The Renaissance of State Administration in Russia. Selected Works
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The Renaissance of State Administration in Russia. Selected Works
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This edition, prepared to coincide with Professor L.L. Popov’s 85th birthday, includes research papers most of which were published during the last decade, as well as the monograph entitled "Efficiency of Sanctions in Administrative Law" published substantially earlier (1976). The problems discussed in the latter, few of which have been developed further, remain relevant to both modern-day theory and practice. This book is for both undergraduate and post-graduate law students, law school teachers, researchers, employees of bodies within the executive administration and all those interested in the Russian legal system. Texts are worded as in previously published papers. Minor modifications have been made by the author purely for the purpose of clarifying a number of actual circumstances.
Попов, Л. Л. The Renaissance of State Administration in Russia. Selected Works / L.L. Popov. - Moscow: Norma: INFRA-M, 2015. - 368 p. - ISBN 978-5-16-109247-7. - Текст : электронный. - URL: https://znanium.com/catalog/product/1211542 (дата обращения: 21.10.2021). – Режим доступа: по подписке.
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The Renaissance of State Administration in Russia 1
L.L. Popov The Renaissance of State Administration in Russia Selected Works NORMA INFRA-M Moscow 2015 3
UDC 351 LBC 67.401 P58 Electronic Library System znanium.com L.L. Popov P58 The Renaissance of State Administration in Russia. Selected Works / L.L. Popov. - Moscow: Norma: INFRA-M, 2015. - 368 p. ISBN 978-5-91768-616-5 (Norma) ISBN 978-5-16-010933-6 (INFRA-M, print) ISBN 978-5-16-102949-7 (INFRA-M, online) This edition, prepared to coincide with Professor L.L. Popov’s 85th birthday, includes research papers most of which were published during the last decade, as well as the monograph entitled "Efficiency of Sanctions in Administrative Law" published substantially earlier (1976). The problems discussed in the latter, few of which have been developed further, remain relevant to both modern-day theory and practice. This book is for both undergraduate and post-graduate law students, law school teachers, researchers, employees of bodies within the executive administration and all those interested in the Russian legal system. Texts are worded as in previously published papers. Minor modifications have been made by the author purely for the purpose of clarifying a number of actual circumstances. UDC 351 LBC 67.401 ISBN 978-5-91768-616-5 (Norma) ISBN 978-5-16-010933-6 (INFRA-M, print) ISBN 978-5-16-102949-7 (INFRA-M, online) © L.L. Popov, 2015 5
Author's Biography Lev Leonidovich Popov, Doctor of Juridical Science, Professor, Emeritus Scientist of the Russian Federation, Emeritus Lawyer of the Russian Soviet Federative Socialist Republic, Major General of Police, was born in Leningrad on July 26, 1930. During the Great Patriotic War (World War II), he worked on a collective farm while an evacuee and was awarded the status of Veteran of the Great Patriotic War (labour front). In 1944, he returned to Leningrad, completed secondary school and, in 1949, entered the Law Faculty of the Leningrad University from which he graduated in 1954. He then joined the Leningrad Police as an investigative officer. He has worked within different units of internal affairs agencies for over 40 years. In 1959, Popov moved to Moscow and, on the recommendation of A.V. Venedictov, a member of the Academy of Sciences, enrolled on a postgraduate course at the Higher School of the USSR Ministry of Internal Affairs (now the Academy of Management of the Ministry of Internal Affairs of Russia), in its department of Administrative Law, where he worked his way up from postgraduate student to become the Deputy Head of Academic Affairs at the Academy. In 1965, Popov defended his Ph.D. dissertation entitled "Persuasion and coercion in the administrative work of the police". In 1969, he was appointed Head of the Department of Problems in the Administrative Work of Internal Affairs Agencies at the All-Union Science and Research Institute of the USSR Ministry of Internal Affairs, the first person from within the Ministry of Internal Affairs to head a research unit focusing on administrative law. The most significant results of the work of the Department were reported to N.A. Shchelokov, the USSR Minister of Internal Affairs, and discussed within the board of the Ministry. This occurred, in particular, in the case of the country’s first draft Code of Administrative Offences. In 1976, Popov was appointed Deputy Head of Academic Affairs at the Moscow Higher School of Police (now the Moscow University of the Ministry of Internal Affairs of Russia) and was involved in setting it up from its very first year. In 1976, Popov defended his doctoral dissertation entitled "Issues in the Effectiveness of Sanctions in Administrative Law" at the Institute of State and Law of the USSR Academy of Sciences. For his work at higher educational institutions and the Science and Research Institute of the Ministry of Internal Affairs, Popov was awarded the title of Emeritus Employee of the USSR Ministry of Internal Affairs. He has been elected as a fellow of the Russian Academy of Natural Sciences and a fellow of the Academy of Military Sciences of the Russian Federation. In 1980, for his involvement in the organisation of public order and security during the 1980 Moscow Olympics, Popov was awarded the Badge of Honour. 6
L.L. Popov. Selected Works Following his retirement in 1997, the author was invited to work at the Moscow State Academy of Law (now the O.E. Kutafin Moscow State Law University (MSAL)) as Head of the Department of Administrative Law, where he has continued to work ever since. Popov has been made an Emeritus Employee of Higher Professional Education of the Russian Federation (2000). His main areas of expertise are state administration, administrative law and issues related to ensuring public order and public safety. Popov is the author and academic editor of over 300 research and academic papers, including such study books as Administrative Law (1999-2005, 2008, 2013), Legal Studies (2004), Foundations of Law (2010), Organisation of Public Order Maintenance (1987), Administrative Law and the Administrative Work of Internal Affairs Agencies (1990), monographs (in particular, State Administration and the Executive Power: Content and Relationship (2011), State Administration in Russia and Foreign Countries: Aspects of Administrative Law (2012), study guides, research articles, comments on the first Code of Administrative Offences of the Russian Soviet Federative Socialist Republic (1985) and the Code of Administrative Offences of the Russian Federation currently in effect (2001). Popov has taught 86 “candidates” of law, some of whom went on to become doctors of law. For a number of years, Popov, was a consultant with the State Commission for Academic Degrees and Titles. He is a member of doctoral dissertation boards at MSAL and the Military University of the Ministry of Defence of the Russian Federation (since its foundation). As a prominent scholar and practitioner in higher legal professional education, Popov has greatly contributed to the development of the science of administrative law and to the training of highly qualified lawyers working as practicing, teaching and research professionals in our country and abroad. 7
GENERAL CONCEPT OF ADMINISTRATION. STATE ADMINISTRATION¹ The study of administrative law begins with understanding the concept of administration. The very word administration, which stems from Latin, is interpreted as “management” or “control”. That is why the administrative law regulating social relations in the area of administrative activities is, essentially, the law of control or “managerial” law. And that is why it is quite logical, prior to conducting an analysis of standards and institutions in administrative law, to explore the concept and basic features of administration as the substantive foundation of administrative law. What is administration? Different sciences interpret administration in different ways. The most general understanding of this phenomenon is provided by cybernetics, the science about the law of control. Let us take a look at its starting points. The effect of administration is to turn primeval chaos as an aggregate of a mass of coincidences into ordered organised systems, be they natural, technical or social. From this point of view it appears that administration is the only defence against chaos, and a powerful instrument of progress. The doctrine of Norbert Wiener, an American mathematician and the “father” of cybernetics, helps articulate the definition of administration as organised targeted influence on an object or process intended to bring this into a condition of order. In this definition the targets and the outcome of such influence are of crucial importance. However, for efficient management one not only needs to identify their goal but also know how to achieve it, i.e. how to influence the object being managed such that the plan drawn up in advance is achieved. This is often more difficult than the setting of a particular goal. For example, one might set a goal of overcoming poverty, but achieving this requires huge effort and the engagement of the entire resources of the government and of society, as well as a considerably longer period of time. In this respect the concept of the administration algorithm becomes essential, i.e. the way of achieving the goal set. The general pattern of administration is the interaction between an object and the relevant management device (natural, technical or social) based on communication channels that exist between them (reaction). Using these channels the management device receives information about the condition of the object, because without knowing what is happening to the object it is impossible to control it effectively. The management device uses other channels to influence the object and to manage it, as without influencing it, it is also impossible to manage it. To ensure effective administration, i.e. to make it possible to regulate an object, one needs to know how to use the information received, how to manage the object based on this and what one should strive for. To this end, the management device needs the following elements “embedded” in it: 1) administration goals and 2) the means (algorithm) of administration. In other words, goals and the content of administration are defined by the nature and state of the object being influenced. Administrative law: textbook, edited by L.L. Popov, M.S. Studenikina. Moscow, Norma, 2008. 8
L.L. Popov. Selected Works The above administration pattern may be applied to any objects capable of being managed and only functions if there is a programme (or algorithm) that occurs as a “creative act”, be this knowledge-based or the result of self-management, self-generation or selfcreation, for example, an instinct. Moreover, administration only becomes realistic if the object is subordinated in some way to the management device, for instance, to an instinct, a computer-generated command, an order from an authority with the relevant powers, from a group of people or from another individual. The above allows us to conclude that there are three types of general concept of administration: 1) administration in natural systems; 2) administration in technical systems; 3) administration in social systems. Examples of the first type of administration might be a colony of bees, an ant hill or humankind as the most advanced form of biological organisation found in nature. Examples of the second type of administration are technical systems based on computers, in particular, in the field of air defence, automated manufacturing facilities, etc. The third type is the social administration that became necessary once people began to work together (as, for example, with hunting, construction of irrigation channels and territorial defence). Objectively speaking, cooperation between different individuals requires some form of control on the part of elders, chieftains or that particular class of people for whom administration becomes their core expertise. Here it would be good to recall Karl Marx's popular quotation, A single violin player is his own conductor; an orchestra requires a separate one”. Social administration is one of the most important conditions of the existence of human society and emerges from the very nature of the social labour process. At the same time, social administration is distinctive not in its quantitative but in its qualitative features, the fact that the dominant role in it is played by people, and management links are forged through relationships between people (their behaviour, actions and deeds). People’s joint endeavours assume their organisation, firstly, the creation of an association of people for the purpose of carrying out the joint work (formation of labour collectives, administrative bodies) and, secondly, a certain method to their activities, their direction. Hence, it is possible to conclude that the essence of social administration lies in the organising activity. The content of such administrative activity is composed of: a) establishing different management bodies; b) designing an action plan; c) ensuring it has the required resources; d) distributing general tasks among participants in the joint endeavour and unifying their acts and effort; e) regulating their daily administrative activities (common rules of conduct for all participants); f) monitoring (checking and supervising) their conformity with set goals; g) applying measures to persuade and compel participants to get involved in the administrative arrangements. The administration process results in all participants in the joint endeavour becoming subordinated to the common goal towards which such endeavour is directed. This is precisely the sense of the “regulating effect” achieved in the course of social administration. 9
General Concept of Administration. State Administration Thus, social administration has the following typical features: 1) administration is carried out where there is a need for people's joint endeavour; 2) the purpose of administration is to ensure people's joint endeavours are directed towards a common goal by unifying and coordinating their behaviour and actions; 3) administration is carried out based on the subordination of participants in the joint endeavour to a single administrative purpose. Hence, social administration means carrying out authoritative organising functions ensuring the achievement of set targets in the course ofpeople ’s joint endeavours. There are three types of social administration. These are a) public administration (public associations, labour collectives, commercial structures, etc.); b) local government; c) state administration. State administration (executive power) is the substantive foundation of administrative law. This is exactly the subject of this branch of Russian law. All attributes and features of social governance are manifested through state administration in one way or another. As soon as the state appeared, so did (objectively and inevitably) the state administration inherent in it. Without the state administration, neither the state nor society can exist. It is in and through the state administration that state power is best expressed and implemented for each individual. This is precisely what ensures the development of the economy, sociocultural sphere and administrative political activities. "State administration" as a concept and term is widely used in academic literature and legislation. Throughout the Soviet period it dominated as a form of state activity alongside the legislative, judicial and prosecutorial. Based on the theory of the separation of powers, the 1993 Constitution of the Russian Federation introduced the concept of executive power reflecting its political and legal content as a branch of state power representing the trinity of the legislative, executive and judicial powers, as opposed to state administration, the legal content of which was primarily organisational. As a result, some authors started to avoid using the term “state administration”. Nevertheless, regardless of its absence from the constitution, state administration did not, of course, simply disappear. The essential intention of executive power, as well as of state administration, is the “practical organising” of the legislative process, achieving set goals or a certain positive outcome. This is the daily ongoing work of the executive authorities in carrying out the state administration. Thus, the constitutional concept of executive power does not exclude, but rather implies the need for state administration and its ongoing improvement. State administration has a number of specific functions. First of all, it has a function to organise involving the formation of state authorities and groups of people for which there is a requirement, defining the procedure for their activities in order to achieve set goals, for example, to double GDP by 2020, overcome poverty, create an effective army, implement projects that are national priorities such as education, health care, affordable housing, agriculture and the solution of the demographic problem. Secondly, it has a function to execute and regulate. To ensure that laws and regulations are complied with, executive bodies and their officials are granted the necessary regulatory power without which state administration is impossible. Thirdly, it has a function to enforce law. Enforcement and regulation are impossible 10
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