First, allow me to discuss to you Immanuel Kant’s political philosophy. His approach to politics favored classical republicanism. The doctrine of Rechtsstaat is Kant’s biggest contribution in the philosophy of law and politics. According to this doctrine, the power of the state is limited in order to protect citizens from the arbitrary exercise of power. In a Rechtsstaat, the citizens share legally based civil liberties. It is a constitutional state in which the exercise of governmental power is constrained by law. It is often tied with the Anglo-American rule of law.
Now, what is the rule of law? It is a legal maxim that suggests that governmental decisions be made by applying known legal principles. Aristotle one quoted, “Law should govern”. It implies that every citizen is subject to the law. It stands in contrast to the idea that a ruler is above the law, for example by divine right. Going back to Immanuel Kant’s philosophy, he also supported the separation of powers of the executive, legislative and judicative branches of government. The executive and the judicative are bound by law, while the legislative is bound by constitutional principles.
Rechtsstaat also requires transparency of state acts and the requirement of providing a reason for all state acts. The doctrine also demands for a hierarchy of laws and the requirement of clarity and definiteness. Now, the world has indeed seen the applications and implementations of the Rechtsstaat through Russia’s legal system. The Russian legal system, born out of transformations in the 19th century under the reforms of Emperor Alexander II, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as legal state.
The concept of “legal state” is a fundamental (but undefined) principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: “The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance. ” Similarly, the very first dispositive provision of Ukraine’s Constitution declares: “Ukraine is a sovereign and independent, democratic, social, legal state. ” The effort to give meaning to the expression “legal state” is anything but theoretical. Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003:
Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by society. Rechtsstaat has also approached Russia’s constitutional economics. The Russian concept of legal state adopted many elements of constitutional economics.
One of the founders of constitutional economics, James M. Buchanan, the 1986 recipient of the Nobel Memorial Prize in Economic Science, argues that, in the framework of constitutional government, any governmental intervention and regulation has been based on three assumptions. First, every failure of the market economy to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal economic well-being.
And, third, changing the responsibilities of government towards more intervention and control will not profoundly and perversely affect the social and economic order. Some Russian researchers are supporting an idea that, in the 21st century, the concept of the legal state has become not only a legal but also an economic concept – at least for Russia and many other transitional and developing countries. Let us now move on to Jean-Jacques Rousseau’s political theory. His most important work is The Social Contract, which outlines the basis for a legitimate political order within a framework of classical republican.
The treatise begins with the dramatic opening lines, “Man was born free, and he is everywhere in chains. Those who think themselves the masters of others are indeed greater slaves than they. ” Rousseau claimed that the state of nature was a primitive condition without law or morality, which human beings left for the benefits and necessity of cooperation. As society developed, division of labor and private property required the human race to adopt institutions of law. In the degenerate phase of society, man is prone to be in frequent competition with his fellow men while also becoming increasingly dependent on them.
This double pressure threatens both his survival and his freedom. According to Rousseau, by joining together into civil society through the social contract and abandoning their claims of natural right, individuals can both preserve themselves and remain free. This is because submission to the authority of the general will of the people as a whole guarantees individuals against being subordinated to the wills of others and also ensures that they obey themselves because they are, collectively, the authors of the law.
Although Rousseau argues that sovereignty (or the power to make the laws) should be in the hands of the people, he also makes a sharp distinction between the sovereign and the government. The government is composed of magistrates, charged with implementing and enforcing the general will. The “sovereign” is the rule of law, ideally decided on by direct democracy in an assembly. Under a monarchy, however, the real sovereign is still the law. Rousseau was opposed to the idea that the people should exercise sovereignty via a representative assembly.
France could not meet Rousseau’s criterion of an ideal state because it was too big. Much subsequent controversy about Rousseau’s work has hinged on disagreements concerning his claims that citizens constrained to obey the general will are thereby rendered free: The notion of the general will is wholly central to Rousseau’s theory of political legitimacy. … It is, however, an unfortunately obscure and controversial notion. Some commentators see it as no more than the dictatorship of the proletariat or the tyranny of the urban poor (such as may perhaps be seen in the French Revolution).
Such was not Rousseau’s meaning. This is clear from the “Discourse on Political Economy”, where Rousseau emphasizes that the general will exists to protect individuals against the mass, not to require them to be sacrificed to it. He is, of course, sharply aware that men have selfish and sectional interests which will lead them to try to oppress others. It is for this reason that loyalty to the good of all alike must be a supreme (although not exclusive) commitment by everyone, not only if a truly general will is to be heeded but also if it is to be formulated successfully in the first place”.
French revolutionaries read the works of Jean-Jacques Rousseau. This would suggest that his philosophy was one of the proponents that sparked the French Revolution among the commoners. In brief, Rousseau believed in the natural goodness of man; that humans were corrupted by the greed and competition of civilization. He believed in a social utopia, of humans returning to natural harmony, being made free of vices and sharing a natural equality and a general will.
These ideas appealed to many people, including some of the people instrumental in the events leading to the French Revolution, such as the oath at the Tennis Court. In a country where a wealthy minority indulged themselves while hundreds of thousands suffered from severe poverty and inflation, people yearned for a basic equality, natural or government ordained. Many felt that if the general will (or the will of the people) was for change, that the current government was expected to make compromises.
The First Estate of the French government was against these changes, the Second Estate was to some extent and later cast its lot in with the Third Estate. Later the idea of a utopian government changed to ‘the will of the people’ (although how successful this was carried out can be debated, in both France and the U. S. ) Maximillien Robespierre, who played an important part in the middle to later events in the Revolution and was one of the architects of the Terror, was deeply influenced in his youth by Rousseau’s writings.
My report would end at this, since only this stuff is what is asked of us. But if you would ask me, I wouldn’t agree to all things mentioned by the two philosophers. I, of course, would make a few reforms here and there. For example, the abandonment of our natural rights as said in The Social Contract. In the contemporary world, one would want to forget about their natural right for general will. Sure, the idea of general will sounds very convenient, but if you think about it, it’s not worth giving up your natural rights for.