Право/5. Уголовное право и криминология

Spektor L.A.

South – Russian state university of economics and service, Shakhty.

STATE AUTHORITY: LEGAL ASPECT.

Inalienable quality of a country is its sovereignty, on the strength of which it executes independent and supreme power within its borders and is independent in international affairs. For the will of its bearer state power is supreme, and its legislative acts are obligatory within the borders of the state, i.e. the power has a legitimate right to take decisions, which citizens must obey. Eternal manifestation of sovereignty is the independence of state in foreign-policy relationships.

Thereby, inside the state any other sovereign power can’t exist and it also can’t appropriate supreme functions in establishing means and forms in manifestations of home and foreign policy. This supreme power is spread over the territory, which is under jurisdiction of the state. Ar. 4 of Constitution of Russian Federation establishes, that sovereignty is spread over the whole territory, which includes the territory of its subjects, and the supremacy of Constitution and federal laws within this territory provides unity and consensus of all elements of Russian legal system.

Consequently, the essential factors of state power are embodied in the sovereignty of state.

In state history the power often belonged to one person (monarch, tyrant, dictator and etc.) or to a group of people (land, finance or other aristocracy, party-and-policy bureaucracy and etc.). First serious division of power separated secular and ecclesiastical ones. The struggle between these two powers has lasted in Russia for centuries. In term of rule of Peter the First the secular power wined, when the Sacred Governing Synod dealt with religious affairs, the head of which was Chief Procurator. From this moment the process of professional functions of the power began. The idea of classical power division, though has origins in Ancient Hellas, but finally was formulated by J. Lock and CH. Montesquieu during the Age of Enlightenment.

M. M. Speranskiy gave consideration to elaboration of theory of power division, and pointed out, that it’s impossible to base governing on law, when sovereign power makes law, and executes it. But M. A. Bakounin participated in the development of power division theory more than the others. In his plan of ideal social organization he clearly depicted the functions of executive power, which must be realized within the bounds of legal norms, allocated in charters. However, all in all theory of power division in Russia was taken critically. The opinion that state power was united and indivisible prevailed.

In monarchical Russia it was thought, that power belongs to imperator, and in USSR it was supposed, that it belonged to people, which exercised it by means of Soviet of People's Deputies, which were the political basis of USSR. That was why in Soviet political legal theory and practice the thesis about the necessity of power division between different state bodies and party bodies and organizations was upheld. None of Soviet Constitutions allocated the notion “judicial power”, because power was associated with policy, but didn’t relate to the rights. Judicial power as a mechanism of providing domination of law over the policy was excluded. The idea of power division on branches was officially recognized in paragraph 13 of Declaration “About governmental sovereignty of Russian Soviet Federative Socialistic Republic (RSFSR)” after 12 June 1990, approved by Congress of People’s Deputes of RSFSR on November, 22, 1991 and in №1320-1 “About declaration of human rights and liberties”, where it was proclaimed that division of legislative, executive and judicial power was the most important principle of functioning of Russian Federation as a legal state. At the same time ar. 32 of Declaration established that the judicial protection of rights and liberties is guaranteed to everyone.

The further development and normative assignment the power division principle got with creation of Constitutional Court of Russian Federation, which have possessed the functions of judicial control. And only ar. 3 of Constitution of RSFSR of 1978 with all amendments allocated the division of power on legislative, executive and judicial branches. Then this principle was reflected in ar. 10 of Constitution of Russian Federation, which was adopted on December, 12, 1993.

Division of powers is a principle, theory and method of rule, proceeding from the fact that for provision of process of normal functioning of the state three power branches must exist in it independently. However, simple power separation can’t guarantee democratic rule. None of power branch can possess a dominating influence, they must be equal, that’s why the principle of power separation must be added by system of checks and balances, executing the following functions: 1) each power branch must handle certain regulators, that will allow to limit the other branches; 2) the actions of authorities must coordinate with each other, providing equalizing and regulating fundamentals. To our opinion V. M. Savitskiy was right, saying that: “In context of system of checks and balances judicial power is characterized not so much by justice (in traditional meaning) than by juridical possibility to have active influence on decisions and actions of legislative and executive powers, to “equate” them. These authorities when they are represented in court and are used by it; transform judicial power into a strong stabilizing power, able to protect rights and liberties of citizens and to guard society from destructive social conflicts”.

At the same time the power division doesn’t mean full functional separation of one branch from the others. According to L.V. Lazarev pure theoretical model of power division on its independent branches doesn’t come from ideas of theory founders CH. Montesquieu and J. Lock, but it isn’t also verified by modern modifications and isn’t embodied; moreover it can’t be realized in any of the existing legal systems. The interconnection of competences between powers is necessary, because it realizes the principle of “checks and balances”, which prevents from power monopolizing by one branch. “Sterile purity” of power separation will be non-functional, and that’s why will be absolutely unnecessary, because none of the principles must be reduced to absurdity.

Practical realization of this principle is the principle of independence of judicial power.

Consequently, state, as a specific political organization, exercises power, i.e. influences on social processes and people’s behavior protecting public interests. At the same time Constitution of Russian Federation establishes that a person, its rights and liberties are common values, which guarantee the protection of human rights and liberties. This implies that law-protecting and law-enforcement functions of the state, which are aimed to provide and protect human rights and liberties, legal interests of governmental and private organizations, are the most important. At the same time execution of such functions supposes establishing of such legal norms, which regulate not only behavior and process of realization of guaranteed rights, but also prescribes duties.

In other words state power is materialized by means of state bodies – an organized part of governmental mechanism, lodged with powers, competences and necessary sources for realizing tasks, which government has in certain sector of state rule of society.

The state body can be distinguished by certain signs. Only state body is created and functions in the name of state in compliance with laws, and executes proper tasks and functions, has its own competence.

Ar. 3 of Constitution of Russian Federation defines that state bodies perform like a mechanism of executing democracy, and appropriation of authority is illegal. At the same time constitutional principles of foundation and action of state bodies are: principle of power division, according to which united state power in Russian federation is exercised on the basis of separation on legislative, executive and judicial (ar. 10), at the same time bodies of indicated power branches, being independent, also interact with each other; the principles of separation of subject of authority and competence between federal and local state bodies (ar. 5 and ar. 11); the principle of checks and balances, implied from the content of Constitution of Russian Federation, revealed in legal interpenetration in competences by state bodies of different power branches.

To execute its functions state creates the system of governmental bodies, which materially form state power, exercising it in different agencies.