The Concept of the Triad of Branches of State Power and Issues of its Modernisation

Abstract

A. Establishment and Development of Theory of Separation of Powers essence and functions of state and its individual agencies (including prosecution agencies) are defined together with other factors and systems of state, with its institutionalization, as state is a social and legal-political formation being main institution belonging to legal sphere. And as we know, an important theoretic 'background' of studying of problems of institutionalization of power is a classic theory of of (4). 1. Origins of Theory in Ancient Times It should be noted that this theory not appear overnight, its origin can be traced to legal and political thought of European antiquity. Thus, ancient Greek thinker Polybius described a mechanism of state structure in Ancient Rome, where power was divided between century and Curiatii comitias, Senate, consuls, praetors and others. Talking about these agencies and officials, Polybius suggested that aim of this division was to set the state into position of uniform fluctuations and balance, like a ship sailing against wind (5). Polybius also suggested that idea of allocation of state functions was well implemented in Ancient Rome: consulate represents monarchy, activity of senate is influenced be presence of aristocracy, and assemblies present democracy. Polybius' ideas circulation of forms of government and on mixed government were widely used for different projects of 'ideal' states, including theory of power separation (6). Aristotle back in Ancient times singled out power institutions similar to modern legislative, executive and judicial branches of power: The state is a complex thing presenting a unity of plurality, consisting of specific different dissimilar parts. Firstly, there is a legislative body (people's assembly), function of which is performed with participation of all freemen. second element is administrative, or governmental, which is represented by magistracy, having its powers. And thirdly, there are judicial authorities which execute justice (7). These ideas of Aristotle based on of functions of state agencies anticipated, according to scientist R.R. Salimnyazeva, ideas of philosophers of new age as to of powers within system of checks and balances (8). However, according to V.S. Nersesyants, Aristotle did not aim to analyse nature of their interaction, methods and forms of regulation of their relations, oppositions, balancing their relations etc., which would be important for of power separation (9). Even though we agree with critics of V.S. Nersesyants, we think that Aristotle's achievement, who back in ancient times separated unified government power and singled out corresponding state authorities, served as a basis for establishment of integral concept of state power. 2. Development of Concept in Modern Age This concept became especially relevant before and during Civil War in England in 17th century and during French Revolution of second half of 18th century. Particularly respected thought leader of 17th-century England was John Locke. His name is associated with development of this concept. However, should be taken into account that some researchers think that this is not a finalized theoretic concept, but a doctrine of hierarchy of powers within a state created through social contract (10), where the legislative power, if necessary, should be supreme, and all other powers represented by some members of society flow from and subordinate to it (11). Regardless of certain level of truth for above-mentioned position, is worth to be noted that John Locke, however he came close to theory of social contract, was first one to develop theory of constitutional parliamentarian monarchy based on idea of of power functions between legislator, executor of law and subjects of external relations (federal power). …