Political Science
POLITICAL REGIME AND
LEGAL CULTURE: DIALECTICS OF CORRELATION
Trebin M.P., Doctor of Philosophical Sciences,
Professor, Yaroslav the Wise National Law Academy of Ukraine (Kharkiv)
Romanuke S.M., PhD, Associate Professor,
Yaroslav the Wise National Law Academy Ukraine (Kharkiv)
I. Introduction In Ukraine the democratic transformations require
an appropriate level of citizens’ legal culture. Forming the latter is a
consistent and long-standing process, which is still under pressure of the yesterday’s
society, the dominating political, ideological and legal behavioral models.
Thus it is very important to ascertain factors influencing legal culture
development.
II.
Problem formulation
The analysis of various domestic and foreign researches and publications is
evident that the problems of political regime and legal culture are constantly
in sharp focus of the academic realm. Nevertheless, correlation between
political regime and legal culture is still a sore subject that necessitates
more research and further advance. Thereby the authors of the present research
have for an object to study political regime as a determinant of legal culture.
III. Results Aristotle
emphasized that «a human being
by nature is a political being, whereas a being who lives beyond the state
because of his\her nature and not as result of casual circumstances is a
morally underdeveloped being or not a human being» [1]. Indeed, every
individual of the time to some extent faces politics and law [2]. Nowadays it
is impossible to make a step in public life without entering into legal
relations and addressing a political «sore» subject. New political and law
phenomena keep forming therefore. Consequently law consciousness and political
awareness is becoming more and more topical particularly concerning their
correlation and interdependence, influence (determination) of political regime
on political awareness and legal culture [3].
In
political science political regime is used as a category to describe the social
character and order of relations between rulers and subjects as well as the
methods of effective ruling on the whole. Political regime is regarded as an
authoritative order. In other words authorities influence society through a
political regime involving the forms and methods of ruling, and the structures
of institutions authorized with the powers under the principles of power
division [4]. Appeared in the Western
Literature of the 19th century the notion political regime» (from Latin regimen) has been used widely
since the end of World War II. Till now the notion has a great number of
different variants of use and definitions.
The term «political regime» is the most important in European political science
as opposed to American one prefering «political system» [5]. «Political regime»
lost its precise meaning because of free interpretations. Consequently the term
still refers to a very complicate concept being interpreted differently within
various paradigms. So, the followers of the system approach interpret political
regime rather loosely and identify it with the category «political system». It
causes some theoretical problems fraught with danger of terminological
duplication of the two terms being the similar political phenomena.
Actually both «political system» and «political regime» describes
political life from all sides, where the former characterizes relations with
external surrounding and the latter determines means and methods to realize
common interests. Some researchers narrow the latter’s meaning to «form of government».
This point of view dominates in Constitutional law. Under it the classification
of political regimes bases on ascertaining difference of the legislative and
executive functions of a State and their relationships. Accordingly the regimes
are: the power fusion regime (absolute monarchy), the power division one
(presidential republic) and the cooperation one (parliamentary republic).
Focusing on activity of governmental structures such interpretation ignores
influence of other political institutions (party system, interest or pressure
groups). A form of government should be more precisely referred to one of the
components of political regime.
Well-known
Russian lawyer Vengerov A. emphasized that political regime is always a
political and law regime manifesting through lawful and unlawful governing
forms. Just the availability of legal methods under representative and law
enforcement organs’ activity, establishing the Army’s function, organization of
political and justice power makes for precise ascertaining a kind of political
regime, forecasting its dynamics [6]. Russian men of law as Burlakov V.,
Volkov Ju. and Salnikov V. stress that «political regime …
determines … political life of the
country, real rights and freedoms of its citizens (or law or actual suppression
of rights), tolerance or intolerance of various «deviations» [7].
Scientifically
two main approaches exist to interpret the term “regime”. The law one
accentuates formal principles and rules of power exercised by public
institutions [8]. The political science one is based on analysis of such means
and methods which are implemented to exercise real public power and to a
certain extent conditional on the socio-cultural traditions, system of labor
division, communication type and etc.
By experience the most appropriate method of representing political
regime is the approach which makes for comparing formal behavior standards of
authoritative subjects with actual ones, reflecting the real state of rights
and freedoms, establishing groups engaged with making decisions, and ect. Under
this approach power agents are not only a government or authorities, but also
those structures which are not empowered to govern, nevertheless they have a
real influence upon decision process. For all these reasons the opposition and
some other political components, except antisystem ones, can be considered as
an important feature of government.
Orienting toward a real reflection of political and public power
political regime can be understood as the whole set of the commonest operation
methods of main institutions, their resources and tools of enforcement, which
form and organize real interaction between a State and its society. From the
definition above it is apparent that a political regime forms and develops under
influence of considerably greater number of factors than political system does.
Moreover a ruling regime is determined not only and not so much by macro
factors, e.g. a social structure, society’s ethical traditions and so on, but
also considerably by more individual features and circumstances, including
intergroup relations within the ruling elite,
internal or foreign political situation, international support of
authorities, personal qualities of politicians and etc..
Political regime is more mobile and dynamic phenomenon than a government
system [9]. In this sense a political system can evolve from changes of several
political regimes. In the 20th century, for example, the political
system of the USSR underwent the transformations of the Stalin’s regime, the
Krushchov’s “thaw” of 1960-s and the collective administration under Brezhnev’s
leadership. It is a regime that develops, pursues and implements a certain
state policy including law policy, internal and foreign policies [10]. The
history of highly developed Powers evidences that centrism is the most
auspicious and effective for self-preservation of a ruling regime. Regardless
of its ideological burden it is the policy, which is conducive to minimizing
conflicts in complex societies, using much effectively political potential of
the whole community and supporting mutual respect of the elite and other
strata.
Meanwhile, most regimes tend to populism as one of the most popular
means of consolidating their own positions. Populism refers to the kind of
policy under which the ruling top deludes citizens by meaningless promises,
demagogic calls, legal idealism and different tricks for the sake of leaders’
popularity [11]. However, whatever regime or policy a country had, all power
activity would ultimately bend to the aims of certain controlling political
structures to preserve their own stability.
To sum
up the above, political regime can be defined as the set of various relations
of public power and society, particularly the following characteristics: 1) the
institutional means of interaction between the State and a citizen (observance
of the Constitution, including respect to fundamental human rights and
freedoms; conformity of administrative measures with the law; importance of the
official and legal sphere within all public activities); 2) participation of
citizens in political life and involvement in public decision-making process
that reflects social representation, popular control and expression of will; 3)
possibility of free rivalry of the ruling and opposition groups under forming
the government organs; 4) open violence and force of public administration. In
other words, the matter is that there is a kind of «social compact» regulating
relations of rulers and people and the dynamics of public administration
reflects both a state of things under support of the ruling order and the
nature of regulation of relations between the State and an individual. A
political regime determines exercise of power, functioning of political
institutions and relations, dynamics of the political system, relationship
between the power and society, who controls whom, and also contributes to
realizing political goals and elite’s at power wishes.
A political regime type is determined by the level of development and
intensity of social and political processes, the ruling top structure, its
formation mechanism, the human rights and freedoms status, the relationship
with the bureaucracy, legitimacy, evolution of social and political traditions,
political and legal consciousness of society [12]. The distinctive features are
mechanism of ruling the State; method of functioning public agencies;
procedures of selection of ruling groups and political leaders; methods of
power division among different social forces including political organizations
which represent the interests of these forces; power division into legislative,
executive and judicial; implementation of the checks and balances principle; a
set of methods to exercise power (permission — ban, persuasion — enforcement,
economic — non-economic); citizens’ attitude to political participation
(active, indifferent, passive, including the participation types: organized or
spontaneous); enjoyment of rights and freedoms; realization of fundamental
individual rights and citizen rights by the State; proper safeguards to realize
the rights; methods of settling social and political conflicts; political and
legal culture influence of the main social groups on the dynamics and
tendencies of political processes; political parties available, parties’
organization and their interrelation with the State; the opposition, its
status, its interrelation with the State; political and legal position of the
army; political and legal position of the mass media, including censorship and
publicity.
In the judgment of many theorists, contributing to effective management
of social processes stability is the most important characteristics of both
political regime and social order on the whole. Taking into account that being
to some kind of continuation and safeguard of social standards and relations
political institutions are intended first of all for regulating public
relations. Therefore political stability, which they provide, would influence
any regime very much.
To give a substantial description of power stability it is necessary to
compare either different political systems or with the former regime.
Politically, regimes can be stable, medium-stable or ultra-stable. Each has its
own instruments and mechanisms to govern society, regulate public order,
maintain its self-preservation and development, law consciousness and legal
culture. Stability of a political regime is a complex phenomenon including the
following features: maintenance of the government system, public order,
legitimacy, effective administration, law and order. That’s why it is generally
determined by certain political processes (e.g. absence of wars and armed
conflicts), flexibility of the government to adapt to social changes, relation
balance within the elite and of political forces. The stability criteria
thereto can be as follows: the government’s term of office, its support by the
parties, representation in the legislature, the multi-party system,
distribution of parliament seats, etc. The means of achieving stability are of
wide range from persuasion and encouragement of citizens to play free political
part to application of force. Stability does not exclude changes or reforms and
under certain conditions allows conducting them. First of all it denies
unlawful violence in society as well as ruling of the forces unrecognized by
society. In other words power is as stable as able to prevent the dominating
unlawful forcers. In the sense of ability of society to defend itself stability
facilitates maintenance of such power organization, which satisfies the social
system and public mood, and furthers its efficient integration under social and
economic development [13]. Stabilization can be caused by the constitutional
and legitimate order maintained by the State; effective exercise of power;
application of flexible pressure tactics; observance of public traditions; lack
of drastic changes in the power structure; thought-out and efficient government
strategy; strong support to the opposition from the current government; people
tolerance of unconventional ideas; and performance of the basic functions by
the State.
In contrast, instability very often accompanies qualitative reform
processes, crucial changes in society and in power. Instability can result from
cultural and political splits in society; disregard of peoples’ needs; and
intense competition of the parties of opposite ideologies. Another fact worthy
of being noted is that instability is directly proportional to such conditions
as increasing urbanization and population growth; industrial development, which
destroys natural social connections; weakening
of social and political control; and trade and financial dependence on the external sources. At the same time it
is inversely proportional to the level of legitimacy; development of political
institutions; social and economic mobility; economic growth rate; advanced net
of political communications; consensus within the elite, etc.
One of the widespread reasons behind destabilization of a political
regime is the opposition’s activity. The opposition is a political institution
which task is to express the interests and values unavailable under the ruling
regime, thereby it, persuades the electorate that is better qualified to govern
in its stead, consolidates the electorate’s activity, opposes or corrects the
ruling behavior. The opposition is a bearer of «spirit of criticism» in
politics. Sometimes law nihilism is peculiar to it. Its existence depends
inherently and inseparably both on the qualities of human being incarnate and
the diversity of society that hampers to preserve strong and constant political
relations. Desire for life changes, alternative projects, and overcoming of
obstacles is inherent in a human being as a social being. Politically the
opposition available makes impossible for society to establish once for all
common and solid attitudes to the objectives of the State and to raze any kind
of conflicts.
Political regime integrates the principle of
legitimacy, the form and role of the State, the institution structure, the
party and election systems. It is known that influence of the State on society
is determined by legitimacy rather than enforcement. The legitimacy principle
means the ability of authorities to develop public faith in that, in spite all
of their failures and defects, the current political institutions are the best
ones which have ever been or would ever be established. Development of
confidence in legality and efficiency of the State to make decisions, which
citizens shall obey, is conditional on conformity of these decisions with the
values shared by most community [14]. These values meet the standards of a
democracy which is capable to create the best institutions. Legitimacy is not
urgent under authoritative and totalitarian regimes.
Being a political
organization of society and a value itself, democracy is based on the following
maxims: the State is a guarantor of the fundamental individual rights and
freedoms; people possess political power exercised through direct and indirect
elections; authorities are formed by means of free elections under free
candidates’ nomination, general, equal and voting right, freedom of choice; the
majority respect the minority’s (the opposition) rights to criticize, to take
over the present government at the regular elections; constitutionalism is a
regulation by force of the Constitution of relations between the State and
society, their equal responsibility under the law. Litvinov О.М. states
that «servility, e.i. rights are subordinate to the political goals», is
peculiar to democracy [15].
The
will of most people is expressed through the system of political institutions.
The most important element of a regime is the State along with law, party
system, pressure groups, non-political influential structures (Church, mass
media). According to Fichte J.G. and Hegel G.W. a State is «the best
reflection» and «crystallization» of the nation’s spirit, «truth of its moral
idea». On the whole emergence of public institutions (one of which is State)
reflects appearance of such needs, which can not be satisfied on the account of
individual resources. As opposed to personal power, institutionalized power is
significant as it is based on restriction of self-will, subordination of goals
to the rights that reflects the commonweal interests.
Unlikely
to other institutions a State possesses two peculiarities: firm organization
and strong solidarity of its members. Emergence of the institution of State is
conditional on necessity to express common needs and interests, which other
institutions failed to do, including needs for security, observance of the
individual rights and freedoms, keeping peace and order. The advantage of a
State is that under attaining objectives and interests it first of all has an
appropriate specialization and division of governors’ labor. Law-makers create
laws, officers execute laws, and judges supervise observance of laws by
citizens and authorities. Second, a State possesses vast material and other
resources for performing its tasks. For instance, it is a State that has the
army and police capable to be a weighty argument when it bursts into open
conflict. Third, a State implements the developed system of sanctions applied to
instill obedience in its citizens. However, sanctions are not enough to form
such communication as a State. Its integral components are the priority of
national relations rather than some other ones; unity of representatives and
groups of the same nationality. National solidarity derives from religious
beliefs. Exercise of power and enforcement are based predominantly on the
religion of participants of the public communication. Another important element
is legitimacy which is determined by the concept of law. It is the course of
law that endows power with the institutional character and makes it legitimate
in the eyes of citizens.
However legitimacy does not prove its effectiveness, i.e. capability to
satisfy the needs of a majority community, to respond quickly to their
different demands, and to preserve social and political stability. The
effectiveness mainly depends on the organization principles of the power
branches. The methods of power formation, principles of organization of
institutions including their relations with citizens are referred to as a
unified concept «form of government».
The present western democracies are based on two principles. Under the
majority one power belongs to most people. The rule of law means that officials
and citizens are equal before the law. Under forming the institutions these
principles unite to different extent with the principle of power division into
legislative, executive and judicial. The majority principle can serve for two
institutional democracies, parliamentary and presidential, which are based on
the different procedures of selection of a majority and lawful investiture (the
right to form, control and dismiss the government) of Parliament or of
President, respectively. The legislative and executive branches can be formed
under either the principle of strict division or lack of it that depends on the
power organization, i.e. parliamentary or presidential.
To
satisfy public interests a State interacts with political forces, which express
electorate’s needs and political parties play a crucial role therefore. The
latter appear to battle social groups’ interests. The party systems determine
the nature of political regimes. Before coming-to-be of the party systems the
institutions of democracy formed under the principle of power division. The
former’s existence has changed the situation. The majoritarian or dominant
parties, i.e. possessing a majority of deputies’ mandates, controlling a
parliamentary majority and a government, alter the principle of power division
into a symbol. They make single-handed decisions to set a certain policy and
means of its realization.
Interrelations
of a parliament, a government and voters are prescribed by the rules referred
to as the electoral system or the election regime. These rules prescribe how
subjects name rulers, relationship of the legislative and executive branches is
formed, and their legitimacy is established or cancelled. Having a strong
impact on political regimes the electoral systems are not neutral.
Stable democracies are political regimes, which governors get access to
power and the decision-making right as a result of free general elections.
Furthermore different mechanisms of electing a legislature and forming a
government depend on different government systems. The present structure of
democratic institutions can not be considered as a mere reflection of public
advantages because the latter is indeterminate. Individual preferences and
their capability to distinguish between alternatives range from the best to the
worst. A choice among possible alternatives is made in the community comprising
of various groups which interests and opinions conflict with each other.
The
approaches to defining the concept ‘political regime’ can be used for its
classification. All means and methods applied by a State for exercising power
reflect the level of political liberty in society and legal status of a
citizen. A level of social individual freedom and a nature of ‘State-citizen’
relationships entail three types of regimes: totalitarian, authoritative and
democratic. Litvinov O.M. underlines that under transition from
totalitarianism to democracy «importance of rules regulating individual
relations and weight of savage physical (or military, etc.) force gradually
diminishes by replacing with “force of persuasion”, “force of belief”, even
“force of deception” and “force of ruse”» [16]. Transition is also
characterized with humanization of politics and law that by the opinion of
Bigun V.S.: «is considered as a step-by-step process of realizing the
principle under which a human being is of key social value that manifests
itself through political and law reality, fundamental laws (the Constitution,
Criminal Code, etc.) and law realization («humanization of a an individual» as
indispensable to humanization of law)» [17].
Being
extremes of the classification democracy and totalitarianism have many
intermediate forms. For example, semidemocratic regimes are such under which
power of leaders is restricted, and free and democratic elections are so dubious
that their results disagree noticeably with the will of majority. Furthermore
civil and political rights are so diminished that expression of political goals
and interests hardly possible.
The
classification of political regimes is also based on: political parties
available, their organization, interrelation principles within the party
system; interrelation between administration and self-administration, a role of
the local authorities in political processes; importance of the armed, police
and special forces; degree of power division (legislative, executive and
judicial); level and character of citizens’ participation in political and
governmental processes; extent of publicity as to authorities’ activity, their
veracity and openness for public control; possibilities to express and realize
different interests; methods to form state bodies, procedures to select ruling
groups and political leaders.
In the
narrow sense, the regimes are liberal, dictatorial, violent and others. By the
form of government the regimes are as follows: parliamentary, presidential,
monarchy, republican, emergency governing, etc. Evaluations of political regime
can be symbolic that’s why lack for an objective analysis of the government
form (absolute, czar’s, etc) which instead being often personified by the name
of the ruler (Stalin’s regime, Hitler’s regime, etc). That’s why a political
regime is a typological, stylistic and symbolic characteristic of society and a
State.
Robert
Dahl applies two criteria of competitive struggle for power and citizens’
involvement in governing to distinguish the four ideal types of political
regimes: hegemony, open hegemony, oligarchy of competition and polyarchy.
Hegemony is characterized by most severe restrictions, ban on any opposition
irrespective of adherence (loyalty) of subjects. Oligarchy tolerates
competition but within the elite. Being the nearest form to democracy the
following distinctive features of poliarchy are: 1) electiveness of power
organs that is guaranteed by the Constitution; government’s decisions are
controlled by means of elections; 2) free and fair elections are conducted
regularly and periodically; any compulsion is ruled out; 3) universal
suffrage entitled to almost all adults 4) the right to be elected granted
to almost all adults, however the age qualification can be higher than the
right to vote; 5) freedom of expression: without fear to be punished
citizens enjoy the right to express their own opinion of a wide range of
issues, including criticism against public authorities, the government, regime,
social and economic order and predominant ideology; 6) alternative
information: citizens have the right to information from alternative sources;
moreover, these sources are guaranteed by the law; 7) autonomy of associations:
to realize their rights, including the ones discussed above, citizens are
entitled to join in free associations and organizations, including independent
political parties and interest groups [18]. There are also a great number of
mixed regimes which can be similar to one of the ideal types.
Some authors reckon the following groups as separate regimes: military,
one-party, liberal, quasi-democratic and transitional ones. Samuel Huntington
marked out four types of nondemocratic regimes: one-party, military, personal
dictatorship and racial oligarchy. Thus the tasks of politological analysis
would determine one of the classifications. The typology of political regimes
by American political scientist Juan J. Linz is widely recognized and includes
five main types: democratic, authoritarian, totalitarian, post-totalitarian and
sultanistic. These types are ideal and differ in the following four features:
political mobilization of citizens, pluralism, level of ideologizing and power
constitutionality of a leader or ruling group. To our mind, to classify
political regimes into totalitarian, authoritarian and democratic it is
efficient to compare them by the following characteristics: political
pluralism, social and economic pluralism, ideology, mobilization, leadership,
legal culture (See the Table below).
Comparative
Description of the Main Political Regimes
Features |
Totalitarian |
Authoritarian |
Democratic |
Political pluralism |
NO (the official party
has absolute monopoly of power) |
Restricted,
irresponsible; may have a weak position |
Responsible |
Social- Economical pluralism |
No possibility for
parallel society or shadow economy |
Possible |
YES |
Ideology |
Predominant
one as the utopia which could be achieved in the future |
Absence of well-defined
dominant one |
Adherence to civil
principles and competition rules; respect for the minority’s rights, legality and
importance of a person |
Mobilization |
Extensive one of many organizations established by the
regime; based on enthusiasm |
Absence of political
one, barring exceptional cases |
Low one; awareness of
importance of high activity; tolerance of the opposition, which obeys
respective political rules |
Leadership |
Unlimited; absolute,
unpredictable, often charismatic; nomination to top office depends on adherence
and party career |
Restricted
power of a leader (a small group of rulers), the restrictions are ill-defined |
Leaders
change periodically by results of free elections; their power is restricted
by the Constitution |
Legal Culture |
Totalitarian |
Authoritarian |
Democratic |
The comparative description makes it possible to draw up the conclusion that it is a political life that determines
legal consciousness and culture of society and an individual. On the other
hand, M.I. Panov says that «political ideals, aims and other values are realized by establishing
the system of laws and their application» [19]. The problem of correlation and
two-way influence of political life, legal consciousness and culture is very complicated and
urgent.
Three
components can be found in legal culture: cognitive (knowledge), axiological
(values) and behavior [20]. The cognitive and axiological components involve
law consciousness while behavior is connected with law behavior, i.e. the
system of practical activity of applying and obeying law. Within this framework
a systematizing factor is exactly democratic legal values or social and law
preconception, which predetermine law consciousness and legal culture in
general. According to S. Maksimov it is true that: «legal culture is,
first of all, the moment of values and ideals» [21]. The values serve as
respective foundation and means of making decisions and setting goals
conformable to some values; they are a criterion as to what one should strive
for and\or avoid under the current political regime; they serve as an arbiter
to settle internal conflicts and find appropriate solutions [22].
Law consciousness can be
defined as a set in esse of interdependent ideas and emotions demonstrating
attitudes of social groups and individuals towards law as an entire social
institution including its system and structure, certain laws and other law
system features of the present political regime [23]. Law consciousness is also
a channel of law influence on individual behavior, development of social and
group relations through motivation, emotions and consciousness in universe of
the present political regime. Law consciousness can consist of the following
components: knowledge of the Constitution, legal rules and laws including
judgment about law organization of a particular society and criticism of the
current law system and other values that directed at changing the law system of
the day. Law consciousness reflects the spirit and nature of the present laws
in individual consciousness and helps creatively improve and criticize the current
legislation and institutions from a position of individual fairness assuming
ever greater importance and deeper life sense among many people. It is also
possible to distinguish the institutional and noninstitutional forms of
law-consciousness being. The former embodies documents as a form of active
mental process of professional lawyers; the latter manifests itself through law
reasoning, will and emotions as the form an active process or act of
consciousness in its «unobjectified form». Moreover, according to the manner of
mental process the noninstitutional form is divided into the everyday and
theoretical levels. The everyday one embraces conceptions, expressions of will,
attitudes to current law, knowledge and judgment of the present laws, opinions about
legitimacy of court rulings and fairness of the existing laws. The theoretical
one can be reckoned as some legal «doctrines» developed by law theorists and a
large number of problems such as law, justice and fairness, rights and duties
of society and individuals, fundamental legislative institutions discussed in
researches on the humanities [24]. The levels aforesaid differ in amount of
knowledge of law and its system, degree of comprehension of law facts,
phenomena and law consciousness. The everyday law consciousness must include
ethical estimation, which can even be dominant because at this level views on
law are far from being professional. Being kept informed about legal rules and
law depends on both social and law experience of individuals and law practices
of society and the existing political regime [25]. Law consciousness can be
formed under influence of the following factors: historical experience of a
society, social environment of individuals, personal social experience of each
individual and group. It conforms to а social
structure of a society and acquires different forms and contents dependent on a
social subject including society in tote, classes, groups, strata, separate
individuals.
IV. Conclusions It is clear that it is a political regime that influences cognitive
(knowledge), axiological (values) and behavior levels of legal culture. That’s
why it is appropriate to form a respective value system of an individual and
the whole community in order to have any progress towards democracy and legal
culture prevailing in European community where Ukraine strives for.
V. Literature
1.
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факультетів / Уклад., заг. ред. проф., д-р істор. наук Г.Г. Демиденко. – 2-е
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2.
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3.
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суспільства: джерела, впливи, стереотипи: Збірник статей і тез за матеріалами
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4.
Див.: Соціологія політики: Енцикл. словник / Авт.-упоряд.:
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