Rule of law in Russia: status, problems and prospects of development - Юридический журнал Правовое государство: теория и практика

ISSN 2500-0217 / Включен в Перечень ВАК

 

FALCONS Alfred Nilovich
Doctor of Law, Professor, Honored Worker of Science, Academy of Natural Sciences
The article examines the most important aspects of the modern constitutional state: status, problems and contradictions, trends and prospects of development of the rule of law in Russia.

Formation of the rule of law in Russia requires a thorough, detailed and comprehensive study, reflection in the Russian realities of this complex, fundamental, multiplicity of state-legal phenomenon, and of course, the development of theoretical and conceptual and practical (applied) approaches.

Analysis of the status, problems, contradictions, trends and prospects of development of legal state in our country and the present article is devoted.

I. life-affirming power of the ideas of Kant

Due to the presence in the theory and practice of formation of the rule of law in Russia set of conflicts, it is advisable, in our opinion, will return to the origins of rule of law to make it easier to understand the negative theoretical and conceptual and practical approaches to this phenomenon.

The theory of the rule of law - a synthesis of ideas and concepts about its nature, essence, features, principles, functions as a state of democratic, social, which in all spheres of public life (and public and private) the rule of law and legal means to ensure the maximum actual implementation, safety and protection of fundamental human rights. [1] It is a natural result of the civilized development of the doctrine of state in terms of the human dimension and social justice. [2]

The term "legal state" (Der Rechtsstaat) is a specific, purely German word formation. Languages ​​of other nations (except Russian) do not have such a phrase, wherever so aptly joined the concept of law and the state. However, the languages ​​of other nations, of course, include the institution. Thus, in the Anglo-Saxon legal family corresponds to the concept of "rule of law" (rule of law), "the legal state or law-bounded" (rule of law, but the translation from German was not included in a social and political revolution), in French - "regne de la lois" (reign of law, the rule of law) or "limitation des gouvernants" (restriction of rulers).

However, these are not derivation fully identical to the German term. We can only note that connects them sign that ideological wealth of the rule of law is rooted in the common European civilization.

The concept of the rule of law, as a program, which limits the State under the Constitution and laws of the legal issued on its basis, arose at the turn of the XVIII and XIX centuries. The idea and the institutions are in deep-lying strata of European law and are aimed at achieving a peaceful order, guaranteed by the state with the help of law. In our opinion, the development of ideas of legal statehood and turning them into concepts, and then to the theory, it took five steps. [3]

The first stage was a political and legal conceptual idea of ​​the triumph of justice laws in the state. In this case, the original, so to speak, "slippery" was the idea of ​​the rule of law the law, not the power of the ruler. This postulate is argued references to ancient ancient Greece, medieval thinkers, thinkers ranneburzhuaznogo period of pre-revolutionary Russian scientists.

The second stage of the progressive development of the ideas of rule of law was the concept of natural law, which also takes its roots in ancient times, the development of gets in the Middle Ages, then in the teachings of early bourgeois thinkers (Hugo Grotius, Spinoza, Hobbes,. Locke, J. Kant et al.). With a wide variation of opinions, all authors concur that the origins of natural law are universal values, and which must comply with the norms of positive law.

The third stage in the development of political and legal ideas in the prism of the rule of law is the concept of popular sovereignty. The author refers to the ancient Chinese philosopher Mo Tzu, medieval treatise F.Akvinskogo, M.Paduanskogo teachings. However, the concept of popular sovereignty was created in the XVIII century JJ Rousseau as the development of the ideas of his predecessors: the people's sovereignty is inalienable, indivisible, unlimited.

The fourth stage of the development of ideas is the concept of rule of law of separation of powers. Reference is made to Aristotle, Polybius, Cicero, M. Padua, John. Locke. Creator of the same doctrine of separation of powers rightly acknowledge S.-L. Montesquieu. Substantial contribution to the development of this concept and made prominent American Revolution, Thomas Jefferson, T.Peyn, A. Hamilton, J.. Adams, John. Madison, thinkers from other countries, as well as Russian lawyers.

The final (fifth) stage in the development of a coherent structure the rule of law should be regarded as the concept of the rule of law. It is necessary to distinguish between the two models - the Anglo-Saxon (Rule of law) and German (Der Rechtsstaat). Unfortunately, the modern domestic researchers tend to recognize these patterns, for some reason do not reveal their radical difference. The essence of the following two models. Thus, the Anglo-Saxon model states that the board can not be arbitrary. It must be in accordance with the law adopted in compliance with all relevant procedures, establishes the rights and duties of citizens, their guarantees. As a consequence, no person, even with official status, can not escape the statutory liability in case of violation of the prescribed rules of conduct. This means that there is no one who would be above the law. However, in this case we are talking about the formal state of law, formal law. German version of the same, in the spirit of Kant, establishes the rule of law in terms of distinguishing between right and law. Law to be legal, it must be based on such elements as the right to freedom, equality, justice, moreover, on the morality, humanism, taking into account basic human rights.

Thus, the English model of the rule of law does not allow for qualitative essence, the content of the law. Hence - formal, and should not be legal law, and, as a consequence - can not be ruled legal positivism. It was widely used in the USSR (including Russia). And modern Russia often "sin" that it would be disclosed in the following discussion.

We specifically elaborated on the origins, development stages of legal statehood, as in modern domestic law, as well as the theory of law as a subject matter, these aspects remain "in the shadow" or are vague, unclear. [4]

The second problem in the formation of the rule of law in Russia is the underestimation of the role and importance of the scientific heritage of Immanuel Kant in the creation of a holistic doctrine of the rule of law. And, of course, does not take into account its theoretical and conceptual developments.

Most textbooks on the theory of law is based on the scientific development of pre-revolutionary Russian legal scholars, but do not always take into account their situation. Although the pre-revolutionary scientists, for example, PI Novgorodtsev, have done much in this respect, revealing the symbolic role of Kant. Thus, PI Novgorodtsev directly emphasized: "Kant believes new beginnings and development determines the direction of legal and political thought of the XIX century." [5] Let us examine this issue in more detail.

Ancestor and classic bourgeois doctrine of the rule of law in Germany, rightly, considered Immanuel Kant. This, among others, said a leading German gosudarstvoved our days I.Izenzee and P.Kirhof. "The clearest justification - they write - the idea of ​​the rule of law was Kant (and also the concept of the rule of law immediately provable)." [6] "The most minted concept of the rule of law - said in his book known lawyer German E.-W. Bökenförde - had Immanuel Kant. "[7] However, quite often in our national literature as the" godfather "of the concept and definition of the rule of law in 1832 called Robert von Mohl. [8] It is - indeed legal scholar with encyclopedic knowledge, Professor, University of Tübingen. But his assertion is refuted by the priority already mentioned leading scientists Germany Izenzee I., P. Kirhofom, EV Bökenförde and a number of others. The author of this article while working on his doctoral dissertation (1982-1992 years) "The idea of ​​the rule of law in Germany and the mechanism of its implementation" was held for 10 years by the same research and analysis, and that the above-mentioned German lawyers (worked about 600 works of German scientists) and fully agree with them in establishing the palm Kant in the introduction to the German philosophy and science on the state of the concept of law and his ideas.

Priority Kant easily provable. For example, in his "Idea for a Universal History with a Cosmopolitan Purpose" (1784), Kant notes [9] that "the greatest problem for the human race ... achieving universal legal civil society" (my emphasis AS). Here Kant says about the society in which the maximum freedom under external laws combined with an irresistible compulsion, as rightly civil device. And in the "Metaphysical beginning of the doctrine of the Law" (1797), Kant holds the idea of ​​change of government in the state, so "that it is in their acting in concert with the only legitimate-systems, namely systems with pure republic, and to the old empirical ( structural) forms, which serves only to facilitate the gathering of the people turned to the original (rational) form - the only, cause of liberty principle, moreover, the condition of any coercion, which is necessary for the legal state system in the true sense of the system ... This is the only durable political system in which the law of autocracy and not depend on any individual "(my emphasis - AS.). [10] The work of Robert von Mohl same (1799-1875 g) was published in 1829. [11]

As you can see, and the time of publication and on the concept of the rule of law elegance palm belongs to Kant.

In this regard, a number of unfounded allegations of modern Russian scientists who are trying to disavow Kant. So, Professor Morozova LA writes: "I. Kant said, in essence, not a state of law and the legal community. "[12] The same idea was also noted in the book edited by Professor VV Lazarev, which says that Kant used the term" legal civil society. "[ 13] In fact, it is - not. Scientists simply do not have read Kant. It has already been given its definition, and associated "with the legal civil society" and "the legal state system."

As for the term "state of law", the modern German researchers sources of legal state period of the early German liberalism came to the conclusion (the author of this article fully agree with them) that it was the phrase "state of law" was first used by KT Welker in 1813 [14] Then in 1824 it came in the product IH Aretino background [15], and only in 1829 (rather than 1832) Robert von Mohl introduced him to the general public and legal and political revolution. [16] However, in our opinion, the fundamental difference between "legal state system" and " state of law "in terms of ideas - almost none.

In the scientific developments of Russian scientists, there is usually no reference to the work of Kant, which formulated the basis of his theory of the rule of law, in particular, on the guidelines as the rule of law and the rule of law the law (the law and the right connectivity), freedom of every member of society as a man, his equality with the other members of society, independence of each member community as a citizen, the separation of powers (it's taken them from Sh-L. Montesquieu), and others.

Fill in the blanks. Fundamentals of the theory of the rule of law Kant stated, first of all, in the following works: "Idea for a Universal History with a Cosmopolitan Purpose" (1784), "On the well-known saying," This may be true in theory, but not good practice "(1793)," Perpetual Peace "(1795) and" Metaphysical beginning of the doctrine of the Law "(1797). In addition, certain provisions of the state of law contained in such works as Kant, "is expected to begin in human history" (1786), "Religion is the boundaries of the Spotless Mind" (1793), "The dispute faculties" (1798 ).

I think that it is wrong assertion of Professor VV Lazarev that the term "legal state" appeared primarily in the works of the German scholar of the XIX century K.fon Rotteka. [17] This is - not so: after all, his work has appeared only in 1830, when the concept of the rule of law in Germany had already been clearly framed. Prior to that already works out of a state of law Kant, Jordan Pёlitsa, IV Platsidiusa, A. Mueller, KT Welker, I.fon Aretino and R.fon Mole. However, in this connection it should be emphasized that Karl von Rotteck with R.T. Welker released encyclopedia on the legal, constitutional state in 16 volumes, which have stood three editions. [18]

Analysis of the works of Immanuel Kant suggests that from job to job, he spends incrementally idea of ​​the rule of law, the rule of law in the legal life of the people, society and the state, and in his work "Perpetual Peace" (1795), Kant emphasizes the right the need for the "right to receive, in the end, the supreme power." [19] Therefore, the benefit of the state, according to Kant, is not the welfare of citizens and their happiness, and "the highest degree of consistency with the state system of legal principles. Seeks to which obliges us to reason through a categorical imperative. "[20]

Thus, the core ideology, more life-affirming power of the ideas of Immanuel Kant on the legal state limit is connectivity and state law, legal law. This connectedness he imagines as an expression raised to the universal law of the human mind. This brilliant idea Kant on the rule of law, the rule of law the law is designed to hold the mind through life together in the right of individuals and peoples, and thus serve as a perpetual peace. Thus Kant emphasizes the idea that the rule of law and the rule of law the law, as a general (universal) principle of the rule of law, is intended to serve, above all, ensure that the guarantees were provided innate and inalienable (natural) rights and freedoms of man and citizen (guarantee of freedom of the individual). However, sometimes some modern scholars Kantian heritage try to make it as a legacy of "rock-ice dogmatic father Kant." [21] With this, of course, difficult to accept, because emphasizing "ought" the rule of law as a necessary condition for the existence of a single correct polity, Immanuel Kant is not to take his scholasticism, not a dogma, but to the unfailing approval (imperative) pravogosudarstvennyh principles. It is only in their implementation, implementation of the social structure will rest on the right of the mind that will bring peoples eternal peace and guarantees of their rights and freedoms.

Special mention should be on the principles of the rule of law, because they are his "rod", load-bearing structures. After all, the rule of law - it is the original, fundamental and guiding principles stemming from its nature. This - the main component of the theory of the rule of law, which has direct access to public practice, purposeful activity of the state, society and the individual. The rule of law is gradually vykristallizirovalis in the political struggle against the tyranny of the civil society, voluntarism of the government, against its interference in private and public life, against the establishment of authoritarian and totalitarian political regimes.

In domestic science as a large, and not always justified range of opinions on this issue. It is appropriate in this context to cite the opinion of modern German scientists who completely based on the teachings of Kant on the legal state. In the German literature clearly dominated by the following rule of law: 1. The rule of law and the rule of law the law in all spheres of society; 2. Guarantees innate and inalienable (natural rights and freedoms of man and citizen; 3. Legal equality; 4. Legal security as a commensurate state action, as the protection of confidence in the state (restriction of governmental interference in the affairs of civil society, the predictability of the state bodies and clear

Last modified on 17/04/2015

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Соколов Альфред Нилович

Доктор юридических наук, профессор, заслуженный деятель науки РФ, академик РАЕН

 

ISSN 2500-0217 / Включен в Перечень ВАК