Legalization and legitimization of state power. The concept of "legitimacy": what does it mean? The process of legitimization of the highest bodies of state power

Astringent compositions 21.08.2021

Astringent compositions

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. - P.65-73.

Those. its legal validity, on the one hand, and fairness, recognition, support by its population, on the other. The severity of the problem is exacerbated by the conditions for the formation of nomenklatura-mafia capitalism in some areas, the lack of division in some cases of commercial, administrative, and even criminal structures, opposition from the local nomenklatura, the federal government, the frequent incompetence of the latter, the authoritarian features of the federal constitution, and some others, including including personal factors. There is also a theoretical ambiguity: in the works of lawyers, political scientists, politicians, the terms "legalization" and "legitimation" are often used in the wrong sense.

Legalization and legitimation: general and special

The term "legalization" comes from the Latin word "legalis", which means legal. References to legalization as the basis of power and proper behavior already in the 4th-3rd centuries. BC. were used by the Chinese legalist school 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 the secular and spiritual authorities in Western Europe in the Middle Ages; supporters of the “legitimate monarchy” of the Bourbons referred to it in modern times, speaking out against the “usurper” Napoleon.

IN modern conditions legalization of state power as a legal concept means the establishment, recognition, support of this power by law, primarily by the constitution, the reliance of power on the law. However, firstly, constitutions and laws can be adopted, changed, repealed different ways. Military and revolutionary councils created as a result of military coups in many countries of Asia, Africa, and Latin America decreed the abolition (often suspension) of constitutions and often, without any special procedures, proclaimed new provisional constitutions. In fact, in Iraq, such a provisional constitution has been in force since 1970 to the present, in the UAE, the provisional constitution adopted by the emirs has been since 1971. In some countries, constitutions have been replaced by institutional acts (Brazil), proclamations (Ethiopia). Monarchs single-handedly "granted" constitutions to "their faithful people" (Nepal, Saudi Arabia and etc.). In Russia in 1993 the operation of the Constitution of 1978 (as amended) was suspended by presidential decree. Secondly, sometimes constitutions and laws adopted in accordance with established procedures, in their content, legalized openly dictatorial, anti-people power, a totalitarian system. Such were the constitutional acts of fascist Germany, the racist legislation of South Africa (before the adoption of an interim constitution in 1994), the “party-states” of Guinea, or the constitution of African Zaire (there were several), proclaiming that there was a single political institution in the country - the ruling party - movement, and the legislative, executive, courts are the organs of this party. The constitutions of Russia and the USSR, adopted during the Soviet period and proclaiming that power belonged to the working people, actually legalized the totalitarian and even terrorist regime at times.

Of course, under conditions of authoritarian and totalitarian regimes, constitutions can be adopted by outwardly democratic means (by the Constituent Assembly, the Supreme Soviet in the USSR in 1977, a referendum in Cuba in 1976), they can contain democratic provisions, the rights of citizens (in the Constitution of the USSR of 1936 a wide list 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 that adopts 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, if democratic procedures are violated by the adopted constitution, other acts of constitutional significance, if such procedures do not correspond to the ability of the people to exercise constituent power when adopting a fundamental law, if laws contradict the universally human values of mankind, the formal (legal) law does not correspond to law. The legalization of state power under such conditions will be illusory; false legalization.

More difficult is the concept of legitimation of state power. Legitimus also means legal, legitimized, but this concept is not legal, “but actual, although it integral part there may be legal elements. In essence, the Confucians proceeded from this in a dispute with the aforementioned legalists; supporters of both secular and spiritual authorities had in mind it, interpreting the “will of God” in different ways. Modern meaning This concept is associated with the studies 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, i.e. a state expressing 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 groups, society as a whole. The recognition of state power, its actions as legitimate, is formed on the basis of sensory perception, experience, and rational assessment. It relies not on external signs (although, for example, the oratory skills of leaders can have a significant impact on the public, contributing to the establishment of charismatic power), but on internal motives, internal incentives. The legitimation 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 experiences and internal attitudes of people, with the ideas of various segments of the population about the observance by state power, its bodies of the norms of social justice, human rights, their protection.

Illegitimate power 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 monarch's enforcing a "good" constitution on his people. It is created by people's devotion to a certain social system (sometimes a certain personality), which expresses the immutable values of being. At the basis of this kind of devotion lies the belief of people that their benefits depend on the preservation and support of a given order, a given state power, the belief 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 and other circumstances, can only be partially satisfied or only the requests of certain groups are 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 total “expropriation of expropriators” is a phenomenon that does not have legality, because modern constitutions provide for the possibility of nationalizing only certain objects only on the basis of the law and with mandatory compensation, the amount of which in disputed 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, general expropriation has the highest degree of legitimacy. One can cite many other examples of the different interests of various sections of the population and their unequal, often opposite attitude towards the activities of state power and towards power itself. Therefore, its legitimization is not associated with the approval of the whole 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 legitimation of state power gives it the necessary authority in society. The majority of the population voluntarily and consciously submits to it, to the legitimate demands of its bodies and representatives, which gives it stability, stability, and the necessary degree of freedom in the implementation of state policy. The higher the level of legitimation of state power, the wider the possibilities of managing society with minimal "power" costs and the cost of "administrative energy", with greater freedom for self-regulation of social processes. At the same time, the legitimate authorities have the right and obligation, in the interests of society, to apply coercive measures provided for by law, if other ways to stop anti-social actions do not work.

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

The legitimation of state power is assessed not by the words of its representatives (although this is important), not by the texts of the programs and laws adopted by it (although this is important), but by practical activities, by the ways in which it solves the fundamental issues of society and each individual. The population sees a difference between slogans about reforms and democracy, on the one hand, and authoritarian methods of making decisions that are important for the fate of the country, the people, on the other. From here, as evidenced by systematic surveys of the population, the erosion of the legitimacy of state power in Russia (legitimacy was high after August 1991) results, 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, polling data does not always paint the right picture, but these data should not be underestimated.

It has already been said above that the legitimation of state power may include and, as a rule, includes its legalization. But legitimation is in conflict with formal legalization, if legal laws do not comply with the norms of justice, general democratic values, and attitudes that have developed among the majority of the country's population. In this case, legitimation is either absent (for example, the population has a negative attitude towards the totalitarian order established by the authorities), or in the course of revolutionary events, national liberation movements, legitimation of a different, anti-state, insurgent, pre-state power that has developed in the liberated areas occurs, which then becomes state power. . This is how events developed in China, Vietnam, Laos, Angola, Mozambique, Guinea-Bissau and some other countries.

Like the false legalization noted above, false legitimation is also possible when, under the influence of propaganda, incitement of 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 root aspirations.

The problems of verification of legalization and legitimation (including false ones) are very complex. In the 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 the study of decisions of constitutional courts and other bodies of constitutional control, with 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, the comparison of the programs of political parties and the policies pursued by those in power. Very rare is the scientific analysis of programs in comparison with the actions of various high officials.

It is even more difficult to identify indicators of legitimation. IN this case the results of elections and referendums are also used, but in the first case, falsifications are not uncommon, and the latter do not always reflect the true mood of the people, since these results are due to transient factors. In many developing countries with a one-party system (Ghana, Burma, Algeria, etc.), the ruling party received an overwhelming majority of votes in parliamentary and presidential elections, but the same population remained completely indifferent to the military coups that overthrew this government. At the 1991 referendum on the issue of preserving 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, formal assessments used in legalization require a deep and comprehensive analysis in determining the legitimacy of state power.

The Constitution as an instrument of legalization of state power

As already noted, the legalization of state power is associated with legal procedures that 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 way of preparing and adopting the constitution, its humanistic content, 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 the constitution testifies, as a rule; about a certain stability of state power, the methods of preparing and adopting the basic law do not always meet the requirements of genuine legalization.

Preparation of the draft constitution is underway different ways. In rare cases, the project is created by the Constituent Assembly itself, specially elected to adopt the constitution (Italy when preparing the Constitution of 1947, India when drafting the Constitution of 1950) or parliament (Sri Lankan Constitution 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, subjects of the federation, etc. Czechoslovakia, etc.) “round tables”, “civil assemblies” of representatives of state bodies, various parties, trade unions and social movements took part in the development of new principles of the constitution or changes to previous constitutions (new edition).

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 the 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 FRG, the draft of the current Constitution of 1949 was prepared by the parliamentary council, which consisted of representatives of the regional parliaments (landtags), and approved by the command of the western occupation forces. In Algeria, the draft Constitution of 1989, submitted to a referendum, was prepared by a group of presidential advisers. After military coups, the draft of a permanent constitution is often developed by commissions appointed by the government, 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), local authorities with the participation of advisers to the metropolis (Madagascar in 1960), at meetings of "round tables" attended by representatives of parties or national liberation movements, and the meetings were led 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 the future constitution, approved the draft and submitted it for adoption by parliament or to a referendum. In the socialist countries, as well as in the so-called countries of socialist orientation (South Yemen, Ethiopia, etc.), the draft before its adoption was submitted for public discussion. Usually there were many meetings, the discussion was covered in the media mass 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 (the USSR, Cuba, Benin, Ethiopia, etc.), as a result of discussion by the people, substantial, and in some cases very important, amendments were made to the draft.

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

To the greatest extent, the issue of legalizing state power is not connected with the preparation of the project, but with the procedures for adopting the constitution and its content. One of the most democratic ways is the adoption of a constitution by a Constituent Assembly specially elected for this purpose. The first meeting of this kind was the Philadelphia Congress of the United States, which adopted the Constitution of 1787, which is still in force. Peru 1993 and others. However, the Constituent Assembly is not always, as noted, formed through elections, and sometimes consists of partially appointed members. In addition, the Constituent Assembly often plays the role of an advisory body, since the adoption of the constitution by it was approved by the military authorities, who sometimes made amendments to the text (Ghana, Nigeria, Turkey, etc.). All this reduces the degree of legalization of state power, 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 current legislative work. This is how the Constitution of the USSR was adopted in 1977, the Netherlands in 1983, Papua New Guinea in 1975. However, for the purposes of adopting a constitution, some of these parliaments declare themselves Constituent Assemblies (for example, in Tanzania in 1977), and then continue to work as regular parliaments. Such a transformation is designed to increase the degree of legalization of state power.

Increasingly, constitutions in modern conditions are adopted by referendum. Theoretically, direct voting provides the greatest legalization of state power. This is how the French Constitutions of 1958 were adopted; Egypt 1971, Cuba 1976, Philippines 1967, Russia 1993 In practice, however, the referendum can be used in different ways. Without a preliminary discussion of the draft in parliament, by the population, and voters, it can be difficult to understand such a complex document as the constitution. It is not uncommon to use a referendum or to adopt reactionary constitutions (for example, in Greece in 1978 under the regime of "black colonels"). Sometimes the constitutions of totalitarian regimes (Burma in 1974, Ethiopia in 1987, etc.) after a referendum were approved (or confirmed) by parliaments elected on the basis of these constitutions. Formally, such a double process of legalization reliably legitimized state power, but in its content it did not correspond to democratic principles. Some ways of adopting constitutions do not even formally entail the legalization of state power. Such 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 the congresses and other supreme bodies of the ruling parties in the 70s in the Congo, Angola, Mozambique, the constitutions imposed by the monarch or the mother country.

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 create only false legalization. This is explained not only by the fact that the adoption of such constitutions is sometimes carried out in an atmosphere of deceit and violence, but also by the fact that certain forces manage to include in the constitution provisions that contradict the general democratic principles developed by mankind and enshrined in fundamental international legal acts (UN Charter 1945 ., the Human Rights Covenants of 1966, etc.). The constitutions of many countries recognize that such principles take precedence over the internal law of the country. Constitutional provisions that violate human rights (for example, in South Africa before 1994), proclaim the only permissible ideology (for example, moboutism under the Zaire Constitution of 1980), contrary to the sovereignty of the people (the provisions of the Algerian Constitution of 1976 on the ownership of political power by the only permitted party - National Liberation Front), etc., exclude the true legalization of state power, as 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 legitimization of state power: legal acts and procedures can be an integral part of legitimation, and the latter creates the necessary prerequisites for a solid legalization of state power. At the same time, legitimation plays an important role in society, because any state power cannot rely only on the laws it proclaims or only on violence. To be sustainable, strong, stable, it must seek the support of society, certain groups, the media, and even certain influential personalities. In modern conditions, representatives of authoritarian and totalitarian authorities often arrange meetings and conferences with prominent representatives of the intelligentsia, influential journalists, organize visits to various regions of the country, meetings with enterprises, etc. The purpose of these events is to find support, primarily by actions, but also by moods and feelings.

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

Traditional legitimation is domination based on traditional authority, rooted in respect for customs, belief in their continuity, in the fact that power “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 tradition of ash-shura (conferences under the monarch) as consultative parliaments. Traditions determine decision-making in the Indonesian Parliament mainly by consensus. Together with religious dogmas, traditions largely regulate public life in a number of developing countries. Traditions have importance to legitimize state power in countries where the system of Anglo-Saxon law operates. Judicial precedent is one expression of the power of tradition. The British monarch is traditionally head of the Church of England ( component his title is Defender of the Faith). A similar situation occurs in some other European countries, where one of the churches is declared state (for example, Lutheranism in Denmark).

Charismatic legitimation is domination based on faith in the personal gifts of the leader (less often in a narrow ruling group), in the exclusive mission of the leader. Charismatic legitimation is not associated with rational judgments, but relies on a range of feelings; it is legitimation that is sensory in nature. Charisma is usually individual. She creates a special image. In the past, this was a belief in a “good tsar” who could save the people from oppression by the boyars and landowners. In modern conditions, charismatic power is much less common than in the past, but it is common in 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 assassination - son). The same generation was and is in power in Sri Lanka (Banderanaike's father, then his wife, now the president is their daughter, and his mother is the prime minister).

To strengthen the charisma, special ceremonies are widely used: torchlight processions, demonstrations in support of the authorities in a special uniform, the coronation of the monarch. Rational legitimation of state power is based on a rational assessment, is associated with the formation of a conviction in the reasonableness of the existing order, laws, rules adopted in a democratic society to manage it. This type of legitimation is one of the main ones in modern conditions of a democratic legal state.

Rational legitimation assumes that the population supports (or rejects) state power, based primarily on their 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), and above all, the practical activities of state authorities, officials, especially higher ones, serve as the basis for rational assessment.

In practice, only one of these forms of legitimation is rarely used; usually they are used in combination. Hitlerism used the traditional reverence of the Germans for the law, the charisma of the leader, instilled in the population the belief in the correctness of the "thousand-year Reich." In democratic Great Britain, the main thing is the method of rational legitimation, but, for example, the activities of Prime Ministers W. Churchill and M. Thatcher had elements of charisma, and traditions play an important role in the activities of parliament and the cabinet. The role of de Gaulle in France was to a large extent connected 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 consecrated by ideological factors, etc.

Unlike charisma, which can be acquired rather quickly, stable rational legitimation requires a certain period of time. However, there are a number of ways to acquire initial rational legitimation, the procedure of which is not so long and depends on certain events. First of all, these are the elections of the highest bodies of the state. Direct elections are of the greatest importance, when this or that body of the state, the highest official receives a mandate directly as a result of the vote of the electorate. In China, however, the parliament (National People's Congress) is elected by multistage elections, the presidents of many countries are elected by parliaments (Turkey, Israel, etc.), electors (USA) or special electoral colleges (Germany, India).

The upper houses of parliaments are also often elected indirectly (France) and sometimes appointed (Canada). This, of course, does not call into question the legitimization of these bodies, we are talking only about the forms of legitimation established by the constitutions, especially since in direct elections, especially with a majoritarian system of a relative majority, distortions of the will of voters are possible. In India, the Indian National Congress Party has been in power for several decades, with a majority in parliament, but they have never 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 mandates in Parliament. In Hungary in 1994, in the parliamentary elections, the Hungarian Socialist Party received 33% of the vote, but 54% of the seats in parliament.

The vote of voters in a referendum according to the proposed formula can be of great importance for the legitimization of state power, and the referendum can be decisive or consultative, but in any case, if voters approve the constitution or support government measures, the referendum legitimizes power. The strength of the referendum is also in the fact that usually the decision is recognized as having taken place with the participation of at least 50% of the voters and with a positive answer of at least 50% of the votes (according to the Constitution of South Africa in 1984, 2/3 of the votes are required), while elections in a number of countries are recognized as having taken place with turnout of 25% of voters (France, Russia) and a majority system of relative majority is allowed (Great Britain, USA, India, etc.), in which one can be elected with a small majority of votes, but more than another candidate.

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

In recent years, the role of the opposition has been increasingly used to legitimize political power. We have already mentioned the "round tables" in the post-socialist countries, which worked out new rules for the organization of public life. The Portuguese Constitution of 1976 was the first to mention the role of the political opposition; in the UK, 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 comment 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 Presidential Council of the Republic. The leader of the opposition appoints a certain number of senators in Jamaica and some other countries. The institutionalization of the opposition strengthens the stability of state power.

In the international arena, 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 declaration and consolidation of the legitimacy of its occurrence (establishment), organization and activity. First, its origin must be legal. Usurpation, seizure of state power, its appropriation are illegal. Secondly, the organization of power must be legal. In a modern state, it is established by the constitution, other laws, and cannot be carried out without the direct participation of the people (elections, referendums, etc.), without representative bodies, parliaments, and so on. Thirdly, the sphere of powers of state power, the range of relations that state power has the right and can regulate, must be legal.

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

The legalization of state power, the rationale for power, the right to govern the state, is rooted in legal acts and, therefore, under certain conditions, can only be an external legalization that legally consolidates anti-people, anti-democratic, even terrorist state power. These were the legal acts of Nazi Germany, proclaiming the undivided power of the Fuhrer ...

Violation of the principle of legality ( legal regulations) involves the legal responsibility of state bodies and officials - political (resignation of the government, impeachment of the president), criminal (bringing to court for the illegal use of state power in the performance of official duties), civil (compensation for damage caused to the state, legal entities and individuals during the illegal use of public authorities).

legitimacy- this state is not legal, but actual, not necessarily formal, but more often informal. Legitimation of state power - these are processes and phenomena through which it acquires the property of legitimacy, expressing correctness, justification, justice, moral “legality”, compliance with its universal human values, compliance with its power, its activities with certain mental attitudes, throwing society, people. Legitimate state power -) power corresponding to the ideas of the people of a given country about 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 presidential and parliamentary elections, the results of a referendum, mass demonstrations in support of the government, which, for example, is threatened by reactionary forces, the approval of draft decisions proposed by state 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. Such qualities may include natural abilities, prophetic gift, fortitude and words. This is also facilitated by the created cult of personality around the "leader". Rational Legitimation based on reason: the population supports or rejects state power, guided by its own assessment of this power. The basis of rational legitimation is the practical activity of state power, the work of state bodies for the benefit of the population.

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

Legalization and legitimation: general and special

The term "legalization" comes from the Latin word "Legalis", which means legal. References to legalization as the basis of power and proper behavior already in the 4th-3rd centuries. BC e. were used by the Chinese legalist school 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 the secular and spiritual authorities in Western Europe in the Middle Ages; supporters of the "legitimate monarchy" of the Bourbons referred to it in modern times, speaking out against the "usurper" Napoleon.

In modern conditions, the legalization of state power as a legal concept means the establishment, recognition, support of this power by law, primarily by the constitution, the reliance of power on the law. However, firstly, constitutions and laws can be adopted, changed, repealed in various ways. Military and revolutionary councils, which were created as a result of military coups in many countries of Asia, Africa, and Latin America, decreed the abolition (often - suspension) of constitutions and often, without any special procedures, proclaimed new temporary constitutions. In fact, in Iraq, such a provisional constitution has been in force since 1970 to the present, in the UAE, the provisional constitution adopted by the emirs has been since 1971. In some countries, constitutions have been replaced by institutional acts (Brazil), proclamations (Ethiopia). The monarchs single-handedly "granted" constitutions to "their faithful people" (Nepal, Saudi Arabia, etc.). In Russia in 1993 the operation of the Constitution of 1978 (as amended) was suspended by presidential decree. Secondly, sometimes constitutions and laws, adopted in accordance with established procedures, in their content legalized an openly dictatorial, anti-people power, a totalitarian system. Such were the constitutional acts of fascist Germany, the racist legislation of South Africa (before the adoption of an interim constitution in 1994), the "party-states" of Guinea, or the constitution of African Zaire (there were several), proclaiming that there was a single political institution in the country - the ruling party - movement, and the legislative, executive, courts are the organs of this party. The constitutions of Russia and the USSR, adopted during the Soviet period and proclaiming that power belonged to the working people, actually legalized the totalitarian and even terrorist regime at times.

Of course, under conditions of authoritarian and totalitarian regimes, constitutions can be adopted by outwardly democratic means (by the Constituent Assembly, the Supreme Soviet in the USSR in 1977, a referendum in Cuba in 1976), they can contain democratic provisions, the rights of citizens (in the Constitution of the USSR of 1936 a wide list 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 that adopts 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 democratic procedures for adopting a constitution or other acts of constitutional significance are violated, if such procedures do not correspond to the ability of the people to exercise constituent power when adopting a fundamental law, if laws contradict the generally humane values of mankind, a formal (legal) law does not correspond to law. The legalization of state power under such conditions will be illusory; false legalization.

More difficult is the concept of legitimation of state power. Legitimus also means legal, legitimized, but this concept is not legal, but factual, although legal elements may be its integral part. In essence, the Confucians proceeded from this in their dispute with the legalists mentioned, it was meant by 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 studies 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, i.e. a state that expresses the correctness, justification, expediency, legality and other aspects of the compliance of a particular state power with the attitudes, expectations of the individual, social and other groups , society as a whole. Recognition of state power, 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 legitimation 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 experiences and internal attitudes of people, with the ideas of various segments of the population about the observance of the state power; its bodies of norms of social justice, human rights, their protection.

from the preservation and support of this order, this 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 and other circumstances, can only be partially satisfied or only the needs of some groups are 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 not legitimate for others. The total "expropriation of expropriators" is a phenomenon that does not have legality, because modern constitutions provide for the possibility of nationalizing only certain objects only on the basis of the law and with mandatory compensation, the amount of which in disputed 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, general expropriation has the highest degree of legitimacy. One can cite many other examples of the different interests of various sections of the population and their unequal, often opposite attitude towards the activities of state power and towards power itself. Therefore, its legitimation is not associated with the approval of the whole society (this is an extremely rare option), but with the acceptance of it 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 legitimate demands of its bodies and representatives, which gives it stability, stability, and the necessary degree of freedom in the implementation of state policy. The higher the level of legitimization of state power, the greater the possibilities of governing society with minimal "power" costs and expenditures of "administrative energy", with greater freedom for self-regulation of social processes. At the same time, the legitimate authorities have the right and obligation, in the interests of society, to apply coercive measures provided for by law, if other ways to stop anti-social actions do not work.

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

The legitimation of state power is assessed not by the words of its representatives (although this is important), not by the texts of the programs and laws adopted by it (although this is important), but by practical activities, by the ways in which it solves the fundamental issues of society and each individual. The population sees a difference between slogans about reforms and democracy, on the one hand, and authoritarian methods of making decisions that are important for the fate of the country and the people, on the other. From here, as evidenced by systematic surveys of the population, the erosion of the legitimacy of state power in Russia (legitimacy was high after August 1991) results, 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, polling data does not always paint the right picture, but these data should not be underestimated.

It has already been said above that the legitimation of state power may include and, as a rule, includes its legalization. But legitimation is in conflict with formal legalization, if legal laws do not comply with the norms of justice, general democratic values, and attitudes that have developed among the majority of the country's population. In this case, legitimation is either absent (for example, the population has a negative attitude towards the totalitarian order established by the authorities), or another legitimation occurs in the course of revolutionary events, national liberation movements. Anti-state, insurgent, central state power that has developed in the liberated areas, which. then becomes state power. This is how events unfolded in China, Vietnam, Laos, Angola, and Mozambique. Guinea-Bissau and some other countries".

Like the false legalization noted above, false legitimation is also possible when, under the influence of propaganda, incitement of 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 the scientific literature, including foreign ones, they are not sufficiently developed. Legitimation is usually associated with the legal analysis of the preparation and adoption of the constitution, with the study of the decisions of constitutional courts and other bodies of constitutional control, the analysis of the data of elections and referendums ... Less attention is paid to the content of constitutional acts, the nature of the activities of state power, the comparison of programs of political parties and that policy, carried out by those in power. Very rare is the scientific analysis of programs in comparison with the actions of various high officials.

It is even more difficult to identify indicators of legitimation. In this case, the results of elections and referendums are also used, but in the first case, falsifications are not uncommon, and the latter do not always reflect the true mood of the people, since these results are due to transient factors. In many developing countries with a one-party system (Ghana, Burma, Algeria, etc.), the ruling party received an overwhelming majority of votes in parliamentary and presidential elections, but the same population remained completely indifferent to the military coups that overthrew this government. At the 1991 referendum on the issue of preserving 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, formal assessments used in legalization require a deep and comprehensive analysis in determining the legitimacy of state power.

The Constitution as an instrument of legalization of state power

As already noted, the legalization of state power is associated with legal procedures that 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 way of preparing and adopting the constitution, its humanistic content, the compliance of the activities of state bodies with its norms are considered as the main evidence of the procedure for legalizing state power. Although the adoption of a constitution in itself indicates, as a rule, a certain stability of state power, the methods of preparing and adopting a basic law do not always correspond to the requirements of genuine legalization.

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 to adopt the constitution (Italy when preparing the Constitution of 1947, India when drafting 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, subjects of the federation, etc. , Czechoslovakia, etc.) "round tables", "civil assemblies" of representatives of state bodies, various parties, trade unions and social movements took part in the development of new principles of the constitution or changes to previous constitutions (new edition).

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 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 of the Constitution of 1946) was prepared by a constitutional commission ... appointed by the government, and submitted to a referendum, bypassing parliament. IN; The FRG draft of the current Constitution of 1949 was prepared by the parliamentary council, which consisted of representatives of the regional parliaments (Landtags of the Lands), and approved by the command of the Western occupation forces. In Algeria, the draft Constitution of 1989, submitted to a referendum, was prepared by a group of presidential advisers. After military coups, the draft of a permanent constitution is often developed by government-appointed commissions, then it is discussed in the Constituent Assembly, partly elected and partly appointed by the military (Turkey in 1982, Nigeria in 1989, etc.).

When 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 advisers from the metropolis (Madagascar in 1960), at meetings of "round tables" where representatives of parties or national liberation movements were present, and led 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 submitted it for adoption by parliament or to a referendum. In the socialist countries, as well as in the so-called countries of socialist orientation (South Yemen, Ethiopia, etc.), the draft before its adoption was submitted for public discussion. Usually there were many meetings and discussions were covered in the media. The practical results of such discussions were, as a rule, very insignificant, since the principles of the constitution were predetermined by the ruling party. But in some countries (the USSR, Cuba, Benin, Ethiopia, etc.), as a result of discussion by the people, substantial, and in some cases very important, amendments were made to the draft.

o From the point of view of the 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 project can be of great importance. This process introduces into the consciousness of the population participation in the preparation of the basic law, the conviction that the order established by the constitution reflects its will.

To the greatest extent, the issue of legalizing state power is not connected with the preparation of a draft, but with the procedures for adopting a constitution and its content. One of the most democratic ways is considered to be 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. Peru 1993 and others. However, the Constituent Assembly is not always, as noted, formed through elections, and sometimes consists of partially appointed members. In addition, the Constituent Assembly often plays the role of an advisory body, since the adoption of the constitution by it was approved by the military authorities, who sometimes made amendments to the text (Ghana, Nigeria, Turkey, etc.). All this reduces the degree of legalization of state power, 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 current legislative work. This is how the Constitution of the USSR was adopted in 1977, the Netherlands in 1983, Papua New Guinea in 1975. However, for the purposes of adopting a constitution, some of these parliaments declare themselves Constituent Assemblies (for example, in Tanzania in 1977), and then continue to work as usual parliaments. Such a transformation is designed to increase the degree of legalization of state power,

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

Some ways of adopting constitutions do not even formally entail the legalization of state power. Such 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 the congresses and other highest bodies of the ruling parties in the 70s and the Congo, Angola, Mozambique, the constitutions imposed by the monarch or the mother country!)

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 create only false legalization. This is explained not only by the fact that the adoption of such constitutions is sometimes carried out in an atmosphere of deceit and violence, but also by the fact that certain forces manage to include in the constitution 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 internal law of the country. Constitutional provisions that violate human rights (for example, in South Africa before 1994), proclaim the only permissible ideology (for example, moboutism under the Zaire Constitution of 1980), contrary to the sovereignty of the people (the provisions of the Algerian Constitution of 1976 on the ownership of political power by the only permitted party - National Liberation Front), etc., exclude the true legalization of state power, as 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 a solid legalization of state power. At the same time, legitimation plays an important role in society, because any state power cannot rely only on the laws it proclaims or only on violence. To be sustainable. strong, stable, it must seek the support of society, certain groups, the media and even certain influential personalities. In modern conditions, representatives of authoritarian and totalitarian, but by their nature, authorities often arrange meetings and conferences with prominent representatives of the intelligentsia, organize visits to various regions of the country, meetings with enterprise teams, etc. for influential journalists. The purpose of these events is to find support, primarily through actions, but also through moods and feelings.

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

Traditional legitimation is domination based on traditional authority, rooted in respect for customs, belief in their continuity, in the fact that power "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 tradition of ash-shura (monarch meetings) as consultative parliaments.Traditions determine decision-making in the Indonesian parliament mainly by consensus.Together with religious dogmas, traditions largely regulate public life in a number of developing countries.Traditions are important for the legitimization of the state authorities in countries where the system of Anglo-Saxon law operates.Judicial precedent is one of the expressions of the strength of tradition.The British monarch is traditionally the head of the Anglican Church (an integral part of his title is 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 faith in the personal gifts of the leader (less often in a narrow ruling group), in the exclusive mission of the leader. Charismatic legitimation is not associated with rational judgments, but relies on a range of feelings; it is legitimation that is sensory in nature. Charisma is usually individual. She will create a special image. In the past, this was a belief in a "good tsar" capable of delivering the people from oppression by the boyars and landlords. In modern conditions, charismatic power is much less common than in the past, but it is common 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, 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 was and is in power in Sri Lanka (Banderanaix's father, then his wife, now the president is their daughter, and his mother is the prime minister).

To strengthen charisma, special ceremonies are widely used: torchlight processions of demonstrations in support of power in a special uniform, the coronation of a monarch. The rational legitimation of state power is based on a rational assessment associated with the formation of a conviction in the reasonableness of the existing order, laws, rules adopted in a democratic society to manage it. This type of legitimation is one of the main ones in modern conditions of a democratic legal state.

Rational legitimation assumes that the population supports (or rejects) state power, based primarily on their 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 senior ones, serve as the basis rational evaluation.

In practice, only one of these forms of legitimation is rarely used; usually they are used in combination. Hitlerism used the traditional reverence of the Germans for the law, the charisma of the leader, instilled in the population the belief in the correctness of the "thousand-year Reich." In democratic Great Britain, the main thing is the method of rational legitimation, but, for example, the activities of Prime Ministers W. Churchill and M. Thatcher had elements of charisma, and traditions play an important role in the activities of parliament and the cabinet. The role of de Gaulle in France was to a large extent connected 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.

The upper houses of parliaments are also often elected indirectly (France) and sometimes appointed (Canada). This, of course, does not call into question the legitimation of these bodies, we are talking only about the forms of legitimation established by the constitutions, especially since in direct elections, especially with a majoritarian system of a relative majority, distortions of the will of voters are possible. In India, the Indian National Congress Party has been in power for several decades, with a majority in parliament, but they have never 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 mandates in Parliament. In Hungary in 1994, in the parliamentary elections, the Hungarian Socialist Party received 33% of the vote, but 54% of the seats in parliament.

The vote of voters in a referendum according to the proposed formula can be of great importance for the legitimization of state Power, and the referendum is decisive or consultative, but in any case, if voters approve the constitution or support government measures, the referendum legitimizes power. The strength of the referendum is also in the fact that usually the decision is recognized as having taken place with the participation of at least 50% of the voters and with a positive answer of at least 50% of the votes (according to the South African Constitution of 1984, 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 relative majority is allowed (Great Britain, USA, India, etc.), in which one can be elected with a small majority of votes, but more compared to another candidate.

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

In recent years, the role of the opposition has been increasingly used to legitimize political power. We have already mentioned the "round tables" in the post-socialist countries, which developed new rules for organizing state life. The Portuguese Constitution of 1976 was the first to mention the role of the political opposition; in the UK, 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 comment 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 Presidential Council of the Republic. The leader of the opposition appoints a certain number of senators in Jamaica and some other countries. The institutionalization of the opposition strengthens the stability of state power.

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

What does this concept imply?

How to explain the concept of "legitimate 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 legal act that is the basis for the formation of the social and state system. It determines the structure of organs, as well as the methods in relation to which their activities are built. The constitution contributes to the legitimization of political power. That is, both the state body itself and its activities have a legal basis.

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

laws that may 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 legitimization 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 legal act. But in a similar way, the legitimation of political power is defined in political and legal sense.

However, this phenomenon is rather ambiguous. It also has a psychological connotation. In the minds of people there is such a principle that considers everything that is fixed by power structures to be 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 power and superiority of government structures and is ready to actually voluntarily obey any order. Thus, such a connection, which has been established between the inhabitants of the state and its rulers, is defined by psychology as the legalization and legitimization of state power. People at a subconscious level recognize any direction of the authorities as fair and legitimate. Thus, in a sense, legitimacy refers to the respect and authority of the government among the citizens of the state. This suggests that legally recognizing power is not enough; it is also important to establish contact with the people by complying with value concepts and guidelines.

How is legitimacy reflected in the position in society?

It is believed that the legitimacy and legitimization 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 effect 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 emergence and emerging forms. At the moment, political science distinguishes three subjects in relation to which these processes are carried out. These include:

civil society;
power structures;
foreign political forces.

It is the moods of the first subject that determine the role of the government in the life of society. Thanks to the approving look of the majority of the inhabitants of the state, one can speak of prosperity and a stable situation both in the country and in the governing apparatus itself. In order 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 cause support from citizens. Recognition of the legitimacy of the government is explained by various factors. These include relations between different segments of the population, ideological and political views, mentality, historical traditions and moral values. The correct complex influence 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 singled out and formulated by Max Weber. It was this German sociologist who put forward the idea that the causes of this phenomenon are not always similar. This allows us to conclude that the process is heterogeneous. Weber also identified (according to a number of classification features) three types of the legitimization phenomenon. The main reason for this separation is the motivation of submission. This allocation of species is relevant today and is recognized in political science.

The first type is called the 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 to obey 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 process of historical events. The personality in the face of the ruler has a steady and undeniable authority. The image of the monarch determines all his actions as lawful and fair. 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. It acts, as a rule, combined. The traditional campaign is supported 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 taken by the state apparatus. Only, unlike the previous type, people are guided not by blind convictions directed in favor of their leader, but by a real understanding of affairs. Power structures organize a system consisting of generally accepted rules of conduct. 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. Legitimation 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 people's appreciation 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 the leader?

The charismatic way of legalization (legitimate power) is when the recognition of any actions of the ruling structure is due to 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 current system of power. Most often, in this case, people unconditionally believe the words and actions of their ideological inspirer. A strong character of a person forms an emotional upsurge 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 legitimation, the authorities single out leadership as the main way to manipulate the people during the period of revolutionary moods. At this time, it is quite easy to influence citizens, since an emotional outburst causes instability in 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 inspire people with faith in a bright future, which raises his authority in the eyes of the people.

Various periods of history were saturated with such leaders. Among them are a huge number of historical figures, leaders, heroes and prophets. But most often such an image is created artificially. Basically, the basis of its creation is active work mass media. People simply impose a leader. This can be done very easily, since there is practically nothing to rely on the people. The values built up in the process of history have been betrayed and broken; there are no existing results yet. Innovations do not bear fruit, but only make them tighten their belts even tighter. But everything around only inspires 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, ways of legitimizing power were also formed, which had a completely different character than that defined by Weber. Newly emerging concepts suggested that the concept could have a broader meaning. That is, not only power itself as a substance, but also the totality 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 in the fact that the state apparatus acts fairly, lawfully and in the interests of society. However, the state apparatus itself was understood as political institutions. His other colleague D. Easton gave the definition of "legitimacy" from the standpoint of moral 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 legitimation of power, there are:

ideological;
structural;
personal.

How does D. Easton classify legitimacy?

Types of legitimation of power are represented by 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 masses. That is, the more citizens share the ideology and course of the government, the more lawful and legitimate the government is considered.

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

Similarly, analogies can be drawn between other species. For example, such types of leadership in terms of the way of legitimizing power, such as charismatic and personal, have a common essence. Both are based on unquestioning faith in the authority of the leader. The level of legitimacy of his actions is determined by individual abilities and the ability of the ruler to best manage 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 her qualities are too exaggerated by the media, they are present anyway. It is impossible to reach such a level without possessing anything of the kind. According to Easton's theory, everything is quite the opposite - a ruler can be a person who does not have any specific abilities. There are quite a lot of examples in history when nothing outstanding personalities receive the active support of the general population.

What is D. Betham's theory?

D. Betham also singled out certain types of legitimation 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 persuasion or coercion of both the state apparatus and the masses. The main direction in relation to which further manipulations are built is the principles of the functioning of the political system.
At the third stage, citizens convinced of the legitimacy and justice 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 reviews of its content and the formed political system. The latter expresses a voluntary desire to preserve it.

What does delegitimization mean?

Opposite, but no less important, is the notion of delegitimization. The action denoted 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 occurs for completely different reasons. It can be preceded by either one event or a combination of them. Problems with faith in the 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 legitimacy will also soon come to an end. The reason for 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 the support of the masses. Also, unrest among the population easily arises in the absence of protective mechanisms. A high level of corruption and bureaucratization can have an additional impact on the emergence of a process of delegitimization. Phenomena such as nationalism, separatism and racial strife are factors that ensure the shaking of the positions of the ruling structures.

Political science even defines such a thing as a “crisis of legitimacy”. It implies a period of time during which society loses faith in the honesty, justice and legitimacy of actions committed by state bodies within their powers. 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 support from them should not be expected either.

To overcome the crisis, the government needs to have constantly established contact with the population. And it is necessary to take into account the opinion of all segments of society. To do this, it is necessary to carry out timely informing about the goals and directions of the authorities' activities. It is necessary to demonstrate to people that any issues can be resolved legally, without violence. The state structures themselves must also be organized. The political game must be conducted without prejudice to the rights of any of its participants. In society, it is necessary to carry out constant propaganda of democratic values.

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

The legitimization of state power is the acceptance of power by the population of the country, the recognition of its right to manage social processes, the readiness to obey it. Legitimation cannot be universal, since there will always be certain social strata in the country that are dissatisfied with the existing government. Legitimation cannot be imposed, since it is associated with a complex of experiences and internal attitudes of people, with the ideas of various segments of the population about the observance by state power, its bodies of the norms of social justice, human rights, 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 not and cannot be a state. The concept of GA is usually used in 2 senses - broad and narrow. In a narrow sense, GA is understood as an apparatus government controlled. It is in this sense that the term "GA" is used in the science of administrative law as a set of executive-administrative, administrative bodies. In a broad sense, the 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 noted). 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 that reflects a certain place that various groups of state bodies occupy in it. It is necessary to take into account what system-forming factor of the GA structure is enshrined in the constitution. Article 10 of the Constitution of the Russian Federation is the fundamental principle of the separation of powers. Art. 12 K-and the Russian Federation: local governments are not included in the system of state authorities;

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 bodies, the emergence, development and content of the activities of the GA bodies depend on the functions of the state;

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

That. The GA is a system of state bodies permeated with uniform, legislatively fixed 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 points, ideas and requirements that underlie the formation, organization and functioning of the GA. All principles are divided into: general (refer to GA as a whole) + private (act on separate groups of state bodies). Particular 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 - is manifested 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 of 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 the systematizing factor of GA.

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

5) The principle of legality - the requirement of universal observance and application of the laws of the Russian Federation. Requirements for the GA: the rule of law and the direct effect of the constitutionally enshrined rights and freedoms of man and citizen; implementation of all state-power functions solely on the basis of laws and their corresponding by-laws; suppression of any violations of the law, as well as the inevitability of responsibility for their commission.

2nd group:

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

1) the supremacy of the Constitutional Code of the Russian Federation and the Federal Law over other n / a acts;

2) the priority of the rights and freedoms of man and citizen, their direct effect; the obligation 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) binding for civil servants of decisions of higher state bodies and managers within their powers and on the basis of the legislation of the Russian Federation;

5) professionalism and competence of civil servants;

6) publicity in the performance of public service;

7) responsibility of civil servants for the decisions they make, failure to perform or improper performance 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 the purposefulness, unity and integrity necessary for its successful functioning.

41. The concept of state apparatus (OSA).

RSA - part of the state apparatus (GA), its main cell.

Signs:

1. powers of authority - legally fixed 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 - the 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 RSA - civil servants.

The considered signs in their totality reveal the concept of the OGA, allow us to formulate its definition:

RSA- it is a legally formalized, organizational and economic separate part of the GA, consisting of civil servants, endowed with state-power powers and the necessary material means to carry out certain tasks and functions of the state within its competence.

The heterogeneity and complexity of the activities of the GA entails a large number of OGAs.

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

Classification:

According to the legal source of legitimacy -

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

2) bodies established in the manner prescribed 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 subjects of the Russian Federation;

By duration:

1) permanent,

2) temporary;

According to the principle of personal composition:

1) collective,

2) presented by one person.

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

Genesis of GO - "Politics" of Aristotle, "State" of Plato, other ancient Greek teachings. Continuation - the Renaissance (Grotius, T. Hobbes, J. Locke, C. Montesquieu, J. J. Rousseau), but the term GO has been used only since the 18th century (before that it was not used, because G = society) . However, even later, the distinction between these concepts was not made: the state is a form of organization of society. 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 own special content in the literature and in the modern interpretation expresses a certain type of society, its socio-economic, political and legal nature, 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, justice.

GO principles:

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

2. Recognition and protection of the natural rights of man and citizen;

3. Legitimacy and democratic nature of power;

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

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

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

7. Freedom of speech and press, independence of the media;

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

9. Class peace, partnership 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 property owners, the exercise by them of their rights and freedoms, activity and enterprise. At the same time, the activity of the state itself should proceed in democratic legal forms, be directed to the protection of human rights; there should be liberal legislation, soft methods of legal regulation, the guarantee of which is civil defense. And the duties of citizens to the state are reduced to law-abiding and paying taxes. Civil defense involves the denationalization of many aspects of his life, which, however, does not mean that it does not need statehood at all - the state must simply find its place in it, abandoning the totalitarian methods of legal regulation. GO exists, develops and functions in dialectical unity and contradiction with the state. Collisions are possible in their relations, but in any case, the state cannot interfere in the private life of people. GO and G should not oppose each other, but interact harmoniously. That. GO - a set of non-state and non-political relations (economic, social, cultural, etc.) that form a special sphere of specific interests of free owners and their associations.

44. Rule of law (PG): concept and principles.

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

1. Freedom of a person, the most complete provision of his rights;

2. Restriction of the rights of state power.

Philosophically, freedom can be defined as a person's ability to act in accordance with their interests, based on the knowledge of objective necessity. In 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 “what is not prohibited by law is permitted”. Man as an autonomous subject is free to dispose of his forces, abilities, property. Law, being a form and measure of freedom, should maximize the boundaries of the limitations of the individual. Human rights and GHGs are characterized by common patterns of emergence and functioning, since they can exist and operate effectively only if they interact. Both phenomena are based on law, although the role of the latter for them is practically directly opposite, but at the same time internally one. This indicates that the connecting link between a person and the state should be precisely the right, and the relationship between them is truly legal. It is in the limitation of the law of the state that the essence of GHG lies. Here law acts as the antipode of arbitrariness and as a barrier on its way.

GHG principles:

1. The most complete provision of the rights and freedoms of man and citizen;

2. The most consistent binding of political power with the help of law, 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 the exercise of control on its part over the implementation of laws by all subjects of law, etc.