The history of the development of the ideas of the legal and social state and the practice of their implementation in foreign countries

Embulaeva Natalia PhD in Law Associate professor, Kuban State Agrarian University named after I.T. Trubilin 350000, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 nembulaeva@mail.ru Other publications by this author

Kaushan Valeriya Evgen'evna Graduate student; Faculty of Law; Kuban State Agrarian University named after I.T. Trubilin 350000, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 kaushan.v00@mail.ru

Currently, in the legal and political sciences, the social and legal state is recognized as the main characteristic of a modern developed state. However, before these social phenomena became the standards of the modern state, they were forced to undergo significant political and social "tests" in practice. It is particularly interesting to trace the path of development of the basic ideas of a social and legal state in European, Asian, Scandinavian, and socialist countries, which will be the purpose of this study. The tasks include the analysis of the main provisions of the concepts of the legal and social state, the development of the ideas of the legal and social state in Germany, Japan, the Scandinavian countries, Italy, France, the USA, a number of former and present socialist states, theocratic states, as well as the implementation of the concepts of the legal and social state in the XXI century.

Currently, it is necessary to talk about the possibility of distinguishing several concepts of the rule of law: German, Anglo-Saxon and Asian. According to the German concept of the rule of law, it must meet the following requirements. There should be a system of separation of branches of government, personal freedoms and rights should be guaranteed. The basic principle of the exercise of State power should be democracy. A person should be guaranteed procedural rights, including the right to judicial protection. The courts should be independent of any political influence and represent real power ^[1,2]. It was in Germany that the generalizing term "rule of law" was first used by K. Welker in 1813 in his work "The Ultimate Foundations of Law, State and Punishment". Robert von Mol introduced this category into scientific circulation in 1832 ^[3].

The need to consolidate legal statehood in Germany was dictated by the emerging new capitalist relations, which demanded economic freedoms and protection of owners from arbitrariness on the part of the ruling aristocracy. Therefore, the theory of the rule of law was based on the idea of guarantees of property rights. Freedom of enterprise and protection of competition were required. The key principle of legal regulation is the provision according to which everything is allowed that is not directly prohibited by law. Thus, the rule of law state had to rely on a market economy. In the nineteenth century, the concept of legal statehood was studied in detail by I. Kant. In his opinion, the legal order should not depend on personal discretion, it should be sacred. The individual must obey the supreme norms issued by the state. The goal of the state should not be the well-being of individuals, but the absolute consistency of the organization of State power with legal principles.

The owner class (bourgeoisie) in the German tradition does not occupy leading political positions, limiting itself to the realization of its economic and social interests. The liberal tradition here is quite consistent with the concept of the rule of law.

In the spirit of this concept, in Germany, the Commissioner of the Federal Government for Human Rights and Humanitarian Assistance Policy, Louise Amtsberg, is currently dealing with human rights and freedoms issues. A special department has been established in the German Ministry of Foreign Affairs – the Department for Human Rights and Gender Issues (Human Rights: the basis of German foreign policy. URL: https://germania.diplo.de/ru-ru/human-rights-acornerstoneofgermany/1047036 (date of application: 14.10.2024)). In 2022, the Federal Cabinet of Ministers adopted the fifteenth report of the German Government on human rights, which defined a work plan in the field of human rights for 2023-2024 (URL: https://www.auswaertiges-amt.de/en/aussenpolitik/themen/menschenrechte/human-rights-report-15/2567970 (date of application: 14.10.2024)).

As for the welfare state, the German tradition was also formed under the influence of the teachings of I. Kant. Despite the fact that the need for social support was expressed and implemented in the policy of Otto von Bismarck, who carried out a number of social reforms in the nineteenth century necessary to prevent social tension and maintain the standard of living of the population, the implementation of the idea of a welfare state was in conflict with liberal ideology. It is impossible to help everyone who is in a difficult situation. Even states with well-developed economies cannot do this. Only the most defenseless and vulnerable should be helped, and in exceptional cases. The rest, having full economic freedom, must take care of their material well-being on their own. Currently, in Germany, the mainstay of the rule of law is a multitude of freeholders.

It is believed that it was in Germany that the term "welfare state" was first mentioned - by German scientists L. von Stein, Y. Offner, F. Naumann, A. Wagner. The development of the concept of the welfare state was a reaction of conservatives to the threat of revolutionary transformations that were characteristic of the historical period of that time in Germany – the XVIII century and the XIX century. However, the conservatives were not those who opposed changes for the benefit of the country, in their opinion, the transformations should not be radical, they should be systematic and meet the trends of German society. Lorenz von Stein, philosopher, historian, economist, one of the first who structured and outlined in scientific works the concept of the welfare state – "The History of the social movement of France since 1789" ^[4].

The German concept of legal statehood becomes the basis for the formation of the states of France and Italy. The idea of a social state in the Italian Republic at the end of the 19th century was realized thanks to the Catholic Church, to which representatives from the upper wealthy classes made donations ^[5,6].

Unlike Russia, in Italy the principle of the welfare state is not directly enshrined in the Constitution, although it is such a state. Article 3 of the Constitution of the Republic of Italy of 1947 prescribes the duties of the state, which indicate the signs of a social state – the elimination of economic and social obstacles to equality and freedom of citizens, proclaims the inviolability of individual rights, equality of all before the law regardless of gender, language, race, religious affiliation, political views and social conditions. Further, Article 32 of the Constitution ensures the accessibility of the health care system. In the Italian Republic, laws were gradually adopted, which, as they appeared, contributed to the realization of the concept of a legal and social state. In 1898, the first Italian law on accident insurance for workers was passed. After the Second World War, the Ministry of Post-War Assistance was established. In 1948, the Constitution came into force, which, recognizing the central role of the human personality as an individual and a member of social education, establishes the inalienable nature of certain rights: health, work, education, etc. ^[7]. For a better understanding of the implementation of the idea of a welfare state in Italy, it is necessary to turn to such a socially important area as education. Italy occupies one of the last places among the EU countries in terms of the level of education of the population, the situation is worse only for Spain, Malta and Portugal. AGI writes about this on Wednesday, commenting on a report on the impact of education on employment, prepared by the National Institute of Statistics (ISTAT) at the end of 2019. It says that among the Italian population aged 25-64, holders of secondary education certificates, which "serves as an indicator of the level of education in the country," are 62.2%, whereas the average for the European Union is 78.7% (URL: https://news.rambler.ru/europe/44548714/?utm_content=news_media&utm_medium=read_more&utm_source=copylink (date of access: 19.10.2024)).

The French Constitution proclaims it a secular and social state.France, having gone through the path of changes in the concept, approached the material concept of the rule of law, which became dominant by the 80s of the XX century. In the material concept, the rule of law was defined, first of all, as limited by law, representing a type of power in which there is a dual hierarchy of norms balanced both dynamically (the consistency of a norm is determined by formal compliance with certain procedures and conditions) and statically (the validity of norms depends on meaningful compliance with more general prescriptions, as well as a number of essential principles of law, including unwritten) relations. Giscard d'Estaing, who served as President of France in 1974-1981, stated that the rule of law consists in judicial control over the activities of government ^[8]. Today, the material concept of the rule of law is criticized by many French scientists because of its inconsistency with the challenges of the time. Based on the fact that France is perceived in the international legal arena as a social and legal state, it is interesting to follow the development of such socially necessary areas as medicine, education, and employment. France's health policy is aimed at ensuring a healthy life and well-being for all people at any age. In October 2023, France, as a member of the international organization "World Health Organization", presented the Global Health Strategy for 2023-2027. The new health strategy aims to reduce health inequalities and strengthen the One Health approach to better prevent and prepare for future global health emergencies. She calls on the global community to pay attention to the effects of climate change on health and the impact of the environment on health systems (https://www.who.int/news/item/12-10-2023-france-s-new-global-health-strategy (date of access: 19.10.2024)). According to the international organization "World Health Organization", France ranks first in the world in terms of medical development. There are both public and private paid clinics in France. Everything is automated in the country: health information and tests are sent to a family doctor, to whom you can make an appointment and get acquainted with research data through a personal document on specialized Internet resources. A new direction of online consultations is also actively developing in the country (https://www.homesoverseas.ru/articles/10171 (date of access: 19.10.2024)).

Within the framework of the Anglo-American concept of the rule of law, the rule of limitation of state power by law applies, and a free civil society is proclaimed. It is interesting that the state plays the role of mediator and intervenes in the legal conflict that has arisen not immediately, but when all the mechanisms for its resolution between the subjects have been exhausted, therefore such intervention becomes necessary over time. Judicial authorities play a special role, as they are the link between a citizen and the state. Trust in the court and the administration of justice prevails in society. The individual is an independent unit in society with its own set of rights and freedoms ^[9]. Despite the fact that the United States of America is based on the Anglo-American concept of the rule of law, according to which the population should have confidence in the administration of justice, statistics from 2014 showed that only 28% of Americans believe that the US Supreme Court is doing its job well or perfectly, 61% suspect members of the Supreme Court of having their own political interests that influence decision-making, and only 24% of Americans are confident in the impartiality of judges and the quality of judges' work (URL: https://www.gumilev-center.ru/39-zhiteley-ssha-ubezhdenyi-chto-sistema-pravosudiya-rasovo-nespravedliva / (date of access: 10/15/2024)).

As A.M. Mikhailov rightly notes, "... the doctrine of the rule of law is organically linked to the specific experience of the political and legal development of England, aimed at establishing a universal, definite order based on a single law, restriction by law ..." ^[10].

Thus, in the countries of the Anglo-Saxon legal family, they speak not so much about the rule of law as about such a feature as the rule of law, which cannot be reduced to the rule of law, positive law. It is not so much the parliament that stands for the protection of human rights and freedoms as the judiciary.

The ideas of the welfare state in the UK have been taking shape since the middle of the twentieth century, when labor exchanges were created, a social insurance system for illness, disability, unemployment and old age was proposed. In contrast to the communist ideology, the idea of creating a welfare state is proclaimed. In the 80s of the twentieth century, neoconservatives began to pursue a policy based on the idea that the market should cope with all social tasks much better than the state. Citizens should not get used to idleness and be dependent on financial assistance from the state. In general, British social policy is identical to American social policy. Higher and pre-school education is one of the most expensive in the world. State pensions are modest and can be compensated only by non-state savings of the citizens themselves.

The Asian concept of a legal state is distinguished by a combination of features characteristic of both the German and Anglo-American concepts. There is an explanation for this phenomenon. Many Asian countries were colonies of European states, their constitutional systems developed under the influence of dominions, and institutions of constitutional control appeared late in them. The formation of constitutionalism in these states was influenced by various legal systems. For example, the Soviet state legal system influenced the legal systems of Vietnam, the DPRK, and the People's Republic of China. India and Japan were influenced by the American system. The Indian system influenced the development of constitutionalism in Malaysia, Singapore, and Sri Lanka ^[11].

As a rule, social and legal states are those states in which the population has a high standard of living and legal awareness, the legal system works properly, to which everyone obeys. To date, Japan is among such States. Like other countries, Japan has gradually formed signs of a legal and social state in its legislation. The formation of a state governed by the rule of law, in which life is subordinated to the norms of law, falls during the reign of the Japanese Prince Setoku, which means "Virtuous" (lifetime name — Umayado). Even in the land of the rising sun, there is currently no ideal legal and social state for a number of reasons. For example, the Japanese government is making certain efforts to protect the identity of the Ainu (the oldest population of the Japanese Islands, previously the Ainu lived in the territory of modern Russia in the lower reaches of the Amur River). Also, the disadvantaged position of the indigenous inhabitants of the Ryukyu Archipelago is noted, since Tokyo denies them benefits and measures to support traditions, language and culture (URL: https://russianpeople.online/tpost/biseo4zda1-prava-cheloveka-v-yaponii (date of request: 10/15/2024)). Using the example of the development of the ideas of the legal and social state of Japan, it is possible to notice the achievement of certain results – a high standard of living and legal awareness of citizens, but at the same time there are gaps in the work to create equal and fair living conditions for all citizens.

Separately, it should be said about the Scandinavian countries, these include Denmark, Norway, Sweden, Finland, Iceland. It is believed that the above-mentioned countries have a high standard of living and significant success in legal education. In 1929, the Swedish version of the legal and social state was developed – a state that would become a home for the people. Since the 1950s, the principle of the welfare state has become the main state policy of all Nordic countries. It was proclaimed that a welfare state is a state in which every law–abiding citizen should be guaranteed a decent standard of living – housing, medicine, employment, pension, benefits, education, etc. Even at the beginning of the XX century. in the Scandinavian countries there were social accident insurance systems, preferential conditions for the elderly and the disabled ^[12].

In Sweden, the legal system was shaped by the needs of society. The foundations of the modern Swedish legal system were laid down by the Code of Laws of the Swedish state in 1734. Thus, the law of 1734 was a codification of law (it included 9 sections on the main branches of law – family trade relations, punishment and others). A special place is given to normative legal acts developed for a specific life situation. As A. H. Saidov notes, in Sweden one of the dominant trends in the development of sources of law is the increasing proportion of normative legal acts that are most appropriate to the nature of law, its properties, ensuring the purposeful, dynamic development of this legal system and at the same time the most appropriate and convenient in practice ^[13]. Judicial practice in Sweden acts as another source of law.

The peculiarity of the Swedish model of implementing the welfare state consists in achieving two key goals: ensuring full employment and maximizing income equalization for all segments of the population. The State is based not only on the principle of equality of opportunities provided to the population, but also on the fair distribution of the wealth available to the State. Society and the State should be responsible for ensuring a decent standard of living for the part of the population that cannot provide itself with everything necessary. It is the state that not only provides free medical and educational services, but also guarantees their quality. Funds for these purposes are generated due to a significant tax burden, including on citizens ^[14]. However, in conditions when the population sees where their taxes are actually spent, when officials do not have serious advantages over ordinary citizens, the degree of public confidence in the authorities is extremely high.

In the economic sphere, the state creates favorable conditions for doing business, provides low barriers to entry into the market, and minimal bureaucratic costs. Thus, in the Scandinavian countries, the ideas of liberalism and a market economy "get along" with the concept of a welfare state. Moreover, social guarantees are not directly related to the exercise of the labor function. That is, a person will receive social benefits regardless of his employment. The state policy implements the so-called collective individualism ^[15], which assumes that the realization of the potential of an individual will have the greatest effect in the process of joint collective activity. In this regard, the institutions of civil society, which are the basis of legal statehood, are of great importance.

At the end of the XIX - beginning of the XX century, the doctrine of a legal socialist state was being developed, which was supposed to become a system of public relations in which there would be no social cataclysms. The peculiarity of this concept was the attention not to the principle of separation of powers and the organization of state power, but to guarantees of the legal nature of the activities of the state apparatus. The emphasis was placed on the supremacy of the supreme law, popular representation and the inviolability of individual freedom. The rule of law was supposed to be the forerunner of the welfare State. The foundations of a socialist state structure should be developed in the bowels of the rule of law. The main contradiction in the ideas of the rule of law and the socialist state is the question of whose interest should have priority, the state and society, or individual, private interest, as well as what form of ownership should underlie economic relations. Following the classic version of the socialist idea, the key is public ownership of the main means of production. Modern socialist states (China, Vietnam, etc.) liberalize their economic systems and allow the development of market relations.

Theocratic states in which secular power is merged with ecclesiastical power, where religious texts are the key source of law, it is not possible to talk about the establishment of legal statehood. At the same time, in a number of Islamic theocratic states, one can see the development and implementation in political life of the ideas of the Islamic socialist state. In the twentieth century, the ideas of universal equality are taking root in such states as Egypt, Syria, Libya, and Iraq. Power in these states formally belongs to the people of orthodox Muslims. The Constitution of Pakistan contains a provision according to which supreme sovereignty belongs to Allah, but earthly sovereignty belongs to the people.

The study of the features of the practical implementation of the ideas of a social and legal state in different countries, the difficulties that arise in various geopolitical conditions, statistical data reflecting the real embodiment of the concepts of a legal and social state, allow us to draw several conclusions. Firstly, there is no single universal way to implement the ideas of a legal and social state in practice. Secondly, the legislative consolidation of the foundations of legal and social statehood does not guarantee their operation. Thirdly, optimization of the state apparatus is required, ensuring maximum transparency of the activities of government authorities ^[16]. Fourthly, in order to implement the principle of the rule of law, it is necessary to create a legal system with a minimum number of conflicts ^[17]. Fifth, the successful foreign experience of combining the individualistic principle of the rule of law and the collective principles of the social state can be used in our state.