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The scientific article is devoted to research the concept and the legal nature of local government, as an institution of constitutional and administrative law. Attention is paid to the main approaches to the definition of local government.
Keywords: local government, Magdeburg Law, local community.
Relevance of the study of local government is due primarily to the fact that one of the priorities of the Ukrainian state is to create an effective system of local government which would take into account the experience of countries with developed democracy and reflected local peculiarities. The key of increasing the level of democracy in society is efficient and at most close to the people, local authorities, since the right of citizens to governance is implemented primarily at the local level. Exactly because of it local governments can implement the initiative of millions of citizens, to involve them in active social life, effectively use their knowledge and experience. The right of citizens to participate in government rightly considered as the most important human and civil rights and guaranteed by the Constitution of Ukraine. However, these issues are not addressed in modern scientific literature, and, therefore, the research of institute of local government is topical.
Scientific and theoretical basis of the study were works of domestic and foreign legal scholars on the theory of state and law, constitutional and municipal law. Particularly noteworthy works of I. P. Butko, R. K. Davydov, N. V. Kaminska, V. V. Moldovan, O. N. Yarmysh, V. O. Serohin, V. F. Pohorilko, A. N. Pysariev, V. L. Fedorenko, Y. A. Tykhomyrov, I. A. Sai, O. V. Batanova, I. O. Zaitseva, V. L. Pilkevych, M. V. Onishchuk, V. Kampo, Y. D. Kazancheva, M. P. Vasylenko, M. Z. Novyk, V. M. Parkhomenko, K. I. Rovynska, V. V. Troianovskyi, Markvart, A. F. Tkachuk, R. Ahranoff and others.
Comprehensive and objective investigation of any legal institution assumes, first of all identification and analysis of the basic concepts and categories that are part of the research object, and therefore – let’s define the concept of «local government» in terms of domestic and foreign law and from the standpoint of scientific (theoretical) approaches, and analyze the legal nature of the investigated institution, its genesis and significance for modern society and the state.
Local government – an important category of constitutional, administrative and municipal law, because only through local governments implemented these important principles and elements of democracy: political freedom, equality of citizens, election of state and constant contact with their people, separation of powers, decision-making by will of the majority under the condition of compulsory adherence of minority rights, pluralism [1, p. 359]. Moreover, the local government can be defined as an essential element of democratic society, one of the main and essential factors in the development of democracy in the process of state building.
Institute of Local Government is not a novelette today. Its genesis can be followed since the XI-XV centuries, when in feudal Europe existed principalities, cities, parishes and other local forms of government. The development of trade led to the formation of urban communities, many of whom received the status half-sovereign units and thus laid the basis for the emergence of local autonomy. One example of such autonomy should be considered appearance, since XIII century, in medieval Europe, a large number of cities, including the lands of Galicia-Volyn principality enjoyed an advantage of Magdeburg law.
In the further development of sovereign nation-states in XVI-XVII centuries there was a subordination of cities and other smaller forms of local government to central government, after which the local government began to take shape of administrative subdivisions of the central government. This preliminary autonomous development laid the foundation for the purpose of solution the rights of local communities and their governments, and the process of establishing the dominance of the central government outlined the role of self-governing bodies such as the one which provides local services and solve local problems.
The term «local government» in legal theory was introduced in the 50’s. XIX century by Prussian lawyer R. Peyst, previously were used terms such as «municipality», «local administration», «regional administration» [2, p. 7] .
The Constitution of Ukraine defines local government as «the right of a territorial community – residents of a village or a voluntary association of rural community of several villages, towns and cities – to solve local issues within the Constitution and laws of Ukraine» .
A broader definition of «local government» contained in the Law of Ukraine «On local government in Ukraine», according to which «the local government in Ukraine – a right guaranteed by the state and the real ability of a territorial community – residents of a village or a voluntary association of rural community residents of several villages, towns, cities – independently or under the responsibility of authorities and local government officials to address issues of local importance within the Constitution and laws of Ukraine» .
Regarding scientific approaches to the definition of local government opinion of Professor N.V. Kaminska should be given, who in her writings, notes that «local government is the organizational form of exercise public authority in the field that aims to provide an independent (under his responsibility) resolving citizens, reside within the administrative and territorial unit of local issues in the interests of the population, history and local traditions» [2, p. 10]. From this definition implies that local government is not only the right but also the immediate implementation of the organizational form of the public authorities in the field. In fact, one could argue that local government is part of the legal mechanism of citizens across state government, which is limited to a specific territory defined by law (administrative unit).
Such definition of local government offers domestic scholar, a specialist in constitutional law V. F. Pohorilko «Local Government – is determined by the Constitution and laws of Ukraine the right of territorial communities themselves, under their responsibility, directly or through community agencies formed to address issues of local importance» [5, p. 396]. This definition is in form above tends to the constitutional definition of local government.
Local government as an institution of constitutional law is characterized by a number of signs that as more fully express its essence and legal nature. Most scientists agree that the main features of local government should include the following [6, p. 36]:
– Local government, as an institution of the state, has a special place in the mechanism of governance and state, addressing specific form of public power, which is not part of the mechanism of state power;
– Local government has a special facility management – local issues – subjects of jurisdiction, fixed by national legislation.
– One of the specific subjects of local government is the local community. And specificity is that at the local level can be seen the transformation of the territorial community’s management in its primary subject.
Yes, under the administration is understood any meaningful impact of the subject of administration on the object of administration. But in the condition of self-government the impact of the management system on itself is evidently stronger. Thus, as well Y. A. Tikhomirov said – here is no two systems –administrative and which is administrated there only one – self-administrative [7, p. 21]. It follows from this that the fundamental principle of the content and substance of government.
– Independence of local government, which finds its expression in the organizational, material and financial isolation, independent decision of local affairs within the competence fixed by law, and self-accountability of local government officials.
Local government in accordance with its inherent features and functions most scientists define as «a form of local government» or «public form of exercise of power». In particular, the domestic scholar I. A. Sai in his writings, notes that «local government is one of the most effective forms of local governance and territorial development. Where it really operates, where the local population has a real right and opportunity to solve local issues, an increase in local revenues and socio-economic development in general» [8, p. 159]. Thus, there is not only the political and legal importance of local government, but also its economic and social role, which is consists of the most effective management of local affairs by those subjects that are the most close to these cases. Accordingly, there is an important economic effect of cost-effective use of local and national resources according to local needs. This local government is part of the market economy, which, however, during the Soviet Union was not used.
Analyzing the works of local and foreign specialists in law, in fact, can be traced consensus on the importance of local government assessment, which is a positive assessment of the institution and its recognition of the essential element of a modern democratic state. As the A. V. Batanov said «Local government can be a fundamental expression of cultural diversity that exists both globally and at the regional and local levels. It is the most democratic response to the challenges of globalization, such institution that affirms the need to respect the special, unique, inimitable» [9, p. 30].
The above research points to the fact that local government is a complex mechanism, form of the element of power and democratic state. Therefore, its implementation, promoting its real activity should be one of the most important tasks of the modern Ukrainian state.
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