Teisinė valstybė: nuo optimizmo iki realybės

Abstract

The evolution of the idea of the legal state from the state of legality to the state of justice and the state of the rule of law or the welfare state is discussed. The article also discloses the internal contradictories of the legal state showing what problems it tries to overcome and what new menaces for human rights it creates. There are three menaces for human rights that follow from the rule of law: 1) ascertainment of the tendencies of ontologisation of law in the conception of the natural law when the laws arises not from society, but from the biological human nature, so the subjective personal right may not be bound by the realisation of conformable duties; 2) large limitation of powers of the state authority by the human rights when the state cannot effectively defend human rights from criminal aggression (only 40–43 per cent of registered crimes are disclosed, so the scale of unpunished violations of human rights rises); 3) the principle of social guardianship is realised too wide. It reaches such boundaries in Western countries that when they are trespassed, the social policy begins to stimulate the standpoint of consumers and cultural passivity: the existence of human being is separated from the necessity to quarantine it with cultural activity of a person in great number of cases.
These menaces don't deny the idea of the state of rule of law and only show that practical realisation on this idea is the internally contradictory process, so it exists as a forward going and regaining process.