Читать книгу The Theory of State and Law (elementary course) - Aigul Karatayeva - Страница 4

State power is a special kind of social power. Social power – it is inherent in every human community relations of domination and subordination between the subjects, based on coercion power relations are manifested in the fact that one person has actually used the opportunity to dominance, that is. e. the impact of the will of another entity, it inclines to a particular pattern of behavior. Power as a phenomenon emerged together with human society and in the modern period is characterized by great diversity. There are, in particular, the power in the family, in the workplace, economic, political, psychological power, and others. The relationship of power is a necessary means of contributing to the organization of relative order and discipline in different social structures.

State power – a relationship of domination and subordination, which are formed between the state organization and society. The main task of the state power – to influence the will and behavior of citizens and direct their activity in the right direction.

Characteristic features of state power are the following:

1) it is the bearer of special subjects – the State as a whole or individual state bodies and officials;

2) apply to the whole of society;

3 it is the basis of the authority of the institution of the state, the inequality of status (rights and obligations) officials and the ordinary citizen;

4) based on the use of specific management tools (laws, politics, ideology, state coercion, etc.).

The scientific literature is sometimes identified state power and political power, use these terms interchangeably. This view was expressed by Marx and was widespread in the Soviet state.

Meanwhile, a number of modern scholars believe that political power – the concept is broader in content than the government. According to this approach, the political power can be realized not only by the state, but also by other political actors (political parties, social movements, and so etc.).

The public agency: the concept and classification

The primary organizational form of state power is a public body. State authority – a unit of the state apparatus, authorized to exercise state power in society and endowed with certain governmental authority needed to address specific management tasks.

The most significant public body properties include the following:

1) the main purpose of a state body – the implementation of the government, the decision of those or other administrative tasks in society;

2) it is a legal institution, as is formed and acts on the basis of relevant legal documents (constitution, statute, regulation);

3) acts as a legitimate institution, as its authority and powers voluntarily or involuntarily recognized by most people;

4) has the appropriate competence, which is understood as a set of legally enshrined powers. Such powers are manifested in the possibility of publication of relevant legal acts, the application, if necessary, measures of persuasion, education, promotion, and coercive power;

5) consists of civil servants and relevant structural units (divisions, departments, etc.);

6) has the necessary material resources (buildings, transport, equipment and so forth.), As well as the financial resources needed for the implementation of competence. There are several scientific classifications of state bodies. Depending on the order of formation of the state organs are divided into bodies elected by the people (the Parliament, the President), and bodies formed by the other – public authorities (government, courts).

The form of realization of state activity can be divided into legislative (generalizing name – Parliament), executive (government, ministries, services, committees, administration), legal (constitutional, ordinary, administrative, military and arbitration courts), control and oversight (Office of Public Prosecutor, Court of Auditors, audit committee.).

In the hierarchy of state bodies are divided into central and regional (local), the order of the competence – to peer (parliament) and the individual (President), in terms of implementing powers – at constant (court, prosecutor's office, police) and temporary (interim administration) the nature of competence – in the bodies of general (general) jurisdiction (government) bodies and special (narrow) competence (individual ministries, services, and others.)

Any State objectively manifests itself almost does not act except through its own mechanism. The mechanism is an essential attribute of statehood, it materialized embodiment.

The mechanism of the state – a specially organized system of state bodies through which public power is exercised, implemented tasks and functions of the state.

In the scientific literature, the concept of «state mechanism» is interpreted in a narrow (the most common approach) and broad sense.

In the first case, the structure of the mechanism include only public bodies with authority and engaged in the management, administrative activities. Sometimes these bodies system is also referred to «state apparatus» term.

In the second case, the structure of the mechanism, in addition to the organs of the state, also include public institutions (the armed forces, prisons, etc.), Public institutions (libraries, museums, hospitals, theaters, universities, etc.) And state-owned enterprises. Among the most significant features of the state mechanism can include the following. State mechanism is inherently a system of interconnected and interoperable public authorities.

1. That state bodies represent the state power, are governance tools. Other public entities (organizations, institutions) represent the state primarily as the owner and do not participate in the process of authoritative regulation of social relations.

2. The mechanism is a tool of the state of implementation of the-State-of tasks and functions of the state policy.

3. In structural terms, the state mechanism consists of civil servants (officials) – specialists – in the management of professionals.

4. The mechanism of the state is endowed with special powers. They manifest themselves primarily in the possibility to establish generally binding rules of conduct (legal norms), to demand their implementation by all parties of social life and punish entities for violation of the established norms.

5. The mechanism of state is authorized to dispose of the necessary material resources (budget, state property, resources, institutions, enterprises, organizations, and others.).

The process of the organization and practice of the state mechanism is based on certain principles. These principles – it is raw ideas, guidelines that define approaches to the formation and functioning of the public authorities. Among these principles are usually related to the following ideas:

– The principle of priority of the rights and freedoms of man and citizen (all public authorities owe their jobs in the first place to recognize, respect and protect the rights of the data);

– The principle of democracy (majority of citizens the opportunity to participate in the formation of government bodies and control over their activities);

– The principle of separation of powers (the need for a unified division of state power into three branches: legislative, executive and judicial branches, which each independently realize their authority, but are interdependent and limit each other);

– The principle of legality (mandatory strict compliance by all public servants constitution regulations, laws and regulations);

– The principle of transparency (transparency, availability of information about the activities and results of the specific state bodies and officials);

– The principle of professionalism (the need to involve in the administrative apparatus of the most qualified and experienced experts);

– The principle of responsibility (every public official should be responsible for the faithful execution of their professional duties);

– The principle of subordination (multi-level nature of governance, accountability, and accountability involving lower-level authorities superiors);

– The principle of combining collective leadership and unity of command (in collegiate organs may be the sole adoption of certain management decisions, while the individual government agencies and individual officials should actively use the collegial form of administrative work);

– The principle of a combination of election and appointment of (state bodies are formed either by the appointment of civil servants, and by their election).

The concept of state

Expand the concept of the state – means to form an idea of it by pointing to the most significant patterns properties (attributes) of the phenomenon. Modern state as such features are called following.

1. The state is first and foremost a special form of organization of political power in society.

2. The State – an organization of political power, officially representing the whole of society, expressing its collective will.

The collective will – a complex concept, it includes two aspects: the narrow group and general social. Any state in carrying out its policies, acts, on the one hand, in the interests of various social strata and groups (economically dominant class, the ruling political elite, certain ethnic groups, religions, big business, etc.), And on the other – in the interests of society as a whole (health care organization, education, transport, communication, crime, measures to prevent wars). Narrow group and general social state in essence inseparable, though their relation to different historical periods in the same state can changed.

3. State – is the territorial organization of power. This feature means that the power of the state, the propagation within the territorial boundaries of the state, shows the regulatory effect on all persons within the territory of the state, irrespective of their nationality, ethnicity, profession and other characteristics.

4. The State – a sovereign organization of power. State sovereignty is manifested in two aspects: firstly, the possibility of an unconditional, absolute dominance of state power within its territory (internal sovereignty), and secondly, the ability to carry out independent policy at the international level.

5. State – is the regulatory institution of society, an instrument through which society organizes and develops in the right direction of the relationship between people. The raison d'être of the state organizations – in the management of the life of society. By accepting and putting into practice the necessary laws, the state has an impact on most social relations (economic, political, family, domestic, cultural, information, etc.).

6. The State – it is difficult to organize multi-level mechanism consisting of interconnected and interacting controls (legislative, executive, judicial, law enforcement, etc., as well as officials and civil servants).

7. State – an organization with a mandate to dispose of. human and natural resources of society, as well as special material values. Disposal of human resources reflected in the fact that the government specifically organizes the system of employment of the population by encouraging society to implement the production functions that are needed to maintain its normal existence and progressive development.

Disposal of natural resources is manifested in the ability to use the benefit of society and the natural wealth of the state.

In addition, in the process of carrying out the necessary policy, the state is authorized to dispose of such unique material assets as state property, budget, foreign exchange and gold reserves, Diamond Fund, and others.

Summarizing the above essential features of the state, it is possible to propose the following definition of this phenomenon.

State – а sovereign, territorial organization (engine) power, which expresses the collective, will of society and using its human, natural and material resources in order to regulate the most important social relationships.

The essence of the state

Category «essence» borrowed theory of law of the philosophy and used for repeated consideration of the most important, the key issues. Under the essence of a phenomenon in philosophy understood as a set of deep natural connections and relationships that make up the sum of its qualitative definiteness.

When considering the nature of the state should take into account two main aspects:

1) that any state is an organization of political power (formal aspect);

2) then, whose interests are served by the organization (content side).

In the legal literature are the following approaches to the nature of the state:

– Class approach, under which the state can be defined as the organization of political power by the economically dominant class. Here the state is used in the narrow purposes, as a means to ensure mainly the interests of the ruling class. In this case the priority satisfaction of the interests of any one class can not but arouse resistance from the other classes. Hence the problem is permanent «removal» of resistance by violence, dictatorship. Human values and interests are also present, but they fade into the background);

– Society approach, under which the state can be defined as the organization of political power, to create conditions for a compromise of interests of different classes and social groups. (Here, the state is already in use in the wider purposes as a means to ensure the public interest is mainly concentrating the interests of different classes and strata, the majority of the population, using mainly a method such as a compromise);

– Religious, ethnic, racial, and different approaches to the nature of the state, in which, respectively, religious, national, racial interests will dominate the policy of a particular state.

In general we can say with certainty that the essence of a particular state has many aspects and is not limited to the class and general social principles. Consequently, in the nature of the state, depending on the historical conditions of the most leaving any of the above principles.