Valdžia už teisės: teisinė demagogija ar politinė realybė?

Santrauka

The article deals with the legitimacy of the state government, balance and cooperation of the authority and law, power of law. The government in the transitional states (i.e. the states of the former USSR – even if they named democratic, legal, liberal) may exist without law; the government in these states might be arbitrary in content, although liberal as to the form; the government also might not be subjected to the law (political provisions are superior in relation to law). The author considers, that “vulnerable subjects” (groups, individuals, majority of the nation) need more legal stability (predictability) than any oligarchs, or bureaucracy. Democratic (in form) government in the states of the transitional type is still totalitarian (in essence). The state of such type violates the people’s rights in problematic situations (for example, during the political or economic crisis).
One of the criterions for the evaluation of the legitimacy of the government is it’s relation to the law, or, more precisely, application of the established legal norms to the government itself. It is well known that sometimes the government is not following the rule of law. In case statutes are created and executed by representatives of the government and simple citizens participate in this process it is possible to speak about democratic and even legal state (instead of totalitarian).
The statute must be observed by the government, while it will not be replaced by another legal provision.
Another moment of the legality of the law is the problem of force, which can be divided in two separate issues: who exactly has the right on application of the force; and, in what extent the force is a necessary element of the right?
Under the current legislation Ukraine is democratic state under the rule of law, but it’s real government today exists outside of the law, and legal nihilism has reached such extent, that we can recollect gloomy thirtieth and fortieth years of the last century and the other things, which are related to the totalitarianism.