, detention, imprisonment). For committing a serious crime - a deputy is deprived of status (only parliament can deprive status). The measure is aimed at protecting deputies from the arbitrariness of the authorities.
For all the time the deputy can not engage in commercial activities, be a state. service.
The work of the deputy is to participate in the activities of the parliament, fulfill party f-ii, protect the rights of citizens. Additionally, the deputy may engage in scientific or journalistic activities.
For the duration of the work, the deputy is provided with official housing (in some countries and transport).
The deputy has expanded powers in relation to state bodies. authorities (the deputy can make a request on the fact of violation of rights revealed by him in any government body).
A deputy has the right to raise a question with the prosecution and inquiry bodies in cases of violation of voters' rights.
To do the work, deputies are assigned assistants. In some countries, deputy assistants have the rights of the deputy himself. In the Russian Federation, deputy assistants perform only technical f-s.
Upon completion of the term of the deputy’s mandate, the deputy leaves office property and returns to the region where he was elected. If a deputy has held a position in government. power before the election, then he gets it back.
There are a number of state posts. authorities incompatible with the work of the deputy.
A person cannot be elected simultaneously to local and federal authorities. In case of victory in both local and federal elections - he will be left only in one.
Legal relationship
Legal relationship - public relations regulated by the rule of law are authorized and protected by the state.
All significant relations in society are regulated by law. Ignorance of the rule of law does not exempt the subject from liability in case of violations.
The rules of law are divided by scope.
Relations related to property, as well as some non-property relations, are governed by civil law (Civil Code of the Russian Federation and Civil Procedure Code of the Russian Federation).
Personal non-property relations include honor, dignity and business reputation. Civil law protects these three categories.
Relations in the field of administrative management and public order are governed by the norms of administrative law.
The regulations of ministries, departments, services, standards of conduct of citizens are regulated by the Administrative Code of the Russian Federation.
Public relations related to the suppression of crimes are regulated by criminal law. The criminal law applies only to physical. persons (i.e. it is impossible to hold the company accountable, you can bring employees).
Offenses:
· In civil law - tort
· In administrative law - misconduct
· Criminal law - crimes
Offense- an objective, guilty, unlawful act committed by the proper subject.
Greatest danger represent crimes.
The offense consists of 4 parts:
· Object (Public relations, which are protected by the state. The state does not protect individuals or legal entities in person, it protects the rule of law. The rules of law regulate public relations. Participants in public relations automatically become subjects of legal relations. If the subject of legal relations violates the rule of law , he becomes the subject of the offense. Violating the rights of the subject, the subject violates the rights of persons involved in legal relations.)
· The objective side (all circumstances allowing to establish the actions of the offender)
Subjective side (characterized by guilt)
Wines - the mental attitude of the person to the act committed by him.
o Direct (when a person knew about the consequences of his deed and wished for their onset)
o Indirect (when a person knew about the consequences of his deed, but treated them indifferently)
· Carelessness
o Frivolity (the person was aware of the consequences of the act, did not want them to occur, frivolously calculated that the consequences would not occur or could be prevented)
o Negligence (the person did not know about the consequences of the act, although due to qualifications, or, based on the circumstances, he should have known)
· Subject (the offense is committed only by a capable or divisive entity)
Civil Relations
Civil relations regulate social relations that are related to property relations, interests of individuals. and jur. persons, as well as government bodies. authorities.
Property relations imply interest of the parties in obtaining a mat. benefits, both by obtaining property (movable and immovable), so by performing work and providing services.
Personal relationships:
o Property
o Non-property
Both categories suggest mat. interest, the subjects of which, participating in civil matters pursue their private interest, usually associated with enrichment, including government agencies. authorities.
Similar information.
Political Community - Community Group GROUP
- a stable community of people united by common interests, motives, norms of activity, count ..., characterized by a recognized community GENERALITY
- a set of people associated with the similarity of living conditions, the unity of values \u200b\u200band norms, relations of ... interests (shared interests), the presence of certain means in order to deter destructive violence VIOLENCE
- targeted coercive force, the action of one subject on another subject, carried out ... as well as institutions and institutions for the adoption and implementation of joint decisions.
One can single out the different foundations of identity within political communities that have changed throughout history.
1. Generic or kinship.
In such communities, a hierarchy arises on the basis of a common origin, gender, and accordingly there is an age hierarchy.
The transition form from tribal communities to local and social are chiefdoms.
The chiefdom occupies the middle stage and is understood as an intermediate stage of integration between achephal societies and bureaucratic state structures.
The chiefdoms usually consisted of communities of 500-1000 people. Each of them was led by assistants to the leader and elders who connected communities with the central settlement.
The real power of the leader was limited by the council of elders. The Council, if desired, could replace the unsuccessful or objectionable leader, and also chose a new leader from his relatives.
- chiefdom is one of the levels of socio-cultural integration, which is characterized by supralocal centralization.
- In essence, the chiefdom is not just a local organization, but also a pre-class system.
2. Religious and ethnic.
Examples of such communities are Christian communities, parishes as social organizations.
And Ummah - in Islam - a religious community.
Using the term "Ummah" in the Qur'an, human communities were designated that constituted the world of people.
The history of mankind in the Qur'an is a successive change of one religious community to another, all of them used to be a single Ummah of people united by a common religion .. The emergence of U. as a social organization marked the formation of a structure of relations of domination - submission with the absolute nature of supreme power.
3. A formal sign of citizenship
Example - Policy.
Political community with pronounced publicity
authorities were not separated from the population
they are weakly expressed, it is too early to talk about the presence of a special control apparatus
in a small area, there should be authorities
casts doubt that the policy is a city-state.
In general, the policy (civitas) is a civil community, a city-state.
The form of socio-economic and political organization of society and the state in Greece, and dr. Rome
Arose in the 9-7 centuries. BC.
The policy was composed of full citizens with the right to land ownership, as well as political rights to participate in command and service in the army. On the territory of the policy there lived people who were not included in the policy and did not have civil rights, metecs, periods, freedmen, slaves.
4. Clientellistic and meritocratic signs.
An example is dynastic states.
Features: For the king and his family, the state is identified with the “royal house”, understood as an inheritance, which includes the royal family itself, that is, family members, and this inheritance must be disposed of “in a businesslike manner”.
According to E.U. Lewis, inheritance method defines a kingdom. Royal power is honour transmitted through an agnatic hereditary lineage (blood right) by birthright; state or kingdom comes down to the royal family.
In the modern world, the main feature of the political community is not so much hierarchy as civic identity.
The first forms of modern political communities in the modern era were nation-states, in which
In the sixteenth and eleventh centuries, that is, with the beginning of the Modern period (Sovrmennost), strong centralized rulers began to appear in different parts of Europe, who sought to establish unlimited control over their territory - absolute monarchs. They managed to limit the independent power of the counts, princes, "boyars or barons, to ensure centralized tax collection, to create large armies and an extensive bureaucratic apparatus, a system of laws and rules. In those countries where the Protestant Reformation won, the kings managed to establish their authority over the church as well. .
Massive armies, primary education, and protests against the universalist claims of widespread liberalism led to the emergence of “nation states” (nation states).
Signs of modern ps:
7) civic identity. on its basis a nation arises. The nation contains strong ethnocultural components.
8) if you go beyond modernity: the political community presupposes, on the one hand, a sense of belonging of the members of society to a certain whole, identification of oneself with it. On the other hand, identification is important not only in itself, but also functionally, because it allows the legitimate violence that the political community produces against its members to be carried out.
9) Along with identity, the political community is characterized by the presence of a power hierarchy,
10) use of violence
11) the ability to mobilize and redistribute resources
12) the availability of institutions
23. A nation as an imaginary community. B. Andersen
Nation and nation ...
In modern Western ethnology, only E. Smith attempted to justify the legality and necessity of the coexistence of these approaches. He draws attention to the fact that the paths of the formation of nations largely depend on the ethnocultural heritage of the ethnic communities that preceded them and on the ethnic mosaicity of the population of those territories in which the formation of nations takes place. This dependence serves as the basis for him to single out "territorial" and "ethnic" nations both as different concepts of nations and as different types of objectification. The territorial concept of a nation, in its understanding, is a population having a common name, owning a historical territory, common myths and historical memory, having a common economy, culture and representing common rights and duties for its members "96. On the contrary, the ethnic concept of a nation" seeks to replace, with customs and dialects, the legal codes and institutions that form the cement of a territorial nation ... even the general culture and "civil religion" of territorial nations have their equivalent in ethnicity and concept: a kind of messianic nativism, faith in the redeeming qualities and uniqueness of an ethnic nation "97. It is important to note that E. Smith considers these concepts to be only ideal types, models, while in reality “each nation contains features of both ethnic and territorial” 98.
In the latest Russian ethnopolitical science, we find a historiographic fact testifying to attempts to overcome the antagonism of the meaningful interpretation of the concept of "nation" indicated above. E. Kisriev offers "a new look at the" conflict "of the two main, it would seem, incompatible approaches to the interpretation of the concept of a nation." He is confident that "their conflict lies not in the plane of meaning, but in the practice of a particular historical process." This researcher sees the essence of the problem in that "political unity will not be sustainable without a certain unification of all ethnic diversity in it ... while ethnic unity at a certain stage in the development of its being can acquire self-awareness and become involved in the process of its national (political) self-determination " It is "such specific situations", according to E. Kisriev, that "generate" conceptual "disagreements in the definition of a nation" 99. However, it seems to us that the essence of the differences in the interpretation of the nation does not stem from the noted metamorphoses of ethnic and political. Conceptual antagonisms are generated by a fundamentally different understanding of ethnicity as such: the interpretation of a nation as a stage in the development of an ontologized ethnic community in one case, and a fundamentally non-ethnic understanding of a nation as co-citizenship in another. The essence of the conflict is not that one term is used to label various social substances, but that one of these substances is a myth. Outside of this conflict, the debate about the substantive richness of the concept of “nation” seems to be purely terminological and implies the fundamental attainability of consensus.
It has already been said above that in the German-speaking science of nations, "a nation, as a social phenomenon, has often been identified with an ethnocultural community. It cannot be said that this approach has been completely overcome in Western science. And in the modern western paradigm of primordialist interpretations of a nation, it appears" as a politically conscious ethnic community claiming statehood "100.
In the works of some Russian epigones of primordialism, the nation is completely capable of parting with the attribute of state registration and appears as a “sociological team based on ethnic and cultural similarities, which may or may not have its own state” 101.
Not without pride, R. Abdulatipov notes that “in Russian society there are completely different (than in the West. - V.F.) views on the development of the nation. Nations are considered here as ethnocultural entities attached to a certain territory, with their traditions, customs, and morality etc." 102. Probably not being fully acquainted even with the works of domestic primordialists, he seriously believes that "in the modern Russian scientific language, the term" ethnos "to a certain extent corresponds to the more common words" nation "," nationality "103. It is worth remembering that even Stalin’s apologists The doctrines and ardent supporters of Y. Bromley treated the nation only as the highest stage in the development of an ethnic community associated with a particular socio-economic formation (the “highest type of ethnos.” - V. Torukalo 104) and never used the term “nation” as a synonym for “ethnos” This circumstance, however, does not bother R. Abdulatipov at all, who develops his thought as follows: "The definition of the concept of" ethnos ", which is currently the most common among specialists, was given by academician Y. Bromley ... Somewhere given the definition is in contact with the well-known, more schematic, definition of Stalin "105. Where these definitions" come in contact "is difficult to understand, since I. Stalin, of course, never used the concept of "ethnos."
Creatively developing the doctrine of the “father of peoples,” R. Abdulatipov enriches the list of immanent, as it seems to him, properties of the phenomenon that interests us: “A nation is a cultural and historical community with distinctive manifestations of language, traditions, character, the whole diversity of spiritual features. The life of a nation ... long the period is connected with a certain territory. Nations are the most important subjects of the political, socio-economic and spiritual-moral progress of the state "106. We have already quoted the opinion of this author on morality as a property of a nation. It is difficult to understand what is meant here. What morality (as a kind of unchanging essence) is a priori inherent in any nation, like, say, culture? Or that each nation has its own morality, and, accordingly, is there a temptation to perceive other nations as less moral or completely immoral?
The category "nation", loaded in a primordialist interpretation with ethnic meaning, becomes a stumbling block on the path of mutual understanding of researchers who somehow interpret this phenomenon. In the absence of special explanatory introductions, it is often impossible even from the context of the work to understand what an author understands, using the ill-fated term. This sometimes creates almost insurmountable difficulties for historiographic interpretations and scientific criticism. The only way to preserve the communicative space in science is to reach a consensus, according to which the term "nation" is used strictly in its civil, political meaning, in the sense in which most of our foreign colleagues use it now.
In Western Europe, the first and long enough only concept of a nation was the territorial-political concept formulated by encyclopedists who understood the nation as "a group of people living on the same territory and subject to the same laws and the same rulers." This concept was formulated during the Enlightenment - when other methods of legitimizing power were discredited and the understanding of the nation as a sovereign was established in state ideology. It was then that "the nation was realized as a community, since the idea of \u200b\u200ba unity of national interests, the idea of \u200b\u200bnational fraternity prevailed in this concept over any signs of inequality and exploitation within this community." In the era of the formation of national states, a nation was understood as a union of citizens, as the will of individuals through social contract. "The reflection of this thesis was the famous definition of a nation as an everyday plebiscite given by E. Renan in his sorbonne lecture of 1882." 109.
Much later, in the second half of the last century, in a heated debate about the nature of the nation and nationalism in Western science, a scientific tradition was established, based on the understanding formulated by H. Kon, of "nationalism as the primary, formative factor, and the nation as its derivative, the product of the national consciousness, national will and national spirit "110. The works of his most famous followers repeatedly affirm and substantiate the conclusion that "it is nationalism that gives rise to nations, and not vice versa" 111, that "nationalism is not an awakening of nations to self-awareness: he invents them where they do not exist" 112, which "a nation represented by nationalists as a" people "is a product of nationalism," that "a nation arises from the moment when a group of influential people decides that this is how it should be." 113
In his fundamental work with the aphoristic title “Imaginary Communities”, B. Andersen describes the nation as an “imaginary political community”, and imagines it, in accordance with this approach, “as something inevitably limited, but at the same time sovereign” 114. Of course, such a political community is a citizenship indifferent to the ethnocultural identity of its members. With such an approach, a nation appears as “a multi-ethnic composition, the main features of which are territory and citizenship” 116. This is the meaning of the category we are interested in in international law, and it is with such a semantic load that it is used in the official language of international legal acts: "a nation" is interpreted as a population residing on the territory of a state ... The concept of "national statehood" has in international law practice " general civilian "meaning, and the concept of" nation "and" state "form a single whole" 117.
There are four levels of imagination of the nation.
- The first - border, an imaginary zone that separates one community from another. At the border, symbols that are especially demanded are not bearing a special functional load, emphasize the difference between this community and others.
- Second - commonality, more precisely, the many communities into which the society-nation is divided. It is very important that these communities are relatively homogeneous or understandably streamlined, share national values \u200b\u200band feel this similarity, feel that they are communities of “normal people”.
- Third, - symbolic center, central community zoneas Edward Shills called it, that is, the imaginary space in which the main values, symbols and the most important ideas about the life of a particular society-nation are concentrated. It is the orientation toward the central zone and its symbols that maintains the unity of communities that can contact rather weakly with each other.
- Finally, the fourth level, - meaning Society, so to speak, is his symbol of symbols, the "prasymbol", as the German philosopher Oswald Spengler called him, characterizing great cultures. A certain meaning stands behind all the symbols of the central zone of society, organizes them and creates a kind of matrix for selecting what can be included in the central zone of society and what cannot be accepted into it. Members of society, this impact of meaning is perceived as certain energy filling the community and giving him vitality. The meaning leaves - the energy leaves too, life becomes “no reason”.
Benedict Andersen.
“In an anthropological sense, I propose the following definition nation: it is an imaginable political community - and at the same time imaginable as genetically limited and sovereign.
It imaginable the fact that representatives of even the smallest nation will never know most of their compatriots, will not meet and will not even hear anything about them, and yet the image of their participation will live in everyone’s imagination.
Nation appears limitedbecause even the largest of them, numbering hundreds of millions of people, has its own borders, even elastic ones, outside which other nations are located. No nation represents itself equivalent to humanity. Even the most messianic nationalists do not dream about the day when all members of the human race will unite their nations into one, similar to how, at certain times, say, Christians dreamed of a completely Christianized planet.
She introduces herself sovereignbecause the concept itself was born in an era when the Enlightenment and the Revolution destroyed the legitimacy of the God-established and hierarchical dynastic state. Reaching maturity at the stage of human history when even the most ardent followers of any of the universal religions inevitably faced with the obvious pluralism of these religions and the alomorphism between ontological claims and the territorial spread of each faith, nations sought freedom, if they were already subject to God, without intermediaries. The sovereign state becomes the emblem and symbol of this freedom.
Finally she introduces herself community, in fact, despite the factual inequality and exploitation that dominate there, the nation is always perceived as a deep and united brotherhood. Ultimately, it was this fraternity that has made it possible over the past two centuries for millions of people to not only kill, but also willingly give their lives in the name of such limited representations. ”
24. The concept of political participation (types, intensity, efficiency). Factors determining the characteristics of political participation
Political participation is the involvement of an individual in various forms and levels of the political system.
Political participation is an integral part of broader social behavior.
Political participation is closely linked to the concept of political socialization, but it is not only its product. This concept is also relevant for other theories: pluralism, elitism, Marxism.
Each considers political participation in its own way.
Jereint Perry - 3 aspects:
The model of political participation is forms. which takes political part - formal and informal. It is implemented depending on opportunities, level of interests, available resources, orientation, regarding forms of participation.
Intensity - how much is involved in accordance with this model and how often (also depends on capabilities and resources)
Quality level of efficiency
Models of intense political participation:
Lester Milbright (1965, 1977 - second edition) - hierarchy of forms of participation from non-involvement to political positions - 3 groups of Americans
Gladiators (5-7%) - maximize participation, later identified different subgroups
Spectators (60%) - maximally involved
Apathetic (33%) - not involved in politics
Verba and Nye (1972, 1978) - a more complex picture and identified 6 groups
Totally Passive (22%)
Localists (20%) –– involved in politics only at the local level
Parochial 4%
Campaign Participants 15%
Total activists
Michael Rush (1992) is needed not by level, but by type of participation that would suggest a hierarchy that applies to all levels of politics and to all political systems
1) occupation of political or administrative posts
2) the desire to occupy political or administrative positions
3) active participation in political organizations
4) active participation in quasi-political organizations
5) participation in rallies and demonstrations
6) passive membership in political organizations
7) passive membership in quasi-political organizations
8) participation in informal political discussions
9) some interest in politics
11) non-involvement
Special cases - unconventional participation
Alienation from the political system. It can print forms of participation and non-participation
The intensity is extremely different by country:
Netherlands, Austria, Italy, Belgium; participation in the vote on national elections - about 90%
Germany, Norway - 80%
Britain Canada - 70%
USA, Switzerland - 60%
local activity is much lower
Factors affecting the intensity:
Socio-economic
Education
Place of residence and time of residence
Age
Ethnicity
Profession
The effectiveness of participation correlates with the indicated variables (level of education, availability of resources), but the assessment of the effectiveness of participation depends on the type of political action according to Weber.
Factors (nature of political participation)
The nature of participation is different theories.
1) instrumentalist theories: participation as a way to achieve their interests (economic, ideological)
2) developmentalism: participation - the manifestation and education of citizenship (this is still in the works of Rousseau, Mill)
3) psychological: participation is considered in terms of motivation: D. Maclelland and D. Atkins identified three groups of motives:
The motive for owning power
Motive of achievement (goals, success)
The motive of joining (to enhance (be with other people))
4) Enotoni Downs in the economic theory of Democracy (1957) is another way of looking at the nature of participation: although he applies his approach to voting, he can be extrapolated to all forms of participation: a rational explanation
5) Olson: the rational individual will shy away from participation. when it comes to achieving a public good
Millbright and Guil -4 factors:
1) political incentives
2) social position
3) personal characteristics - extra-introvert
4) the political environment (political culture, institutions as the rules of the game, may encourage some form of participation)
Rush adds:
5) mastery (communication skill, organizing ability, public speaking)
6) resources
Political participation - legal actions of private citizens, more or less directly aimed at influencing the selection of government personnel and (or) influencing its actions (Verba, Nye).
4 forms: in elections, in election campaigns, individual contacts, political participation at the local level.
Autonomous - mobilized; activist - passive; legal-conventional - illegal; individual - collective; traditional - innovative; permanent - episodic
25. Sociological model of electoral behavior: Siegfried, Lazarsfeld, Lipset and Roccan
The party’s social base is the aggregate of averaged socio-demographic characteristics of its electorate.
The difference in the social base of the PP is explained by the theory of social divisions of Lipset and Rokkan.
Tracing the history of political parties in the West, they came to the conclusion that there are 4 main divisions in which political parties are formed.
1. Territorial - center-periphery. The demarcation originates from the formation of state nations and, accordingly, the beginning of the center’s intervention in the affairs of the regions. In some cases, the early waves of mobilization could put the territorial system on the brink of complete disintegration, contributing to the formation of intractable territorial and cultural conflicts: the confrontation between the Catalans, Basques and Castilians in Spain, the Flemings and Walloons in Belgium, the division between the English-speaking and French-speaking population of Canada. And the formation of parties - the Basque in Spain, the nationalist parties of Scotland and Wales.
2. The state is the church. This is a conflict between a centralizing, standardizing and mobilizing nation-state and the historically strengthened privileges of the church.
Both Protestant and Catholic movements created wide networks of associations and institutions for their members, organizing stable support even among the working class. This explains the creation of the Christian Democratic Party of Germany and others.
The other two delimitations originate from the time of the industrial revolution: 3. The conflict between the interests of land owners and the growing class of industrial entrepreneurs, as well as the conflict between owners and employers, on the one hand, and workers and employees, on the other.
4. Split city - village. Much depended on the concentration of wealth and political control in cities, as well as on the ownership structure in the rural economy. In France, Italy, Spain, the demarcation of the city and village was rarely expressed in the opposition positions of the parties.
Thus, the social base of parties depends on the type of split that led to the formation of the party; they can be class, national, regional, religious.
3 factors influence electoral behavior:
Landscape
Type of settlement
Property Relations
Lazarsfeld - a study of the presidential election in the USA in 1948, membership in large social groups, each group provides the party's social base, solidarity with the reference group (expressive behavior).
26. Socio-psychological model of electoral behavior: Campbell. "Funnel of causality"
Job: American Voter. 1960
Behavior is considered mainly as expressive (the object of solidarity - the party), the propensity for support is due to family, traditional preferences, "party identification" - value.
The totality of factors.
27. A rational model of electoral behavior: Downs, Fiorina
Voting is a rational act of the individual. He chooses based on his own interests. It is based on the work of Downs, The Economic Theory of Democracy: everyone votes for the party that he believes will provide him with more benefits than the other. He believed that the voter chooses parties according to ideological programs, which do not correspond to empirical material.
M. Fiorin revised the last point: the voter votes for or against a government party, based on whether he lived well or poorly under a given government (rather than studying party programs).
4 variants of this model, modern research:
Voters evaluate their financial situation (egocentric voting)
Voters evaluate the situation in the entire economy (sociotropic)
More important is the assessment of the results of past activities of the government and the opposition when it was in power (retrospective)
More important are expectations about the future activities of the government and the opposition (promising)
Explanation of absenteeism in a rational model:
the voter compares the expected costs and the expected benefits of the vote.
The more voters, the less influence each of them has.
The fewer conflicts in society, the less the influence of each individual voter.
Society is a certain hysterically established form of community of people.
Any community of people is characterized by differences between them and a certain degree of organization, regulation, orderliness of public relations. The division of labor in the economy objectively leads to the formation of various layers, castes, classes of people. Hence the differences in their consciousness, worldview.
Social pluralism underlies the formation of political ideas and teachings. The political structure of society according to the logic of things reflects its social diversity. Therefore, in any society at the same time there are forces striving to turn it into a more or less integral organism. Otherwise, a community of people is not a society.
The state acts as the external (separating to a certain extent from society) force that organizes society and protects its integrity. The state is a publicly established power, it is not a society: it is to some extent separated from it and forms a force called to organize public life, to manage it.
Thus, with the advent of the state, society splits into two parts - the state and the rest, the non-state part, which is civil society.
Civil society is a capable system of social, economic, political, legal and other relations taking shape in society in the interests of its members and their associations. For the optimal management and protection of these relations, civil society establishes a state - the political power of this society. Civil society and society in general are not the same thing. Society is the whole community of people, including the state with all its attributes; civil society is a part of society with the exception of the state as an organization of its political power. Civil society appears and takes shape later than society as such, but it certainly appears with the advent of the state, and functions in cooperation with it. No state - no civil society. Civil society functions normally only when in the activities of state power the universal values \u200b\u200band interests of society are in the foreground. Civil society is a society of citizens with various group interests.
The state as an organization of the political power of a certain society from other organizations and institutions of a society is distinguished by the following features.
1. The state is a political-territorial organization of a society, the territory of which is under the sovereignty of that state, is established and fixed in accordance with historical realities, international agreements. A state territory is a territory not only declared by some state entity, but also recognized as such in the international order.
2. The state differs from other organizations of society in that it represents public authority, which is contained in taxes and duties on the population. Public authority is an established authority.
3. The state is distinguished by the presence of a special enforcement apparatus. Only it has the right to maintain armies, security agencies and public order, courts, prosecutors, prisons, and places of detention. These are purely state attributes, and no other organization in a state society has the right to form and maintain such a special coercive apparatus.
4. The state and only it can clothe its command in a generally binding form. Law, law are attributes of the state. Only it has the right to issue binding laws for all.
5. The state, unlike all other organizations in society, has sovereignty. State sovereignty is a political and legal property of state power, expressing its independence from any other power inside and outside the borders of the country and consisting in the right of the state to independently and freely decide its affairs. There are no two identical authorities in one country. State power is the supreme power and not separable from anyone.
The basic concepts of the emergence of the state and law and their analysis.
The following theories of the origin of the state are distinguished: theological (F.Akvinsky); patriarchal (Plato, Aristotle); contractual (J.-J.Russo, G. Grotius, B. Spinoza, T. Hobbes, A.N. Radishchev); Marxist (K. Marx, F. Engels, V.I. Lenin); theory of violence (L. Gumplovich, K. Kautsky); psychological (L. Petrazhitsky, E. Fromm); organic (G. Spencer).
The basic idea of \u200b\u200btheological theory is the divine primary source of the origin and essence of the state: all power is from God. In the patriarchal theory of Plato and Aristotle, an ideal fair state emerges from a family in which the monarch’s power is personified with his father’s power over members of his family. They considered the state a hoop, fastening their members on the basis of mutual respect and fatherly love. According to the contract theory, the state arises as a result of the conclusion of a social contract between people who are in a “natural” state, which turns them into a single whole, into a people. The theory of violence is the conquest, violence, enslavement of some tribes by others. Psychological theory explains the causes of the state by the properties of the human psyche, its biopsychic instincts, etc. Organic theory considers the state to be the result of organic evolution, of which social evolution is a variation.
The following concepts of law exist: normativism (G. Kelsen), the Marxist school of law (K. Marx, F. Engels, V.I. Lenin), the psychological theory of law (L. Petrazhitsky), the historical school of law (F. Savigny, G. Pukhta), Sociological School of Law (R. Paund, S.A. Muromtsev). The essence of normatism is that law is seen as a phenomenon of proper streamlining of the system of norms. The psychological theory of law, the concept and essence of law derives from the legal emotions of people, firstly, a positive experience, reflecting the establishment of the state and, secondly, an intuitive experience, which acts as a real, "valid" law. The sociological school of law identifies law with judicial and administrative decisions, which see “living law”, thereby creating the rule of law, or the order of legal relations. The historical school of law proceeds from the fact that law is a common conviction, a common "national" spirit, and the legislator acts as its main representative. The Marxist understanding of the essence of law is that law is only the will of the ruling classes elevated to the law, a will whose content is determined by the material conditions of life of these classes.
The functions of the state are the main directions of its political activity, in which its essence and social purpose are expressed.
The most important function of the state is the protection and guarantee of human and civil rights. The functions of the state are divided into the following types:
I. By subjects:
functions of the legislature;
executive functions;
functions of justice;
II. In the directions:
1. External functions - this is the direction of the state’s activity in solving external tasks
1) peacekeeping;
2) cooperation with foreign states.
2. Internal functions - this is the direction of the state in solving its internal problems
1) economic function;
2) political function;
3) social function;
III. By field of activity:
1) law-making;
2) law enforcement;
3) law enforcement.
The form of the state is an external, visible organization of state power. It is characterized by: the order of formation and organization of higher authorities in society, the method of territorial structure of the state, the relationship between central and local authorities, the techniques and methods of exercising state power. Therefore, revealing the question of the form of the state, it is necessary to distinguish its three components: the form of government, the form of government, and the state regime.
Under the form of government is understood the administrative-territorial structure of the state: the nature of the relationship between the state and its parts, between parts of the state, between central and local authorities.
All states according to their territorial structure are divided into simple and complex.
A simple or unitary state does not have within itself separate state entities that enjoy a certain independence. It is subdivided only into administrative-territorial units (provinces, provinces, counties, lands, regions, etc.) and has uniform supreme governing bodies common to the whole country.
A complex state consists of separate state entities that use one or another independence. Complex states include empires, confederations, and federations.
Empire is a forcibly created complex state, the degree of dependence of its components on the supreme power is very different.
Confederation - a state created on a voluntary (contractual) basis. The members of the confederation retain independence, join their efforts in achieving common goals.
Confederation bodies are formed from representatives of its member states. Confederate bodies cannot directly compel union members to enforce their decisions. The material base of the confederation is created by contributions from its members. As history shows, confederations do not exist long and federal states (for example, the USA) either disintegrate or transform.
A federation is a sovereign complex state, incorporating state entities called subjects of the federation. State formations in a federal state differ from administrative units in a unitary state in that they usually have a constitution, higher authorities, and, consequently, their own legislation. However public education - This is part of a sovereign state and therefore does not possess state sovereignty in its classical sense. A federation is characterized by such a state unity as the confederation does not know, from which it differs in a number of essential features.
According to the legal norms of consolidation of state relations. In the federation, these relations are fixed by the constitution, and in the confederation, as a rule, by agreement.
According to the legal status of the territory. The federation has a single territory formed as a result of the union of its entities with the territory belonging to them into one state. The confederation has the territory of the states entering into the union, but there is no single territory.
The Federation differs from the Confederation in deciding on the issue of citizenship. It has a single citizenship and at the same time the citizenship of its subjects. In a confederation, there is no single citizenship; there is citizenship in each state that has entered into a union.
In the federation, there are supreme bodies of state power and administration (federal bodies) common to the entire state. There are no such bodies in the confederation, only bodies are created that decide issues common to it.
The subjects of the confederation have the right to nullify, that is, the cancellation of an act adopted by the body of the confederation. The confederation has adopted the practice of ratification of an act of a confederation body, while acts of federal authorities and administrations adopted in their subjects of competence are valid throughout the federation without ratification.
A federation differs from a confederation in the presence of a single armed force and a single monetary system.
The form of government is the organization of state power, the procedure for the formation of its higher bodies, their structure, competence, the duration of their powers, and relations with the population. Plato, followed by Aristotle, identified three possible forms of government: monarchy - the power of one, aristocracy - the power of the best; Politics - the power of the people (in a small state-policy). In general, all states in the form of government are divided into despotism, monarchy and republic.
Despotism is a state in which all power belongs to one person, arbitrariness reigns, and laws are absent or inoperative. Fortunately, there are no or very few such states in the modern world.
The monarchy is a state whose head is the hereditary monarch who comes to power. In historical terms, they differ: early feudal monarchy, estate-representative, absolute monarchy with unlimited sole power of the monarch, limited monarchy, dualistic. The parliamentary monarchy (Great Britain) and the elected monarchy (Malaysia) also differ.
The republic is a representative form of government in which government bodies are formed through the electoral system. Differ: aristocratic, parliamentary, presidential, Soviet, people's democratic republics and some other forms.
The parliamentary or presidential republics differ from each other in the role and place of parliament and the president in the system of state power. If a parliament forms a government and directly controls its activities, then this is a parliamentary republic. If the executive power (government) is formed by the president and he has discretionary power, that is, power depending only on his personal discretion in relation to members of the government, then such a republic is a presidential one.
Parliament is an organ of legislative state power. IN different countries it is called differently: in the USA - by the Congress, in Russia - by the Federal Assembly, in France - by the National Assembly, etc. Parliaments are usually bicameral (upper and lower houses). Classical Parliamentary Republics - Italy, Austria.
The President is the elected Head of State and the highest official in it, who represents the state in international relations. In the presidential republics, he is both the head of the executive branch and the supreme commander of the country's armed forces. The president is elected for a specific constitutional term. Classic Presidential Republics - USA, Syria.
The state legal (political) regime is a set of techniques and methods by which state bodies exercise power in society.
A democratic regime is a regime based on the sovereignty of the people, i.e. on his real participation in the affairs of the state, society, on the recognition of human rights and freedoms.
The main criteria by which a state’s democracy is assessed are:
1) the proclamation and actual recognition of popular (non-national, non-class, etc.) sovereignty through the broad participation of the people in the affairs of the state, its influence on the solution of the main issues of society;
2) the existence of a constitution that guarantees, enshrines the broad rights and freedoms of citizens, their equality before the law and the court;
3) the existence of a separation of powers based on the rule of law;
4) freedom of activity of political parties and associations.
The presence of an officially fixed democratic regime with its institutions is one of the main indicators of the influence of civil society on the formation and activities of the state.
The authoritarian regime is absolutely monarchist, totalitarian, fascist, etc. - manifests itself in the separation of the state from the people, the substitution of it (the people) as a source of state power by the power of the emperor, leader, general secretary, etc.
The state apparatus is a part of the state mechanism, which is a set of state bodies endowed with authority to exercise state power.
The state apparatus consists of state bodies (legislative bodies, executive bodies, judicial authorities, prosecutors).
The state body is a structurally separate link, a relatively independent part of the state apparatus.
State body:
1. carries out its functions on behalf of the state;
1. has a certain competence;
1) has the power of authority;
· Characterized by a specific structure;
· Has a territorial scale of activity;
· Formed in the manner prescribed by law;
1) establishes legal relations of personnel.
Types of government bodies:
1) by the method of occurrence: primary (they are not created by any bodies, they arise either by inheritance or by election through elections) and derivatives (created by primary bodies, which vest them with authority. These are executive and administrative bodies, prosecution authorities, etc. .)
2) in terms of power: supreme and local (not all local authorities are state (for example, local governments are not state). The highest extend their influence to the entire territory, local - only to the territory of the administrative-territorial unit)
3) in terms of competence: general (Government) and special (industry) competence (Ministry of Finance, Ministry of Justice).
4) collegial and sole.
· According to the principle of separation of powers: legislative, executive, judicial, control, law enforcement, administrative.
The main prerequisites for the emergence and development of the doctrine of the rule of law.
At the very beginning of the development of civilization, man was trying to understand and improve forms of communication with his own kind, to understand the essence of his own and other people's freedom and lack of freedom, good and evil, justice and injustice, order and chaos. Gradually, the necessity of restricting one’s freedom was realized, social stereotypes and general rules of conduct (customs, traditions) for a given society (clan, tribe) were formed, provided with authority and way of life itself. The prerequisites of the doctrine of the rule of law can be considered the idea of \u200b\u200bthe inviolability and rule of law, its divine and fair content, the need for the law to comply with the law. Even Plato wrote: “I see the near death of that state where the law has no power and is under someone else’s power. "Where the law is the sovereign over the rulers, and they are its slaves, I see the salvation of the state and all the blessings that the gods can bestow on the states." The theory of separation of powers was proposed by J. Locke, S. Montesquieu was his follower. The philosophical substantiation of the doctrine of the rule of law and its systematic form is associated with the names of Kant and Hegel. The phrase “rule of law” is first encountered in the works of German scientists K. Velcker and I.H. Freicher von Arethin.
By the end of the twentieth century, in a number of developed countries, such types of legal and political systems, the principles of construction of which are largely consistent with the idea of \u200b\u200blegal statehood. The constitutions and other legislative acts of the Federal Republic of Germany, the USA, France, Russia, England, Austria, Greece, Bulgaria and other countries contain provisions directly or indirectly fixing that this state entity is legal.
The rule of law is a legal (fair) organization of state power in a highly qualified, cultural society aimed at the perfect use of state legal institutions for organizing public life in truly popular interests.
Signs of the rule of law are:
supremacy in a society of legitimate law;
separation of powers;
the interpenetration of human and civil rights;
mutual responsibility of the state and citizen;
fair and effective advocacy, etc.
The essence of the rule of law is reduced to its true democracy, nationality. The principles of the rule of law include:
principle of priority of law;
the principle of legal protection of man and citizen;
the principle of unity of law and law;
the principle of legal differentiation of activities of various branches of state power (power in a state must be divided into legislative, executive and judicial);
rule of law principle.
The principle of separation of powers and its essence.
1) The constitutional consolidation of the principle of separation of powers with a clear indication of the limits of the rights of each government and the definition of means of checks and balances in the framework of the interaction of the three branches of government. Moreover, it is important that the constitution in a particular state is adopted by a specially created organization (constitutional assembly, convention, constituent assembly, etc.). This is necessary so that the legislature itself does not determine its scope of rights and obligations.
2) Legal limitation of the limits of authority of the branches of government. The principle of separation of powers does not allow any branch of government to have unlimited powers: they are limited by the constitution. Each branch of government is vested with rights to influence the other, if it takes the path of violating the constitution and law.
3) Mutual participation in the staffing of authorities. This lever boils down to the fact that the legislative power is involved in the formation of senior officials of the executive branch. So, in parliamentary republics, the government is formed by the parliament from among the representatives of the party that won the election and has more seats in it.
4) A vote of confidence or mistrust. A vote of confidence or mistrust is the will expressed by a majority vote in the legislature regarding the approval or disapproval of a political line, a specific action or government bill. The question of a vote can be raised by the government itself, the legislature, a group of deputies. If the legislature expressed a vote of no confidence, then the government resigns or parliament dissolves and elections are announced.
5) The right of veto. Veto is an unconditional or suspensive ban imposed by one authority on decisions of another. The Head of State uses the veto power, as well as the upper house under a bicameral system in relation to decrees of the lower house.
The president owns a right of suspensive veto, which the parliament can overcome by a second review and adoption of a resolution by a qualified majority.
6) Constitutional oversight. Constitutional supervision means the presence in the state of a special body designed to ensure that no government violates the requirements of the constitution.
7) Political responsibility of the highest officials of the state. Political responsibility is the constitutional responsibility for political activity. From the criminal, material, administrative, disciplinary liability, it differs in the basis of the offensive, the procedure for bringing to justice and the measure of responsibility. The basis of political responsibility are actions that characterize the political person of the perpetrator, affecting his political activity.
8) Judicial control. Any bodies of state power, administration that directly and adversely affect the personality, property or rights of an individual should be subject to the supervision of the courts with the right to make a final decision on constitutionality.
Law: concept, norms, branches
Social norms are general rules related to the will and consciousness of people that regulate the forms of their social interaction that arise in the process of historical development and functioning of society, corresponding to the type of culture and the nature of its organization.
Classification of social norms:
1. By areas of action (depending on the content of the life of the society in which they operate, on the nature of social relations, i.e., the subject of regulation):
· Political
1) economic
1) religious
· Environmental
2. According to the mechanism (regulatory features):
· Moral standards
· Law
· Corporate standards
Law is a system of formally established and guaranteed by the state formally defined rules of behavior of a general nature, ultimately determined by the material and spiritual-cultural conditions of society. The essence of law is that it seeks to establish justice in society. As a public institution, it was just found in order to counter violence, arbitrariness, and chaos from the standpoint of justice and morality. Therefore, law always acts in society as a stabilizing, pacifying factor. Its main purpose is to ensure harmony, civil peace in society from the standpoint of human rights.
In modern legal science, the term “law” was used in several meanings (concepts):
· Law is the social and legal claims of people, for example, the human right to life, the right of the people to self-determination, etc. These claims are determined by the nature of man and society and are considered natural rights.
· Law is a system of legal norms. This is a right in an objective sense, because rules of law are created and act independently of the will of individuals. This meaning is included in the term “law” in the phrases “Russian law”, “civil law”, etc.
· Law - means official recognition of the opportunities available to an individual or legal entity, organization. So, citizens have the right to work, rest, health protection, etc. Here we are talking about law in a subjective sense, i.e. about the right belonging to an individual - the subject of law. Those. the state delegates subjective rights and establishes legal obligations in the rules of law that make up a closed perfect system.
Signs of law that distinguish it from the social norms of a primitive society.
1. Law - these are rules of conduct established by the state and ensured by it in execution. The derivation of law from the state is an objective reality. If there is no connection with the state, then this rule of conduct is not a legal norm. In some cases, this relationship is manifested through state-sanctioned rules of conduct established by non-state actors.
2. Law is a formally defined rule of conduct. Certainty is its important attribute. Law is always a confrontation with arbitrariness, lawlessness, chaos, etc., and therefore it itself must have a clearly defined form, be distinguished by normativity. Today, the principle according to which, if the legal law is not properly executed and not communicated to the addressees (i.e., not published), is gaining importance, it should not be guided by it when deciding specific cases.
3. Law is a rule of conduct of a general nature. It is not specific to recipients, designed for repeated use.
4. Law is a rule of behavior of a generally binding nature. It applies to everyone, from the president to the average citizen. Generally binding rights are guaranteed by a state guarantee.
5. The law is a system of norms, which means its internal consistency, coherence and non-impact.
6. Law is a system of such rules of behavior that are caused by the material and cultural conditions of society. If the conditions do not allow to implement the requirements contained in the rules of conduct, it is better to refrain from establishing such rules, otherwise inoperative norms will be adopted.
7. Law is a system of rules of conduct expressing the will of the state
A rule of law is a rule of conduct established or authorized by the state.
The rule of law contains a state order, it is designed not to regulate any particular, sole relationship, but to be repeatedly applied to previously undefined persons entering into certain types of public relations.
Any logically completed legal norm consists of three elements: hypotheses, dispositions, and sanctions.
A hypothesis is that part of the norm where it is about when, under what circumstances this norm is valid.
Disposition is part of the norm, where its requirement is stated, that is, what is prohibited, what is permitted, etc.
The sanction is part of the norm, where it refers to the adverse consequences that will occur in relation to the violator of the requirements of this norm.
The legal system is an integral structure of existing legal norms, determined by the state of public relations, which is expressed in their unity, coherence and differentiation into sectors and institutions. The legal system is a legal category that means the internal structure of the legal norms of any country.
Branch of law - a separate set of legal norms, institutions that regulate homogeneous social relations (for example, the rules of law regulating land relations - the branch of land law). Branches of law are divided into separate interrelated elements - institutions of law.
The institute of law is a separate group of legal norms regulating public relations of a particular type (the institution of property rights in civil law, the institution of citizenship in constitutional law).
The main branches of law:
Constitutional law is a branch of law that enshrines the foundations of the country's social and state structure, the foundations of the legal status of citizens, the system of state bodies and their basic powers.
Administrative law - regulates the relations that develop in the process of implementing executive and administrative activities of state bodies.
Financial law - represents a set of rules governing social relations in the field of financial activity.
Land law - is a set of rules governing social relations in the use and protection of land, its subsoil, water, forests.
Civil law - regulates property and related personal non-property relations. Civil law norms consolidate and protect various forms of ownership, determine the rights and obligations of the parties in property relations, and regulate relations related to the creation of works of art and literature.
Labor law - regulate social relations in the process of labor activity of a person.
Family law - regulate marriage and family relations. The norms establish the conditions and procedure for marriage, determine the rights and obligations of spouses, parents, children.
Civil procedural law - regulate social relations arising in the process of court consideration of civil, labor, family disputes.
Criminal law is a set of rules establishing what socially dangerous act is a crime and what punishment is applied. The norms define the concept of crime, establish the types of crimes, types and sizes of punishments.
The source of law is a special legal category that is used to designate the form of external expression of legal norms, the form of their being, objectification.
Four types of sources are distinguished: normative legal acts, authorized customs or business customs, judicial and administrative precedents, and international law.
Normative legal acts are written decisions of an authorized subject of law-making, establishing, changing or repealing legal norms. Normative legal acts are classified according to various criteria:
Sanctioned customs and business customs. These sources in the Russian legal system are used in very rare cases.
Judicial and administrative precedents as sources of law are widely used in countries with the Anglo-Saxon legal system.
Norms of international law.
A normative legal act is an official document created by the competent authorities of the state and containing binding legal norms. This is an outward expression of the rule of law.
Classification of legal acts
By legal force:
1) laws (acts with the highest legal force);
2) by-laws (acts based on laws and not contradicting them). All normative legal acts, except laws, are by-laws. Example: decrees, decrees, regulations, etc.
For entities issuing (accepting) regulatory legal acts:
referendum acts (direct popular will);
acts of state authorities
acts of local government
acts of the President
acts of governing bodies
acts of officials of state and non-state bodies.
There may be acts:
adopted by one authority (for general management)
jointly by several bodies (for joint management)
By branches of law (criminal law, civil law, administrative law, etc.)
By scope:
acts of external action (obligatory for all - cover all subjects (for example, federal laws, federal constitutional laws).
internal action (apply only to entities within a particular ministry, persons residing in a certain territory, engaged in a certain type of activity)
Distinguish the effect of regulatory acts:
by the circle of persons (to whom this normative legal act applies)
by time (entry into force - as a rule, from the moment of publication; the possibility of applying retroactive force)
in space (usually throughout the territory)
In the Russian Federation, the following regulatory legal acts are in force: the Constitution of the Russian Federation, federal laws, regulatory legal acts of the President (decrees), the Government (decrees and orders), ministries and departments (orders, instructions). There is also: local regulatory legal acts (regulatory legal acts of state authorities of the constituent entities of the Russian Federation) - are valid only on the territory of the subject; regulatory agreement; custom.
Law: concept and varieties.
The law is a normative act with the highest legal force, adopted in a special order by the highest representative body of state power or directly by the people and regulating the most important social relations.
Classification of laws:
1) in significance and legal force: constitutional federal laws and ordinary (current) federal laws. The main constitutional law is the Constitution itself. Federal constitutional laws are laws amending chapters 3-8 of the Constitution, as well as laws that are adopted on the most important issues specified in the Constitution (Federal Constitutional Law on: Constitutional Court, Referendum, Government).
All other laws are ordinary (current).
2) for the body adopting the law: federal laws and the laws of constituent entities of the Russian Federation (apply only to the territory of the subject and cannot contradict the federal laws).
3) in terms of volume and subject of regulation: general (dedicated to the whole sphere of public relations - for example, the code) and special (regulate a narrow area of \u200b\u200bpublic relations).
Legal relations and their participants
Legal relationship - this is a social relationship taking shape between its participants on the basis of the rule of law. The following features are inherent in legal relations:
parties to a legal relationship always have subjective rights and responsibilities;
legal relationship is such a public relation in which the exercise of subjective law and the fulfillment of obligations are provided with the possibility of state coercion;
legal relationship acts in