Theme 1 . Basic concepts of state, law and public- legal phenomena .

plan

1. The origin and nature of the state .

2 . Form of government .

3 . Functions of the state and the legal form of their implementation.

4 . Rule of law and its symptoms .

5 . Concept , features, and the essence of law .

6. Sources of law and their views. System of law .

7. Legal norms .

8. Characteristics of legal relations .

1. The origin and nature of the state .

        State - a political organization of society, providing its unity and integrity , by carrying out public administration mechanism of society, the sovereign public authority , which gives law obligatory value guaran ¬ ating rights , freedoms , rule of law and the right ¬ order.

State Formation in different nations went different ways. This has led to different points of view in explaining the causes of the state. A large number of theories about the origin of the state. These include:

1) theological theory holds that the origins and development of the state is similar to the process of God's creation of the world. This theory originated in ancient Judea , and their final touch found in the writings of a theologian in the XI . Thomas Aquinas ( 1225- 1274gg . ) . This is one of the first theory to explain the emergence of the state of the divine will. Its representatives were many religious leaders of the ancient East , Medieval Europe ( Thomas Aquinas - XIII c.) , The ideologues of Islam and the modern Catholic Church ( neotomisty - Jacques Maritain and others). Theological theory does not disclose the specific ways , ways to implement this divine will (and it can be placed in any of the following concepts ) . At the same time it defends the idea immutability , eternity state, the need for universal subordination of state authorities will of God , but at the same time depending on the state of the divine will , which manifests itself through the church and other religious organizations .

Theological theory can not be proven as not directly refute : the question of its truth is solved together with the question of God's existence , the Supreme Mind , etc., ie is ultimately a matter of faith ;

2) based on the patriarchal explanation of the origin of the state and law natural course of social development , natural union of human communities into larger structures (family - genus - a tribe - the state ) . This theory originated in antiquity : its founder was Aristotle (III c . BC), but these ideas were expressed in relatively recent times ( Filmer , St. Michael's , etc.).

The point of this theory is that the state arises from proliferating from generation to generation of the family . The head of this family becomes head of state - the monarch . His power is so - a continuation of the power of his father , the monarch is also the father of all his subjects. Of patriarchal theory ( as of theological ) conclusion follows naturally the need for all people to obey the government and its laws.

Main provisions of the patriarchal theory convincingly refuted by modern science. Is no historical evidence of such a method of state. On the contrary , it was found that the patriarchal family came together with the state in the process of decomposition of the primitive communal system . Moreover, in a society in which there exists a family kinship rather quickly lost.

However, this theory draws attention to the family. Family - the smallest particle of society , and its very existence , its shape affect the development of society , create certain preconditions for the emergence of the state;

3) negotiated treats the state as a result of bringing people together on a voluntary basis ( contract) . Representatives : Hugo Grotius , Spinoza , Hobbes , Locke , SH.-L. Montesquieu , Diderot , Jean-Jacques Rousseau , AN Radischev . According to this theory until the state people were in a "natural state ", which is understood differently by different authors ( unlimited personal freedom , the war of all against all , universal prosperity - the "golden age ", etc.) . In most of the concepts included the idea of ​​"natural law" , ie availability of each person inalienable , natural rights derived from God or Nature. However, in the process of human development rights of some people come into conflict with the rights of others , out of order , there is violence. To ensure a normal life , people conclude among themselves an agreement on the creation of states voluntarily handing him some of their rights . These provisions were expressed in the constitutions of a number of Western countries . Thus, in the U.S. Declaration of Independence ( 1776 ) states: "We believe the self-evident truth that all men are created equal and endowed by their Creator with certain unalienable Rights , that among these are the right to life , liberty and the pursuit of happiness to ensure that people create these rights governments just powers from the consent of the governed ... ".

Characteristically, in the works of many representatives said the school was justified by the right people at the violent , revolutionary change system which violates the natural law ( Rousseau Radischev etc.). Found this provision reflected in the U.S. Declaration of Independence .

Noting the progressiveness of many of the theory of the social contract , which opposed the feudal corporate state , the king in this society will, inequality before the law , you must specify all the same that , but pure speculation , there is no convincing scientific evidence supporting this theory a reality . Can one imagine the possibility that tens of thousands of people could agree among themselves in the presence of acute social contradictions between them and in the absence of existing power structures ? Ignores this theory and the need for economic , material preconditions for the state could arise .

However, we must bear in mind the fact that the union of the people requires their mutual consent , and it defines the positive value that has this theory .

4) theory of violence comes from the fact that the main causes of origin of state and law lie in winning one of the other society , to establish authority over the invaders conquered the state and the right of the conquerors created to support and consolidate their domination over the losers. Representatives : Karl Kautsky , F. Duhring , L. Gumplowicz ;

5) the organic theory of the analogy between a biological organism and human society . Like a living organism , the state has internal and external bodies , it is born , develops, grows old and dies . Her representative was Herbert Spencer (1820-1903 gg.) This theory originated in the XIX century . Following the success of the natural sciences , although some similar ideas were expressed much earlier. For example, some ancient Greek thinkers , including Plato (IV-III centuries . BC) compared with the state body and the laws of the state - with the processes of the human psyche.

Darwinism has led to the emergence of what many lawyers, sociologists began to spread biological patterns ( interspecific and intraspecific struggle , evolution, natural selection , etc.) on social processes . Representatives of this theory were Bluntschli , H. Spencer , Worms , Preuss et al

In accordance with the organic theory of mankind arises as a result of animal evolution from lower to higher . Further development leads people to unite in the process of natural selection (the fight with the neighbors ) into a single organism - a state in which the government acts as the brain controls the entire body , using, in particular, the law as passed by the brain impulses. Lower classes implement internal functions ( provide its vital functions ), and the ruling classes - external (defense, attack ) .

Incorrectness of the organic theory of the origin of the state and law is defined as follows . Everything that exists has different levels of manifestation of life and livelihoods. Development of each level is determined by the laws pertaining to this level ( quantum and classical mechanics , chemistry, biology , etc.). And just as it is impossible to explain the evolution of the animal world based solely on the laws of physics or chemistry , so it is impossible to distribute biological laws on the development of human society. However, certain provisions of the organic theory can be used as an analogy for understanding the processes associated with the emergence of the state ;

6 ) the theory of geographical determinism considered decisive factors in causing the state climatic conditions, terrain , natural resources. Representatives - E. Huntington , L. Mechnikov ;

7) psychological - the emergence of the state and law explains the manifestation of the properties of the human psyche : the need to obey, imitation, depending on the elite consciousness of primitive society , awareness of certain equity options actions and relationships. Representative of the psychological theory is LI Petrazhitsky (1867-1931 years), G. Tarde , etc. They explained the emergence of the state and law is a manifestation of the human psyche : the need to obey, imitation, depending on the elite consciousness of primitive society , awareness of certain equity options actions and attitudes , and so on .

Naturally, the social laws are implemented through human behavior , activity. Therefore, the properties of the human psyche have a definite impact on the implementation of these laws . But , on the one hand, this effect is not decisive, but on the other - the human mind itself is influenced by relevant economic, social and other environmental conditions. Therefore, these conditions and should be considered first.

8) theory of irrigation ( Wittfogel ), etc.

According to Wittfogel , irrigation farming method is the most likely answer to the pre-industrial society to the difficulties of farming in arid climates . Associated with this method, the need for organized collective farms work leads to the development of bureaucracy and , as a consequence, greater authoritarianism . So there Oriental despotism , or "fluid state » (hydraulic state) - a special kind of social system , characterized extreme inhumanity and inability to progress ( power blocks the development ) .

The availability of water is the determinant ( with high probability ) the nature of the development of society , but not the only , necessary for survival , for the successful conduct of farming must match several conditions : the presence of crop plants , soil suitability , certain climate , agriculture does not preclude relief areas.

All of these factors is (and therefore power ) is needed . The only difference is in how well a person can influence them , to give " a compensating effect » (compensating action): « Efficiency compensating human exposure depends on how easily adverse factor can be changed. Several factors can be considered as constant , since the existing technological conditions are not amenable to human exposure . Other amenable easier for him . " So , Only overnight factors (climate ) is still virtually not regulated person , other (relief) - actually not regulated in the pre-industrial era (area terrace farming was insignificant relative to the total area of cultivated land) . However, some factors can affect a person : bring in a certain area of crop plants to fertilize and treat the soil. All of this he is able to do it alone (or with a small group .

Thus, we can distinguish two main types of farming factors : such a person who is easy to change , and such change what he can not (or could not most of its history ) . Only one natural factor required for agriculture, does not fit into any of these groups. He succumbed to the effects of human society and in the pre-industrial era , but only with a radical change in the organization of this society a man had to be radically change the organization of their work. This quotient water .

Water collects on the surface of the ground is very uneven . It has no special significance for agriculture in areas with high rainfall , but it is crucial - in arid areas ( and most fertile regions of the world are all in the arid climate zone ) . Therefore, its delivery to the fields can be solved in only one way - a massive organized labor . The latter is especially important , as some non-irrigation works ( eg, clearing forests) can be very time consuming , but do not require coordination , because the cost of failure in their implementation is much lower.

Irrigation works are not only to provide sufficient quantities of water , but with protection from too much of its quantity (dams , drainage , etc.) . All these operations , according to Wittfogel , require submission of the general population a small number of functionaries . " Effective management of these works requires the creation of an organizational system that includes either the entire population , or at least its most active part . As a result, those who control the system, are uniquely positioned to achieve the highest political authority. "

It should be noted that the allocation class functionaries also contributes to the need to maintain a calendar and astronomical observations. In ancient irrigation bureaucracy States is closely connected with the priesthood (this may be the same people as in ancient Egypt or China ) .

So there is hydraulic (hydraulic), or Managerial (managerial) despotic state - the most common form of social organization for most of human history.

Naturally, the state that emerged due to the need of public works in the agricultural sector , with a high probability of use of forced labor Institute ( Wittfogel here uses the Spanish term «corvee») and in other instances . Hence - the grand buildings of the ancient states : monumental ( temples, tombs , etc. , the most striking example - the Egyptian pyramids ) , defensive ( Great Wall ) and utilitarian ( Roman roads and aqueducts .

Managerial State by Wittfogel , stronger society and be able to maintain complete control over it . To do this, special measures , such as the order of succession in equal shares, crushing ownership and prevents the emergence of large owners , dangerous for the government ) .

Wittfogel emphasizes that hydraulic society is not always devoid of attractive at first glance democratic features . These features, such as the independence of communities , egalitarianism , religious tolerance , elements of representative democracy , are manifestations of "democracy beggars » (beggars democracy), in all dependent on the central government . Eligibility authorities to Wittfogel , quite compatible with despotism (eg the Mongol Empire ) .

Wittfogel believes that hydraulic society is so suppressed by the state that it can not be the class struggle , despite the presence of social antagonism . Society by Wittfogel - is not an object but a subject in their interaction with the natural environment . This interaction leads to a hydraulic state only if certain social assumptions (society is above the primitive communal stage, but has not reached the industrial stage of development , and not under the influence of civilizations based on agriculture, rain ) .

Hydraulic state covered most of the inhabited spaces , not because all the inhabitants of these territories have moved to a hydraulic type of management, but because without switching (rain farmers (rainfall farmers), hunters , gatherers and pastoralists ) have been superseded by hydraulic or conquered states.

However, not all regions of the world ( and not even all of the hydraulic area ) suitable for irrigated agriculture . The question is what happens with non-hydraulic country after its conquest by the hydraulic state? Wittfogel answers it as follows: social and political institutions that emerged in the central (core) irrigation areas , carry over to non-irrigation .

Wittfogel thought possible penetration of hydraulic institutions in countries where irrigation is not practiced or practiced poorly, and hydraulic institutions are exogenous origin . Such societies , he refers to the marginal zone (marginal zone) despotism. These he attributed Byzantium poslemongolskim Russia , Maya states and the Liao empire in China.

For marginal zone is natural to assume the existence of submarginal - in the states of the zone observed some features of a hydraulic device in the absence of a basis. To submarginal hydraulic States relate to Wittfogel , Cretan- Mycenaean civilization , ancient Rome in the time of its existence , Japan , Kievan Rus .

It is curious that Japan, where irrigation is practiced , Wittfogel attributed to submarginal area and poslemongolskim Russia , where it is not practiced - to marginal (ie a hydraulic estRossiya country) . The fact that the Japanese agriculture , according to Wittfogel - gidroagrikulturnoe (hydroagricultural), rather than hydraulic (hydraulic) that is carried out entirely by peasant communities , without whose whatsoever control. "Japanese irrigation system controlled not so much by national or regional , as local leaders ; hydraulic development trends were significant only at the local level and only for the first phase of the country's recorded history ." Therefore, Japanese irrigation and did not lead to the creation of a hydraulic society. Russia, however , was ruled by the Mongols, apprehended all those hydraulic institutions that have taken root in the previous few , Kiev period of its history.

Wittfogel linked Managerial type of state with the Soviet Union and Nazi Germany , believing that in these societies trends oriental despotism found its most complete embodiment . If such an assessment of the USSR , he argues in his own way , the prosecution of Nazi Germany in structural similarity with hydraulic modes are not supported by any evidence from him .

9) the historical- materialist theory . The emergence of this theory is usually associated with the names of Marx and Engels , often forgetting their predecessors , such as L. Morgan. The point of this theory is that the state arises as a result of the natural development of primitive society , development , primarily economic , which not only provides the material conditions of the state and law , but also determines the social transformation of society , which also constitute important causes and conditions of the state and law.

Historical- materialist concept includes two approaches . One of them, prevailed in Soviet science , crucial averted the emergence of classes , antagonistic contradictions between the irreconcilability of class struggle : the state arises as a product of the irreconcilability as an instrument of oppression by the ruling class of other classes. The second approach is based on the fact that as a result of economic development more complex society itself , its productive and distributive spheres , his " common cause." This requires improvement of management, which leads to the emergence of the state .

That historical- materialist theory is under a strictly scientific basis . In this case , as will be shown below, both its direction legitimate, since different historical conditions as crucial causes of the state may acquire as class antagonisms , and the need to address the general affairs , improve social management , specialization of management as a form of division of labor

The modern interpretation of the causes of the state based on the achievements of historical , archaeological, ethnographic and other sciences and was named Potestarian or crisis theory. According to this theory , the state arose in the East. In accordance with the theory of human society Potestarian passed two stages in its primitive existence - the stage and the stage of assigning the economy producing economy . In the first stage , people lived tribal community , and was the chief feature of egalitarianism ( full real equality ) members of the community in the social sense . This society was characterized by power tools ( power leader, the council of elders ) who were elected , and the path to leadership defined authority , the personal qualities of a member of the community . In general, all the questions of life tribal community members together to solve it .

Proceed to step producing economy was driven mainly ecological character factors (climate change, extinction of many plants and animals) . This transition has changed lifestyle of the community: there are new management functions occurred formation of a new type of work . Leader in the community is becoming a major distributor of industrial products , supervisor and regulator of the whole process of production , and eventually he breaks away from the main mass of commoners and by virtue of his position is able to appropriate the surplus product . At the same time he became the owner and property. Gradually accumulate wealth of managers , there is stratification of society , a qualitative change in its social structure , approved by the new organization of his life - born state.

Thus, the main causes of origin of the state are:

- First and second major social division of labor;

- The emergence of trade and exchange ;

- The emergence of private property;

- Stratification of society into classes ;

- The emergence of contradictions between classes.

The state is a complex phenomenon . Attempts to define it , made ​​by scientists , politicians , thinkers focused mainly transferred most significant features of the state. It is believed that the term "State ", which is understood as a political organization of society , entered the scientific revolution in the time of Machiavelli (XVI c. ) .

 Legal approach allows to isolate the following features of the state, which can be attributed to the generally recognized :

1 ) the presence of the public ( political) power , has a special administrative apparatus of compulsion;

2 ) The territorial organization of the population ;

3) state sovereignty ;

4 ) A comprehensive , obligatory nature of acts issued by the State;

5) taxation and tax collection .

In view of these features can be defined as a state organization of public power company , having the machinery of government and coercion , with the help of which the functioning of society .

Essence of the state - the main thing that determines its content , purpose , function , in other words, reveals social purpose.

To maintain the normal life of society , the objectives and functions of the state is necessary setup operation mechanism of the State . Mechanism of the state consists of :

1) state-owned enterprises ;

2) government agencies ;

3) public authorities.

All public bodies together form the state apparatus , which is an integral part of the machinery of the state.

State-owned enterprises are entities whose activities are connected with the production of goods , performance of works , rendering of services , ie satisfaction of needs of the population .

Public institutions - is an organization engaged in the social and cultural spheres : medicine, science , education and culture.

Public authorities - are organizations or officials with designated authority and acting in a strictly defined framework .

For state agencies the following traits that distinguish them from other organs, such as the public or trade union :

1 ) the legal basis of activity , ie organization , structure, functions , goals, objectives , competence of state bodies established by the current legislation ;

2 ) the availability of power , including the possibility of coercion , where necessary ;

3 ) the action on behalf of the state;

4 ) issue binding regulations ( regulatory and enforcement ) within the competence assigned to them ;

5) work in government for civil servants is a profession that is work on a professional basis .

All public authorities vary in different classification criteria . Most often, the state authorities are classified on the basis of the principle of separation of powers into legislative, executive and judicial .

Separation unified government into three branches among the most important principles of organization and operation of government agencies. Doctrine of separation of powers has an ancient history , but this theory has been the most complete and well-reasoned view through the teachings of the French jurist and political philosopher Montesquieu . According to the teachings of Montesquieu , the main purpose of the separation of powers is to eliminate the abuse of governmental power . He believed that there should not only be clearly defined terms of reference and scope of each of the branches of government - legislative , executive and judiciary , but also provides a deterrent legal authorities. The principle of separation of powers comes from the fact that the government itself is indivisible and must vary its branches , resulting in differentiation of office branches.