In Russia establishments should make special system, thus in self-government institutions the public unions to which rural regions were equated, city councils and municipal parliaments begin to operate. Васильчиков suggested to create also administrative districts - district and provincial establishments in which representatives of a local society begin to operate.
Modern researchers consider, that Васильчиков has offered the economic theory of self-management (as a special variant of the public theory) as it not only separated local government from the government, but also considered a self-coping community as the independent economic subject of the right who are carrying out municipal activity which purpose is the satisfaction of basic needs of local population.
Supporters of the state theory of self-management in Russia were the hell. Gradovsky (1841-1889) and V.P.Bezobrazov (1828-1899) according to whom special local affairs and questions do not exist: if the state transfers a part of the powers to local population the population should operate as public authority. They believed, that the local government inefficiency speaks just that municipal bodies do not possess the state status and have no real power.
The local government from this point of view represents the decentralized government where independence of local bodies is provided by system of legal guarantees, which, creating decentralization, at the same time provide communication of bodies of the local government with the given district and its population.
In a counterbalance to the liberalism seeing priorities of the government in development of a civil society, the Marxist theory considered the state as the political organization economically a ruling class for suppression of resistance of its class opponents. According to K. Marx (1818-1883) and F. Engels (1820-1895), the state has arisen on a certain level of development of productive forces when the public division of labor has led to occurrence of a private property, property inequality of people and to society split on antagonistic classes.
The Marxist concept of the state consists that economic basis of a society - set of public relations - admits primary and defining, and the political and ideological superstructure urged to follow it.
The basis of development of socioeconomic structures is made by Asian each other Asian, slaveholding, feudal and bourgeois ways of manufacture to which there correspond certain types of a state system. The higher socially economic formation proclaimed communism at which achievement the state dies off, being replaced by public self-management.
The Lenin version of the Marxist state as republics of Councils has received the fullest embodiment in the former USSR. Councils represented elective state bodies, but the defining and directing role of the CPSU was thus proclaimed. In the Soviet state acceptance of all state decisions occurred at level of the higher political management, there was a state ownership on the basic means of production, the state participated directly in management of activity of leading enterprises, the institute of state planning (State Planning Committee) defining the price both tariff policy and prospects of development of all branches of economy developed.
The Soviet system assumed concentration of all three branches of the power in hands parties (CPSU) which possessed the right of distribution of key posts in the legislative, executive and judicial device. Disintegration of the USSR in 1991 has served as the beginning of transition from the Soviet system of the government to formation of the modern democratic state.
Substantive provisions of the classical theory of a lawful state have been formulated in XIX century by German philosopher I. Kant (1724-1804). They have kept the force and value up to now. According to an edging, the right вое the state, unlike despotic or police, limits itself to a certain complex of constant norms and rules.
Here attributes of a lawful state on I.Kant:
- Freedom based on the law of everyone not to obey other law, besides, on which it has given the consent;
- Civil equality - to recognize as standing above itself only that as a part of the people on whom it has moral ability to impose the same legal duties what this can impose on it;
- Attribute of civil independence - in legal affairs the civil person should not be presented anybody to another.
In a lawful state only the duly elected government has the right to apply force as compulsion. The governmental monopoly for force means a uniform, obligatory order for all, destruction of an inequality and a variety of the rights which would depend on social, hereditary or other status. Under the fair remark of the German jurist of R. Eringa, the right never can replace or supersede the basic elements of the state - forces. «Weakness of the power is a deadly sin of the state».
However force of the state is lawful only in the event that it is applied in strict conformity with the right. The political power should realize the right. What does it mean actually?
The state which has published the law is obliged to respect this law until it exists and continues to operate, though it is lawful to reconsider it and even to cancel. It also is a legality mode. Thus to the right the basic role in freedom delimitation is taken away. I. Ilyin defined the law and order as «live system of mutually recognized rights and duties». Defending the rights, the person wishes their recognition and observance from other people. At the same time it makes also to itself (himself) a duty to recognize and observe the rights of others.
The lawful state is cemented not by threat of application of sanctions, namely the consent of the majority of citizens voluntary to execute instructions of laws. The lawful state assumes certain conditions for the statement: the people as a whole and each citizen separately should ripen for perception of idea of leadership of the law in all areas of a human life. It is important, that everyone has realized not only limits of the interests and the rights, but also limits of the responsibility and a duty to self-restriction that is not as a result of long historical experience.
The Russian philosopher and historian P. I. Novgorodtsev has noticed: if democracy opens wide open space to free game of the forces shown in a society it is necessary that these forces subordinated themselves to some higher beginning obliging them. Freedom denying the beginning of the general communication and solidarity of all members of a society, concept of the power and authority, leads to self-destruction and destruction of bases of the state life.
Freedom is the right to do that laws allow. In lawful state laws have equal force for all members of a society without an exception? Even the greatest merits before the state are not the basis for inviolability of the power of the individual. The law serves in a lawful state as invisible border between collective and the individual. The edging has given a classical substantiation to this position: each citizen should possess the same possibility of compulsion concerning dominating to exact and unconditional execution of the law, as dominating in its relation to the citizen. The legislator is under laws, as well as the separate citizen. Laws are supplemented with recognition for the separate person of the integral and inviolable rights.
The personal rights and freedom are the possibilities of the person protecting from illegal and undesirable intervention in its private life and private world, called to provide existence originality and autonomy of the person.
All rights belonging to the person equally are personal. Nevertheless in the narrow sense of the word the personal rights are understood only as a part of the rights directly protecting private life and freedom of each person. The rights to a life, inviolability of person, respect, an honor and dignity protection, a freedom of worship, inviolability of dwelling concern them, a freedom of movement and a residence choice and so on.
For example, the maintenance of the right to a personal immunity reveals in definition of exclusive conditions at which restriction and imprisonment are possible, in an establishment of the strict interdiction of violence, tortures, the reference severe and humiliating human advantage, in voluntariness of medical, scientific and other experiences in the relation of health of the person, in realization of a presumption of innocence.
The innocence presumption means that accused of a crime it is considered innocent while its guilt will not be proved in the order provided by the law and is established by the sentence which has entered validity of court. Accused is not obliged to prove the innocence, ineradicable doubts in guilt are interpreted in favor of accused, and the proofs received with infringement of the law, admit not having a validity.
The Social and economic rights and freedom are possibilities of the person in sphere of manufacture and distribution of the material benefits, called to provide satisfaction of the spiritual needs economic and closely connected with them and interests of the person. The rights to work, rest, social security, dwelling, the right of succession concern number of the social and economic rights and freedom and so on. For example, the right to rest consists that all without an exception working on hiring in the state, public or private organizations guarantees the duration of working hours limited to the law, the weekly days off, and also paid annual holiday.
The cultural rights and freedom are possibilities of the person to use the spiritual, cultural blessings and achievements, to take part in their creation according to the propensities and abilities. Number of such rights concern: the right to using culture achievements; the right to formation; freedom of scientific, technical and art creativity.
Protection of the rights and freedom of the person and the citizen is a state duty. But, in turn, and the citizen bears responsibility before the state: it is obliged to observe laws, to pay taxes, to keep the nature and environment. Fatherland protection also is a debt and a duty of the citizen.
The personal immunity is provided with lawful frameworks of powers of authorities of a lawful state. The personal immunity principle is supplemented with inviolability of dwelling and correspondence.
The political rights and personal freedoms are the possibilities of the person providing its political self-determination and freedom, participation in government and a society. The concern the right to association; freedom of meetings, processions, demonstrations; the right to select and be the selected works in public authorities and local government; the right to equal access to any state posts; the right to participate in national discussions and voting (referenda) and so on. For example, the right to association (freedom of associations) means possibility of free creation political and public organizations, voluntariness of the introduction and an exit from them.
Some ideas and lawful state formulas have received for the first time the legislative fastening in the Constitution of the USA 1787 and in the Declaration of human rights and the citizen, with the proclaimed French revolution on August, 26th, 1789 we Will allocate some positions fixed in the Declaration: freedom consists in possibility to do that does not harm another; the law is expression of the general will; all citizens have the right to participate personally or through the representatives in its creation; everything, that is not forbidden by the law it is permitted, and nobody can be forced to the action which is not ordered by the law.
In a scientific turn the term "lawful state" in first third XIX century German lawyers R.Mol and K.Velker have entered Into Russia ideas of a lawful state developed Kistjakovsky, Kotlyarevsky, V.M.Gessen.
In ХХ century with development of the international integration the classical concept of a lawful state has been added by idea about necessity of submission of national legal systems to the world community right. Many European states have made the decision, that in case of a divergence of the law of the country with the international contract courts are obliged to be guided by the last. Political scientists carry to number of distinctive signs of a lawful state now not only leadership of the law, but also its conformity to international law.
So, it is possible to name following characteristics of a lawful state: a priority of human rights; free, independent court; a principle of leadership of the constitution (organic law) under the relation to other laws; mutual responsibility of the citizen and the state; a principle of division of the authorities; a priority of norms of international law.
Ideas of a lawful state find expression in constitutions of the modern states. The organic law of Germany says: «the Legislation is connected by the constitutional system, an executive power and justice - the law and the right». The modern Constitution of the Russian Federation (item 1) testifies: «the Russian Federation - Russia is a democratic federal lawful state with the republican form of board», unfortunately, real legal experts of the Russian statehood still are far from a lawful state ideal. Therefore definition of the Russian Federation as lawful state can be considered as a political end to which all of us aspire.
THE LITERATURE LIST
1. Public administration//Encyclopedia Americana. 1996. №22.
2. Gregoire R. The French Civil Service. Brussels, 1974.
3. Greenwood J., Wilson D. Public Administration of Britain. Winchester, 1984.