Aspects of the analysis of methdological problems of correlation of state and law
The differences between the legal norm and the state institutions. The necessity of overcoming of contradictions between the state and the law, analysis of the problems of state-legal phenomena. Protecting the interests and freedoms of social strata.
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ASPECTS OF THE ANALYSIS OF METHDOLOGICAL PROBLEMS OF CORRELATION OF STATE AND LAW
The state and law have public bases, revealed in protection of interests and freedoms of the corresponding social layers. Consequently, there should be no contradictions between them.
The given statement is equitable though problems of correlation of state and law, thereby, are not exhausted. First of all, it is necessary to clarify essential features of the legal state as one of the most actual problems of modern time. If the state and law are united then G. Kelzen was mistaken when considered that any state should be legal. Could such position be deprived of logic? If it is so, then why for the jurist the state is not identified with the law and not each state is recognized legal ? legal state law social
To answer the given questions it is necessary to address to the social philosophy and historical experience. It is well known, that there existed and exist states, in which the society is managed with half-lawful or half-administrative methods. The norms created in them, were practically ignored, there acted only commands, orders, directives. At the directive method there always emerged instability in the society, and therefore the additional facilities were necessary, as well as there was realized supervision over all and over everything (it was necessary to have a rather great number of police, and it is even necessary to remind the statement of the Russian emperor Peter the Great: "Police is the soul of the state and of all good orders, it is the fundamental bases of human safety and comfort").
In the XVIII century in Europe there existed two types of the police state feudal (totality incredible); autocratic-serf (for example - the Russian empire).
But in these police states the law was not cancelled completely. A part of norms acted and was protected by means of enforcement. I. Kant has exactly characterized such ruling as "the state arbitrariness".
In a number of states in the 20th century such status was firmly established and deepened (for instance, the USSR), and in separate events still prevails the propaganda (Cuba, Korea). Here prevails the propaganda of ideology, legal norms have the declarative nature but in separate events functions of the law are realized basically by political decisions, party directives, department orders, instructions of official or party staff). The reality of contradictions between the state and law comes out their essential qualities (observance or non-observance by the state of the created law).
What are the common rights in the society, divided into social layers? Provision of order (that is making the ambience, in which there dominates peace, consent, well-being). By the way, the similar ideas were offered by the classicists of Marxism in 19th century. They also considered that the state and law create the order, provide the consent, peace, and do not allow the class struggle to blast the society. Obviously, the whole history of the society (except the primitive) - is the struggle of the classes, and it is connected with the history of carrying out economic activity; otherwise there would have been neither classes, nor their struggle.
Even F. Engels forewarned: "that in order they did not devour each other, there should be the force, which stands over the society and restrains it within the framework of "order" .
The essence of the state is not identical to the essence of the law. According to V.I. Lenin, the essence of the state is the separation of people, who control others, using the device of enforcement . It completely responds to the definition of K.Marx, according to which officials, army, administration, judges are the management machine, creating its own organism separated from the society . Yes, the state is the existing in the society social organism with its structure, statutory base, and professional structure, and interest, monopoly on the power, special professional ethics, legal conscience, specific thinking and psychology. Origin and existence of the state are conditioned: a) labor; b) separation of the people, whose profession is management and enforcement. These persons exist on account of taxes, received from the members of the society. The power of such persons spreads within the territory, limited by other states (mountains, deserts, epidemic deaths).
The state is the centralized hierarchy of officials, the mechanism of enforcement and management, the power, possessing the right of passing compulsory decisions and realizing them. Here it is necessary to recall the thesis expressed by V. I. Lenin: the state is the mechanism of management, which stands out from the human society .
Certainly, such interpretation has not found motivation and development in the domestic publications and, finally, the scientific workers, followers of these ideologies exaggerated the social role of bureaucracy for the harm of class, patriotic approach to estimation of the state. It came from ideas of Dzhilas, Vaslenskiy and other foreign critics of the party-state nomenclature, which formed in administrative command system. The result is that instead of clarification of essence of the state, we have begun to study its forms, functions. It complicated mastering the theory of the state as a whole interfered objective determination of its place in the society, in the system of labor, in the social structure, in ideology of the society, in attitude to law. It is well known, that various points of view on essence of the state were formed even in antique times, and as a whole had very appreciable influence upon the European civilization, on formation of political-legal ideology.
If we analyze all types of the state, we shall certainly come to the conclusion that any state preserves the structure of the ideal state according to Platon.
And, Platon has selected the objective bases of the state and reasoned about its ideal forms.
Aristotle has described the forms of ruling and showed them as types of the state .
Thus, rapt attention to the forms of the state (in counterweight of its essence) has brought about that there were studied mostly the structure and composition of the supreme authorities (of the republic - aristocracy and democracy, monarchy - limited, absolute and so on), and the forms of the state unity (unitary, federal, confederate state, special and real unions and so on), and later - the forms of political regimes, finally, under social-class approach - purposes, tendencies of development of the states.
Therefore, as a rule, "we don't speak of what the state is but how it is made what its purposes are to whom it finally serves". The description of quality of the state is complicated by the holistic-ideological orientation, which is quite often identified with the country, Motherland, Fatherland, the place of residence of the corresponding nations, is considered as good to civilization, embodiment of culture, and so on.
Herewith we have a great number of definitions of the state (republican, monarchist, federal, totalitarian, unitary, democratic, legal, social, mundane, imperial, slave owning, police, public, democratic, multinational, transitional and etc).
And, none of them expresses the essence of the state. The essence does not express the wide-spread definition of the state as "the political organization of the society". Why? Since it is not the definition of the state, but totalitarian party, which tries to seize the power over the society according to its interest, ideology, and program.
And here follows enough doubtful idea of delimitation of the "state authorities" and "political authorities", which justifies the reduplication of the number of persons, allocated with the power, and reduction of their responsibility for the state of affairs of state control.
The civil society does not require that someone should organize and direct it. It is the self regulating system that should be protected, supported with the order, in which there should be developed the public structures, realizing social functions.
The state is not organization of the society, but organization in society, called to protect it. It is the centralized system of persons, allocated with imperious authority, the monopoly and right of the taking general decisions. It acts as wrought from society power.
The corporative interests of agents of authorities do not always coincide with the interests of the society and are not identical to them. But the society can not dispense without systems of public services, which exactly create the state although there existed societies (ancient totalitarian state of the 20th century), in which the state was considered as the purpose, in which the individual is subordinated as the facility. Let's recall the fascism; the main idea of its leaders was supremacy of the fascist state over the society, longing for the power (Mussolini, 1932). The fascist concept of the state is all-embracing: outside of it there exists neither a person, nor spiritual valuables. The state is the syntheses and association, excluding all values.
The fascism considers the state as the absolute hierarchical centralism, state discipline, monopoly on enforcement, publishing compulsory norms. It provides the state with the power, which prevails over any other form in the given society. And here is the reason of cult of the state. It is considered not as a part of the society, but as the superstructure over it, as a powerful essence, which has the proper name, majestic palaces, and signs, hymns, which praise the country, people, and supreme values of the person. Since it is connected with identification of the state with its supreme authorities.
The attempt of the state to get over the society is emerged by the problem of overcoming "political estranging", which has been considered by Russo and has been developed by Gegel. What is "political estranging"? It is the process of independence on the society and supremacy over it; it is conversion of the state, appeared as a result of human activity, independent on society.
Let's recall Marx: "Freedom is necessary to transform the state from the body, which stands over the society, into the body, to which the given society is completely subordinated" . If protection of the society is the constant task of the state, the society has always tried to be protected from surplus independence of the state. This task is very complex.
The state is the unadulterated social system, whose might outweighs all parts forming it. Having concentrated enforcement, the state should protect, unite the society, in which it exists. Within the state borders there should be formed states, nations. The state is the centre of formation of the nation, support of the order in the society and defender from external enemies. Carrying out important social tasks the state has always tried to be mighty and dignified, which did not yield the church. The luxurious palaces, grandiose pyramids, gigantic monuments to statesmen and military men, national holidays, flags, hymns, cults of political leaders, all this is called to confirm the psychology of independence on the state as on something exceeding and powerful. The cult of the state is increases and strengthened by patriotic realization, which identifies the state with the country, Motherland, Fatherland.
One of the ways of overcoming political aloofness, which has generated the mankind, is subordination of the state to the law called to provide the order and predictability of action of state authorities, stability of relations dependent on it. Observance by the state of the norms created is exactly to what the barriers of state authorities of many states strive.
Ancient history and history of middle ages has many facts, testifying to the fact that the former rulers pronounced the vows and oaths, in which they declared about their respect to the law. Some of those vows were pronounced honestly and the supreme power followed them. But the state is not several tens of persons, leading bodies of the power; the state is a more complex and more numerical institution. It is obvious that the public division of labor generates the necessity of mastering especial professional skills in the spheres of management, enforcement, and justice. In a small ancient town (city-state) of the times of Platon for protection and control it was necessary to have a number of warriors, who were led by the board of smart philosophers. However there existed large ancient states, which needed a greater number of rulers, warriors, and other officials. Now let's speak about modern state?! Their functioning is connected with the multiple amount of people, - army, justice, police, and intelligence, financial, social and the other services, personnel of state establishments and so on).
The quality, inherent state, according to V.I. Lenin, is "presence of the specific class of people, concentrating the power" . This class (as well as its representatives) should be considered "state officials". They live among us, they know their own professional duties, some of them execute their duties well, and some of them do it badly, they have different status, personal features, family status, as well as other members of the society. And they convince common citizens that they are not the special class.
The system forming bases of this class is the hierarchy of persons, allocated with imperious authorities (ordinary officials, advisors, assistants). They can be talented and genius people. Outstanding state and political figures are called "leaders". State officials are distinguished on volume authority; human features; criteria of qualification and dignity.
The contradictions between the state and the law exist even in the states where the law dominates, and the supreme power tries to keep the legal norms. There appear contradictions between actual activity of the state and working norms of the law.
The state is the corresponding bodies, officials, their actual activity, and interrelation between people and between bodies, international relations.
The law becomes real in rules of behavior (norms) and specific public relations, in the corresponding procedure of consideration of life situations and, finally, in the specific form of public consciousness, whose estimating character is expressed in legal notion and category.
Let's try to specify differences between the legal norm and state institutes.
№ &The Legal norm &The State institute
1. &The component of the law is the norm of the law and legal relations. &Consists of persons and institutions, allocated with authorities.
2. &The norms of the law are classified in different categories. &State bodies and officials are distinguished on their place in the state hierarchy, range, volume of authorities.
3. &The legal norms concern abstract most general public relations. &State officials see the life in its whole variety and estimate public relations and situations, coming from corresponding party, personal sympathy or antipathy.
4. &The legal norms are the specific model of public relations, supposed to be ordered and changed. &Officials sometimes try to leave the limits of these frames, to make relations not according to the model (but coming from their own understanding, life experience, corresponding interests, and motives).
5. &The legal norms are valued according to their legal force, accuracy of formulations, efficiency, and fairness. &State bodies and officials according to the volume of authorities, discipline , competence, degree of honesty and other moral, personal and business features.
6. &A number of legal norms can not be realized without the decision made by the state body or an official unless there are examined the circumstances of the case having legal value and corresponding proves. & Some officials try to perform their own duties more simply and faster, than it is determined in the law, to make decision without complex legal procedures, without examination of all circumstance and proofs.
7. &The norm of the law is the sample of the decision of the case. &Persons authorized to pass the norms of the law are not always principle, responsible.
8. &The legal facts generate legal relations. &Duty of the officials is recognition of the legal fact.
9. &In the law there are sometimes non-acting rates which interfere examination and application of the law. &In the state hierarchy there are unnecessary positions, a number of privileges, privilege, and imperious authorities.
The correlation of essential features of the law and the state gives first of all possibility to determine deeper and concretely relations and oppositions of two social regulators, which can not dispense without each other.
Except for these contradictions, there are such, which are conditioned by individual, subjective features of public figures. Such contradiction between the government and the people, society and state, were specifies by the well-known thinkers, in particular, by K. Markx who noted: "The society creates the bodies for protection of its own interests from internal and external aggressors. This body is the state power. As soon as such state body appears, it gains independence before the society" .
The opposition between the state and society sometimes greatly influences the contents of the law, and its realization. Obviously, the state and society are not enemies. But their interests are not identical, but sometimes opposite. For instance, it is much easier for state to provide the struggle with offenses and guard of social order.
On the other hand, dignity and freedom of a person in the civil society will be on the proper level if citizens are not covered with surplus taxes, will be free from military service, excise and customs restrictions.
In normal, comparatively calm periods of the social development these and other contradictions are discussed in representative institutions.
However contradictions between the state and society during the crisis periods, especially when authorities are the persons, who try to use the state for their own purposes.
As we see, the state of law and order and legality in any country depends not only on the quality of the statutory-legal system and requirements of the supreme state power, but also on relations to the law of the state officials.
One of the most complex problems of the legal regulation is the correlation of the legal norm and individual instructions (order) of a person, allocated with authorities.
The Order (instruction on the concrete case, event) differs from the norm as it must be executed (the order is executed). The norm unlike the order, acts till it is cancelled in the established order. On a number of features the order is similar to the norm of the law: order is the command of the state (the agent authorities), which prefixes the proper behavior. The order entails using sanctions. A number of legal norms are impossible to realize without acts on application of the law, passed by the authorized state bodies and officials (assignment to the position, accountment of the pension, all court decisions and so on).
Acts of application of the law or individual acts (orders, decisions) depend on subjective features of agents of authorities, and therefore can not contradict on their contents to norm of the law or to make exception on it.
In the legal states there always exists legal and organizing guaranties to not to allow such contradictions and exceptions.
We should remember that individual acts of barriers of imperious authorities (state bodies and officials), who contradict the acting law is quite dangerous for stability of the law, legality and law and order.
The fact is that public order in the states of incomplete legality can be based on such acts. However the state of public order depends on the degree of distribution of free orders, commands, which do not satisfy the acting norms of the law.
The reasons of this discrepancy are arbitrariness of state officials; insufficient certainty, unclear competence of officials, corruption.
Different contradictions between the state and the law appeared in command-administrative regimes, when the law lost the possibility to be an arbitrator in disputes between leaders and subordinated. It certainly blasted the essential features of the law: stability, authority ( let's remember 1965 and the following failures of economic reforms in the USSR, when the enterprises were ostensibly given the right determined economic initiative, but actually everything was decided by the dictate of ministries and departments).
There existed the arbitrariness of local bodies of power (sometimes it even prevailed over instructions central bodies of power).
According to the historical experience, the state of law and order depends on the whole vertical of bodies of state authorities. The important role in realization of the law belongs to the supreme power (the monarchy - in monarchy, collective bodies - in republics). It determines the contents of the state discipline, the 1of compulsion of the law for all (competency, limits of the liberty of bodies of authorities). Weak and feeble supreme power of the state is unable to create the real law and steadfast law and order. The supreme power influences the contents of the law, its efficiency, and authority. It's bad when the state itself violates norms established, for example, unauthorized additional collections, duties, violation of customs and traditions.
Publishing by the supreme power of "illegal laws" is one of the sharp political-legal problems of modern history. The possibility of arbitrariness of the supreme power to the law grows, when the main source (form) of the law become the laws and other statutory-legal acts (one law contradicts the other, acts of the government, ministries, departments, do not always correspond to each other, contradict the Constitutions of the country).
There are some additional difficulties in development of the law which are overcome by the legislative activity of the state bodies.
In texts of the laws the law quite often is substituted by its ideological motivation, which does not have any legal contents (by the way, any law or any other source of the law belongs to the sphere of literary creative activity) . This creative activity can have political ideological nature instead of legal ( for instance, after 1917 the decrees were the form of propaganda).By the way, the English do not perceive the European norms, they consider them general principles, concerning the wish of the moral plan or, installing the corresponding political program instead of the norm (David Rhenium) .
If to remember the Soviet Union, the role of the law in this state played the political decisions, administrative instructions, orders, instructions, revolutionary conscience.
What was the result of such activity? There existed the growth of the authority of the law. The principle of realization of the law was legality. In some totalitarian states there acted not only the total legal regulation, but there was allowed invasion in private life of the person. The General justifications were the reference to practicability of the acts of arbitrariness, their correspondence to the principles of barriers of high authorities. Attitude of the state to legal norms, which it has created, gains the urgent importance at the period of development of the civil society.
Consequently, urgency of the given article is conditioned, first of all, by the necessity of overcoming of contradictions between the state and the law, analysis of the problems of state-legal phenomena and improvement of methodology.
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