01. « Introduction . Basic theories of State and Law »

1. 01. «Introduction. Basic theories of State and Law» Lecture by M.O. Sopiha, PhD

2. Plan: • Introduction. • Basic theories of State and Law. • Constitutional Legislation of Ukraine. • Basics of Civil Legislation.

4. Introduction: • Basic law is actually legal version of Constitution that realizes the idea of governing of State and protecting rights of citizens and human. • Lawis a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. • Law also raises important and complex issues concerning equality, fairness and justice. In a typical democracy, the central institutions for interpreting and creating law are three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. Implementation and enforce the law and provide services to the public, government bureaucracy, military and police are vital. All these organs of the state are created and bounded by law, an independent legal profession and vibrant civil society to inform and support their progress.

5. Basic theories of State and Law

6. Basic theories of State and Law: • The classical Theory of State and Law focuses on «interior» and «exterior» functions of governance. The interior functions include the state budget, focused on enhancing the economic development of the country; the reduction of unemployment; the social protection of citizens; the improvement of public health and public infrastructures (transportation, water, sewage, electricity, gas, etc.); and law enforcement, especially the «struggle against infringement of laws» (but without discussion of whether the government is itself governed by law). The exterior functions include «maintaining mutually beneficial relations with foreign countries» and «defending the country against aggression».

7. Basic theories of State and Law: • Law is formed when state has been formed and they are connected. The degree of this connection is interpreted in various theories in the variety of ways. There are following theories of law: • Lawnatural theory. It was developed by Lokk, Russo. According to the theory every person had natural law on life, free development, work etc. • Law historical theory. It was created by Gugo G., Puhta F. According to the theory state had only such laws which were formed during historical development. • Law realistic theory. It was developed by Yeryng R. Due to the theory the law was formed and developed under the influence of outer factors. Those factors had to reflect interests of people. That’s why the main task of the state power was to protect the interests of people. • Law socialist theory. It was created in XX cent. According to the theory the law interrelationship had to be provided among the members of the society. • Law normative theory. It was developed by Shtamler. Due to the theory the law had to regulate only outer social life.

8. Basic theories of State and Law: • Therefore, taking into consideration those law theories we can make a conclusion that LAW is the system of compulsory rules of behavior which have been formed by the state to express common and individual interests of the country population.Lawis the principal regulator of socialrelationships.

9. Basic theories of State and Law: Types of the law: • Subjective (actions of the person) • Objective (laws which are formed by the state) Statuses of the law: • Status is referred to the place and role of the person in the law system of the state. • Common status (laws of all society members) • Special status (laws of the certain group of people) • Individual status (laws of the certain person) There are special written documents (the Law-Normative Deeds) which are formed by the state body and can be cancelled only by it.

10. Basic theories of State and Law: • Conflict of laws(or private international law) is a set of procedural rules which determine which legal system, and the law of which jurisdiction, applies to a given dispute. The rules typically apply when a legal dispute has a «foreign»element such as a contract agreed by parties located in different countries, although the «foreign»element also exists in multi-jurisdictional countries such as the United Kingdom and the United States. • The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict between those laws. In civil law lawyers and legal scholars refer to conflict of laws as private international law. Private international law has no real connection with public international law, and is instead a feature of municipal law which varies from country to country. The three branches of conflict of laws are: • Jurisdiction – whether the forum court has the power to resolve the dispute at hand • Choice of law – the law which is being applied to resolve the dispute • Foreign judgments – the ability to recognize and enforce a judgment from an external forum within the jurisdiction of the adjudicating forum.

11. Basic theories of State and Law: • State is a form of society organization, a bearer of public power, integrity of interrelated establishments and organizations that govern the society on behalf of people. • The place and role of state are determined by the basic principles of its functioning: • Supremacy of public power. • Preservation of state integral structure that is based on the reach of compromise between those who rule and those who are ruled regardless of the government stuff and ruling party. • Reaching of the state unity through certain relation with social forces of society - classes, groups, nations, political parties, etc. - by the means of the right and possibility to perform inner and foreign policy on behalf of the people through the natural interaction with the civic society in general.

12. Basic theories of State and Law: State is characterized by: • Power organization according to certain territorial principle: population division according to the inhabited territory but not to family features. • Integral character - a state embodies with its influence all the people that inhabit its territory including the citizens of the other countries. • Public power that is performed only by people that are engaged in society administration and protection of established rules. • Right and possibility to conduct inner and foreign policy on behalf of the whole society. • Monopoly on coercion influence on the population and special system of institutions, establishments and means of coercion (army, police, courts, prisons) that fulfill functions of the state power. • Sovereign legislative branch of power - right to issue laws that are obligatory to the entire population. • Monopoly on tax for national budget formation, support of state apparatus.

13. Basic theories of State and Law: Basic theories of state origin can be grouped into the following groups: • Theological theory explained the state origin by the will of God. The theory supposes the dependence of the state upon the religious organizations and leaders. • Non-historic theory was proposed by Aristotle. He declared that nature of a man who is a political creature determined its life in the society and the state is a natural result of human communities' development. • Patriarchal theory says that a state is the result of the family development. The absolute state power is the continuation of the father's power in the family. • Treaty theory appeared in the Ancient Greece. According to this theory the state appeared in the result of a treaty between the sovereign dwellers of certain territory with the ruler according to the laws of human intelligence with the aim to achieve order and stability. • Psychological theory relates the state origin to special qualities of the human psychology that needs to depend on some great personality. • Violence theory says that a state appeared as a consequence of conquest of one people by the other. • Marxist (class) theory links state origin with class division of society. The dictatorship of a ruling class is the essence of a state. It was founded by K. Marx and F. Engels. They claimed that appearance of a state is the result of natural- historical objective process. State was formed in the last phase of primeval order and developed during a long historic period of time.

14. Basic theories of State and Law: • To the basic state features belong: • The system of sovereign political power (legislative, executive, judicial). Sovereignty means that a state enjoys the supreme and unlimited power on the inner subjects inside the state and the other states are to recognize it. • Territory. A state is associated with a certain territory where its laws have absolute power. The territory includes the land, entrails, air space and sea- expanse. • Monopoly on legal applying of the power. A state creates special apparatus of coercion that is used in situations established by the law. The range of state coercion spreads from limitation of freedom to physical extermination of the person. • State language. This is a language of the majority of population. • State apparatus as a rule consists of the parliament, local governing bodies, president, government and its regional bodies, judicial bodies, prosecuting magistracy. • National law system. Every state functions in the certain law system. State law system establishes norms that regulate social life, and which subordinate all the subjects and objects of politics. • Population. A state influences all the people in the country. No person can exists outside the state and disobey it, because state appliance is a social necessity and is regulated у the law.

15. Basic theories of State and Law: State functions are the main trends of state activity that consist its social essence and mission. There are different points of view on the problem of state functions classification. State functions can be divided into temporal and permanent, temporal functions are performed on a certain stage existing (e.g. during a war), permanent functions are realized during all the time of state existing. The most acceptable is the one that supposes division into inner and foreign functions. The inner state functions include: • Economical - protection of economical basis of society, existing way of production, different property forms; regulation of economic activity, market relationships; state government in economic sphere. • Social - regulation of relationships between social and ethnical communities and prevention of social conflicts and contradictions and their settling in case of occurrence; regulation of interests and needs of individuals and social groups; efficient demographic policy. • Support of legality and order - control and supervision over law norms following and application of coercion in the case of need; protection of rights and freedoms of the citizens, creation of conditions for their safety, social order, etc. • Legislative - creation and adoption of new laws and other juridical norms. • Cultural-educational - regulation and development of educational system, system of culture, science, physical culture and sport, morality, humanism, common to mankind and national values. • Ecological - environment protection, rational use of natural recourses, formation of ecological culture.

16. Basic theories of State and Law: Foreign state functions are: • Defense and national security - protection of the country from the outer aggression and protection of its integrity. • Diplomatic - protection and realization of national interests of the state and its citizens in international life; realization of independent international policy. • Cooperation - development of economic, political, cultural relationships between countries; deepening of integration processes on public, regional and political basis. State organization is a division of a state into certain components and division of the power between them. • Forms of state organization: • Unitarian states. • Federations. • Confederations.

17. Basic theories of State and Law: State government is a way of organization and performing of the state power. Forms of state government: Monarchy. Republic. • Democratic state is such a type of state where the people is the source of power, where state democratic social-political institutions and democratic type of political culture provide perfect combination of people's participation in state affairs solving and wide civil rights and freedoms. • Social state is a state that strives to provide every citizen with worthy conditions for existence, social security, participation in government of production, equal chances, possibility of self-realization of personality. • Legal state is such a type of state that has law supremacy, power distribution, legal protection of a person, juridical equality of a citizen and state as its basic principles. • A lawful state is a sovereign politically-territorial organization of public power that is based on principles of respect to the person and inviolability of his rights and freedoms, supremacy of the law and following the law. A lawful state is a system of the authorities and institutions that guarantee and protect normal functioning of civic society.

18. Basic theories of State and Law: Main features of a lawful state: • Constitutional jurisdiction. Constitution is the main law that makes the basis for adopting other laws. • Supremacy of the law. • Really existing rule of law. • Parliamentary. • Developed electing system. • Guarantees of following the law and legislation. • Priority of human rights. • Developed law culture. • Power division. • Orientation on a person as on the supreme value.

19. Constitutional Legislation of Ukraine

20. Constitutional Legislation of Ukraine: The form of the Ukrainian state is the mixed type of republic. It contains the Parliament and the President forms of ruling. Ukraine is a democratic state. It was proclaimed aіIndependent State in August 24, 1991. Ukraine has three national symbols: • The National Flag (blue-on-top and yellow at the bottom) • The National Emblem (The Trident) • The National Anthem The territory of Ukraine is 603,700 square kilometers. Its population is 48 million. Ukraine has its Constitution – it is the main law of state. The Ukrainian Constitution was proclaimed on June 28, 1996. The Ukrainian Constitution has Preamble, 14 parts, 161 issues and the 15th part of «Transitional principles»

21. Ukrainian National Flag

22. Ukrainian National Emblem

23. Ukrainian National Anthem

24. Basics of Civil Legislation

25. Basics of Civil Legislation: In general, legal systems around the world can be split between civil law (legal system) jurisdictions on the one hand and on the other systems using common law and equity. This is largely the result of countries having a shared history. The term civil law, referring to a legal system, should not be confused with civil law as distinguished from criminal law, or as distinguished from public law. A third type legal system still accepted by some countries, even whole countries, is religious law, based on Biblical transcripts. Civil law, as a type of legal system, is the form of law used by most countries around the world today. Civil law systems mainly derive from the Roman Empire. This was an extensive reform of the law in the Eastern Empire, bringing it together into codified documents. Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than judicial precedents) are considered legally binding. However, in reality courts do pay attention to previous decisions, especially from higher courts. Countries that have civil law systems include France, Germany, Russia, Japan, China and most of central and Latin America.

26. Basics of Civil Legislation: King John of England signs the Magna Carta English Law is the father of common law and equity, and is used in Common wealth countries or former countries from the British Empire, with the exception of Malta and Scotland both of which have an ingrained Civil Law system. Common law is currently in practice in Ireland, United Kingdom, Australia, India, South Africa, Canada (excluding Quebec), and the United States (excluding Louisiana) and many more places. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Pakistan, India and Nigeria operate largely on a common law system, but incorporate religious law. In the European Union the Court of Justice takes an approach mixing civil law (based on the treaties) with an attachment to the importance of case law. The term «civil society»traces back to Adam Ferguson, who saw the development of a «commercial state»as a way to change the corrupt feudal order and strengthen the liberty of the individual. Later on, Georg Wilhelm Friedrich Hegel, a German philosopher, made the distinction between society and the 'state' in his Elements of the Philosophy of Right. Hegel thought civil society (Zivilgesellschaft) was a stage on the dialectical relationship between Hegel's perceived opposites, the macro-community of the state and the micro-community of the family.

27. Basics of Civil Legislation: The main kinds of religious law are Halakha in Judaism, Sharia in Islam, and Canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system. The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings. Sharia Law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia Law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law. Canon law survives in use by the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Civil procedure includes the legal rules governing the procedure of the court consideration and solving the disputes and the enforcement of writs. This legal field is governed by the Civil Procedural Code of Ukraine.

28. Basics of Civil Legislation: • Civil law comprises provisions governing the ownership and non-property, and intellectual property rights, contracts, torts, etc. • Civil Code contains of six books and practically establishes a new for Ukraine system of norms to govern private relations. Taking into account the constitutional approaches to the human being and its inalienable rights, it also fixes the individual non-property rights of a person and governs relations which enforce these rights. • The other subjects of the new Civil Code are as follows: obligations, contract law, inheritance law, legal entities concept and other. The Code introduces new types of business contracts into the legal practice: factoring, franchising, and rent service or inherited contracts etc. • The Law of Ukraine on Protection from Unfair Competition adopted in 1996 establishes the fundamentals for the protection of business participants and consumers against unfair competition.

30. The End