Legalization and legitimation of state power. Legitimacy: What Does It Mean? The process of legitimizing the highest bodies of state power

Astringent compounds 21.08.2021

Astringent compounds

V.E. Chirkin, Chief Researcher of the Institute of State and Law of the Russian Academy of Sciences, Doctor of Law, Professor, Honored Lawyer of the Russian Federation.

State and law. - 1995. - No. 8. - S.65-73.

Many of the turning points of recent years in Russia (the confrontation between the legislative and executive authorities, the 1994 Agreement on Public Accord, the ambiguous attitude to the 1994-1995 Chechen war, etc.) sharply raise the question of state power, its legality and legitimacy in society.

Those. its legal validity, on the one hand, and justice, recognition, and support for it by the population, on the other. The severity of the problem is aggravated by the conditions for the formation of nomenklatura-mafia capitalism in some spheres, the indivisibility in some cases of commercial, administrative, and even criminal structures, opposition from the local nomenklatura, the federal government, the frequent incompetence of the latter, authoritarian features of the federal constitution and some others, including number of personal factors. There is also a theoretical ambiguity: in the works of lawyers, political scientists, political figures, the terms “legalization” and “legitimation” are often used with incorrect meanings.

Legalization and legitimation: general and specific

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 IV-III centuries. BC. were used by the school of Chinese legists in a dispute with the Confucians, who demanded such behavior that would correspond to 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, and supporters of the "legitimate monarchy" of the Bourbons referred to it in modern times, speaking out against the "usurper" Napoleon.

In modern conditions of legalization of state power as a legal concept means the establishment, recognition, support of a given power by law, above all by the constitution, the reliance of power on the law. However, firstly, constitutions and laws can be adopted, changed, abolished in various ways. The military and revolutionary councils created as a result of military coups in many countries of Asia, Africa, Latin America decreed the abolition (often - suspension) of constitutions and often proclaimed new interim constitutions without any special procedures. In fact, in Iraq, such an interim constitution remains in force from 1970 to the present, in the UAE, the interim constitution adopted by the emirs - from 1971. In some countries, constitutions were replaced by institutional acts (Brazil), proclamations (Ethiopia). The monarchs single-handedly "bestowed" constitutions on "their faithful people" (Nepal, Saudi Arabia, etc.). In Russia, in 1993, the 1978 Constitution (as amended) was suspended by a presidential decree. Secondly, sometimes constitutions and laws adopted in accordance with established procedures, in their content, legalized an openly dictatorial, anti-popular government, a totalitarian system. These were the constitutional acts of fascist Germany, the racist legislation of South Africa (before the adoption of the interim 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 legislative, executive bodies, courts are the organs of this party. The Constitutions of Russia and the USSR, adopted during the Soviet system and proclaiming that power belonged to the working people, in fact legalized the totalitarian and even at times terrorist regime.

Of course, in the conditions of authoritarian and totalitarian regimes, constitutions can be adopted in outwardly democratic ways (by the Constituent Assembly, the Supreme Soviet in the USSR in 1977, the referendum in Cuba in 1976), they can contain democratic provisions, the rights of citizens (in the Constitution of the USSR of 1936 a wide range of socio-economic rights has been entrenched), etc. But these moments need to be assessed only in conjunction with reality. Thus, the very elections of the parliament adopting the constitution are not free under the conditions of a totalitarian regime, and phrases about democracy serve as a cover for the real situation. Thus, when democratic procedures are violated, the adopted constitution, other acts of constitutional significance, when such procedures do not correspond to the people's ability to exercise constituent power when adopting a fundamental law, when laws contradict the general human values of mankind, 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 notion of legitimation of state power seems to be more complicated. Legitimus also means legal, legalized, but this concept is not legal, “but factual, although legal elements may be an integral part of it. In essence, the Confucians proceeded from this in their dispute with the aforementioned legists, it was meant by the supporters of both secular and spiritual authorities, interpreting the "will of God" in different ways. The modern meaning of this concept is associated with the research of political scientists, primarily the German scientist Max Weber (1864-1920).

Legitimation often has nothing to do with the law, and sometimes even contradicts it. This process is not necessarily formal, and even more often than not 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 conformity of a particular state power to the attitudes, expectations of an individual, social and other collectives, society as a whole. The recognition of state power and its actions as legitimate is formed on the basis of 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 incentives, internal incentives. The legitimation of state power is not associated with the issuance of a law, the adoption of a constitution (although this can also be part of the process of legitimation), but with a complex of feelings and internal attitudes of people, with the ideas of various segments of the population about the observance of social justice and human rights by the state power, its bodies, their protection.

Illegitimate power is based on violence, other forms of coercion, including mental influence, but legitimation cannot be imposed on people from the outside, for example, by force of arms or by the imposition of a “good” constitution by the monarch on his people. It is created by people's devotion to a certain social order (sometimes to a certain personality), which expresses the immutable values of being. This kind of devotion is based on people's belief that their benefits depend on the preservation and support of this order, given state power, the conviction that they express the interests of the people. Therefore, the legitimization of state power is always associated with the interests of people, various strata of the population, and since the interests and needs of various groups, due to limited resources and other circumstances, can be satisfied only partially or only the needs 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 universal "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 compulsory 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. In the views of the lumpen proletariat, however, general expropriation has the highest degree of legitimacy. You can cite many other examples of different interests of certain strata of the population and their unequal, often opposite attitude towards measures of state power and towards the power 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 the class, that makes state power legitimate.

The legitimization of state power gives it the necessary authority in society. The majority of the population voluntarily and consciously submits to it, to the legal requirements of its bodies and representatives, which gives it stability, stability, the necessary degree of freedom in the implementation of state policy. The higher the level of legitimation of state power, the wider the possibilities for leading society with minimal "power" costs and costs of "managerial energy", with more freedom for self-regulation of social processes. At the same time, the legitimate government has the right and is obliged, in the interests of society, to apply coercive measures provided for by law, if other methods of suppressing antisocial actions do not yield results.

But the arithmetic majority cannot always serve as the basis for genuine legitimation of state power. Most Germans under Hitler's regime adopted a policy of "race cleansing" with regard to territorial claims, which ultimately led to enormous disaster for the German people. Consequently, not all assessments of the majority make the 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 adopted by it (although this is important), but by practical activity, by the way it resolves the fundamental issues of the life of society and each individual. The population sees the difference between the slogans of reforms and democracy, on the one hand, and authoritarian methods 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 polls of the population, erosion of the legitimacy of state power in Russia (the legitimacy was high after August 1991), while maintaining its legalization: all the highest bodies of the state were created according to the Constitution of 1993 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 the respondents trust the President of Russia, 78% do not trust, 10% both trust and do not trust, 6% found it difficult to answer. Of course, survey data does not always give the correct picture, but this data should not be underestimated.

It has already been said above that the legitimation of state power can and, as a rule, includes its legalization. But legitimation is in contradiction 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, there is either no legitimation (for example, the population has a negative attitude towards the totalitarian order established by the government), or in the course of revolutionary events, national liberation movements, another, anti-state, insurgent, pre-state power is legitimized, which has developed in the liberated regions, which then becomes state power. ... This is how events developed in China, Vietnam, Laos, Angola, Mozambique, Guinea-Bissau and some other countries.

Like the above-mentioned false legalization, false legitimation is also possible, when, under the influence of propaganda, inciting nationalist sentiments, the use of personal charisma and other methods (including the prohibition of the opposition and the 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 ones) are very complex. In scientific literature, including foreign ones, they are not sufficiently developed. 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, with the analysis of election and referendum data. 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 pursued by those in power. Scientific analysis of programs in comparison with the actions of various high-ranking officials is quite rare.

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, falsifications are not uncommon, and the second does not always reflect the true mood of the people, since these results are caused by transient factors. In many developing countries with a one-party system (Ghana, Burma, Algeria, etc.), in the parliamentary and presidential elections, the ruling party received an overwhelming majority of votes, but this same population remained completely indifferent to the military coups that overthrew this government. At the 1991 referendum on the preservation of the USSR, the majority of voters gave an affirmative answer, but a few months later the USSR collapsed with the indifference of a significant part of the same voters. Thus, the formal assessments used in legalization require a deep and comprehensive analysis when determining the legitimacy of state power.

Constitution as a tool for legalizing state power

As already noted, the legalization of state power is associated with legal procedures, which are very diverse. In this article, we will focus only on the role of the constitution as a form of legalization of state power, because the democratic method of preparing and adopting a 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 in itself the adoption of a constitution testifies, as a rule; about a certain stability of state power, the methods of preparation and adoption of the basic law do not always meet the requirements of true legalization.

The preparation of the draft constitution is carried out in different ways. In rare cases, the draft is created by the Constituent Assembly itself, specially elected for the adoption of the constitution (Italy in the preparation of the 1947 Constitution, India in the development of the 1950 Constitution) or parliament (the 1978 Constitution of Sri Lanka).

In all 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 state bodies appointed by decrees of the President of the Russian Federation, functionaries of political parties, entrepreneurs, federal subjects, and others assigned by them. In many post-socialist countries (Bulgaria, Hungary, Poland, Czechoslovakia, etc.) in the development of new principles of the constitution or amendments to the previous constitutions (new edition), "round tables", "civil assemblies" of representatives of state bodies, various parties, trade unions and social movements took part.

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 French Constitution of 1958 (in addition to this text, the French Constitution includes two more documents - the Declaration of the Rights of Man and Citizen of 1789 and the preamble to the Constitution of 1946) was prepared by a constitutional commission appointed by the government and submitted to a referendum, bypassing parliament. In the Federal Republic of Germany, the draft of the current Constitution of 1949 was prepared by the parliamentary council, which consisted of representatives of regional parliaments (Landtags of the Lands), and approved by the command of the Western occupation forces. In Algeria, a referendum draft of the 1989 Constitution 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 independence was granted to former colonial countries, draft constitutions were prepared by the Ministry of the Colonies (Nigeria in 1964), local authorities with the participation of councilors of the metropolis (Madagascar in 1960), at round tables attended by representatives of parties or national liberation movements. and the meetings were chaired by high-ranking officials of the metropolis (Zimbabwe in 1979).

In the countries of totalitarian socialism, a different procedure for preparing the project was used. It was developed at 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 a future constitution, approved the draft and presented it for adoption by parliament or for a referendum. In the socialist countries, as well as in the so-called socialist-oriented countries (South Yemen, Ethiopia, etc.), the draft was submitted for public discussion before its adoption. There were usually many meetings and the discussion was covered in the media. The practical results of such discussions were, as a rule, very insignificant, since the principles of the constitution are predetermined by the ruling party. But in some countries (USSR, Cuba, Benin, Ethiopia, etc.), based on the results of the 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 stage of discussion is not essential (for legalization it is important that the constitution is adopted by a legally authorized body), but from the point of view of legitimization, a nationwide discussion of the project can be of great importance. This process instills in the minds of the population participation in the preparation of the basic law, the conviction that the order established by the constitution reflects their will.

To the greatest extent, the issue of legalizing state power is connected not with the preparation of the draft, but with the procedures for adopting the constitution and its content. One of the most democratic methods 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 today, Constitutional assemblies in recent years adopted the constitutions of Brazil in 1988, Namibia 1990, Bulgaria 1991, Colombia 1991, Cambodia 1993, Peru 1993, etc. However, the Constituent Assembly is not always, as noted, formed by elections, and 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, which sometimes amended the text (Ghana, Nigeria, Turkey, etc.). All this reduces the degree of legalization of state power, 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 the current legislative work. This is how the Constitution of the USSR of 1977, the Netherlands 1983, Papua New Guinea 1975 was adopted.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 parliaments. This transformation is intended to increase the degree of legalization of state power.

More and more often constitutions in modern conditions are adopted by way of a referendum. In theory, direct voting by voters provides the greatest legalization of state power. This is how the 1958 French Constitution was adopted; Egypt 1971, Cuba 1976, Philippines 1967, Russia 1993 In practice, however, the referendum can be used in different ways. Without preliminary discussion of the project in parliament, the population, voters, it can be difficult to understand such a complex document as the 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 "black colonels"). Sometimes the constitutions of totalitarian regimes (Burma 1974, Ethiopia 1987, etc.) after a referendum were approved (or confirmed) by the parliaments elected on the basis of these constitutions. Formally, such a double legalization process reliably legitimized state power, but its content did not correspond to democratic principles. Some ways of adopting constitutions do not even formally entail the legalization of state power. These are the constitutional acts of the military regimes, the constitutions approved by the military governments in Turkey, Nigeria and other countries, the constitutions adopted by congresses and other supreme bodies of the ruling parties in the 70s in Congo, Angola, Mozambique, entrusted by the monarch or metropolis of the constitution.

The legalization of state power is inextricably linked with the content of constitutions. Reactionary constitutions, adopted even with the observance of the necessary procedures, can in fact only create pseudo-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 in the constitutions provisions that contradict the general democratic principles developed by mankind and enshrined in the fundamental international legal acts (UN Charter 1945 ., Covenants on human rights 1966, etc.). The constitutions of many countries recognize that such principles take precedence over the domestic law of the country. Constitutional provisions that violate human rights (for example, in South Africa before 1994), proclaiming the only permissible ideology (for example, mobutism under the 1980 Zaire Constitution), contrary to the sovereignty of the people (provisions of the 1976 Algerian Constitution on the political power of the only permitted party - Front of National Liberation), 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 the peoples.

Forms of legitimation of state power

There is no “Chinese wall” 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 prerequisites for the lasting legalization of state power. At the same time, legitimation plays an important role in society, for any state power cannot rely only on the laws it proclaims or only on violence. To be sustainable, lasting, stable, it must seek the support of society, certain groups, the media and even certain influential personalities. In modern conditions, representatives of an authoritarian and totalitarian government often arrange meetings and conferences with prominent representatives of the intelligentsia, influential journalists, organize visits to various regions of the country, meetings with collectives of enterprises, etc. The purpose of these events is to find support, first of all by actions, but also by moods and feelings.

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

Traditional legitimation is domination based on traditional authority, rooted in respect for customs, belief in their continuity, in the fact that the government “expresses the spirit of the people”, corresponds to the 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, the structure of state bodies. In those Muslim countries where there are parliaments, they are sometimes created in accordance with the traditions of ash-shura (meetings under the monarch) as consultative parliaments. Tradition determines the decision-making in the Indonesian parliament mainly by consensus. Together with religious dogmas, traditions largely regulate state life in a number of developing countries. Traditions are essential for legitimizing state power in countries with an Anglo-Saxon legal system. Judicial precedent is one of the expressions of the power of tradition. The British monarch is traditionally the head of the Church of England (part of his title is Defender of the Faith). A similar situation takes place in some other European countries, where one of the churches is declared state (for example, Lutheranism in Denmark).

Charismatic legitimation is domination based on belief in the personal talents of the leader (less often - of a narrow ruling group), in the exclusive mission of the leader. Charismatic legitimation is not associated with rational judgments, but relies on a gamut of feelings, it is sensory in nature legitimation. Charisma is usually individual. She creates a special image. In the past, it was a belief in a "good tsar" capable of delivering 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 widespread in the countries of totalitarian socialism, being associated with a certain ideology (Mao Tse Tung, Kim Il Sung, Ho Chi Minh, etc.). In relatively liberal India, charisma is associated with the occupation of the most important state post of prime minister by representatives of the Gandhi family - Nehru (father, then daughter, and after her murder - son). The same generation has stood and is in power in Sri Lanka (Banderanaike's father, 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 power in a special uniform, the coronation of the monarch. Rational legitimation of state power is based on a rational assessment, is associated with the formation of conviction in the rationality of the existing order, laws, rules adopted in a democratic society to govern it. This type of legitimation is one of the main ones in modern conditions of a democratic rule-of-law state.

Rational legitimation assumes that the population supports (or rejects) the 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 higher officials, serves 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, instilled in the population the conviction of 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 large extent associated with his charisma as the leader of the Resistance in the fight against the fascist invaders, the power of V.I. Lenin and to an even greater extent I.V. Stalin in Russia was sanctified by ideological factors, etc.

Unlike charisma, which can be acquired rather quickly, stable rational legitimation takes a certain period of time. However, there are a number of ways to acquire the initial rational legitimation, the procedure of which is not so lengthy and depends on certain events. First of all, these are the elections of the highest bodies of the state. The most important are direct elections, when one or another body of the state, a senior official receives a mandate directly as a result of the voters' vote. In China, however, the parliament (National People's Congress) is elected by multi-stage elections, the presidents of many countries are elected by parliaments (Turkey, Israel, etc.), electors (USA) or special electoral collegia (Germany, India).

Upper chambers of parliaments are also often indirectly elected (France) and sometimes appointed (Canada). This, of course, does not call into question the legitimization of these bodies, we are only talking about the forms of legitimation established by the constitutions, especially since during direct elections, especially with a majority 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 never received a majority of the popular vote in the country. The same facts took place in Great Britain: the party that received fewer votes in the country had more seats in parliament. In Hungary in 1994, in the parliamentary elections, the Hungarian Socialist Party received 33% of the popular vote, but 54% of the seats in parliament.

Voting in a referendum according to the proposed formula can be of great importance for the legitimization of state power, and a referendum is decisive or consultative, but in any case, if voters approve the constitution or speak out in support of government measures, the referendum legitimizes power. The strength of the referendum lies in the fact 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 South African Constitution, 2/3 of the votes are required), while elections in a number of countries are recognized as valid when a turnout of 25% of voters (France, Russia) and a majoritarian system of a relative majority (Great Britain, USA, India, etc.) is allowed, in which one can be elected by receiving a slight majority of votes, but more compared to another candidate.

Signing a social contract between the state power, the most important political parties, public organizations, and sometimes representatives of various parts of the state (in federations, in countries with autonomous entities) is of great importance for the legitimization of state power. 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 Agreement on Public Accord, defining measures of state power, 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 agreement. In 1995, a constitutional treaty between parliament and the president was signed in Ukraine. It is designed to reduce friction between the branches of government and thereby give it greater legitimacy in the assessments of the population.

In recent years, paradoxically, the role of the opposition has been increasingly used to legitimize political power. We have already mentioned the "round tables" in post-socialist countries, at which new rules for organizing state life were worked out. In the Portuguese Constitution of 1976, for the first time, it was said about the role of the political opposition; in Great Britain, the leader of the parliamentary opposition since 1937 receives a salary from the treasury in the amount of a cabinet minister. The Colombian Constitution of 1991 contains a whole chapter on the rights of the political opposition (the right to reply in the media, the right to access all official documents, etc.). The Brazilian Constitution of 1988 introduces the leader of the opposition, along with some senior officials, into the Council of the Republic under the President. The opposition leader appoints a certain number of senators in Jamaica and some other countries. The institutionalization of the opposition strengthens the stability of state power.

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

Legalization of state power - it is a legal proclamation and consolidation of the legality of its origin (establishment), organization and activity. First, its origin must be legal. Usurpation, seizure of state power, its appropriation are illegal. Second, the organization of power must be legal. In a modern state, it is established by the constitution, other laws and cannot be implemented without the direct participation of the people (elections, referendum, etc.), without representative bodies, parliaments, etc. Thirdly, the sphere of authority of the state power, the range of relations that the state power has the right and can regulate, must be lawful.

Legalization of state bodies authorities, the procedure for their creation, activities are also carried out by other legal acts: laws (for example, laws on the elections of the State Duma and the President of the Russian Federation), presidential decrees (for example, decrees of the President of the Russian Federation approved provisions on the Ministry of Internal Affairs of the Russian Federation, the Ministry of Justice of the Russian Federation, etc. .), government decisions, decisions of constitutional control bodies.

The legalization of state power, the justification of power, the right to govern the state is rooted in legal acts and can, therefore, under certain conditions, be only external legalization, which legally enshrines anti-popular, anti-democratic, even terrorist state power. Such were the legal acts of Hitlerite Germany, proclaiming the undivided power of the Fuhrer ...

Violation of the principle of legality (legal norms) implies legal responsibility of state bodies and officials - political (resignation of the government, impeachment of the president), criminal (being brought to trial for illegal use of state power in the performance of official duties), civil (compensation for damage caused to the state, legal and individuals with illegal use of state power).

Legitimacy- this state is not legal, but factual, not necessarily formal, but more often informal. Legitimation of state power - these are the processes and phenomena through which it acquires the property of legitimacy, expressing correctness, justification, justice, moral "legality", its compliance with universal human values, compliance of the power and its activities with certain mental attitudes, the dodges of society and people. Legitimate state power -) power corresponding to the ideas of the people of a given country about a clear state power.

Legitimation of state power finds its expression in the support of this power by the population, as evidenced by the results of voting in the presidential and parliamentary elections, the results of the referendum, mass demonstrations in support of the government, which, for example, is threatened by reactionary forces, approval of draft decisions proposed by public authorities at national or local discussions.

It is customary to distinguish between the main 3 forms - traditional, charismatic and rational legitimation.

Traditional legitimation associated with customs, sometimes with the special role of religion, with personal, tribal, class dependence. Charismatic legitimation due to the special qualities of outstanding personalities. These qualities may include natural ability, prophetic gift, fortitude, and words. This is also facilitated by the personality cult being created around the "leader". Rational legitimation based on reason: the population supports or rejects state power, guided by their own assessment of this power. The basis of rational legitimation is the practical activities of state power, the work of state bodies for the benefit of the population.

Many of the turning points of recent years in Russia (the confrontation between the legislative and executive powers, the 1994 Agreement on Public Accord, the ambiguous attitude to the 1994-1995 Chechen war, etc.) sharply raise the question of state power, its legality and legitimacy in society. that is, its legal validity, on the one hand, and justice, recognition, and support for it by the population, on the other. The severity of the problem is aggravated by the conditions for the formation of nomenklatura-mafia capitalism in some spheres, the indivisibility in some cases of commercial, administrative, and even criminal structures, opposition from the local nomenklatura, federal authorities, frequent incompetence of the latter, authoritarian features of the federal constitution and some others, including number of personal factors. There is also a theoretical ambiguity: in the works of lawyers, political scientists, political figures, the terms "legalization" and "legitimation" are often used in incorrect meanings.

Legalization and legitimation: general and specific

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 IV-III centuries. BC NS. were used by the school of Chinese legists in a dispute with the Confucians, who demanded such behavior that would correspond to 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, and supporters of the "legitimate monarchy" of the Bourbons referred to it in modern times, opposing the "usurper" Napoleon.

In modern conditions of legalization of state power as a legal concept means the establishment, recognition, support of a given power by law, above all by the constitution, the reliance of power on the law. However, firstly, constitutions and laws can be adopted, changed, abolished in various ways. The military and revolutionary councils created as a result of military coups in many countries of Asia, Africa, Latin America decreed the abolition (often suspension) of constitutions and often proclaimed new interim constitutions without any special procedures. In fact, in Iraq, such an interim constitution remains in force from 1970 to the present, in the UAE, the interim constitution adopted by the emirs - from 1971. In some countries, constitutions were replaced by institutional acts (Brazil), proclamations (Ethiopia). Monarchs single-handedly "bestowed" constitutions "on their faithful people" (Nepal, Saudi Arabia, etc.). In Russia, in 1993, the 1978 Constitution (as amended) was suspended by a presidential decree. Secondly, sometimes constitutions and laws adopted in accordance with established procedures, in their content, legalized an openly dictatorial, anti-popular government, a totalitarian system. Such were the constitutional acts of fascist Germany, the racist legislation of South Africa (before the adoption of the interim 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 legislative, executive bodies, courts are the organs of this party. The Constitutions of Russia and the USSR, adopted during the Soviet system and proclaiming that power belonged to the working people, in fact legalized the totalitarian and even at times terrorist regime.

Of course, in the conditions of authoritarian and totalitarian regimes, constitutions can be adopted in outwardly democratic ways (by the Constituent Assembly, the Supreme Soviet in the USSR in 1977, the referendum in Cuba in 1976), they can contain democratic provisions, the rights of citizens (in the Constitution of the USSR of 1936 a wide range of socio-economic rights has been entrenched), etc. But these moments need to be assessed only in conjunction with reality. Thus, the very elections of the parliament adopting the constitution are not free under the conditions of a totalitarian regime, and phrases about democracy serve as a cover for the true situation. Thus, if the democratic procedures for adopting a constitution, other acts of constitutional significance are violated, if such procedures are inconsistent with the people's ability to exercise constituent power when adopting a fundamental law, if laws contradict the general humane values of mankind, 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 notion of legitimation of state power seems to be more complicated. Legitimus also means legal, legalized, but this concept is not legal, but factual, although legal elements may be an integral part of it. In essence, the Confucians proceeded from this in their dispute with the aforementioned legists, it was meant by the supporters of both secular and spiritual authorities, interpreting the "will of God" in different ways. The modern meaning of this concept is associated with the research of political scientists, primarily the German scientist Max Weber (1864-1920).

Legitimation often has nothing to do with the law, and sometimes even contradicts it. "This process is not necessarily formal and even most often informal, through which state power acquires the property of legitimacy, that is, a state that expresses the correctness, justification, expediency, legality and other aspects of the conformity of a particular state power to the attitudes, expectations of the individual, social and other collectives The recognition of state power and its actions as legitimate is formed on the basis of sensory perception, experience, rational assessment. It is not based 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 incentives, internal incentives. "The legitimization of state power is not associated with the issuance of a law, the adoption of a constitution (although this may also be part of the process of legitimation), but with a complex of feelings and internal attitudes of people, with the ideas of various strata of the population about the observance by state authorities; its organs of social justice, human rights, their protection.

The illegitimate government relies on violence, other forms of coercion, including mental influence, but legitimation cannot be imposed on people from the outside, for example, by force of arms or by the opening of a "good" constitution by the monarch to his people. It is created by people's devotion to a certain social order (sometimes to a certain personality), which expresses the immutable values of being. At the heart of this kind of devotion is people's belief that their benefits depend on

from the preservation and support of this order, given to state power, the conviction that. That they express the interests of the people. Therefore, the legitimization of state power is always associated with the interests of people, various segments of the population. And since the interests and needs of various groups, due to limited resources \ resources and other circumstances, can be satisfied only partially or only the needs of some groups can be fully satisfied, the legitimization 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 universal "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 compulsory compensation, the amount of which in controversial cases is established by the court), and extremely illegitimate, not only from the point of view of the owners of the means of production , but also other segments of the population. In the views of the lumpen proletariat, however, general expropriation has the highest degree of legitimacy. There are many other examples of different interests of certain strata of the population and their unequal, often opposite attitude to the measures of state power and to the power itself. Therefore, its legitimation is not associated with the approval of the entire society (this is an extremely rare option), but with the acceptance by the majority of the population, while respecting and protecting the rights of the minority. It is this, and not the dictatorship of the class, that makes state power legitimate. - Legitimation of state power gives it the necessary authority in society. The majority of the population voluntarily and consciously submits to it, to the legal requirements of its bodies and representatives, which gives it stability, stability, the necessary degree of freedom in the implementation of state policy. The higher the level of legitimation of state power, the wider the possibilities for leading society with minimal "power" costs and costs of "managerial energy", with more freedom for self-regulation of social processes. At the same time, the legitimate government has the right and is obliged, in the interests of society, to apply coercive measures provided for by law, if other methods of suppressing antisocial actions do not yield results.

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 adopted by it (although this is important), but by practical activity, by the way it resolves the fundamental issues of the life of society and each individual. The population sees the difference between the slogans of reforms and democracy, on the one hand, and authoritarian methods 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 polls of the population, there is an erosion of the legitimacy of state power in Russia (the legitimacy was high after August 1991) while maintaining its legalization: all the highest bodies of the state were created according to the Constitution of 1993 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 the respondents trust the President of Russia, 78% do not trust, 10% both trust and do not trust, 6% found it difficult to answer. Of course, survey data does not always give the correct picture, but this data should not be underestimated.

It has already been said above that the legitimation of state power can and, as a rule, includes its legalization. But legitimation is in contradiction 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, there is either no legitimation (for example, the population has a negative attitude to the totalitarian order established by the authorities), or in the course of revolutionary events, national liberation movements, another legitimation takes place. Anti-state, insurgent, central state power that has developed in the liberated areas, which. then becomes state power. This is how events developed in China, Vietnam, Laos, Angola, Mozambique. Guinea-Bissau and some other countries. "

Like the above-mentioned false legalization, false legitimation is also possible, when, under the influence of propaganda, inciting nationalist sentiments, the use of personal charisma and other methods (including the prohibition of the opposition and the free press, as a result of which the population does not have proper information)! a significant part, if not 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 ones) are very complex. In scientific literature, including foreign ones, they are not sufficiently developed. Legitimation is usually associated with a legal analysis of the preparation and adoption of a constitution, with a study of decisions of constitutional courts and other bodies of constitutional control, an analysis of election and referendum data ... Less attention is paid to the content of constitutional acts, the nature of the activities of state power, comparison of programs of political parties and policies held by those in power. Scientific analysis of programs in comparison with the actions of various high-ranking officials is quite rare.

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 there are frequent falsifications, and the second does not always reflect the true mood of the people, since these results are caused by transient factors. In many developing countries with a one-party system (Ghana, Burma, Algeria, etc.), in the parliamentary and presidential elections, the ruling party received an overwhelming majority of votes, but this same population remained completely indifferent to the military coups that overthrew this government. At the 1991 referendum on the preservation of the USSR, the majority of voters gave an affirmative answer, but a few months later the USSR collapsed with the indifference of a significant part of the same voters. Thus, the formal assessments used in legalization require a deep and comprehensive analysis when determining the legitimacy of state power.

Constitution as a tool for legalizing state power

As already noted, the legalization of state power is associated with legal procedures, which are very diverse. In this article, we will focus only on the role of the constitution as a form of legalization of state power, because the democratic method of preparing and adopting a 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 the constitution itself, as a rule, testifies to a certain stability of state power, the methods of preparing and adopting the basic law do not always correspond to the requirements of genuine legalization.

The preparation of the draft constitution is carried out in different ways. In rare cases, the project is created by the Constituent Assembly itself, specially elected for the adoption of the constitution (Italy during the preparation of the Constitution of 1947, India during the development of the Constitution of 1950) or parliament (Constitution of Sri Lanka, 1978).

In all 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 state bodies appointed by decrees of the President of the Russian Federation, functionaries of political parties, entrepreneurs, federal subjects, and others assigned by them. In many post-socialist countries (Bulgaria, Hungary, Poland , Czechoslovakia, etc.) in the development of new principles of the constitution or amendments to the previous constitutions (new edition), "round tables", "civil assemblies" of representatives of state bodies, various parties, trade unions and social movements took part.

In most countries, the draft of a new constitution is developed by a constitutional commission created by a representative body, the president, the government Draft Constitution of France 1958 (in addition to this text, the French Constitution includes two more documents - the Declaration of the Rights of Man and Citizen of 1789, and the preamble to the Constitution of 1946) was drafted by a constitutional commission ... appointed by the government, and put to a referendum, bypassing parliament. V; Germany, the draft of the current Constitution of 1949 was prepared by the parliamentary council, which consisted of representatives of regional parliaments (Landtags of the Lands), and approved by the command of the Western occupation forces. In Algeria, a referendum draft of the 1989 Constitution 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 independence was granted to former colonial countries, draft constitutions were prepared by the Ministry of Colonies (Nigeria in 1964) by local authorities with the participation of councilors from the metropolis (Madagascar in 1960), at round tables attended by representatives of parties or national liberation movements, and meetings of high-ranking officials of the metropolis (Zimbabwe in 1979).

In the countries of totalitarian socialism, a different procedure for preparing the project was used. It was developed at 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 presented it for adoption by parliament or for a referendum. In the socialist countries, as well as in the so-called socialist-oriented countries (South Yemen, Ethiopia, etc.), the draft was submitted for public discussion before its adoption. Usually there were many meetings, the discussion was 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 the discussion by the people, significant, and in some cases very important, amendments were made to the draft.

o From the point of view of legalization of state power, the stage of discussion is not essential (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 draft can be of great importance. This process instills in the minds of the population participation in the preparation of the basic law, the conviction that the order established by the constitution reflects their will.

To the greatest extent, the issue of the legalization of state power is connected not with the preparation of the draft, but with the procedures for adopting the constitution and its content. One of the most democratic methods is the adoption of the constitution by the 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, the Constitutional Assemblies in recent years adopted the constitutions of Brazil in 1988, Namibia 1990, Bulgaria 1991. Colombia 1991, Cambodia 1993, Peru 1993, etc. However, the Constituent Assembly is not always, as noted, formed by elections, and 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, which sometimes amended the text (Ghana, Nigeria, Turkey, etc.). All this reduces the degree of legalization of state power, 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 the current legislative work. This is how the Constitution of the USSR of 1977 was adopted, the Netherlands 1983 of 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 usual parliaments. This transformation is intended to increase the degree of legalization of state power,

More and more often constitutions in modern conditions are adopted by way of a referendum. In theory, direct voting by voters provides the greatest legalization of state power. This is how the Constitutions of France 1958, Egypt 1971, Cuba 1976, Fnllipin 1967, Russia 1993 were adopted. In practice, however, the referendum can be used in different ways. Without a preliminary discussion of the draft in parliament, the population may find it difficult for voters to understand such a complex document as the 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 "black colonels"). Sometimes the constitutions of totalitarian regimes (Burma 1974, Ethiopia 1987, etc.) after a referendum were approved (or confirmed) by the parliaments elected on the basis of these constitutions. Formally, such a double legalization process reliably legitimized state power, but its content did not correspond to democratic principles.

Some ways of adopting constitutions do not even formally entail the legalization of state power. These are the constitutional acts of the military regimes, the constitutions approved by the 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 Congo, Angola, Mozambique, the constitutions of the monarch or metropolis!)

The legalization of state power is inextricably linked with the content of constitutions. Reactionary constitutions, adopted even with the observance of the necessary procedures, can in fact only create pseudo-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 in the constitutions provisions that contradict the general democratic principles developed by mankind and enshrined in fundamental international legal acts (UN Charter 1945, Covenants on human rights 1966, etc.). The constitutions of many countries recognize that such principles take precedence over the domestic law of the country. Constitutional provisions that violate human rights (for example, in South Africa before 1994), proclaiming the only permissible ideology (for example, mobutism under the 1980 Zaire Constitution), contrary to the sovereignty of the people (provisions of the 1976 Algerian Constitution on the political power of the only permitted party - Front of National Liberation), etc., exclude the true legalization of state power, since they contradict generally accepted international norms and principles. They are at the same time not legitimate, because they contradict the democratic consciousness of the peoples.

Forms of legitimation of state power

There is no "Chinese wall" 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 prerequisites for a lasting legalization of state power. At the same time, legitimation plays an important role in society, for 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 personalities. In modern conditions, representatives of an authoritarian and totalitarian government, but by its nature, often arrange meetings and conferences with prominent representatives of the intelligentsia, for influential journalists they organize visits to various regions of the country, meetings with collectives of enterprises, etc. The purpose of these events is to find support, first of all by actions, but also by moods and feelings.

Traditional legitimation is domination based on traditional authority, rooted in respect for customs, belief in their continuity, in the fact that the government "expresses the spirit of the people", corresponds to the 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, the structure of state bodies. In those Muslim countries where there are parliaments, they are sometimes created in accordance with the traditions of the ash-shura (meetings under the monarch) as consultative parliaments.Traditions determine decision-making in the Indonesian parliament mainly by consensus.Together with religious dogmas, traditions largely regulate state life in a number of developing countries.Traditions are important for legitimizing state authorities in countries where the system of Anglo-Saxon law is in force. Judicial precedent is one of the expressions of the power of tradition. The British monarch is traditionally the head of the Church of England (part of his title - Defender of the Faith). A similar situation occurs in some other European countries, where one from churches declared state (for example, Lutheranism in Denmark).

Charismatic legitimation is domination based on belief in the personal talents of the leader (less often - of a narrow ruling group), in the exclusive mission of the leader. Charismatic legitimation is not associated with rational judgments, but relies on a gamut of feelings, it is sensory in nature legitimation. Charisma is usually individual. She will create a special image. In the past, it was a belief in a "good tsar" capable of delivering 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 widespread in the countries of totalitarian socialism, being associated with a certain ideology (Mao Tse Tung, Kim Il Sung, Ho Chi Minh, etc.) In a relatively liberal India, an occupation is associated with charisma the most important state post of prime minister by representatives of the Gandhi family - Nehru (father. then daughter, and after her murder - son). The same generation has stood 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 power in a special uniform, the coronation of a monarch. Rational legitimation of state power is based on a rational assessment associated with the formation of a belief in the rationality of the existing order, laws, instilled in a democratic society to govern it. This type of legitimation is one of the main ones in modern conditions of a democratic rule of law.

Rational legitimation assumes that the population supports (or rejects) the 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 state authorities, officials, especially higher officials, serves 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, instilled in the population the conviction of 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 large extent associated with his charisma as the leader of the Resistance in the fight against the fascist invaders, the power of V.I. Lenin and to an even greater extent I.V. Stalin and Russia was consecrated by ideological factors, etc.

Upper chambers of parliaments are also often indirectly elected (France) and sometimes appointed (Canada). This, of course, does not call into question the legitimation of these bodies, we are only talking about the forms of legitimation established by the constitutions, especially since during direct elections, especially with a majority system of a relative majority, distortion of the will of voters is possible. In India, the Indian National Congress Party has been in power for several decades, with a majority in parliament, but they never received a majority of the popular vote in the country. The same facts took place in Great Britain: the party that received fewer votes in the country had more seats in parliament. In Hungary in 1994, in the parliamentary elections, the Hungarian Socialist Party received 33% of the popular vote, but 54% of the seats in parliament.

Voting in a referendum according to the proposed formula can be of great importance for the legitimization of state Power, and a referendum is decisive or consultative, but in any case, if voters approve the constitution or speak out in support of government measures, the referendum legitimizes power. The strength of the referendum lies in the fact that usually, but 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 South African Constitution, 2/3 of the votes are required), while elections in a number of countries are recognized as valid with a turnout of 25% of voters (France, Russia) and a majoritarian system of a relative majority (Great Britain, USA, India, etc.) is allowed, in which one can be elected by receiving an insignificant majority of votes, but more compared to another candidate.

(Signing a social contract between the state power, the most important political parties, public organizations, sometimes representatives of various parts of the state (in federations, in countries with autonomous entities) is important for the legitimization of state power. After the fall of the Franco regime, such an agreement was signed in Spain and in many respects contributed to the stabilization of the situation in the country.In 1994, the Agreement on Public Accord, defining measures of state power, 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 agreement. a constitutional treaty between the parliament and the president was signed in Ukraine, which aims to reduce friction between the branches of government and thereby give it greater legitimacy in the assessments of the population

In recent years, paradoxically, the role of the opposition has been increasingly used to legitimize political power. We have already mentioned the "round tables" in post-socialist countries, at which new rules for organizing state life were worked out. In the Portuguese Constitution of 1976, for the first time, it was said about the role of the political opposition; in Great Britain, the leader of the parliamentary opposition since 1937 receives a salary from the treasury in the amount of a cabinet minister. The Colombian Constitution of 1991 contains a whole chapter on the rights of the political opposition (the right to a reply in the media, the right of access to all official documents, etc.). The Brazilian Constitution of 1988 introduces the leader of the opposition, along with some senior officials, into the Council of the Republic under the President. The opposition leader appoints a certain number of senators in Jamaica and some other countries. The institutionalization of the opposition strengthens the stability of state power.

Any normative legal acts, including laws, regulate public relations, making them permissible or transferring them to the category of offenses. Only a body that has passed the process of legitimizing power can determine for them such powers. This article will talk about what this phenomenon means and why it is, in fact, necessary, and whether it is necessary at all.

What does this concept mean?

How to explain the concept of "legitimation of power"? In professional language, this phenomenon fixes the legitimacy of the emergence of any formation or action. Legalization is provided by the main law of the country - the Constitution. It is this normative legal act that is the basis for the formation of a social and state system. It determines the structure of organs, as well as the methods in relation to which their activity is built. The constitution facilitates the legitimization of political power. That is, both the state body itself and its activities have a legitimate basis.

In addition to the Constitution, there are a number of other normative legal acts that make political power and its powers legalized. These include the following official written documents:

laws that can regulate the work of the president, parliament, judiciary and other bodies;
presidential decrees;
government regulations;
court decisions.

What is the essence of this phenomenon?

The legitimation of power not only as a practical process, but also as a theoretical concept is very often found in modern political scientific works. It is the subject of controversy and discussion in various circles. In general, the majority give it the following characteristic: formal legality, which has legal support in the form of a special normative legal act. But in a similar way, the legitimation of political power is defined in political and legal terms.

However, this phenomenon is rather ambiguous. It also has a psychological connotation. In the minds of people, there is a principle that considers everything that is enshrined in power structures as necessarily positive. That is, a person agrees with the legitimacy of the behavior of state bodies, regardless of whether it is such or not. That is why the population feels the strength and superiority of government structures and is ready to virtually voluntarily obey any order. Thus, such a connection that has been established between the inhabitants of the state and its rulers is defined by psychology as the legalization and legitimation of state power. People on a subconscious level recognize any areas of government activity as fair and legitimate. So, in a sense, legitimacy denotes the respectful attitude and authority of the government among the citizens of the state. This suggests that it is not legally sufficient to recognize the power, it is also important to establish contact with the people by conforming to value concepts and guidelines.

How is legitimacy reflected in the position in society?

It is believed that the legitimacy and legitimation of power contribute to the stabilization of society. People are re-evaluating their priorities. It is these concepts that guarantee further development and progress within the state. They are so strong in their action and influence on popular sentiment that the comprehensive rehabilitation of the economic and political sector simply cannot compete.

The legitimacy and legitimation of political power determine and fix a fairly wide range of sources of origin and emerging forms. At the moment, political science identifies three subjects in relation to which these processes are carried out. These include:

civil society;
power structures;
foreign policy forces.

It is the moods of the first subject that determine the role of government in the life of society. Thanks to the approving look of the majority of the country's residents, one can speak of prosperity and a stable situation both in the country and in the governing apparatus itself. To form a positive image of the ruling elite, it needs to show itself positively in solving any social problems. Only attention and interest in the life of ordinary people can arouse support from citizens. The recognition of the eligibility of the government is attributed to various factors. These include relations between different segments of the population, ideological and political views, mentality, historically established traditions and moral values. The correct complex impact on the social mechanism can ensure the authority of the governing apparatus among the masses.

What is traditional legitimacy?

For the first time, the concept of "legitimation of state power" was identified and formulated by Max Weber. It was this German sociologist who put forward the idea that the reasons for this phenomenon are not always the same. This allows us to conclude about the heterogeneity of this process. Weber also identified (according to a number of classification features) three types of the phenomenon of legalization. The main reason for this division is the motivation for submission. This identification of species is relevant today and is recognized in political science.

The first type is called traditional legitimation of power. This is a classic version of legitimizing the actions of the state apparatus, since the action is conditioned by the need to subordinate the people to power. As a result of established customs, people develop a habit, a need for submission to political institutions.

This type of legitimation is inherent in powers with a hereditary type of government, that is, where the monarch is at the head. This is due to the values developed in the course of historical events. The personality in the person of the ruler has an unwavering and undeniable authority. The image of the monarch defines all his actions as lawful and just. The advantage of this type of statehood is a high level of stability and sustainability of society. At this stage, there is practically no such type of legitimation in its pure form. He acts, as a rule, combined. The traditional approach is backed up by modern social institutions, apparatuses and "clerical domination".

What is rational legitimacy?

Also, the legitimation of power can have a more reasonable basis. In this case, the determining factors are not emotions and beliefs, but common sense. Rational legitimacy, or in other words, democratic, is formed through the recognition by the masses of the correctness of the decisions made by the state apparatus. Only, unlike the previous type, people are led not by blind beliefs directed in favor of their leader, but by a real understanding of affairs. Power structures organize a system consisting of generally accepted rules of behavior. The principle of its operation is to realize the goals of the government through the implementation of these rules by the people.

The basis of all foundations in such a state is law. The legitimization of this type of power is typical for a society with a more complex structural formation. It is according to the law that power is exercised on a legal basis. This determines the popular gratitude and authority not of a specifically identified person who has concentrated power in his hands, but of the entire structure of the state apparatus.

What determines legitimacy based on faith in a leader?

The charismatic way of legalization (legitimation of power) is when the recognition of any actions of the ruling structure is conditioned by the personal qualities of the leader. Outstanding personalities have always been able to establish contact with the masses. The general image of the ruler is transferred to the entire existing system of power. Most often, in this case, people unconditionally believe in the words and actions of their ideological inspirer. The strong character of a person forms the emotional uplift among the population. A leader can suppress unrest in society with just one word, or, conversely, cause active movements.

If you look into history, you can see that, according to the method of legitimization, the authorities single out leadership as the main method of manipulating the people during the period of revolutionary sentiments. At this time, it is quite easy to influence citizens, since an emotional outburst determines the instability of the psychology of society. People, as a rule, do not trust the past political order. Principles, ideology, norms and values are changing. This period is a very fertile ground for political games. The emergence of a new charismatic leader will certainly instill in people confidence in a bright future, which raises his authority in the eyes of the people.

Various periods of history have been saturated with such leaders. Among them are a huge number of historical figures, leaders, heroes and prophets. But more often than not, such an image is created artificially. Basically, the basis for its creation is the active work of the media. People are simply being forced to have a leader. This is very easy, since the people have practically nothing to rely on. The values laid down in the course of history are betrayed and broken, there are no existing results yet. Innovations do not bear fruit, but only force them to tighten their belts even tighter. But everyone around them only instills faith in the changes that the new ruler will provide.

According to Weber himself, it is this type that is defined as absolute legitimacy. He explained this by the fact that the personal qualities of a leader make him a superman. A similar phenomenon can be tolerated in democratic states. But in the classical version, this is a process inherent in a totalitarian and authoritarian regime.

What other notions of legitimacy exist?

In the course of the emergence of new political processes in history, methods of legitimizing power were also formed, which had a completely different character than that defined by Weber. Newly emerging concepts suggested that this concept could have a broader meaning. That is, not only power itself as a substance, but also a set of political institutions became the object of legitimacy.

The American representative of political science S. Lipset tried to form a new definition of this phenomenon. He characterized the legitimacy of power as the belief of the masses that the state apparatus acts fairly, lawfully and in the interests of society. However, the state apparatus itself was understood as political institutions. Another colleague, D. Easton, gave a definition of "legitimacy" from the standpoint of moral and ethical values. That is, the government itself must act in such a way that it gives results that correspond to the idea of the people themselves about honesty, correctness and justice. In this case, the political scientist implies the following ways of legitimizing power: ideology, political regime and political leadership. With regard to these sources, a certain classification feature can also be distinguished. According to the method of legitimization, the authorities are distinguished:

ideological;
structural;
personal.

How does D. Easton classify legitimacy?

The types of power legitimation are presented in three categories. The first is called ideological. The correctness of decisions made by the state apparatus is due to the belief in a stable set of values. The strength of legitimacy in this case is determined by the support of the popular masses. That is, the more citizens share the ideology and course of the government, the more legitimate and legitimate power is considered.

The second type is structural legitimacy. It bears a resemblance to Weber's rational legitimacy. Here, too, people are ruled not by feelings and beliefs, but by reason. The people understand and approve of the correct distribution of responsibilities in the structure of government. The way a society lives is subject to a system based on legal norms.

Similarly, you can draw an analogy between other species. For example, such types of leadership in the way of legitimizing power, as charismatic and personal, have a common essence. Both are based on an unquestioning belief in the authority of the leader. The level of legitimacy of his actions is determined by the individual abilities and the ability of the ruler to best dispose of his personal qualities. The difference between the concepts of Weber and Easton is that, according to the former, a truly charismatic person can be a leader. Even if its qualities are too exaggerated by the media, they are present in any case. It is impossible to reach such a level without possessing anything like this. According to Easton's theory, everything is quite the opposite - the ruler can be a person who does not have any specific abilities. There are quite a few examples in history when not outstanding personalities receive the active support of wide sections of the population.

What is D. Bethham's theory?

D. Betham also singled out certain types of legitimization of power. His concept, as it were, sums up what was said by both D. Easton and M. Weber. But, in his opinion, this process is carried out in three stages:

The first level is the formation of a set of rules according to which a person can receive and send power.
The second level consists of persuading or coercing both the state apparatus and the popular masses. The main direction in relation to which further manipulations are built are the principles of the functioning of the political system.
At the third stage, citizens who are convinced of the legitimacy and fairness of the ruling structures actively agree with the actions of the government.

D. Betham believed that the absoluteness of this process can be expressed in the established interaction between the meaning of the political game, positive responses to its content and the formed political system. The latter expresses a voluntary desire to preserve it.

What does delegitimization mean?

The opposite, but no less important, is the notion of delegitimization. The action designated by this term is the final stage in the life cycle of power and denotes the loss of trust and deprivation of influence on society.

This process arises for completely different reasons. It can be preceded by either one event or a combination of them. Problems with faith in government also arise when there is discord in the state apparatus itself. As they say, the fish rots from the head, and if the authorities cannot divide the sphere of interests, then the end of legitimacy will also come soon. The cause of the difficulties that have arisen may be the contradiction between democratic methods of influencing society and forceful methods. An attempt to aggressively influence the media may result in the loss of support from the masses. Also, unrest among the population easily occurs in the absence of protective mechanisms. A high level of corruption and bureaucracy can have an additional impact on the emergence of the process of delegitimization. Phenomena such as nationalism, separatism and racial strife are factors that ensure the shaking of the positions of the ruling structures.

In political science, even such a concept as a "crisis of legitimacy" is defined. It means a period of time during which society loses faith in the honesty, fairness and lawfulness of actions committed by government agencies within the limits of their authority. The political system is simply not perceived by the people. If the hopes placed on the state apparatus by the citizens of the country are not justified over time, then one should not expect support from them either.

To overcome the crisis, the government needs to have constant contact with the population. Moreover, it is worth taking into account the opinion of all sectors of society. For this, it is necessary to carry out timely information on the goals and directions of the authorities' activities. It is necessary to demonstrate to people that any issues can be resolved in a lawful way, without violence. The state structures themselves must be organized. The political game must be played without infringing on the rights of any of its participants. The society needs to carry out constant propaganda of democratic values.

Legalization of state power - as a legal concept means the establishment, recognition, support of a given power by law, above all by the constitution, the reliance of power on the law.

The legitimation of state power is the acceptance of power by the population of the country, the recognition of its right to manage social processes, and the readiness to obey it. Legitimation cannot be universal, since there will always be certain social strata in the country who are dissatisfied with the existing government. Legitimation cannot be imposed, since it is associated with a complex of feelings and internal attitudes of people, with the ideas of various strata of the population about the observance of social justice, human rights by the state authorities, and their protection.

39. The concept of the state apparatus (GA).

GA, covering all state bodies, directly personifies the state, being its material embodiment. Outside and without GA, there is and cannot be a state. It is customary to use the concept of GA in two senses - broad and narrow. In a narrow sense, GA is understood as the apparatus of state administration. It is in this meaning as a set of executive, administrative, management bodies that the term "GA" is used in the science of administrative law. In a broad sense, GA is the totality of all state bodies (GA = mechanism of the state). In TGP, it is usually used in a broad sense (unless otherwise specified). The concept of GA is revealed through characteristic features that make it possible to distinguish it both from non-state structures in the political system of society, and from individual bodies:

1. GA is a system of state bodies based on the unity of the principles of its organization and activities;

2. a complex structure, reflecting a certain place that various groups of state bodies occupy in it. It is necessary to take into account which system-forming factor in the structure of the GA is enshrined in the constitution. Article 10 of the Code of the Russian Federation is the fundamental principle - the separation of powers. Art. 12 К-и RF: bodies of local self-government are not included in the system of bodies of state power;

3. the functions of the state are carried out with the help of the GA - through the activities of the entire system of state bodies. At the same time, the structure of the GA organs, the emergence, development and content of the activity of GA organs depends on the functions of the state;

4. To ensure the fulfillment of the tasks assigned to it of managing the affairs of society + performing the functions of the state, the GA has the necessary material resources on which certain state bodies rely in their activities. Their peculiarity is that they stand out in GA not as independent parts, but only as “material appendages”. These include: various material values, budgetary funds, property, structures, utility rooms, organizations. But! these do not include local government bodies, political parties, trade unions and other public associations.

That. GA is a system of state bodies permeated with uniform, legally enshrined principles, based on the principle of separation of powers and having the necessary material resources, through which the functions of the state are carried out.

40. Principles of organization and activity of the state apparatus (GA).

These principles are the starting principles, ideas and requirements that underlie the formation, organization and functioning of GA. All principles are divided into: general (refer to the GA as a whole) + private (apply to certain groups of state bodies). The particulars ultimately stem from the general, concretize them in relation to individual parts of the GA. General principles - two groups: enshrined in the Constitution of the Russian Federation and enshrined in the FKZ and the Federal Law.

1st group:

1) The principle of democracy - manifests itself in the democratic organization of the state, the republican form of government, in which the bearer of sovereignty and the only source of power in the Russian Federation is its multinational people.

2) The principle of humanism - the Russian Federation is a social state, the activity of the GA which is aimed at satisfying the spiritual and material needs of the individual, ensuring the well-being of man and society.

3) The principle of separation of powers - state power is exercised on the basis of division into legislative, executive and judicial, provides for the independence of bodies belonging to different branches of government. This principle is a systematizing factor of GA.

4) The principle of federalism - the Russian Federation consists of (formally) equal subjects, the equality of which is manifested both in relations with federal bodies and with bodies of the subjects of the Russian Federation. K-I RF, federal and other treaties - delimitation of the subjects of jurisdiction and powers between the RF and the constituent entities of the RF.

5) The principle of legality - the requirement of universal observance and application of the laws of the Russian Federation. Requirements in relation to GA: rule of law and direct action of constitutionally enshrined human and civil rights and freedoms; implementation of all state and power functions solely on the basis of laws and the corresponding subordinate legal acts; suppression of any violations of the law, as well as the inevitability of responsibility for their commission.

2nd group:

The general principles considered, expressed in the K-and the RF, receive their reinforcement, concretization and development in the second group of principles enshrined in the FKZ and FZ. The second group received a comprehensive expression in the Federal Law "On the Fundamentals of the Civil Service of the Russian Federation":

1) the supremacy of the K-i RF and the Federal Law over other n / a acts;

2) the priority of human and civil rights and freedoms, their direct effect; the duty of civil servants to recognize, observe and protect the rights and freedoms of man and citizen;

3) equal access of citizens of the Russian Federation to public service in accordance with their abilities and professional training;

4) the obligation for civil servants of decisions of higher state bodies and leaders within the limits of their authority and on the basis of the legislation of the Russian Federation;

5) professionalism and competence of civil servants;

6) publicity in the implementation of public service;

7) responsibility of civil servants for the decisions they make, failure to fulfill or improper fulfillment of their official duties; and etc.

The listed principles of the formation and activity of the GA as a system of state bodies give the GA necessary for its successful functioning purposefulness, unity and integrity.

41. The concept of bodies of the state apparatus (RSA).

Regional State Administration is a part of the state apparatus (GA), its main cell.

Signs:

1. Powerful powers - legally enshrined opportunities to exercise state power, make legally significant decisions on behalf of the state and ensure their implementation - the most important feature;

2. economic and organizational isolation and independence;

3. fulfillment, in accordance with its competence, of certain functions - functions of the state;

4. possession of the necessary material resources - various kinds of material values, organizations, enterprises, institutions;

5. the physical embodiment of the Regional State Administration - civil servants.

The considered signs in their totality reveal the concept of OGA, make it possible to formulate its definition:

Regional State Administration- this is a legally formalized, organizational and economically separate part of the Civil Aviation, consisting of civil servants, endowed with state and power powers and the necessary material means to carry out, within its competence, certain tasks and functions of the state.

The heterogeneity and complexity of the GA's activities entails a large number of CAs.

42. Classification of bodies of the state apparatus (RSA)

Classification:

By legal source of legitimacy -

1) bodies established by the Constitution of the Russian Federation, Federal Law, constitutions and charters of the constituent entities of the Russian Federation (President, Government, etc.) - primary bodies and

2) bodies established in accordance with the procedure established by law to ensure the exercise of the powers of primary bodies - secondary bodies;

Based on the principle of separation of powers:

1) legislative,

2) executive,

By action in space:

1) federal,

2) bodies of the constituent entities of the Russian Federation;

By duration:

1) constant,

2) temporary;

By the principle of personal composition:

1) collective,

2) submitted by one person.

43. State (D) and civil society (CS).

The genesis of GO is Aristotle's "Politics", Plato's "State", and other ancient Greek teachings. Continuation - the Renaissance (Grotius, T. Hobbes, J. Locke, C. Montesquieu, J. J. Rousseau), but the term GO itself has been used only since the 18th century (before that it was not used, because G = society) ... However, even later, the difference between these concepts was not made: the state is a form of organization of society. Already only Kant, Hegel, Marx distinguished them. The institution of citizenship arose and received political and legal recognition only in the bourgeois era under the influence of natural human rights and the need for their legal protection. But this is only the formal side of the issue. In essence, the term GO has acquired its special content in the literature and in its modern interpretation expresses a certain type of society, its socio-economic, political and legal nature, the degree of development, completeness. Civil society is understood as a society that meets a number of criteria developed by history. This is a higher stage in the development of a social community, a measure of its maturity, rationality, and justice.

Civil defense principles:

1. Economic freedom, variety of forms of ownership, market relations;

2. Recognition and protection of natural human and civil rights;

3. Legitimacy and democratic nature of the government;

4. Equality of all before the law and justice, legal protection of the individual;

5. Legal state based on the principle of separation and interaction of powers;

6. Political and ideological pluralism, the presence of legal opposition;

7. Freedom of speech and press, media independence;

8. State interference in the private life of citizens, their mutual duties and responsibilities;

9. Class peace, tailoring and national harmony;

10. Effective social policy.

That. the regulatory role of the state is reduced to a minimum: the protection of law and order, the fight against crime, the creation of normal conditions for owners, the exercise of their rights and freedoms, activity and enterprise. At the same time, the activity of the state itself should proceed in democratic legal forms, aimed at protecting human rights; there should be liberal legislation, soft methods of legal regulation, which is guaranteed by the civil defense. And the obligations of citizens to the state are reduced to abiding by the law and paying taxes. Civil Defense presupposes the denationalization of many aspects of his life, which, however, does not mean that it does not need statehood at all - it is just that the state must find its place in it, abandoning totalitarian methods of legal regulation. GO exists, develops and functions in dialectical unity and contradiction with the state. In their relationship, collisions are possible, but in any case, the state cannot interfere with the private life of people. GO and G should not oppose each other, but interact harmoniously. That. GO is a set of non-state and non-political relations (economic, social, cultural, etc.), which form a special sphere of specific interests of free owners and their associations.

44. The rule of law (PG): concept and principles.

The PG (according to Matuzov and Malko) is an organization of political power that creates conditions for the fullest possible provision of human and civil rights and freedoms, as well as for the most consistent binding through the law of state power in order to prevent abuse. There are 2 main elements in the idea of GHG:

1. Freedom of a person, the fullest guarantee of his rights;

2. Restriction of the rights of state power.

Philosophically, freedom can be defined as the ability of a person to act in accordance with their interests, based on the knowledge of objective necessity. In the PG in relation to a person, it is necessary to create conditions for his legal freedom, a kind of mechanism of legal incentives, which is based on the principle “not prohibited by law, is allowed”. A person as an autonomous subject is free to dispose of his own forces, abilities, property. Law, being a form and measure of freedom, should maximally expand the boundaries of personal limitations. Human rights and GHGs are characterized by common patterns of occurrence and functioning, since they can exist and operate effectively only if they interact. Both phenomena are fundamentally right, although the role of the latter for them is practically directly opposite, but at the same time it is internally one. This testifies to the fact that the connecting link between a person and the state should be precisely law, and the relationship between them should be truly legal. It is in the restriction by the law of the state that the essence of the GHG lies. Here law acts as the antipode of arbitrariness and as a barrier on its way.

GHG principles:

1. The fullest provision of human and civil rights and freedoms;

2. The most consistent binding with the help of the law of political power, the formation of a regime of legal restriction for state structures;

3. Separation of powers;

4. Federalism;

5. Rule of law;

6. Mutual responsibility of the individual and the state;

7. High level of legal awareness and legal culture;

8. The presence of civil society and its control over the implementation of laws by all subjects of law, etc.