The Concept of Public Power in Legal Philosophy

Abstract

The article studies the concept of public power in the philosophy of law. The concept of power (potestas) should be distinguished from the closely related concepts of imperium and authority (auctoritas), which are of Roman origin, as well as from the Germanic concept of Herrschaft. In the history of legal and political thought, four main concepts of power can be distinguished. The volitional theory, which identifies power as the will, is initially based on the transfer of the Christian doctrine of the Church governed by the Holy Spirit to the state and its ruler and assumes the a priori unity of the state will. The psychological theory of power, on the contrary, emphasizes subordination on the part of the subjects. The social behaviorist concept treats power as a social fact — a relationship within the framework of which one party is subordinated to the other. The legal understanding of power, in turn, considers power as a legal (normative) phenomenon. The author believes that the main concepts of power reflect different sides of this social phenomenon. To explain public power as a social phenomenon it is proposed to refer to the theory of three realms of law. In this understanding, power can be considered as a normative phenomenon (a set of empowering norms), a psychological phenomenon (legitimacy) and an empirically perceived phenomenon (actual behavior).