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The theory of separation of powers, often referred to as the principle of separation of powers, in the form in which it is now perceived in relation to the state regime, appeared more than three hundred years ago. Its founders are the English materialist philosopher, creator of the ideological and political doctrine of materialism John Locke (1632-1704) and the French enlightener, philosopher and jurist Charles Louis Montesquieu (1689-1755).

Locke's ideas regarding the necessity and importance of the separation of powers were set forth in his main work, Two Treatises on State Government (1690), and Montesquieu's ideas on the separation of powers and his other socio-political views, in the novel Persian Letters; historical essay "Reflections on the Causes of the Greatness and Fall of the Romans" and his main work - "On the Spirit of the Laws" (1748).

like others scientific ideas and concepts, the theory of the separation of powers did not arise from scratch. It was prepared by all the previous socio-political development and the accumulation of historical experience in organizing state-legal life and maintaining stability in society and the state.

Arguing on this topic, the well-known statesman of Russia, the author of the plan for liberal transformations in the country, M.M. Speransky (1772-1839) wrote that "the kingdoms of the earth have their epochs of greatness and decline, and in each epoch the form of government should be commensurate with that degree public education on which the state stands. Each time, the author emphasized, "when the form of government lags behind or anticipates this degree", it "is overthrown by more or less upheavals" 1 .

The theory of the separation of powers could not have arisen, much less "materialized", at that stage of development of the state - the "degree of state formation", which is usually called "Eastern despotism" or "European absolutism". For the power in these state systems, "since ancient times divided political world", invariably concentrated only in one hand - the eastern despot, king, pharaoh, monarch. The law was completely helpless in relation to such power.

Despotic power, according to M. Speransky, in relation to the most arbitrarily issued law "allowed neither measures nor boundaries." As for absolutism, the state machine that reflected and implemented it "was based on autocratic power, limited not by law, but by material" or "its material division."

The theory of the separation of powers arises and begins to "materialize" only at that stage in the development of society and the state, when all the necessary prerequisites for the active participation of broad sections of society in the socio-political life and political processes of the country are ripe, political and ideological pluralism triumphs, at least formally; among the intellectual strata of society there is an intensified search for ways and means of creating reliable guarantees of the rights and freedoms of subjects or citizens; attempts are being made to protect them, and with them the whole of society and the state, from the possible usurpation of all state power both by individuals and by individual state bodies.

It is during this period, in late XVII century, during the period of the so-called “Glorious Revolution” in England, and in the middle of the 18th century, during the period of growing revolutionary sentiments in France, the main provisions were developed by the efforts of J. Locke and C. Montesquieu, the foundation was laid, and the frame of the building called theory was created. separation of powers.

When considering the process of formation of the theory of separation of powers in the scientific literature, three phases are usually distinguished. Firstly, this is the creation of such an ideological background, an environment in which the emergence of the concept of separation of powers, the design of its constituent elements became possible. Secondly, this is the creation of the concept itself, the design of its individual parts and their harmonious combination. And thirdly, this is the introduction of the first adjustments that appeared as a result of the accumulation of practical experience in putting the main provisions of the theory of separation of powers into practice. 2

The duration of these phases, according to scientists, is far from the same. The first phase covers the period from the 16th century. to the second half of XVII in. The second, main, phase - from the second half of the 17th century. until the middle of the 18th century. And the third, final, phase covers the period from the middle of the XVII century. until the end of the first half of the 19th century.

From the point of view of socio-economic and state-legal development, these were in many respects very heterogeneous periods.

However, from the point of view of the formation of the concept of separation of powers, all these processes can be combined "within the framework of the development of one world civilization." Namely, the one that occupied a dominant position in Central and Western Europe, and then spread to North America. " Political culture, of which the concept of the separation of powers became an integral part, was the product of this particular civilization. 3

Speaking about the specific conditions and prerequisites for the emergence of the theory of separation of powers in England (in the interpretation of J. Locke) and in France (in the presentation of C. Montesquieu), it is necessary not only to proceed from an analysis of objective factors, but also to take into account the subjective views of its founders.

In particular, for a deep understanding of the origins, role and purpose of this concept in England, it is very important not only to state such objectively existing factors that most directly affected the content of the theory of separation of powers, but also to establish a more “convenient” for the one that was gaining strength at that time a new class of the bourgeoisie of the constitutional monarchy, which then received legislative consolidation in the Bill of Rights (1689) and the Act of Dispensation (1701), as well as the achievement of a socio-political compromise between the landed and monetary aristocracy, between the bourgeoisie that actually dominated the country and the officially ruling nobility, and others

Objective factors - really existing conditions and prerequisites - are undoubtedly the basis, the basis on which both individual ideas arise and function, as well as the theory of separation of powers itself. They, of course, are essential for the process of emergence and development of the concept under consideration and play a dominant role in this. 4

However, subjective factors, in particular the political, legal and philosophical views of the founder of the doctrine of the separation of powers, J. Locke, are far from being of secondary importance for this process.

Being a supporter of the theory of natural law, social contract, non-alienability of natural rights and individual freedoms, and finally, an ideologist of social compromise and a defender of the ideas of liberalism, J. Locke, not without reason, considered the principle or theory of separation of powers he was developing as one of the ways to achieve the principles that had developed in his worldview. goals and the solution of a number of socio-political problems.

Representing the state as a set of people united into one unit under the auspices of the common law established by them and created a judicial authority competent to resolve conflicts between them. 5 J. Locke believed that only such, and not any other institution, as the state - the bearer of public (political) power, is able to protect the rights and freedoms of citizens, guarantee their participation in public and political life, achieve "the main and great end" - the preservation of property, for which people unite in a political community.

However, the successful fulfillment of this complex and very multifaceted mission on the part of the state certainly requires, according to the views of the famous philosopher, a clear division of its public law powers into components that balance each other and, accordingly, endowing them with various state bodies “restraining” each other from excessive power claims.

In accordance with this vision of the issue, the power to make laws (legislative power) is vested in the parliament, and the power to implement them (executive power) is vested in the monarch and the government (cabinet of ministers). All types of public-power activities and the state bodies implementing them are arranged in a hierarchical order. The legislature is the supreme power. All other branches of government are subordinate to it, but at the same time they have an active influence on it.

upholding this method organization of power and its distribution among various state bodies, J. Locke actively opposed the concept of absolutization and unlimited power. Absolute monarchy, the author wrote in this regard, which some consider to be "the only form of government in the world", is in fact "incompatible with civil society and therefore cannot be a form of civil government." 6

The fact is, the scientist explained, that since she herself does not obey the law, then, consequently, she cannot ensure the obedience to him and other authorities and persons. Such a power is also unable to guarantee the natural freedom of man.

The latter lies in the fact that a person by nature is completely free "from any power on earth that is higher than him and does not obey the power of another person, but is guided only by the law of nature." 7 In contrast to natural freedom, "man's freedom in society" consists in the fact that he is not subject to any other "legislative power than that which is established by agreement in the state, and is not subject to anyone's will and is not limited by any or by law, except such as may be established by that legislature in accordance with the confidence placed in it." eight

According to the philosophical and political views of J. Locke, if absolute monarchy- this constructed tyranny and lawlessness is in deep contradiction with human nature and the social contract, then public political power, built on the basis of the principle of separation of powers, initially corresponds to the natural nature of people.

Substantiating this thesis, the author referred to such natural features of a person as his ability to create common rules of behavior for all and in Everyday life be guided by them; as the ability to implement the decisions he makes and apply general rules to specific situations; finally, as the ability not only to establish, but also to maintain, at a certain level and within certain limits, one's relations with other people. The presence of these natural features of a person substantiated the necessity and naturalness of the separation of powers into legislative, executive, judicial and federal (in charge international relations) power.

Of course, the real manifestation of these features, as well as the very separation of powers, is possible only in the conditions of the state, and not before the state, natural existence and state of the individual and the whole society. For, in the first place, in the state of nature, according to Locke, “there is a lack of an established, definite, known law,” which would be recognized and admitted by common consent as “the norm of justice and injustice, and would serve as a common standard,” by means of which disputes between them would be resolved.

Second, in the natural state there is a lack of a knowledgeable and impartial judge, who would have the power to resolve all difficulties in accordance with the established law.

And thirdly, in the state of nature often "there is a lack of strength that could support and support a just sentence and carry it out." nine

Similar ideas about the separation of powers were developed and supplemented later in the works of C. Montesquieu. In every state, he wrote, “there are three kinds of power: legislative power, executive power, in charge of questions international law, and executive power, in charge of civil law issues.

By virtue of the first part, the sovereign or institution creates laws, temporary or permanent, and amends or repeals existing laws. By virtue of the second, he declares war or makes peace, sends and receives ambassadors, ensures security, prevents invasions. By virtue of the third power, he punishes crimes and resolves conflicts between individuals. The last power can be called judicial, and the second - simply the executive power of the state. ten

Inextricably linking the idea of ​​political freedom with the idea of ​​civil freedom and advocating strict observance of the laws governing relations between citizens and the state, Montesquieu, like Locke, saw in a clear separation and mutual restraint of powers not only a real guarantee of the rights and freedoms of citizens, but also their protection from state arbitrariness and lawlessness.

The absence of such a separation of powers, as well as the absence of a mechanism for their mutual containment of each other, inevitably leads, according to the thinker, to the concentration of power in the hands of one person, a state body or a small group of people, as well as to the abuse of state power and arbitrariness.

Considering the origins of the theory of separation of powers, as well as the process of its formation and development, in the scientific and educational legal literature it is quite rightly pointed out that, despite the generality of many of the provisions made by Locke and Montesquieu in relation to the theory under consideration, Montesquieu's doctrine of the separation of powers " had a significant novelty compared to previous concepts. eleven

What was it? Firstly, in the fact that Montesquieu combined the liberal understanding of freedom with the idea of ​​constitutionally fixing the mechanism of separation of powers. Freedom, the educator argued, "is established only by laws and even fundamental laws." And secondly, in the fact that he spoke more definitely in favor of the inclusion of the judiciary in the composition of the authorities subject to delimitation. System government controlled, built on the basis of the principle of separation of powers, primarily the legislative and executive powers, was supplemented by Montesquieu with the principle of the independence of judges.

The triad considered by him in the form of legislative, executive and judicial authorities eventually became classical formula theories of constitutionalism.

Ideologically, the theory of the separation of powers was directed against royal absolutism and served as a justification for the compromise between the bourgeoisie and the nobility that had developed under the conditions of pre-revolutionary France. The state form of such a compromise in France, as well as in England, was seen as a constitutional monarchy.

The theory of separation of powers had and still has not only scientific, academic, but also practical significance. The ideas of the separation of powers were widely represented, for example, in such fundamental acts that had great legal and political and practical significance for their time, such as the Declaration of the Rights of Man and Citizen (1789), which emphasized Special attention not only on individual rights and freedoms, but also on the importance for establishing the constitutional order of the separation of powers (art. 16);

The Constitution of France (1791), which fixed the fundamentally important provision that “in France there is no power standing above the law” and that “the king reigns only by virtue of the law, and only in the name of the law can he demand obedience” (ch. II, section 1, article 3); and etc.

Particular attention should be paid to the fact that in the Constitution of 1791, along with the monarchy, which was preserved, although limited by law, in the section “On state authorities”, the provision was highlighted that “sovereignty belongs to the whole nation”, that it is “one, indivisible, inalienable and inalienable."

Very important in terms of the separation of powers was the constitutional provision, according to which "no part of the people, no person can appropriate its implementation."

According to this regulation, “legislative power is entrusted to the National Assembly, which consists of representatives. freely elected by the people certain period". Executive power "is entrusted to the king and is exercised under his leadership by ministers and other responsible bodies." Judicial power is “entrusted to judges elected by the people for a fixed term” (Section III, Art. 1-5).

In the course of its formation and development, the theory of the separation of powers found a fairly wide response in the academic and political circles not only in England and France, but also in a number of other countries.

Moreover, if, for example, in America it enjoyed great success from the very beginning and was adopted by local scientists and politicians, then in Germany, among a significant part of the intellectual elite, a number of its provisions were questioned.

So, in the fundamental work "The General Doctrine of the State" G. Jellinek expresses his clearly skeptical attitude about the possibility of real life to achieve a situation where the legislative power in the person of parliament can actually restrain the executive power, which is in the hands of the monarch; when a balance can be reached between them.

Such a state is, according to the scientist, “politically the least probable, since the ratio of social forces that form the basis of political power is extremely rare and, in any case, only temporarily develops in such a way that a complete balance of two constant political factors is possible.” But it is precisely for “such an incredible combination that the theory of equilibrium” of Montesquieu and its other supporters is designed, and for this reason alone the reality of the application of this theory and its effectiveness is subject to doubt. 12

In Russia, among a number of other statesmen and scientists, the theory of the separation of powers occupied special attention of M.M. Speransky. In his "Introduction to the Code of State Laws" (1809), he wrote in connection with an attempt to use this theory to "transform" the autocracy and the desire to put it within the framework of the law, that "it is impossible to base government on the law if one sovereign power will also make the law and fulfill it." It needs to be separated. It is necessary that some "decrees" operate in the process of drafting the law, and others - in their execution. thirteen

From the triple order of state forces, the author continued, there arises "a threefold order of the forces of institutions." One of them “should act in the formation of the law, the other - in execution, the third - in the part of judgment. The mind of all the forces of institutions can be different.

MM. Speransky proposed "two different devices" of autocratic power based on the law and the principle of separation of powers.

The first version of such a device consists in “clothing autocratic government” with all “external forms of law, leaving in its essence the same force and the same space of autocracy.”

The main features and features of such a device are reduced, according to the author, to: 1) "to establish an estate that would represent a legislative, free force", which in fact would be "under the influence and in complete dependence on autocratic power"; 2) executive power “so establish that, according to the law, it is responsible, but according to its reason it would be completely independent”; 3) the power of judgment "to give all the advantages of apparent freedom, but to bind it in fact with such institutions, so that in its essence it always consists in autocratic power."

This version of the autocratic system, Speransky concluded, would only seem to be valid "in the opinion of the people". But in reality it will never be.

The essence of the second version of such a device comes down to not only “covering the autocracy with external forms”, but also limiting it “by internal and external, essential force of institutions”. Sovereign power must be established on the basis of law, not by words, but by deeds.

Namely: 1) the legislature should be so arranged that it cannot make its provisions without sovereign power, but that its opinions be free and express the opinion of the people”; 2) the judiciary should be formed in such a way that “in its existence it depends on free choice, and only the supervision of judicial forms and the protection of general security belong to the government”; 3) executive power "should be entirely entrusted to the government." And so that this power "by its orders under the guise of fulfilling laws" could not "neither disfigure", "nor completely destroy" them, then it should be placed under the "responsibility of the legislative power." fourteen

Comparing these two possible options transformation of the autocracy with the help of the theory of separation of powers, Speransky made the final conclusion in favor of the second one as a more perfect and more effective option.

If the first of the potential systems compared with each other, he analyzed, "has only the appearance of a law," then the other is "its very essence." If the first is short-lived and “from afar prepares itself for its termination”, then the other, under favorable circumstances, “can establish itself, for a long time without important changes, gradually follow civil improvement.” Finally, if the first can be “justified in a people that is self-willed, fickle, prone to all new philosophies, and especially when this people emerge from anarchy with perverse habits,” then the second “one can be characteristic of a people that has a better sense than inquisitiveness, a more simple and firm mind than imagination, whose character is difficult to seduce, not easy to convince with simple truth. fifteen

Speaking about the attention to the theories of separation of powers in Russia in other countries, it should be noted that not only was its traditional model - a triad consisting of legislative, executive and judicial powers - widely used, but also other variants were proposed.

So, M.M. Speransky proposed, in addition to the traditional separation of powers, to use their classification into physical and material powers. Renowned French lawyer late XIX- beginning of XX century. M. Oriou in his fundamental work “Fundamentals of Public Law” singled out and analyzed political and economic, military and civil, civil and religious authorities, etc., from the point of view of the relationship and mutual “balance” of authorities.

As the author rightly remarks, “one of the advantages of the theory of equilibrium is that it gives meaning and significance to numerous divisions that are visible even with the most superficial observation of state regime". The latter is always the "mode of divisions". He is in balance only due to the fact that he "separates the forces surrounding him, opposing them to each other and replenishing one at the expense of the other."

M. Oriou, not without reason, considered it possible to use the theory or principle of separation and containment (balance) of powers not only for the analysis of power relationships that arise in the state sphere, but also in various public spheres. "At its essence, civil society," he observed, "rests on a basic division between political power and economic power."

Similar approaches to the analysis of the separation of powers and the broad interpretation of this theory were subsequently used by many other authors.

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One of the first historical examples of the constitutional separation of powers are the laws developed and implemented in Sparta by Lycurgus in the 8th century BC. . Then Lycurgus assigned his role to the people, the aristocracy and the kings, and created political system which lasted over 800 years.

There are other examples of separation of powers in history. So, in the Achaemenid Empire, the troops were not subordinate to the satraps, and at the same time, the military leaders did not have administrative power.

The idea behind the modern separation of powers was laid down in the constitution of the Roman Republic, a set of precedented, usually unwritten principles. The central government in Ancient Rome was divided into three main powers: the consuls, the senate, and the comitia. Thus, each part of the government in republican times was a separate organization, none of which could usurp full power.

One of the first theorists of the theory of separation of powers is the medieval thinker of the XIV century Marsilius Padua. In his treatise "Defender of the World" (Defensor pacis), Marsilius theoretically substantiates the need for the separation of power into legislative and executive, although the main part of his work is the rationale for the separation of church and state.

The further development of the theory of separation of powers is associated with the names of D. Locke and the French enlighteners, especially Charles Louis Montesquieu, who carried out the most thorough development of this principle. Namely, starting from that time (that is, from the end of the 18th - beginning of the 19th centuries), the principle of separation of powers was recognized in many states.

The most consistent principle of the separation of powers was carried out in the US Constitution of 1787. At the same time, the "founding fathers" (A. Hamilton, J. Madison, J. Jay) developed the classical model. They supplemented it with a model of "vertical" separation of powers, that is, ways of delimiting powers between the federal government and the government of the states. In addition, the well-known system of "checks and balances" (English checks and balances) was included in the content of the classical model. The practical implementation of this system received a powerful impetus in connection with the decision of the US Supreme Court Marbury v. Madison (1803), as a result of which the US judiciary actually exercised its prerogative of control over the constitutionality of certain legislative acts.

The principle of separation of powers in the legislation of different countries

Germany

Although formally the President of the Russian Federation is not the head of the executive branch, he is most closely associated with it. Decrees and orders of the President are by-laws, and therefore are neither laws nor judicial decisions, but are of an executive nature. The President presents his program before the elections. And for its implementation, he, with the consent of the State Duma, appoints the chairman of the government. And then, on the proposal of the Prime Minister, he appoints ministers.

According to one point of view, the president is considered only as the head of state, the guarantor of all constitutional institutions, standing "above all branches" of power, is the fourth branch of power - "presidential". But this contradicts Article 10 of the Constitution of the Russian Federation, which enshrined the principle of separation of powers into legislative, executive and judicial.

Another point of view is that the president, as the head of state, has the powers of the executive branch, but is not included in the system of its organs.

Indeed, the President of the Russian Federation has very extensive powers, and the constitutional model of this institution corresponds to the model of a strong president adopted in many countries of the world. However, both points of view, placing the President of the Russian Federation outside the branches of power designated in the Constitution of the Russian Federation, contradict the fixed principle of separation of powers.

According to the third point of view, the president of the Russian Federation, being the head of state, is the most important element of the executive power system, since it is not the government that determines the main directions of state policy, but the president in his regulatory decrees and annual messages to the Federal Assembly. The president may decide to dismiss the government.

Responsibilities of the president - appointments to public office, determination of directions public policy, presidential programs, control functions, management of foreign policy and law enforcement agencies - are the functions of the executive branch.

In the Constitution of the Russian Federation there is no concept of the head executive power. The Government “exercises executive power in the Russian Federation”. "The Chairman of the Government, in accordance with the laws and decrees of the President, determines the main directions of activity and organizes the work of the government."

According to the law "On the Government", the government is the highest body of executive power and is a collective body. The system of executive authorities includes federal ministries, federal services and federal agencies, as well as their territorial bodies.

State bodies whose functions are defined in the constitution

In addition to the president, the constitution also specifies other government bodies that are not included in the traditional system of separation of powers:

• Administration of the President of the Russian Federation - ensures the activities of the President of the Russian Federation;
• Plenipotentiary Representative of the President of the Russian Federation - represent the President of the Russian Federation in the highest judicial and legislative bodies of the Russian Federation, as well as in federal districts;
• Bodies Procuracy of the Russian Federation - attorney general appointed by the Federation Council and exercise on behalf of the Russian Federation supervision over compliance with existing laws;
• Central Bank of the Russian Federation - the Chairman of the Central Bank of the Russian Federation is appointed State Duma. The main function that it performs independently of other public authorities is to ensure the growth economic potential country and stability, issues money;
• The Central Election Commission of the Russian Federation - conducts elections and referendums, heads the system of election commissions;
• The Accounts Chamber of the Russian Federation - half of the composition and the chairman are appointed by the State Duma, half - by the Federation Council, exercises control over the execution of the federal budget;
• Commissioner for Human Rights in the Russian Federation - considers complaints from citizens of the Russian Federation and other applicants against decisions and actions of state bodies and bodies local government takes measures to restore violated rights;
• other federal agencies.

Separation of powers in the subjects of the Russian Federation

In addition to the separation of powers "horizontally", there is a separation of powers "vertically" - the delimitation of jurisdiction and powers between the state authorities of the Russian Federation and the state authorities of the subjects of the Russian Federation, as well as the separation of powers in the subjects of the federation themselves.

Article 1 of the Federal Law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" dated October 6, 1999, establishes such principles for the activities of public authorities as the unity of the system of state power, the division of state power into legislative, executive and judicial in order to ensure a balance of powers and exclude the concentration of all powers or most of them in the jurisdiction of one state authority or official, independent exercise by state authorities of their powers. The specified federal law also defines the main powers, the basis of the status and procedure for the activities of legislative (representative) and higher executive bodies of state power, as well as top officials of the constituent entities of the Russian Federation. The courts of the subjects of the Russian Federation include magistrates, and also - in some subjects - constitutional (charter) courts. In the subjects of the Russian Federation, there are also territorial bodies of federal executive bodies, as well as officials of the Administration of the President of the Russian Federation, prosecutors, election commissions and other state bodies that do not belong to any of the main branches of power.

France

• President of the Republic of France. Elected by popular vote for a term of five years. The President enforces the Constitution. He ensures by his arbitration the normal functioning of the public authorities, as well as the continuity of the state. He is the guarantor of national independence, the integrity of the territory, compliance with international treaties. The president negotiates treaties and ratifies them. executive functions. Presides over government meetings. The president appoints the prime minister, terminates the performance of his functions upon the latter's application for the resignation of the government. On the proposal of the Prime Minister, the President appoints other members of the government and terminates their powers. May, after consultation with the Prime Minister and the Presidents of the Houses, announce the dissolution of the National Assembly. Signs ordinances and decrees adopted by the Council of Ministers. Appoints civil and military government positions. The President is the head of the armed forces. He presides over the highest councils and committees of national defense.
• Executive power. The government determines and carries out the policy of the nation. It is responsible to Parliament on terms and in accordance with procedures. The Prime Minister directs the activities of the government. AT exceptional cases he may, on special assignment, replace the president as chairman at meetings of the Council of Ministers with a specific agenda.
• Legislative power belongs to the Parliament, which includes two chambers - the Senate and the National Assembly. Parliament meets in extraordinary session at the request of the Prime Minister or a majority of the members of the National Assembly on a specific agenda. Extraordinary sessions are opened and closed by presidential decree.
• Judicial branch. The President of the country is the guarantor of the independence of the judiciary, the status of judges is established by organic law, and the judges themselves are irremovable. The judicial system of France is multi-stage, and it can be divided into two branches - the judicial system and the system of administrative courts. The lowest level in the system of courts of general jurisdiction is occupied by tribunals of small instance. Cases in such a tribunal are heard by a single judge. However, each of them has several magistrates. The Tribunal of Small Instance hears cases with insignificant sums, and the decisions of such courts are not subject to appeal. In criminal cases, this court is called the police tribunal. These tribunals are divided into chambers: civil affairs and the Correctional Court. In addition, special-purpose judicial bodies operate in France: commercial courts and military courts.

AT modern world separation of powers is a characteristic feature, a recognized attribute of a legal democratic state. The very same theory of separation of powers is the result of the centuries-old development of statehood, the search for the most effective mechanisms that protect society from despotism.

The theory of the separation of powers was created by several political researchers: the idea was expressed by Aristotle, was theoretically developed and substantiated by John Locke (1632-1704), in its classical form it was developed by Charles Louis Montesquieu (1689-1755) and in its modern form - Alexander Hamilton, James Madison, John Jay - authors of The Federalist (a series of articles published under a general headline in the leading newspapers of New York during the discussion of the American Constitution of 1787, which promoted the unity of the United States on a federal basis).

The main provisions of the theory of separation of powers are as follows:

1. The separation of powers is enshrined in the constitution;

2. According to the constitution, the legislative, executive and judiciary provided different people and bodies;

3. All powers are equal and autonomous, none of them can be eliminated by any other;

4. No power can exercise the rights granted by the constitution to another power;

5. The judiciary operates independently of political influence, judges enjoy the right to long tenure. The judiciary can declare a law null and void if it is contrary to the constitution.

The theory of the separation of powers in the state is designed to justify such a structure of the state that would exclude the possibility of usurpation of power by anyone in general, and in the nearest way - by any body of the state. Initially, it was aimed at justifying the limitation of the power of the king, and then began to be used as a theoretical and ideological basis for the struggle against all forms of dictatorship, the danger of which is a constant social reality.

The theoretical and practical origins of the principle of separation of powers are in Ancient Greece and Ancient Rome. The analysis of political structures and forms of government by Plato, Aristotle and other ancient thinkers paved the way for the justification of this principle in the Age of Enlightenment.

AT Ancient Greece Solon, being an archon, created the Council of 400 and left the Areopagus, which, in their powers, balanced each other. These two organs, according to Solon, were to be likened to two anchors that protect the ship of state from all sorts of storms. Later, in the IV century. BC e., Aristotle in "Politics" pointed out three elements in the state system: the legislative and advisory body, the magistrates and the judiciary. Two centuries later, the prominent Greek historian and politician Polybius (210-123 BC) noted the advantage of a form of government in which these constituent elements counteract each other. He wrote about the legendary Spartan legislator Lycurgus, who established a form of government that combined "all the advantages the best forms government, so that none of them develop without measure and turn into a kindred reverse form so that all of them are restrained in the manifestation of properties by mutual opposition and not one would pull in its direction, would not outweigh the others, so that in this way the state would invariably remain in a state of uniform oscillation and balance, like a ship going against the wind.

The principle of separation of powers was theoretically developed in the Middle Ages. First of all - in the work "Two treatises on state government" (1690) by the English philosopher John Locke, who, in an effort to prevent the usurpation of power by one person or group of persons, develops the principles of the relationship and interaction of its individual parts. Priority remains with the legislature in the mechanism of separation of powers. She is supreme in the country, but not absolute. The rest of the authorities occupy a subordinate position in relation to the legislature, but they are not passive in relation to it and exert an active influence on it.

A century after the publication of the Two Treatises on State Government, the Declaration of the Rights of Man and of the Citizen, adopted on August 26, 1789, by the National Assembly of France, proclaims: "A society in which the enjoyment of rights is not secured and the separation of powers is not carried out has no constitution."

The views of Locke were theoretically comprehended and developed into the classical theory of the separation of powers (practically in its modern sense) by the French philosopher and educator Charles Louis Montesquieu (full name - Charles Louis de Secondat, Baron of Breda and Montesquieu) in the main work of his life - "On the Spirit of Laws" , on which Montesquieu worked for 20 years and which was published in 1748. This work consists of 31 books and is divided into 6 parts. Under the "spirit" of the laws, Montesquieu understood that rational, regular in them, which is due to the rational nature of man, the nature of things, etc.

The presence and functioning of the system of separation of powers in the state should, according to Montesquieu's plan, protect society from the abuse of state power, the usurpation of power and its concentration in one body or one person, which inevitably leads to despotism. Montesquieu saw the main goal of the separation of powers in avoiding the abuse of power. “If,” he wrote, “legislative and executive power are united in one person or institution, then there will be no freedom, since it can be feared that this monarch or senate will create tyrannical laws in order to also tyrannically apply them. There will be no freedom even if the judicial power is not separated from the legislative and executive power.If it is connected with the legislative power, then the life and freedom of citizens will be in the power of arbitrariness, for the judge will be the legislator.If the judicial power is connected with the executive, then the judge gets the opportunity everything would perish if in the same person or institution, composed of dignitaries, nobles or ordinary people, these three powers were combined: the power to make laws, the power to enforce the decrees of a national character, and the power to judge the crimes or lawsuits of private individuals.

Montesquieu also belongs to the development of the provision on the system of checks of various authorities, without which their separation would not be effective. He argued: "We need such an order of things in which the various authorities could mutually restrain each other." This, in essence, is about the so-called system of checks and balances, where the balance of legislative, executive and judicial powers is determined by special legal measures that ensure not only interaction, but also mutual limitation of the branches of power within the limits established by law.

Great contribution to creative development the idea of ​​checks and balances and its implementation in practice was introduced by an American statesman (twice former president USA) James Madison (1751-1836). He invented a system of checks and balances, thanks to which each of the three powers (legislative, executive and judicial) is relatively equal. This Madison checks and balances are still in place in the US today.

Madison called checks and balances the partial overlap of the powers of the three powers. So, despite the fact that Congress is the legislature, the president can veto laws, and the courts can declare an act of Congress invalid if it is contrary to the Constitution. The judiciary is restrained by presidential appointments and ratification by Congress of those appointments to office in the judiciary. Congress restrains the president by its power to ratify executive appointments, and it restrains the other two powers by its power to appropriate money.

The principle of separation of powers is accepted by the theory and practice of all democratic states. As one of the principles of the organization of state power in modern Russia, it was proclaimed by the Declaration "On the State Sovereignty of the Russian Federation" on June 12, 1990, and then received legislative consolidation in Art. 10 of the Constitution of the Russian Federation, which reads: "State power in the Russian Federation is exercised on the basis of division into legislative, executive and judicial. Legislative, executive and judicial authorities are independent."

The separation of powers in Russia is legislative activity carried out by the Federal Assembly: federal laws are adopted by the State Duma (Article 105 of the Constitution), and on issues listed in Art. 106, - by the State Duma with obligatory subsequent consideration in the Federation Council; executive power is exercised by the Government of the Russian Federation (Article 110 of the Constitution); The organs of the judiciary are the courts, which form single system, headed by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. The coordinated functioning and interaction of all branches and bodies of state power is ensured by the President of the Russian Federation (part 2 of article 80 of the Constitution).

However, the practical implementation of the principle of separation of powers in Russia is proceeding with great difficulty. As noted in the literature, everyone is ready to recognize the separate existence of each of the three authorities, but not their equality, autonomy and independence. This is partly due to the long period of totalitarian rule. In the history of Russia, no experience whatsoever of the separation of powers has been accumulated; here the traditions of autocracy and autocracy are still alive. Indeed, in itself, the constitutional separation of powers (into legislative, executive and judicial) does not automatically lead to order in the state, and the struggle for leadership in this triad dooms society to political chaos. Of course, the imbalance of the mechanism of checks and balances is only transitional stage in the process of state formation.

Like any idea, the theory of separation of powers has always had both supporters and opponents. It is no coincidence that Montesquieu had to publish in 1750 a brilliant work entitled "Defense" On the Spirit of the Laws.

Marxism, in assessing the classical doctrine of the separation of powers, proceeded only from the ideological background of its emergence in the era of the first bourgeois revolutions. Such an underlying reason can be considered a compromise of class forces, achieved at a certain stage in the struggle of the bourgeoisie for political domination. Proceeding from this, Marx and Engels identified the doctrine of the separation of powers with the expression in the political consciousness of the dispute between the royal power, the aristocracy and the bourgeoisie over domination. The Soviet doctrine absolutized this aspect and contrasted the theory of separation of powers with the theory of the sovereignty of the Soviets, the sovereignty of the people, etc. In fact, this was only a theoretical cover for the usurpation of state power, the totalitarian essence of the regime.

The meaning of the classical doctrine of the separation of powers (in the form in which it was developed by Montesquieu and supported by Kant) should not be reduced to the expression of a compromise between class and political forces, neither to the division of labor in the sphere of state power, expressing popular sovereignty, nor to the mechanism of "checks and balances" that has developed in developed state-legal systems. Separation of powers is first and foremost a legal form of democracy.

The mechanism of the state: the concept of structure and its evolution in states of various types. Basic principles of activity in modern states.

The state really acts, manifests itself only as a system, as an ordered set of special bodies, teams of people who manage the affairs of society on its behalf and within the limits of the powers granted. Such collectives operate constantly and, as a rule, on a professional basis, which distinguishes them from society and puts them above society. Citizens can take part in the affairs of the state, but in the end, state bodies, officials are personally responsible for the effectiveness of their work (V.M. Syrykh). Similar system state bodies, professional teams and is called the mechanism of the state. Consequently, the mechanism of the state is a system of state bodies designed to exercise state power, tasks and functions of the state. The mechanism of the state is that real organizational and material force, with which the state pursues a particular policy.

AT legal science the concept of "mechanism of the state" and "state apparatus" are usually used as synonyms, although there is a point of view according to which the state apparatus is understood as a system of bodies that directly implement managerial activity and endowed with authority for this, and the concept of “mechanism of the state” includes, along with the state apparatus, also state institutions and organizations, as well as “material appendages” of the state apparatus (armed forces, police, penitentiary institutions, etc.) on which the state apparatus operates.

There is a scientific position, according to which the apparatus of the state refers to all the organs of the state in statics, and the mechanism of the state - the same organs, but in dynamics. Studying the apparatus of the state, they speak primarily about the appointment, the procedure for formation, the competence of a state body, and studying the mechanism of the state - directly about the activities of state bodies, about their relationship with each other in the process of implementing certain functions of the state (V. V. Lazarev , S.V. Lipen).

Characteristic features of the mechanism of the state:

a) it is a system, i.e. an ordered set of state bodies interconnected with each other. The mechanism of the state includes legislative bodies (parliament), the president with his administration, executive bodies (government, ministries, departments, state committees, governors, etc.), judicial bodies (constitutional, supreme, arbitration and other courts), prosecutorial and other supervisory authorities, police, tax police, armed forces, etc. All together they constitute a single system of domination;

b) its integrity is ensured by common goals and objectives. It is the goals and objectives that unite such different government departments in single organism, orient them to the solution common problems, direct their energy in a certain positive direction; c) its main element is the state bodies with power;

d) it is the organizational and material force (lever) with the help of which the state exercises its power, achieves concrete results.

Mechanism modern state is different a high degree complexity, variety of its constituent parts, blocks, subsystems. Under the structure of the mechanism of the state understand it internal structure, the order of arrangement of its links, elements, their subordination, correlation and interconnection.

The structure of the mechanism of the state includes:

1) state bodies that are located in close relationship and subordination in the exercise of their direct power functions. The peculiarity of these bodies is that they have state-imperious powers, i.e. such means, resources and opportunities that are associated with the power of the state, with the adoption of universally binding management decisions(parliament, president, government, ministries, departments, state committees, governors, administrations of territories and regions, etc.);

2) state organizations are such subdivisions of the mechanism of the state (its “material appendages”), which are called upon to carry out the protective activities of this state (armed forces, security services, police, tax police, etc.);

3) state institutions are such subdivisions of the mechanism of the state that do not have power (with the exception of their administrations), but carry out direct practical activities to perform the functions of the state in the social, cultural, educational, scientific fields (libraries, clinics, hospitals, post, telegraph, research institutes, universities, schools, theaters, etc.);

4) state enterprises are such subdivisions of the mechanism of the state that also do not have power powers (with the exception of their administrations), but carry out economic and economic activities, produce products or provide production, perform various works and provide numerous services to meet the needs of society, extract arrived;

5) civil servants (officials), specially engaged in management. Civil servants differ in their legal status in the machinery of the state.

Depending on the powers, they can be divided into the following types:

a) persons holding positions related to the direct execution of the powers of a state body (president, head of government, deputies, ministers, etc.);

b) persons holding positions to directly ensure the powers of the above-mentioned employees (assistants, consultants, advisers, etc.);

c) persons holding positions established by state bodies to execute and ensure the powers of these bodies (referents, specialists, managers structural divisions apparatus, etc.);

d) persons who do not have administrative powers (doctors in state medical institutions, university professors, other employees who receive wages from the state budget);

6) organizational and financial resources, as well as coercive force, necessary to ensure the activities of the state apparatus.

The mechanism of the state and its structure do not remain unchanged. They are influenced both internally (cultural-historical, national-psychological, religious-moral characteristics, the territorial size of the country, the level of economic development, the balance of political forces, etc.), and externally (the international situation, the nature of relations with other states and etc.) factors.

In particular, if a state has a large territory (for example, the Russian Federation), then its management system will be appropriate, including complex structure the mechanism of the state (general federal bodies of state power and administration and bodies of state power and administration of the subjects of the federation); in conditions of war, the role of the army, special services, military enterprises, etc., increases; in conditions of a high level of crime, corruption and other negative, painful phenomena in the public organism special meaning acquire law enforcement, specially designed for "surgical" intervention and neutralization of these "diseases"; in conditions of a spiritual crisis, scientific, upbringing and educational units, cultural institutions, etc., should come to the fore.

Principles of organization and activity of the state apparatus.

The apparatus of the state is a system of state bodies interrelated general principles organizations and activities. Such principles are initial ideas, guidelines that determine the main approaches to the formation and functioning of state bodies.

These principles can be:

The principle of priority of the rights and freedoms of man and citizen - implies the corresponding duties of state bodies and employees to recognize, observe and protect them;

The principle of democracy is expressed primarily in the broad participation of citizens in the formation and organization of the activities of state bodies, in taking into account the diverse interests of the majority of the population in state policy;

The principle of separation of powers (into legislative, executive and judicial) - creates mechanisms that minimize arbitrariness on the part of government bodies and officials;

The principle of legality means the obligatory observance by all state bodies, civil servants, citizens of the constitution, laws and by-laws;

The principle of publicity - ensures public awareness of the practical activities of specific state bodies, guarantees the "transparency" of the process of functioning of officials;

Accounting for the interests of the regions (in federal states) acts as the principle of federalism;

The principle of professionalism - creates favorable conditions for the use of the most qualified workers in the activities of the state apparatus, guarantees high level addressing key issues public life in the interests of the population of the country;

The principle of combining collegiality and unity of command - provides a reasonable ratio of democratic and bureaucratic principles of the state apparatus;

The principle of combining electivity and appointment - expresses the optimal ratio of decentralization and centralization in public administration;

The principle of hierarchy - lies in the fact that state bodies occupy different levels in the state apparatus (some bodies are subordinate to others, decisions of higher bodies are binding on lower ones).

A comprehensive consideration of these and some other principles, both in the formation of state bodies and in the process of their functioning, makes it possible to ensure the maximum efficiency of public administration of society, leads to its democratization and increase in efficiency.

The evolution of the structure in states of various types:

slaveholding.

The components of the mechanism were: the army, the police, the judiciary, the state authorities, the administrative and managerial apparatus. The entire slave-owning state machine was designed to ensure the undivided domination and exploitation of one part of society - the slave-owning class of the other - the free poor and slaves, to consolidate and ensure the protection of the existing socio-political and economic system, private property, means of production and slaves, to serve as a means of displacement and exclusion of free and semi-free sections of the population from participating in the political life of the slave-owning society, in solving state and social affairs.

The main role in the process of solving the most important tasks facing the slave-owning state was played by such instruments of state power as the army, police, navy and other armaments of the formation of the ruling class. They formed the basis of the slave-holding state mechanism and acted as important means of capturing and subjugating other peoples, protecting their territory from outside attack, as tools for suppressing and oppressing the free poor and slaves.

On the early stages The development of the slave-ownership system of the state apparatus was distinguished by its relative simplicity, underdevelopment and weakness. At the later stages of development, the state apparatus steadily expanded and strengthened. This was due primarily to the emergence of new sectors of the economy and the entire economy, the complication social structure slave-owning society, aggravation of antagonistic and non-antagonistic contradictions, with increased resistance of the oppressed masses.

As slaveholding societies developed, the armed formations of the master class grew significantly and intensified, the court system expanded and strengthened, the circle of debtors was clearly distinguished, a system of authorities and administration was formed, as well as a system of other institutions and institutions that were part of the mechanism of slaveholding .state-va.

The slave-ownership of the state apparatus was formed according to strictly class principle. The highest positions in the military-bureaucratic mechanism of the slave-owning state were occupied by representatives of the master class (nobility). Representatives of other classes and social strata of society were also allowed to the lower levels of the state mechanism, for example, police outfits in Dr. Athens were formed exclusively from slaves.

A huge role in the activities of the state mechanism of many slave-owning states (Babylon, Egypt) was played by priests. They deified kings, emperors, created a religious cult of the head of state, and thereby significantly strengthened the slave-holding state system. along with military leaders, state officials and other representatives of the lord class, priests occupied a privileged position in society and were considered highly respected people. The inviolability of their person and property, the sanctity of their religious customs and rituals were often enshrined in laws.

Feudal. The constituent parts of the state mechanism were: the army, the feudal squads, the police, the gendarmerie, the military adm. and the judicial apparatus. A characteristic feature of the feudal state was the combination in the same hands of landed property and political power, the apparatus of managing the economy and the administration of administrative, fiscal, police and judicial functions.

The complex state mechanism, which continuously grew with the development of feudal society, was supported by huge taxes, all kinds of fines, taxes and duties imposed on artisans and urban residents through the merciless exploitation of serfs.

The church played an exceptionally important role during the existence of the feudal state. Her power was often equated with that of an emperor or king. The Church possessed huge economic, political and ideological means of influencing the way of thinking and behavior of people. The Church fought against heresies. The Church subjugated and kept the spirits of millions of people under vigilant control, exerted political and other pressure on the heads of state, principalities and rulers of large regions by threatening to excommunicate them from the church or ban worship in the territories they ruled. In the conditions of fragmentation of the feudal state in Europe, the church, having a powerful, widely branched organization, acted as a force that united the feudal society.

Introduction

The 20th century can rightfully be considered the era of state power. Never before has state power as a category, a special type of political rationality, a system of ideas and public relations, been the basis of social reality, a key factor in structuring social processes, a fundamental element shaping human mental activity. All major breakthroughs and mistakes in the evolution of human communities were associated with it. She was the main driver historical process”, stood at the center of the political strategies of various public institutions (parties, movements, organizations, communities, etc.), acted as a central issue in scientific and public (mass, everyday) discourses.

The gradual development of public-power relations led, according to many researchers, to the fact that in the 20th century state power became the central vital and life-giving phenomenon, and all the people and resources of certain territories (physical and symbolic) all together became "the potential distributed and used Power." It formed and reproduced a “specific and autonomous reality”, a special socio-political and governmental ratio that organizes and manages all life processes individual. It was also analyzed as an objective institutional structure and system of legal regimes and mechanisms; and subjectively - “in the form of mental structures, categories of perception and thinking.

This topic remains relevant in the 21st century. Today, however, the idea of ​​state power and its functions has changed, and I would like to hope that power itself has changed. In democratic countries, the people are not an instrument of state power used by it to achieve its goals, but on the contrary, power functions for the people, acting in its interests, because. he is the only source of this power (but the harsh reality shows us otherwise, for example, in Ukraine, the self-proclaimed government considers it possible to carry out punitive operations against its people expressing peaceful protest - to burn more than 40 people alive, from here it breathes the spirit Nazi Germany but we live in the 21st century). Therefore, to build a civilized, truly democratic state, a separation of powers is necessary, and the separation is not “on paper” (it was proclaimed in the Constitution and that’s all), but in practice. Of course, today we will not find in any country an “ideal” separation of powers justified by a theoretical concept, because the exercise of state power is influenced by economic, political situation, historical features and national traditions. However, the effectiveness of the separation of powers depends on the existence of an effective system of checks and balances, on the ability of this system to ensure the independence of each branch of government. What is this system in Russia, we have to find out in order to assess the state power existing in our country.

Thus, in order to understand how state power functions in the Russian Federation, we will turn to the classical theory of separation of powers and the experience of foreign countries (primarily the United States), and also look practical use this theory in Russia.

classical theory separation of powers

The principle of separation of powers in its practical implementation is a structural and functional certainty of each of the highest bodies of state power, the degree of which depends both on its formal legal status and on the actual delimitation of functional and subject competence. In other words, in complete system of the highest bodies of state power in a democracy, each highest body has a certain degree of relative independence in relation to each other, and the measure of this relative independence is a measure of the democracy of the entire political system as a whole. In short, the separation of powers is the organic expression of democracy itself. They are inseparable from each other.

The classical theory of the separation of powers was developed by John Locke and Charles Louis Montesquieu.

The founder of the theory of separation of powers, Locke, believed that a separation of powers was necessary in order for political power to correspond to its contractual purpose and not turn into an absolute and despotic force concentrated in the hands of one person or body. According to Locke's design, three organizationally separate authorities should be created: legislative (provided to parliament) - passes laws; executive (concentrated in the hands of the government) - puts laws into practice; and, finally, the federal (federal) government, which is granted all foreign policy powers. Union power should be exercised by bodies specially created for this purpose. As for the judiciary, it is included in the executive. It is worth noting that Locke's concept provided for the lack of equality of powers. Since the legislative power, having the exclusive right to issue laws binding on all, is supreme, and the rest of the authorities must be subordinate to it.

In turn, Montesquieu's theory of the separation of powers was based on the experience of the struggle of the European bourgeoisie against absolutism and was adapted to the socio-political conditions of the Old World. S. Montesquieu believed that freedom, by which he understood the right to do everything that is permitted by law, can only be ensured in a state in which there is a separation of powers.

The scheme of separation of powers outlined by C. Montesquieu in his famous work “On the Spirit of Laws” differs significantly from what D. Locke published in the year of the birth of the French thinker. Montesquieu distinguishes three powers - legislative, executive and judicial, each of which is respectively handed over to the body of popular representation - parliament, king and courts (Locke does not have an independent judiciary, there is union power). It was assumed that each of the authorities has a specific carrier: the executive belongs to the aristocracy, the legislative - to the third estate. In addition, C. Montesquieu did not allow the supremacy of any of the authorities. The authorities are absolutely equal and balance each other in order to prevent the emergence of despotism, to protect freedom. Montesquieu wrote about securing freedom and preventing despotism: “Political freedom can only be found where there is no abuse of power. However, many years of experience show us that every person endowed with power is inclined to abuse it and keep power in his hands to the last possible ... In order to prevent such an abuse of power, it is necessary, as follows from the very nature of things, that power alone restrain another ... When the legislative and executive powers are united in the same body ... there can be no freedom ... On the other hand, there can be no freedom if the judiciary is not separated from the legislative and executive ... And the end will come everything, if the same person or body, noble or popular in nature, will exercise all three powers.

INTRODUCTION

CHAPTER 1.THE PRINCIPLE AND THEORIES OF SEPARATION OF POWERS

CHAPTER 2LEGAL STATE AND LEGISLATIVE AUTHORITY

2.1. Constitutional state

2.2. Legislature

2.3. Interaction between the rule of law and the legislature

CHAPTER 3. LEGISLATIVE BODIES

3.1. Composition and powers

CONCLUSION

APPENDIX

REFERENCES

INTRODUCTION

The separation of legislative, executive and judicial powers is one of the most important principles of the organization of state power and the functioning of the rule of law. The principle of separation of powers means that legislative activity is carried out by the legislative (representative) body, executive and administrative activity - by executive authorities, judicial power - by courts, while the legislative, executive and judicial branches of power are independent and relatively independent. The separation of powers is based on the natural division of such functions as lawmaking, state administration, justice, state control, etc.

The political substantiation of the principle of separation of powers is to distribute and balance power among various state bodies in order to exclude the concentration of all powers or most of them in the jurisdiction of a single state body or official, and thereby prevent arbitrariness. Three independent branches of government can restrain, balance, and control each other without violating the Constitution and laws, this is the so-called "system of checks and balances." It is characteristic that in states with a totalitarian and authoritarian regime, as a rule, the principle of separation of powers is not recognized, in contrast to the rule of law.

It is this principle that is the basis for building the legislative power, both in Russia and in foreign countries.

CHAPTER 1.THE PRINCIPLE AND THEORIES OF SEPARATION OF POWERS.

Separation of powers is a political and legal theory, according to which state power should be divided into independent (but, if necessary, controlling each other) branches: legislative, executive and judicial. Suggested by John Locke. The term was introduced by Montesquieu (French séparation des pouvoirs, Latin trias politica).

Some European countries, as well as Taiwan, legally allocate additional control, examination, legal, and, in addition, constituent and electoral branches of state power.

As mentioned earlier, the principle of separation of powers can be implemented differently in states with different forms of government. This principle is most fully and consistently implemented in parliamentary republics, since here the legislative rights of parliament are not limited in any way, it occupies a decisive place in the system of state power, and the government is fully accountable to parliament, and in unitary states (as simple states).

The principle of separation of powers is more difficult to implement in presidential and mixed republics, since here the legislative powers of the parliament are limited by the right of a suspensive veto of the President, and the government is either generally accountable to parliament or has dual responsibility, that is, it is accountable to both the President and the government.

And it is even more difficult to implement this principle in federal states (since there is a problem with the delimitation of jurisdiction between federal and regional government bodies). In federal states, along with a horizontal division into legislative, executive and judicial branches of government, there is also a vertical division (according to levels of government): federal, regional and local.

In our country, the Constitution of the Russian Federation of December 12, 1993 divides power into three branches: legislative, executive and judicial, and assigns to each of them a range of issues related to their jurisdiction, their competence. Legislative power is entrusted to the highest representative body - the parliament, which consists of representatives elected by the people - deputies. The executive power, which belongs to the President and the government, is usually formed by the legislature or directly by the population, and is controlled and accountable to parliament. It operates on the basis of the law and within its framework, but at the same time it occupies an independent and independent position. The legislature cannot interfere in the executive and administrative activities of the government. The third, judicial branch of government is independent of both the legislative and executive branches. The administration of justice is within the exclusive competence of the courts. But the court also makes its decisions on the basis of laws developed by parliament. The separation of powers is thus embodied in a complex system of "checks and balances", in the mutual control of all branches of power.

Of course, the theory of separation of powers did not arise from scratch, it
was a logical continuation of the development of political and legal ideas,
emerged in the 17th century in England and France, the theory of the separation of powers became
part of the emerging theory of the rule of law.

J. Locke is an adherent of the contractual theory of the origin of the state and the theory of natural rights. J. Locke provided for a special constitutional mechanism that prevents the state from going beyond the limits of authority. Its most important components are the principle of separation of powers and the rule of law. The ideal of such a mechanism was embodied in the doctrine of the separation of powers by C. Montesquieu. The purpose of this theory is to guarantee the safety of citizens from arbitrariness and abuse of power, to ensure their political freedom, to make law a true regulator of relations between citizens and the government.

John Locke (1632-1704) expounded his politico-juridical doctrine in his work Two Treatises on Government.

The state is a collection of people who have united into one and established a common law and created a judicial authority competent to resolve conflicts between them and punish criminals. The state differs from all other forms of collectivity (families, master's possessions) in that it alone embodies political power, i.e. the right, in the name of the public good, to make laws to regulate and preserve property, and the right to use the force of society to enforce these laws and protect the state from outside attack.

The purpose of the state, according to Locke, should be the protection of property and the provision of civil interests. Locke chose legality, the separation of powers, the optimal form of government for the nation, the right of the people to revolt in connection with abuses of power, as means designed to contribute to the implementation of this goal. The sovereignty of the people is more significant than the sovereignty of the state created by them. If the majority of the people decides to put an end to the arrogance of the rulers who have violated the social contract, then an armed popular uprising with the aim of returning the state to the path of freedom, law, movement towards the common good will be completely legitimate.

The main threat to freedom, according to John Locke, is the undivided power, in its concentration in the hands of an absolute monarch, who himself establishes laws and enforces them.

In the first place, J. Locke puts forward the legislative power. The purpose of the law is not the destruction and restriction, but the preservation and expansion of freedom. Like all other political institutions, like the state itself, positive laws are created by the will and decision of the majority. Locke explains that everything done by any community is done solely with the approval of its members. (All such formation must move in one direction, and it is necessary that it “move where its great force, which is the consent of the majority.”)

The legislature is elected and appointed by the people, the law must receive public approval, the consent of the majority. The power of a human legislature can never extend beyond what is necessary for the common good. The executive power may or may not be separated from the legislative. This power essentially includes two - the executive, responsible for the implementation of laws within the state, and the federal, responsible for external security. The first place is given to the legislative power as the supreme (but not absolute) power in the country. The question of the state form, traditional for European political thought since the time of Aristotle, also interested Locke. True, he did not give any special preference to any of the already known or possible forms of government; For Locke, the most important thing was that any form of state should grow out of a social contract and the voluntary consent of people, that it should have a proper “government structure”, protect the natural rights and freedoms of the individual, and take care of the common good of all.

The form of government depends on who has the supreme power, which is legislative. Accordingly, the form of the state is determined by whoever has the legislative power.

The form of government will be democracy, if the legislative power is in the hands of the society itself, if the legislative power is in the hands of a few elected persons and their heirs or successors, then it will be an oligarchy, if in the hands of one person, then it is a monarchy, if in the hands of one person and his heirs, then this is a hereditary monarchy, but if power is transferred to him for life, and after his death the right to appoint a successor belongs to the majority, then this is an elective monarchy. And in accordance with this, the community can establish complex and mixed forms of government.

Also, Locke fully shared the ideas of natural law, the social contract, popular sovereignty, inalienable freedoms of the individual, the balance of power, the legitimacy of rebellion against a tyrant.

Montesquieu believed that political freedom takes place only under moderate governments, it does not exist either in the aristocracy, where all power belongs to one nobility, or in a democracy, where the people rule. In order to avoid the possibility of abuse of power, such an order of things is necessary in which the legislative, executive and judicial powers would be separated and could mutually restrain each other. Everything would perish, emphasized Montesquieu, if these three powers were combined in the same person or institution, composed of dignitaries, nobles or ordinary people.

Proceeding from this, Montesquieu proposes to each estate (class) to provide a part supreme power. Thus, the legislative power, in his opinion, must be divided between the bourgeoisie and the feudal lords, forming a bicameral parliament, consisting of an assembly of representatives of the people and from the aristocratic nobility. Executive power can be retained by the nobility, leaving it to the royal government, which, however, should become responsible to the people's representation. , i.e., the bourgeoisie. Judicial power, which Montesquieu, unlike Locke, specifically singled out in the triad of powers, can be entrusted not to any permanent body, but to elected persons from the people who are involved in the administration of justice for a certain time. It is necessary that judges be of the same social status as the defendant, equal to him, so that he does not feel that he has fallen into the hands of people inclined to oppress him. In the case of important charges, the defendant is given the right to challenge the judges.

Montesquieu attached particular importance to his idea of ​​the balance of power and the system of "checks and balances". He considers it necessary to establish such relationships between the authorities allocated to them, so that they, independently solving state tasks, each with their own legal means, can at the same time balance each other, preventing the possibility of usurpation of the powers of the supreme power by any one institution. Thus, the executive power, being, according to Montesquieu, subordinate to the law, must, however, limit the action of the legislative assembly, which would otherwise concentrate despotic power in itself. Therefore, the monarch, whose personality is sacred, is vested with the right of veto when approving bills, has the legislative initiative, and by his decree parliament is convened and dissolved. At the same time, although the legislature, although not entitled, in Montesquieu's terminology, to “stop” the activities of the executive bodies that require quick decisions, it is nevertheless authorized to control how the laws it has created are enforced, and the government is obliged to report to Parliament on its management.