Three concepts of the relationship between the state and the individual in the context of human rights problems. Interaction between the state and society What is the problem of the state and the individual?
Man and state. What is power based on?
Since we are talking about what and how is happening on our land, it is necessary to correctly understand how interactions between people in this place are structured and to form an adequate attitude towards this matter.
So, what do we have as a subject for consideration? And we have a planet with the beautiful and beloved name of all of us, Earth, where there are a variety of continents with different natural conditions.
There are quite a few theories about where and how the distribution of people throughout the space of our planet came from. Some adhere to Darwin's theory and agree that our ancestors, having evolved from monkeys, eventually scattered throughout the entire territory. Others argue that our ancestors came from other planets, different ones at that, and the placement of representatives of different civilizations throughout the planet was part of a carefully thought out plan.
We will not lean in one direction or the other for now; we are not talking about this for now.
If a group of people gathers in one place, then a certain interaction necessarily occurs between them. These are various everyday questions, these are questions about daily bread, these are questions about actions, these are questions about joint resistance to various external dangers.
And since people are not identical in their manifestations, then necessarily, in any team, there appears a person who wants and knows how to manage the development of this group, the so-called "leader", and people gather around him who understand his calls and are ready to follow his guidelines.
No matter how many people gather, three, ten or a hundred, someone will definitely be a leader, and someone will be a performer. This is how nature works. In any pack there is a leader, in any company there is a leader, a leader.
Small companies gradually unite with others so that, in case of danger, they can jointly resist an external enemy, and their leaders choose the strongest from among their number, who heads this association.
The larger such an association, the more issues have to be resolved, and therefore the leader is no longer able to engage in obtaining food and running the household. And in order for him to have the opportunity to resolve common issues, each member of the association gave part of his production to a common pot, which allowed the leader to engage in management activities all his time.
The number of participants in the association continues to grow, for their normal life they need a large territory, more and more questions arise, people are needed to protect the territory, people are needed to collect and account for funds, people are needed to create and maintain laws, people are needed to maintain relations with other associations , and so on.
As you may have guessed, we have considered the simplest scheme for the occurrence of state machine. It, in its essence, is necessary to maintain a normal life for each participant in this association. But that's just the point.
In real life the situation is somewhat different. When the population in states exceeds a certain value, the state apparatus has increased so much in size that it becomes simply impossible for them to manage effectively. Any, even the most good, initiative that comes from above is transformed beyond recognition when it reaches the lower floors. This is on the one hand.
On the other hand, look What does power rest on? First of all, based on fear. Unfortunately it is so. The main motive for not committing unseemly acts is not the awareness of their wrongness, but fear of punishment. Plus, none of the officials at any level will try to introduce something new, again, for fear of being excommunicated from the feeding trough, from the place where they can get additional benefits and additional opportunities.
Again I want to say. I am in no way saying that the state structure is incorrect or vicious. Not at all, this mechanism is, first of all, a reflection of what is happening in society. And our task understand what is happening, and, based on this understanding, do not harbor illusions, but initially build the right relationship with this process.
Let's take, for example, the same situation with taxes. Every citizen is obliged to pay these same taxes. Failure to comply with this law is considered the most serious crime in many countries.
What explains this approach? Because they need money to maintain the army, police, social programs, and so on. Everything seems to be correct.
But, on the other hand, each state owns a considerable number of enterprises, property, financial resources, plus, it taxes operating enterprises and imported goods.
Why aren't all these assets making a profit? Why is the allocation of these funds so ineffective that states, as commercial entities, are not able to obtain such profits as to be enough for all the necessary social positions? Where is effective fund management?
In theory, every large state should feed itself, and not by collecting taxes from the not-so-wealthy segment of the population, but by own activities. If the activity is ineffective, then we need to look for the necessary solutions, and not blame it on unfavorable external circumstances.
But, this is all in theory. In practice, there will always be compelling arguments to prove the necessity of the chosen approach.
And look what we have today. The state is primarily interested in own survival. The emphasis is not on the individual participant, the citizen, but on the integrity of the entire machine. The interests of the state are above all. And initially, the entire system was formed, first of all, for humans. This is a small shift that changes the very essence of interaction between a citizen and the state. Not the state for the citizen, but the citizen for the state.
Here is your answer why programs for the growth of consciousness and the development of human abilities are not widespread. This is not beneficial for states. You may end up with a large mass of people who will be difficult to manage, who will be independent, and will not participate in the “life of the state.”
This is why no one will practice the right attitude towards health. Why, when there is a pharmaceutical industry that will support a citizen in working condition until retirement age, and then his maintenance becomes simply unprofitable and burdensome for the budget.
This is why it is not profitable to engage in proper education reform. Those people who will have systemic and working knowledge will be so different from those who are admitted to the feeding trough that they will easily find ways to move them, and it will no longer be possible to hang noodles on their ears and force them to participate in various political games.
So, I recommend that when creating your processes, consider that there will be no care from the state. On the contrary, this is one of those tools that will put maximum pressure on you and put various spokes in your wheels. But, if you find a way to lay the right foundation and create the right legal framework, then you will be able to cross this threshold without any problems, and get the maximum benefit from it.
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The relationship between the individual and the state is determined largely by the relationship between the individual and civil society. The structure of civil society includes: public associations, political parties and organizations, family, church, socio-economic institutions, etc. Civil society arises as a result of the separation of the state from social structures. Civil society emerged as a result of the liquidation of class structures and the denationalization of social relations. The main obstacle to the development of civil society is the dominance of the state over society. The gradual formation of civil society is associated with the establishment of national representative institutions of the parliamentary type. Formal legal equality is the basis for the formation of civil society as a horizontal system of connections and relationships between citizens and their associations.
The individual acquired stable rights with the emergence of the category of human rights. Personality is a stable system of socially significant human properties that characterize the individual as a member of society. The nature of the relationship between the state and the individual is the most important indicator of the state of society as a whole and the prospects for its development. A stable connection between the individual and the state is expressed in the institution of citizenship. This connection expresses the legal affiliation of a particular person to the state, the existence of mutual rights and obligations of the individual and the state. The state cannot artificially increase or decrease the scope of rights and freedoms: overestimation makes rights a fiction, and restriction leads to the erosion of the foundations of its legal status. The relationship between the individual and the state is, first of all, mediated by the institution of citizenship. Universal rights, as a rule, are divided into human rights and civil rights, which is largely the result of a compromise between legal positivism and natural law theory. States that recognize this division proceed from the premise that inalienable rights must be recognized and enshrined in legislation. The relationship between the individual and the state reflects the rights of a citizen, which require guarantees of their implementation by the state.
The problem of individual rights and its relations in the state with its various institutions and other subjects of the political system is central to the science of the theory of state and law. The content of the political and legal state of the individual includes the following elements: legal personality, legal status of the individual, legal guarantees. Mutual responsibility of the state and the individual is the basic principle of relationships in a rule-of-law state. The position of an individual is expressed, first of all, in its legal status or in the totality of rights, freedoms, responsibilities, and legitimate interests. Any individual (citizen, foreign citizen, stateless person) exercises his subjective rights in legal relations in connection with the emergence or termination of citizenship. So, the civil status of an individual is manifested in the following forms or states: citizen, foreign citizen, stateless person, person who has received political asylum. Citizenship acts as a type of subjective right. The legal status of specific individuals is determined primarily by citizenship relations.
Social personality type and typology of political behavior
The social type of personality can be defined as a product of the interaction of historical, cultural and socio-economic conditions of life.
Personality types are distinguished depending on their value orientations:
· traditionalist (personality is focused on the values of duty, discipline, law-abiding, with a low level of independence, ability for self-realization);
· idealistic (the individual is critical of traditional norms, with a focus on self-development);
· frustrated (person with low self-esteem, depressed state of health);
· realistic (the individual combines the desire for self-realization with a developed sense of duty, skepticism with self-control);
· consumer (personality is focused on satisfying consumer desires)
Political behavior is a subjectively motivated process of a political actor carrying out one or another type of political activity, determined by the needs of realizing his status political position, orientations and attitudes.
The most common is the following typology of forms of political participation:
I. Conventional forms:
2. Reading about politics in newspapers
3. Discussing political topics with friends and acquaintances
5. Work to promote the image of a political party or candidate
7. Participation in rallies and meetings
8. Contacting authorities or their representatives
9. Activity as a political figure (nomination of candidacy, participation in elections, work as a representative of the leadership of a party or other organization, work as a deputy, minister, etc.)
II. Non-conventional forms.
1. Signing petitions
2. Participation in unauthorized demonstrations
3. Participation in boycotts
4. Waiver of taxes
5. Participation in the seizure of buildings, enterprises and sit-ins within their walls
6. Blocking traffic
7. Participation in spontaneous strikes
Political culture
Political culture is part of the general culture, including historical experience, memory of social and political events, political values, orientations and skills that directly influence political behavior. Political culture is one of the main concepts of comparative political science, allowing for a comparative analysis of the political systems of the world.
The functions of political culture include:
· integration of the political sphere and general culture, philosophy, religion;
· preservation and development of the foundations of political activity;
· checking the truth of the official ideology; elimination and compensation of gaps (uncertainty of norms) and gaps (absence or violation of the logical connection of legal norms) of law;
· manifestation, prevention and resolution of latent conflicts;
· prophetic, prognostic regarding development;
· testing and verification of political personnel;
· synthesis of ways to respond to unexpected threats, etc.
The role of political culture is to reduce political risks - unprofitable risks that worsen the conditions of activity of socio-economic subjects through government decisions.
The most famous typology of political cultures belongs to G. Almond and S. Verba:
Parish culture
Dependent culture
Participatory culture
Parish culture characterized by an indifferent attitude towards the national political system, which is expressed in the lack of reaction of citizens to the actions of political institutions, in the lack of interest in the central government and, conversely, interest in political life “on the ground”.
Dependent political culture characterized by greater interest in the activities of the authorities. Citizens have their own idea of the government, but they are submissive to it, even if its activities are negative. With this type of political culture, citizens do not hope to personally change anything in the activities of the authorities, being only “observers.”
Participatory culture characterized by active participation. Citizens consider themselves to have the right to influence the authorities; they carry out this “interference” by participating in elections, in the activities of parties, and pressure groups. With this classification, it is meant that democracy is the ideal regime that should be taken as a model, but this position is not indisputable for everyone
The “supreme” function of the state.
As already noted, when determining the function of the state, it is necessary to start from its social purpose, that is, by asking the question: why do people need a state. If we follow this scheme for clarifying the functions of the state, then we will inevitably come to the conclusion that the main supreme function of the state, in the terminology of S. Montesquieu, is the protection of human rights and freedoms. Hence the main problem is to correctly determine the relationship between the state and the individual. All other functions of the state (economic, defense, environmental, etc.) must also be subordinated and commensurate with the needs of optimal performance of the supreme function. Therefore, the main attention, when determining the function of the state, should be paid to the problem of optimizing the interaction between the state and the individual.
The concept of personality to a greater extent, apparently, relates to the subject of philosophy. Personality is an individual person as a subject of social life, communication and activity.
In order to correctly understand the problem of the relationship between the state and the individual in modern conditions and to consolidate these relationships in laws at the level of the requirements of a rule of law state, it is necessary to comprehensively understand some concepts closely related to the category of “personality”. Among them are such concepts interconnected with the concept of “personality” as: “man”, “individual”, “I”, “individuality”, “human rights”, “civilian rights”.
Human - This is a biosocial concept. In the concept of “man”, the emphasis is on the difference between man and other living beings. Therefore, they say that man is the highest level of living organisms. It differs from other living organisms in that it is capable of producing tools and using them. Hence, man is not only a biological being, but also a subject of socio-historical activity and culture. In short, a person is a rational biological being. As for personality, personality is a person as a subject of social relations and conscious activity. In the concept of “personality,” the emphasis is on the role of a person in human society, among people. Personality is formed through its contribution to the development of human society.
Individual - a single representative of the human race with all the signs and attributes of a person.
Individuality - a set of traits that distinguish a given individual from all others. In totalitarian states, individual personality traits are leveled under the pretext of public interests. A special doctrine appears called “individualism”, which is used to whip up public opinion against the manifestation of individual personality traits. In contrast to individualism, the doctrine of collectivism, that is, of joint social life, is being developed. Individualism is opposed to collectivism, although there is no group without personality either.
Modern jurisprudence deals mainly with the concept of “civilian rights”, “human rights”. Thus, the Constitution of the Russian Federation speaks about personality only in Article 21. It says here that “the dignity of the individual is protected by the state.” But such protection in real life is carried out through the institutions of human rights and civil rights. If we talk about the legal status of an individual, then it consists of: human rights; citizen's rights; rights of stateless persons; rights of foreigners; refugee rights, etc. However, despite this ramification of the legal status of the individual in specific jurisprudence, in the theory of jurisprudence it is possible and necessary to talk about the relationship between the individual and the state. Such a paired consideration (state and individual) allows us to better understand the role and place of both the state and the individual, and correctly emphasize issues related to the activities of the state. In addition, it should be said that the problem of the relationship between the state and the individual has a long history and has always been important for characterizing the democratic nature of the state.
In historical terms, the role of man, the individual in society began to be consciously comprehended during the Renaissance. It was at this time that the doctrine of the natural rights of people appeared, elevating the role of the individual. This doctrine declared the basis of interaction between the state and the individual to be the role and desire of the individual. Personality is the basis of statehood and power; the state is created by an association of individuals to manage the affairs of individuals. The individual does not cede his rights to the state, since they are natural, but only transfers (delegates) to the state certain powers to manage the affairs of united people. This teaching was intended not only to free oneself from the divine origin of the state, but also contributed to the improvement of statehood.
The doctrine of the natural right of people to create a state was not destined to flourish for long. Real states did not really take people and their associations into account. As a rule, states rose above the individual, above the interests of peoples. Against the background of these realities, a historical school appeared, which began to explain everything by spontaneous historical development. In essence, this school takes shape in the process of social development, and the individual does not matter at all. The result of this teaching was that the state is everything, and the individual is nothing.
Of course, the two noted views on the interaction between the state and the individual were extremes. Therefore, in subsequent centuries, socio-political thought mainly tried to remove the contradictions between the state and the individual and reconcile their interests. In this regard, government scientists and legal scholars have become increasingly interested in problems associated with such concepts as “individual freedom” and “individual responsibilities.” It should be noted that the concepts of “individual freedom” and “individual responsibilities” in historical terms emerged precisely in the process of resolving the problem of interaction between the state and the individual.
The ancients understood freedom as the possibility of collective, but direct exercise of supreme power, public discussion of issues of war and peace, voting of laws, passing sentences, checking the reports and actions of senior statesmen, and bringing them to justice. In essence, it was collective freedom, the direct participation of people united in one community in the exercise of power. Despite some appeal, such freedom was not civil freedom. Moreover, private civil actions were very strictly controlled; the authorities could invade the most intimate relationships of people. Therefore, as civilization developed, people began to demand civil, that is, personal freedom in relation to the authorities, that is, the state.
Today, the very concept of “freedom” is used to a greater extent as a legal concept. It is known that the legal concept is mainly aimed at indicating how things should be according to the law. But this is by no means a fiction, not a paper formality, but a legal reaction to reality, to the behavior of people in the process of public life. Legal concepts are formed as a result of a comprehensive understanding of the world of human interests and actions. Human interests that usually develop in life in jurisprudence are formed as subjective rights of an individual. The subjective right of an individual is a measure of his possible behavior. Knowing about the completeness of subjective rights, a person learns that he can do, commit, etc. The wider the legal possibilities, the wider the freedom of the individual. Real freedom today is not conceivable except through legal rights, through legal institutions. Therefore, in modern conditions, the problem of individual freedom arises in terms of interaction between the state and the individual.
Talking about personal freedom today means finding out the limits of state intervention in human affairs. At a certain stage of historical development, it began to be believed that the state is an intermediary between a person and his freedom. Therefore, the entire history of mankind can be considered as the struggle of people for freedom. Personal freedom depends on the nature of the state, on the regime that the state establishes.
Of course, there is no absolute personal freedom. Unlimited freedom of people in society can only lead to chaos and arbitrariness. Therefore, today in optimally democratic states the boundaries of individual freedom are determined by legitimate laws. In a legal sense, personal freedom is a normatively enshrined ability of an individual to perform actions and actions at his own discretion, without violating the freedom of others. Legal restrictions on the freedom of actions of people in society are an objective necessity.
The state must determine the boundaries of its intervention in the sphere of individual life. Moreover, these boundaries are determined in the interests of the people themselves, so that a person does not suffer from the freedom of another person. Today, from the point of view of the theory of statehood, individual freedom comes down not so much to direct participation in government, but to a sense of independence. Therefore, a person today, first of all, wants him to obey only legitimate laws and no one else, to be able to freely choose his place of residence, type of work, dispose of his property, and be protected from any kind of arbitrariness and violence.
This turn in the mood of the individual is explained not only by the fact that today states are mostly large, and the voice of one in deciding state affairs essentially remains unnoticeable, but also by the fact that the very ideas about the state are changing. Under the influence of the intensification of international relations and the familiarization of people with universal human values, those states that care more about their citizens and respect and protect human rights come to the fore. In the second half of the twentieth century, a powerful international movement for human rights emerged, which has an important educational value for those states that do not or do not take into account the interests of their citizens.
In the problem of the state and the individual in modern conditions, it is very important to understand the mutual responsibility of the state and the individual. Not only the individual is responsible for his actions, but also the state for the fact that it cannot ensure the safety of the individual and the safety of his property. The protection of life, the safety of people's property, and their freedom is the most important area of activity of the state. Therefore, in the relationship between the state and the individual, the interests of the individual must be primary and starting. The state is for the people, and not vice versa. This is an axiom of civilized statehood. However, emphasizing the primacy of individual rights and freedoms, of course, one must keep in mind that we are talking specifically about the interests of the individual from the position of universal human ideas about them, and not about the whims of everyone. The state, while protecting actions and forms of human activity that do not contradict the law, at the same time builds its policy in the field of personal freedoms based on universal human ideas about rights and freedoms. Possible contradictions between the state and its citizens must be resolved on the basis of legitimate law, by appropriate impartial judicial bodies.
I would like to emphasize one more point. When discussing the responsibilities of a person and an individual, it should be borne in mind that a person has responsibilities to society. This provision is not always correctly understood, and a person's duties are often interpreted as his duties to the state. By taking this path, the state begins to dominate the individual, and from here begins to rise above society as a whole. Meanwhile, in a democratic society, a person has responsibilities to society, and his rights and freedoms can be limited solely for the purpose of ensuring due recognition and respect for the rights and freedoms of others and meeting the fair requirements of morality, public order, that is, in the interests of general welfare. In addition, all restrictions on human rights and freedoms for these purposes must be clearly provided for in laws. The state is obliged to monitor compliance with these restrictions on behalf of and in the interests of society. This also includes the case when the state obliges people by law to protect nature, state property, etc. Here the state, in order to ensure human freedom, must act by other methods, for example, use prohibitions. And in fact, people cannot be obligated to protect nature or state property at all. Apparently, this is why these articles of the law, as a rule, remain unimplemented in practice. It would be better to use reasonable prohibitions in this area to prevent people from violating, for example, environmental requirements.
CURRENT STATE AND RELATIONSHIP PROBLEMS
STATES AND PERSONS
I.P. KUIBYSHEVA, Ph.D., Department of Law
The relationship between the individual and the state is one of the leading problems of political and legal thought, which has a long history. Whatever the nature of the state, whatever the regime that dominates it, the relationship between man and the state has always been of interest not only theoretical, religious, philosophical, but also practically applied, since without taking into account the interaction of the state and man it was impossible to establish in society the order required by the dominant elite or democratically elected rulers.
The nature of the relationship between the state and the individual is the most important indicator of the state of society as a whole, the goals and prospects of its development.
The relationship between the individual and the state can be very different. In a society dominated by the ideals of justice, humanism, and democracy, people strive to harmonize the relationship between the individual and society as a whole, whose interests the state is intended to represent. The state is considered as a necessary means of coordinating the interests of various social groups, individuals and society, as an organization subordinate to public interests and controlled by society. A person, his fundamental rights and freedoms are considered as the ultimate goal of state intervention in public life and at the same time is the limit of such intervention.
The idea of harmonizing relations between the individual and the state finds expression in the theory and practice of legal statehood. A rule of law state is characterized not only by the unconditional connection of all social actors, including the state, by law, but also by ideological, legislative and organizational recognition by the state
the inviolability of fundamental human rights and freedoms, their advantages over other social and state institutions. Another generally recognized feature of legal statehood is the establishment and strict adherence to the principle of mutual responsibility of the state and the individual. This principle is manifested, first of all, in the establishment by the state of legislative restrictions on its activity in relation to the individual and society, in the adoption by the state of specific obligations aimed at ensuring the interests of citizens, in the presence of real measures of responsibility of state officials for failure to fulfill their duties to society and the individual.
In turn, personal freedom in a rule of law state is not absolute, since it is limited and regulated by the interests and rights of other persons. A person is required to comply with all legal provisions and fulfill his duties to the state and society.
The diverse connections between law and personality can be most fully characterized through the concept of legal status, which reflects all the main aspects of the legal existence of an individual: his interests, needs, relationships with the state, labor and socio-political activities, social needs and their satisfaction. This is a collective category. The rights, freedoms and responsibilities of an individual, legally established by the state and taken together, constitute its legal status. The legal status of the individual, which is the core of the normative expression of the basic principles of the relationship between the individual and the state, includes the rights, freedoms and obligations enshrined in
The Constitution and other major legislative acts proclaimed in the Declaration of the Rights of Man and Citizen. This mainly determines the legal status of the individual in society, his role, opportunities and participation in public affairs. The legal status objectively reflects both the advantages and disadvantages of the actually functioning political and legal system, the principles of democracy, and the state foundations of a given society.
The modern legal status of an individual in the Russian Federation is characterized by extreme instability, weak social and legal protection, the absence of reliable guaranteeing mechanisms, and the inability of government authorities to effectively ensure the interests of the citizen, his rights, freedoms, life, honor, dignity, property, and security. The legal status of an individual bears the stamp of the deep crisis (socio-economic, political, spiritual) that Russia is experiencing today. The material basis of status has also changed (a variety of forms of ownership, including private, property stratification, the emergence of a labor market, unemployment, a drop in living standards). The unity and stability of the legal status is undermined by the processes of sovereignization, interethnic and regional conflicts. A number of former Soviet republics have adopted discriminatory laws that violate fundamental human rights and carried out ethnic cleansing. The legal status of an individual is significantly destabilized as a result of the turmoil that is occurring in society today: social tension, political confrontation, a complex criminal situation, an increase in crime, environmental and technological disasters, shock methods of reform, etc. The legal status of an individual has an impact and moral and psychological factors - a person’s loss of social guidelines and priorities, spiritual support, lack of adaptation to new conditions. The personality experiences deeply
great social discomfort and uncertainty about the future.
There are also positive trends. Currently, the legal status of an individual is subject to a modern legislative framework (the new Russian Constitution, the Declaration of Human Rights and Freedoms, the Law on Citizenship and other important acts). At the same time, the regulatory framework is created taking into account international criteria in this area. A new concept of the relationship between the individual and the state is being laid with the priority of the individual as the highest social and moral value; the paternalistic principles of these relations give way to free partnership and cooperation in accordance with the principles of civil society. Legal status, like many other legal institutions, is cleared of ideological and class dogmatism, apologetics, totalitarian consciousness and the thinking of the individual as the bearer of this status; it began to more adequately reflect modern realities. There is a transition from command-prohibitive methods of regulating the legal status of the individual to permissive-irritable ones, from bureaucratic centralism that fetters any initiative and enterprise to reasonable autonomy and independence. The relationship and role of the structural elements of legal status are changing: priorities such as human rights, personal dignity, humanism, freedom, democracy, and justice come to the fore. Many restrictions on the personal freedom of the individual have been lifted, the principle “what is not prohibited by law is permitted” has been proclaimed, judicial protection of the rights of citizens has been strengthened, and the presumption of innocence is in effect.
In any democratic system, the rights and freedoms of citizens, as well as their responsibilities, constitute the most important social and political-legal institution, which objectively serves as a measure of the achievements of a given society, an indicator of its maturity and civilization. It is a means of individual access to spiritual and material benefits, mechanisms of power, legal
forms of expression of will, realization of one’s interests. At the same time, this is an indispensable condition for the improvement of the individual himself, the strengthening of his status and dignity.
The search for optimal models of relationships between the state and the individual has always been a difficult problem. These models depended to a decisive extent on the nature of society, the type of property, democracy, economic development, culture and other objective conditions. But in many ways they were also determined by power, laws, ruling classes, i.e. subjective factors.
The main difficulty lies in establishing such a system and such an order in which an individual would have the opportunity to freely develop his potential (abilities, talent, intelligence), and on the other hand, national goals would be recognized and respected - that which unites everyone. Such a balance is precisely expressed in human rights, freedoms and responsibilities.
That is why highly developed countries and peoples, the world community consider human rights and their protection as a universal ideal, the basis for progressive development and prosperity, a factor of sustainability and stability.
Russia, following the course of reforms, also proclaimed these values as priority and most significant, recognized the need to adhere to generally accepted international standards in this area, enshrined in such well-known acts as the Universal Declaration of Human Rights (1948); International Covenant on Economic, Social and Cultural Rights (1966); International Covenant on Civil and Political Rights (1966); European Convention for the Protection of Rights and Fundamental Freedoms (1950). Confirmation of Russian democracy's commitment to these charters is the Declaration of Human and Civil Rights adopted in November 1991, which became an organic part of the new Constitution of the Russian Federation and the basis for all current legislation relating to the individual. Both
These documents record a wide range of fundamental ideas, principles, rights and freedoms, as well as responsibilities. Their initial provisions state that human rights and freedoms are natural and inalienable, given to him from birth, recognized as the highest value and not exhaustive. Recognition, observance and protection of human rights is the responsibility of the state.
Everyone has the right to life, health, personal safety and integrity, protection of honor, dignity, good name, freedom of thought and speech, expression of opinions and beliefs, choice of place of residence; can acquire, own, use and dispose of property, engage in entrepreneurial activities, leave the country and return back.
The right of citizens to rallies, street processions, and demonstrations is secured; the right to vote and be elected to government bodies, to receive and disseminate information, to send personal and collective appeals (petitions) to the authorities, to freely determine one’s nationality, to unite in public organizations. Relevant rights are provided in the social and cultural fields (to work, leisure, education, social security, intellectual creativity).
The equality of all before the law and the court is affirmed. No one is obliged to testify against themselves or close relatives. The accused is considered innocent until his guilt is proven in the prescribed manner (presumption of innocence).
Many of the above rights are new in our legislation; they were not previously in either the former Soviet Constitution or the Constitution of the RSFSR. Also, for the first time, the direct duty of the state to protect human rights is legally established (Article 2 of the Constitution of the Russian Federation). It is emphasized that the rights and freedoms of man and citizen are directly applicable. They determine the meaning, content and application of laws,
The activities of representative and executive power and local self-government are ensured by justice (Article 18).
Human rights are a value that belongs to the entire international community. Their respect and protection are the responsibility of every state. Where these rights are violated, serious conflicts and hotbeds of tension arise, posing a threat to peace and often requiring (with the sanction of the UN) outside intervention. The Constitution provides for a procedure according to which every Russian citizen has the right to appeal to international bodies for the protection of human rights and freedoms if all available domestic remedies have been exhausted (Article 45). This provision is also enshrined for the first time, and it does not violate the sovereignty of the country. Today this is the unconditional norm.
As a result, we can say that in the field of human rights and freedoms there is progress, albeit small, but still progress, especially in the sense of their legislative design, public attention, political and philosophical understanding of scientific groundwork, etc. At the same time, the reality is that these rights are grossly and universally violated, not respected, ignored, poorly protected, and not provided financially.
It is known that it is not enough to proclaim certain rights and freedoms; the main thing is to materialize them and put them into practice. And this is a more difficult task. In the conditions of the deep economic, political and spiritual crisis that has arisen in the country, this institution itself is being seriously tested. On the one hand, society has finally realized the necessity and unconditional value of the natural and inalienable human rights inherent in him from birth, on the other hand, it is not yet able to ensure their full and guaranteed implementation.
This intractable contradiction is becoming more and more acute and painful, acting as one of the strongest social irritants, a source of insecurity.
people's satisfaction and protests. This means that we must distinguish between the theory and practice of human rights. Human rights and freedoms are easily postulated on paper, but very difficult to implement in life. The 1995 Presidential Address to the Federal Assembly notes: “We managed to proclaim many rights and freedoms of citizens. The situation with guarantees of these rights is much worse.”
Today, few people believe words written on paper, because lofty ideas and harsh reality are at odds. “It is no secret that Russia is currently far from being in first place in terms of living standards, and the state is physically unable to provide a number of socio-economic human rights included in the international standard.” This is the peculiarity of the current situation.
That is why the Declaration of Rights and Freedoms of Man and Citizen adopted by Russia, despite its enormous moral and social significance, is perceived by many as a kind of set of general principles that have not yet been supported, or a kind of solemn statement of intentions and desires, and not as a real document. This is not a legal, but rather a political act, a symbol, a sign of change. In it, rights are basically only declared, but not guaranteed. Therefore, the urgent task is to fill the rights listed in the Declaration and the Constitution with the necessary vital content in the course of democratic transformations. It is extremely difficult to do this, because, as indicated in the same Message, “our state is not so rich as to materially ensure all the rights and freedoms of man and citizen without exception at the highest level. Minimum living standards have not yet been formulated by law.” The state today is essentially itself “bankrupt”, a “debtor”, unable to even pay its citizens for their labor on time.
The section in the Basic Law of the Russian Federation on the rights and freedoms of man and citizen is
is, to a certain extent, an embellishment of the legal system of modern Russia, the most complete normative expression of its democratic aspirations.
In general, it should be noted that the main thing in the problem under consideration at the moment is not the theoretical development of human rights and freedoms, but the creation of the necessary conditions, guarantees and mechanisms for their implementation, i.e. practical sphere.
By its essence, a guarantee is a system of conditions that ensure the satisfaction of human interests. Their main function is the fulfillment of obligations by the state and other entities in the field of realization of individual rights. The object of the guarantees are social relations related to the protection and protection of human rights and the satisfaction of the property interests of citizens. The new Constitution of the Russian Federation established a system of guarantees of the rights and freedoms of man and citizen. The term “guarantees” is used in the Basic Law of Russia in no less than 18 articles. The Constitution emphasizes that ensuring individual rights is not the exclusive prerogative of federal authorities. Today, responsibility for fulfilling obligations in the field of human and civil rights largely falls on the republics and other entities that are part of Russia.
The main principle of building a system of legal guarantees of human and civil rights is the universality of protection of rights, freedoms and legitimate interests by all means that do not contradict the law.
The guarantor of the Constitution of the Russian Federation, the rights and freedoms of man and citizen is the President of the Russian Federation. The President of Russia has the right to suspend acts of the executive power of constituent entities of the Russian Federation in case of violation of human and civil rights until this issue is resolved by the appropriate court (Part 2 of Article 85 of the Constitution of the Russian Federation).
An important role in matters of protection and protection of human rights is played by the Constitutional Court of the Russian Federation, which, based on complaints about violations of constitutional rights and freedoms and at the request of the courts, verifies the constitutionality of the law,
applied and subject to application in a specific case (Part 4, Article 125).
The problem of completeness and guarantee of human rights and freedoms has acquired global significance in the modern world. The world community is striving to develop a unified rule in matters of social and legal protection of citizens, trying to unify and adopt common standards and procedures that promote the recognition of the dignity inherent in all members of the human family.
In this regard, the content of the preamble of the International Covenant on Economic, Social and Political Rights is fundamentally important from the point of view of understanding the general guarantees, that the ideal of a free individual, free from fear and want, can be achieved if only such conditions are created, with which everyone can enjoy their economic, social and cultural rights in the same way as their civil and political rights.
Consequently, the social state and its legislation are designed to purposefully improve and protect material well-being, serve the tasks of providing a person with a decent life, and establish the principles of humanism and justice in society.
Literature
1. Constitution of the Russian Federation.
2. Dmitriev Yu.A., Zlatopolsky A.A. Citizen and government. - M., 1994. - P. 15.
3. Lukasheva E.A. Rule of law, personality, legality. - M., 1997.
4. Matuzov N.I. Personality. Rights. Democracy. Theoretical problems of subjective law. - Saratov, 1972.
5. Matuzov N.I. Legal system and personality. - Saratov, 1987.
6. General theory of human rights / Rep. ed. Lukasheva E.A.-M., 1996.
7. Rule of law, personality, legality. - M., 1997.
8. Theory of State and Law / Ed. Marchenko M.N. - M., 1996. - Lecture 11.
9. Theory of State and Law / Ed. Malko A.V. - M., 1997. Chapter 11.
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"ST. PETERSBURG INSTITUTE
HUMANITIES EDUCATION"
(SPbIGO)
Facultyjurisprudence
Departmenttheory and history of law and state
Course work
Bydiscipline "Ttheories of state and law»
Subject:
“The problem of the relationship between the state and the individual and society»
Performed: 1st year student
full-time education
Popova Daria Dmitrievna
Checked:
Ger Oleg Evgenievich
St. Petersburg 2014
Introduction
1.Basic concepts: State, individual, society
1.1 The concept of the state, its characteristics
1.2 The concept of society, its brief description
1.3 The concept of personality, its characteristics
2. The problem of relations between the state and society
3. Three concepts of the relationship between the state and the individual in the context of human rights problems
4.Civil society and the rule of law: ways of formation
Conclusion
Bibliography
Introduction
This topic has been relevant for a long period of time. The problem of the relationship between the state and the individual and society as a whole has existed since the times when only the first states appeared. The state is the only legitimate public institution designed to regulate social relations. Over the entire period of existence of this independent centralized socio-political organization, many changes have occurred in its structure; the state is developing and progressing together with the development of society and the individual. These phenomena are inextricably linked with each other, and it is difficult to imagine the existence of one without the other, just as it is impossible for each of the phenomena to exist outside of time and space.
The issue of the relationship between the state and the individual and society is considered by various disciplines, in particular, philosophy, political science, psychology, and therefore this topic can be considered from different angles and draw your own conclusions.
The purpose and objectives of this work are: research of the topic, analysis of found works and studies from other sources on this issue.
The main objectives of the course work were:
1) Selection of materials;
2) Finding the problem;
3) Finding ways to solve problems in a given topic;
4) Conclusions and expression of one’s own position on the issue under study.
In this work, the following research methods are used: method of analysis, deduction, induction, synthesis.
1. Basic concepts: State, personality, society
1 . 1 The concept of the state, its characteristics. Origin
I would like to start this research work with the basics, that is, with definitions and general characteristics.
The term " state"is usually used in a broad and narrow sense. In a broad sense, the state is identified with society, with a specific country. In a narrow sense, the state is understood as one of the institutions of the political system that has supreme power in society.
The state can be defined as a social organization that has ultimate power over all people living within the boundaries of a certain territory, and has as its main goal the solution of common problems and the provision of the common good while maintaining, above all, order.
State power is sovereign, i.e. supreme, in relation to all organizations and individuals within the country, as well as independent, independent in relation to other states. The state is the official representative of the entire society, all its members, called citizens.
General characteristics of the state:
1) The presence of a certain territory - the jurisdiction of the state (the right to hold court and resolve legal issues) is determined by its territorial borders. Within these boundaries, the power of the state extends to all members of society
2) Sovereignty - the state is completely independent in internal affairs and in the conduct of foreign policy;
3) Variety of resources used - the state accumulates the main power resources to exercise its powers;
4) Striving to represent the interests of the entire society -- the state acts on behalf of the whole society, and not individuals or social groups;
5) Monopoly on legitimate violence - the state has the right to use force to enforce laws and punish their violators;
6) The right to collect taxes - the state establishes and collects various taxes and fees from the population, which are used to finance government bodies and solve various management problems;
7) The public nature of power - the state ensures the protection of public interests, not private ones. When implementing public policy, there are usually no personal relationships between the authorities and citizens;
8) The presence of symbols - the state has its own signs of statehood - a flag, coat of arms, anthem, special symbols and attributes.
The state is initially a purely functional institution, which, unlike society as an end-to-end system, is created for some reason, for some purpose.
The main functions of the state can be divided into external and internal. Let's take a closer look at each of them.
· Ensuring national security;
· Upholding state and national interests in the international sphere;
· Development of mutually beneficial cooperation;
· Participation in solving global problems;
Internal:
· Political (ensuring conditions for the activities of other political institutions, order in society);
· Economic (regulation of economic relations and structural changes in the economy, including nationalization, privatization;
· Social (programs for the development of education, healthcare, social security and cultural support);
· Ideological (education of members of society, formation of civic and patriotic values through education and the media).
The state, as F. Engels wrote, is “invented” by people. People cannot sleep in a society in which this institution does not exist, and cannot wake up in a system of public administration that has come from nowhere. With the emergence of the state, society and the state begin to exist in inextricable unity.
The state, the individual and society are constantly changing and developing organisms, as a result of which the nature of their relationships also undergoes constant changes.
The state appears at a certain stage of development of society as a political organization, as an institution of power and management of society.
There are many concepts of the emergence of the state, several of which we will now consider for a deeper understanding of the essence of this organization.
· Theological theory of the origin of the state
It became widespread in the 13th century thanks to the work of Thomas Aquinas. According to this theory, in its essence the state is the result of the manifestation of both divine will and human will. State power, by the way it is acquired and used, can be ungodly and tyrannical; in this case, it is allowed by God. The advantages of this theory are that it explains the ideal of state power, which aligns its decisions with the highest religious principles, which imposes special responsibility on it and raises its authority in the eyes of society, contributes to the establishment of social order and spirituality. Theological theory is universal in nature, since it contains not only an anthropological, but also a metaphysical dimension in explaining the origin of the state.
· Paternalistic theory
From the word pater - father. In this theory, there is a direct relationship between the state and the family. For example, Confucius, interpreting the emperor as the “son of Heaven” and the executor of the will of Heaven, at the same time likened the power of the emperor to the power of the head of the family, and the state to a large family. Governance of the state, in his opinion, should be built like governance of a family - based on the norms of virtue, the care of elders for the younger, filial devotion and respect of the younger towards the elder. Also, paternalistic views were reflected in Russian political history, a traditional component of which was the belief of large sections of the population in the “Tsar-Father” and in all authorities as “their own father.” The advantages of this theory lie in the formation of respect for government power. The disadvantages are the denial of the specifics of the state and state power, their qualitative difference from the family and paternal power.
The most famous representatives of the patriarchal theory of the origin of the state include Aristotle, Filmer, N.K. Mikhailovsky and others. They substantiated the fact that people are collective beings, striving for mutual communication, leading to the emergence of a family. Subsequent development and expansion of the family as a result of the unification of people and an increase in the number of these families ultimately leads to the formation of a state.
· Organic concepts of the origin of the state
Ш The theory of Auguste Comte.
According to Comte, society (and, consequently, the state) is an organic whole, the structure, functioning and evolution of which is studied by sociology. In this case, sociology is based on the laws of biology, the operation of which in society undergoes a certain modification due to the unique interaction of individuals and the impact of previous generations on subsequent ones. The main task of sociology as a positive science, which replaced previous theological and metaphysical views, is to substantiate the ways and means of harmonizing society, establishing the organic connection between “order” and “progress”.
Sh Theory of Herbert Spencer.
Spencer interprets the state as a part of nature, which develops like an animal embryo, and in the entire history of human civilization, the natural animal principle dominates over the social (and political) principle. Like an animal organism, a social organism grows and develops through the integration of its component parts, the complication of its structure, the differentiation of functions, etc. At the same time, in social life, as in nature, the most adapted organism survives. In the spirit of the law of evolution, Spencer interprets the pre-state state of society, the emergence and functioning of political organization and political power in a military-type society and the gradual transition to an industrial-type society, state and law. Moreover, in contrast to the overwhelming majority of adherents of the organic approach, Spencer developed liberal-individualist political views and saw the goal of the social organism not in absorbing its members, but in serving them.
Ш Theory of legal positivism
This theory is based on the proclamation of law as the result of an imperious command, an order of the sovereign to the subject. The state is positioned as the sovereign. Legal regulation within the framework of this theory should be carried out in accordance with the historical patterns of functioning of a politically organized society. Legal regulation is based on legalism - law in the objective sense as a system of generally binding legal norms. Regulation can be positive and negative: positive involves the regulation of social relations with the help of legal norms, objectified in official sources, and negative legal regulation represents the silence of the legislator and the permission of subjects to act at their own discretion. Proponents of the theory of legal positivism - G. Kelsen, D. Austin, S. Amos, G.F. Shershenevich, S.A. Drobyshevsky
· Treaty concepts of state origins
These concepts are based on natural law ideas about the contractual origin of the state. According to Epicurus, “justice, which comes from nature, is an agreement about the useful - with the goal of not harming each other and not suffering harm.” Consequently, the state arose as a result of a social contract on the rules of cohabitation, according to which people transfer part of their rights inherent in them from birth to the state as a body representing their common interests, and the state, in turn, undertakes to ensure human rights. The advantages of these concepts are that they have a deep democratic content, justifying the natural rights of the people to form state power, as well as to overthrow it. The disadvantages are that objective external factors influencing states (socio-economic, military-political) are ignored.
· Violent concepts of the origin of the state
These concepts are based on ideas about the emergence of the state as a result of violence (internal or external), for example, through the conquest of weak and defenseless tribes by stronger and more organized ones, that is, the state is not the result of internal development, but a force imposed from the outside, an apparatus of coercion. The advantages of these concepts are that elements of violence were indeed inherent in the process of the emergence of some states. The disadvantages are that in addition to military-political factors, there are also socio-economic factors in the region.
· Marxist concept of the origin of the state
According to this concept, the state is the result of changes in socio-economic relations, the mode of production, the result of the emergence of classes and the intensification of the struggle between them. It acts as a means of oppressing people, maintaining the dominance of one class over others. However, with the destruction of classes, the state also withers away. The advantages of this concept are that it is based on the socio-economic factor of society, the disadvantages are the underestimation of national, religious, psychological, military-political, and other reasons that influence the process of the origin of statehood. Theory of state and law: a textbook / Vlasova T V.V., Duel V.M., Zanina M.A. - Electron: text data http://www.iprbookshop.ru/5768.(04/27/14, 14:19)
1.2 The concept of society, its brief description
Moving on to the meaning of the term “ society“We should also note the close connection with such an institution as the state.
Society is a group of people created through purposeful and intelligently organized joint activity, and the members of such a group are not united by such a deep principle as in the case of a genuine community. Society rests on convention, agreement, and the same orientation of interests. The individuality of an individual changes much less under the influence of his inclusion in society than depending on his inclusion in the community. Society is often understood as the sphere that lies between the individual and the state.
Development of scientific ideas about society.
The study of society is carried out by a special group of scientific disciplines, which are called social (humanitarian) sciences. Among the social sciences, the leading one is sociology (literally “social science”). Only it considers society as a single integral system. Other social sciences (ethics, political science, economics, history, religious studies, etc.) study individual aspects of social life without claiming to have holistic knowledge.
Thinkers in ancient societies typically viewed human life as part of a universal order, a “cosmos.” In relation to the “structure of the world,” the word “cosmos” was first used by Heraclitus. The universalistic ideas of the ancients about society reflected the idea of the unity of man with nature. This idea has become an integral feature of Eastern religions and teachings (Confucianism, Buddhism, Hinduism), which retain their influence in the East to this day.
In parallel with the development of naturalistic concepts, anthropological ones began to develop, emphasizing not the unity of man and nature, but the fundamental differences between them.
For a long time in social thought, society was considered from a political science point of view, i.e. identified with the state. Thus, Plato characterized, first of all, through the political functions of the state (protecting the population from external enemies, maintaining order within the country). Following Plato, Aristotle developed state-political ideas about society, interpreted as relations of domination and subordination. However, he also highlighted purely social (not political) connections between people, considering, for example, friendship and mutual support of free, equal individuals. Aristotle emphasized the priority of individual interests and believed that “what should require relative, not absolute unity of both family and state”, that “every person is his own friend most of all and should love himself most of all” (“Ethics”). If from Plato there comes a tendency to consider society as an integral organism, then from Aristotle - as a collection of relatively independent individuals
The social thought of modern times in the interpretation of society proceeded from the concept of the “state of nature” and the social contract (T. Hobbes, J. Locke, J.-J. Rousseau). Referring to “natural laws,” thinkers of modern times gave them, however, a completely social character. For example, the statement about the initial “war of all against all,” which is being replaced by a social contract, absolutizes the spirit of individualism of the new time. According to the point of view of these thinkers, society is based on rational contractual principles, formal legal concepts, and mutual utility. Thus, the anthropological interpretation of society triumphed over the naturalistic one, and the individualistic one over the collectivist (organistic) one. Encyclopedia around the world http://krugosvet.ru/ (27.04.14, 16:20)
Signs of society:
1) A set of individuals gifted with will and consciousness.
2) General interest, which has a permanent and objective nature. The organization of society depends on the harmonious combination of the general and individual interests of its members.
3) Interaction and cooperation based on common interests. There must be an interest in each other, making it possible to realize the interests of everyone.
4) Regulation of public interests through mandatory rules of conduct.
5) The presence of an organized force (authority) capable of providing society with internal order and external security.
Based on the most important features of society, we can give the following definition to this concept: society is a historically established and self-reproducing community of people living in a given territory, possessing autonomy and resistance to self-regulation based on biological, economic and cultural reproduction.
The concept of “society” should be distinguished from the concepts of “state” (an institution for managing social processes that arose historically later than society) and “country” (a territorial-political entity formed on the basis of society and the state)
1.3 Concept of personality. INrelationship between the individual and society
A person as a subject of social relations, a bearer of socially significant qualities is a person.
As follows from the works of I.S. Kona, the concept of personality denotes the human individual as a member of society and generalizes the socially significant features integrated into it.
M. Weber sees in the role of the subject of social life (personality) only individual individuals who act meaningfully. And such social totalities as “classes”, “society”, “state”, in his opinion, are entirely abstract and cannot be subject to social analysis.
In the concept of “personality,” a system of socially significant human qualities comes to the fore. In a person’s connections with society, his social essence is formed and manifested. That is, we can argue about the indisputable connection between the individual and society, on the one hand.
On the other hand, a feature of personality is its isolation. Awareness of one's isolation allows an individual to be free from arbitrary transient social institutions, the dictates of power, and not to lose self-control in conditions of social destabilization and totalitarian repression.
However, the individual and society are interdependent. Personality is formed and can develop only in society, in a team. In turn, the development of the individual turns out to be a factor influencing the development of the team and society. The development of the individual and society in the process of their interaction is a general pattern that manifests itself in a specific form in various socio-economic formations.
The relationship between society and the individual manifests itself, first of all, along the lines of the correlation of their interests (economic, socio-political and spiritual) and through their mutual influence, the development of collectivism, and self-affirmation, individualization of the individual. Both types of relationships are mediated by the collective, or in a class society by the class.
According to the theory of K. Marx, the subjects of social development are social formations of several levels: humanity, classes, nations, state, family and individual. The movement of society is carried out as a result of the actions of all these subjects. However, they are by no means equivalent and the strength of their impact varies depending on historical conditions. In different eras, the decisive subject is the one who is the main driving force of a given historical period.
However, it must be borne in mind that in Marx’s concept, all subjects of social development act in accordance with the objective laws of social development. They can neither change these laws nor repeal them. Their subjective activity either helps these laws to act freely and thereby accelerates social development, or prevents them from acting and then slows down the historical process. http://www.portalprava.ru “Society: concept, signs.” (04/27/14, 17:20)
Now that we know enough about each object of our study, we can move on to the main problem of our work.
2.Problemmutualrelations between state and society
In this chapter we should consider the problem of relationships and influence of the state and society on each other. There are some general laws that follow from the very nature of both unions and which determine their relationships.
Firstly, the close connection of both unions leads to the fact that the principles that dominate in one are reflected by the force of things on the other. Meanwhile, society is incomparably more stable than the state. Private life, embracing a person completely, determines all his habits, morals, concepts, and mode of action. It is much more difficult to shake all this than to change the political order, which, forming the top of the social edifice, cannot be rebuilt without shaking its foundations. This stability of the civil system constitutes a general historical phenomenon. We have seen that the tribal order, destroyed in the political sphere, stubbornly persists in the civil sphere and from there affects the state. The same phenomenon is represented by the class order. It goes with different modifications from the Roman Empire, through the Middle Ages to modern times. During this period, the political system passed through the most opposite forms, from complete despotism to complete decomposition of the state. In the same way, the general civil order created by the French Revolution remains unshakable among all the political upheavals through which France has passed, from Napoleonic despotism to the present republican rule. This stability of civil life results in its lasting influence on the state. We can express this relationship in the form of a general law by saying that every civil order strives to create a corresponding political order.
Secondly, the influence of society is expressed mainly in the desire of the ruling classes to gain predominant importance in the state. The interaction of individual forces inevitably leads, as we have seen, to inequality of states. The consequence of this inequality is the division of society into classes, higher and lower. The former, taking advantage of their predominant position in society, naturally strive to occupy the same position in the state, and this desire, generally speaking, meets the essential needs of the latter, for the state, as said, draws all its strength and resources from society, and the upper classes are the most prosperous and educated: they, therefore, are the main figures in the political field: they are most capable of serving state goals and giving direction to state life.
However, this natural desire takes on a different character, depending on the properties and position of the ruling classes themselves. Of essential importance here is the legal form by which civil class relations are determined. The legal order either fixes natural divisions or makes them fluid. In this regard, the different orders mentioned above lead to different consequences. In the clan order, with the inseparability of the civil and political spheres, the clan aristocracy receives natural predominance. The invasion of democratic elements represents the process of gradual disintegration of the tribal system. This is precisely the history of the ancient classical states. The same phenomenon is represented by the class order. Here the place of the clan aristocracy, based on natural relations, is taken by the class aristocracy, based on an occupation that gives a primary position in society to the classes devoting themselves to public affairs. In its extreme development, this order leads to the disintegration of the state itself, which breaks up into groups of interconnected private forces. The restoration of state unity here also leads to the rise of subordinate elements, that is, to the process of equalization of classes, the result of which is a general civil system. The latter, being based on the principles of freedom and equality, does not allow the legal dominance of the upper classes, but leaves them only the natural influence resulting from the interaction of free forces. Here divisions are fluid and these principles are transferred to state life. The political order corresponding to the general civil order is an order based on political freedom. This is an inevitable historical law; where this correspondence does not exist, discord is felt in society, which has the consequence of relaxation of the political body. And since in the civil order freedom is established, equal for everyone, then in the political order there is a desire to establish equal political rights for all citizens. Hence the unstoppable development of democracy in all European states based on a general civil order. However, this development meets resistance in the very requirements of the state. The presentation of general state law shows that freedom is an essential element of the state itself; therefore, its development in the civil sphere entails its development in the political sphere. But we have also seen that in political law the beginning of freedom is limited to the beginning of ability. A citizen vested with political rights is not only a free person: he performs certain functions of the state body, and this requires ability. Meanwhile, democracy is the negation of the beginning of ability. Not only does it give everyone the same rights, but by entrusting supreme power to the majority, that is, the masses of the people, it thereby places it in the hands of the least educated, therefore least capable part of society. Hence, sooner or later, the need for government principles to react against the improper predominance of certain social elements.
The guarantee for the inevitable onset of this reaction is that the state, thirdly, not only submits to the influence of society, but also makes up for the shortcomings of the latter. The state and society represent two opposing forms of community life: in one, unity reigns, in the other, diversity and plurality. Both elements are equally necessary; each of them has its own area in which its characteristic principle is predominant. But one principle is not able to replace the other; Only through their mutual replenishment can harmony in social life be achieved. Therefore, where social forces turn out to be insufficient or act in a one-sided direction, they must be replenished by the activities of the state independent of them. In the political field especially, unity of purpose and direction is required; Therefore, the influence of society in this area depends on its ability to act in this sense. This ability is obviously the less, the less unity in the society itself, or the less social forces are able to act in harmony. This is where the replenishing activity of the state is needed. Hence the general law that determines the interaction of both unions is that the less unity in society, the greater the unity in the state, that is, the more independent and concentrated state power should be. This law was formulated by Hippolyte Passy.
Present-day Social Democracy, with its widespread organization, with its hatred of the upper classes, with its desire to destroy the entire existing social system, inevitably leads to dictatorship. Carrying within itself an ideal that suppresses all civil freedom, it no less threatens political freedom. Representative government can only be maintained as long as this party is weak and unable to firmly influence public administration. But her strength is obviously growing, and this must inevitably lead to the deepest upheavals. If she manages to gain a momentary advantage anywhere, she can only hold on with the help of the most terrible terror. From my side. protecting society from the destruction that threatens it will require an unlimited dictatorship. In any case, with the internal struggle of classes animated by mutual hatred, only a government independent of society can protect public order and maintain the unity necessary in the state.
Such power serves, fourthly, as the main factor in the state’s influence on the social system. The state not only compensates for the latter’s shortcomings, but it itself transforms this system in accordance with its requirements. And for this it must be armed with power independent of social forces and bearing within itself the highest idea of the state. The less the structure of society is consistent with this idea, the stronger the need for power independent of it.
The emerging state naturally relies on the strongest elements, subordinating the rest to them, and thereby trying to strengthen the social bond. The same phenomenon is repeated where the state is inclined to decline and feels powerless to protect the collapsing order. In any case, it serves as a sign of the weakness of the state body. On the contrary, when this organism has become stronger, the second task emerges with particular force. The state, in its idea, is the representative of all interests and all elements of society. It should not tolerate some being sacrificed to others. As the bearer of a higher idea, it is the protector of the weak. The more independent state power is from social elements, the more powerful this calling is. Hence the phenomenon repeated in history that monarchical power enters into an alliance with the lower classes against the aristocracy.
This task also determines the role of the state in the development of successive social orders. In the name of state requirements, one civil system is transferred to another.
In the generic order, as we have seen, alien elements find no place for themselves; they are like an external appendage. But if they remain free, then they are part of the state, and therefore must enjoy protection and join political rights. This is required by justice, the highest body of which is the state; This is required by the very benefit of the state, which finds a source of strength and support in excluded elements. The stronger these elements are, the more insistent their demands become. Hence the gradual process of decomposition of the tribal order through the entry of alien elements into it. With the expansion of the state, this process takes on ever greater proportions.
But with the disintegration of the clan order, the social unity based on it is also lost. A power independent of social forces is established, which, in turn, influences society and tries to replace the connection that has disappeared in it with another. Under the influence of state demands, fragmented interests are grouped into separate alliances. The clan order is gradually replaced by class order.
While the state is weak, it relies on the ruling elements and subordinates the rest to them. As quickly as it has become stronger and developed its own organism, the reverse process of unfastening and equalization occurs. Again, in the name of higher state requirements, the class order is transferred to the general civil order. And in this movement the main figure is a government independent of social forces. Even where the government, having forgotten its calling, continues to rely on an outdated order and a new order is established by the pressure of humiliated elements, its establishment still requires despotic power. The French Revolution provided a living example of this. The old monarchy fell along with the class order on which it relied. The third estate appeared on the scene, which, not only in numbers, but also in education and wealth, stood incomparably above the rest, and yet enjoyed much fewer rights. In the name of state ideas developed by the philosophy of the 18th century, it presented its demands and overthrew the resistant remnants of the former civil order. But all that came out of this destruction was chaos. The despotism of Napoleon was required to establish a new order.
With the establishment of a general civil system, the idea of the state, as well as the idea of society, reaches its highest development. Two unions are formed, each in the fullness of its definitions, governed by those principles that flow from their very nature, and being in constant interaction. All elements that make up society, subject to a law equal for all that protects their freedom, receive full scope for their activities and occupy the place that belongs to them according to their natural properties. Through the free interaction of various interests, their connection is established, and the state protects the required unity. state civil society
The goal of the state is to implement ideal principles, the consciousness of which requires higher development, and this belongs to the wealthy classes, who are always and everywhere bearers of higher education. In contrast to quantity, they represent quality. Without renouncing itself, the state cannot sacrifice quality to quantity. One of the most important tasks of politics is to attract the best, that is, the most educated, forces of the country to political activity. But this goal is not achieved when these forces become completely dependent on the uneducated masses.
By its very idea, the state is called upon to maintain a balance between various social elements and bring them to a higher agreement. And to do this, it must arrange its own organism so that quantity in it is balanced by quality. This goal is not achieved by the principles of freedom and equality that dominate the general civil order; transferred to the political sphere, they give a complete advantage to the majority, that is, to pure numbers.
The state must contain an element independent of society. This element, representing the pure unity of the state, is given by the monarchical principle, which thus has its legitimate calling not only in the historical past, but also in the ideal future. At the first stages of political development, it creates state unity and arranges a political body independent of the private interests of clans or classes; at the highest levels, when the unity has been strengthened and the organism has received full development, its highest calling is to hold the scales between them in living communication with social elements and bring them to a harmonious agreement, which constitutes the ultimate goal of human improvement. Chicherin B. N. Course of state science. Volumes I-III. - Moscow, printing house of the partnership I. N. Kushnerev and Co., 1894 “The attitude of society to the state”
There is another major problem in the state-society relationship. The point is that in the process of mutual development there is an alienation of the state from society. Having society as its maternal substrate, having arisen on its basis, the state begins to play a special role in it, gradually alienating itself from it, acquiring its own existence and development trends. From the point of view of Marxism, the “bourgeois state” represents the power of the exploitative minority. Supporters of this trend believe that the creation of a state established on socialist principles will eliminate the social foundations of alienation. Although it is especially noted that alienation cannot be completely eliminated. From this it is concluded that the problem of alienation can only be resolved with the withering away of the state itself - under the conditions of the created stateless communist governance. At this moment, society, according to Engels, “will send the entire state machine to where it will then have a real place: to the museum of antiquities, next to the spinning wheel and the bronze ax.” Engels, F. Decree. Op. - pp. 193-194.
There are also alternative views on the problem of alienation to the Marxist one. These include anarchism with its rejection of the state as such, and various liberal theories, according to which a modern state, built on the principles of democracy, broad exercise of individual rights and freedoms and having a strong civil society, generally objectively perceives and expresses the interests of the social majority, due to which the problem of alienation of the state from society is overcome and loses its former severity.
The history of relations between the state and society can be represented as a search for optimal forms of mutual correspondence. In this context, the entire history of mankind can actually be presented not only as a person’s desire to improve himself and the surrounding social environment - the human community, but also as constant attempts to find a more effective form of organizing his life - a more perfect form of state. Currently, in the context of the globalization of the world and the global financial crisis, there is a search for new forms of organization of the human community in the form of interstate and supranational institutions. Moreover, it is important to note that the search for new forms of organization of social life, regardless of whether we are talking about a state or suprastate form, throughout the entire history of human civilization did not occur spontaneously, but in close interaction with the process of development of their social content, that is, with taking into account the nature and level of development of society. Engels, F. Decree. Op. - pp. 194-195.
3. Three concepts of the relationship between the state and the individual in the context of human rights problems
The relationship between man and the state as the most important social institution has always been the focus of world political and legal thought from the very moment of its inception. Moreover, the content, forms and nature of these relationships to a certain extent provide the basis for assessing the state of ensuring and guaranteeing human rights and freedoms in a particular society, a particular state. Therefore, an analysis of the methodological foundations for understanding these components, the entire complex of relationships between the state and the individual that have developed to date, is of exceptionally great importance for more informed discussions about human rights and to avoid the templates that are so often encountered today when discussing this issue. Unfortunately, the use of these templates, which takes on the character of cloning, is now occurring too often, which cannot but be alarming. Most seminars, meetings, conferences, scientific and educational publications discuss human rights issues based on one main thesis: human rights, like himself, are the highest value that the state (team, community, society) tries to ignore or infringe upon. However, every template that is beneficial for the time being begins to become obsolete and cause ever-increasing harm.
An analysis of existing conceptual approaches to understanding the relationship between the state and an individual from the standpoint of the interpretation of understanding and recognition of freedom in relation to oneself and a partner allows, in the most general terms, to identify two main ones, which have become widespread both in the philosophical and theoretical aspect and in practical terms. We are talking about statist and liberal approaches, which proceed from directly opposite methodological premises in establishing the primacy and secondary nature of interests and expressions of will in relation to each other of the state and the individual.
However, there is another approach, attention to which, in our opinion, despite seemingly all its obviousness, does not receive its scientific and especially practical development in the conditions of Russian reality. We are talking about the concept of the optimal relationship between state and personal (individual) principles, or, in other words, the doctrine of optimum.
Statist doctrine (from state to person)
The main provisions of the modern statist doctrine, which is based on the priority of the state principle in relation to the personal (individual) principle, are associated mainly with the Marxist doctrine of the state and can be reduced to the following.
The main driving force of society is the struggle of classes. This struggle must end with the victory of the proletariat and the establishment of a new social system - socialism and, ultimately, communism. This will be impossible to achieve without the destruction of the state itself, which is a weapon of violence against people. However, such destruction is impossible artificially. The state will die away gradually until classes disappear. Therefore, the new socialist (proletarian) state, emerging after the proletarian revolution, must solve this problem of gradually eliminating class differences. Based on this global task, a new type of state is considered as the most important factor in socialist transformations, to which everyone and everything in society must be subordinated. The state is primary in society, everything else is secondary, derivative. A person is an object of state influence.
Democracy is a class phenomenon. Not everyone is included in democratic processes (the bourgeoisie is excluded). Rights and freedoms relate only to the victorious class - the proletariat. There is no talk about the universality of rights and freedoms. The power of the proletariat, and thereby its rights and freedoms, can only be ensured by violence against those who do not recognize this (the “enemies of the people”). “Pure democracy,” that is, democracy for everyone, does not and can never exist, these are all bourgeois inventions” (V.I. Lenin).
Marxism sees the emancipation of the individual, who can live under communism, in overcoming individualism, in the dissolution of the individual in the state, and individual interests in class (state) ones. The driving force of society is not the interests of the individual, but class interests. Therefore, “civil society” is the enemy of communism, the enemy of the proletarian, socialist state, because in civil society the individual feels himself to be an individual, an independent force opposed to the state. Personality in Marxism is a “generic personality,” that is, not individuality, but something blurred and included in a class relationship. Hence the rejection of the concept of a “rule of law state,” which cannot but recognize the importance of an individual person, an individual person in himself.
The attitude towards private property in Marxism is sharply negative. Private property is the main evil for society, the state and the individual. It is here that the main danger lies, therefore its destruction is the main task after the victory of the proletarian revolution. Approval and protection of state property is the goal of the new state.
Such an almost purely totalitarian characterization of the primacy of the state over the individual, of course, does not evoke positive emotions, especially since, as history (and not only Russia) testifies, there are more than enough facts of this kind. At the same time, it is often asserted that the founders of Marxism (and then their many followers, the brightest of whom is V.I. Lenin), considered the individual person as a cog in the state machine, and did not see the individual’s individuality (humanity, personal beginning). Without setting in this case the goal of entering into polemics on this issue, we will only note that, firstly, an objective reading of the legacy of K. Marx and F. Engels is still, apparently, still ahead, and, secondly, not It should be forgotten that the real embodiment of any social theory, no matter how great and “humane” it may seem, always differs from its theoretical positions.
Liberal doctrine (from person to state)
The liberal doctrine of the relationship between the state and man, being very heterogeneous in its content and the nature of the ideas and provisions included in it, is far from homogeneous; in its classical version it was developed and developed in the works of Hugo Grotius, Charles Montesquieu, John Locke, Benedict Spinoza and many others thinkers - representatives of the natural law school of legal understanding. The modern interpretation of Western-style liberalism, while possessing originality due to the current level of civilizational development of mankind, is still not fundamentally different from the classical approach. But still, the main thing in it, which constitutes the actual liberal core of the doctrine, is the idea of individual freedom, its autonomy in relation to the state, the opportunity to enjoy the inalienable rights to life, property, freedom of self-determination, etc. Indeed, having arisen in the bosom of natural law views, in Subsequently, the liberal doctrine was gradually adopted by representatives of legal positivism. This, in particular, is expressed in the fact that natural human rights, and thereby a certain priority of individual freedom over the state, are embodied in legal documents - from the US Declaration of Independence and the Bill of Rights to the Universal Declaration of Human Rights.
The main provisions of the doctrine in question are as follows.
For a person, an individual, the main thing is freedom. It is freedom that is both a person’s habitat and the most important life value for him. In the sphere of freedom, a person chooses the vector of his life, realizes his interests and passions. If previously a person acted in relation to the state as its subject, then the recognition of freedom presupposes a break with such an attitude. It is freedom that transforms a subject into a citizen, who now has completely new principles of relationship with the state. The individual (citizen) now has equal rights with the state.
Personal freedom is organically connected with equality and inseparable from it. Freedom and equality are necessary conditions for all people to have inalienable, inalienable rights.
Human rights are a system of benefits and conditions, without which the normal functioning of a person, his individual development, his free choice and self-determination becomes simply impossible.
The desire for personal autonomy and freedom of self-determination in the sphere of civil society led to the raising of the problem of the purpose of the state and the boundaries of its activities. The state is now declared as an instrument for ensuring the “common good”, a defender of human rights and freedoms from any encroachment from anyone, including the state itself. At the same time, the question of limiting the power of the state (the activities of the state), which is capable of exceeding its powers in ensuring the protection of rights and freedoms, and thereby interfering at its discretion in this area, is acutely raised.
Of course, the liberal doctrine is not limited to the presented provisions. But, in any case, the quintessence of the liberal worldview is the postulate about man as the highest value. At the same time, it clearly follows that everything else, including the state, are only instruments, means of protecting and defending that very highest value. At the same time, liberals, as a rule, do not ask the question of what kind of person, what kind of personality are we talking about in a particular case. For an orthodox liberal, a person as such is valuable in itself, i.e. as an abstract, whose rights, freedoms, interests, in any case, are primary in relation to the social, collective, state. The state, from the point of view of liberal human rights activists, always strives to infringe, limit human rights and freedoms, and bring them into line with its own - state - interests. In this sense, a person always needs to be on guard in relation to the state; the state for a person is an enemy that seeks to defeat and suppress him.
But is this really so, and is this how it should be? Let's try to answer this question by turning to the approach that, in our opinion, it is advisable to call the doctrine of optimum. Modern liberalism: Rawls, Berlin, Dvorkin and others. M.: House of Intellect. books, 1998. Alekseev S.S. Rising in the right. Searches and solutions. M.: NORM, 2001; Nersesyants V.S. Philosophy of law: Textbook for universities. M.: Publishing house. group INFRA-M - NORM, 1997.
Doctrine of Optimum (man for the state and state for the person)
There are no special studies devoted to the formation of systemic components of such a doctrine. Here, as we have already noted, they usually get by with either characterizing the first two concepts, or limit themselves to pointing out the need to weaken their radical provisions. One could appeal to the concept of the rule of law, which, it would seem, has all the necessary elements to soften the extremes of statist and liberal doctrines, however, even here everything is far from being so simple, if we bear in mind the existing, sometimes sharply different, models and types legal statehood. Without going into all this extremely complex and extensive issues, we will try to outline the main parameters of our vision of the doctrine of the optimal relationship between the state and the individual.
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