Domestic state studies of the second half of the XIX century . about the problems of interaction between the state, society and the individual

Chukaev Timur Omarovich Senior Lecturer of the Department of Theory of State and Law, St. Petersburg University of the Ministry of Internal Affairs of Russia 198206, Russia, g. Saint Petersburg, ul. Letchika Pilyutova, 1, kab. 601 timurchukaev@yandex.ru Other publications by this author

Kozinnikova Ekaterina Nikolaevna Senior Lecturer of the Department of State Theory, St. Petersburg University of the Ministry of Internal Affairs of Russia 198206, Russia, Gorod oblast', g. Saint Petersburg, ul. Letchika Pilyutova, 1, of. 601 katerina_kozinnikova@mail.ru

The nature of the interaction between the state and the individual is the most important indicator of the state of society as a whole, the goals and prospects of its development. Having proclaimed itself a state governed by the rule of law, Russia is engaged in building a civil society – a sphere of manifestation of initiatives of free citizens and voluntarily formed organizations, protected by laws from direct interference and arbitrary regulation of their activities by the state authorities ^{[1, p. 154]}. In this regard, the issue of the interaction of the state, society and the individual is becoming particularly relevant, the most important tasks arise for historical and legal science to find the most acceptable models of state and legal structure in the realities of modern Russian reality ^{[2, p. 53]}, the implementation of which is impossible without reference to the national historical experience and legal traditions of our state. Of particular importance in this case is the study of the creative heritage of Russian legal scholars of the second half of the XIX century, the subject of which was the problems of the relationship between the state, society and the individual.

One of such scientists was Professor of police law Vasily Nikolaevich Leshkov (1810-1881) and the concept of "public law" developed by him, in the context of which he expressed the idea of the independence of society from the state. The jurist argued that the independence of human societies is equivalent to the freedom of individuals and the autocracy of the state: "our society is independent ^{[3, p. 14]} by the act of its origin." Just as freedom is recognized for an individual from the moment of birth, so society, at the moment of its formation, does not require any special recognition, approval, or illumination to understand its independence ^{[4, p. 381]}.

V. N. Leshkov emphasized that human society, like the state, exists by the power of history, and they exist in the name of the same goal ? for the sake of people's life. Communities, villages and cities, as well as the zemstvo, like regions and people, appear before the state, serving as its foundation, soil, motive for existence ^{[4, p. 383]}. V. N. Leshkov believed that human society is independent in the sense that both its principle and its department do not depend on the arbitrariness of its members, nor on the orders of the government placed over it ^{[3, p. 4]}. The jurist argued that the independence of society from the state presupposes the inadmissibility and impossibility of state interference in its "internal life", just as it is impossible to arbitrarily establish life in the family or life in the community. "The general spirit of the people, emanating from its history, commands and dominates," wrote V. N. Leshkov ^{[3, p. 22]}. The society within itself must organize and function independently, just like any government agency within its powers or any person within its rights. The right of an individual according to V. N. Leshkov ? this is a situation in which a person independently and freely (within the limits of his right) disposes of his property, his possession, estate, house, shop, factory, otherwise civil, personal right cannot exist. V. N. Leshkov argued that society acts as a subject of law and therefore the state should "allow full independence of his orders within the limits of his rights, or within the limits of his office. It goes without saying that these independent orders must be consistent with the principles in force in society. The principles of society are popular, given by the people's life, and therefore are nationwide and must be included in the laws of the country, or in the field of state legislation. After all, the state was created not only for the external and internal protection of society, but also for legislative activity" ^{[3, p. 23]}.

Recognizing the right of independence for society and denying the possibility of state interference in the process of self-government of society, the jurist emphasized that not every external influence on society is recognized as interference ^{[3, p. 29]}. V. N. Leshkov believed that it is worth distinguishing between local government and local self-government. According to the state expert, management remains state-owned even when it is transferred to local residents (counts, sheriffs, attorneys, etc.) for efficiency of execution. Even in the case when local residents are involved in the performance of management functions (for example, participation in recruiting, local distribution of taxes, elections to judges or assessors, etc.), this does not imply self-government. Public administration can only decentralize, but it is not able to appeal to local self-government, in essence of the task, in essence of the subject and in the nature of its activity ^{[4, p. 125]}. The subject of public administration is only the state, the forms of implementation of this management may be different, depending on the tasks facing the state in a specific period of time. The matter completely changes where the subject of the department is local, zemstvo; here it is managed by the zemstvo, not by the state and only in this way ^{[3, p. 12]}. V. N. Leshkov expressed the opinion that it is necessary to distinguish between the exclusive area of zemstvo and public law, since the absence of this distinction leads to confusion and uncertainty ^{[3, p. 13]}. In this regard, the jurist positively assessed the "Regulation on Provincial and County Zemstvo Institutions" ^[5] of 1864, which provided an opportunity for the local population to participate in resolving the economic needs of provinces and counties through the people's representation.

In his works, V. N. Leshkov forms the concept of civil society - as a society based on an agreement or calculation of its constituent entities and existing to achieve certain goals ^{[6, p. 380]}. At the same time, V. N. Leshkov only fragmentally concerns the subjective rights of specific individuals who make up this society.

This issue was later considered in detail by another well-known Russian statesman Vladimir Matveevich Hessen (1868-1920), whose peak scientific activity occurred in the period - the end of the XIX - beginning of the XX century.

Considering a fairly wide range of issues of the legal reality of the contemporary Russian Empire, V. M. Hessen paid special attention to the problems of interaction between the individual and the state (V. M. Hessen's PhD thesis was devoted to the institution of citizenship) ^[7], including in the context of the concept of the rule of law, which was based on the principle of free development of the individual, its protection by the state.

The most important tool for protecting the individual from state arbitrariness in a state governed by the rule of law was the concept of "subjective rights" developed by the jurist ^{[2, p. 54]}. The scientist believed that, being a subject of a state with the absolute power of the monarch, an individual is only an object of power, while in a legal (or constitutional) state, he becomes its subject, turning from a subject into a full citizen. Accordingly, he becomes the subject of certain public rights and obligations. These rights have two aspects related to the relationship between the state and the individual: objective and subjective. The objective aspect defines the boundaries of state intervention in the life of an individual, and the subjective aspect contains the rights of an individual in relation to the state ^{[8, p. 27]}. Of particular importance in this case is the subjective aspect, since it is he who fixes the new reality of a person's position in the state and gives him the opportunity to defend his rights in relation to the authorities in a judicial and administrative manner.

V. M. Hessen distinguished three categories of subjective public rights. The first category is the "rights of freedom": the rule of law recognizes a certain sphere of freedom for the individual, in which the state has no right to interfere ^{[9, p. 35]}. This is the recognition by the state of the individual's very "right to have a right", which was denied by absolutist forms of power. The acquisition of this fundamental right gradually leads to the emergence of a "catalog of political freedoms" ^{[9, p. 37]}, which included freedom of religion, freedom of the press, freedom of the individual, unions and assemblies, movement, crafts and occupations, etc. Each such "freedom", according to the scientist, is a partial manifestation of the "right of civil freedom".

The second category of subjective public rights is the "positive" public rights of an individual, that is, all the rights of an individual to a positive action of the state in his interests. In other words, these are the rights to services from the state authorities, for example: the right to judicial protection (the right of claim); the right to social protection (the right to public approval); the right to education. The third category of rights is political rights, that is, the right to exercise State power. The most important among political rights, in this case, is the right to vote – the right to elect and be elected a member of representative assemblies. In addition to the right to vote, the third category of subjective rights also included the right to be a juror.

Hessen saw parliamentarism as one of the main factors influencing the formation and development of the rule of law, since he quite rightly believed that the dominance of the legislative power and, consequently, its supervisory nature in the rule of law state is due to the representative nature of its organization ^{[7, p. 32]}. Studying the process of formation of the people's representation of foreign countries, the scientist came to the conclusion that the only true construction of the people's representation is the one in which legislative power is exercised by parliament on behalf of and in the interests of the people, while the citizen is not a legislator, but a voter; electing legislators ^{[10, p. 37]}. The rule of law, according to V. M. Hessen, is the optimal formula for a compromise of two principles – democracy and guarantees of individual rights ^{[2, p. 55]}. V. M. Gessen emphasized that the rule of law presupposes the mutual connectedness of law, both the state power and its citizens. "The state, represented by its governmental authority, is just as subject to the law as each individual citizen" ^{[8, p. 38]}. The observance of a single law for all in a state governed by the rule of law determines the relationship between the state, society and the individual.

In the context of modern problems of the relationship between the state, civil society and the individual, the concept of "public law" by V. N. Leshkov and the concept of the "rule of law" by V. M. Hessen are gaining particular relevance. The aspects of interaction between the state, society and the individual considered by these jurists, based on the principles of independence and the rule of law, remain relevant today, and therefore can serve as guidelines for choosing the optimal ways of development in modern Russia.