Power that is mocked with impunity
close to death
O. de Balzac

What is power? Modern science offers a variety of interpretations of this concept. Power has become the object of close attention and study in many humanities disciplines. Representatives of each of them make a feasible contribution to the general treasury of knowledge about power. However, many research approaches often stop only at describing the objectified forms and modifications of power, prerequisites, resources and results of power influence. In addition, scientists always come across natural epistemological limitations imposed by the theoretical and methodological specifics of the field of knowledge on behalf of which they speak. In this context, power sometimes becomes quite close and understandable - and yet constantly eludes the inquisitive researcher (persecutor?) entity.

Possessing the inherent property of inclusiveness, power permeates all spheres and levels of human social and cultural existence. It represents an amazing fusion of actuality and potentiality, “reality” and “actuality”, freedom and necessity, human and superhuman... Power is a kind of self-evidence and at the same time “this mystery is great.”

The complexity, inconsistency and mystery of power, its irreducible “noumenality” (and above all - from an anthropological perspective) is the reason that every new attempt to penetrate the labyrinths of power reality leaves more questions than answers. One of these is the question of means, methods and technologies of legitimation, explanation, justification, and ensuring recognition of power as Power.

The problem of legitimacy and legitimation of power was actively developed by the German sociologist Max Weber. His concept of three ideal types (foundations, principles) of legitimacy has become a classic of world social science thought. “First,” the scientist writes, “this is the authority of the “eternally yesterday”: the authority of morals, sanctified by primordial significance and the habitual orientation towards their observance, “traditional” domination as it was exercised by the patriarch and patrimonial prince of the old type. Further, the authority of a personal gift (charisma), complete personal devotion and personal trust, caused by the presence of qualities of a leader in a person: revelations, heroism and others - charismatic dominance as it is exercised by a prophet, or - in the political field - an elected prince-military leader, or plebiscitary ruler, eminent demagogue and political party leader. Finally, domination by virtue of “legality”, by virtue of the belief in the obligatory nature of legal establishment and business “competence”, justified by rationally created rules, that is, an orientation toward subordination in the implementation of established rules.” These principles are universal, but due to the fact that, as mentioned above, they are ideal constructs, they cannot be implemented in their pure form. As the Spanish political scientist Sanisteban aptly put it, Weber’s foundations of legitimacy “form a “magic formula” on which the relations of power and subordination in any political system are based.” The authorities choose one or another component of this “formula” or their combination, in accordance with the tasks facing it. this moment tasks.

By being reflected in the mirror of its own representation, the government gains the opportunity to control the level of legitimacy. The institution of public opinion can act as such a “mirror” in society. The ability of mass interested value judgments and the manifestations of will determined by them to a greater or lesser extent influence the state of affairs in the state is largely a function of the way power is structured and the nature of the political system. Accordingly, the role of public opinion as a factor in social dynamics can vary within a wide range - from insignificant to decisive. The answer to the question of what this role is in relation to a specific situation in a specific state within the possible range has both important scientific and no less significant political significance. After all, the measure of inclusion of assessments and judgments of the public in practical decisions of government and management bodies is an indicator of the openness of society, the level of development in it essential rights and freedoms, finally, one of the criteria for the democracy of the political structure of the state. Quite often, the solution to important foreign policy and foreign economic problems for the country depends on the answers to these questions - accession or non-adherence to international pacts and organizations, receipt or non-receipt of loans, credits, preferential treatment in trade, etc. Therefore, any modern political regime, even the most repressive one, strives to create the illusion of the inclusion of public opinion in the real processes of making government decisions and tries to flirt with it. Accordingly, the problem arises of the most objective assessment of the nature of the relationship between government and public opinion, the possibilities of the latter’s participation in resolving generally significant issues.

In modern scientific literature several models (modes) of the relationship between power and public opinion are described.

Mode suppression characterized by severe pressure from government institutions, including a repressive component in relation to all manifestations of mass interested value judgments about objects that have at least minimal socio-political overtones. In this case, public opinion is presented exclusively as a spiritual formation and does not transform into a spiritual-practical form. There is no need to talk about the presence of any developed volitional and especially behavioral components.

Under regime conditions ignoring the authorities seek to minimize the socially transformative role of public opinion not through its harsh suppression, but by removing it from its assessments and excluding them from all spheres of decision-making. Mass interested value judgments and even corresponding manifestations of will are, as it were, “excluded” from the political process and are doomed to exist on their own in a spiritual space that does not intersect with the space of public administration.

In mode paternalism power and public opinion are clearly unequal. The first has priority over the second. This is the domination of power, but domination in a soft form. Paternalism, therefore, is pressure, but not suppression; it is a relationship between leader and follower, boss and subordinate, in which the follower and subordinate are recognized with certain rights, and he himself is considered, although a junior, but a participant in the dialogue. In contrast to the suppression or ignoring of public opinion, when the government considers itself the only subject of the political and administrative process, in the regime under consideration, mass assessments and public opinion as a whole also act as a subject, although significantly limited in rights and opportunities by another subject. This regime already involves the use of the institution of public opinion to legitimize power. The latter needs to be recognized by society due to the fact that it is in a “social partnership” relationship with it (which, by the way, may be unequal!).

The next regime on the “democratic” scale is mutual realization public opinion. Within its framework, the most complete realization of the essential potentials of opinion occurs; it acts as a full-fledged subject of political life and a full-fledged participant in the process of managing the affairs of society.

A situation is possible when the force of public opinion puts pressure on the government (the ultimate expression of this is dictatorship). This situation can be compared with a kind of mirror image of the regime of paternalism of power in relation to public opinion, in which the subjects of interaction have changed roles.

Consideration of the listed models of the relationship between power and public opinion allows us to conclude that in the overwhelming majority of cases, the ruling elites, in order to maintain political and social stability, maintain the necessary and sufficient level of legitimacy of the existing regime (although it should be noted that all power strives for its totality, completeness, integrity, authenticity, and therefore, as a rule, to absolute recognition) one has to react very sensitively to all processes, all disturbances taking place in the environment of public opinion.

Managing public opinion as one of the resources for legitimizing power has a certain degree of universality (that is, it is used with greater or less efficiency and effectiveness in various political systems). It (in one modification or another) works, relatively speaking, “always and everywhere.” However, Russia is characterized by another mechanism that is unconventional for science and at the same time firmly entrenched in practice for explaining and justifying the existing institutional order. This is corruption. Corruption as a way of legitimizing power, “inscribing” it into “a symbolic universe, in the horizon of which both the history of society and the biography of an individual receives meaningful value,” in our opinion, one of the most interesting, ambiguous and somewhat paradoxical phenomena of Russian reality . It is impossible to understand it for a person - a bearer of the Western type of thinking, which is focused on the ideas of the inviolability of the rights and freedoms of man and citizen, respect for the norms of law and discipline, and finally, on free individual self-determination (and again, as I. A. Ilyin wrote, “not from law, but within the framework of the law") in society through their socio-political and economic activity. This is a “very Russian” (Berdyaev) phenomenon. Its inescapable vitality is ensured by its rootedness in the fertile soil of Russian history and culture, the Russian worldview, and the Russian attitude to power. It is constantly fueled not only by society’s conviction of the imperfection of the mechanism of public administration in the present, by the unresolved set of pressing problems, but also by the living, inexhaustible mental energies of the people, formed over many centuries. As is known, ideas fixed at the level of archetypal ideas are the most inert, difficult to change formations of consciousness. They have a direct impact on a person’s “life world,” his value system, and his behavior. Based on this idea, we will once again dwell on some features of the Russian mentality that deserve special attention.

Developing and popularizing the ideas of K.N. Leontyeva, N.A. Berdyaev called the Russian people “the most stateless”, initially not accepting the state either as an “earthly mortal god” (Leviathan), or as a moral regulator authorized by the Supreme Absolute Principle (God) as the guardian of Truth and ethically “legitimate” patterns of behavior. He is characterized by a fundamental alienation from the state, from the desire to exercise power, to realize legal rights and freedoms. The Russian people are religious. The ideas of Christian doctrine serve (served?) as the starting point for his judgments about Good and Evil. The state did not receive the moral and ethical sanction of the church, and, therefore, could not be the source of the true “Law” and “Grace”. Power (which was associated with the state - a ruthless coercive machine) has always been presented not as the actual ability to perform certain management functions in the interests of “all”, secured and regulated by legal regulations, as an activity aimed at creating and improving public life, but as a sin, a burden, a temptation arbitrariness after receiving a position that provides greater opportunities and preferences. That is why in Rus', traditionally, one or another social community “sent” far from its best representatives to power. Interesting observations were recorded by M.M. Prishvin: “So Meshkov was chosen - a criminal, poor in intelligence, who has neither a stake nor a yard, because he is impartial and stands for the truth - what kind of truth? unknown; only what he lives by is not of this world. Power is not of this world." The above fragment of Prishvin’s notes significantly clarifies the situation of the genesis of Russian legal consciousness and nihilism as one of its defining characteristics. ON THE. Berdyaev in his writings repeatedly points out the religious nature of this nihilism, calling the latter “Orthodox asceticism turned inside out.” The philosopher writes: “The basis of Russian nihilism, taken in purity and depth, lies Orthodox negation of the world, a sense of the world lying in evil, recognition of the sinfulness of all the wealth and luxury of life , any creative excess in art, in thought." Interpreted in this vein, state building, productive rule-making, ensuring security, economic growth, humanization of relations in the social sphere, that is, the main functions of public power, expressing its mission, calling and essential purpose, turn out to be unclaimed, to say the least - alien, not bringing any positive ideological and practical meaning into the circle of interests of a person’s individual existence, because they were initially given over to the power of self-interest, acquisitiveness and therefore excluded from the sphere of sacred-religious sanction and cultural-value regulation.

Power, devoid of divine blessing, seemed a priori vicious, prone to various kinds of dysfunction and abuse. Therefore, corruption has always been perceived as its immanent property, as a kind of identifying mark of the true earthly “Caesarean” rule. Temptations associated with acquiring a particular position had a detrimental effect on human nature. Being in the bosom of a bureaucratic organizational culture led to the formation of specific values, morals, habits, styles of behavior and communication (that is, the corresponding type of personality) - “marks”, traces of “staining” by power. Paradoxical as it may seem, it was precisely this attitude towards managers of administrative resources that provided justification for the existing management order. An unspoken compromise was established in society: power is harmful and vicious, but at the same time it is the only means, sufficiently organized force and will for the mass mobilization of the population in a serious situation external threat, the inspirer of all victories and achievements. Interaction with the authorities was random, episodic, forced. She had to very clearly define her boundaries, think through and structure her symbolic space in detail. The strict separation of the “kingdom of Caesar” and the “kingdom of God” (here - the original spiritual world, the sphere of personal freedom), public and individual-personal, “oprichnina” and “zemshchina”, state and society, finally, served as one of the factors of the legitimacy of governance.

Another important aspect of corruption, which is in accordance with the law in force in the state, is its ability to reproduce the primitive archetype of power that precedes civilization and statehood, still remaining within the era of barbarism (a bribe in this sense appears as an act of implementation of a specific power relationship). This archetype is associated with the action of the communal origin of history. It is characterized by elements of broad spontaneous, direct and representative democracy, a combination of local self-government and emerging government agencies, regulation public relations through common law, "in truth".

The ancient archetype of power “gives rise to a communal principle, containing the cult of strength, leader, clan, paternalistic psychology, and a penchant for sacrifice.” Its structure is formed by the images of the leader and the squad, the subject population and territory, as well as law based on force and custom. It is the last two elements, in the absence of conditions for self-expression, creative self-realization of the individual, and a developed system of legal regulation, that ensure the legitimacy of the government.

The revival of the communal principle and the primitive archetype of power manifests itself with all its severity, as a rule, in transitional periods Russian history, when tension in problem areas of the political and administrative process reaches its climax, and old, primordial, habitual and seemingly even “ineradicable” diseases of the state mechanism manifest themselves with renewed vigor and require qualified surgical intervention.

Corruption is a companion to the entire history of Russian statehood. It represents an integral systemic quality, an “objective and universal law of development” of society and the state (V. Loskutov). It is based on contractual relations aimed at maximizing the economic (and not only) benefits of the parties. V. Mostovshchikov very accurately noted that “it is the ability of citizens and their homeland to properly agree on the rules of living together that brings good results to civilization.”

Features of Russian historical process(in particular the lack of cultural influence European Renaissance with its ideals of anthropocentrism, personal autonomy, free, determined primarily by internal motivating attitudes of “in-itself-and-for-oneself existence” (Hegel), as well as weak penetration into the fabric of social existence and consciousness of the advanced intellectual achievements of the Enlightenment), Russian legal and political mentality, amorphousness, social and political passivity of the population - all this was combined with imperfection and sometimes outright dysfunctionality of the institutional environment, inconsistency, inadequacy of the requirements of the historical moment of the regulatory framework, underdevelopment of the preconditions of civil society, insufficiency of professional competent managers, the absence of a single, a deeply thought-out, systemic state personnel policy. In such conditions, a bribe was (and now often remains) a means of achieving mutual understanding between society and the authorities, a Russian modification of the “social contract.” “According to the order that has been in force since time immemorial, the “social contract” is concluded not at once and not between two parties - the state and society - but daily and hourly between millions of their representatives: between officials and entrepreneurs, between motorists and traffic police inspectors, between judges and the “parties” on the case" and so on for each specific occasion."

Corruption turns into a kind of ritual action that replaces legal forms of socio-political activity of citizens. “By promoting the formation of political parties, consolidation based on the participation of various interest groups in electoral processes, corruption for many representatives of the class of “political have-nots” is almost the only way to influence real changes in society.” The legitimation potential of this absolutely negative social phenomenon is actualized in the effect of personifying power, giving it a living human appearance (always contrasted with a soulless bureaucratic machine), ensuring its own accessibility, understandability, and the ability to be “appropriated” to one degree or another as a result of a situational “social contract.” ”, an economic “transaction” concluded in accordance with the principles of private (and not public!) law. Corruption is a traditional mechanism for legitimizing power in Russia. The inescapable vitality of its legitimation energy is rooted in the peculiarities of national psychology and is supported by the ways of interaction between government, society and the individual.

In the modern times of post-industrialism and postmodernism, which has survived the era of “revolt of the masses”, when parliamentary forms of representation of interests have been approved in most states, fundamentally different legitimating resources of power come to the fore, the use of which is focused on maintaining stability in the realities of mass society, on maintaining the dynamic balance of the system through creating the necessary socio-political climate for the development of healthy competitive principles of human “independent activity”. The institution of elections is one of the main instruments for ensuring mutual recognition of society and government. In accordance with the Universal Declaration of Human Rights, every citizen has the right to take part in the government of his state, directly and through his freely chosen representatives. At the same time, the will of the people is periodically expressed in elections held on the basis of principles that are generally recognized today. These principles include, first of all, universal suffrage, which is enjoyed by all citizens over a certain age, as well as secret voting. This is believed to ensure the honesty and unfalsification of the choice made by the people.

It is assumed that elections are the most likely to bring the best representatives of society to political power. History clearly demonstrates that as a result of coups or internal intrigues, not the best rulers come to power, if only because, as a rule, they do not enjoy the support of the majority, but, relying only on their retinue, are forced to resort to violence in an attempt to implement their programs . From this point of view, it is elections that provide the opportunity not only to select the most worthy candidates, but also to ensure support for the corresponding course from the majority of citizens. I.A. Ilyin at one time emphasized that not every people is and is not always able to select the best to power through popular elections. He wrote that it is necessary to approach the introduction of broad democratic rights with extreme caution (first of all, his reasoning in this aspect concerned, of course, the voting rights of citizens) and called for respect and reverence for “small freedom, revered and cherished by all,” contrasting its “great freedom, not observed or respected by anyone, for such “great freedom” is an imaginary value that deserves neither the name “freedom” nor the name “right.”

The electoral process is most closely and directly related to the problem of the legitimacy of power. Legitimacy means public recognition of something - an actor, a political institution, a procedure or a fact. Unlike legality as a legal formalization of legality, legitimacy does not have legal functions. It only justifies and explains political decisions, reflects consent, political participation without coercion, and justifies the actions of the authorities. Legitimate politics and power are authoritative; By legitimizing power through elections, citizens seem to recognize its legitimacy, express their trust in it, and authorize its further activities “from below.”

The normative prerequisites of modernity - individualism and rationalism - having been translated into the political plane, were transformed into the prerequisites for democracy as a form of government. They are the products of a long European development and involve only those forms of domination that stand up to the assessment of individual rational judgment. In other words, power is forced to constantly correlate itself with individual rationality. This implies the need for joint recognition by many people of the corresponding political order. If power is forced to justify its actions before individual rational judgment, then such power can only exist on the basis of the consent of the governed, that is, some form of social contract. Moreover, the legitimacy of power is not postulated by definition once and for all, or at least for a long time, but is in a situation of constant coordination, as we have already noted earlier.

Based on Weber's three options for the emergence of legitimacy (traditional, charismatic, and rational-legal legitimacy), the English political scientist D. Held proposed a more detailed model of the political behavior of citizens and forms of exercising power. His scheme includes seven main cases: consent under threat of violence; traditional legitimacy; legitimacy due to political apathy of citizens; pragmatic compliance (from the point of view of maximizing benefits for the majority of citizens); instrumental consent (from the point of view of an instrument for realizing some important goal related to the common good); normative consent; ideal normative agreement. According to Held, only the last two options - normative and ideal normative consent - correspond to full-fledged democratic legitimacy. The difficulty lies in the fact that in the situation of transition periods, as a rule, almost all options for legitimation are present; the only question is their relationship to the general trend of further development.

On the surface, the democratic principle of legitimation differs little from others, proclaiming the rule of the people in almost the same words in which the divine power of the monarch was previously proclaimed. However, in reality, we are by no means talking about simply replacing one authority with another. The principle of democratic legitimation is fundamentally different from religious or traditional one. The people are the imaginary sovereign, their function is to be the starting point for constant changes in power itself, since government powers are given only for a limited time and clearly stated in the Constitution. This creates regulated instability in power relations, opening up great opportunities for constant change. Totalitarian regimes largely failed due to their internal ossification, since their inherent quality was the desire to stabilize power relations, and not to constantly adapt them to changing conditions. However, recognition and dissemination democratic principle legitimacy does not at all mean the victory of democracy itself as a form of government. And although modernization processes seem to call into question the stability of non-democratic forms of government, primarily due to the weakness of their foundation, this question is far from simple, and there is no automatism here. The universality of the democratic idea is not identical to the universality of democratic practice. The days of undemocratic government seem to be a thing of the past, but the stability of democratic regimes, at least on a fairly large scale outside the European-North American region, has not yet been realized. The authorities at the beginning of the new century continue to display the traits of a “two-faced Janus.”

Power is a problematic, initially deeply contradictory social entity. Its immanent asymmetry, which presupposes that some social actors have a relatively larger volume of material, technical, administrative resources, a higher level of concentration of knowledge, social, intellectual and symbolic capital (in a word, a more advantageous social position), always needs explanation and justification. Such a situation of inequality, as a rule, actualizes the energy of resistance of other social agents, in the zone of whose aspirations there is what the authorities dispose of. That is why, as soon as it has arisen, it needs legitimation and this is what determines one of the aspects of the “problematic” nature of the phenomenon of power.

In order to achieve a certain level of efficiency, effectiveness, as well as for the purposes of basic self-preservation and reproduction, power faces the need to ensure public consensus regarding its acceptance as such. To accomplish this task, it strives to take into account the specifics of a particular moment, as well as rely on historically proven norms, rules, stereotypes and traditions of the political process, taking into account the peculiarities of legal consciousness and the general political and legal culture of the population. Power does not simply explain, encourage action or abstain from it, convince or sometimes rigidly prescribe adherence to very specific behavior patterns. She integrates herself into existing systems of ideals and values, into pictures of the world, transforms them in accordance with her interests and forms new ones. It establishes a connection with the “eternal”, “enduring”, “existing from time immemorial” existential foundations of society and man.

Constructive self-reflection is one of the main, in our opinion, conditions for the preservation and qualitative renewal of power and its improvement. Denis Diderot in his famous “Paradox of the Actor” argued that in the process of playing a role, he should not merge with the image of the hero, succumb to the passions overwhelming him, but, on the contrary, if possible, alienate himself from him. The actor needs to be a cold, reflective spectator for the reason that such a spectator is minimally involved in the spectacle. The actor observes his mimetic shell from the outside, constantly evaluates himself, listens to himself, achieves a filigree embodiment of the stage role, directing all his efforts to not feeling. “Distancing must be introduced not only into theatrical performance, into the process of mimesis, but also into the structure of power.” It is the distancing mechanism that provides the latter with the opportunity to implement a kind of “monitoring” that allows one to track the transformations of its visible represented image and, if necessary, correct it based on the nature and direction of the processes occurring in society.

Literature

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Bibliography

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Legitimation of Power: Morphology of a Resource Potential

The article is about legitimation of political power. The author emphasizes specific character of different legitimation resources of power and also possibilities of their use in cultural - historic context of Russian civilization.

Key words:

First way - “traditional”- is based on the sacralization of political power and power relations; the political leader is seen as "God's vicegerent on earth"; people do not go against the authorities and orders because of fear of punishment, retribution from God.

Second - " legal-rational”- based on reason, interests; people do not violate the existing “formal bureaucratic” norms of the functioning of political power out of fear of chaos and anarchy; they are convinced that the existing political order is the most effective of those actually possible. (This method was accurately reflected in the famous statement of W. Churchill that “democracy is the worst of all forms of government, with the exception of all others”).

Third way - "charismatic"- relies on faith in the ability of political power to lead society out of a dead end; As a rule, political power resorts to this method of legitimation only in extremely difficult, “revolutionary” periods.

Now let's consider mechanisms for legitimizing political power, i.e. facilities

1. Sociopsychological mechanisms of legitimation. These are mechanisms that form an individual’s psychological readiness to recognize the legitimacy of the activities of government institutions. For example, the authorities can convince people that shortcomings in its functioning are objective and therefore should be “understood and forgiven,” in return promising “a speedy correction of the situation” in the future.

2. Legitimation mechanisms based on citizen participation. As Y. Gaida rightly notes, “the participation of citizens in governance is the most perfect and successful form of legitimation of power, as it awakens in them a sense of political subjectivity and allows them to be identified with the political regime and its policies.” By giving people the opportunity to participate in elections, referendums, and create political parties, the government creates in people a sense of ownership in the formation and implementation of politics.

3. Sociotechnical mechanisms of legitimation. These are mechanisms such as political socialization and the formation of political consciousness. With the help of these mechanisms, people form certain political views, which ultimately justify the activities of existing authorities.

4. Technocratic mechanisms of legitimation. Technocratic legitimation is ensured by the effective functioning of political power. It forms a loyal attitude of people towards the authorities.

5. Legitimation through force. In this case, the authorities resort to such means as coercion, intimidation, intimidation, etc. With their help, a certain level of public loyalty to the authorities is achieved.

6. Legitimation by creating a sense of external or internal threat. This is a fairly common mechanism for legitimizing power. In this case, the authorities, citing a real or imaginary external or internal threat, unite people around themselves, thereby strengthening their position and, as it were, pushing into the background the question of the legitimacy of the authorities themselves.

14. The essence and classification of socio-political doctrines.

The subject of the history of political teachings is theoretically formulated into doctrine (teaching) views on the state, society, and politics.

1. The political teachings of the Ancient East (Egypt, Iran, India, China, Babylon, Assyria) are characterized by the fact that political thought was not distinguished as an independent field of knowledge, it was expressed in mythological form, and the understanding of the divine origin of power prevailed.

2. The great thinker of Ancient China, Confucius (551 - 479 BC), recognizes the divine origin of the power of the emperor, but refuses the divine origin of the state. Confucius believed that the state arose from the unification of families; This is a big family, where the emperor is a strict but fair father, and his subjects are his obedient children. Confucius considered morality to be the main regulator of behavior in the state, and declared the education of good morals to be the main goal of state policy.

In the 4th century BC, Shang Yang gave rise to a movement called “legism.” The Legists, unlike the Confucians, considered the moral education of people insufficient, and emphasized strict laws and harsh punishments.

3. Political teachings of Ancient Greece and Ancient Rome. It initially developed as an ideology of free people. In many city-polises, citizens actively participated in the administration of power, the legitimacy of power was secular, and all of Hellas was the scene of a fierce struggle for power. The foundation of the science of politics was laid by ancient Greek philosophers: Socrates (470 - 99 BC); his student Plato of Athens (427 - 347 BC) - political ideas it is set out in the dialogue “The State”; Plato's student and critic Aristotle Stagirite (384 - 322 BC).

4. Political doctrines of the Middle Ages. The Middle Ages are characterized by the following political processes:

the creation of fairly large but poorly integrated monarchies;

their disintegration into fragmented political entities;

the rise of class-representative monarchies.

Features of political doctrines of this stage:

the undivided dominance of the Catholic Church in spiritual life;

political science has become a branch of theology, the dogmas of religion take the form of laws;

socio-political thought is developed through the efforts of religious figures;

justification of the theological theory of political power

5. . Political doctrines of the Renaissance and Enlightenment. Character traits political thought of this era:

liberation of political science from theology;

development of humanistic principles in political theory;

analysis of human problems and freedoms, law and state, democratic structure of public life.

6. Modern political teachings. Modern political science has gone through the following periods in its development.

The first period is the formation of modern political science

The second period - the active expansion of the spheres of political science research (late 40s - second half of the 70s) - is characterized by a turn to the problems of liberalization of political life, democracy, and social policy of the state:

The third period is the search for new paradigms for the development of political science (mid-70s - present).

15. Essence, structure and functions of the political system of society.

The political system of society is a set of institutions (state bodies, political parties, movements, public organizations, etc.) ordered on the basis of law and other social norms, within the framework of which the political life of society takes place and political power is exercised.

The structure of the political system consists of the following components:

1) subjects of the political organization of society, which include the state, political parties, public organizations and associations, labor collectives, trade unions, religious associations, etc.;

2) political consciousness, characterizing the psychological and ideological aspects of political power and the political system;

3) socio-political and legal norms regulating the political life of society and the process of exercising political power;

4) political relations that develop between elements of the system regarding political power;

5) political practice, consisting of political activity and cumulative political experience.

The following functions of the political system are distinguished:

1) ensuring political power for a certain social group or for the majority of members of a given society (the political system establishes and implements specific forms and methods of power - democratic and anti-democratic, violent and non-violent, etc.);

2) management of various spheres of people’s life in the interests of individual social groups or the majority of the population (the action of the political system as a manager includes the setting of goals, objectives, ways of developing society, and specific programs in the activities of political institutions);

3) mobilization of the funds and resources necessary to achieve these goals and objectives (without enormous organizational work, human, material and spiritual resources, many set goals and objectives are doomed to deliberate failure);

4) identification and representation of the interests of various subjects of political relations (without selection, clear definition and expression of these interests at the political level, no policy is possible);

5) satisfying the interests of various subjects of political relations through the distribution of material and spiritual values ​​in accordance with certain ideals of a particular society (it is in the sphere of distribution that the interests of various communities of people collide);

6) integration of society, creating the necessary conditions for the interaction of various elements of its structure (by uniting different political forces, the political system tries to smooth out, remove the contradictions that inevitably arise in society, overcome conflicts, eliminate collisions);

7) political socialization (i.e. the formation of the political consciousness of the individual and his “inclusion” in the work of specific political mechanisms, due to which the political system is reproduced by training more and more new members of society and introducing them to political participation and activity);

8) legitimation of political power (i.e. achieving a certain degree of compliance with real political life with official political and legal norms. Legitimacy, in other words, legality).

16. The state in the political system of society.

the place of the state in the political system of society can be defined as dominant.

What explains this thesis? The answer is simple: those features that the state has as an element of the system under consideration. And they are:

1. Special status - the interests of the people can be represented in the international arena only by the state apparatus, which is due to the presence and functioning of the phenomenon of “sovereignty”.

2. Special powers, consisting in the fact that the state alone has the right to create acts regulating all aspects of life in a specific, clearly defined territory.

3. A special “apparatus of legal coercion”, which guarantees the existence and functioning of the first two features, namely: the presence of an army and internal law enforcement agencies.

Many legal scholars provide additional features, but, as a rule, they only clarify the presented aspects.

Based on the above, it follows that the state in the political system of society is actually in a dual position. The first is an important element, without which the system cannot exist. And, secondly, the features presented above quite clearly indicate that it is at the very top of the “political pyramid”, which determines its role.

17. State and civil society, their relationship and interrelation.

pursue one common goal: social institutions are designed to serve people, protect their rights and interests.

Unity:

it provides conditions for self-expression and freedom of a person, his initiative, entrepreneurship, etc.

they are formed simultaneously.

the social and state-legal phenomena under consideration finds expression in a democratic political regime.

Differences:

The rule of law is an organization of public authority that provides and “serves” civil society. In this sense, we can talk about the state as a form of civil society.

Civil society is a system of independent and independent of the state public institutions and relations that are designed to promote the realization of the interests of individuals and groups. Thus, the essential feature of civil society is the existence within its framework of various social forces and social formations.

One of the differences between the state and civil society is its ability to pass laws and other regulations and the ability to apply measures of state coercion on the grounds provided by law.

The state and civil society interact with each other and form a certain unity. The interaction of civil society with the state is also carried out in more specific organizational and legal forms. These are: 1) state legal regulation of the functioning of subjects of civil society, consolidation of their constitutional and legal status;

2) participation of subjects of civil society and, above all, those of them that make up the political system, in the organization and activities of public authorities;

3) prohibition of total and petty interference of public authorities and their officials in the legitimate private and personal life of a person and citizen;

4) legislative consolidation of the state’s responsibility to ensure the economic, political and social security of a person, his rights and freedoms, which together constitute the content of the constitutional status of the individual in the Russian Federation.

18. Socio-political associations (associations): characteristics, varieties, role in public life.

Socio-political organizations and movements are voluntary associations of people to express and realize public interests through “pressure” on public authorities.

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COURSE WORK

on the course "Public Law"

on the topic: “Legitimation of state power: concept, content, methods”

• Introduction
• 1. The concept of legitimation of state power
• 2. Types and methods of legitimizing state power
• Conclusion
• List of used literature
• Introduction
• Many turning points in recent years in Russia (the confrontation between the legislative and executive powers, the 1994 treaty on social harmony, an ambiguous attitude towards Chechen war 1994-1995 etc.) acutely raise in society the question of state power, its legality and legitimacy, i.e. its legal validity, on the one hand, and fairness, recognition, and support by its population, on the other. The severity of the problem is aggravated by the conditions for the formation of nomenklatura-mafia capitalism in some areas, the lack of division in some cases of commercial, administrative, and even criminal structures, opposition from the local nomenclature, the federal government, the frequent incompetence of the latter, the authoritarian features of the federal constitution and some others, including including personal factors. There is also theoretical ambiguity: in the works of lawyers, political scientists, and political figures, the terms “legalization” and “legitimation” are often used with incorrect meanings.
• The relevance of the topic of this work is due to the theoretical and practical significance of issues related to the search for ways to increase the efficiency of government in modern Russia and restore trust in it from the population. In the context of complex and ambiguously assessed reform processes, accompanied by aggravation social contradictions, a private, at first glance, question about the degree of “acceptance” of the government itself, its instructions and institutions by the population, becomes one of the determining factors of public consent, the main, strategic resource of power, which largely determines the success of implementing large-scale political and economic transformations.
• It is with regret that we have to state that the activities of officials of the state apparatus of modern Russia in the public consciousness are increasingly associated with incompetence, bureaucracy, corruption and administrative arbitrariness; electoral procedures as the legal basis for the most democratic way of identifying the will of the people in the formation of state power are increasingly being replaced by “dirty” electoral technologies; Officials who have discredited themselves in their previous jobs are often appointed to high government positions; there are no clear, transparent public control, legal procedures for removing from office heads of federal and regional government bodies who improperly perform their official duties. All this leads to the diffusion of the mutual understanding that should exist between the government and society, calls into question the legitimacy of power structures and personified bearers of power, giving rise to social tension and numerous conflicts in the sphere of the formation and functioning of public political power.
• A legal conflict in the sphere of legitimation of state power is at the same time both an action and a counteraction, capable of performing both constructive and destructive functions. In the first case, the conflict acts as a kind of “catalyst” that accelerates social progress, bringing to power those political forces that enjoy the support and trust of broad sections of the population; in the second, it carries destructive tendencies that have a negative impact on the integrity and stability of the social system.
• 1. Conceptlegitimationstate power
• The term "legalization" comes from the Latin word "legalis", which means legal. References to legalization as the basis of power and proper behavior already in the 4th-3rd centuries. BC. were used by the school of Chinese legalists in a dispute with the Confucians, who demanded behavior that would be consistent with universal harmony. Elements of a kind of legalization were present in the confrontation between secular and spiritual authorities in Western Europe in the Middle Ages; in modern times, supporters of the “legitimate monarchy” of the Bourbons referred to it when speaking against the “usurper” Napoleon Theory of State and Law: A Course of Lectures / Ed. N.I. Matuzova and A.V. Malko. - 2nd ed., revised. and additional M.: Lawyer. 2001. P.451.
• In modern conditions of legalization of state power as a legal concept means the establishment, recognition, support of this power by law, primarily by the constitution, the support of power on the law. However, firstly, constitutions and laws can be adopted, amended, or repealed in various ways. The military and revolutionary councils created as a result of military coups in many countries of Asia, Africa, and Latin America decreed the abolition (often suspension) of constitutions and often proclaimed new temporary constitutions without any special procedures.
• In fact, in Iraq such a temporary constitution has remained in force from 1970 to the present; in the UAE, a temporary constitution adopted by the emirs has been in force since 1971. In some countries, constitutions have been replaced by institutional acts (Brazil) and proclamations (Ethiopia). Monarchs single-handedly “granted” constitutions to “their faithful people” (Nepal, Saudi Arabia, etc.) Grafsky V.G. General history of law and state: Textbook for universities. - M.: Norma, 2005. P.532. In Russia, in 1993, the 1978 Constitution (as amended) was suspended by presidential decree. Secondly, sometimes constitutions and laws adopted in accordance with established procedures, in their content, legalized openly dictatorial, anti-people power, a totalitarian system. These were the constitutional acts of fascist Germany, the racist legislation of South Africa (before the adoption of a provisional constitution in 1994), the “party-state” of Guinea or the constitution of African Zaire (there were several of them), which proclaimed that there was only one political institution in the country - the ruling party - movement, and the legislative, executive bodies, and courts are the organs of this party. The constitutions of Russia and the USSR, adopted during the Soviet period and proclaiming that power belonged to the working people, in fact legalized a totalitarian and even at times terrorist regime.
• Of course, in the conditions of authoritarian and totalitarian regimes, constitutions can be adopted by apparently democratic means (by the Constituent Assembly, the Supreme Council in the USSR in 1977, a referendum in Cuba in 1976), they can contain democratic provisions, the rights of citizens (in the Constitution of the USSR 1936 . a wide range of socio-economic rights was established), etc. But these points need to be assessed only in conjunction with reality.
• Thus, the elections of the parliament itself, which adopts the constitution, are not free under a totalitarian regime, and phrases about democracy serve as a cover for the real situation. Thus, if the democratic procedures for adopting a constitution or other acts of constitutional significance are violated, if such procedures do not correspond to the people’s ability to exercise constituent power when adopting the fundamental law, if the laws contradict the universal human values ​​of humanity, the formal (legal) law does not correspond to the law. Legal legalization of state power in such conditions will be illusory, i.e. false legalization.
• The concept of legitimation of state power seems more complex. "Legitimus" also means lawful, legalized, but this concept not legal, but factual, although its constituent parts may be legal elements. Essentially, this is what the Confucians proceeded from in their dispute with the mentioned legalists; supporters of both secular and spiritual authorities had this in mind, interpreting “the will of God” differently. The modern meaning of this concept is associated with the research of political scientists, primarily the German scientist Max Weber (1864-1920).

The currently existing interpretation of the concept of legitimacy of state power was formed under the influence of the theoretical constructions of M. Weber and, in particular, one of his fundamental theses: “... the state is that human society that, within a certain area (...) claims (with success) to the monopoly of legitimate physical violence.” Weber M. Politics as a calling and profession. // Selected works. M. 1990. P. 645. At the same time, authors of the second half of the 20th century, writing on the topic of political sociology, express two opposing views on the possibility of using the concept of legitimacy in characterizing societies of the distant past. Thus, the authors of Pengan’s “Sociological Dictionary” argue that “within the framework of classical civilizations there was no significant difference between “legitimacy” and “legitimacy”: legal power was legitimate.” Abercombe N., Stephen H., Brian S. T. Sociological Dictionary. Kazan 1997. P. 152. This means that until the formation of representative democracy, the problem of legitimating state power cannot be considered independent.

The opposite point of view involves the identification of special types of legitimacy and, accordingly, special forms of legitimation of power for different stages of the history of the state, starting from the most ancient times. M. Weber himself identified three stages of development of the legitimacy of power in pre-bourgeois society: gerontocratic, patriarchal and patrimonal. Weber M. Politics as a calling and profession. // Selected works. M. 1990. P. 646. Jurgen Habermas and sociologists of his circle specifically stipulated that in medieval states the legitimacy of royal power could not be based only on dynastic rules or title. It had to be constantly confirmed by the effective performance of “the functions of management and court.” American historian Nancy Kollmann, highlighting two stages of legitimation of state power in the history of Muscovite Rus': “charismatic” and “traditional” Fetisov A. S. Political power: problems of legitimacy. //Social and political magazine. 1995. N 3. P. 104. . In that the latter case the “Weberian” division into “types” of legitimation of power is used: traditional, charismatic and rational, and the transfer of certain types to different time periods.

Of interest to the researcher is not only the type of legitimacy, but also those forms that are used to legitimize power at a particular stage of historical development. The entire set of features of legitimate power in a given society could be designated as a potestary image of power, in which two parts are clearly distinguished. The first part is the way to gain power. The moment of transfer of power from one hand to another extremely actualizes the concept of “legitimacy” and, thus, makes it possible to determine those historical and national forms that are characteristic of a given time and a given state. The characteristics of this part of the potestar image can be considered Theory of State and Law: A Course of Lectures / Ed. N.I. Matuzova and A.V. Malko. - 2nd ed., revised. and additional M.: Lawyer. 2001. P.457:

· political and cultural stereotypes that have developed in a given society, to which the contender for power appeals;

· ideological and political theories that substantiate the rights of a contender for power;

· public and state institutions involved in the transfer of power;

· rites and ceremonies used during the transition of power;

· rituals and ceremonies through which the people’s consent to the transfer of power is expressed.

The second part of the potestar image reflects the ever-present need to legitimize the decisions that the authorities make in the process of public administration. Accordingly, it describes a method of legitimate action, recognized by the people not only as a legal action, but also as a correct action. For this part of the potestar image of power, V.E. Chirkin can be considered the most significant features. Legalization and legitimation of state power // State and Law. 1995. No. 8. P. 64:

· appearance of the holders of power;

· ceremonial behavior corresponding to the current idea of ​​the organization of power;

· everyday behavior that corresponds to the ethical standards recognized in a given society;

· method of making government decisions;

· the method of formalizing the decisions made;

· way of communicating decisions made to the population;

· the possibility of adjusting decisions made, depending on the positive or negative perception of it by the population.

Legitimation often has nothing to do with the law at all, and sometimes even contradicts it. This is a process, not necessarily formal and even most often informal, through which state power acquires the property of legitimacy, i.e. a state that expresses the correctness, justification, expediency, legality and other aspects of the compliance of a specific state power with the attitudes and expectations of the individual, social and other groups, and society as a whole. Recognition of state power and its actions as legitimate is based on sensory perception, experience, and rational assessment. It is based not on external signs (although, for example, the oratorical abilities of leaders can have a significant impact on the public, contributing to the establishment of charismatic power), but on internal motivations, internal incentives. The legitimation of state power is not associated with the publication of a law, the adoption of a constitution (although this may also be part of the legitimation process), but with a complex of experiences and internal attitudes of people, with the ideas of various segments of the population about compliance with state power; by its bodies the norms of social justice, human rights, and their protection.

Illegitimate power is based on violence and other forms of coercion, including mental influence, but legitimation cannot be imposed on people from the outside, for example, by force of arms or the imposition of a “good” constitution by a monarch on his people. It is created by people’s devotion to a certain social system (sometimes to a certain person), which expresses the immutable values ​​of existence. The basis of this kind of devotion is the belief of people that their benefits depend on the preservation and support of a given order, a given state power, the conviction that they express the interests of the people. Therefore, the legitimation of state power is always connected with the interests of people, various segments of the population.

And since the interests and needs of various groups, due to limited resources and other circumstances, can only be partially satisfied, or only the demands of some groups can be fully satisfied, the legitimation of state power in society, with rare exceptions, cannot have a comprehensive, universal character: what is legitimate for some, appears as illegitimate for others. The wholesale “expropriation of expropriators” is a phenomenon that does not have legality, because modern constitutions provide for the possibility of nationalizing only certain objects only on the basis of the law and with mandatory compensation, the amount of which in controversial cases is established by the court, and is extremely illegitimate not only from the point of view of the owners of the means of production , but also other segments of the population Chirkin V.E. Legalization and legitimation of state power // State and Law. 1995. No. 8. P. 67.

In the minds of the lumpen proletariat, general expropriation has the highest degree of legitimacy. One can cite many other examples of the different interests of certain segments of the population and their unequal, often opposite, attitudes towards the measures of state power and towards the government itself. Therefore, its legitimation is not associated with the approval of the entire society (this is an extremely rare option), but with its acceptance by the majority of the population while respecting and protecting the rights of the minority. It is this, and not the dictatorship of a class, that makes state power legitimate - the legitimation of state power gives it the necessary authority in society. The majority of the population voluntarily and consciously submits to it, the legal demands of its bodies and representatives, which gives it stability, stability, and the necessary degree of freedom in the implementation of state policy. The higher the level of legitimation of state power, the wider the opportunities for leading society with minimal “force” costs and expenses of “managerial energy”, with greater freedom for self-regulation social processes. At the same time, the legitimate government has the right and obligation, in the interests of society, to apply coercive measures provided for by law if other methods of stopping antisocial actions do not produce results.

But an arithmetic majority cannot always serve as the basis for genuine legitimation of state power. The majority of Germans under Hitler's regime adopted a policy of "race cleansing" and territorial claims, which ultimately led to great misfortune for the German people. Consequently, not all assessments of the majority make state power truly legitimate. The decisive criterion is its compliance with universal human values.

The legitimation of state power is assessed not by the words of its representatives (although this is important), not by the texts of the programs and laws it has adopted (although this is important), but by its practical activities, by the way it resolves fundamental issues in the life of society and each individual. The population sees the difference between slogans about reforms and democracy, on the one hand, and authoritarian ways of making decisions that are most important for the fate of the country and the people, on the other.

From here, as evidenced by systematic surveys of the population, came the erosion of the legitimacy of state power in Russia at the end of the 20th century. (legitimacy was high after August 1991) while maintaining its legalization: all the highest bodies of the state were created according to the 1993 Constitution and act in principle in accordance with it, but according to polls organized at the end of March 1995 on the instructions of the NTV channel, 6% of respondents trusted the President of Russia, 78% did not trust him. Of course, survey data does not always give the correct picture, but these data should not be underestimated. Avrutin L.G. Legitimation of political power in Russia: analysis, problems, priorities. Diss... cand. polit, science - M., 2001. P. 45. .

It has already been said above that the legitimation of state power can and, as a rule, includes its legalization. But legitimation is in conflict with formal legalization if legal laws do not correspond to the norms of justice, general democratic values, and attitudes prevailing among the majority of the country’s population. In this case, legitimation is either absent (for example, the population has a negative attitude towards the totalitarian order established by the authorities), or in the course of revolutionary events, national liberation movements, a different, anti-state, rebel, pre-state power that has emerged in the liberated areas is legitimized, which then becomes state power . This is how events developed in China, Vietnam, Laos, Angola, and Mozambique. Guinea-Bissau and some other countries Grafsky V.G. General history of law and state: Textbook for universities. - M.: Norma, 2005. P.479.

Similar to the false legalization noted above, false legitimation is also possible when, under the influence of propaganda, inciting nationalist sentiments, the use of personal charisma and other techniques (including banning the opposition and free press, as a result of which the population does not have proper information), a significant part, or even the majority of the population supports state power that satisfies some of its current interests to the detriment of its fundamental aspirations.

The problems of verification of legalization and legitimation (including false) are very complex. They are not sufficiently developed in the scientific literature, including foreign ones. Legitimation is usually associated with a legal analysis of the preparation and adoption of the constitution, with the study of decisions of constitutional courts and other bodies of constitutional control, analysis of data from elections and referendums... Less attention is paid to the content of constitutional acts, the nature of the activities of state power, comparison of the programs of political parties and the policies which is carried out by those in power. Very rare is the scientific analysis of programs in comparison with the actions of various high officials

It is even more difficult to identify indicators of legitimation. In this case, the results of elections and referendums are also used, but in the first case, falsification is common, and the second does not always reflect the true sentiments of the people, since these results are determined by transitory factors. In many developing countries with a one-party system (Ghana, Burma, Algeria, etc.) in parliamentary and presidential elections, the ruling party received an overwhelming majority of votes, but the same population remained completely indifferent to the military coups that overthrew this government V. G. Grafsky. General History Law and State: Textbook for Universities. - M.: Norma, 2005. P.480. At the 1991 referendum on the question of preserving the USSR, the majority of voters gave an affirmative answer, but a few months later the USSR collapsed due to the indifference of a significant part of the same voters. Thus, formal assessments used in legalization require a deep and comprehensive analysis when determining the legitimacy of state power.

2. Types and withways to lay downit's timeations of the state governmentAsti

As already noted, the legalization of state power is associated with legal procedures, which are very diverse. Here the role of the constitution will be considered as a form of legalization of state power, because the democratic method of preparing and adopting the constitution, its humanistic content, and the compliance of the activities of state bodies with its norms are considered as the main evidence of the procedure for legalizing state power. Although the adoption of a constitution itself usually indicates a certain stability of state power, the methods of preparation and adoption of the fundamental law do not always correspond to the requirements of genuine legalization.

The preparation of a draft constitution is carried out in different ways. In rare cases, the draft is created by the Constituent Assembly itself, specially elected to adopt the constitution (Italy when preparing the Constitution of 1947, India when preparing the Constitution of 1950) or by Parliament (Constitution of Sri Lanka 1978).

In all of these cases, the leading role is played by a special (constitutional) committee formed by a representative body. In Russia, an important role in the development of the draft Constitution of 1993 was played by the Constitutional Conference, which consisted of representatives of federal government bodies appointed by decrees of the President of the Russian Federation, functionaries of political parties, entrepreneurs, federal subjects, etc. appointed by them. In many post-socialist countries (Bulgaria, Hungary, Poland, Czechoslovakia, etc.) in the development of new principles of the constitution or changes made to previous constitutions (new edition), “round tables”, “civil assemblies” of representatives of government bodies, various parties, trade unions and social movements took part in Theory of State and Law: Course lectures /Ed. N.I. Matuzova and A.V. Malko. - 2nd ed., revised. and additional M.: Lawyer. 2001. P.451.

In most countries, the draft of a new constitution is developed by a constitutional commission created by a representative body, the president, and the government. The draft Constitution of France of 1958 (in addition to this text, the French Constitution includes two more documents - the Declaration of the Rights of Man and the Citizen of 1789, and the preamble of the Constitution of 1946) was prepared by a constitutional commission... appointed by the government, and submitted to a referendum, bypassing parliament. In Germany, the draft of the current Constitution of 1949 was prepared by a parliamentary council consisting of representatives of regional parliaments (landtags of states), and approved by the command of the Western occupation forces. In Algeria, the draft Constitution of 1989, submitted to a referendum, was prepared by a group of presidential advisers. After military coups, the draft of a permanent constitution is often developed by government-appointed commissions, then it is discussed in the Constituent Assembly, partly elected and partly appointed by the military (Turkey in 1982, Nigeria in 1989, etc.).

When granting independence to former colonial countries, draft constitutions were prepared by the Ministry of Colonies (Nigeria in 1964) by local authorities with the participation of advisers to the metropolis (Madagascar in 1960), at round table meetings, where representatives of parties or national liberation movements were present, and led meetings of high-ranking officials of the metropolis (Zimbabwe in 1979).

In countries of totalitarian socialism, a different procedure for preparing the project was used. It was developed on the initiative of the Central Committee (Politburo) of the Communist Party. The same body created a constitutional commission, which was usually approved by parliament, established the basic principles of the future constitution, approved the draft and submitted it for adoption by parliament or a referendum. In socialist countries, as well as in the so-called countries of socialist orientation (South Yemen, Ethiopia, etc.), the project was submitted for public discussion before its adoption. Typically, many meetings were held and discussions were covered in the media. The practical results of such discussions were, as a rule, very insignificant, since the principles of the constitution were predetermined by the ruling party. But in some countries (USSR, Cuba, Benin, Ethiopia, etc.), based on the results of discussion by the people, significant, and in some cases very important, amendments were made to the draft.

From the point of view of legalization of state power, the discussion stage is not significant (for legalization it is important that the constitution is adopted by a legally authorized body), but from the point of view of legitimation, a nationwide discussion of the project can be of great importance. This process introduces into the consciousness of the population participation in the preparation of the fundamental law, the conviction that the order established by the constitution reflects its will.

To the greatest extent, the issue of legalizing state power is not related to the preparation of the draft, but to the procedures for adopting the constitution and its content. One of the most democratic ways is the adoption of a constitution by a Constituent Assembly specially elected for this purpose. The first meeting of this kind was the Philadelphia Congress of the United States, which adopted the Constitution of 1787, which is still in force. last years the constitutions of Brazil 1988, Namibia 1990, Bulgaria 1991, Colombia 1991, Cambodia 1993, Peru 1993, etc. were adopted. However, the Constituent Assembly is not always, as noted, formed through elections, but sometimes consists of partially appointed members. In addition, the Constituent Assembly often plays the role of an advisory body, since its adoption of the constitution was approved by the military authorities, who sometimes made amendments to the text (Ghana, Nigeria, Turkey, etc.). All this reduces the degree of legalization of state power and its bodies created in accordance with such a constitution.

The legalization of state power can be carried out by constitutions adopted by ordinary parliaments elected for ongoing legislative work. This is how the Constitution of the USSR was adopted in 1977, the Netherlands in 1983, Papua New Guinea in 1975. However, some of these parliaments, for the purpose of adopting a constitution, declare themselves Constituent Assemblies (for example, in Tanzania in 1977), and then continue to work as ordinary ones parliaments. This transformation is intended to increase the degree of legalization of state power,

Increasingly, constitutions in modern conditions are adopted by referendum. Theoretically, direct voting provides the greatest legalization of state power. Thus, the Constitutions of France 1958, Egypt 1971, Cuba 1976, Philippines 1967, Russia 1993 were adopted. In practice, however, a referendum can be used in different ways. Without preliminary discussion of the project in parliament, the population and voters may find it difficult to understand such complex document like a constitution. There are frequent cases of using a referendum or for the adoption of reactionary constitutions (for example, in Greece in 1978 under the regime of the “black colonels”). Sometimes the constitutions of totalitarian regimes (Burma 1974, Ethiopia 1987, etc.) after a referendum were approved (or confirmed) by parliaments elected on the basis of these constitutions. Formally, such a double process of legalization reliably legitimized state power, but in its content it did not correspond to democratic principles.

Some methods of adopting constitutions do not even formally entail the legalization of state power. These are the constitutional acts of military regimes, the constitutions approved by military governments in Turkey, Nigeria and other countries, the constitutions adopted by congresses and other supreme bodies of the ruling parties in the 70s and the Congo, Angola, Mozambique, constitutions enacted by the monarch or metropolis.

The legalization of state power is inextricably linked with the content of constitutions. Reactionary constitutions, adopted even with the necessary procedures, can in fact only create false legalization. This is explained not only by the fact that the adoption of such constitutions is sometimes carried out in an atmosphere of deception and violence, but also by the fact that certain forces manage to include provisions in the constitutions that contradict the general democratic principles developed by mankind and enshrined in fundamental international legal acts (UN Charter of 1945, Covenants on human rights 1966, etc.). The constitutions of many countries recognize that such principles take precedence over the internal law of the country. Provisions of constitutions that violate human rights (for example, in South Africa until 1994), proclaiming the only permissible ideology (for example, mobutism in the Constitution of Zaire 1980), contrary to the sovereignty of the people (provisions of the Constitution of Algeria 1976 on the ownership of political power by the only permitted party - National Liberation Front), etc., exclude the true legalization of state power, since they contradict generally accepted international norms and principles. They are at the same time illegitimate, because they contradict the democratic consciousness of peoples.

There is no clear distinction or contradiction between the legalization and legitimation of state power: legal acts and procedures can be an integral part of legitimation, and the latter creates the necessary preconditions for the lasting legalization of state power. At the same time, legitimation plays an important role in society, because any state power cannot rely only on the laws it proclaims or only on violence. To be sustainable, strong, stable, it must seek the support of society, certain groups, the media and even certain influential individuals. In modern conditions, representatives of authorities that are authoritarian and totalitarian in nature often arrange meetings and conferences with outstanding representatives of the intelligentsia; influential journalists are organized visits to various regions of the country, meetings with enterprise teams, etc. The purpose of these events is to find support, primarily through actions, but also through moods and feelings.

Since the time of M. Weber, it has been customary to distinguish three “pure” types of legitimation of power, which can also be applied to the legitimation of state power. This is traditional, charismatic and rational legitimation.

Traditional legitimation is domination on the basis of traditional authority, rooted in respect for customs, belief in their continuity, in the fact that power “expresses the spirit of the people”, corresponds to customs and traditions accepted in society as stereotypes of consciousness and behavior. Traditions are of great importance for strengthening the power of the monarch in the Muslim countries of the Persian Gulf (Kuwait, Saudi Arabia. Bahrain, etc., in Nepal, Bhutan, Brunei). They determine the issues of succession to the throne and the structure of state bodies. In those Muslim countries where there are parliaments, they are sometimes created in accordance with the traditions of al-shura (conference of the monarch) as consultative parliaments. Tradition guides decision-making in the Indonesian Parliament mainly through consensus. Together with religious dogmas, traditions largely regulate public life in a number of developing countries Chirkin V.E. Legalization and legitimation of state power // State and Law. 1995. No. 8. P. 66. .

Traditions are important for the legitimation of state power in countries where the system of Anglo-Saxon law operates. Judicial precedent is one of the expressions of the power of tradition. The British monarch is traditionally the head of the Church of England (an integral part of his title is Defender of the Faith). A similar situation occurs in some other European countries, where one of the churches is declared state (for example, Lutheranism in Denmark).

Charismatic legitimation is domination based on faith in the personal talents of the leader (less often, a narrow ruling group), in the exclusive mission of the leader. Charismatic legitimation is not associated with rational judgments, but is based on a range of feelings; it is sensory in nature legitimation. Charisma, as a rule, is individual. She will create a special image. In the past, this was faith in the “good tsar”, who was able to save the people from oppression by the boyars and landowners. In modern conditions, charismatic power is much less common than in the past, but it is common in countries of totalitarian socialism, being associated with a certain ideology (Mao Tse Tung, Kim Il Sung, Ho Chi Minh, etc.) In relatively liberal India, an occupation is associated with charisma the most important government post of Prime Minister by representatives of the Gandhi family - Nehru (father, then daughter, and after her assassination - son). The same generation was and is in power in Sri Lanka (father Banderanaiks, then his wife, now the president, is their daughter, and the mother is the prime minister).

To strengthen charisma, special rituals are widely used: torchlight processions, demonstrations in support of the authorities in a special uniform, the coronation of the monarch. Rational legitimation of state power is based on a rational assessment and is associated with the formation of confidence in the reasonableness of the existing order, laws, and instillations adopted in a democratic society to govern it. This type of legitimation is one of the main ones in modern conditions of a democratic state governed by the rule of law.

Rational legitimation assumes that the population supports (or rejects) state power, based primarily on its own assessment of the actions of this power. Not slogans and promises (they have a relatively short-term effect), not the image of a wise ruler, often not even fair laws (in modern Russia many good laws are not enforced), but, above all, the practical activities of government bodies, officials, especially the highest ones, serve as the basis rational assessment.

In practice, only one of these forms of legitimation is rarely used; they are usually used in combination. Hitlerism used the traditional respect of the Germans for the law, the charisma of the leader, and instilled in the population the belief in the correctness of the “thousand-year Reich.” In democratic Great Britain, the main thing is the method of rational legitimation, but, for example, the activities of Prime Ministers W. Churchill and M. Thatcher had elements of charisma, and traditions play an important role in the activities of parliament and cabinet. De Gaulle's role in France was to a great extent connected with his charisma as the leader of the Resistance in the fight against the fascist occupiers, the power of V.I. Lenin and, to an even greater extent, I.V. Stalin in Russia was consecrated by ideological factors, etc.

Unlike charisma, which can be acquired quite quickly, stable rational legitimation requires a certain period of time. However, there are a number of ways to acquire initial rational legitimation, the procedure of which is not so lengthy and depends on certain events. First of all, this is an election. higher authorities states. Direct elections are of greatest importance, when one or another state body, the highest official, receives a mandate directly as a result of the vote of voters. In China, however, the parliament (National People's Congress) is elected by multi-degree elections, the presidents of many countries are elected by parliaments (Turkey, Israel, etc.), electors (USA) or special electoral colleges (Germany, India) History of State and Law: Course of Lectures / ed. D.O. Guseva. - Novosibirsk, 2000. P.254.

The upper houses of parliaments are also often elected by indirect elections (France), and sometimes appointed (Canada). This, of course, does not call into question the legitimation of these bodies; we are talking only about the forms of legitimation established by constitutions, especially since in direct elections, especially in a majoritarian system of a relative majority, distortions of the will of voters are possible. In India, the Indian National Congress party has been in power for several decades, with a majority in Parliament, but they have never won a majority of the popular vote across the country. The same facts took place in Great Britain: the party that received fewer votes throughout the country had more mandates in parliament. In Hungary in 1994, in the parliamentary elections, the Hungarian Socialist Party received 33% of the votes, but 54% of the seats in parliament. History of State and Law: Course of Lectures / ed. D.O. Guseva. - Novosibirsk, 2000. P.456.

The vote of voters in a referendum according to the proposed formula can be of great importance for the legitimation of state power, and the referendum is decisive or advisory, but in any case, if voters approve the constitution or speak out in support of government measures, the referendum legitimizes power. The strength of a referendum is that usually the decision is recognized as valid with the participation of at least 50% of voters and with a positive answer of at least 50% of the votes (according to the 1984 Constitution of South Africa, 2/3 of the votes are required), while elections in a number of countries are recognized as valid if turnout of 25% of voters (France, Russia) and a majority system of relative majority is allowed (Great Britain, USA, India, etc.), in which you can be elected by receiving a slight majority of votes, but more compared to another candidate Ibid. .

Important for the legitimation of state power is the signing of a social contract between state authorities, the most important political parties, public organizations, sometimes representatives of various parts of the state (in federations, in countries with autonomous entities) After the fall of the Franco regime, such an agreement was signed in Spain and largely contributed to the stabilization of the situation in the country. In 1994, the Treaty on Social Accord, which defines the activities of state power, the mutual rights and obligations of the parties, was signed in Russia, but its implementation is proceeding with great difficulties, there are attempts to withdraw their signatures from the treaty. In 1995, a constitutional treaty between the parliament and the president was signed in Ukraine. It is intended to reduce friction between the branches of government and thereby give it greater legitimacy in the assessments of the population

In recent years, the role of the opposition has been increasingly used to legitimize political power, paradoxically as it may seem. We have already mentioned the “round tables” in post-socialist countries, at which new rules for organizing public life were developed. The Portuguese Constitution of 1976 was the first to speak about the role of the political opposition; in the UK, the leader of the parliamentary opposition has received a salary from the treasury in the amount of a cabinet minister since 1937. The Colombian Constitution of 1991 contains an entire chapter on the rights of the political opposition (right of speech in the media, right of access to all official documents, etc.). Brazil's 1988 Constitution inducts the leader of the opposition, along with certain senior officials, into the Presidential Council of the Republic. The Leader of the Opposition appoints a certain number of senators in Jamaica and some other countries. The institutionalization of the opposition strengthens the stability of state power. History of state and law: Course of lectures / ed. D.O. Guseva. - Novosibirsk, 2000. P.461.

In the international arena, methods of rational legitimation of state power may be associated with the recognition of states and governments, with the admission of certain states to international organizations and other circumstances.

Currently, classical models of legitimacy are perceived as ideal types of processes of ethnocultural legitimation, since it often happens that traditional, charismatic and rational legitimacy are combined and mutually reinforce each other, and often these same forms of legitimacy can come into conflict. Therefore, it becomes obvious that modern political and legal reality makes adjustments to the mentioned classification. Today, such postclassical (modern) forms as Tursunkulov A.B. should also be included in the classical forms of legitimacy. Modern forms of legitimation of institutions of state power // Philosophy of Law. 2006. No. 2. P.52:

Liberal-democratic - associated with the transfer of the decision-making mechanism to the whole society, while placing the individual manifestation of free judgment as the starting point, the “unit” of legitimation;

Technocratic (effective) - based on the idea of ​​efficiency of state (public) management, the main thesis of which is the consideration of public policy as a special art (“public management”), requiring appropriate skills, knowledge and abilities, carried out by a specialized social group;

Ideological - carried out through recognition and belief in the correctness and exclusivity of certain ideas of political and legal development, which are proclaimed and implemented by government institutions;

Ontological - associated with the adequacy of the institutions of public power to the established order, “inscribed in human and social reality” (J.-L. Chabot)..

In addition, we should also highlight the patriotic type of legitimacy, in which the highest criterion for supporting the authorities is a person’s pride in his homeland, country, his government and its domestic and foreign policies. However, these grounds for the adequacy (forms of legitimation) of the institutions of state power, as a rule, in real political and legal reality are intertwined and mutually complement each other. In this regard, we can only talk about the dominance of one or another type of legitimacy, which, first of all, is associated with the historical, spiritual and moral context and the specifics of the state legal regime. Therefore, today we should talk about mixed (atypical) forms of legitimation of state power. And from this point of view, it seems appropriate to highlight the following models of legitimation of state power Tursunkulov A.B. Modern forms of legitimation of institutions of state power // Philosophy of Law. 2006. No. 2. P.54:

The authoritarian form of legitimation of institutions of power is based on the prevalence of the ideological type of legitimation. In this context, the institutional-power system exists without the need for feedback and confirmation of its legitimacy, because legitimation is replaced and compensated here by ideological arguments, the political faith of the population in power leaders. However, this model also has a rational component in the sense that the state apparatus builds a clear and almost impeccable system for managing public and, in some aspects, private and collective life of society in accordance with specific ideological postulates;

Adaptive legitimation is the most unstable form of legitimation of institutions of power, since it is associated with the constant adaptation/change of functions, goals, objectives and activities to changing internal and external conditions in order to ensure the possibility of self-preservation, first of all, of the power elite of their positions. These are, as a rule, political and legal regimes that are under pressure and dependence on more economically and politically powerful states, forced to coordinate their policies taking into account external requirements and internal social needs and interests. This form of legitimation thus combines such forms of legitimacy as ideological, ontological and technocratic;

The ideational form of legitimation is based on ideational ethics (P.A. Sorokin), which is characterized by a disdainful attitude towards social values, material goods, wealth, and bodily pleasures. The earthly structure is considered by her as something secondary. Ideational legal consciousness is characterized by uncritical trust in the existing institutional and power system; it is not allowed to doubt the legitimacy of its existence. In turn, the legitimacy of existing public institutions of power depends on the compliance of their activities with the principles of religious normativity. This form of legitimation combines traditional, ideological, charismatic and ontological forms;

Ideocratic form of legitimation - is based on a set of objectively existing historical factors that are interpreted using a system of ideals and ideas. The legitimacy of power in this regard is conditioned by serving the general idea, which was developed in the course of the internal, spiritual state-legal life of society, and thanks to the adherence to this general idea, it is at the real height of serving it, its existence and position in society is explained. The meaning of existence and justification of state power, therefore, lies in the organization of a special “ideological” way of life of the people, maintaining and preserving the originality and individuality of the national culture, which is fully consistent with the spirit of the people, their history and social and legal experience;

Liberal legal legitimation - prescribes the formation of state legal institutions as derivatives of the natural order of things, human nature, which presupposes the presence of norms and principles of an ontological nature that are universal and suitable in space and time. Here, the improvement of human institutions and their legitimation, as well as political and legal behavior, depends solely on the sound application of critical reason and is amenable to rational explanation. Hence, the public legal institutions of civil society, which protect and defend the rights and freedoms of the individual, are essentially legitimate. The leitmotif of liberal legal legitimation is the creation of such political and legal principles that would ensure effective limitation of both state and public and personal power. But at the same time, this form of legitimation recognizes the existence of transcendental absolutes and elevates natural legal values ​​and norms to them. Thus, liberal legal legitimation combines such types of legitimacy as rational (legal), procedural, ideological, technocratic (effective);

Pragmatic form - combines democratic procedurality and functionality, technocratic, ontological and legal types of legitimacy. As a rule, it lacks any ideologization of existing public legal institutions. This form is based on special procedures for rational relations between institutions of state power and civil society, as well as on the internal distribution of power itself using election procedures, universal suffrage, pluralism of opinions and freedom of expression, separation of powers of government, etc. However, although legitimacy is inextricably linked with rationally formed rules and procedures, a necessary factor for the justification of certain government institutions is also the functionality and effectiveness of institutions. Thus, the basis of this form of legitimacy are three components: materiality associated with ontological legitimacy, i.e. with the correspondence of government institutions to the existing interests and needs of the population, the established order of civil relations and ideas about models of interaction between the supreme power and civil society; formality - reflects the compliance of the activities of government institutions to protect and maintain legal and rational conditions that ensure formal individual freedom; technocraticism - ensuring the justification of existing institutions through their procedurality and functionality, necessary for non-conflict interaction of all social actors;

The universalist (globalization) model of legitimation is based on the postulate of the existence of institutions of public power in an open international political and legal space, where the legitimacy of these institutions is mainly dominated by methods of external justification for their functioning. Moreover, this political and legal space presupposes the existence of “ open societies"(K. Popper), based on the denial of any form of political identity and ethnopolitical legitimacy, since the latter represent fundamental violence against the natural law “human nature.”

Conclusion

Scientific research into the essence and content of legal conflicts in the sphere of legitimation of state power opens up the opportunity not only to understand the prerequisites, conditions and consequences of their occurrence and development, but also to substantiate the mechanism for managing a conflict situation, ways and means of its effective resolution. Currently, issues of power and its social recognition have been studied quite well. Many views on legitimate power (in the modern understanding of this term) are formulated in the works of classics of political and legal thought.

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The essence of the Supremacy of the Constitution and federal laws. Features of the system of government. Distinction of subjects of jurisdiction and powers between government bodies of the Russian Federation and government bodies of the constituent entities.

Legitimacy is the confidence of the people that the government will fulfill its obligations; recognition of the authority of the authorities and voluntary submission to it; an idea of ​​the correct and appropriate use of power, including violence. Legitimate power, as a rule, is capable of ensuring stability and development of society without resorting to violence.

It must be emphasized that in the current conditions of development of Kazakhstan, the international community also plays a significant role, which is sensitive to the transformations taking place here, making the provision of various support directly dependent on the extent to which the actions of the authorities correspond to the standards of legitimacy accepted by this community, without taking into account internal features of the country. Despite the fact that in countries with different levels of civilized development, there are different approaches to understanding the legitimacy of power. That is why, in our opinion, political processes have confronted the power structures of the Republic of Kazakhstan with the need to turn to both traditional and new sources that provide the necessary support for its functioning; this approach undoubtedly expanded the political space against which political power is exercised. However, this simultaneously poses the challenge of immediately developing and adopting a variety of policy solutions. If in Western countries institutions of power arose as a natural result of the formation of civil society, then in Kazakhstan the process of democratization begins with the abolition of totalitarian political structures, especially in a historically short period of time. In the same time last elections showed that in a very short time it is possible to accustom the population to the skills of free expression of will, compliance with certain procedures, rules and regulations.

The analysis of the problems of legitimation of power in relation to the post-Soviet space, including Kazakhstan, is just beginning, receiving a kind of refraction in the formation of Kazakh political institutions. In this regard, there is a need to develop such approaches to the study of problems of legitimation that highlight the qualitative characteristics of political power, providing the necessary support for its legitimate functioning.

Any political power, even the most reactionary, strives to appear effective and legitimate in the eyes of its people and in the eyes of the world community. Therefore, the process of legitimizing power is a subject of special concern to the ruling elite.

One of the most common techniques is hushing up the negative results of one’s policies and all kinds of “stuffing out” real and imaginary successes. Often, independent media become an obstacle to such substitution of negative factors for positive ones.

Illegitimate and ineffective authorities are afraid to enter into dialogue with society and with their opponents, so as not to completely reveal their inconsistency. Therefore, it strives in every way to limit the activities of independent media or put them under its control.

Methods of legitimation. These methods, or approaches, are very diverse and require special analysis. Only some of them will be described here, namely those that may seem to be of interest for Russian criminal law science.

Let us first highlight two competing approaches.

The first approach is based on a rational, targeted analysis of the economy and effectiveness of criminal law. Professor Karl-Ludwig Kunz, being critical of this approach, notes that “rationality” means the structure of law on the basis of an analytical understanding that cares about clarity, and writes that such a concept (of law as a single, complete within the system) seeks to perform a legitimating function3. He names four

1 Bockelmann R. Zur Kritik der Strafrechtskritik // Festschrift fur Richard Lange zum 70 Geburtstag, Berlin; New York: Walter de Gruyter. 1976, S. 1 ff. (Bockelman P. Towards a critique of the criticism of criminal law // Anniversary collection in honor of the 70th anniversary of Richard Lange. Berlin; New York: Walter de Greuter, 1976. P. 1 et seq.)

2 See for more details: Roxin S. Zur Entwicklung des Strafrechts im kommenden Jahrhundert // Aktualne problemy prawa karnego i kryminologii / Red. Emil W. Plywaczewski. Bialystok: Wyd. Universitet, 1998. S. 450. (Roksin K. On the development of criminal law in the coming century // Actual problems criminal law and criminology / Ed. Emil V. Plyvachevsky. Bialystok: University, 1998. P. 450.)

3 Kunz K.-L. Einige Gedanken uber Rationalitat und Effizienz des Recht // Festschrift fur Arthur Kaufmann zum 70 Geburtstag. Heidelberg: C. F. Muller, 1993. P. 187. (Kuntz K.-L. Some considerations on the rationality and effectiveness of law // Anniversary collection in honor of the 70th anniversary of Arthur Kaufman. Heidelberg: C. F. Muller, 1993. P. 187 .)

very different major followers of this approach: Hans Kelsen, Emile Durkheim, Max Weber, Eugene Pashukanis, however, noting that they belong to the “young past”, not to say that they are somehow unfashionable (“demode sind”)1.

The second approach, competing with the first, seeks to overcome its limitations. Representatives of the second approach, in particular, were Arthur Kaufman, Kunz himself and a number of other scientists. K.-L. Kunz, for example, wrote about Arthur Kaufman: “Showing the limitations of this picture of the world (we are talking about the claim to rationality and efficiency of behavior and law - A. Zh.) and the unweightedness of his totalized one-dimensional optics for law is the leitmotif of A. Kaufman’s works on philosophy of law"2, adding his own arguments to this. Here we are talking about the fact that it is impossible to recognize or reject the need for criminal law only from a rational position.

In this regard, the position of Prof. Bernard Haffke\ which, in our opinion, deserves a relatively detailed description. The author's views are presented using the example of the problem of replacing the elements of fraud and breach of trust in an unacceptably risky economy with the means of civil or public law, a problem, by the way, that is more than relevant for Russian criminal law. However, his reasoning is still of a general nature and is therefore interesting.

Criminal law is considered by prof. B. Haffke as a product of various, often opposing principles, the bearers of which are various, some obviously antagonistic, social forces.

Therefore, the analysis of the meaning and goals of state criminal law should, in his opinion, be carried out along the axes: a) efficiency (it includes Effizienz - as an assessment of the relationship between means and results; Effektivitat - as suitability, destined to achieve certain goals); b) guarantees of freedom; c) symbolism.

1 With mixed feelings you encounter the mention of the name of a compatriot in the list of the greatest lawyers of the past in a German book, a purely special one intended for Germans. Pride in the country and shame for such treatment of one’s property... See: KunzK.-L. Op. cit. S. 188.

3 See: Hafflce V. Die Legitimation des staatliches Strafrechts zwischen Effizienz, Freiheitsverbeigung und Symbolik // Festschrift fur Claus Roxin zum 70 Geburtstag. Berlin; New York: Walter de Gruyter, 2001. S. 955 ff. (Haffke B. Legitimation of state criminal law between efficiency, restriction of freedom and symbolism // Anniversary collection in honor of the 70th anniversary of Klaus Roksin. Berlin; New York: Walter de Greuter, 2001. P. 955 et seq.)

It is these three topoi1 (the second position, within the framework or on the basis of which arguments of a very general nature are given)2 that are associated with the problems of criminal legal legitimation.

Considering the principle of efficiency, Prof. B. Haffke considers the prerequisite for this approach to be the recognition that state punishments beyond the goal are unthinkable in modern society; “punishments must serve real social purposes”, be suitable for achieving goals and carry them out. Referring to both the founding fathers of classical utilitarianism Bentham, Mill, Sigdwick, and the German representatives of the economically based doctrine of the purposes of punishment, B. Haffke believes that three conclusions follow from the axioms they accepted:

1) the discourse about the legitimacy of behavioral norms follows different rules than the discourse about sanctions3;

2) if criminal law as a whole is viewed as illegitimate, there are three ways to protect it from this verdict, i.e. three ways of legitimation: you can either reduce the requirements for justifying the suitability of means, or more accurately define the goals, or generally remove criminal law from the scope of action the principle of efficiency, i.e. do not demand efficiency from it;

3) the problem must be considered within the framework of procedures that, while guaranteeing the rights of citizens, set insurmountable limits to efficiency calculations, i.e., prevent going beyond certain limits. The state-legal nature of procedures can delegitimize the means of criminal law if its intervention is ineffective4.

On this basis, the legitimacy of criminal law as one of the instruments of social control should be analyzed in comparison with administrative law, civil, public and other areas and possibilities, including procedural5. This gives, along the efficiency axis, four alternatives to legitimation, which involve a criminal law declaration of the impermissibility of an act (criminal law does not contain any regulations regarding a permissible act)6. True, when considering these alternatives, the author expresses constant doubts about the possibility of their use based on the principles

1 Topos (Greek) - designation of a single position, which is considered as the general basis of a system of arguments and hence - topic/Topic (plurality, topoi) - logic, developed first in Greek philosophy and then by Kant (transcendental logic).

2 Metzler // Philosophie Lexikon. Stuttgart/Weimer: Verlag Metzler, 1996. S. 521. (Philosophical Dictionary. Stuttgart-Weimer: Publishing House Metzler, 1996. P. 521.)

4 Ibid. S. 957-959.

Section I. General characteristics of criminal law

effectiveness and recognition of the principle of ultima ratio - the last argument.

Actually, these alternatives are available when:

1) there is an ad hoc system of civil regulation that meets the interests of the victim; however, subject to the principle of ultima ratio, the use of criminal legal means is legitimate if civil legal means do not work at all or are insufficient.

It is noted that this position is common. The author refers to Claus Roxin, who in his textbook (still in its second edition) wrote: “For example, ordinary breaches of contract can be overcome quite successfully through civil actions and their enforcement; it would be disproportionate to include criminal law here”1;

2) civil legal control has been transferred to the victims, but it is insufficient because it is not feasible or incompletely feasible by them; a number of complex issues arise here, and it is doubtful that criminal law protection of such interests will always be legitimate;

3) the victim, based on his interests, seeks to achieve greater benefits for himself, using the threat of punishment and refusal of the perpetrator; then criminal law acts as an instrument that provides the opportunity for the victim (victim) to legally restore violated civil rights;

4) when the victim, even if he wants, does not exercise, cannot exercise his right.

These alternatives do not seem to cover all situations when choosing a criminal law norm as a regulatory instrument. But they, according to B. Haffke, show the significance of the presumption: “Where the goal is, where the behavioral norm is unclear, sanctions cannot help”2. But one way or another, the author comes to the conclusion (rather of a theoretical nature) that practice can and does do without resorting to efficiency; and in this regard, he expresses doubt that criminal law can generally govern behavior by defining it.

Next, Prof. B. Haffke develops a very interesting and somewhat paradoxical approach to the legitimacy of criminal law. The meaning of this approach, roughly speaking, is that it is better to develop criminal law than to “thicken” legal positive regulation. A ban presupposes the ability to act freely, choosing behavior options and observing the most important interests of society.

1 Quote by: Haffke V. Op. cit. S. 961.

Chapter 2. Legitimation of criminal law

It is difficult to agree with this idea, but its argumentation is interesting and useful as a point in discussing the legitimation of criminal law. Prof. B. Haffke, it seems, is not about the protection of freedom in criminal law, but about the generation of criminal law by freedom. The author believes: “The more intense and dense the extra-criminal legal control, the more the need for criminal legal sanctions disappears.” And vice versa, the less intense the extra-criminal legal, relatively speaking, everyday control, the more criminal legal sanctions are needed.

An increase in control means a reduction in the secret sphere and an increase in transparency, but also a decrease in mutual trust, i.e., an increase in distrust; elimination of personal contacts, i.e. increase in bureaucratic relations; decrease in autonomy, i.e. increase in external influence; decreased readiness to take over responsibility, i.e. the tendency to shift responsibility; decreased risk appetite, i.e.

E. increasing need for security1.

Therefore, strengthening prevention, designed to increase the effectiveness of the law, leads to a decrease in freedom. Criminal law, in principle, is not aimed only at protecting the victim. And therefore criminal law is legitimate where it closes holes in social control. It is not effective and not ultima, but prima ratio.

These judgments are supported by recourse to symbolic criminal law. It represents in this regard “an essential (erhebliche) empathic reinforcement of permitted paths to achieving goals.”

Considerations of this nature program the conclusion: “The logic of instrumental thinking, characteristic of homo economics, is not the logic of criminal legal thinking, even when a “rational” criminal sees it differently and is mistaken. This does not in itself contradict the fact that rational arguments can and should be made in criminal law and procedure.”

As a result, the author concludes: it is necessary to separate behavioral norms and sanctions; the introduction of extra-criminal legal control limits freedom in such a way that it sometimes exceeds the severity of the criminal legal impact (I - my responsibility is growing); the principle of efficiency must be driven into boundaries, and symbolism must be introduced into criminal law2.

lHa?keB. Op. cit. S. 966.

2 Ibid. S. 977. The concept of a legal good will be analyzed further below. Here is a link to one of the works that examines the connection between the legitimation of criminal law and legal good. See: Hefendehl Roland, von Hirsch Andrew, Wohlers Wolfgang. Die Rechtsguttheorie; Legitimationbasis des Strafrechts oder dogmatisches Grusperlenspiel. 1 Aufl. Baden-Baden: Nomos, 2003. (Heffendel Roland, von Hirsch Andrew, Wohlers Wolfgang. Theory of legal good; legitimation basis of criminal law or and fa in beads. 1st ed., Baden-Baden: Nomos, 2003.)

Section I. General characteristics of criminal law

On legal good as a criterion for the legitimacy of criminal law. The content of this approach is that the assessment of the legal good is considered as a sufficient or insufficient criterion for the legitimacy of criminal law. This approach seems to be quite reasonable and consistent with the nature of things, arising from the very essence of criminal law. However, it is not accepted without doubt, since the very concept of a legal good causes a lot of controversy. Thus, A. Baratta, quoting V. Hassemer, writes that her personalized theory of legal good “is strictly limitative (in the sense of limited legitimation. - A. Zh.): only criminal legal protection of specifically perceived (/ **sh6dgeya) and truly definable legal benefits that are directly or indirectly derived from the interests of individuals”1. And he even points out that “the legitimation of only certain objects of protection on the basis of their criminal legal relevance leaves the question of the legitimation of criminal law... open”2.

In turn, Prof. G. Jacobe also raises the question of the material legitimation of criminal law through the protection of legal benefits (Rechtsgеterschutz)3.

On the relationship between positive and natural law in the process of legitimation. The ideas of legitimating criminal law from the standpoint of natural law arise epistemologically and politically in connection with the well-known practice of using a formally impeccable criminal law to carry out unbridled violence.

For Germany, the period of Nazism was tragic; the problem of the operation of the law over time is raised (see below) in connection with acts of power in the former GDR, etc. But if the law is ignored, it is possible to create a situation in which the cure is worse than the disease. After all, in essence, the reference to class interests, revolutionary benefits, methodologically, is nothing more than the use of the recognition of rights or interests as natural to justify arbitrariness.

At the same time, it is necessary to distinguish between disputes about the legal nature of the criminal law and the connection of the court with the criminal law, which is not always the same thing, although it is difficult to separate.

Here, first of all, a very difficult question arises about the content of natural law, the understanding of which is very different, about which many optimistically and pessimistically wrote in Russian literature.

1 VagaPaA. Or. sії. B. 397.

2 Yes.

3 See: Laws With Or. sk. B. 37.

Chapter 2. Legitimation of criminal law

but1 (V.S. Nersesyants, V.N. Kudryavtsev). In this regard, definitely or implicitly, natural law is sometimes replaced or seemingly replaced by constitutional regulations - the Basic Law of the Federal Republic of Germany.

Professor Wolfgang Naucke writes: “The most voluminous textbooks on the General Part of Criminal Law recognize primarily only the Constitution as the scope of criminal law norms: more precisely, the Basic Law”2. However, V. Nauke further noted that the actual situation is much more complicated. References to constitutional norms are questionable, in particular as substitutes for natural law. It is possible that a number of the considerations expressed by this scientist do not reflect the prevailing opinion in German literature. However, they are of interest wherever the problem of legitimating criminal law and its sources arises.

Prof.'s doubts V. Science are:

a) the concept of the Constitution is not entirely clear, if we recognize that we are not talking about the text of the Constitution, but about its principles, which still need to be justified;

b) it can be noted that “the main issues of criminal law in current (geltende) criminal law monographs are disclosed without reference to the Basic Law”;

c) constitutional problems are associated mainly with the central problems of criminal law; additional criminal law, for example, remains unexamined.

a) limits criminal law (for example, the limitation of § 240 of the Drug Trafficking Act (BtMG), the limitation of liability for espionage activities for the former GDR, etc.);

1 See: Jorg Arnold. Uberpositives Recht und Andeutungen volkerrechtsfreudlicher Auslegung von Strafrecht // Festschrift fur Gerald Grunwald. Baden-Baden: Nomos, 1999. S. 31 ff. (Jörg Arnold. Superpositive law and hints of international legal interpretation of criminal law // Anniversary collection in honor of Gerald Grünwald. P. 31 et seq.) Here we analyze the critical attitude towards superpositive law, in his opinion, abolishing the principle of legality, the work of A. Kaufman , V. Hassemer, K. Külä et al.

2 See: Naucke W. Die Legitimation strafrechtlicher Normen - durch Verfassung oder durch uberpositive Quellen // Aufgeklarte Kriminalpolitik oder Kampf gegen das Bose. Baden-Baden: Nomos, 1998. P. 157. (Science V. Legitimation of criminal law norms - according to the Constitution or from super-positive sources // Enlightened criminal policy or the fight against evil. Baden-Baden: Nomos, 1998. P. 157. )

Section I. General characteristics of criminal law

b) expands it, for example in the case of § 218. And besides, the treatment of the Basic Law by many specialists is simply very ambitious, not to say limitless (willkurlich)1.

As a result, an intermediate conclusion: “Criminal legal legitimation without a return to superpositive/natural law is difficult to imagine.” This can be hidden behind the Constitution and professional dogma. But then the superpositive is opposed by the ersatz of the superpositive2.

At the same time, Professor V. Nauke turns to Kant’s thought, which was already once used in Russian by academician A. Ya. Vyshinsky. “Simply an empirical doctrine of law,” he quotes Kant, “like the wooden head in the fable of Phaedrus, it is a head that may seem beautiful (der schon sein mag), but it’s a pity that it is completely brainless.”

Therefore, it is necessary to develop a discussion in three directions: ensuring the relativity of criminal law, ensuring the remnants of critical natural law, ensuring a minimum of affirmative natural law3.

This means that there is no alternative: the superpositive or the Constitution legitimize criminal law. Criminal law is relational; the superpositive is more or less hidden in it. Every problem is a dispute between necessary relativism and critical natural law.

On the need for new alternatives in the process of legitimation. Professor Michael Walter, in turn, emphasizes that criticism of criminal law must put better alternatives in its place, which is associated with many dangers4. However, he notes that “the remedy of criminal law lies in the declared reproach (ubel); in discrediting (unheit) and additional deterioration, from which, in addition to the subject, often innocent relatives suffer.” The state, in his opinion, interferes in relations between individuals, in some cases depriving them of their own rights to resolve the conflict, and, as he writes, “there are still hardly clear normative criteria for under what conditions and when the state