Role of law in the organization and functioning of the State in ancient times. A study of the phenomenon of law, nature thereof, essential indicia, and establishment of a scientific identity is not sufficient for a precise and full contemplation of its role in the function of the State and the extent of conditionality of the State by law. We can ascertain the significance of the role thereof by clarifying the nature of the State itself, essence thereof, and consideration of specific historical forms and means for the regulation of State life.
It is worth emphasizing that the concept of the State is not less complex than the concept of law. Throughout the entire period of the existence of the State itself, approaches to an understanding thereof have been subjected to significant transformation. Three approaches to an investigation of the State are determined rather precisely. The first, the political-philosophical (ancient), considers any State as a type of communion organized for public benefit the satisfaction of daily needs, a means of resolution «common affairs», and regulating the relations «people — State» (Aristotle),1 as people linked by an agreement on questions of law and community of interests (Cicero). The second, class approach, sees in the State the result of the division of society into classes and means of class struggle, a machine for the suppression of one class by another (Marxist-Leninist approach). The third approach is organizational-legal: it defines the State as the organizational and legal means of regulating class relations.
In the specific historical aspect, a large number of forms of States have existed whose State ideology provides a basis for the conclusion that law has a minimal role in the organization and exercise of State power and the regulation of social relations. However, notions about the role of law in the functioning of the State developed in parallel with the development of doctrines on the State and the strengthening of States themselves.
The Greek idea of the State, based on the harmony of social life, did not know such concepts as individual citizens endowed with personal rights or the concept of a State defending its citizens with the assistance of law, and did not link the effectiveness of authority with the sufficient freedom of the citizen. The rights of a citizen depended upon his rank, and not the individual. The periodic replacement of bureaucrats in posts with the assistance of lots (rotation) and the most extensive involvement of the population in administration, the formal and informal discussion of State affairs, the election of agencies of State administration by the people, people’s control over judges — is a far from complete enumeration of the democratic institutions of Ancient Greece. The power of State authority was thus based not on compulsion, but on the force of persuasion, tradition, and respect for law. Law was declared by the legal ruler to those subject to him, and it comprised the meaning of respectable State administration.
Although a theory of the separation of power did not exist in those times, one may already speak about legal mechanisms for control over representative, executive, and judicial power. With regard to executive power, these were the appointment and rotation of State employees and control over their actions; with regard to judicial power — the people’s appointment of the judges of tribunals (the demos annually elected six thousand persons who considered cases); and with regard to decisions of representative councils or assemblies — the judicial annulment thereof. However, did law enjoy priority in the system of social regulators? Obviously, not. Law and justness, although they should have regulated the social system and social life, did not become general regulators of social life. Respective political ideals were more influential in ordering the political spheres than was law.
To perceive these ideals one should take into account the direct link between notions concerning an effective and perfected socio-political structure with notions concerning the city-State, which Athens was at the time and where all vital interests of citizens were concentrated.
The theory of the city, a place of general habitation, replaced in essence the theory of the State and became a major ethical, economic, sociological, and political idea. Justness, freedom, piety, good, the need for trusteeship over one’s city-State, social harmony, notions about the force of unwritten laws, faith in the need for the adoption of State decisions by means of discussing them, voluntary subjection to law which is a benefit for all became ideals. The good deeds of the individual citizen such as goodness, valor, modesty, and courage were especially honored.
In the theoretical political thought of the ancients views dominated on State power, the power of the ruler as derivative, dependent on the will and positive qualities of the last. Democritus asserted that in accordance with the existing form of government there were no means to prevent a ruler, even a very good one, from dispensing injustice. Because it was not befitting that a ruler responsible to someone else proved after a year himself to be under the authority of these others. «Therefore, it should be arranged», said Democritus, «that the ruler who has not committed any injustice, even if he strictly prosecuted injustices committed, should not fall under their power but that some law or other means defended the ruler who dispensed injustice».
Plato said that the ruler may listen or not to the opinion of the people at his discretion and therefore to link this with norms of law is impossible. The way out is for States to be ruled by philosophers.
The views of Aristotle have influenced the concept of the State and the factors which limit it. To him belongs one of the major ideas of Antiquity — the delimitation in principle of the State (political relations) and society. Aristotle distinguished these types of State structure: imperial power (monarchic rule), oligarchy (from the aristocracy), democracy (from the polity). Tyranny has the aim of benefitting one ruler, an oligarchy works to benefit wealthy citizens, and democracy — to the benefit of the non-wealthy. The most important under any system, Aristotle noted, is by means of laws and other procedures to deprive officials of the opportunity to enrich themselves. The most useful laws, unanimously approved by all those participating in the administration of the State, will be in vain unless citizens are involved in State order and brought up in this spirit, that is, if the laws of the State are democratic — in the spirit of democracy; if oligarchic — in the spirit of oligarchy; and if one is undisciplined, then the entire State is undisciplined.
A leading orator of Antiquity, Cicero, believed the State to be the most perfected form of human communion, community living. Any State, he observed, is the ownership of the people, and the people are not any assembly of individuals but are combined in some way, connected by amity in matters of law and community of interests.1
Cicero defined the basic principles of self-government, especially relating to the fact that power is delegated by the people and should operate on the basis of a moral law. As Sabine and Thorson noted, these principles of administration «for a comparatively brief period after Cicero wrote them down received virtually universal recognition and for many centuries served as generally-known propositions in the theory of political philosophy … entered the general treasury of political ideas».
The works of Cicero were in the mainstream of doctrines in the era of stoicism, the representatives of which (Chrysippus, Panaetius, Polybius, and others) believed justice is the best means of restraining the authorities from collapse and formulated the idea of the universal brotherhood of all people.
We note that analogous ideas were widespread in the Orient — in ancient India and China. In ancient India the «Arthashastra, or Science of Politics» (a work on statecraft) testified to the importance of the moral foundations of the reliability of power because the ruler who rules unjustly cannot count on the support of his subjects, and emaciated subjects become greedy and hostile towards their ruler.
Sun Tzu (Chinese philosopher — ca. 313-238 b.c.) asserted that «if a ruler seeks serenity, to achieve this there is nothing better than to issue just orders and love the people; if the ruler seeks glory, then to achieve this there is nothing better than to esteem ritual and respect scholars; if the ruler aspires to affirm his merits — for this there is nothing better than to esteem the wise and recruit capable people».
After the decline of the Roman Empire, a lengthy crisis of law is observed which ends entirely only in the thirteenth century with the recognition of this idea: society must be governed by law.
Role of law in the organization and functioning of the State in the Middle Ages and Renaissance. Forming of concept of State and popular sovereignty and idea of the rule-of-law State. The forming of the concept of the State as a common community continued during the Middle Ages and the theory of State sovereignty and sovereignty of the people come into being. Jean Bodin formulated the concept of sovereignty and substantiated the principle of the indivisibility of State sovereignty, averring that States create under the coercion of the strongest or as a result of the consent of some people voluntarily to transfer their freedom as a whole to the subordinate of others so that they dispose of it while relying on sovereign power or without any laws, or on the basis of certain laws and in accordance with certain conditions. A people may surrender sovereign power without any conditions; however, this does not mean that the sovereign enjoys power without any limitations. The laws of God and nature extend to him, and it is not within the power of a sovereign to abolish them.
The tradition of the Middle Ages, as Richard Hooker understood, was the responsibility of each political force (government or king, parliament, etc.) to the people or community which they administered and limitation by a moral law, constitutional traditions, and compacts which were concluded during the era of the monarchy.1 Indeed, law always has had a certain (greater or lesser) degree of legitimation in the West because of this fact, and the identification of jus and lex is sufficiently widespread, a view that has numerous proponents in doctrine down to the present time.
Subjecting to analysis the development of the idea of State sovereignty and inter-connection of society and the State, it is impossible to avoid giving attention to the views of Thomas Hobbes. The State, in his view, is formed as follows:
«The only way to erect such a Common Power, as may be able to defend them from the invasion of Foreigners, and the injuries of one another, and thereby to secure them in such sort, as that by their owne industrie, and by the fruits of the Earth, they may nourish themselves and live contentedly; is to conferre all their power and strength upon one Man, or upon one Assembly of men, that may reduce all their Wills, by pluralit of voices, unto one Will: which is as much to say, to appoint one Man, or Assembly of men, to beare their Person; and every one to owne, and acknowledge himselfe to be Author of whatsoever he that so beareth their Person, shall Act, or cause to be Acted, in those things which concerne the Common Peace and Safetie; and therein to submit their Wills, every one to his Will, and their Judgements to his Judgment … [the Common-wealth] is One Person, of whose Acts a great Multitude, by mutuall covenants one with another, have made themselves every one the Author, to the end he may use the strength and means of them all, as he shall think expedient, for their Peace and Common Defence».
Hobbes singled out three forms of State — monarchy, aristocracy, and democracy — and also two types of political power: paternal and despotic. In the first, power is acquired by consent, and in the second, by force. However, the sovereignty of State power arises in full plenitude: the power of a sovereign may not without his consent be transferred to someone else; he may not be deprived of it by his subjects, and may not be punished by them; he is the sole legislator and the supreme judge. That is, for Hobbes there exist no limitations of power. The law of the State is merely the will of the sovereign.
Machiavelli divided States into those in which subjects are accustomed to subjecting themselves to rulers and those where they from ancient days had lived freely. In The Prince, he asserted that the reasonable Prince cannot and should not adhere to his promise which would harm his interests. Hence there are no means to prevent a Prince from failing to comply with his promises.
Utopian socialists believed it necessary to adhere to social laws when distributing the advantages of life which, while using the rules of equity, the ruler published or affirmed with the unanimous consent of the people.
During the civil wars in England during the seventeenth century, people’s discussions played an active role in forming the idea of statehood and furthered the origin of various theories of revolutionary liberalism. Equality, freedom, and other natural rights, justness of laws, and the idea of consent (social contract) became the slogans of these revolutions. The idea was supported of the pacification of each sphere of administration in accordance with the supreme power of the people, guaranteed by a written recording of alienable rights.
Unlike Hobbes, John Locke opposed the absolute, unlimited character of State power. He believed that people are free, equal, and independent by nature, and therefore no one may be removed from this state and subjected to the political power of another without his consent. The sole means of rejecting political freedom is a contract with other people to combine into a community. The merit of Locke was that he laid down the basic principles of the theory of the separation and limitation of power, to be sure, from the standpoint of parliamentary priority. Locke asserted that the power of society and legislative organ created by it could not extend farther that was necessary for the general benefit, and whosoever possessed legislative or supreme power was obliged to rule according to established permanent laws proclaimed by the people and known to the people, to rule with the assistance of impartial and just judges which should resolve disputes only when fulfilling these laws.
The idea of the separation of power or the idea of mixed administration, as Sabine and Thorson observed, is one of the most venerable in political theory; however it was never given definite content. Whereas in England this conception was given specific importance by the conflict between the crown and common law courts, and Locke allotted a subsidiary place to it in the theory of parliamentary sovereignty, Montesquieu reduced the limitation of power to a system of legal checks and balances between various parts of a particular constitution.
Jean-Jacques Rousseau elaborated the most comprehensive theory of people’s sovereignty. Proceeding from notions about man as citizen, which is a basic moral category, he suggests that the community is the main moral factor, which forms the citizen. Common acquisitions (language, common interest and prosperity) are the reason for the creation of the State. «If the State is a moral person whose life is in the union of its members, and the most important of its cares is the care for its own preservation, it must have a universal and compelling force, in order to move and dispose each part as may be most advantageous to the whole. As nature gives each man absolute power over all his members, the social compact gives the body politic absolute power over all its members also; and it is this power which, under the direction of the general will, bears, as I have said, the name of Sovereignty».
What is the nature of this company and where are the limits of supreme power? Rousseau answered this question as follows: «It is not a convention between a superior and an inferior, but a convention between the body and each of its members. It is legitimate, because based on the social contract, and equitable, because common to all;
Useful, because it can have no other object than the general good, and stable, because guaranteed by the public force and the supreme power. So long as the subjects have to submit only to conventions of this sort, they obey no-one but their own will; and to ask how far the respective rights of the Sovereign and the citizens extend, is to ask up to what point the latter can enter into undertakings with themselves, each with all, and all with each. We can see from this that the sovereign power, absolute, sacred, and inviolable as it is, does not and cannot exceed the limits of general conventions, and that every man may dispose at will of such goods and liberty as these conventions leave him; so that the Sovereign never has a right to lay more charges on one subject than another, because, in that case, the question becomes particular, and ceases to be within its competency».
The ideals of social justice born of reason and the need for mutuality of this justice led Rousseau to conclude there was a necessity for laws, which should have a character common to all because the general will cannot be reflected with regard to a particular subject matter.
Laws are merely conditions of a civil association, and therefore the people should be the creators thereof. However, Rousseau noted, in order to transform the people’s will into acts a legislator is needed (Rousseau did not believe in popular representation). And whereas legislative power belongs to the people and only to them, executive power belongs only to the sovereign.
The ideas of the French Enlightenment were developed by scholars in other countries of Europe. They acquired a special resonance among the people.
During the French Revolution in the eighteenth century and the Civil War in the United States, a doctrine of constitutionalism was formed whose basic values proclaim the sovereign power of the people or the nation, the idea of popular representation, the natural and inalienable rights of the individual, the right to resist, and the principle of the separation of power.
The idea of popular sovereignty found reflection in the idea of the rule-of-law State, formulated for the first time in the works of German philosophers. Kant’s idea of a Rechtsstaat was based on a primary contract and the conformity of laws to the pure principles of law. Kant substantiated the understanding of the State as an association of people subject to lawful laws, and also to other conditions of a rule-of-law State, in particular, the principle of the separation of power, the affiliation of power to the people, civil equality and autonomy of people, and devised a process for the creation of law.
The views of Jellinek had material importance for an understanding of the nature of the State as a State which should be governed by law. He believed the existence of legal order to be material for a State which could not be joined with the theory of absolute, unlimited State power. «Law», he wrote, «does not depend upon the State to the extent that the State may exempt itself from any law. A particular character is imparted to legal order within its power, both actual and legal, but not to resolve the question of its existence».
Nevzorov, who traced the development of the idea of a rule-of-law State in Russia to the platitude of the limitation of State power, noted that during the Boyar rule (from the «Time of Troubles» to the reign of Anna Pavlovna in 1730), «legally the Tsar of Muscovy ruled his State without limitation, but, having regard to custom, shared power with the Boyars»; during the time of the nobility (up to 1825), the Tsar alone reigned, but the nobility governed.
The sole limitation under conditions of autocracy when legislative and executive power was combined in the person of the sovereign was «mental boundaries» (M. M. Speranskii).
Such extra-legal limitations as reason and morality, traditions, conscience, and others existed always; however, their use was not strictly determined and depended upon many factors and did not entail unavoidable legal responsibility. In confirmation, we recall the words of Empress Catherine II addressed to her State-Secretary, Popov: «You know with what caution I act when issuing my enactments. I collect all the facts, elicit the thoughts of the Enlightened, and I determine what action my edict should perform. When I am persuaded beforehand of their general approbation, I then issue my behest and have the satisfaction to see that which you call blind subordination — and there is the basis of unlimited power. But I am convinced that they do not obey blindly when my order is not adapted to the customs or when I have not myself followed my own will, without thinking of the consequences».
Only with the abolition of serfdom and recognition of political rights, including suffrage, did the process commence of the creation of representative organs, forming of a judicial system, gradual movement away from autocracy, and broader participation of the people in the management of State affairs and introduction of real levers of control over power.
Contemporary notions of the role of law and State. Doctrinal writings cite various classifications of States depending upon influence on decision-making by the political regime, which is one of the main factors determining the essence of a State.
Mann, in particular, noted that in the West it is accepted to single out three theories of the State: class, pluralist, and elitist. Briefly, the essence thereof comes down to the following. The majority of class theories are Marxist, where the State serves particular means of production and classes. The two other theories designate the modernist States. Pluralist theories rely on the thesis that modern western States are ultimately divided into Party democracy, which gradually expands (these States are deemed to be «representative»). Elitist theories (there exist several varieties of these theories) concentrate their attention on the autonomous potential, which a State has. In the center of attention of the elitists is political power as relations between the State and a civil society. Mann, indeed, rejects the thesis of democracy as a decisive and determinative factor of the State, believing that the personnel of a State may act as an autonomous formation. In our view, the democratic potential of a State has not exhausted itself, although the modern State and bureaucracy are capable of supporting their own political interests, often acting as an own political force.
To an undemocratic regime should be juxtaposed a democratic regime, to which is inherent the freedom of creating and acting in an organization, freedom of expression, the right to participate in elections, the right to join social organizations, the right of political leaders to compete for support, alternative sources of information, free and fair elections, and the existence of institutions to form governmental policy dependent on the voters.
The division to divide all States into democratic and undemocratic emanates from the classification of political regimes. Ukrainian doctrinal writings separate democratic, totalitarian, authoritarian, autocratic, anarchic, and ohlocratic regimes.1
Peculiar to a democratic regime is the electivity of major agencies of power, deciding the main political problems in accordance with the expression of will by the majority of citizens, ensuring a broad range of personal, civil, and political rights and freedoms, legal equality of citizens, guarantees of the rights of minorities, and prevention of arbitrariness on the part of the majority.
An authoritarian regime is characterized by the predominance of methods of a command and open dictatorship, the granting of discretionary powers to agencies of political authority, that is, decision-making on the basis of political advisability and not law; endowing executive agencies with extensive legislative powers; limitation or abolition of the principle of glasnost in the activity of agencies of political power.
An autocratic regime is characterized by the limited range of persons who exercise political authority and the existence of a single center of real political power.
A totalitarian regime is characterized by strict control over all spheres of the life of society, the lack of legal opposition, the existence of an obligatory official ideology, intolerance towards political dissidence, and anti-intellectualism in the sphere of humanitarian knowledge.
An anarchical political regime is the destruction of organized foundations of a single State and the political system, autonomization of power structures, lack of a system of normative regulation of social relations, arbitrariness of the stronger or more agile, absence of guarantees of safety of the population, and so on.
The indicia of an ohlocratic political regime are the competence of political authorities, a contemptuous attitude towards knowledge and experience of world civilization, and the absence among representatives of the organs of political power of a real feeling of civil responsibility to the people of their country and the world.
This classification demonstrates that anti-democratic regimes, whatever their grouping, are based not on the consent of their citizens or the truth and justness of society, but on arbitrariness and fear. These States are not governed by law, because without justice, as Plato correctly observed, there is no law. Only in those States in which the people in various forms (through agreement, actual recognition of sovereignty, or a Constitution) influence the forming of State power and the content of laws of the State is the existence possible of law as rules of joint life which are recognized, or legitimized, by the people, and therefore based on the justice and truth of these people and the ethical principles thereof.
Following Claude Helvetius (1715-1771), who divided all forms of government from the standpoint of conformity to the common interest into good and bad, one may say that law as an expression of the common will of the citizens of a State exists only in those societies which are governed by the opinion of the majority of its citizens and State prescriptions are a reflection of the common interest and are perceived and approved by society.
Modern civilization, it seems, is irrevocably on the path of propagating the principles of liberalism and democracy. Democracy may be defined not only as the self-government of people, but also as a government which is responsive to the conceptions and desires of people. The basic principle thereof is rule by the majority; however, under present conditions, the understanding of democracy is orientated towards its initial interpretation as a type of power exercised with the involvement of all who the question being considered affects (idea of consensus) through direct participation or through their representatives (idea of popular representation). The idea of democracy, with some differences, necessarily makes provision for the principle of separation of rule (which the withholding of power furthers), multi-party system, decentralization of power, free and fair elections, and ensuring the right of citizens to participate in them, existence of a free press, freedom of speech, and freedom of political organizations. The functioning of these elements is a guarantee of a democratic political regime, a free society in which all rights and freedoms of citizens are guaranteed.
The ideas of democracy and liberalism fill with real content the doctrine on the rule-of-law State.
Only in a rule-of-law State is the flourishing of law possible because it does not step at the level of public legal consciousness, but is completed by the legitimation by society of norms of behavior and therefore becomes a truly operating body of rules.
From the position that these norms of behavior are legitimized by society, are recognized by this society (as the aggregate of all citizens) to be generally binding, they become a genuine regulator of social relations, especially in the public sphere.
On the basis of law as the general will of citizens who are the bearers of political power and sovereign rights for the exercise of democratic powers, the State grows and functions. Proceeding from the fact that a democratic State exists not on the basis of relations of «power — subordinate», but on the basis of the right of the people as the primary bearer of political power on the forming of the State, the State acquires the expression of a public-law union of the people.
Because this union is based on the right of the people to power, law becomes the foundation of this union.
Only law becomes capable of truly ordering power relations, because the people as the participant of a State acquire the rights to exercise State powers, and hence — also the right to control State power and the direct exercise thereof, including by means of representation. All activity of the State and the agencies thereof is exercised in legal forms which are determined by the mandate of the people.
Law becomes a means of limiting power, linking it to the benefit of its citizens, because the authority thereof rests on the will and authority of the people. This authority is underpinned by the political responsibility of power to the people through period free elections and the participation of citizens in the real exercise of State policy and management of the State.
From the foregoing arises a certain generalization. The idea of the rule-of-law State and management of the State by law only is partially suitable for the ideology of a State build on a positivist understanding of law because there remains the link of the State not with jus, but with lex, and this linkage is half-and-half and unstable. Such linkage is possible, on one hand, when there are stable democratic traditions for forming and exercising State power, an awareness of the indestructibility of State- law precepts not only for the individual, but for agencies of State power and their officials. On the other hand, the link by lex provided for the obligatory existence of developed procedures for appeal against the unlawful decisions of agencies of State power and officials thereof.
The idea of a rule-of-law State is incompatible with an ideology of the State whose basis is absolute power, authority which rests on extra-legal forms of substantiation of the State and legitimation of State power, and holding power by means of coercion. Many such States are known to history, and many exist today. The absence of forms of representative democracy and involvement in resolving social conflicts of the police apparatus and coercion are characteristic of these States.