Introduction

The main global trend at the end of the 20th century is the priority of the rule of law model. The Russian Federation is currently experiencing a period of economic and socio-political reforms, the main goal of which is to create conditions for the maximum realization of the individual in society and the state. Since the main guideline for this is modern ideas about democracy and the basic principles of its implementation, the study of the basic principles that make such democracy possible in practice is of particular importance.

The principle of separation of powers is one of the basic principles of the organization of state power and one of the fundamental principles of the organization and functioning of a democratic, constitutional, legal state.

The purpose of this principle is to ensure the rule of law and eliminate abuses of power.

The activities of the relevant government agencies should be limited only by their competence (legislative, executive-administrative or judicial). The principle of separation of powers means that legislative activity should be carried out by a representative (legislative) body, executive and administrative activity (public administration, state regulation) by executive authorities, justice by the courts. At the same time, the “branches of power” are independent, organizationally and functionally independent of each other, which does not exclude their interaction and mutual control. The separation of powers is based on the natural division of functions such as lawmaking, public administration, justice, and state control. The political rationale for the principle of separation of powers is to distribute and balance government powers between various government bodies in order to prevent the concentration of all powers or most of them under the jurisdiction of a single government body or official and thereby prevent arbitrariness. Three independent “branches of government” - legislative, executive and judicial - can restrain, balance, control each other, preventing violations of laws; this is the so-called “system of checks and balances”.

To understand how the principle of separation of powers works in the modern Russian state, it is necessary to consider the system of government bodies from the point of view of the separation of powers. The study of the separation of powers involves consideration of the “main branches of power”: legislative, executive, judicial, mechanisms of their interaction and forms of influence on each other. However, this study is not limited to this.

I would like to draw special attention to the problematic issues associated with the functioning of government bodies with their special status. It is these bodies, precisely their place in the system of separation of powers that are the main subject of this study, and it is unacceptable to artificially classify them as three “main branches of government” without an appropriate functional justification.

The purpose of this work is a comprehensive study of the implementation of one of the democratic principles - “separation of powers”. This goal can be achieved through the implementation of the following tasks:

First, consider the general characteristics of the principle of separation of powers.

Secondly, it is necessary to analyze and study the problem of implementing the principle of separation of powers.

Thirdly, to study the problem of implementing the principle of separation of powers in the Russian Federation.

In the process of performing this work, the works of representatives of domestic legal science who participated in the development of the issue under study were used: Baglay M.V., Berezhnov A.G., Vengerov A.B., Kutafin O.E., Matuzov N.I., Malko A. .V., Lazarev B.M., Safarova M.R. etc.

1. Concept and emergence of the principle of separation

Separation of powers is a political-legal doctrine and constitutional principle that underlies the organization of power in a democratic state1.

The division of power is one of the fundamental conditions and the main mechanism for the functioning of all types of political and non-political power2.

The division of power arises from the property of power to be a relationship between the subjects (the first, or active), from which the volitional impulse, the impulse to action, comes, and the subject (the second, or passive), who perceives this impulse and carries out the impulse, becomes the bearer of power, its executor . This simple structure of division and transfer of power usually becomes more complicated, especially in an institutional political (as well as non-political economic, legal, ideological) process, when the second subject transfers the volitional impulse to the next subject, etc. right down to the final executor (a process called command, or orders, and constituting the essence of power).

Thus, the concept of “separation of power” is quite broad and inseparable from the concept of “power” and takes on a variety of forms of expression. In this regard, it seems appropriate to trace the historical path of development of the division of power to the moment of its modern perception in a rule of law state as one of the fundamental

_________________

1 Lazarev B.M. Separation of powers and the experience of the Russian state // Journal of Russian Law.-2000.-No. 16.-P. 134.

2 Safarova M.R. Separation of powers and constitutional reform of the highest legislative and executive bodies of power in Russia // State and Law.-2000.-No. 6.-S 123.

guiding principles.

The division of power historically developed in the very early stages of the formation of the state and resulted in the specialization of power of different individuals and institutions, in which two stable trends were early revealed: the concentration of power in one hand or in one institution and the need to share power, labor and responsibility. Hence, there are two consequences arising from this dual attitude to power: the struggle for the power of already divided institutions and against its division, on the one hand, and the desire to streamline the relations of divided powers and rid society of clashes between them, on the other. Hence the combination of functions characteristic of the political history of society in its early stages.

The first major division of power separated political and religious powers, the powers of the state and the church. It was also accompanied by a long struggle for the unification of power, the predominance of secular power over religious, or the dominance of the church in the secular life of society. The rivalry between them continued for many centuries, throughout the Middle Ages and the beginning of the New Age, both in Russia and in the West. It is far from over for many states and societies to this day, and its outcome is far from clear in different regions of the world. The Western, predominantly Christian part of it, resolved the dispute about power in favor of secular, state power; eastern - in favor of the significant political influence of the religious principles of society, its political and legal system and cultural structure.

Along with this, in the secular state itself, the division of professional functions of power began early. Aristotle already noted the existence in it of a legislative body of magistracy (executive institution) and a judicial body3. There was a division of power between prices

____________________

3 Isaev I. A., Zolotukhina M. N. History of political and legal doctrines of Russia. - M.: Lawyer, 1995.-C 98.

central and local government (self-government), an increasingly complex political system of society, authorities at different levels and with different functions, was formed. The developed division of power eventually became one of the organizational foundations of the state of the New Age, which functions as a system of functionally differentiated, but also interconnected institutions, apparatuses and authorities. Feudal organization of power with legislative, executive and judicial functions united in the person of the ruler, including the functional and territorial division of power between the monarchical center and provincial (city) parliaments, local self-government, with class representation of those partially elected, partially included in it “by right” from among famous townspeople. The decentralized feudal medieval state allowed for a noticeable strengthening of local parliaments, which were especially strengthened in Western Europe in the 13th-14th centuries and, subsequently, became the structural and social basis for the emergence of parliaments in the state centers of absolutist monarchies. Another basis for the division of power was the various royal councils, usually very closed and narrow, often of an oligarchic type, despite their advisory functions, as was the case in the Supreme Privy Council in Russia after the Peter the Great period, when out of eight members of the council (“supremes”), six were represented by two noble families - the Dolgorukys and the Golitsyns. In addition, there were occasional gatherings (assemblies) of the ruling feudal elites, feudal unions (leagues), such as Zemsky Sobors in Russia, which also prepared more advanced forms of division of power in the future. The decisive stage of the institutional and functional division of state power came in the initial period of the New Age (XVII century). During this period, the feudal decentralized state gave way to centralized absolutist monarchies in most Western European countries. The central government now needed a more developed and effective apparatus of administration and defense, which inevitably had to be specialized and divided. The commercial and industrial bourgeoisie, developing at the same time, supported the absolutist monarchical center at first and contributed to its strengthening, but at the same time received access to power, which turned out to be to a certain extent divided between estates and classes, and this access was opened, first of all , into the emerging central parliamentary (legislative and representative) structures.

1. Two ideas about the separation of powers 2

2. The essence of separation of powers 9

References. 13

1. Two ideas about the separation of powers

The rationale for a class compromise between warring social groups, taking into account the real balance of their forces and influence in France in the mid-18th century, was the essence of the doctrine of separation of powers developed by S. L. Montesquieu.

Political freedom, says the author of The Spirit of Laws, occurs only under moderate governments; it does not exist either in an aristocracy, where all power belongs to the nobility alone, or in a democracy, where the people dominate. To prevent abuse of power, an order of things is necessary in which the legislative, executive and judicial powers are separated and can mutually restrain each other. Everything would perish, Montesquieu emphasized, if these three powers were united in one and the same person or institution, composed of dignitaries, nobles or ordinary people.

Based on this, Montesquieu proposes that each estate (class) be given a part of the supreme power. Thus, 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 the aristocratic nobility. Executive power can be retained by the nobility, leaving it to the royal government, which, however, must become responsible to the people's representation , i.e., the bourgeoisie. The judicial power, which Montesquieu, unlike Locke, specifically identified in the triad of powers, can be entrusted not to any permanent body, but to elected persons from the people involved in the administration of justice for a certain time. It is necessary that the judges be of the same social status as the defendant, equal to him, so that it does not seem to him 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 judges. The task of the court is to ensure that decisions and sentences are always only the exact application of the law. “Thus,” Montesquieu believes, “the judicial power, so terrible for people, will not be associated with either a famous position or a famous profession; it will become, so to speak, invisible and as if non-existent” [S. L. Montesquieu. Selected works. M., 1995]. Thanks to this organization, the judiciary becomes socially and politically neutral and will not be able to turn into despotic power. Therefore, Montesquieu concludes, “of the three powers... the judicial one, in a certain sense, is not a power at all” and, therefore, there is no need either for its limitation by other powers or for the court to intervene in legislation and administration. Based on this, Montesquieu subsequently talks mainly about the division of political forces and powers between the legislative and executive powers.

Like many of his predecessors, Montesquieu believes that to ensure effective management, a rational division of labor in the sphere of public life is necessary. He notes that each of the three branches of government, in accordance with the specifics of its functions, must be carried out by a special independent body. However, Montesquieu goes much further in studying the system of government bodies, the nature of the relationship between them, the mechanism of their interaction and counteraction in order to prevent arbitrariness and ensure individual freedom. Montesquieu repeatedly emphasizes the importance of the independence of authorities and bodies implementing them, regarding the conditions of their formation, the timing of their activities, as well as their mutual irremovability. He considers it unacceptable for the same persons to take part in the functions of more than one of the three government bodies, for example, for a minister or a judge to sit in parliament, and for a deputy to enforce laws and administer justice.

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

Unlike Locke, who interpreted the separation of powers as their cooperation and close interaction based on the predominance of legislative power over the executive, Montesquieu emphasized the need for complete balance, independence and even separation of powers. This, however, did not mean they were unlimited. On the contrary, according to Montesquieu, no power should interfere with the competence of another, but each of them, protecting itself from possible interference, has the right to control and restrain the other power, preventing abuse of power, abuse and despotism.

The complex system of “checks and balances” developed by Montesquieu, that is, mutual balancing and even opposition of authorities, did not ensure effective cooperation between them in solving public affairs and did not provide for the creation of an effective mechanism for resolving possible conflicts. Montesquieu was aware that the powers he had thus combined might end up in a state of immobility and inaction, but he hoped to eliminate this difficulty by the consideration that “since the necessary course of things will force them to act, they will act in concert.”

When substantiating the theory of separation of powers, Montesquieu tried to apply on French soil some essential features of contemporary European states and especially the English constitutional monarchy, in which he saw an example of a moderate form of government, which, in his opinion, is the best.

In particular, the complex construction of the legislative power represented by the lower house as an elected body of people's representatives and the upper house as a hereditary assembly of the aristocratic nobility, “with the right to cancel the decisions of the people,” just as “the people can cancel their decisions,” was founded Montesquieu's structure of the English Parliament.

However, Montesquieu, idealizing the English system of government and following Locke in this regard, paid attention only to the external side of the English constitutional system. In reality, there was no separation of powers in England in the sense that Montesquieu understood it. According to the testimony of the prominent English statesman W. Bagehot, the English constitution is built on the principle of a single supreme power, and this decisive power is in the hands of the same people. In England there was no strict separation of the three branches of government between various government bodies. The English king, as the bearer of executive power, could also take part in legislation, acting jointly with both chambers (“king in parliament”), and in legal proceedings, appointing, in addition to the jury elected by the population, also irremovable, lifelong “crown judges” with broad competence. The English Parliament was also not limited to legislative activity alone and could take part in governance. Thus, he had the right to hold the ministers of the royal cabinet accountable, resolve the most important financial issues, and determine the order of organization of the army. Also in the field of legal proceedings, parliament could consider (in the upper house) cases on charges of state crimes against persons of the noble class. During that period, characterized, as already noted, by a compromise between the bourgeoisie and the liberal nobility, all spheres of state power bore the imprint of the political dominance of these two classes, equally interested in preventing the “uncontrollable” influence of the broad masses on the decision of state affairs.

The doctrine of separation of powers in its political orientation in the interpretation of Locke and especially Montesquieu was of a moderate, compromise nature and represented an ideological justification for the class bloc of the bourgeoisie and the nobility during the bourgeois revolutions of the 17th-18th centuries. This theory most clearly and visibly reflected the contradictions of the transition from a feudal society and state to a bourgeois one with all its positive and negative manifestations. Therefore, when evaluating the theory of separation of powers, it is important to take into account its historical progressiveness and inevitable limitations.

The doctrine of separation of powers under the conditions of absolutism of that time served mainly to prevent lawlessness and arbitrariness on the part of the royal administration, and to ensure fundamental human rights and freedoms. This in itself undoubtedly had important progressive significance. The concept of separation of powers contributed

In the history of political doctrines, many ideas about the separation of powers have been developed. The principle of separation of powers is an essential element of the functioning of a democratic state, excluding the possibility of combining legislative, executive and judicial powers in the same hands. The idea of ​​separation of legislative, executive and judicial powers has accompanied man's search for an ideal state for many centuries; in its infancy, it was already present in the views of ancient Greek philosophers (Aristotle, Polybius). The theory of separation of powers originated in France in the mid-18th century and was a logical continuation of the development of political and legal ideas that arose in the 17th century in England. The theory of separation of powers was created by several political researchers. See: For example, Sirotin A.S. Separation of powers /Collection of scientific works (interuniversity)/. - M.: MGIU, 2000; Political science. Encyclopedic Dictionary. M., 1993: J. Locke, C. Montesquieu, A. Hamilton, D. Madison, D. Jay, etc. The theory of C. Montesquieu (1689 - 1755) is considered the classic theory of separation of powers.

The goal of the theory of separation of powers is to create an effective mechanism for the functioning of government bodies, create security for citizens from arbitrariness and abuse of power, and ensure political freedoms.

According to the classical principle of separation of powers, there are three branches of government in the state: legislative, which makes laws; executive, which carries out management on the basis of published laws; judicial, monitoring compliance with laws and administering justice.

According to the theory of separation of powers: 1) legislative, executive and judicial powers are vested in various people and bodies in accordance with the Constitution; 2) all authorities are equal before the law and themselves; 3) no power can exercise the rights granted by the Constitution to another power; 4) the judiciary is independent of political influence, judges are irremovable, independent, inviolable and subject only to the law.

In addition, the division of power into three branches in the state is determined by the need: 1) a clear definition of the functions, competence and responsibilities of various government bodies; 2) ensuring the ability for government bodies to control each other on a constitutional basis; 3) effectively combating abuses of power.

The principle of separation of powers is subordinated to the task of creating a counterbalance to each type of power. Since state power is united, its branches constantly interact, which gives rise to struggle, clashes, rivalry, etc. The legislative branch interferes with the powers of the executive and vice versa. To prevent a complete, absolute absorption of one branch of power by another, a system of checks and balances was developed. Its essence is to balance the powers, to prevent each of them from remaining uncontrolled. In other words, the very idea of ​​separation of powers contains their opposition. It should be noted that the opposition is also an element of the system of checks and balances.

A significant contribution to the development of the theory of separation of powers was made by J.-J. Rousseau, who believed that “legislative, executive and judicial powers are special manifestations of the unified power of the people.”

For the first time, the principle of separation of powers found its legal form in the US Constitution (1778) See: US Constitution /USA. Constitution and legislative acts. - M.: "Univers", 1993. P. 34., in the constitutional acts of the Great French Revolution (1789--1794). Today, this principle is constitutionally enshrined in most countries of the world, taking into account the historical characteristics of a particular state. For example, in Great Britain there is a parliamentary model of separation of powers in the form of a constitutional monarchy. See: Luzin V.V. Parliamentary model of separation of powers (using the example of Great Britain). - M.: International scientific journal LAW and POLITICS No. 6, 2000. P. 65..

In Russia, the idea of ​​separation of powers as a principle of liberalism was first expressed in the clearest form by M.M. Speransky (1772-1839) in “Projects and Notes”. In his projects for state reforms, Speransky dreamed of a constitutional monarchy that would rule based on “indispensable law.” Speransky associated the legality of the forms of exercise of power, first of all, with the need for separation of powers. “Legislative power should be entrusted to a bicameral Duma, which discusses and passes laws, for which it meets in session, once a year, starting its work on September 19. The head of the executive branch, the monarch, participates in the activities of the Duma, but “no new law can be issued without the respect of the Duma. The establishment of new taxes, taxes and duties is respected in the Duma.” The opinion of the Duma is free, and therefore the monarch can “neither destroy laws nor disfigure them,” since in its actions the executive power is controlled by the representative body. Judicial power is exercised by the judicial system, which includes a jury trial and ends with the highest judicial body - the Senate. Three powers govern the state like a person governs his body: turning to the law, will and execution. Speransky also foresaw the possibility of uniting these authorities for their harmonious action in the State Council, consisting partly of persons appointed by the monarch, and partly elected by suffrage. The State Council sits under the chairmanship of the tsar, it has the right of legislative initiative, but laws “by which any change is introduced in relation to the forces of the state or in relation to private individuals among themselves” are approved without fail and exclusively by the State Duma” See: I.A. Isaev, M.N. Zolotukhin “History of political and legal doctrines of Russia.” M., “Lawyer”, 1995, p. 183. Order in a state organized in this way is protected by law.

It is easy to see that Speransky’s project not only implemented the principle of separation of powers, taking into account certain restraining factors, but, and this is very important, provided for a mechanism for their coordinated action in order to avoid possible confrontation between the three branches of government. Speransky took into account the circumstance clearly expressed by the opponent of the division of power N.M. Karamzin: “Two powers in one power are two formidable lions in one cage, ready to torment each other” See: Ibid. P. 209.. The projects of the separation of powers mechanism considered above by D. Locke and M.M. Speransky implied the existence of a monarchy. Project P.I. Pestel (1793-1826) - “Russian Truth” - envisaged a republic as a form of government - the most widespread at present, and therefore extremely interesting. Legislative power, according to Pestel’s project, is concentrated in the People’s Council - “a unicameral body that is elected for a period of five years, with the annual re-election of one fifth of it, while “the same person can be elected again,” “no one can dissolve the People’s Council. It represents the will in the state, the soul of the people.” The executive branch - the sovereign Duma - consists of five people elected for a period of five years. “Every year one leaves the Duma and is replaced by another choice... All ministers and, in general, all government positions are under the department and leadership of the sovereign Duma.” Guardian power - The Supreme Council consists of 120 people who are appointed for life and do not participate in either legislative or executive power. Candidates are nominated by the provinces, and the People's Assembly replaces the “retired seats” with them. Each law is sent for approval to the Supreme Council, which does not consider its merits, but carefully checks compliance with all necessary formalities, and only after approval by the Supreme Council the bill receives legal force. In the theory of separation of powers proposed by Pestel, “the rule of certainty of the range of actions is adopted,” that is, the competencies of the legislative, executive and supervisory powers are clearly established. Moreover, Pestel insisted that each government body “be assigned precise and unchanging functions.” The Council also has serious control functions locally, as it appoints one of its members to each ministry and each region. The commanders-in-chief of the active armies are also appointed by the Supreme Council. - “The Council keeps the People’s Assembly and the sovereign Duma within the limits of legality. The Council has the right to put an official of any level on trial for abuses. The mechanism of action of the legislative and executive powers, as well as the state structure, is determined by the Constitution” See: Ibid. P. 220.. Subsequently, NM made a serious contribution to the development of the domestic theory of separation of powers. Korkunov (XIX century) - (“Decree and Law”). However, in Russia the implementation of this principle became possible only at the end of the 20th century.

Thus, the following conclusions can be drawn:

1) The principle of separation of powers can only be inherent in a democratic state; it is impossible neither in a slave-owning nor in a feudal state, since the principle itself implies the presence of an economically free owner - the main representative of society, who also has political rights.

2) For the actual implementation of this principle, certain objective conditions are necessary - a sufficient degree of development of productive forces and relations, as well as subjective ones - the level of political consciousness of society.

3) Legal theory offers different options for the mechanism of operation of the principle of separation of powers.

“The legislative power has supremacy because it establishes the legal principles of state and public life, the main directions of the country’s domestic and foreign policy, and therefore ultimately determines the legal organization and forms of activity of the executive and judicial authorities. The dominant position of legislative bodies in the mechanism of the rule of law determines the supreme legal force of the laws they adopt and makes the norms of law expressed in them generally binding. However, the supremacy of the legislative power is not absolute. The limits of its action are limited by the principles of law, natural human rights, ideas of freedom and justice. It is under the control of the people and special constitutional bodies, with the help of which the compliance of laws with the current constitution is ensured.

The executive branch, represented by its bodies, is engaged in the direct implementation of legal norms adopted by the legislator. Its activities must be based on the law and carried out within the framework of the law. Executive bodies and government officials do not have the right to issue generally binding acts establishing new rights or obligations of citizens and organizations not provided for by law. The executive power is of a legal nature only if it is a subordinate power and acts on the basis of legality. Containment of the executive power is also achieved through its accountability and responsibility to representative bodies of state power. In a rule-of-law state, every citizen can appeal any illegal actions of executive bodies and officials in court.

The judicial power is called upon to protect the law, the legal foundations of state and public life from any violations, no matter who commits them. Justice in a rule of law state is carried out only by the judiciary. No one can usurp the functions of the court. In its law enforcement activities, the court is guided only by the law, the law and does not depend on the subjective influences of the legislative or executive authorities. The independence and legality of justice are the most important guarantee of the rights and freedoms of citizens and legal statehood in general. On the one hand, the court cannot assume the functions of legislative or executive power; on the other hand, its most important task is organizational and legal control over the normative acts of these authorities. The judicial power, thus, acts as a deterrent that prevents violations of legal provisions, and above all constitutional ones, by both legislative and executive bodies of state power, thereby ensuring a real separation of powers” ​​See: V.N. Khropanyuk “Theory of State and Law”, M., “DTD”, 1996, pp. 84-85..

Thus, the division of a single state power into three relatively separate and independent branches prevents possible abuses of power and the emergence of totalitarian government, not bound by law. Each of these authorities takes its place in the general system of state power and performs tasks and functions unique to it. The balance of powers is maintained by special organizational and legal measures that ensure not only interaction, but also mutual limitation of powers within established limits. At the same time, they guarantee the independence of one government from another within the same powers. It should be noted that the principle of separation of powers is one of the principles of the rule of law and can only operate effectively in conjunction with them, the most important of which are the principle of legality, mutual responsibility of the state and the individual, the reality of individual rights.

The process of informatization of society, which began in the 20th century, led to the fact that in the modern theory of state and law they began to identify another branch of government - the “fourth power” - the media. The media can be considered a branch of government, since television, radio, print, and the Internet are available to all segments of the population. They not only inform society about any political events, but also sometimes impose their assessment of what is happening and have the ability to manipulate public opinion, i.e. can have a significant impact on its formation. The media plays a very important role in the system of “checks and balances”, restraining the actions of government agencies.

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

The theory of separation of powers was created by several political researchers: the idea was expressed by Aristotle, theoretically developed and substantiated by D. Locke (1632–1704), in its classical form it was developed by Montesquieu (1689–1755) and in its modern form by A . Hamilton, D. Madison, D. Jam.

Basic provisions of the theory of separation of powers the following:

– separation of powers is consolidated the constitution;

– According to the constitution, legislative, executive and judicial powers are vested in various people and organs;

–all powers are equal and autonomous, none of them can be eliminated by any other;

– no power cannot exercise the rights granted by the constitution of another government;

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

The theory of separation of powers in the state is intended to substantiate such a structure of the state that would exclude the possibility of usurpation of power by anyone at all, and most immediately by any body of the state. Initially, it was aimed at justifying the limitation of the king’s power, 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 prepared the way for the substantiation of this principle during the Enlightenment. The presence and functioning of the system of separation of powers in the state should, according to Montesquieu, protect society from abuse of state power, usurpation of power and its concentration in one body or one person, which inevitably leads to despotism. Montesquieu saw the main purpose of the separation of powers as to avoid abuse of power. In his essay “On the Spirit of Laws,” Montesquieu understands the separation of powers in three aspects – functional, institutional and personal. 1. Functional separation of powers. For the sake of ensuring freedom, it is necessary to establish separately the function of making decisions on coercion (use of force) and the function of implementing state coercion. The legislative branch sets the rules for the use of force, the judicial branch allows or prescribes specific measures for the use of force. Consequently, these branches of government should not have coercive power and should not exercise state coercion. Because the executive branch has such power, it does not itself have to make normative or individual decisions about the use of force. Consequently, the executive branch must act on the basis and in execution of laws and court decisions.

2. Institutional separation of powers. The exercise of legislative, executive and judicial functions should not be combined in one person or institution. Separation of powers means the separation of the authorities that have coercive power from the authorities that decide on the use of force. In other words, it is necessary to separate government bodies competent to use force and those competent to decide on the use. In this context, the separation of legislative and executive powers means, firstly, that executive authorities do not have the right to engage in primary rule-making or issue regulations that have the force of law.

3. Personal separation of powers.

The American statesman D. Madison (1751–1836) made a great contribution to the creative development of the idea of ​​checks and balances and its implementation in practice. He invented a system of checks and balances that makes each of the three powers (legislative, executive and judicial) relatively equal. This Madisonian checks and balances mechanism is still in effect in the United States.

Madison called checks and balances the overlapping powers of the three powers. Thus, although Congress is the legislative body, the president can veto laws, and courts can declare an act of Congress invalid if it violates the Constitution. The judicial branch is constrained by presidential appointments and Congressional ratification of these judicial appointments. Congress checks the president with its power to ratify executive appointments, and it also checks the other two branches with 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 codification in Art. 10 of the Constitution of the Russian Federation, which states: “State power in the Russian Federation is exercised on the basis of division into legislative, executive and judicial. The legislative, executive and judicial authorities are independent.”

The separation of powers in Russia lies in the fact that legislative activity is carried out by the Federal Assembly: federal laws are adopted by the State Duma (Article 105 of the Constitution), and on the issues listed in Art. 106, – by the State Duma with mandatory subsequent consideration in the Federation Council; executive power is exercised by the Government of the Russian Federation (Article 110 of the Constitution); The judicial authorities are the courts, forming a unified 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 powers, 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 of separation of powers has been accumulated; The traditions of autocracy and autocracy are still alive here. After all, the constitutional division of powers in itself (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 in the mechanism of checks and balances is only a transitional stage in the process of establishing statehood. Separation of powers is primarily a legal form of democracy.

Separation of powers. Power is divided into three branches, which should form a system of checks and balances, control to thereby prevent usurpation by any of the authorities. Branches of government receive additional incentives to improve professionalism.

This principle determines, on the one hand, the supremacy of the legislative branch, and on the other, the subordinate legislation of the executive and judicial authorities. The division of powers into relatively independent branches prevents abuse of power and the emergence of totalitarian government that is not related to the law. Each branch takes its place in the system of state power and performs tasks and functions unique to it. The balance of powers is maintained by special organizational and legal measures that ensure interaction and mutual limitation of powers within established limits. At the same time, they guarantee the independence of one government from another within the same powers.

Legislative power - establishes the legal principles of state and public life, the main directions of the country's domestic and foreign policy, therefore, determines the legal organization and forms of activity of the executive and judicial authorities. The dominant position of the legislative bodies determines the supreme legal force of the laws it adopts and gives a generally binding character to the norms of rights expressed in them. But the supremacy of the legislative power is not of a certain absolute nature. The limits of its action are limited by the principles of law, natural human rights, ideas of freedom and justice. It is under the control of the people and special constitutional bodies.

The executive branch is engaged in the implementation of legal norms adopted by the legislator. Its activities must be based and carried out within the framework of the law. Executive bodies and officials do not have the right to issue generally binding acts establishing new rights or obligations of citizens and organizations not provided for by the Constitution or laws. The executive power is of a legal nature if it is subordinate and acts on the basis of legality. Its restraint is also achieved through its accountability and responsibility through representative bodies of state power. In a rule-of-law state, every citizen can appeal any illegal actions of executive bodies and officials in court.

The judicial power is called upon to protect the rights, legal foundations of state and public life from any violations, no matter who violates them. Justice in a rule of law state is carried out only by the judiciary. The court is guided only by the law, the right and does not depend on the subjective influences of the legislative and executive powers. The independence and legality of justice is the most important guarantee of the rights and freedoms of citizens and legal statehood in general.

• Public Administration
  • Concept, content and types of management
  • Social management
  • Management theory and administrative law theory
  • Public administration concept
  • Signs of public administration
  • Types of public administration
  • Functions of public administration
  • Executive power and public administration
• Executive branch
  • Basic approaches to the study of administrative legal theory
  • The principle of separation of powers
  • Signs of executive power
  • Functions of the executive branch
  • Subjects of executive power
• Administrative law as a branch of law. Subject and method of administrative law
  • Public law and administrative law
  • Administrative law and private law
  • Subject of administrative law
  • Method of administrative and legal regulation
  • Administrative law system
  • Interrelation and differentiation of administrative law and other branches of law
• Science of Administrative Law
  • Management Science
  • Administrative law as a science
  • Administrative and legal policy
  • History of the development of administrative law science
    • Police law
    • Administrative legal science at the end of the 18th - beginning of the 19th century.
    • Administrative law of the late XIX - early XX centuries.
    • The main achievements of the science of administrative law in the 20th century.
    • History of the development of Russian science of administrative law
• Norms of administrative law and administrative-legal relations. Sources of administrative law
  • System of administrative and legal regulation
  • Rules of administrative law
  • Structure of administrative legal norms
  • Administrative-legal relations
    • Contents of administrative-legal relations
  • Sources of administrative law
• Concept, legal capacity and capacity of subjects of administrative law
  • The concept of a subject of administrative law
  • Legal capacity and capacity of subjects of administrative law
• Individual subjects of administrative law
  • Administrative legal capacity and administrative capacity of individual subjects
  • Administrative and legal status of citizens of the Russian Federation
  • Administrative and legal status of foreign citizens and stateless persons
  • Special administrative and legal statuses of individual subjects
  • Passport regime in the Russian Federation
  • Ways to protect citizens' rights
  • The right of citizens to appeal to state bodies and local governments
  • A citizen’s right to an administrative complaint
  • Proceedings on administrative complaints from citizens
  • The right of citizens to judicially appeal illegal decisions (actions) of public authorities and their officials
  • The right of citizens to compensation for damage caused by illegal actions of public authorities and officials
• State administration
  • The concept and content of the activities of public administration
  • Linear and functional authority
  • Organizational structure of public administration
  • Administrative department
• Executive authorities
  • Concept and legal status of executive authorities
  • President of the Russian Federation and executive power
  • Types of executive authorities
  • Government of the Russian Federation
  • Federal executive authorities
    • System of federal executive authorities
  • Executive authorities of the constituent entities of the Russian Federation
  • Territorial executive authorities
  • Local government bodies in the public authority system
• Civil service and civil servants
  • Public office: concept and main features
  • Civil service positions. Registers of civil service positions
  • Civil service: concept, characteristics, meaning and legal sources
  • Municipal service and municipal position
  • System (types) of public service
  • Types of state civil service
  • Civil Service Management
  • Basic principles of construction and functioning of the civil service system: concept, system and types
    • Constitutional principles of public service
    • Organizational and functional principles of the civil service
  • Civil servant: basic legal status
    • Rights of a civil servant
    • Responsibilities of a civil servant
    • Encouragement (stimulation) and responsibility of state and municipal employees
  • Classification of civil servants
  • Passage of public service
    • Civil servant certification
    • Qualifying exam
    • Termination of public service
• State and non-state organizations as subjects of administrative law
  • Concept and types of organizations
  • Fundamentals of the administrative and legal status of enterprises and institutions
  • Concept and types of public associations
  • Fundamentals of the administrative and legal status of public associations
  • Features of the administrative and legal status of trade unions
  • Fundamentals of the administrative and legal status of religious associations
• Concept and types of management actions
  • The concept of the form of management actions
  • The importance of the form of management actions in the administrative and public sphere
  • Types of forms of management actions
• Legal acts of management
  • Concept, characteristics and legal significance of a legal act of management
  • Functions of a legal act of management
  • Effect of legal acts of management
  • Types of legal acts of management
  • Legal acts of the President of the Russian Federation
  • Legal acts of the Government of the Russian Federation
  • Legal acts of federal executive authorities
    • State registration of normative legal acts
  • Legal acts of administration of the constituent entities of the Russian Federation
  • Legal acts of municipalities (local government bodies)
• Administrative agreement
  • The concept and public law nature of an administrative contract
  • Signs of an administrative agreement

The principle of separation of powers

The essence of executive power is comprehended in the study of the theory of state power and the theory of separation of powers. Executive power, state power and the theory of separation of powers, being closely interrelated, ensure the process of democratic government in practice.

State power is a system of special social relations and the activities of state bodies, carried out through forms and methods established by law and aimed at creating a democratic regime in society, protecting the rights and freedoms of man and citizen and ensuring effective government administration and control. This is the power of the state, which has specific goals, functions and legal means of influencing social relations.

The diverse and numerous functions of the state are determined by the presence of both special state bodies and the special forms and methods they use to influence society, the state itself, and citizens, whose well-being and security constitute the main goal of state activity.

The efficiency and democracy of government activities is achieved through the division of government into three branches: legislative, executive and judicial. It is hardly worth asking the question: which of these branches is the main one. All of them perform their assigned functions, and the absence of one of them will entail a violation of the principles of democracy. However, the executive branch has traditionally been assigned a more significant role.

The principle of separation of powers is today one of the basic constitutional principles of all democratic states. However, this does not mean that it has a constitutional and legal establishment, i.e. it may not be mentioned in the text of the constitution of a particular state. The main thing is that it is truly reflected in the practice of constructing the mechanism for exercising state power.

Classically, the theory of separation of powers involves the creation of independent state bodies that exercise state legislative, executive and judicial power in order to fulfill the tasks and functions of the state, ensure the democratic development of society, and respect the rights and freedoms of citizens; All branches of government balance and mutually control each other.

This theory is characterized by the following general features:

1. distribution of power between various bodies;
2. dispersal of practical functions of state power among various civil servants;
3. ensuring mutual balance between government bodies;
4. equality of authorities established by law;
5. independence of legislative, executive and judicial authorities in the implementation of special state functions and special competence.

Mutual restraint of the branches of government is ensured in various ways:

1. functionally, i.e. when using tools such as the right of veto, the right of control, the right to participate in general government activities (for example, the participation of the president and the government in the preparation of a draft of a specific legislative act; parliamentary approval of interstate agreements; non-signing by the president of a law adopted by parliament; judicial control over the actions and decisions of bodies management and officials);
2. public service activities of senior state officials as a deterrent factor makes it possible for the head of one branch of government to participate in both the formation and liquidation of bodies of other branches of government (for example, the election of a president by the parliament of some countries and the appointment to the post of chairman of the government, the dissolution of parliament by the president, the appointment judges by the President);
3. through the actual separation of powers, i.e. in cases where state activity is carried out not by one, but by several bodies that are not subordinate to each other and, in a certain sense, independent, and the state tasks they solve are considered common to all state bodies. This is how elements of containment and balancing of all branches of government arise.

The principle of separation of powers is aimed at preventing the rise of one of the branches of government, the establishment of authoritarianism and a dictatorial regime in society. It provides a system of “checks and balances” designed to minimize possible errors in management and overcome a one-sided approach to issues being resolved.

The Constitution of the Russian Federation establishes that state power in the Russian Federation is exercised on the basis of division into legislative, executive and judicial. The legislative, executive and judicial authorities are independent. State power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly (Federation Council and State Duma), the Government of the Russian Federation and the courts of the Russian Federation.

The legislative body - the Federal Assembly - passes laws, determines the regulatory framework for the activities of government bodies, participates in the formation of the Government of the Russian Federation, influences the activities of the executive branch through parliamentary means (for example, has the right to raise the issue of confidence in the Government of the Russian Federation), participates in the creation of the judicial bodies of the Russian Federation . The control functions of the legislative branch at the federal level are limited to control over budget execution and law

the State Duma to resolve the issue of confidence in the Government. The main means of influence of the legislative branch on the functioning of the executive branch is the adoption of laws and other legal acts that are binding on these bodies.

The Government of the Russian Federation exercises executive power, heads and ensures the coordinated activities of the system of executive authorities, consisting of federal ministries and other federal executive authorities (departments), many of which form their own territorial bodies in the constituent entities of the Russian Federation. The Government of the Russian Federation organizes the implementation of laws and influences the legislative process in various ways (has the right of legislative initiative; presents its opinions on bills that require the attraction of additional federal funds).

The possibility of expressing no confidence in the Government of the Russian Federation is balanced by the right of the President of the Russian Federation to dissolve the State Duma. The executive branch must be authoritative, active and productive, have a wide field of activity for independence and initiative, otherwise the controllability of society will decrease and the state will not be able to quickly and effectively respond to changes in public life.

Justice in the Russian Federation is administered by the courts; the judicial power itself is exercised through constitutional, civil, administrative and criminal proceedings.

The Federal Constitutional Law “On the Government of the Russian Federation”, as well as regulatory legal acts on federal ministries, state committees, federal services and executive authorities of the constituent entities of the Russian Federation make it possible to optimally differentiate their powers and functions from the powers and functions of the Administration of the President of the Russian Federation.

The need for such a distinction becomes even more obvious if we consider that the President of the Russian Federation is not only a political arbiter and has significant powers in lawmaking, but is also vested with supreme executive power. State power in the constituent entities of the Russian Federation is exercised by the executive authorities formed by them. The constitutions of the republics - constituent entities of the Russian Federation establish the principle of separation of legislative, executive and judicial powers. As for the composition of the highest legislative and executive bodies and the determination of their legal status, there is significant diversity here.

The implementation of the principle of separation of powers not only at the level of federal government, but also in the constituent entities of the Russian Federation is ensured by Art. 11 of the Constitution of the Russian Federation, which establishes the principle of delimitation of jurisdiction and powers between the Russian Federation and its constituent entities - republics, territories, regions, federal cities, autonomous regions, autonomous districts and local self-government. The delimitation of the subjects of jurisdiction and powers between the bodies of state power of the Russian Federation and the bodies of state power of the constituent entities of the Russian Federation is carried out by the Constitution of the Russian Federation, the Federal and other agreements on the delimitation of subjects of competence and powers.