Magdiev M.M.

Doc.pulpits to

theories state and right

DGU Republic Dagestan

Division of the powers as principle state

device to Russian empire XVIII-XIX vv.

To beginning XVIII age to old traditions ордынской and byzantine estate, rich experience moscow единодержавия выкристаллизовались in made forms of the absolutism. Aging imperial Russia could not follow the classical recommendation Monteskie in sense, since she inveighed not for principle of division of the powers, but for their единение and even full merging, for absolute sovereign power of the emperor, comprising of itself and legislative, and executive, and judicial authorities. However, in the opinion of N.I. Cimbaeva, "absolutism is not reduced to individual authorities of the monarch, and practice of state management Russian empire was an сложнее ". Address to history experience of the Russian empire enables to reveal the real mechanism of division of the powers, provided more firm operating the state machine, understand the particularities to russian political thought.

In the opinion of S. Mndoyanca, the monarchy with element class representation was arranged in Russia in medium XVII age already. The Idea representation answered Zemskie and church cathedrals. Petrovskiy political mode was alien and hostile idea of parliamentarianism.

The Particularity of the development of the principle of division of the powers in Russia is her(its) основанность on wide-spread and well designed idea english and french просветителей and full absence of the attempts of the moving the theorized knowledges on russian ground in practice. However existed the separate attempts certain "breedings" authority of the different branches authorities. So, under Petre I existed high законосовещательный organ (but in absence reigning - and high legislative) - a Senate. At послепетровское time for change Senate came the Sovereign privy council (with 1726), alongside with monarch shown high legislative and executive organ; The Cabinet minister (with 1731), realized executive and законосовещательные to functions (with 1735 - legislative); The Cabinet her(its) majesty (1741), Conference under the most High courtyard (1756), Imperial advice (1761), Advice under the most High courtyard (1768).

In XVII-XVIII age attitude to division of the powers was careful, or critical, ибо bourgeoisie was VWVhave diarrhea to separate the power with gentry, and could not raise an objection to autocracies.

In condition of the russian absolutism slogan division of the powers did not contain the main idea - a mutual balance and restrictions of the powers.

However, allegorized the thought about restriction authorities autocrat, first of all gentry. The Prince M.SCHERBATOV has offered to form at monarch, realizing high power, high representation - as electoral institution with законосовещательными function.

The Earl N.I. Panin has offered "to found the political liberty for one gentry" first, raise his(its) role in country management; create the institution sovereign authorities with legislative function and create the дворянское home rule on places. The Monarch belonged to executive power.

It is Enough finished, but far from perfective, has gained the principle of division of the powers under Catherine II. So, executive power was entrusted First department of the Senate, judicial - a Second department, legislative - an Advice under the most High courtyard, however, Catherine II saved the full control on activity all three institutions. Then in strictly правовом sense realization of the principle of division of the powers means the liquidation to unlimited autocratic monarchy, the end of the absolutism.

The Public hopes and political disputes begin XIX v. have revived the interest to teaching about division of the powers, which general revenge became from this time to political theory and in small degree has influenced on practical person of state management. In these years occurs the formation of the early russian liberalism, and exactly at that time, and for very short time, teaching about division of the powers attracted really public attention, causing hardened disputes.

The most resolute outside division of the powers in political элите begin XIX age was a first minister state M.M. Speranskiy, which has developed the mechanism of the realization of division of the powers for Russia and has stated him(it) in "Introduction to Code of law of the state laws" (1809). In its project M.M. Speranskiy more original interpreted division of the powers. Legislative, executive and judicial authorities emerge beside it as manifestation united "державной" authorities. So emperor is "sovereign lawmaker" and "sovereign beginning executive authorities", "sovereign охранителем justices".

He has shown that statement to hard legality is inevitably connected with address to theories of division of the powers and with more or less consequent undertaking recommendation to this theories in state device and practical person of state governing the Russian empire. Moreover, the conclusion inevitably results from his(its) discourses about that that authentic division of the powers entails the restriction autocratic authorities and that or other form of the constitutional institutions. The Main idea Speranskogo consisted in need of the deep state transformations, undertaking the reforms. For a long time, this standpoint separated and Alexander I. Since the first months of its reign Alexander I developed the projects of the reforms, where invariably was present the idea of division of the powers. The Truth, neither Alexander I, nor his(its) nearest employee Speranskiy had not a clear belief about depth and the sequences of the state reforms and about that particularly, insofar compatible constitutional and legal principles of the supposed transformations with tradition of management and political culture to Russia.

Understanding importance of the proclamation of the principle of division of the powers, Alexander I in 1810 created the State advice, in "Institution" about which was spoken: "No law can be not submitted for approval emperor aside from State advice". Other word, speech went about organizations high organ in Russian empire. Outwardly this organ as it were continued the traditions of the high collective institutions XVIII age, but indeed his(its) role was in principal other, since in his(its) competency did not enter the questions executive authorities and proceedings. Activity of the State advice was built on recommendation of the theories of division of the powers strictly. Herewith, occupying important place in structure of the supreme authorities, State advice only once in a while had an authentic influence upon state deals.

Thereby, experience XVIII - begin XIX vv. was indicative of that that main by creative power in Russia was shown sovereign power on behalf of high collective managament, connected in itself executive, legislative and judicial authorities and having right of the autocratic initiative on the most important state deals.

Preobrazovatelinye plans Alexander I, including "State authorized грамоту Russian empire", which was formed as preparing to acceptance russian constitution, where was consecutively conducted principle of division of the powers, were provided such institutes, as representative institutions, property requirement, independence of the court and proceedings from administration, freedom of speech, вероисповедания, seal, inviolability to personalities, equality all before law. All this remained on paper. "Authorized грамота" contained even the most most important rate of the bourgeois right: inviolability to property. But in russian reality was not that social power, which, like french "third class", ready was at least support unless realize these transformations.

Under absolute monarchy whole power was concentrated in hand of the autocratic monarch, and speak of division of the powers does not happen to. The Constitutional project M.M. Speranskogo expected the determination to constitutional monarchy, introduction representative organ overhand донизу, as well as division of the powers. Moreover legislative power was expected bolt for Derzhavnoy duma, executive - for monarch, judicial - for judicial system with Senate at the head and with court juror. A Certain association authorities was allowed on behalf of State advice. Their own constitutional projects were and beside decembrist. Pesteli offered the project republican device with division authorities on legislative, executive (together with judicial) and "блюстительную" (checking), as well as broad spreading public вече.

The Project to Constitutions Muraviyova provided the constitutional monarchy, federative device, division of the powers on legislative, executive and judicial, bicameral parliament. The Emperor Alexander II has conducted judicial, town and земскую reforms. Practically, there were are created united judicial system and local home rule. Besides, constitutional project M.T. LORIS-Melikova expected the institution representative organ.

The Failure Alexander I became, aside from the other aspect, and failure to theories of division of the powers on russian ground. The Experience XVIII - begin XIX vv., as was it already spoken above, experience of the Catherine II and Alexander I was indicative of that that main, but timeses and single creative, creative power in Russia emerged the sovereign power. Nor public masses, ignorant and it is enough passive, neither that or other class groups, nor public opinion, nor army served the counterweight "autocratic initiative".

On change political interest, typical of of time (the enlightened monarch, constitution, republic, legal warranties, military revolution), gradually came the social problems, particularly actively discussed in 40-60-e years XIX v. (the peasant reform, relations class, local home rule, незыблемость judicial determinations). Radically, the tuned populists denied need and usefulness of the political reforms, in their doctrine not even rose the question about division of the powers.

It Is Considered that Alexander II, not погибни he from hands народовольцев, possible, даровал country constitutional rule. Can be, yes, but can and no. Nowhere near did not become the constitutional monarch and Nikolay I. Having Signed its famous Edict "About improvement of the state order", he really даровал some liberties, has in particular declared about making the State duma, made limited legislative authority. However hopes to public, naturally, were not justified. Not one law could not take effect without the most High approval. Yes and existence of the Duma itself depended on tsarist discretion or, more exactly, arbitrariness.

With of time theory division of the powers did not cause the interest beside russian public as radical, so liberal and conservative directions.

In sphere of state management and high administration before begin XX v. remained the unchangeable principles, bolted in "Code of the laws", where existed the principle of division of the powers, but he did not spread, of course, on prerogatives autocratic authorities.

Functional division of the powers, installed "Code of the laws", contributed the certain order in functioning(working) the state mechanism, relieved functioning(working) the bureaucratic device, but it could not change the absence of the authentic political system independent and mutually balancing branches state authorities. Could Not it change and high collective managament, which was a powerful creativity of the absolutism in XVIII v. Necessary to note, as in Russia, in russian political thought concept division of the powers has gained the enemy.

A.GERCEN, N.OGAREV, V.BELINSKIY, N.CHERNYSHEVSKIY criticized the theory of division of the powers with the same position approximately, as Russo, confirming that principle of division of the powers disagrees the principle of the public sovereignty. Criticized the concept of division of the powers and conservatives and liberals. So, the known stateA.GRADOVSKIY supposed that power indivisible in the same way, either as state, and the whole fullness authorities in Russia must behoove the monarch.

The Liberal lawyer N.VOROSHILOV voiced the idea that term "division of the powers" unchancy, ибо "impossible to create in state several equal and isolated powers, each of which will "destroy" another. If and cost(stand)s to speak of division then about division function authorities" , since nor one social group, personality, party, in hand which is found power, are not interested in that to weaken her(it), break on a parts. "One, cost(stand)s beside meat loaf political authorities, is not biased to release from their own hands important directions to state activity and deprive its authority of the significant share of the influence upon state deals".

A.N. Korkunov offered to change the requirement of division of the powers more total notion "совместность властвования". This notion must comprise of itself at conservation unity sovereign authorities and division separate function between independent organ and joint realization one and same functions several organs.

"Joint властвование must comprise of itself at conservation unity sovereign authorities not only division separate function between independent organ, but also execution different function by one organ, but different rather".

The Development to theories of division of the powers in Russia was not a priority direction in development of the scientific thought, however, separate steps in this direction were done.

So, G.F. SHershenevich as ways of the shaping legal state indicates the idea a mastery right in management, guard by state only subjective rights, отграничение legislative and executive powers when approving as independent judicial authorities. Herewith he transfers the following legal warranties against arbitrariness state authorities: but) of the essential rights to personalities; b) principle division of the powers; in) legal самоограничение authorities; g) subordination state costing on him rule;govern. The Last two warranties are взаимоисключающими, about than was spoken above. However in development SHershenevicha there is and positive moments. In particular, here appears the representative base to state organization, is since expected allow to complicity in legislation electoral public elements. Besides, as real warranty public opinion is identified against arbitrariness state. Given position on modern stage currently, is since realized in practice, in lifes modern society through mass media, way active action to public (the mass-meetings, demonstrations and etc) etc.

The Theory V.M. Gessena also rests in legal positivism. According to his(its) concepts, legal is identified the state, which will acknowledge to be binding on itself as government, created by him, as lawmaker, legal rates. The Analysis given wordings brings about the following conclusion: legal, according to V. M. Gessenu, must be considered state, where practically no division of the powers, since entailment and executive ("as government"), and legislative ("as lawmaker") authorities becomes the state. At, the scientist notices that legislative power can be not limited by law that also introduces not quite faithfull.

Subsequent to I. Edging, S.A. Kotlyarevskiy keeps the ideas to mutual responsiblity state and personalities, warranty what is division of the powers. The Main organ, providing real mutual responsiblity state and personalities is a court, which must be constitutional, absolutely independent from who that nor was and use the unquestioable confidence of folk.

N.I. Lazarevskiy, analysing principles constitutional building, put on the first place division powers. But, probably, most packed theory of division of the powers in domestic literature was revealled by other prominent russian lawyer F.F. Kokoshkinym, which defined the participation of folk in legislation and division of the powers as two the most most important principles legal state. On our opinion, importance of the work F.F. Kokoshkina is concluded in that that he tried to find "warranties" against concentration authorities in hand government and parliament. De facto, the speech went about system сдержек and counterweight in parliamentary state. F.F. Kokoshkin has selected three elements сдерживания executive branch authorities: checking the representative organ for budget and the number to armies, responsiblity minister and right judicial authorities to check legality of the governmental dictations. In respect of legislative authorities he has transferred four "warranties": 1) participation chapters executive authorities in legislative process by means of absolute or ''veto", 2) presence two chambers, 3) of the right of the people, 4) change to constitutions special rather. Turns on itself attention absence in list of the most serious mechanism of сдерживания parliament - a granting some from branches authorities right of his(its) dismissal. Probably, in this has found its reflection a situation, established in Russia, connected with prior dismissal first and second State dumas. Interesting also note that F.F. Kokoshkin has not provided in its study no element сдерживания judicial authorities, having indicated only principles of her(its) operation; the tenure judge and court juror.

Inconsequence in realization of the principle of division of the powers, extreme усложненность and embroilment in decision of the state questions, typical of Russia period, become one of the reasons of the failure реформаторской to activity P.A.STOLYPINA.

The Picture will become the полнее if take into account that acted in Russia begin XX v. public groups and political parties did not consider any important principle of division of the powers. The Revolutionary parties did the rate on revolutionary dictatorship. The Program liberal constitutional-democratic party considered that Russia must be constitutional and parliamentary monarchy. The Cadet program, in formation which took part seen russian lawyers, also did not contain the descriptions of the mechanism of division of the powers.

The Theory of division of the powers has found their own supporter and amongst seen russian scientist end XIX - begin XX vv. In spite of differences glance and approach to matter in question, majority of them reconverged in that that judicial power must be independent, independent from the other branches authorities, but, collected together, they must form the united state power. For works russian scientist typical detailed development of the question judiciary and proceedings. Some positions have practical importance and at our time.

The First russian Criminal- a Charter criminal proceedings - was accepted in 1864 Reactionary контрреформа criminal legislation 70-h - 80-h years XIX v. in Russia was expressed in extension authority to gendarmeries on investigation of the political crimes, in exception of these deals, as well as deals about crimeses against order of control from jurisdiction juror, in abolition in majority губерний world court with transfer their function police official.

The Charter criminal proceedings, having suffered row of the change and additions, acted as a whole before October 1917 First Decree-law revolutionary government to Russia about court, published November 24 1917, new local court was ordered follow in their own decisions and condemnation law subverted government, "since such are not cancelled revolution and does not disagree revolutionary shame and revolutionary правосознанию". Much rates of the Charter criminal proceedings were reproduced in criminal-процессуальных code to Soviet Russia 1922, 1923, 1960 gg. In the opinion of I.N. Cimbaeva, "history experience to Russian Empire XVIII - XX vv. with the whole certainty is indicative of conscious failure all active participant to political life (from sovereign authorities before revolutionary subfield) from moving recommendation to theories of division of the powers on russian ground". Follows to note that Russia did not know nor authentic longing to division of the powers, in the manner of abstract at least, scientific, theorized project, nor, more so, mechanism to practical realization of the principle of division of the powers in condition russian monarchist state.