<<
>>

a general characteristic doktrinalnyh approaches to studying territorially-political system the Great Britain

Russian pre-revolutionary lawyer N.M.Korkunov mentioned in the present research has begun the description of a state system of the Great Britain with the statement obvious at first sight: «the official name of the English state itself as though specifies in its gradual formation from several parts independent before» [203].

Owing to absence in the United Kingdom kodifitsirovannoj constitutions, as a rule, defining the form territorially-political system the states, the analysis of the given element of the form of the state demands some other approach. The matter is that a studying subject here should become not only the current legislation defining the territorial organisation of the public power, but also process of association and integration of components into uniform political and legal space.

However, having defined two specified directions of research, it is necessary to pay attention to one more important circumstance - in British gosudarstvovedenii there is consensus concerning uniform model in which frameworks the legal nature of connection of England, on the one hand, speaks, no Wales, Scotland and Northern Ireland, and with another - concerning that communication which exists between positions of the current legislation defining a konstitutsionno-legal status of territorial formations, and features of formation of the uniform state on British isles.

Above we have shown, that under the form territorially-political system the United Kingdom concerns to regionalistskim to the states. Now, however, it is necessary to define the reasons and preconditions of occurrence of the British regionalism as konstitutsionno-legal phenomenon, including and connected with processes in the field of the state building, taking place in the past, to show national features of the Great Britain as regionalistskogo the states which formation proceeds and today, as a result of development devoljutsionnogo process.

In British gosudarstvovedenii there were two approaches to definition of the form of a state system of the United Kingdom. Within the limits of the first of them the Great Britain is considered as the unitary state, and the basic way of the analysis is the is formal-dogmatic method. The second of approaches more flexible also is based on achievements of some the humanities which however have not undergone procedure juridizatsii, and the Great Britain recognises that there is an allied state or the state of the unions.

Consideration of the United Kingdom as the unitary state, and this position is today dominating in a domestic science of a constitutional law [204], the roots goes back to works of the patriarch of sciences of the British constitutional law of A.V.Dajsi. As criterion of difference of unitary systems from federal (the third in its typology could not be) in its approach the presence fact of "the state force» in hands of one or several authorities acts. In particular, Dajsi wrote: « unitarizm means a concentration of all state force in hands of one visible Supreme power »while« the federalism means force distribution in the state between known number of establishments equal in rights which all are established and supervised by the constitution »[205]. From these definitions the obvious conclusion followed also. As in the Great Britain is not present establishments which are allocated by the power differently, than owing to the certificate of Westminster parliament, kodifitsirovannoj the constitution the territorial device of the considered state is unitary.

Position Dajsi receives essential support both in England, and on continent. So, V.Enson in the fundamental work on state law of the United Kingdom marks: « The parliament which has published the certificate about the termination of own existence by a concession of the sovereignty to new body, cannot limit the sovereignty of the last, not having changed the constitution »220. Rather successfully such approach is illustrated also by G.Ellineka's position. In particular, he wrote, that« the Velikobritansky state is based on the certificate of connection of 1707 which formally has character of the contract between England and Scotland, actually is the English law. The Great Britain legally represents therefore not that other as the expanded England as there is no such Scottish right which could not be changed the parliamentary certificate, Scotland has no right also independently to be organised, and the connection certificate legally differs nothing from other acts of the English state »221. It is obvious, that the same argument can be applied to Ireland and the more so to the Wales.

The approach offered Dajsi and its supporters, differs the simplicity. The recognition of a principle of parliamentary leadership in quality of "the basic norm» British constitutional order already automatically meant, that in the territorial constitution of the Great Britain that it is possible to describe in terms федерализма222 cannot remain. Any changes in the territorial organisation of the public power in the Great Britain, thus, cannot influence its form territorially-political

220

221

222

Enson V.Anglijsky Parliament, its laws and customs. - SPb, 1908. - With. 33-34.

Ellinek G.Pravo of the modern state. The general doctrine about the state. - T. 1. - SPb, 1908. - With. 560. Bulpitt J. Territory and Power in the United Kingdom. An interpretation. - Manchester: Manchester University Press, 1983. - P. 72.

Devices even if its components will acquire the right to the edition of own legislation. Them legislatury will be not than other as «the subordinated legislative institutions», and, hence, the state system and remains unitary.

As alternative to the approach to form definition territorially - a political system, offered Dajsi, the concept in which frameworks the United Kingdom is offered to be considered as the compound state acts, the territorial organisation of which public power is defined not by a principle of parliamentary leadership, and follows from features of formation of uniform statehood. British researcher K.Pilkingtom notices, that «unlike the unitary state, the nations forming the United Kingdom, have kept dosojuznye the rights and the institutes directly related to their internal affairs, than certain degree of an autonomy» was supported. Thus, the second of approaches to form definition territorially - a political system of the United Kingdom recognises that at the heart of the considered state the allied beginning from what the guarantee of certain degree of an autonomy concerning the parts forming it which volume can change depending on political, economic or other circumstances but which cannot be completely cancelled automatically follows lays. Otherwise crisis of uniform statehood неизбежен224.

Firmness of certain degree of an autonomy of components of the United Kingdom was underlined also by many researchers, including those who did not deny the unitary nature of uniform statehood. So, quoted above A.Duchasek has suggested to call components

223

224

Pilkington C. Devolution in Britain today. - Manchester; New York: Manchester University Press, 2002. - P. 8. Even cancellation of a political autonomy of Northern Ireland and introduction of a direct control from London in the early seventies of the XX-th century did not mean refusal of a recognition of the right of the population of the given part Connected

The Great Britain «indestructible units in unitary system» (“indestructible units in unitary system”) [206 [207]. Other researcher - R.Rose - marked: the United Kingdom «was unitary, but was not uniform» (“unitary, but not uniform”) [208]. Opinions of supporters of full negation of unitary character of uniform statehood the approach modern British gosudarstvoveda well illustrates E.Gembla considering, that the United Kingdom is first of all association of four various identichnostej, primary in relation to the general identity of all state. It also distinguishes the considered country from other modern national states. Owing to this fact, it summarises, «the British state has been compelled to use separate national identity as a basis for carefully developed and differentiated system of a territorial administration» [209].

Resulted arguments at the same time can be subjected criticism from the point of view of that they are based on actual circumstances, instead of start with the concrete konstitutsionno-legal statuses fixing at first association of England and the Wales, further - Scotland and England, and then - the Great Britain and Ireland. Finally we come back to strict formalistic approach Dajsi and its supporters.

Here, however, two counterarguments are possible. First, despite that fact, that in jurisprudence we are substantially obliged by development of an is formal-dogmatic method to representatives of English jurisprudence (we will recollect J. Austin or G.Heart), at the analysis of the British constitutional order it cannot give due result as a considerable part of the norms regulating questions of the organisation of the power, the constitutional agreements which actually right in understanding Dajsi are not [210] make. But thus settled rules of political practice, i.e. not legal social norms, admit a constitutional law source. Taking into consideration this fact, modern researchers try to find a certain compromise variant, marking: « Dajsi recognised, thus, not trying to hide, that the legal system of the state cannot be considered as completely independent of not legal factors, however has made an attempt to formulate the sovereignty doctrine exclusively in legal terms, how much it was possible »[211]. At the same time, appealing to it, opponents Dajsi can assert, that to the last not udalost to formulate exclusively« in legal terms », i.e. recognising as the basic norm of the British constitutional order a principle of parliamentary leadership, the model explaining essence territorially-political system of the United Kingdom, after all here« not legal factors »have defining value. Differently, firmness of certain volume of a regional autonomy, as well as appointment to the post of the prime minister of the head of the party which have won on general election, will possess here a political guarantee (by analogy to the constitutional agreement), instead of a legal guarantee which can be cancelled the simple certificate of parliament.

As the second counterargument of supporters of the allied beginning against "charges" in not legal character of their argument that fact can act, that at the analysis of the territorial organisation of the public power supporters Dajsi recognise universality of a principle of parliamentary leadership for all regional legal systems. Really, in case of the Wales the given position does not cause doubts - we will recollect words At. G ladstona about absence of distinctions mezhu England and the Wales from the point of view of the English constitution. However at the analysis of legal system of Scotland, and its autonomy was guaranteed by the Certificate about Connection of 1707, such argument is inapplicable. The matter is that in the given component of the United Kingdom a principle of parliamentary leadership do not consider as one of the beginnings of the constitutional system. So, by consideration in 1953 of business McCormick and v. The Lord Advocate in Sessional court of Scotland its chairman Lord Cooper has declared, that the principle of parliamentary leadership «is definitely English principle and has no analogue in the Scottish constitutional law». Making comments on a considered position, modern researcher A.Bredli does rather important conclusion: « Lord Cooper meant that fact, that the Contract on Connection of 1707, legally consisting of Certificates of Parliaments of England and Scotland, contains guarantees for legal system of Scotland, Church of Scotland, and also other institutes which have been declared by basic for Union formation »and, thus,« are obligatory for Westminster Parliament »229 [212]. Hence, the certain volume of an autonomy of Scotland is legally guaranteed and cannot be changed proceeding from a principle of parliamentary leadership which owing to this circumstance cannot be considered as the basis for reference of the United Kingdom to the category of the unitary states in understanding Dajsi.

Before passing to detailed research of the approach of those authors which suggest to consider the United Kingdom as the state, whose territorial device is based on the beginnings sojuznosti, it is necessary to make one important terminological specification. In chapter 1 we have specified, that British gosudarstvovedami at the form characteristic «the allied state», or «the state of the unions» is territorially-political system used or the term. It is obvious, that for the continental doctrine such word usage can lead to certain difficulties and substitution of concepts. We will result one example from domestic researches. So, Petersburg researcher E. P.Grigonis suggests to consider the Great Britain as the state-uniju, and the form of its territorially-political organisation calls uniej [213]. It is represented an obvious error - above we have specified, that unija represents exclusively association on international law and cannot be considered as the state system form. More low on examples of connection of the Wales, Scotland and Ireland with England we will show an inaccuracy of such approach on an example of the United Kingdom.

So that not to admit substitution specified above the terms used by the British researchers for the characteristic of the territorial organisation of the public power in the Great Britain, real uniej or other author's terms, we suggest to use by consideration of the territorial device of the Great Britain the neutral term «the compound state» as it does quoted in the second chapter Z.Verne, speaking about Spain. In particular, the term offered by us corresponds and to a word-combination used by British «component portions» with reference to England, Scotland, the Wales and Northern Ireland [214].

So, the uniform statehood on British isles was formed round England by association of England and the Wales in second third XVI centuries (Certificates about Connection 1535 and 1544), England and Scotland in the beginning of XVIII century (the Certificate about Connection of 1707 in which result there is the Great Britain), and also the Great Britain and Ireland in the beginning of XIX century (the Certificate about Connection of 1800). In 1922 the independent Irish Free State, since 1937 is created -

Republic Ireland. However a part of the Irish counties mainly occupied by Protestants, form Northern Ireland as a component of the uniform state, which name - the United Kingdom the Great Britain and Northern Ireland, the Certificate about royal and parliamentary titles of 1927 («Royal and Parliamentary Titles Act»).

Speaking about stage-by-stage formation of uniform statehood, the British authors (J. Mitchell, A.MakLin, A.Macmillan) address to the quarter classification of the state building offered by Item rokkanom and D.Urvinom, one of which elements was «the allied state». Such political formation as authors of the given classification marked, - «any more result of a direct dynastic gain. Incorporation at least some parts of its territory has been carried out as a result of the interpersonal dynastic union, for example, contracts, marriage or inheritance. Integration is not so perfect. Though administrative standardization prevails on bolshej territory parts, the fact of the interpersonal union involves a survival in some areas dosojuznyh the rights and institutsionalnyh the infrastructures keeping some degree of a regional autonomy and serving means of attraction of elite from indigenous population» [215]. It is obviously possible to assert, that legal interpretation of the concept allows to create alternative of position Dajsi not only in terms of a political science, but also from the point of view of the constitutional law theory.

Association of England and the Wales in the British doctrine of a constitutional law can be considered through a prism of incorporation on the basis of Certificates about Connection 1536 and 1543. The position of the largest historian of an English constitutional order - F.U.Mejtlenda [216] is that, in particular. The similar position is occupied also with domestic researcher E.D.Chulichkova, noticing, that «if to start with the maintenance of the given law [the Certificate of 1536 - N.M means.] by no means it is impossible to recognise it as the law about unii as any unii between the Wales and England and earlier did not exist, and in XVI century especially could not be, as the Wales has turned for a long time already to a part of the English state» [217]. As a matter of fact, in 1536 and there was only legal registration of the uniform state which actually existed since 1277 when Edward I became the prince of the Wales 1543. It has occurred, however, not as a result of personal unii, and owing to a military victory.

In the first of the specified certificates about connection the general principles of joining of the Wales to England, in the second - details of this association were established. According to substantive provisions of considered certificates, in - the first, in the Wales new administrative-territorial division (there were counties) was entered, secondly, vallijskoe the right was replaced with English, but the special judicial system (till 1830) thus remained Thirdly, the quantity of deputies from vallijskih counties in the general parliament was established; fourthly, English language became unique recognised language. Proceeding from it, the concept of the allied state can be applied to the Wales with serious reservations. As a matter of fact, in a considered case two of its elements - preservation dosojuznyh the rights (presence of own judicial system) and creation institutsionalnyh infrastructures for attraction of local elite (the guaranteed quantity of places in the general parliament) are shown only. Owing to it in case of association of England and the Wales it is possible to speak only about rather limited display of a principle sojuznosti.

We observe absolutely other situation at association of England and Scotland. Initially union of these kingdoms formed in 1603, had exclusively dynastic character, i.e. was personal uniej - integration model of rather imperfect character. Later hardly more

228

231

232

234

Hundred years of Scotland it was offered to issue legally relations with England, as has found the fastening in the Certificate about connection of 1707 In the British literature the given connection is called «inkorporatsionnym as the union» (“incorporated union") 235 [218]. From the legal point of view at first sight the given term can seem an oxymoron as the beginning of incorporation and the allied beginning are not combined. However we find in connection of two kingdoms both that, and another.

Really, in Scotland own parliament which powers were transferred to uniform parliament of the Great Britain in what, actually, and the incorporation beginning was showed was liquidated. At the same time a quota for deputies of Scotland in Westminster parliament, an autonomy of legal system and national Church, position about a special mode in the field of trade - all it introduced in relations between England and Scotland the allied beginning following from positions of the Certificate about connection on 1707 Thus impossibility of its change by the usual law it is possible to consider as one of conditions of connection of two kingdoms. In this respect it is necessary to mention words of the contemporary of association of D.Defo which, not being the lawyer, has noticed, that «to Contract articles... The Parliament of Britain cannot touch; while he will try to make it, it will destroy the own constitution» [219].

It is important to specify, however, and in that fact, that connection of England and Scotland in 1707 is not from the legal point of view real uniej though such opinion meets at some authors, for example, at Russian

Pre-revolutionary foreign affairs specialist A.N.Stoyanov [220]. Character

Considered connection does not allow to agree with such position, as

Real unija, on M.J.Pergamenta's well-aimed expression, there is such association of political units, «at which the Supreme power in each of entered in real uniju the states is entrusted to the same physical person, but with distinction in it of several legal persons» [221]. For the explanatory of the given definition it is reversible to an axiom real unii - unii between Sweden and Norway. In this case it is impossible to ascertain presence of the general territory, the general people and the general Supreme power - i.e. three basic elements of the state. Here is available, as marks M.J.Pergament, «only known between the states pravootnoshenie» [222]. At the same time England and Scotland have formed the uniform state with the general territory, the population and the Supreme power, that directly follows from Certificate positions about connection 1707 [223]

As to a question about «institutsionalnyh infrastructures», directed on preservation of a regional autonomy here it is necessary to pay attention to presence of the special mechanism of management by a considered part of the United Kingdom. Till 1745 there was a special post of the secretary concerning Scotland («Scottish Secretary»). Then, after jakobitskogo revolts, the Scottish affairs have nominally been carried in sphere of responsibility of the state secretary of department of internal affairs, however owing to an autonomy of Scotland following from positions about connection, actually its influence on management of the given part of the United Kingdom was rather weak. In 1885 there is a creation of the special

Department on affairs of Scotland which chairman except for the several small periods necessarily was the member of the cabinet. The given control system of Scotland has existed till 1999, i.e. before Certificate coming into force about Scotland 1998 the Question about «attraction of elite from indigenous population» dared, on the one hand, by participation of Scots in functioning of separate system of courts and local government, and with another - presence mentioned above a quota for deputies from Scotland in the general parliament.

The Certificate about connection of 1800, however here, as well as in a case with Scotland became a basis of association of the Great Britain and Ireland, speech cannot go about real unii, after all otherwise it should to recognise, that the United Kingdom the Great Britain and Ireland represents not the uniform state, and defined pravootnoshenie between two sovereign states on international law.

Concerning association of the Great Britain and Ireland also it is possible to apply the concept «inkorporatsionnogo the union», however with obvious domination of the beginning of incorporation. If to compare position of Scotland and Ireland as a part of the United Kingdom to the first as marks V.Bogdanor, concerned as the partner, and to the second - as to subordinated unit (as “a dependency”) [224]. However, despite this fact, in the Certificate of 1800 the allied beginning is looked through also. In particular, in it the establishment of a quota for the Irish lifelong peers in Chamber of lords (28 peers) and quotas for deputies in the House of Commons (100 deputies) contained. Besides, as fairly specify I.Maklin and A. Macmillan, «administrative integration» into the general national control system was "imperfect" (“less than perfect”), and also unlike Scotland was not political integration (“neither was its political integration") [225].

Thus, the concept of "the allied state» Item rokkana and D.Urvina concerning character of creation of the uniform state on British isles finds acknowledgement not only in political practice, but also in Parliament certificates on which basis England, the Wales, Scotland and Ireland have united, having formed finally the United Kingdom the Great Britain and Ireland. However in each concrete case the beginning of incorporation and the beginning sojuznosti had a different combination. As a matter of fact, then, at association, also two principles of the territorial constitution of the Great Britain - the principle of parliamentary leadership reflecting the beginning of incorporation, and a principle garantirovannosti a certain autonomy for the Celtic regions which expressed the allied beginning were generated. The accent on one of them also has generated as a result two considered above the approach to definition of the form of a state system of the United Kingdom the Great Britain and Northern Ireland.

3.2.

<< | >>
A source: Molchakov Nikita Jurevich. THE CONCEPT OF THE REGIONALISTSKY STATE AND ITS REALIZATION IN THE UNITED KINGDOM THE GREAT BRITAIN And NORTHERN Ireland. The dissertation on competition of a scientific degree of the candidate of jurisprudence. Moscow - 2018. 2018

Download original source

More on topic a general characteristic doktrinalnyh approaches to studying territorially-political system the Great Britain:

  1. § 5. The General characteristic of activity of the self-adjustable organisations in the Great Britain.
  2. Devoljutsija as a way of reform territorially-political system the United Kingdom
  3. theory contours regionalistskogo the states as special form territorially-political system
  4. the criminal legislation of Anglo-Saxon legal system the Great Britain.
  5. § 2. THE GENERAL CHARACTERISTIC OF SYSTEM OF THE LEGISLATION ON THE POLITICAL RIGHTS AND FREEDOM
  6. §3. Administrative law of the Great Britain »
  7. the Great Britain
  8. Chapter 4. The Great Britain
  9. § 2. The private company in the Great Britain
  10. speech reprezentatsija intertext dialogichnosti Russia and the Great Britain at the present stage
  11. 1.1. Istoriko-legal genesis of police in Russia, the Great Britain and the USA
  12. 2.1. The analysis of the legislation of the Great Britain and prospect of application of its separate positions in Russia
  13. 1.2. Police in the Russian Federation, the Great Britain and the USA during the modern period: decentralisation possibilities
  14. § 3. Unfair infringement of interests minoritarnyh participants of the private company in the Great Britain
  15. transaction in the market of the corporate control: experience of the USA and the Great Britain
  16. § 2. Ways of protection against unfair infringement of interests minoritarnyh participants of the private company in the Great Britain