Law — Basis of Public Law Union of the People

Law — Basis of Public Law Union of the People

Examining the role of law in the organization and operation of the State in antiquity requires more than a mere analysis of the phenomenon of law, its nature, essential characteristics, and scientific definition. To fully grasp its significance and the degree to which the State is bound by law, one must first clarify the nature of the State itself, its essence, and review the specific historical forms and mechanisms through which State life was regulated.

It should be noted that the concept of the State is no less intricate than that of law. Throughout the entire history of the State's existence, interpretations of its meaning have undergone considerable change. Three distinct approaches to studying the State can be identified with reasonable clarity. The first, the political-philosophical (ancient) approach, views any State as a form of community organized for the common good, the satisfaction of daily needs, a means of resolving "common affairs," and regulating the relationship between "people and State" (Aristotle), or as a body of people united by agreement on legal matters and shared interests (Cicero). The second, the class approach, perceives the State as a product of societal division into classes and an instrument of class struggle—a machine for one class to suppress another (Marxist-Leninist view). The third, the organizational-legal approach, defines the State as an organizational and legal mechanism for regulating class relations.

Historically, numerous State forms have existed whose ideology suggests that law played a minimal role in organizing and exercising State power and regulating social relations. Nevertheless, ideas about the role of law in State functioning evolved in tandem with the development of doctrines on the State and the consolidation of States themselves.

The Greek conception of the State, rooted in the harmony of social life, was unfamiliar with notions of individual citizens possessing personal rights or a State protecting its citizens through law. It did not tie the effectiveness of authority to the citizen's freedom. A citizen's rights depended on his rank, not his individuality. The periodic rotation of officials through sortition, the broad involvement of the populace in governance, formal and informal deliberation on State matters, popular election of administrative bodies, and public oversight of judges represent only a partial list of Ancient Greece's democratic institutions. State authority rested not on coercion but on persuasion, tradition, and respect for law. The lawful ruler declared law to his subjects, and this constituted the essence of respectable governance.

Although no formal theory of separation of powers existed then, one can already discern legal mechanisms for controlling representative, executive, and judicial authority. For executive power, these included appointment, rotation of officials, and oversight of their conduct; for judicial power—the popular appointment of tribunal judges (the demos annually selected six thousand persons to hear cases); and for decisions of representative councils or assemblies—their judicial annulment. Yet did law hold priority among social regulators? Clearly not. Law and justice, though intended to regulate the social order and daily life, did not become universal regulators. Political ideals exerted greater influence on ordering the political sphere than law did.

To appreciate these ideals, one must recognize the direct connection between concepts of an effective and ideal socio-political structure and the notion of the city-State, which Athens exemplified at the time, concentrating all vital interests of its citizens.

The theory of the city as a place of common habitation effectively replaced the theory of the State and became a central ethical, economic, sociological, and political idea. Ideals included justice, freedom, piety, goodness, the duty of care for one's city-State, social harmony, respect for unwritten laws, faith in the necessity of adopting State decisions through deliberation, and voluntary submission to law as a benefit for all. The individual virtues of citizens—goodness, valor, modesty, and courage—were especially esteemed.

In ancient theoretical political thought, views prevailed on State power and the ruler's authority as derivative, dependent on the will and positive qualities of the ruler. Democritus argued that under the existing form of government, there was no way to prevent a ruler, even a good one, from committing injustice. It was improper that a ruler answerable to others should, after a year, find himself subject to their authority. "Therefore, it should be arranged," said Democritus, "that the ruler who has committed no injustice, even if he strictly prosecuted injustices, should not fall under their power, but that some law or other means defended the ruler who dispensed injustice."

Plato held that the ruler may heed or ignore the people's opinion at his discretion, making it impossible to bind him to legal norms. The solution, he believed, was for States to be governed by philosophers.

Aristotle's views profoundly influenced the concept of the State and the factors limiting it. He contributed one of Antiquity's major ideas—the principled distinction between the State (political relations) and society. Aristotle classified State structures into imperial power (monarchic rule), oligarchy (from aristocracy), and democracy (from polity). Tyranny serves the benefit of one ruler, oligarchy benefits the wealthy, and democracy benefits the non-wealthy. The most important thing under any system, Aristotle noted, is to use laws and other procedures to prevent officials from enriching themselves. The most useful laws, unanimously approved by all participants in State administration, would be in vain unless citizens are engaged in the State order and educated in its spirit—democratic laws require a democratic spirit, oligarchic laws an oligarchic spirit; if one is undisciplined, the entire State suffers.

Cicero, a leading orator of Antiquity, regarded the State as the most perfect form of human communion and community living. Any State, he observed, is the property of the people, and the people are not any random assembly but a body combined in some manner, connected by agreement on legal matters and community of interests.

Cicero articulated the basic principles of self-government, particularly that power is delegated by the people and should operate on the basis of moral law. As Sabine and Thorson noted, these administrative principles "for a comparatively brief period after Cicero wrote them down received virtually universal recognition and for many centuries served as generally-known propositions in the theory of political philosophy... entered the general treasury of political ideas."

Cicero's works aligned with the doctrines of the Stoic era, whose representatives (Chrysippus, Panaetius, Polybius, and others) believed justice was the best means of restraining authorities from collapse and formulated the idea of universal brotherhood of all people.

Similar ideas were widespread in the Orient—in ancient India and China. In ancient India, the "Arthashastra, or Science of Politics" (a work on statecraft) attested to the importance of moral foundations for the reliability of power, since a ruler who governs unjustly cannot expect support from his subjects, and weakened subjects become greedy and hostile toward their ruler.

Sun Tzu (Chinese philosopher, ca. 313-238 b.c.) asserted that "if a ruler seeks serenity, to achieve this there is nothing better than to issue just orders and love the people; if the ruler seeks glory, then to achieve this there is nothing better than to esteem ritual and respect scholars; if the ruler aspires to affirm his merits—for this there is nothing better than to esteem the wise and recruit capable people."

After the decline of the Roman Empire, a prolonged crisis of law ensued, ending only in the thirteenth century with the recognition that society must be governed by law.

Role of Law in the Organization and Functioning of the State in the Middle Ages and Renaissance

The formation of the concept of the State as a common community continued through the Middle Ages, giving rise to theories of State sovereignty and popular sovereignty. Jean Bodin formulated the concept of sovereignty and substantiated the principle of the indivisibility of State sovereignty, asserting that States arise either through the coercion of the strongest or through the voluntary consent of some people to transfer their freedom entirely to others, who then dispose of it relying on sovereign power—either without any laws or on the basis of certain laws and conditions. A people may surrender sovereign power unconditionally; however, this does not mean the sovereign enjoys power without limits. The laws of God and nature extend to him, and he cannot abolish them.

The medieval tradition, as Richard Hooker understood it, held that each political force (government, king, parliament, etc.) bore responsibility to the people or community it administered and was limited by moral law, constitutional traditions, and compacts concluded during the monarchy's era. Indeed, law has always enjoyed a certain degree of legitimation in the West because of this fact, and the identification of jus and lex is quite widespread—a view with numerous proponents in doctrine to this day.

Analyzing the development of State sovereignty and the interconnection between society and the State, one cannot overlook Thomas Hobbes's views. The State, in his view, is formed as follows:

"The only way to erect such a Common Power, as may be able to defend them from the invasion of Foreigners, and the injuries of one another, and thereby to secure them in such sort, as that by their owne industrie, and by the fruits of the Earth, they may nourish themselves and live contentedly; is to conferre all their power and strength upon one Man, or upon one Assembly of men, that may reduce all their Wills, by pluralitie of voices, unto one Will: which is as much as to say, to appoint one Man, or Assembly of men, to beare their Person; and every one to owne, and acknowledge himselfe to be Author of whatsoever he that so beareth their Person, shall Act, or cause to be Acted, in those things which concerne the Common Peace and Safetie; and therein to submit their Wills, every one to his Will, and their Judgements to his Judgment... [the Common-wealth] is One Person, of whose Acts a great Multitude, by mutuall covenants one with another, have made themselves every one the Author, to the end he may use the strength and means of them all, as he shall think expedient, for their Peace and Common Defence."

Hobbes distinguished three forms of State—monarchy, aristocracy, and democracy—and two types of political power: paternal and despotic. In the first, power is acquired by consent; in the second, by force. However, the sovereignty of State power arises in full plenitude: the power of a sovereign may not without his consent be transferred to another; he may not be deprived of it by his subjects nor punished by them; he is the sole legislator and supreme judge. For Hobbes, there exist no limitations on power. The law of the State is merely the will of the sovereign.

Machiavelli divided States into those whose subjects are accustomed to obeying rulers and those where people had lived freely since ancient times. In The Prince, he asserted that a reasonable Prince cannot and should not keep a promise that would harm his interests. Hence, there are no means to prevent a Prince from failing to comply with his promises.

Utopian socialists believed it necessary to adhere to social laws when distributing the advantages of life, which the ruler published or affirmed with the unanimous consent of the people, using the rules of equity.

During the English civil wars of the seventeenth century, public discussions played an active role in shaping the idea of statehood and fostered the emergence of various theories of revolutionary liberalism. Equality, freedom, natural rights, the justness of laws, and the idea of consent (social contract) became the slogans of these revolutions. The idea was supported of pacifying each sphere of administration in accordance with the supreme power of the people, guaranteed by a written recording of inalienable rights.

Unlike Hobbes, John Locke opposed the absolute, unlimited character of State power. He believed people are free, equal, and independent by nature, and therefore no one may be removed from this state and subjected to another's political power without consent. The sole means of relinquishing political freedom is a contract with others to combine into a community. Locke's merit lay in laying down the basic principles of the theory of separation and limitation of power, albeit from the standpoint of parliamentary priority. Locke asserted that the power of society and the legislative organ created by it could not extend further than necessary for the general benefit, and whoever possessed legislative or supreme power was obliged to rule according to established permanent laws proclaimed by and known to the people, ruling with the assistance of impartial and just judges who resolve disputes only when fulfilling these laws.

The idea of separation of powers or mixed administration, as Sabine and Thorson observed, is one of the most venerable in political theory; however, it was never given definite content. In England, this conception gained specific importance through the conflict between the crown and common law courts, and Locke allotted it a subsidiary place in the theory of parliamentary sovereignty. Montesquieu reduced the limitation of power to a system of legal checks and balances between various parts of a particular constitution.

Jean-Jacques Rousseau elaborated the most comprehensive theory of popular sovereignty. Proceeding from notions of man as citizen—a basic moral category—he suggests that the community is the main moral factor that forms the citizen. Common acquisitions (language, common interest, and prosperity) are the reason for the State's creation. "If the State is a moral person whose life is in the union of its members, and the most important of its cares is the care for its own preservation, it must have a universal and compelling force, in order to move and dispose each part as may be most advantageous to the whole. As nature gives each man absolute power over all his members, the social compact gives the body politic absolute power over all its members also; and it is this power which, under the direction of the general will, bears, as I have said, the name of Sovereignty."

What is the nature of this compact and where are the limits of supreme power? Rousseau answered: "It is not a convention between a superior and an inferior, but a convention between the body and each of its members. It is legitimate, because based on the social contract, and equitable, because common to all; useful, because it can have no other object than the general good, and stable, because guaranteed by the public force and the supreme power. So long as the subjects have to submit only to conventions of this sort, they obey no-one but their own will; and to ask how far the respective rights of the Sovereign and the citizens extend, is to ask up to what point the latter can enter into undertakings with themselves, each with all, and all with each. We can see from this that the sovereign power, absolute, sacred, and inviolable as it is, does not and cannot exceed the limits of general conventions, and that every man may dispose at will of such goods and liberty as these conventions leave him; so that the Sovereign never has a right to lay more charges on one subject than another, because, in that case, the question becomes particular, and ceases to be within its competency."

The ideals of social justice born of reason and the need for mutuality of this justice led Rousseau to conclude there was a necessity for laws, which should have a character common to all because the general will cannot be reflected with regard to a particular subject matter.

Laws are merely conditions of a civil association, and therefore the people should be their creators. However, Rousseau noted, to transform the people's will into acts, a legislator is needed (Rousseau did not believe in popular representation). Whereas legislative power belongs to the people and only to them, executive power belongs only to the sovereign.

The ideas of the French Enlightenment were developed by scholars in other European countries and acquired special resonance among the people.

During the French Revolution in the eighteenth century and the Civil War in the United States, a doctrine of constitutionalism was formed whose basic values proclaim the sovereign power of the people or the nation, the idea of popular representation, the natural and inalienable rights of the individual, the right to resist, and the principle of separation of powers.

The idea of popular sovereignty found reflection in the concept of the rule-of-law State, formulated for the first time in the works of German philosophers. Kant's idea of a Rechtsstaat was based on a primary contract and the conformity of laws to the pure principles of law. Kant substantiated the understanding of the State as an association of people subject to lawful laws, and also to other conditions of a rule-of-law State—in particular, the principle of separation of powers, the affiliation of power to the people, civil equality and autonomy of people—and devised a process for the creation of law.

Jellinek's views had material importance for understanding the nature of the State as a State that should be governed by law. He believed the existence of legal order to be material for a State that could not be joined with the theory of absolute, unlimited State power. "Law," he wrote, "does not depend upon the State to the extent that the State may exempt itself from any law. A particular character is imparted to legal order within its power, both actual and legal, but not to resolve the question of its existence."

Nevzorov, who traced the development of the idea of a rule-of-law State in Russia to the platitude of the limitation of State power, noted that during the Boyar rule (from the "Time of Troubles" to the reign of Anna Pavlovna in 1730), "legally the Tsar of Muscovy ruled his State without limitation, but, having regard to custom, shared power with the Boyars"; during the time of the nobility (up to 1825), the Tsar alone reigned, but the nobility governed.

The sole limitation under conditions of autocracy, when legislative and executive power was combined in the person of the sovereign, was "mental boundaries" (M. M. Speranskii).

Such extra-legal limitations as reason and morality, traditions, conscience, and others existed always; however, their use was not strictly determined and depended upon many factors and did not entail unavoidable legal responsibility. In confirmation, we recall the words of Empress Catherine II addressed to her State-Secretary, Popov: "You know with what caution I act when issuing my enactments. I collect all the facts, elicit the thoughts of the Enlightened, and I determine what action my edict should perform. When I am persuaded beforehand of their general approbation, I then issue my behest and have the satisfaction to see that which you call blind subordination—and there is the basis of unlimited power. But I am convinced that they do not obey blindly when my order is not adapted to the customs or when I have not myself followed my own will, without thinking of the consequences."

Only with the abolition of serfdom and recognition of political rights, including suffrage, did the process commence of creating representative organs, forming a judicial system, gradually moving away from autocracy, broadening popular participation in State affairs, and introducing real levers of control over power.

Contemporary Notions of the Role of Law and State

Doctrinal writings cite various classifications of States depending upon influence on decision-making by the political regime, which is one of the main factors determining the essence of a State.

Mann, in particular, noted that in the West it is accepted to single out three theories of the State: class, pluralist, and elitist. Briefly, the essence thereof comes down to the following. The majority of class theories are Marxist, where the State serves particular means of production and classes. The two other theories designate the modernist States. Pluralist theories rely on the thesis that modern western States are ultimately divided into Party democracy, which gradually expands (these States are deemed to be "representative"). Elitist theories (there exist several varieties of these theories) concentrate their attention on the autonomous potential, which a State has. In the center of attention of the elitists is political power as relations between the State and a civil society. Mann, indeed, rejects the thesis of democracy as a decisive and determinative factor of the State, believing that the personnel of a State may act as an autonomous formation. In our view, the democratic potential of a State has not exhausted itself, although the modern State and bureaucracy are capable of supporting their own political interests, often acting as an own political force.

To an undemocratic regime should be juxtaposed a democratic regime, to which is inherent the freedom of creating and acting in an organization, freedom of expression, the right to participate in elections, the right to join social organizations, the right of political leaders to compete for support, alternative sources of information, free and fair elections, and the existence of institutions to form governmental policy dependent on the voters.

The division of all States into democratic and undemocratic emanates from the classification of political regimes. Ukrainian doctrinal writings separate democratic, totalitarian, authoritarian, autocratic, anarchic, and ohlocratic regimes.

Peculiar to a democratic regime is the electivity of major agencies of power, deciding the main political problems in accordance with the expression of will by the majority of citizens, ensuring a broad range of personal, civil, and political rights and freedoms, legal equality of citizens, guarantees of the rights of minorities, and prevention of arbitrariness on the part of the majority.

An authoritarian regime is characterized by the predominance of methods of command and open dictatorship, the granting of discretionary powers to agencies of political authority—that is, decision-making on the basis of political advisability and not law; endowing executive agencies with extensive legislative powers; limitation or abolition of the principle of glasnost in the activity of agencies of political power.

An autocratic regime is characterized by the limited range of persons who exercise political authority and the existence of a single center of real political power.

A totalitarian regime is characterized by strict control over all spheres of the life of society, the lack of legal opposition, the existence of an obligatory official ideology, intolerance towards political dissidence, and anti-intellectualism in the sphere of humanitarian knowledge.

An anarchical political regime is the destruction of organized foundations of a single State and the political system, autonomization of power structures, lack of a system of normative regulation of social relations, arbitrariness of the stronger or more agile, absence of guarantees of safety of the population, and so on.

The indicia of an ohlocratic political regime are the incompetence of political authorities, a contemptuous attitude towards knowledge and experience of world civilization, and the absence among representatives of the organs of political power of a real feeling of civil responsibility to the people of their country and the world.

This classification demonstrates that anti-democratic regimes, whatever their grouping, are based not on the consent of their citizens or the truth and justness of society, but on arbitrariness and fear. These States are not governed by law, because without justice, as Plato correctly observed, there is no law. Only in those States in which the people in various forms (through agreement, actual recognition of sovereignty, or a Constitution) influence the forming of State power and the content of laws of the State is the existence possible of law as rules of joint life which are recognized, or legitimized, by the people, and therefore based on the justice and truth of these people and the ethical principles thereof.

Following Claude Helvetius (1715-1771), who divided all forms of government from the standpoint of conformity to the common interest into good and bad, one may say that law as an expression of the common will of the citizens of a State exists only in those societies which are governed by the opinion of the majority of its citizens and State prescriptions are a reflection of the common interest and are perceived and approved by society.

Modern civilization, it seems, is irrevocably on the path of propagating the principles of liberalism and democracy. Democracy may be defined not only as the self-government of people, but also as a government which is responsive to the conceptions and desires of people. The basic principle thereof is rule by the majority; however, under present conditions, the understanding of democracy is orientated towards its initial interpretation as a type of power exercised with the involvement of all who the question being considered affects (idea of consensus) through direct participation or through their representatives (idea of popular representation). The idea of democracy, with some differences, necessarily makes provision for the principle of separation of rule (which the withholding of power furthers), multi-party system, decentralization of power, free and fair elections, and ensuring the right of citizens to participate in them, existence of a free press, freedom of speech, and freedom of political organizations. The functioning of these elements is a guarantee of a democratic political regime, a free society in which all rights and freedoms of citizens are guaranteed.

The ideas of democracy and liberalism fill with real content the doctrine on the rule-of-law State.

Only in a rule-of-law State is the flourishing of law possible because it does not step at the level of public legal consciousness, but is completed by the legitimation by society of norms of behavior and therefore becomes a truly operating body of rules.

From the position that these norms of behavior are legitimized by society, are recognized by this society (as the aggregate of all citizens) to be generally binding, they become a genuine regulator of social relations, especially in the public sphere.

On the basis of law as the general will of citizens who are the bearers of political power and sovereign rights for the exercise of democratic powers, the State grows and functions. Proceeding from the fact that a democratic State exists not on the basis of relations of "power—subordinate," but on the basis of the right of the people as the primary bearer of political power on the forming of the State, the State acquires the expression of a public-law union of the people.

Because this union is based on the right of the people to power, law becomes the foundation of this union.

Only law becomes capable of truly ordering power relations, because the people as the participant of a State acquire the rights to exercise State powers, and hence—also the right to control State power and the direct exercise thereof, including by means of representation. All activity of the State and the agencies thereof is exercised in legal forms which are determined by the mandate of the people.

Law becomes a means of limiting power, linking it to the benefit of its citizens, because the authority thereof rests on the will and authority of the people. This authority is underpinned by the political responsibility of power to the people through period free elections and the participation of citizens in the real exercise of State policy and management of the State.

From the foregoing arises a certain generalization. The idea of the rule-of-law State and management of the State by law only is partially suitable for the ideology of a State built on a positivist understanding of law because there remains the link of the State not with jus, but with lex, and this linkage is half-and-half and unstable. Such linkage is possible, on one hand, when there are stable democratic traditions for forming and exercising State power, an awareness of the indestructibility of State-law precepts not only for the individual, but for agencies of State power and their officials. On the other hand, the link by lex provided for the obligatory existence of developed procedures for appeal against the unlawful decisions of agencies of State power and officials thereof.

The idea of a rule-of-law State is incompatible with an ideology of the State whose basis is absolute power, authority which rests on extra-legal forms of substantiation of the State and legitimation of State power, and holding power by means of coercion. Many such States are known to history, and many exist today. The absence of forms of representative democracy and involvement in resolving social conflicts of the police apparatus and coercion are characteristic of these States.