V.V. Kostytsky, Doctor of Legal Sciences, Corresponding Member of Academy of Sciences In

V.V. Kostytsky, Doctor of Legal Sciences, corresponding member of Academy of Sciences in Ukraine, Professor

People's Power: seven functional branches of the power
(problems of renaissance in the theory of law).

Globalization of social life caused the need in looking for the new ideas of organization of the state power with the regard to the formation of global civil society, the only global information space, of the new global economy and a new type of relations between states. This requirement is caused as political, economic character thus the peculiarities and implementation of realization functions of the state, related with the environmental protection, combating terrorism, the eradication of hunger, the problem of drinking water and other challenges to the modern society. Superficial analysis of the development peculiarities of legal science gives reason to talk about the lack of the new theories that can resolve the crisis of modern jurisprudence, which embraced a practice of lawmaking and law methodology.
Scientists - legists in search of overcoming the difficulties which became the obstacle of the modern legal system of Ukraine. That`s why, actively began to develop the philosophy of law. A significant contribution to the development of the theory and methodology of law conduct the scholars of the National Law Academy of Yaroslav the Wise, The Institute of State and Law Academy of Sciences of Ukraine, scientists of the theory and history dept. of the State and Law Legal Faculty of T. Shevchenko Kyiv National University, Institute of Legislation of Ukrainian Supreme Court, representatives of Lviv and Odessa law schools. There were appeared fundamental developments from the theory of law and the state at the National University of Internal Affairs, the Institute of legislative previsions and legal expertise. Modern views in Ukrainian legal science about the law and the state are in trying to separate the creation of new concepts and revision or the adaptation of the legal doctrines scientists of early ages. There are three trends of the development of creative thought.

We can observe the attempts of consolidation the neonormativism, the attempts to revive the teachings of G. Kelzen. We claim no rule of law, but the law, about intensification of the criminal liability for certain violations, strengthening of the state apparatus and state regulation in many works.

Separate branch acting the attempt renaissance of Marxism. The state is the suppression apparatus here and the unit of class domination, and law - the legal instrument of the consolidation the class will. Remind: your right is the will of your class, a will which content is determined by the economic interests of your class, appealed K. Marx and F. Engels to the bourgeoisie in the « Manifesto of the Communist Party» [2].

The second group of projects is a kind of compromise between "living" law of Ehrlich and the divine origin of the state and the law of L.Petrazhytskyy.
The third direction of scientific - theoretical researches is in the plane of the idea of popular sovereignty J. J. Rousseau and the theory of natural law even from Ulpiana.

Probably that exactly on the intersection of the second and the third direction of the development the theory of law in the Ukrainian modern science is a center of long-term researches, future understanding about the law and the state. Considerable interest could again trigger the idea what basic provisions form the basis of the law. No doubt, there`ll be named the idea of justice, strengthening of the human rights. A number of scientists and politicians consider such a Ukrainian national idea. Increased interest to it is explained by the necessity of the rethinking the content and the role of the national idea in the life of the people accordingly to the new historical and political realities associated with the peculiarities of the current stage of the state building.

During the investigation of this problems started a new research direction – ethnostateexpertness , the conceptual core of which is the Ukrainian national idea. An important contribution to the development of these problems did Y. Rymarenko as with the help of individually scientific works and thanks the collective fundamental researches made by him as well, encyclopedic and reference publications accomplished under his leadership.

Summarizing the available theoretical portfolio of native researchers can be argued that the national idea - a kind of national purpose that unites and elevates the nation, integrate and harmonize the interests of the nation - political forces, corporate and professional associations, ethnic groups and religious confessions, that is all civil society individuals, fully corresponds to its traditions, aspirations, cultural - psychological settings, providing and finding further development, in particular, its external expression in the most perfect model of the national-state system.

Ukrainian national idea found its legal registration in the Constitution of Ukraine. There is stated that the Supreme Court of Ukraine, ’’based on the centuries-old history of Ukrainian state creation and carried out by the Ukrainian nation, all Ukrainian nation of the right on the self-determination’’ adopts this Constitution . Article 1 proclaims Ukraine a sovereign and independent state in the preamble of the Constitution of Ukraine.

Some people like to say that the national idea has exhausted itself for today, and therefore must be sought a new idea, which would consolidate the Ukrainian nation. In this regard we note that in the information and economic wars of the XXI century problems of the collegiality, independence and sovereignty of the people, power and the state continue remain enough actual. The national idea is gained by new meaning, based on economic patriotism as part of the national idea [3].

Today there are grounds to say that the idea of building the legal state is based on the principle of separation the power, has become an integral part of the national idea in Ukraine through the implementation of its European aspirations, providing ’’growing’’ in European and world community, with the help of criterion to treat Ukraine to the list of civilized nations, part of the mentality and outlook of the modern Ukrainian person.

At first we find such ideas in the works of Platon school: the state is the community of people, strong enough for prosperity; legalized community of many people [4; p.35]. Legal state is guided by the Social contract in J.J. Rousseau, which serves as the foundation of all rights, and its purpose is to establish the common well [4; p.223]. Thomas Jefferson considers equality of every citizen the real foundation of the Republican State, equal personal and property rights and dispositions by them[4; p.223]. G.Hegel named the state the validity of moral idea[5].

The idea of the law state mastered the scientific opinion, legislative activity and legal practice in the twentieth century. S.S.Alekseyev introduced the significant contribution to the theory of law in the Soviet legal science. Some speculation of his work was lied his in trying to "tie" the idea of the legal state to the existing socialist totalitarian of Soviet regime[6]. It should be noted for justice that Professor S.S. Alekseyev while, highlighted features of the legal state though not sufficiently systemically. He concern rising of the court, legal culture and legal importance of human rights, ratio of right and law to the signs of the legal state. Unfortunately, the scientist still favored for the rule of law, contrary to previous beliefs about the legal state, is not reached in the idea of separation of powers as one of the most important features of legal state in 1988.

The idea of sharing the power functions developed in parallel with the idea of the legal state as one of its terms with other signs, including such as the guarantee the rights and freedoms of individual, real equality, the rule of law, justice of law, state responsibility before the individual and others.

The content of this principle is to ensure separation of powers in order to prevent concentration of power in the hands of one person or group (clan, class) of persons. History of scientific researches around this problem goes a bit more further traditionally cited in our sources of S. L. Montesk ' or, at best, of D. Locke

Let us recall in this connection that even ancient Greek historian Polybius. (200 - 120 years BC. AD) wrote: power is divided in such way that any link of power not overbalance another in the ancient Rome [7]. Platon named the state the fair if from three existing in it states (rulers, warriors and artisans), each doing his own case[4; p.25]. We can find the idea of sharing the power functions in Tommaso Kampanely, and in Jean Boden, and in Hugo Grotius, and in Benedict Spinoza, and in Gerard Uinstenli.

Of course, John Lock at first formulated theoretical basis for the division of authority into legislative, executive and judicial. Legislative power from his point of view is which’’ has the right to specify how to apply power of the state to preserve society and its members’’. To ensure the "continuous implementation and monitoring of this implementation", it is necessary that all the time there was a power that would be followed by implementation of those laws that are created and remain in force." The third branch of power in John Locke - folk or federal, that "responsible to that authority, which for the nature has everyone before entered into society". Here, John Locke justifies the headship of the legislative authority, the subordination of the executive authority to the legislative., John Locke still does not speak about the people as a single source of power, despite the commitment to the idea of popular sovereignty and the right of people on the applying the force against the unjust and illegal force, that`s why he expressed about the irrationality of the distribution and transfer into the hands of different people in the executive and the federal (national) authority. Obviously, this is due of the attempts of contemporary progressive thinkers need to justify theoretically limits of the royal power[4; p.202-203] in the legislative and executive sector, including through the establishment of the parliament and the system of executive branch, to work where people would be invited by a professional feature.

The modern state can`t be legal. Already in the Universal Declaration of Human Rights and citizen, adopted in 1789 by the National Assembly of France, proclaimed that a society in which not provided enjoyment and not made the separation of powers, has no constitution. Today, the state that does not ensure the separation of power, is considered the world community as an anachronism of XXI century, totalitarian state, the power of junta feudal relic, etc. While, such state has become the object of isolation very often, and its citizens are hostages of the power, deprived of normal communication with the world community.
Since the adoption of the Constitution of Ukraine in 1996, we had declared the creation of the legal state. Despite the fact that the Constitution is called the Basic Law, there was made the attempt to get rid of this Soviet stamp. Constitution of Supreme Court of Ukraine adopted on behalf of the Ukrainian people - citizens of all nationalities.

It is clear that the Constitution is referred to the number of laws, even with the supplement "Basic", degrades the value of this act in the development of society and its place in the legal system. According to its legal value the modern constitution is the Social contract between government and civil society, the contract, under which the State assumes the obligation to serve society, and recognizes and guarantees human rights.

Note that Article 1 of the Constitution of Ukraine determines our state as legal. In the basis of criteria treating the state to one that can be called the legal - the priority of human rights in the system of law, guaranteed and the reality the implementation of these rights and freedoms, the existence in the country the civil society, rule of law, implementation the principle of dispositivity (which should be viewed not only as a principle of civil procedural law, but as a universal principle of law in general) in law and enforcement practice ( "it is possible everything that isn`t prohibited by law" unlike and in contrast of prevailing in the conditions of any totalitarian state "it is possible all that is allowed by law) , legal consolidation and implementation the principle of separation the power. In fact, these problems in the conditions of rethinking of theoretical and methodological foundations of law and the formation of a new philosophy in modern conditions is extremely attractive for research and we will turn to their analysis. In the context of the posed aim here will focus on the principle of separation the powers as one of the basic, fundamental postulates of modern legal understanding.

Today, with the expiry of the thirteen years the author of these lines as both co-adopted on June 28, 1996 the Constitution of Ukraine have to admit that it was allowed methodological error, which is the cause of political strife and disruption in the work of state apparatus also now. The idea is that the basis for modeling of the state power in the draft of Constitution of Ukraine was laid the principle, formulated by John Locke and Charles Montesquieu even 270 years ago, as to the separation of the power into legislative, executive and judicial, a principle, which is not covering all the functional branches of the state machinery.

While we as co-authors of the Constitution of Ukraine did not take into account the following points:

- since the appearance of the scientific work of J. Locke and S.Montesk 'is passed considerable time during which the state apparatus was greatly improved and complicated;
- in the basis of idea the separation of power have been entrusted the task not only and not as popular sovereignty, but the task limitation absolute royal power and depriving society from the possible despotism of the monarch, if he could not or would not be wise in XVII-XVIII centuries;

- during the preparation of the draft of the Constitution of Ukraine in its developers was not enough time for processing model of local government, which for the same constitutional requirements is a local community authority, has declared the property and fiscal autonomy;

- the level of legitimacy of an elected President of Ukraine is the same as the whole Supreme Court, but by his powers President can`t be attributed to any of the appointed branches of government;

- have appeared in the twentieth century's scientific works are somewhat differently described the system of "branches" of government.

As to the last thought to the work of the Chinese scholar and politician Sun Yatsen, who in the work "Constitution of five authorities "[1; p.470-473] in addition to the legislative, executive and judicial branches of government allocated also examination and supervisory authorities.

According to the Article 6 of the Constitution the state power in Ukraine is based on its division into legislative, executive and judicial. Analysis of the Ukrainian Constitution gives reason to believe that in the text declared organs that can`t be attributed to the legislative, executive and judiciary. This is the institute of presidency, qualification commission of judges, the Supreme Council of Justice, prosecutors, the Commissioner of the Supreme Court of Ukraine from the human rights.

The positions of the Constitution of Ukraine that the only source of power is the people do not take into account the one circumstance. People are not only a source but a carrier of power. An ideal state is in which is generated the power with "appropriate action being made up from three kinds of power – the imperial, power of the aristocrats and popular" in the work of Cicero "Dialogues. About the state. About the laws "[4; p.47]. If so, state power and local government are the derivatives of the people`s power. So, before talking about branches of government, should elucidate the question about levels of the power.

Obviously, the first level of power is the power of the people as a single source and single carrier power (see Appendix). The second level includes power system of representative government. This system includes three branches: legislative power in the face of Parliament; President of the state; local government.

Representative power is elective. Elective`s principle of representative government the people is precondition of the existence the power in general, not only the representative government. Replacement, for example, electing of the President of Ukraine by the people on the nationwide elections for his election by the Supreme Court of Ukraine violates the principle of constitutional stability, formulated in the Constitution of Ukraine, the mechanism of formation and functioning of the authority, the constitutional requirements of Article 5 about the sovereignty of the people.

In the Constitution of Ukraine does not directly noted, that power belongs to the people. The people called the bearer of sovereignty and the source of power. However, Article 5 of the Constitution in p.II establishes that the people exercise power (emphasis added – V.K) directly or through government agencies and local governments. The people confer by the power the Parliament on the elections, the President and the local government.