The exercise of the right of force in a democracy: separate questions of theory

• Main Author: Oleg Bohinich
• Format: Article
• Language: Russian
• Published: PC Technology Center 2018-10-01
• Series: ScienceRise: Juridical Science
• Subjects: law of force; power of law; democracy; state-legal institutes; abuse of power
• Online Access: http://journals.uran.ua/sr_law/article/view/143380

The article examines the effect of the phenomenon of the right of force in state-organized societies and societies that did not yet know the state forms. The phenomenon of the law of force was investigated by domestic lawyers for the most part in the context of the criminal activity of individuals. The most significant results in the study of this phenomenon were achieved by the representatives of the humanities of the West. In this regard, the task of studying the current conditions for the emergence and implementation of the right of force in both Ukraine and in other states looks urgent. There is postulated the hypothesis of the study, which consists in the assertion that the right of force - is the presence of any benefits to individuals over others, the exercise of the right of force will be understood as the implementation of the domination of one subject over the other (a group of subjects, their community), obtrusion of others’ will to them. From this angle, socio-economic formations (tribal, tribal, slaveholding, feudalism, capitalism) are analyzed for the purpose of finding the grounds for the emergence and mechanisms for the exercise of their right to force. It is argued that during the conscious history of mankind, the factor of the power of rights played a significant role in the organization of society. This is that individuals who had certain advantages over others (initially physical, later – intellectual, economic, organizational), were able to gain a privileged position in all spheres of human activity. With the change of feudalism by capitalism, the legal right of force was replaced by the right of formal equality, which did not remove the actual inequality of individuals, which ultimately helped them again occupy the dominant positions in the socio-political, business hierarchy. This is confirmed by the data of anthropological and synergetic theories of legal thinking. On this basis, the conclusion was made that the power of law existed and exists, and this is not the atavism of the legal system, it is reproduced by the selfish nature of individual representatives of mankind, unfortunately the most active and mobile in comparison with others in achieving their goals. Examples of the force of law in modern practice of the functioning of state institutions of Ukraine, Italy and America are given. The forms and mechanisms for implementing the right of force are considered. Among the latter is the manipulation of consciousness, which is typical for developed civil societies with democracy as their political form. The above conclusions are illustrated by examples of mass media activities. In this context, attention is also drawn to the exercise of the right to force through the trade and economic mechanisms of individual international organizations and institutions. At the end of the study, the results are summarized, which are reduced to the next. Summarizing all of the above, we can draw the following conclusions. First, the right to force is a right arising from the existence of any advantage of one subject over another (physical, intellectual, economic, organizational, etc.), which, under certain conditions, the weakness of the other party (lack of appropriate qualities) can be implemented in the relationship between them. Secondly, the power of law has not disappeared from modern history, it continues to exist as in the relationships of individual individuals, individuals and states, and in the relations of individual states. Third, the existence of democracy as a political regime does not exclude the existence and exercise of the right to force. Fourthly, manipulation of consciousness as a kind of power of law is one of the main means of governance in the conditions of the existence of civil societies and democracies as a political form, which necessitates dictating the demand for improvement of the latter in order to prevent distortion of opinion of citizens in such societies. For example, by expanding the forms of people's participation in the exercise of power through the institutes of direct democracy, which is known to be widely used in one of the wealthiest and happiest countries in the world - Switzerland