Formation and Development of the Doctrine of Rule of Law in English Legal Thought

Mikhailov Anton Mikhailovich PhD in Law Associate Professor, Department of Theory of State and Law, Kutafin Moscow State Law University (MSAL) 117279, Russia, Moskovskaya oblast', g. Moscow, ul. Profsoyuznaya, 93, kv. 59 antonmikhailov@hotmail.com Other publications by this author

Acting as the foundation of the unwritten Constitution of Great Britain, the doctrine of the rule of law was formed not simultaneously, but gradually, naturally and historically, expressing the current political and legal processes of various periods of English history. Unlike many doctrines of continental European jurisprudence created in the Modern era, the concept under consideration for a long time did not represent a coherent, internally consistent system of principles, being rather a certain set of ideas united with the aim of limiting the supreme power of the monarch by law. It is difficult to say that the doctrine of the rule of law originally had a developed philosophical or religious basis. On the contrary, like many other concepts of English law, it was distinguished for the most part by the spontaneous nature of its formation, close connection with legal and political practice, and was not created purposefully according to a logically verified plan. Therefore, the implementation of the historical reconstruction of the formation and development of the main ideas of this doctrine seems to be a methodologically correct approach to understanding its significance in the legal system and the characteristic features inextricably linked with the English political and legal culture.

Given the evolutionary nature of the development of English law, its traditionalism, expressed both in continuity and in the high ability to adapt the political and legal ideas of the past to new realities, it is appropriate to note that a full understanding of the doctrine of the rule of law is impossible without studying its genesis - the process of formation and development. Of course, this process reflected many features of social practice in England, political, economic and cultural conditions that largely determined its content at one or another historical stage of evolution. Therefore, it is impossible to argue with the fact that this process needs a comprehensive historical study. At the same time, tracing the genetic connections of the leading political and legal ideas of this doctrine in itself contributes to a better understanding of its general and special features in comparison with continental European philosophical and legal and political-legal concepts, although it is not able to replace historical and legal research.

At the same time, it should be noted that key political and legal ideas can have a certain autonomy from the socio-economic structure of society, the peculiarities of the history of its political system, the organization of religious institutions. Therefore, in our opinion, the subject of the history of political and legal doctrines has the right to relative independence and the specifics of evolution.

Although the doctrine of the supremacy (rule) of law took shape in the English political and legal doctrine only in the 80s of the XIX century, nevertheless, a number of his ideas have a long pedigree, rooted in the period of the formation of a common common law for England. So, already in the medieval era in England, the principle of the legitimate rule of the monarch began to be established. During the XII-XIII centuries, "at each regular coronation, a "charter of liberties" was issued, which is a forced "social contract" in which the monarch promised to observe the ancient customs and liberties of the people" [1: 100].

1. Historical milestones in the development of the doctrine of the rule of law. The ideological origins of the doctrine of the rule of law in English legal thought are usually found in Henry de Bracton's treatise "On the Laws and Customs of England" (?1254-1256), in which it is said that the duty of the king is to obey the law, the king is "under God and the law", and not the king "makes" the law, but the law "makes" a king [2:44]. "If the king rules without a bridle," wrote Bracton, "that is, not to reckon with the law, then they (counts, barons – AM) must curb him" [3: 154]. Not without reason, Fr. von Gierke pointed out that "the medieval doctrine ... never abandoned the idea that law is equivalent to the state in its origin and does not depend on the state for its existence" [4: 95]. Similarly, G. Berman pointed out that since the XII century in all Western countries, even under absolute monarchies, the idea that in some important aspects the law transcends the boundaries of politics has been widely expressed and often accepted. It is said that the monarch can create the law, but he cannot create it arbitrarily, and until he remakes it, in the same lawful way, he is bound by it" [5:26-27].

The dominance of the religious type of consciousness in medieval culture naturally presupposes the idea of the action of a higher universal unwritten law, to which human laws must correspond (F. Aquinas [6:338], Baldus [7:21]). Therefore, the power of the monarch could not be perceived as absolutely unlimited, legitimate ipso facto, capable of being carried out completely arbitrarily: both the ordinary and professional legal consciousness of that historical time was by its type not statist, but natural-legal (recognition of the existence of a "non-man-made", universal and unchangeable law, acting independently of the will and consciousness of people, acting as a measure of the justice of political laws).

Thus, in the Summa Theologica, Thomas Aquinas, based on the position of Aurelius Augustine, pointed out that justice is the measure of the law: "what is not just is not law." Justice in human affairs is right from the point of view of reasonableness. The first criterion of reasonableness is the natural law. Accordingly, a positive human law is a law as much as it comes from a natural law. Therefore, if the former deviates from the natural law, then it is only a perversion of the law [6:338]. According to Aquinas, the human positive law is deductively deduced from the general principles of natural law or by specifying its principles [6:339]. Justice of the law in the understanding of Thomas Aquinas combines both natural-legal requirements (the purpose of a just law is the common good, and responsibility for the common good is assigned to subjects in equal proportion) and formal–legal: the law must be established within the competence of the legislator [6: 351].

Despite Aquinas' consistent natural-legal position that the law is the embodiment of justice and reasonableness, the question of the monarch's binding by positive law is decided by the theologian in favor of the priority of sovereign power over positive law. With reference to the Code of Justinian, Thomas Aquinas argued that the sovereign is free from the law, does not obey it, "since there is no one who could condemn him if he acts contrary to the law," and Psalter (50.6.) states that "there is no person who could judge the deeds of the king" [6:355]. In this position, it is quite possible to see the origins of the position of classical legal positivism on the question of the possibility of binding the sovereign by law (T. Hobbes, J. Austin, W. Markby, G.F. Shershenevich, etc.). Recognizing that the law does not bind the monarch forcibly, the scholastic argued that the latter obeys the guiding force of the law voluntarily, guided by the principle "whatever law he has established for another, he should use it himself." The theologian reinforces this principle with a reference to the Gospel of Matthew (Matthew 23:3-4), where Jesus rebukes the Pharisees: "... they say and do not do: they bind heavy and unbearable burdens and put them on people's shoulders, but they themselves do not want to move them with a finger" [6:355].

The wide scope of the royal prerogative was never denied by medieval lawyers, but at the same time the requirement was put forward that the monarch could perform certain actions only in a certain way [8: 61]. Thus, the famous English lawyer from 1442 to 1461, who held the high post of Chief Justice of the Supreme Court of the King's Bench, J. Fortescue wrote in chapter IX of the treatise "Praise of the Laws of England" (1468-1470): "The King of England cannot arbitrarily change the laws of his kingdom... A king who governs his people politically (politice) should act in a completely different way, because he cannot change laws without the consent of his subjects… The king cannot voluntarily rule the people like a tyrant; and this is possible only if the royal power is limited by political law" [3:292-293]. In chapter XVIII of his work, Fortescue specifically emphasized that "the statutes of England ... are based not only on the will of the sovereign, but also on the consent of the whole kingdom, so that they do not harm the people and do not neglect their benefits" [3:296].

It is interesting to note that in chapter XXIV of his work Fortescue explicitly states that the maxim of Roman law "What pleases the princeps has the force of law" ("Quod Principi placuit, legis habet vigorem") is not recognized by the laws of England. In England, the sovereign "dominates over his people not only as a king (regaliter), but also politically (politice), as a sign of which, during the coronation, he takes an oath that he will observe these laws" [3:297]. Fortescue believed that, unlike other kings, English monarchs do not have absolute power, by virtue of this oath, they cannot change laws at will and desire, subject subjects to punishments, set taxes and solve court cases. That is why, according to Fortescue, the English monarchs did not like their own right [9:43].

Fortescue's idea of the limitation of the monarch's power by law was not an exclusively cabinet invention, but was widely spread in the legal consciousness of lawyers and the English intellectual elite. Thus, 170 years after Fortescue, the judge of the King's Bench, Sir Robert Berkeley, in one of the court decisions of 1638, stated: "Although the king of England has monarchical power and has the privilege of the highest dignity and is invested with absolute confidence in his crown and person to govern his subjects, however, his rule must be carried out in accordance with the laws of the kingdom" [10: 116; 11:21].

Long before Dicey's classic of British statecraft, Fortescue recognized the common law of England as the cornerstone of English freedom, and called judges and jurors the guardians of common law, the best bulwark of the nation's freedom [12:31]. Among the reasons for the formation of common law institutions only in England, Fortescue calls the equality of all classes (knights, squires, free communists, knechts) before the law [12:31].

In the legal literature, it has been repeatedly pointed out that Fortescue's position is biased, undisguised tendentiousness, his desire to prove the superiority of English law over Roman law, the form of government in England over the French political and legal systems [13: 78]. Of course, Fortescue's ideas about the functioning of a class monarchy in England, the identification of the form of government in France with tyranny were extremely subjective, and the description of the judicial system of England, common law and the institution of juries was an idealization of the political order of that historical time [3:287-292]. In other words, the ideas expressed by Fortescue cannot be regarded as an impartial description of the achievements of the legal system of England in the middle of the XV century. At the same time, it must be admitted that these ideas to a certain extent expressed the value system of the legal consciousness of a significant part of the intellectual elite of England, those legal ideals that English lawyers, including, were guided by.

In full agreement with Fortescue's ideas of common law, the Magna Carta (1215) was perceived by many English lawyers as a "renewal of the former Saxon freedom". Similarly, it was believed that the Petition of Rights (1628) only confirmed and restored those rights that had been in effect for at least three centuries by that time, and the Act of Dispensation (1701) recognized "English law as born to every Englishman" ("that the laws of England are the birthright of the people there") [12: 32]. Therefore, it is permissible to assert that the perception of common law as a form of expression of the rights and freedoms of English subjects was formed not in 1688 when the Bill of Rights was adopted, but several centuries earlier, and by the end of the XVII – XVIII centuries. it became the traditional view not only of the legal community, but also of a significant part of the English people. Medieval English lawyers understood the law, which is designed to determine the basis of the life of society, not so much as a positive law expressing the will of the ruler, as "the right of the fathers, traditions, guaranteed, inherited, organic, secured right, which is sacred because it has existed from time immemorial, originating from the experience of blood" [14:382].

The history of English law shows that the ideas of the legal consolidation of the state system (Magna Charta Libertatum), the rule of law for the whole state (J. Fortescue), the supremacy of general (impersonal) laws (G. Bracton) were not only known to socio-political thought before the era of Modern Times (XVI-XVII centuries.), but also in to a certain extent, they were fixed in English charters, statutes and authoritative works of lawyers of the XIII – XV centuries.

An important component of the doctrine of the rule of law is the principle of independence of the courts from the royal authority. Already in the Northampton Statute (1328) it was established that no royal decree could affect the course of justice. In the future, this allowed the English judges to ignore the king's orders aimed at interfering in the judicial process [15:37-38]. In 1607, the most authoritative English judge E. Cook in the "case of prohibitions" denied the ruling monarch James I the right to personally administer justice, since court cases "should not be decided by natural reason, but by artificial reason and the judgment of those who are versed in the law, and the law is an art that requires long study and practice" [16: 218]. Defining law as artificial reason ^[17], Cook emphasized that it does not constitute an innate ability inherent in any person, but "the logic of decision-making, a set of knowledge and the ability to apply them" [18: 92]. It was in the first half of the XVII century, thanks to the ideas of E. Cook, the principle was fixed in the English professional legal consciousness, stating that judges are not servants of the king, but servants of law. This principle indicates that the law is regarded as a universal standard of conduct, a regulator independent of politics, the operation of which is ensured by the courts.

Thanks to E. Cook, an idea of the distinction between law (common law) and law (statutory legislation) and the need for the legal quality of law is formed in the English professional legal consciousness. Thus, in the decision on the case of Dr. Thomas Bonham, considered in 1610, E. Cook stated: "Our books show that in many court cases Common Law prevails over Acts of Parliament and sometimes forces them to be invalidated: since in the case when an Act of Parliament contradicts the subjective expressed in Common Law law and reason, or incompatible with them, or impossible to execute, Common Law will control this issue and recognize such an Act as invalid" [19: 275; 11: 23]. It can be seen that in Cook's understanding, common law is an objective (natural law) standard for assessing not only the quality, but also the validity of written statutory law. In 1614, Cook's contemporary Lord Hobart argued that "even an act of parliament that contradicts natural justice, for example, obliging a person to be a judge in his own case, is in itself null and void, since the rights of nature are unchangeable, they are the laws of laws" [20:37]. In essence, the idea expressed by Cook is a "prototype" of judicial norm control, which later became a legal reality thanks to the activities of the US Supreme Court. The doctrine of judicial review (judicial review), constitutional principles, according to which judges act as the final arbitrators on the constitutionality of a legal act and are independent of other branches of government, traces its lineage from Cook's ideas ^[21].

A significant contribution to the development of the concept of the rule of law was made by the Scottish Presbyterian pastor S. Rutherford (Samuel Rutherford). In his work "Lex, rex, or the law and the sovereign" (1644), he consistently defended the rule of law, carried out the principle "the law is king" (the law is king). The recognition of the absolute power of the monarch, which is not bound by any law, is, according to Rutherford, idolatry, since it communicates to a sinful person what belongs only to God [22: 246]. The king cannot stand above the law, he is the guardian and keeper of the law, the servant of the people who entrusted him with their safety and freedom ^[23]. Based on the text of the Bible, the Scottish theologian argued that the king, like any person, is obliged to justly observe his constitutional oath; the agreement between the sovereign and his subjects should be regarded as mutually binding [22:159]. Denying the divine right of kings, Rutherford argued that God does not put the seal of the monarch on any person, leaving this question to the people. A few decades before J. Locke in line with the theory of the social contract Rutherford at the beginning of his treatise stated: "It is against nature that we cede our freedom to the king, or to any ruler" [22:45]. The Scottish theologian consistently defined the power of the monarch as limited by law, in connection with which he is recognized as one of the founders of British and American constitutionalism.

The final period of positive legal consolidation of the key principles of the doctrine of the rule of law in England should be considered the XVII century. The confrontation between the monarchs and the Parliament of England led to the rejection of the divine right of kings and to an alliance between common law lawyers and parliament. The abolition in 1640 of the infamous court of the Star Chamber (a special secret court under the Royal Council), notorious for its extreme and illegality, guaranteed that common law applies to both public and private legal relations [4:95]. In the first manifesto "Agreement of thePeople", published in October 1647, contained the requirement "that in all laws already adopted or future, each person would be restricted equally, so that neither position, nor property, nor reputation, nor origin or service would give an exception to the usual procedure of actions mandatory for others" [24:392; 25:147-148]. Thus, 240 years before the classical interpretation of A.V. Daisi, levellers demanded equal legal status for all subjects, sought to exclude legal immunities resulting from origin or official position.

The Bill of Rights of 1689 confirmed all the old laws on the rights of Parliament, the personal inviolability of English subjects and indicated that the monarchy is subject to the law [26:548]. This not only forced the royal power to govern through parliament (the "Westminster model" of democracy), but also established the right of subjects to challenge illegal interference with their lives, freedom and property [27:78]. The Bill of Rights made an invaluable contribution to the constitutional consolidation of the doctrine of the rule of law in England by recognizing as illegal the suspension and execution of the statutes of Parliament by the monarch, the removal of someone from the operation of the statutes by the order of the head of state, established the obligation of regular convocation of Parliament. After 12 years, the Act of Dispensation (1701) limited the monarch's ability to remove judges from office, establishing the need to obtain for this purpose the representation of both houses of Parliament. In addition, the monarch was deprived of the prerogative of pardoning his ministers convicted by Parliament by impeachment [1:104]. Moreover, the Act of Dispensation established the rule of countersignature, according to which the acts of the head of state must be signed by the ministers responsible for their execution. Thus, principles aimed at excluding arbitrary and legally irresponsible authorities were introduced into the sphere of activity of the head of State and the executive branch.

A significant role in the formation of the doctrine of the rule of law was played by the declaratory doctrine of common law by M. Hale and W. Blackston, which proceeded from the objective nature of common law and considered judges not as lawmakers, but as "guardians and living oracles of law", capable of discovering its provisions and proclaiming them in the courtroom thanks to their reason [28: 44-50; 29: 296]. Thus, Hale believed that the decisions of judges, even with great weight and authority, do not create, but only proclaim the right, being proof of its existence [30:45]. According to Blackston, judges "are not authorized to proclaim a new right, but to support and clarify the old one" [31:69]. Up until the middle of the XX century, many English lawyers considered common law not as a result of judicial lawmaking, but as an objectively existing, rationally disclosed law thanks to the professional "artificial intelligence" of judges, independent of either the subjective judgments of lawyers or the public authority of parliament. This idea has been an "axiom" of the professional legal consciousness of English lawyers for several centuries, provided virtually unlimited power and autonomy of judges, since it successfully concealed judicial law-making, made it relatively easy to correct the mistakes of previous practice and protected case law from the inevitable criticism of its retrospectivity, inconsistency, haphazardness and immensity. The declaratory doctrine of common law largely ensured the independence of the common law of England from the state, formed a non-statistic type of legal understanding, which combined natural-legal and traditionalist features, rooted in the public legal consciousness the idea of an objective, independent of public authority nature of law.

One of the fundamental provisions, without which it is impossible to imagine the concept of the rule of law, is the principle of the limitation of State power by law. The English philosopher and jurist D. Locke made a significant contribution to the conceptualization of this idea and its rooting in the minds of the intellectual elite of Europe. In the classic work "Two Treatises on Government" (1689), he strictly distinguished political (state) power from despotic power. The political power of the State cannot be identified either with the paternal power over children, nor with the despotic power of masters over their slaves, since it represents the right to create laws providing for the death penalty and increasingly less severe punishments in order to preserve property – the triad of the individual's natural rights to life, freedom and property. Political power uses the power of society to enforce established laws and to protect the state from external attacks in order to achieve the public good [32:263]. In other words, the state power in Locke's political and legal doctrine does not have a self-sufficient and absolute character, but is established, establishes and executes laws solely for the protection of property – the triad of natural human rights. Thus, the nature of political power in the teaching of the English thinker is of a targeted and subordinate nature. Subordination of state power to legal procedure, functioning within the framework of the law to ensure the triad of natural rights, strictly opposes it to the arbitrary power of the despot and the private power of the father of the family. In other words, Locke seeks to establish the idea of state power as having a legal nature, not a power, which is one of the fundamental ideas of the doctrine of the rule of law.

In close connection with this understanding of the nature of political power in Locke's teaching is the organization of the human community as a whole. In one of his early works "Experiments on the Laws of Nature" (1664), he carried out the idea that human life is impossible without a normative basis – even the pre-state natural state is not a Hobbesian chaos of universal self-will and struggle by force ("the war of all against all"), but a situation ordered by natural law. This law of nature has a legal character, since it is a manifestation of the supreme will of God, prescribes standards of proper behavior and "contains everything that forms an obligation" [32:5]. Since all people are equal before the Creator, the law of nature requires "not to harm the life, freedom or property of another" [32:265], i.e. ensures the operation of the triad of natural rights. At the same time, the English thinker believed that although the law of nature has not been published, nevertheless, everyone is able to know it with the help of the "light of nature" – the correct use of natural abilities in relation to the world [32: 10, 14]. It is also fundamentally important that – in full accordance with the attitudes of ancient and medieval usnaturalism (Aristotle, Augustine, Aquinas, etc.) – in Locke's teaching, "the laws of the civil ruler borrow all their force from the obligation imposed by natural law" [32:40]. Therefore, both the natural and the political (civil) state is based on a universal and eternal normativity, which the state power is called upon to make definite, permanent and universal in positive laws, implemented through the mechanism of executive power and protected by qualified and impartial judges [32: 335].

Another important idea directly related to the concepts of the rule of law is the idea that the purpose of uniting people into a state on the basis of a social contract is to preserve their property – life, freedom and property. The legislative, executive and judicial branches are created to protect the triad of natural rights. The rights to life, liberty and property, which the English thinker calls property, are not transferred to the state by a social contract; on the contrary, the state itself is created to protect them with the help of positive legislation, executive authorities and impartial justice [32:335]. Thus, in Locke's political and legal doctrine, state power is of an official nature in relation to the individual and society.

The basis of state power, according to Locke's teaching, is the principle of consent. The latter "is the beginning of every political community and actually constitutes it," and only the consent of the majority of society gives "the beginning of any legitimate government in the world" [32: 318]. That is why state power is not an independent entity, but is derivative and confidential – only the consent of the majority of society legitimizes state power. This gives reason to believe that the state power itself is a participant in the social contract and stands on the same level as the individual: just as the state has the right to demand from the population compliance with positive laws, the legitimate demands of the executors of the law and judicial decisions, so individuals have the right to rebel against the state power that violates the social contract, functions in addition to and against the law (usurpation, tyranny). In a pre-revolutionary political situation, when the entire system of government collapses, senior officials neglect their duties and citizens have no opportunity to go to court [32: 382], the people return to their natural state, sovereign power automatically returns to the people, who have the right "to act as the supreme authority and continue to be the legislative body, either to create a new form of legislative power, or, keeping the old form, to transfer this power into new hands, as he considers best" [32:405]. Therefore, it is permissible to assert that Locke consistently revealed such a fundamental principle of a stable legal order as the mutual responsibility of the people (individuals) and the state.

It can be seen that Locke's teaching contains the key ideas of the concept of popular sovereignty (the people are the primary source of public power and the natural bearer of sovereignty, the power of the state is derived from the power of the people, is obliged to express their will, act to protect their rights), from which the right of the people to control the activities of the legislative body, change its composition and structure in within the framework of both institutions of direct and representative democracy. The social contract acts as a legal basis that enables the people, in case of fundamental violations of obligations by the current state power, to regain their sovereign powers, conclude a new social contract, and change the existing form of government.

Considering the question of the scope of legislative power, Locke formulates its fundamental limit – the requirement of the general nature of laws and their equal effect on all subjects. In the second part of his work, the thinker pointed out that the legislative power should govern society through published established laws that should not change in each individual case to suit the situation, "there should be one law for the rich and the poor, for the favorite at court and for the peasant at the plow" [32: 346]. Moreover, Locke saw the foundations of this limit in the divine and natural laws. According to F.A. Hayek, the requirement of the general nature of laws and their equal effect on subjects acquired a dominant character in British public opinion in the XVIII century, and subsequently became the source of S.-L. Montesquieu's ideas about the English constitution [25: 148].

It should be recognized that it is much easier to affirm the idea of the rule of law in social practice and actualize this idea in the public legal consciousness if law is perceived as an objective standard, not derived from the will of a sovereign political power. Therefore, the natural law ideas of E. Cook, M. Hale, W. Blackston, D. Locke, supported by a significant part of the legal community in England of the XVII - XVIII centuries, did a lot to strengthen and update the Rule of Law doctrine. At the same time, not only the ideas of usnaturalism can be used as the basis for a non-etatist legal understanding as a necessary condition for the formation of the doctrine under consideration, but also the ideas of a traditionalist legal consciousness that identifies law with a tradition that is integral to history, going back to the deep past, the ideas of a theocratic worldview, within which law is seen as an inviolable divine law, certainly standing above the will of any ruler. All these areas of legal understanding are united by the belief in the supreme, objective nature of law, its unconditional ability to act as a mandatory standard for all addressees, including the current political power.

The modern stage of the evolution of the doctrine of the rule of law in England began in the last quarter of the XIX century – the time when the British Parliament monopolized legislative activity, considering itself an absolute sovereign, when the process of consolidation of English statutory law and the spread of its influence in the system of sources of law was in full flow, and the "imperative concept of law" by J. Austin was widely accepted by English jurisprudence [33:52]; her influence on English legal thought was so far-reaching that no "student of the Anglo-Saxon world" who wanted to seriously understand the subject of jurisprudence could afford not to familiarize himself with Austin's course of lectures "Defining the field of jurisprudence" [34: xi]. The completion of the conceptualization of the doctrine of the rule of law in the English legal literature takes place at a time when many lawyers, following I. Bentham and J. They strictly limited the subject area of jurisprudence to the study of positive law, denied the existence or practical significance of natural law, devoted themselves to the analysis of the basic legal concepts that make up the foundation of positive law. These processes could not but affect the understanding of the doctrine of the rule of law in English legal thought: it is no longer about the domination of the principles of the law of nature that are speculatively understood, but about positive, will-established law that forms a unified legal order within the territorial limits of an independent political society.

If the right is considered to be the result of the expression of the will of state power, then there is no other alternative for building the concept of the rule of law, except for recognizing the possibility of self-binding by the right of the bearer of sovereign power. The concept of voluntary self-limitation of state power by law was first put forward in the work "The Goal in Law" (1877) by R. von Jering, who argued that in the full meaning of the word law is "the bilaterally binding force of the law, the subordination of state power by itself to the norms issued by it" [35: 306]. The German lawyer believed that the evolution of law goes through three stages: from a casual individual command through a general, abstract, but only unilaterally binding norm only for the subjects to a binding and bilaterally binding norm for state power [35:295-320]. The self-binding right is based on the self-interest reasonably understood by the state authorities in the strength of public order, economic and moral development of the people [35: 320-321].

Subsequently, the idea of self-binding state power received a detailed exposition in the work "The General Doctrine of the State" (1900) by G. Jellinek, who pointed out that "in the act of legal creation, no matter how this right arose, the state assumes the obligation to apply and exercise this right in relation to its subjects" [36: 361]. Elsewhere in his work , the German statesman wrote: "By issuing a law, the state legally binds its norms not only to individuals, but also to its own activities. By law, it also obliges those persons who serve as its organs to conform their will to the dictates of the law. But since the will of the organ is the will of the state, the state, by binding its organs, binds itself… This connectedness is not ethical, but legal in nature" [36: 460]. Jellinek recognized that in any association the foundations of legal relations can be created "only in the form of a unilateral expression of will" [36: 361]. The foundation and guarantee of the binding force of such a unilateral expression of will in relation to the state itself is the cultural state of the people, the prevailing legal view, i.e. public legal consciousness [36: 362-365].

The history of English law, demonstrating the gradual formation and rooting in the public legal consciousness of the idea that the power of the monarch is limited by law, clearly indicates that the subordination of the supreme power to the current law is not voluntary self-restraint. For the regime of legality of the activities of state power, various strata of English society have been fighting for centuries, expressing their demands in the charters of liberties, which the monarchs were forced to accept and to some extent comply with. Therefore, the voluntary self-restraint of public authorities expressed the legal worldview of the XVIII-XIX centuries, but hardly corresponded to the historical process of formation and development of national legal systems of Western Europe. Having some ideas about the history of Western law, it is difficult to seriously assert that the bearers of the supreme state power voluntarily initiate the process of self-restriction of their power by law; many generations had to fight for such "self-restriction". Quite justifiably in Marxism, the idea was carried out that there are no natural human rights "given" by nature, each such right, representing the foundation of the legal status of the individual, was not voluntarily "octroated" by the public authorities, but, on the contrary, was recognized as a result of a long, persistent and sometimes bloody struggle: "human rights – they are not a gift of nature, they are also not received by us from past history as a legacy – they are bought at the price of fighting against the accidents of birth and against the privileges that have hitherto been passed down by history from generation to generation" [37:398]. In other words, the process of self-binding by the right of state power is not voluntary, but is a forced "response" to the consolidated position of civil society, without an active desire to protect its rights, the public political power will never recognize the binding nature of any restrictions on its powers.

At the same time, the very concept of self-limitation of the supreme power by the positive law established by it, proposed by R. Yering and G. Jellinek, could be formed exclusively within the framework of the positivist type of legal understanding. The idea under consideration is based on the fact that no "higher" right (divine, natural, reasonable, moral, correct, etc.) can exist over state power, and the boundaries of power are set by the will of the public authority itself. In other words, recognizing the "good will" of sovereign power as the primary source of self-restraint, representatives of this concept claim that any restrictions do not come from the people, their customs and mores, not from "non-positive" sources (jus naturale, l'esprit de lois, der objektive Geist, der Volksgeist, Unterbau, etc.) but only from sovereign power, which corresponds to one of the basic beliefs of "classical" legal positivism, which invariably reduced law to an attribute of an independent political society consisting of a sovereign and subjects. Moreover, it does not matter how this self-restriction of state power is further justified (in line with social pragmatism (Yering [35:360-361]), or the legal construction of the state as an association (Jellinek [36:361])), since it is argued that in the legal relations between the state and society there is nothing but volitional acts sovereign power. However, it is obvious that the implementation of such legal relations, objectively incapable of providing a mechanism of coercion, cannot be logically consistent with the basic provisions of the "command theory of law" by J. Austin and his numerous followers (W. Markby, S. Amos, T.E. Holland, etc.).

2. The doctrine of the rule of law in the classical interpretation of A.V. Daisi and its criticism. In its completed form, the doctrine of the supremacy (rule) of law was formulated by the classic of English statecraft A.V. Dicey in 1885 in his work "Introduction to the Study of Constitutional Law". Dicey defined the rule of law as the basic principle of the English Constitution and revealed its content through three main meanings.

Firstly, the rule of law means the predominance of law as the opposite of arbitrariness, which includes the prerogative and broad discretionary power of the government [38:227]. Thus, the rule of law asserts the rule of law, solely on the basis of which public administration and bringing persons to legal responsibility are carried out. This meaning of the rule of law is considered to be the earliest and is usually associated with Articles 39 and 40 of the Magna Carta (1215), which state that measures of state coercion must have a legal basis and be applied on the basis of a court decision (Article 39), and the monarch has no right to sell law and justice, arbitrarily deny them (v. 40) [3:136]. To ensure the regime of legality of the activities of officials, Article 45 of the Charter provided for the appointment as judges, constables, sheriffs and bailiffs only persons who know and want to faithfully execute the law [3:137].

For English jurists for several centuries (starting with E. Cook at the beginning of the XVII century and ending with A.V. Dicey at the end of the XIX century), it was characteristic to understand law not as a sum of officially established laws (regulations), but as a spontaneously formed order of relations based on the traditional liberties of subjects, customs rooted in the Anglo-Saxon period, judicial precedents as forms expressing objectively existing common law. The basis of the Rule of law expressed and protected by the Rule of Law doctrine is based on coordinating social ties, the evolutionary, successive nature of the development of society, and the traditionalism of professional legal consciousness. In our opinion, the British understanding of the rule of law as objectively existing, evolutionarily developing is largely due to the centuries-old precedent practice, which was initiated in the middle of the XIII century by G. Bracton, who recommended that English judges, in the presence of a similar case in the past, resolve the present case in the same way according to the principle of "like to like" [39: 5]. The English perception of the rule of law is much closer to the legal understanding of the historical school of lawyers in Germany and some currents of sociological jurisprudence than to the powerfully organized, "vertical", based on subordination, the rule of law in the understanding of statutory legal positivism. Of course, it cannot be argued that in the classical interpretation of the rule of law, the law was excluded from the sources of law and order, identified with the "naked arbitrariness" of an authoritarian ruler. However, the law in the narrow special legal meaning of the term was perceived by many generations of English lawyers only as one of the components of such a rule of law; a component that brings greater certainty, ensures the universality of the rule of law, but at the same time does not act as its primary basis, rather being the consolidation and formalization of the common law already in force in the country. Back in the XVIII century, English lawyers unanimously believed that "law does not apply to what can be created by people. The law simply exists and, consequently, the statutes adopted by Parliament are nothing but amendments to the already existing order of things" [40:62]. The understanding of law as an objectively functioning, spontaneously formed and changing legal order, not generated by the sovereign's establishment of authority, is much more characteristic of the feudal era than of the Modern period with its ideas of sovereignty and rational construction of the legal system. Therefore, many ideas of the doctrine of the rule of law were known to the English legal consciousness even before the XVII century, when Parliament finally won the political struggle and the importance of statutory law began to increase in legal regulation.

Secondly, the rule of law – in the classical interpretation of A.V. Daisi – means the equality of all subjects before the law, the "common law of the country" applied by "ordinary courts". The key idea of this meaning of the rule of law is that every subjective right should be provided with judicial protection and any violation of subjective law – regardless of the legal status of the offender – should be able to receive an independent judicial assessment, legal qualification in accordance with the common law for all [42: 603]. This provision "excludes the idea of any exemption of officials or anyone from the obligation to obey the law to which other citizens are subject, or from responsibility before ordinary courts" [38: 227].

The principle of the rule of law requires that the powers of officials be determined by law and that cases of abuse of power or the commission of other unlawful acts of public officials be considered by the courts in the same manner in which the cases of "ordinary" citizens are considered. For example, in the case of Entik v. Carrington (1765), the court declared illegal the search order issued by the Secretary of State and restored the violated right of the plaintiff to the inviolability of the home. Lord Cadman in his decision stated that any intrusion into private property is an offense (trespass) if there is no consent of the owner or a strictly statutory permit. In the case of Att.-Gen v. Wilts United Dairies (1922), the actions of the government to establish a new tax, based on the powers delegated by Parliament, were recognized by the court as illegal, beyond the powers (ultra vires). The Court determined that neither the Law on Taxation (1914), nor any of the acts of delegated legislation on the basis of which the representatives of the government acted, either directly or indirectly gave them the right to impose additional taxes [43: 402]. According to the doctrine of the rule of law, it is considered that the reference of an official to the execution of the order of the crown or the order of a higher official cannot serve as a defense when prosecuting a crime or other unlawful act [8:67]. For this reason, Dicey argued that the establishment of administrative tribunals in France to resolve disputes involving executive authorities and their officials means the removal of such cases from the jurisdiction of "general" courts, which is a violation of the rule of law and incompatible with English traditions and customs [38:227].

Thirdly, the rule of law, according to Dicey, means that in England it is not human rights that follow from the text of the written constitution, but, on the contrary, the unwritten and unconsolidated constitution itself is "a consequence of the rights of individuals that are determined and protected by the courts" [38:228]. The principles of the English Constitution are "inductions or generalizations based on individual decisions pronounced by the courts regarding the rights of individuals" [38:221]. Thus, it is the result of the evolutionary development of the common law of the country, as it was made by the courts and parliament; the principles of common law for the country determine even the position of the crown and its servants [38: 228]. The unwritten Constitution of Great Britain is based on legal principles developed by the practice of common law courts, so it is necessary to carefully protect the jurisdiction of courts and the right of subjects to go to court from any encroachments. At the same time, the advantage of judicial protection of the rights of individuals based on the principles of common law in comparison with reliance on the articles of the written constitution is that the latter can be suspended in a state of emergency [8: 72-73].

The origin of the British Constitution from judicial precedents that protected the rights and freedoms of subjects from the arbitrariness of the public power of the state is not exclusively a "museum exhibit" of the past, which has no relevance in the modern era. The very concept of an unwritten Constitution, which distinguishes English constitutional law from the continental European model of its organization, owes much of its existence to the common law created by judges (common law Constitution). Even at the present stage, English lawyers point out that the fundamental constitutional principles of the rule of law and the supremacy of Parliament are not contained in the code or other normative act, but are expressed in court decisions [44: 7].

If we try to systematically interpret all three meanings of the rule of law, highlighted by Daisi, then we can see significant differences in the understanding of law, which is called to rule, to rule. It is far from a secret that the rationalistic ideology of the French enlighteners, continental legal positivism, the era of sectoral codification of the XIX century and the adoption of written constitutions in the XIX–XX centuries taught Romano-German lawyers to understand the right almost exclusively written legislation, and therefore for 150 years the most important principle of the rule of law has been recognized as the principle of the rule of law. If we systematically interpret Dicey's position on the rule of law, then it is impossible to come to the conclusion that the British statesman understood exclusively the statutory law of Parliament by the law that is called to rule. When Dicey wrote that the general principles of the English Constitution are the result of judicial decisions [38:221], he was obviously talking not about the rule of law, statutory law, but about English case law, from which the legal order that is called to prevail is formed. If in the continental European concepts of the rule of law, law is understood as a written law established in accordance with the legal procedure by the competent authority, then in the English doctrine of the rule of law, the foundation of the rule of law does not consist of written legal acts-documents and their norms, but of precedent decisions that consolidate and protect the personal and political rights of man and citizen. That is why, for lawyers of the Romano-Germanic tradition, the concept of the rule of law is expressed in the principles and norms of constitutional legislation, which are general, abstract in nature and do not always find concretization in a wide range of court cases, the positions of the courts. In contrast, for their English colleagues, the doctrine of the rule of law is expressed not only in the doctrinal ideas and principles of well-known constitutionalists, but also, above all, in a significant number of judicial precedents.

Within the framework of the subject of this study, it is important to typologize the teachings of A.V. Daisi on the rule of law. For the British statesman, law has a positive nature, it is expressed in the law and precedent decisions of the courts, it is an established right, an "artifact" of public life. The unified and universal legal order, which seeks to establish English constitutional law in Dicey's understanding, is not the result of the operation of immutable laws and principles of natural law. Dicey writes precisely about the positive rule of law created by precedent decisions of courts and statutes of Parliament; this rule of law has normative foundations, without which a universal regime of legality is impossible. In this sense, of course, Dicey's doctrine of the rule of law is positivist, does not rely on any concept of philosophical idealism, which is characteristic of natural law theories. Dicey's understanding of the rule of law can be qualified as positivist and on the grounds that the British lawyer does not discuss the content of the law, which is designed to dominate the legal system of England, does not try to reveal the substantive requirements for the law, formulate objective principles to which it must comply. In other words, Daisi's approach can be called formal: the requirements of unity and universality of legality, excluding the arbitrariness of executive authorities, equality of "private" and "public" subjects before the law and the court, the unity of the judicial system, excluding the arbitrariness of "extraordinary" and "special" courts – all these requirements relate to the legal form, but not the content of the law itself. The British statesman connects the protection of human rights exclusively with the precedent decisions of the English courts, but does not write anything about natural human rights, which must necessarily be provided with judicial protection. Therefore, in our opinion, Dicey's emphasis on judicial protection of human rights does not make his position naturally legal. At the same time, Dicey's doctrine of the rule of law cannot be put on a par with statutory legal positivism (I. Bentham in England, the school of exegetes in France of the XIX century, K.M. Bergbom, K.F.V. von Gerber, P. Laband – in Germany [45: 431-467]), which reduced all positive law to laws that excluded other sources of positive law. As already indicated, Dicey did not reduce law exclusively to the statutes of parliament, recognized case law as the fundamental basis of the British Constitution and the rule of law that, in his opinion, prevails in England.

At the present stage, authoritative English statesmen, assessing Dicey's position on the content of the rule of law, point to a number of weak and unexplained points.

Firstly, the ambiguity of the very concept of arbitrary power is criticized, since it can be understood both as a power capable of being used for a variety of purposes, and as a power open to abuse in the absence of proper control, and as a power that directly violates individual freedom. If "arbitrary power" and "broad discretionary power" are equally unacceptable, then how can the limits of acceptable discretionary power be set? At the present stage, in many social spheres, executive authorities and civil servants are endowed with a significant amount of discretionary power, since the complexity and differentiation of public relations makes such power objectively necessary [27: 79-80]. The attention of lawyers should be focused not on critical attacks on discretionary powers, but on establishing legal and political guarantees through which the exercise of such powers can be controlled [27:80].

In addition, Dicey's understanding of the rule of law is criticized for inconsistency. If the doctrine of the rule of law is aimed at eliminating arbitrary and broad discretionary powers of executive authorities, then the doctrine of the supremacy of parliament, proceeding from the fact that the highest representative body in England is the monopoly bearer of legislative powers, is capable of contradicting it. In accordance with the doctrine of the supremacy of Parliament, the latter, on the basis of the adoption of the relevant statute, has the right to endow the executive body with broad discretionary powers [46: 23], thereby ensuring the achievement of the goal opposite to the meaning of the first provision of the rule of law. If the doctrine of the rule of law is directly directed against the arbitrary power of state bodies, then the doctrine of the supremacy of parliament, on the contrary, is an expression of the idea of Boden sovereignty – the boundlessness and uncontrollability of the power of the supreme representative body. G. Jellinek in his classic work, as confirmation of the omnipotence of the British parliament, cites the practice common in the XVII and XVIII centuries with the adoption of ex post facto laws – bills of attainder and bills of pain and penalties, criminalizing acts that, after the monarch's sanction, were immediately incriminated to persons objectionable to the government. At the same time, the latter were often deprived even of the opportunity to protect themselves [36: 362-363]. The penalties provided for by such retroactive laws were called cruel and unfair by W. Blackston as early as 1766 [31:46]. Jellinek's conclusion in this case is similar: "an act of law–making, even if its result remains in force, may involve a violation of law" [36: 362-363]. Despite the fact that the German statesman already at the beginning of the XX century considered these types of bills a "blatant violation of law" incompatible with the generally recognized legal principles that serve as the basis of English law [36: 362-363], nevertheless, while preserving the doctrine of parliamentary sovereignty in English constitutional law and political practice, there is always a hypothetical possibility of violation by parliament the principle of the rule of law.

Moreover, as far as the author of the work knows, the English doctrinal literature does not raise the question of the priority of one of the constitutional principles, and there is no generally accepted convention among British jurists on this subject. In this regard, it is significant that E. Cook, who did a lot to establish the doctrine of the rule of law, the priority of common law over the statutes of Parliament, at the same time, in the fourth part of his "Institutions" (1645), pointed out: "The power and jurisdiction of parliament are so high and absolute that they are not for anyone or anything they can be enclosed in any boundaries. And about this supreme assembly, we can rightly say: S i antiquitaitem spectes, est vetustissima; si dignitatem, est honoratissima; si jusdictionem est capacissima" [47:36]. 240 years after Cook, the classic of British statecraft A.V. Dicey defined parliament as "an institution entrusted with despotic, unlimited power by the constitution of our kingdoms" [38:47]. Based on the changes in the attitude of English lawyers to the principle of the supremacy of parliament that occurred during the XX century, it is possible to assume with a certain degree of probability that the principle of the supremacy of law will have priority in a conflict situation, but it is hardly possible to back up such a position with a sufficient number of doctrinal sources. Moreover, the priority of the rule of law principle over the strict interpretation of the rule of parliament principle becomes even more uncertain in an emergency situation when extra-legal arguments can prevail over the formal and procedural provisions of the Rule of Law.

English statesmen do not ignore the debatable issue of the possibility of coordinating the practice of delegating legislative powers by parliament to executive authorities with the principle of the rule of law. Indeed, the rule of law presupposes the predominance of "normal" law established by the highest representative body, and the widespread practice of delegated legislation in England may well be understood as the existence of "broad discretionary powers of governing bodies", since "the significant volume and detailed nature of resolutions issued by ministries inevitably creates a state of uncertainty" [8: 63]. At the same time, it is argued that the need for delegated legislation is objective, and the agreement of such a status quo with the principle of the rule of law is seen in the fact that "the need for the decisions of ministries to be stated in simple language, published and available for review" [8: 64] should be stipulated. In addition, the rule of law requires parliamentary control over acts of delegated legislation [8:64], which will ensure the real supremacy of parliament in the establishment of "normal" and uniform law. However, the requirements of parliamentary control and compliance with the basic rules of law-making techniques cannot be considered sufficient to exclude the "broad discretionary powers" of the executive branch, against which the classical formulation of the doctrine of the rule of law in the work of A.V. Daisi was directed.

Secondly, critics of Dicey's position point out that the universality of equality of all subjects before the law in modern law is complemented by reasonable differences between persons for economic, social reasons or legal status (landlord and tenant, employer and employee, etc.). The rule of law requires not only universal equality before the law, but also invalidation norms that distinguish between citizens on grounds that are unreasonable, unacceptable or offensive (for example, discrimination based on gender, race, origin or skin color) [27: 80].

In this regard, British statesmen make a significant reservation regarding the principle of equality of all before the law, pointing out that the Crown and a number of public bodies and their officials in England are legally granted certain privileges, expressed in exceptions from the operation of "normal" law [8: 67-68]. Special privileges and immunities of public bodies and their officials are defined as exceptions to the principle of equality before "normal" law. However, the existence of a number of exceptions seriously weakens the principle of universal equality before the law and case law.

Thirdly, it is rightly pointed out that Daisi's views on administrative justice as violating the rule of law have long hindered the correct understanding of administrative law. Already in 1945, E. S. Wade and D. D. Phillips pointed out that Dicey did not pay attention to the broad powers possessed by the executive power in England already in the 1880s. Dicey's attacks on the administrative law of France were not justified, since the legal norms governing the powers and duties of public authorities and officials in England were the same administrative law as droit administratif in France [8:63]. Today, administrative courts in most European countries protect individuals from illegal actions of state bodies, and the presence of special judicial procedures is not a violation of the rule of law [27: 80].

If administrative courts are independent of the executive power, guided in their activities by the general principles of the organization of the judicial system and the process, meet the requirements of legality, competitiveness, publicity, provide the right to challenge decisions to a higher court, then, in our opinion, their establishment and functioning does not violate the principle of unity and exclusivity of the judiciary. If these requirements are met, the grounds on which it is claimed that the functioning of administrative divisions in courts of general jurisdiction complies with this principle, and the establishment of special administrative courts violates it, are not clear. On the contrary, the establishment of special administrative courts within the framework of a single judicial system makes it possible to more accurately and effectively specialize the judicial corps, to ensure more qualified resolution of administrative cases.

In this regard, it is important to note that both at the end of the XIX century and at the beginning of the XXI century in the judicial system of England there are a number of special courts that are not administrative, but are of great importance for the property status of British subjects. The existence of such courts is not a violation of the rule of law as long as they act impartially and independently, listen to the arguments of interested persons, motivate their own decisions, focus on uniformity in resolving similar cases, and the judges themselves are not influenced by the executive [8:71]. At the same time, the right to appeal against decisions of special courts to "general" courts should be stipulated [8: 72].

Fourthly, Dicey's belief in common law as a key means of protecting the rights and freedoms of citizens from illegal actions of the state is criticized. It is indicated that the rights and freedoms of citizens on the basis of the common law of England can be so significantly limited by legislation that it will call into question their very existence. In addition, common law does not protect the economic and social rights of citizens, and the formal legal consolidation of fundamental rights and freedoms (for example, those provided for by the European Convention on Human Rights) is in itself important for their judicial protection, which is recognized by a significant number of modern states [27: 81].

Modern English statesmen distinguish three groups of ideas (provisions) through which the content of the doctrine of the rule of law is revealed.

Firstly, the rule of law expresses a preference for an orderly life in an organized community, rather than a situation of anarchy or struggle in which there is no security for people, their well-being and property. A certain stability of society is a prerequisite for the existence of a legal system. At the same time, it is recognized that the rule of law and the stable functioning of the judicial system are possible even under a dictatorship, but real constitutionalism and the rule of law cannot be achieved without legal restrictions imposed on the state apparatus [27: 99].

Secondly, the rule of law expresses the fundamental principle that public administration should be carried out in accordance with the law and that in disputed cases, what the law requires is determined by a judicial decision. The new powers of the executive bodies should be obtained on the basis of the statute of the Parliament, and their acts and decisions that go beyond the delegated powers can be recognized by the courts ultra vires (outside the powers – Latin) and therefore invalid. In case of deviation from the law, State bodies and officials should be subjected to effective sanctions, which consist not only in recognizing their acts and decisions as invalid, but also in the obligation to compensate for the harm caused by such acts or actions. Thus, in the UK, government departments can be prosecuted for illegal actions under the Crown Proceedings Act (1947), and ministers can be held in contempt of court [27:100-101]. For example, in R e M ^[1994] 1 AC 377, the Judicial Committee of the House of Lords found that the Home Secretary had committed contempt of court by disobeying a court order to return a deported Zaire teacher to the United Kingdom [48:758].

At the same time, the literature rightly points out that the British Parliament, as the bearer of sovereign power, can empower executive bodies with powers that can sharply restrict individual freedom (for example, indefinite detention without trial of foreigners suspected of involvement in terrorism). Therefore, if we reduce the content of the rule of law only to the principle of legality, then this will not be an effective guarantee against the violation of other fundamental values [27: 101].

Thirdly, the rule of law is seen as a broad political doctrine that includes a range of positions on issues such as the powers that the State should or should not have (for example, whether ministers should have the right to detain without trial), procedures to be followed when the State takes any action (for example, the right to a fair trial in criminal proceedings) and the values inherent in the justice system [27: 101].

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